NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1099n.06

                                       Nos. 11-5244, 11-5340                              FILED
                                                                                       Oct 23, 2012
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )    ON APPEAL FROM THE
       Plaintiff—Appellee,                                 )    UNITED STATES DISTRICT
                                                           )    COURT FOR THE MIDDLE
v.                                                         )    DISTRICT OF TENNESSEE
                                                           )
SIXTOS ARELLANO-GARCIA (11-5244)                           )
MAURICIO OROZCO-RIOS (11-5340),                            )            OPINION
                                                           )
       Defendants—Appellants.                              )
                                                           )




Before: MOORE, WHITE, and LUCERO,* Circuit Judges.

       CARLOS F. LUCERO, Circuit Judge. Mauricio Orozco-Rios and Sixtos Arellano-Garcia

were participants in a cocaine-distribution ring based in Nashville, Tennessee. Orozco-Rios, one of

the leaders of the distribution ring, pled guilty to conspiring to distribute five or more kilograms of

cocaine in violation of 21 U.S.C. § 846. Arellano-Garcia, a mid-level dealer, was also charged with

conspiracy to distribute five or more kilograms of cocaine, as well as possessing a firearm in

furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At trial, a jury convicted

him on both counts.




       *
         The Honorable Carlos F. Lucero, Circuit Judge for the United States Court of Appeals
for the Tenth Circuit, sitting by designation.
       On appeal, Orozco-Rios argues that certain quantities of drugs were improperly attributed

to him. Arellano-Garcia contends that there was insufficient evidence to convict him, that the district

court erred by requesting that a spectator leave the courtroom and by denying his proposed jury

instructions, and that his sentence was unconstitutional. Exercising jurisdiction under 28 U.S.C. §

1291, we affirm as to both defendants.

                                                   I

       Orozco-Rios was one of the leaders of a cocaine distribution ring that imported drugs from

Atlanta, Georgia for distribution in Nashville, Tennessee. As part of his business model, Orozco-

Rios would sell the cocaine that he imported to “wholesale” dealers, who would then sell smaller

quantities of cocaine to their own customers. One of these “wholesale” dealers was Roberto

Jaimes-Jiménez, who was known by the nickname “Sueno.” Sueno sold cocaine to Arellano-Garcia,

who he considered to be one of his best customers. Several of Sueno’s cohorts delivered cocaine

to Arellano-Garcia, who then resold the drugs. This information was corroborated by a notebook

seized by the Drug Enforcement Administration, which indicated that Arellano-Garcia owed Sueno

at least $10,000, as well as intercepted phone calls in which Arellano-Garcia requested significant

quantities of cocaine.

       Both Orozco-Rios and Arellano-Garcia were charged with conspiring to distribute five or

more kilograms of cocaine and with possessing one or more firearms in furtherance of a drug

trafficking crime. In return for the prosecution dropping his firearms charge, Orozco-Rios pled

guilty to the conspiracy count. According to the Presentence Investigation Report (“PSR”), Orozco-

Rios was responsible for 127.5 kilograms of cocaine and 17.48 kilograms of marijuana. However,

Orozco-Rios contested the attribution of 76 kilograms of cocaine found in a stash house in Atlanta.


                                                 -2-
At sentencing, the district court erroneously recalled that Orozco-Rios had admitted that he was

responsible for at least 50 kilograms of cocaine, and refused to rule on the objection because it would

not affect the applicable Guidelines range. The court adopted the PSR’s findings and sentenced

Orozco-Rios to 360 months’ imprisonment—at the low end of his Guidelines range.

       Arellano-Garcia went to trial on both the conspiracy and firearms charges. On the eve of his

trial the prosecution filed an information pursuant to 21 U.S.C. §§ 851(a)(1) and 841(b), giving

notice that it would rely on Arellano-Garcia’s previous conviction of a felony drug offense. By filing

this information, the prosecution exposed Arellano-Garcia to a mandatory minimum sentence of

twenty years if convicted on the conspiracy charge. See 21 U.S.C.

§ 841(b)(1)(A). Following presentation of the prosecution’s case, Arellano-Garcia moved for

acquittal under Fed. R. Crim. P. 29. The court denied this motion, and the jury ultimately convicted

Arellano-Garcia on both counts. Acknowledging the § 851 information, the court sentenced him to

twenty years’ imprisonment for the conspiracy conviction, and five years’ imprisonment for the

firearm conviction to be served consecutively.

       Both Orozco-Rios and Arellano-Garcia timely appealed.

                                                  II

       Orozco-Rios argues that the district court committed procedural error by declining to

specifically address his drug quantity objections based on the mistaken belief that Orozco-Rios had

admitted responsibility for at least 50 kilograms of cocaine in his plea agreement. We generally

“review the district court’s findings of fact for clear error and its conclusions of law de novo.”

United States v. Archibald, 

, 294 (6th Cir. 2009) (quotation omitted). However, when

a defendant “fail[s] to object to the district court’s determination of the drug quantity, we review for


                                                  -3-
plain error.” United States v. Wade, 

, 704 (6th Cir. 2003). “We cannot correct an error

pursuant to [Fed R. Crim. P. 52(b)] unless there is an error that is plain or clear under current law

and that affects substantial rights.” United States v. Page, 

, 543 (6th Cir. 2000).

       At sentencing, the district court stated its mistaken belief that Orozco-Rios had accepted

responsibility for at least 50 kilograms. Following further discussion regarding drug quantity, the

court recessed to allow defense counsel to consider whether the drug quantity objections would

effect Orozco-Rios’ Guidelines range. Orozco-Rios’ counsel stated: “I concede that in the absence

of 17.48 kilograms of marijuana as well as the 76 kilos found in Atlanta, in the absence of that, we

still get to the 51-point—I believe it’s 51.5.” Based on this concession, the court declined to make

a determination about the contested drug quantities because it would not affect the Guidelines range.

       Regardless of the district court’s mistaken belief regarding Orozco-Rios’ plea admissions,

the court was entitled to credit counsel’s concession that Orozco-Rios was responsible for more then

50 kilograms of cocaine. See Fed. R. Crim. P. 32(i)(3)(A) (court “may accept any undisputed portion

of the presentence report as a finding of fact”). We thus hold that the district court did not commit

error, plain or otherwise, and that Orozco-Rios’ sentence was procedurally reasonable. We further

conclude that Orozco-Rios has not overcome the presumption that his within-Guidelines sentence

is substantively reasonable. See Rita v. United States, 

, 347 (2007).

                                                 III

                                                  A

       Arellano-Garcia asserts that there was insufficient evidence to convict him. In reviewing a

sufficiency of the evidence challenge, we ask “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the


                                                 -4-
crime beyond a reasonable doubt.” United States v. Davis, 

, 681 (6th Cir. 2007)

(quotation omitted).

       To prove a charge of conspiracy, the prosecution was required to show: (1) an agreement

between two or more persons to violate the law; (2) knowledge and intent to join in the conspiracy;

and (3) participation in the conspiracy. United States v. Salgado, 

, 446-47 (6th Cir.

2001). Arellano-Garcia maintains that he was only a small purchaser who was insignificant to the

greater distribution conspiracy. In support of this position, he points out that some higher level

conspirators did not know him. Arellano-Garcia also highlights testimony from a cooperating

witness who delivered drugs for Sueno stating that Arellano-Garcia only paid $2,300 to $2,400 per

delivery. Because these amounts do not represent massive quantities of cocaine, Arellano-Garcia

casts them as potentially being for personal use. The evidence, however, tells a different story.

       Contrary to Arellano-Garcia’s claim that he dealt only in user quantities, Sueno told a co-

conspirator that Arellano-Garcia re-sold the cocaine that he purchased. The same witness learned

from Sueno that Arellano-Garcia used some of the cocaine he purchased to manufacture crack.

Further, on a phone conversation recorded by law enforcement, Arellano-Garcia told Sueno that he

would purchase more cocaine if his current supply “goes out by tomorrow.” From this evidence a

juror could easily conclude that Arellano-Garcia agreed to participate in a conspiracy to distribute

cocaine.

       Whether Arellano-Garcia agreed to participate in a conspiracy to distribute five kilograms

or more presents a somewhat closer question. We take pause at the fact that the government cannot

point to a specific five kilograms of cocaine that passed through Arellano-Garcia’s hands. See

United States v. Pruitt, 

, 644 (6th Cir. 1998) (“While a person who participates in a


                                                -5-
drug conspiracy does not necessarily agree to a specific amount in advance, no defendant may be

held responsible for acts beyond the scope of his or her participation in the conspiracy.”). However,

the prosecution offered substantial evidence showing that Arellano-Garcia was an active participant

in the conspiracy and was well aware of the large amounts of cocaine involved. See United States

v. Robinson, 

, 639-40 (6th Cir. 2008) (“Although a ‘small-time’ drug seller may not be

responsible for all the transactions or actions of his associates, he is responsible for the conspiracy

in which he participated.”).

       Arellano-Garcia had a close working relationship with Sueno, who was one of the most

prolific cocaine dealers in the conspiracy. According to a cooperating witness, Sueno was

distributing approximately two to six kilograms of cocaine per week. Arellano-Garcia visited Sueno

several times a week, and Sueno described Arellano-Garcia as one of his “best clients.” From the

dealings between Arellano-Garcia and Sueno, it is clear that Arellano-Garcia was no marginal

participant in the conspiracy. Arellano-Garcia repeatedly offered firearms to Sueno. And when

another member of the conspiracy was arrested, Arellano-Garcia expressed concern for the arrested

co-conspirator to Sueno. In the same recorded phone call, the two discuss an individual who may

have assisted law enforcement in apprehending the co-conspirator and Arellano-Garcia urges Sueno

to “get on the ball” to avoid further arrests. Coupled with the deferential standard of review, we

conclude that this evidence of Arellano-Garcia’s awareness of and involvement in the conspiracy

is enough to support his conspiracy conviction.

       Arellano-Garcia also asserts that there was insufficient evidence to convict him of possessing

a firearm in furtherance of a drug crime under 18 U.S.C. § 924(c). When paired with the vicarious

liability doctrine outlined in Pinkerton v. United States, 

(1946), we have held that “a


                                                  -6-
defendant may be convicted under [the prior version of § 924(c)] if a co-conspirator used or carried

a firearm in connection with a drug-trafficking offense.” United States v. Myers, 

, 237

(6th Cir. 1996). However, as with any conspiracy charge, it was the government’s burden to show

“the crime was foreseeable and committed in furtherance of the conspiracy.” 

.

        The record is replete with evidence that co-conspirators carried firearms and that Arellano-

Garcia was aware that firearms were part of the cocaine-distribution conspiracy. Notably, in one

phone conversation intercepted by the government, Arellano-Garcia offered to sell Sueno an assault

rifle, a modified shotgun, and a nine-millimeter handgun. In another intercepted call, Arellano-

Garcia asked Sueno when he was “going to bring the pistol.” Viewing this evidence in the light most

favorable to the prosecution, we can infer that Arellano-Garcia could foresee that his co-conspirators

were using firearms in connection with their drug trafficking. See 

(“We may

infer that a defendant in a drug conspiracy should have foreseen his coconspirator’s firearm

possession, but the evidence supporting that inference must be more than a mere generalized

presumption that drug transactions involve guns.”).

                                                   B

        During trial, the district court requested that a spectator leave the courtroom to avoid making

a juror uncomfortable. Arellano-Garcia contends that this request violated his Sixth Amendment

right to an open trial. As a general matter, a trial court may not exclude members of the public from

a trial absent “an overriding interest that is likely to be prejudiced.” Waller v. Georgia, 

,

48 (1984).

        On the second day of Arellano-Garcia’s trial, a juror sent a note to the court indicating that

she recognized a member of the public who was observing the trial. The court questioned the


                                                  -7-
spectator, who stated that she was related to a co-conspirator, and that she was only a somewhat

remote acquaintance of the juror. After the spectator stated that she would like to remain, the court

responded: “I would prefer that she not stay. I’m not going to order her to leave. I prefer she not

stay.” The spectator then apologized to the court for causing any inconvenience, and following a

short recess, departed. Following this exchange, both parties indicated that they had no objections

to the manner in which the situation was handled.

        It is well established that “the violation of a defendant’s right to a public trial is not justified

by a finding that the error was harmless.” Gibbons v. Savage, 

, 119 (2d Cir. 2009); see

also 

& n.9. But courts have consistently refused to find Sixth Amendment

violations when a courtroom closure is so limited as to be trivial. See, e.g., 

; United States v. Perry, 

, 890-91 (D.C. Cir. 2007); United States v. Al-Smadi, 

, 154-55 (10th Cir. 1994); United States v. Sherlock, 

, 1357-58 (9th Cir.

1992). In the instant case, the court requested—but did not demand—that a single spectator leave

the courtroom. This limited exclusion does not implicate the policies underlying the Sixth

Amendment, and may not constitute a constitutional closure at all. 

(“The

requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt

with and not unjustly condemned, and that the presence of interested spectators may keep his triers

keenly alive to a sense of their responsibility and to the importance of their functions.” (quotation

omitted)). Even assuming that the district court partially closed the courtroom, we conclude that the

closure was trivial and thus does not warrant reversal.




                                                    -8-
                                                    C

        Arellano-Garcia asserts that the district court committed reversible error by refusing to give

requested jury instructions regarding absent witnesses. We will reverse a district court for refusing

a requested instruction only if the instruction is: “(1) a correct statement of law, (2) not substantially

covered by the charge actually delivered to the jury, and (3) concerns a point so important that the

failure to give it substantially impairs the defendant’s defense.” United States v. Franklin, 

, 553 (6th Cir. 2005) (quotation omitted).

        The prosecution gave notice that it was planning to call four of Arellano-Garcia’s co-

conspirators at trial, but ultimately decided against calling for their testimony. Arellano-Garcia

requested special instructions permitting the jury to “infer that [the uncalled co-conspirators’]

testimony would have been unfavorable to the government.” The district court refused this

instruction, finding that there was no legal basis for the proposed inference.

        Our case law supports the district court’s decision. “The general rule is that no such

inference may be drawn by a jury because a party fails to call as a witness one who is in a legal sense

a stranger to him and is equally available to the other side.” United States v. Blakemore, 

, 195 n.4 (6th Cir. 1973) (quotation omitted). There is no evidence that the four individuals in

question were unavailable or that Arellano-Garcia was otherwise unable to call them to the stand if

he believed that their testimony would help his case. Accordingly, the proposed instruction was

improper.

                                                    D

        The government filed an information under 21 U.S.C. §§ 851(a)(1) and 841(b) before trial

indicating that Arellano-Garcia had previously been convicted of a drug felony. This information


                                                   -9-
set a mandatory minimum sentence of twenty years for the conspiracy charge. See 21 U.S.C. §

841(b)(1)(A). Arellano-Garcia asserts that this mandatory minimum sentence violated his right to

due process, the Eighth Amendment ban on cruel and unusual punishment, and the separation-of-

powers doctrine.

       Our precedent firmly forecloses each of Arellano-Garcia’s claims. First, we have held that

“mandatory minimum sentences, which limit a sentencing court’s discretion with regard to [18

U.S.C.] § 3553(a) factors, are constitutional.” United States v. Washington, 

, 700 (6th

Cir. 2009) (citing Harris v. United States, 

, 565-68 (2002)). Second, the Supreme Court

has emphasized that mandatory minimums do not facially violate the Eighth Amendment, and has

upheld mandatory life sentences for drug crimes. Harmelin v. Michigan, 

, 994-96

(1991). Third, we have “flatly rejected the claim that mandatory minimums unconstitutionally

violate separation-of-powers principles.” United States v. Cecil, 

, 696 (6th Cir. 2010)

(quotation omitted). In the absence of any legal basis for departing from our precedent, we hold that

Arellano-Garcia’s sentence was constitutional.

                                                 IV

       For the foregoing reasons, we AFFIRM the convictions and sentences of Orozco-Rios and

Arellano-Garcia.




                                                -10-