Appellate Case: 23-5114 Document: 78-1 Date Filed: 02/13/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 13, 2025 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-5114 (D.C. No. 4:21-CR-00102-GKF-6) LUIS ALFREDO JACOBO, a/k/a (N.D. Okla.) Lokz,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, PHILLIPS, and FEDERICO, Circuit Judges. _________________________________
Defendant-Appellant Luis Alfredo Jacobo ran a methamphetamine
(meth) distribution ring that trafficked drugs from California to Oklahoma
and Missouri. In 2021, Jacobo was tried before a jury and convicted of one
count of directing a continuing criminal enterprise (CCE) in violation of
21 U.S.C. § 848(a)–(d), three counts of drug conspiracy in violation of
* This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 23-5114 Document: 78-1 Date Filed: 02/13/2025 Page: 2
21 U.S.C. §§ 846 and 841(b)(1)(A)(viii), and twenty-one counts of unlawful
use of a communication facility under 21 U.S.C. §§ 843(b) and 843(d)(1). He
was sentenced to life imprisonment.
On appeal, we must decide whether the bulk of Jacobo’s convictions
and sentences should be overturned. Jacobo argues that the Government
presented insufficient evidence to prove that he supervised enough people
to qualify as running a CCE. He also argues that his sentences for drug
conspiracy and unlawful use of a communication facility violate double
jeopardy.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742,
we affirm in part and reverse and remand in part.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
For many years, Jacobo ran an extensive drug trafficking network.
Out of his home in Bakersfield, California, Jacobo distributed large
amounts of meth worth millions of dollars. What made this drug trafficking
network so extensive is that it involved many different people, transactions,
and locations. We next endeavor to summarize the network, as it is relevant
to the resolution of this appeal.
From 2016 to 2018, Jacobo distributed meth in his local area. One of
the people he sold meth to was Symantha Handy, who both used and
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distributed that meth. Handy was introduced to Jacobo in 2016 by her
former dealer. After they met and Jacobo agreed to sell her meth, Jacobo
used runners to regularly deliver the meth to Handy. Handy would then sell
most of the meth and use the money to pay back Jacobo (a transaction
known as “fronting”), either in person or through another runner. Among
the runners were an unidentified man named Junior and another man who
claimed to be Jacobo’s brother. Jacobo would also text Handy regularly and
tell her to pick up meth from men at various homes.
Over time, Handy worked with Jacobo to recruit more people into his
meth distribution network. Handy introduced Jacobo to Adam Paquette,
who joined the operation. Jacobo gave meth to Paquette both personally and
through runners, which Paquette then distributed further. One of these
runners was a man by the name of Tony Garcia. Jacobo often told Paquette
to go to Garcia’s house to pick up meth.
In 2018, Handy moved to Oklahoma. As she was about to move, Jacobo
directly gave her a half pound of meth, which she sold once she arrived in
Oklahoma. Jacobo then began sending her meth by mail, several pounds at
a time. In return, Handy would send cash transfers to various addresses at
Jacobo’s request.
Eventually, Jacobo was distributing meth to northeast Oklahoma and
southwest Missouri through a network of drivers and dealers, most of whom
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had moved to that area from Bakersfield. By the middle of 2019, Jacobo was
sending 50-to-75 pounds of meth from California by car and truck for
distribution in Oklahoma and Missouri. This soon grew to regular 100-to-
200-pound shipments that were exchanged for hundreds of thousands of
dollars.
Handy helped Jacobo build this network by bringing in various other
dealers in Oklahoma: Cary Grace, Charles Grace, and Mitsy Jones. Jacobo
encouraged Handy to work with these people to “push more” meth. R. Vol. I
at 558–59. Handy also connected Jacobo with two dealers in Missouri, Billy
Johnson and Jerry Thornton, who then became a key part of the operation.
Soon after they started working together, Jones and Handy had a
falling out because Jones started communicating directly with Jacobo.
Handy became upset with Jacobo and briefly stopped sending him money
from her meth sales. In response, Jacobo encouraged Handy via text
message to “start working again” with Jones and “leave old issues in the
past[.]” R. Supp. at 11. He also communicated with her by text that he knew
where she lived and would “get my money one way or another[.]” Id. at 12.
He then sent Johnson to Handy’s house to collect money from her.
Jacobo continued to work with Jones during this time. Jacobo would
send her meth by mail for her to resell, and the two would regularly
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communicate by text to coordinate packages and payments. During this
time, Jones referred to Jacobo in text messages as “Boss.” Id. at 29, 34-35.
Johnson enlisted others to help him receive and distribute meth from
Jacobo. Among them was Josh Davenport, who supplied cars for delivery,
received and stored shipments of meth, and drove cash back to Jacobo.
Another was Gene Rast, who would regularly drive cash to Jacobo in
Bakersfield, and then receive meth to take back to Oklahoma and Missouri.
When he arrived in Bakersfield, Rast would meet with Tony Garcia to swap
meth and cash. On one occasion, Rast got into a traffic accident in
Bakersfield. Afterwards, he met with Jacobo, who arranged for a tow truck
to take the wrecked vehicle and then provided a new pickup truck to Rast.
Other associates of Johnson included Kelly Bryan, Adam Roberts, and
Johnson’s girlfriend, Shauni Callagy, all of whom helped Johnson receive
and deliver meth. Finally, Johnson relied on help from his longtime friend,
Jesus Martinez. Martinez also made regular car trips to Bakersfield to
exchange cash for meth. He spoke to both Johnson and Jacobo to coordinate
these deliveries. Martinez also involved his girlfriend, Renee Haynes, in
dealing meth. After Martinez was arrested in 2021, Jacobo reached out to
Haynes to ask her to take over Martinez’s duties. Haynes began driving
back and forth to Bakersfield, picking up meth in person from Jacobo and
Garcia.
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In 2021, agents from the U.S. Drug Enforcement Administration
(DEA) tried to arrest Jacobo at his home in Bakersfield, but he fled. Later
that day, he surrendered voluntarily to the police.
B. Procedural History
Jacobo was indicted by a grand jury in the Northern District of
Oklahoma on thirty charges. Count One was a charge of engaging in a CCE
under 21 U.S.C. §§ 848(a)–(d). 1 Counts Two through Four were charges of a
drug conspiracy under 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii). 2 Jacobo’s
coconspirators included Billy Johnson, Shauni Callagy, Gene Rast, Jesus
Martinez, Renee Haynes, Tony Garcia, and Kelly Bryan. Symantha Haynes
and Mitsy Jones were unindicted coconspirators. Jacobo’s remaining
twenty-six counts were for unlawful use of a communication facility
(commonly known as a “phone count”) under 21 U.S.C. §§ 843(b) and
843(d)(1).
1 Several other defendants were charged in the same indictment – Counts Five through Thirteen – with drug conspiracy and possession of meth with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii), (b)(1)(B)(viii), (b)(1)(C), maintaining drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and (b), interstate and foreign travel or transportation in aid of racketeering enterprises in violation of 18 U.S.C. § 1952(a)(3), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).
2 Count Two was a conspiracy centered around Handy, Count Three
for Jones, and Count Four for Johnson.
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The Government presented thirty-four witnesses who testified at
trial. At the close of the Government’s case, Jacobo moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29. The district court
denied the motion for most of the counts, but reserved ruling on Count One
(CCE) and Counts Thirty-one and Thirty-three (phone counts). The district
court later denied the motion as to all three of these counts in a written
order. 3
At the conclusion of a six-day jury trial, on November 7, 2022, the jury
found Jacobo guilty on all counts except for five of the twenty-six phone
counts. On October 20, 2023, the district court sentenced Jacobo to life in
prison for Counts One through Four and forty-eight months imprisonment
for each of the twenty-one phone counts of conviction, running concurrently.
Jacobo timely appealed, raising two issues – sufficiency of the evidence and
double jeopardy.
3 Although the district court requested briefing on the Rule 29 motion
for acquittal regarding CCE, neither Jacobo’s trial counsel nor the Government filed a brief. The jury found Jacobo was not guilty of Counts Thirty-One and Thirty-three, so the Rule 29 motion was denied as moot as to those two counts.
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II. DISCUSSION
A. Evidence Sufficiency: CCE Conviction
On appeal, Jacobo first argues the Government failed to present
sufficient evidence to convict him of a CCE. Because of the punitive
exposure it had on Jacobo and his sentence, it was the most serious charge
he faced at trial.
By law, CCE requires a defendant to engage in a continuing series of
criminal violations “which are undertaken by such person in concert with
five or more other persons with respect to whom such person occupies a
position of organizer, a supervisory position, or any other position of
management[.]” 21 U.S.C. § 848(c)(2)(A). Under the instructions given to
the jury “[t]he term ‘organizer, supervisor, or manager’ means that the
defendant was more than a fellow worker, and that the defendant either
organized or directed the activities of five or more other persons, exercising
some form of managerial authority over them. The defendant need not be
the only organizer or supervisor.” R. I at 398; see also 10th Cir. Crim.
Pattern Jury Instructions No. 2.88 (2023).
We have previously said “that the concepts of organize, supervise and
manage must be given their ‘everyday meanings.’” United States v. Smith,
24 F.3d 1230, 1233 (10th Cir. 1994) (quoting United States v. Dickey,
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736 F.2d 571, 587 (10th Cir. 1984)). Jacobo argues that the Government
failed to provide sufficient evidence of this element of CCE. 4
“In determining whether the government presented sufficient
evidence to support the jury’s verdict, this court must review the record
de novo[.]” United States v. Gregory, 54 F.4th 1183, 1192 (10th Cir. 2022)
(quoting United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003)). We
then see “whether, taking the evidence – both direct and circumstantial,
together with the reasonable inferences to be drawn therefrom – in the light
most favorable to the government, a reasonable jury could find [the]
Defendant guilty beyond a reasonable doubt.” Id.
Jacobo concedes that three individuals, Renee Haynes, Jesus
Martinez, and Tony Garcia, worked under his supervision or management.
Jacobo argues that the Government failed to establish that he managed two
more individuals, which was needed to meet the law’s requirement of “five
or more other persons.” 21 U.S.C. § 848(c)(2)(A). We disagree.
At the very least, there was sufficient evidence for a reasonable jury
to conclude that Jacobo organized, supervised, or managed Handy and
Jones. Jacobo contends that his role in supplying Handy and Jones was akin
4 This was the only challenge to the CCE conviction raised in Jacobo’s
Rule 29 motion, so any other challenge to the sufficiency of the evidence was forfeited. See United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007).
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to that of a wholesaler, selling meth for lower distributors to use or
distribute as they saw fit. He is correct that “proof of a buyer-seller
relationship alone is not enough to establish a managerial role[.]” United
States v. McDermott, 64 F.3d 1448, 1457 (10th Cir. 1995). However,
“additional evidence of formal or informal authority or responsibility
respecting a purchaser’s conduct may suffice.” Id. Evidence of such
authority exists for both Handy and Jones.
When Jacobo communicated with Handy, he would set the terms of
where she would pick up meth and how she would send cash back to him.
Even though Handy exercised discretion over whom she sold meth to and
the price she sold it at, Jacobo managed her activities in other ways. Text
messages from Jacobo show that he directed her to talk to other distributors
so “we can push more.” R. Supp. at 3. Handy also testified that Jacobo tried
to get her to recruit others to be “on the team.” R. I at 596. When Handy
failed to send Jacobo money because of her feud with Jones, Jacobo
threatened her and sent Johnson to ensure she complied with his
instructions. At the same time, Jacobo tried to get Handy to reconcile with
Jones so that the two would start working together again. These actions,
especially taken in context, indicate a degree of management and authority
over Handy.
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Likewise, Jacobo directed terms and actions to Jones and told her how
to communicate with him and send money back to him after he gave her
meth. Jones also testified that she looked for new people to sell meth to both
on her own and at Jacobo’s encouragement. The evidence presented at trial
showed that all of Jones’s activities ran upstream back to Jacobo. Indeed,
Jones even called Jacobo “Boss.” R. Supp. at 29, 34-35. At the very least,
this shows Jacobo exercised “informal authority or responsibility
respecting” her conduct. McDermott, 64 F.3d at 1457. Taking this evidence
in the light most favorable to the Government, a reasonable jury could have
inferred that Jacobo exercised managerial control over both Handy and
Jones.
Given that Handy and Jones bring the total number of supervised
individuals up to five, we could stop our review at this point. However, for
completeness, we also find that even if Handy and Jones were not sufficient
(they are), Jacobo’s sprawling drug distribution network included several
additional people that a reasonable jury might conclude that he managed
or supervised. The relationships among the various meth distributors were
fluid, but “[t]he managerial relationship requirement [for CCE] is flexible.”
United States v. McSwain, 197 F.3d 472, 478 (10th Cir. 1999).
A reasonable jury also could have concluded that Jacobo managed
Johnson, who organized significant meth distribution in Oklahoma and
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Missouri. Even though Johnson clearly exercised some autonomy and his
own authority, a “co-manager” can be “included as one of the five others
with respect to whom the defendant holds a supervisory position.” United
States v. Almaraz, 306 F.3d 1031, 1040 (10th Cir. 2002) (citing McSwain,
197 F.3d at 479–80). Jacobo told Johnson where his drivers should pick up
meth, organized the transactions, and paid for Rast’s car when he got into
an accident while driving for Johnson. Handy also testified that Jacobo
“sent [Johnson] to my house to collect on a shipment that Jacobo sent me.”
Several people appeared to have worked as drivers at the direction of
Johnson, including Josh Davenport, Gene Rast, Shauni Callagy, Kelly
Bryan, and Adam Roberts. They could also be considered to have been
managed by Jacobo because “a defendant may not insulate himself from
liability by delegating authority,” and thus “need not have had personal
contact with each of the five persons involved[.]” McSwain, 197 F.3d at 479–
80 (internal quotation marks omitted).
Regardless, Rast did have personal contact with Jacobo, who arranged
for him to have a new truck to transport meth and cash, which strongly
indicates a managerial relationship. A jury could also have reasonably
inferred the existence of several unnamed runners in Bakersfield working
for Jacobo, such as “Junior” and the man who identified himself to Handy
as Jacobo’s brother.
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Even though Jacobo may not have controlled every facet of how his
dealers and their sub-dealers distributed meth, he still “arrange[d] a
number of people engaged in separate activities into an essentially orderly
operation.” Smith, 24 F.3d at 1233 (10th Cir. 1994) (citing United States v.
Apodaca, 843 F.2d 421, 426 (10th Cir. 1988)). Given the size, scale, and
breadth of Jacobo’s drug organization, a reasonable jury could have
considered the Government’s evidence and concluded that he managed,
supervised, or organized at least five people.
B. Double Jeopardy: CCE and Conspiracy
For the first time on appeal, Jacobo argues that the district court
erred in convicting and sentencing him on both the CCE and the drug
conspiracy offenses because it results in multiplicitous sentences that
violate the Double Jeopardy Clause. In addition to the concurrent life
sentences for Counts One through Four, the district court also ordered a
$100 special assessment for each count of conviction, totaling $2,500 in
assessments for the twenty-five counts of conviction. Jacobo’s double
jeopardy argument pertains to both the prison sentences and special
assessments for these counts. 5
5 Jacobo does not otherwise challenge the sentence for the CCE count
in this appeal. He instead argued that he “should only have had one life sentence and one [special assessment of $100] imposed.” Op. Br. at 12.
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Because Jacobo did not raise this argument before the district court,
we review it for plain error. See United States v. Frierson, 698 F.3d 1267,
1269 (10th Cir. 2012). “Under the plain error standard, [a defendant] must
show clear or obvious error that affected his substantial rights and seriously
affected the integrity of the judicial proceedings.” Id. (alteration in original)
(quoting United States v. Battle, 289 F.3d 661, 669 (10th Cir. 2002)). “For
an error to be plain, it must be an error that is clear or obvious under
current, well-settled law.” United States v. Miller, 978 F.3d 746, 763
(10th Cir. 2020) (citation and internal quotation marks omitted). This
typically requires on-point precedent from either the Supreme Court or the
Tenth Circuit. Id. Because multiplicitous sentences violate double jeopardy,
“if a defendant is convicted of both charges, the district court must vacate
one of the convictions.” Frierson, 698 F.3d at 1269 (citations omitted).
The Double Jeopardy Clause of the Fifth Amendment assures that no
person shall “be subject for the same offence to be twice put in jeopardy of
life or limb[.]” U.S. Const. amend. V. In this context, there is a Supreme
Court opinion directly on point that applies the Double Jeopardy Clause to
these counts of conviction and operates as controlling precedent.
In Rutledge v. United States, the Supreme Court held that a drug
conspiracy is a lesser included offense of a CCE offense. 517 U.S. 292, 307
(1996). As such, the two offenses merge, and any concurrent sentences must
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be vacated. Id. The Government concedes that Rutledge governs here and
that the district court plainly erred in sentencing Jacobo on Counts Two
through Four. We agree, and therefore remand to the district court with
instructions to vacate the concurrent sentences and special penalty
assessments on the lesser included offenses of conspiracy in Counts Two
through Four. See United States v. Atencio, 435 F.3d 1222, 1235 (10th Cir.
2006).
C. Double Jeopardy: CCE and Phone Counts
Jacobo likewise argues that his convictions and sentences for the
phone counts impose double jeopardy. Unlike the conspiracy counts, the
Government does not concede this point as to the phone counts and argues
in opposition. Again, this issue was not raised in the district court, so we
review for plain error. Frierson, 698 F.3d at 1269.
Under 21 U.S.C. § 843(b), it is “unlawful for any person knowingly or
intentionally to use any communication facility in committing or in causing
or facilitating the commission” of a drug offense. Id. On the CCE section of
the special verdict form, the jury found that the Government proved both
drug conspiracy and unlawful use of a communication facility as predicate
offenses for the jury’s findings on the CCE charge.
Again, under Rutledge, lesser included offenses merge with greater
offenses. 517 U.S. at 307. But Rutledge distinguished conspiracy-like
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offenses from underlying substantive drug offenses when determining
whether they merged with the CCE offense. Id. at 300 n.12. So, Rutledge
does not dictate the outcome and relief that Jacobo seeks regarding the
phone counts. Rather, the Supreme Court has recognized that it is still
possible for there to be “separate punishments for the underlying
substantive predicates and for the CCE offense.” Garrett v. United States,
471 U.S. 773, 795 (1985).
Jacobo does not identify any precedent that the phone counts should
merge with CCE. And assuming, arguendo, it is debatable whether these
counts should be considered substantive predicates that can be charged in
addition to CCE, or whether they should merge with CCE, the answer is not
“clear or obvious under current, well-settled law.” Miller, 978 F.3d at 763
(quoting United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir.
2012)). In turn, the district court did not commit plain error in convicting
and sentencing Jacobo on the twenty-one counts of unlawful use of a
communication facility.
III. CONCLUSION
We AFFIRM the convictions and sentences by the district court on all
counts, except for Counts Two through Four, where we REVERSE the
conviction and REMAND with instructions to the district court to vacate
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these convictions and sentences and conduct further proceedings consistent
with this decision.
Entered for the Court
Richard E.N. Federico Circuit Judge