NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0633n.06
No. 16-6599/6606/6612/6624
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) FILED Nov 15, 2017 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) On Appeal from the United States ) District Court for the Eastern EZEQUIEL ARIAS OROZCO, JOSE ) District of Kentucky GUERRA-GUTIERREZ, ISAI ) PEDRAZA, and JUAN AVILA, ) ) Defendants-Appellants. ) _________________________________/
BEFORE: GUY, MOORE, and ROGERS, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. A jury convicted the four codefendants of
conspiring to distribute cocaine. One defendant, Isai Pedraza, also was convicted of
money laundering, conspiracy to commit promotional money laundering, and possession
of a machine gun. Defendants appeal certain of the district judge’s evidentiary rulings,
the sufficiency of the evidence, and the sentences imposed by the district judge. We
AFFIRM.
I.
In mid-2015, agents with the Drug Enforcement Agency and the Bureau of
Alcohol, Tobacco, and Firearms began investigating Isai Pedraza for drug trafficking. Case Nos. 16-6599/6606/6612/6624 2 United States v. Arias Orozco, et al. The investigation of Pedraza was a “spinoff” of a prior investigation of a larger scope.
Starting in September 2015, acting pursuant to a wiretap authorization, agents
intercepted a series of phone calls between Pedraza and an individual who had a Mexican
phone number. Pedraza and the individual discussed waiting for a call from an individual
they called “the Volunteer.” A call came to Pedraza on October 6, 2015, during which
Gilberto Garza Solis said he was “calling on behalf of the Volunteer” to arrange a
meeting in Lexington, Kentucky. The meeting occurred, and agents surveilling Pedraza
observed his blue minivan park next to an orange tractor-trailer at the meeting site. After
the meeting, investigators stopped the orange tractor-trailer, which Solis was driving, and
seized $312,000 in U.S. currency hidden inside the vehicle.
On November 10, Pedraza spoke to the same individual with a Mexican phone
number about “28 pieces,” referring to 28 kilograms of cocaine, for which Pedraza had
“preference” as a distributor. Pedraza opted to take all 28 kilograms for resale. The
individual told Pedraza to expect a call from “Ezequiel,” who would identify himself as
“el licenciado,” or “the lawyer.” A man, later identified as defendant Ezequiel Orozco,
called Pedraza on November 18, 2015, identified himself as “el licenciado,” and stated
that “the snow is wanting to arrive.” At that time, Orozco was traveling in a tractor-
trailer along with co-defendants Juan Carlos Avila and Jose Guerra-Gutierrez. Orozco
and Pedraza arranged to meet the following day.
On that date, agents observed a tractor-trailer arrive at the agreed-upon meeting
place. Shortly thereafter the same blue minivan, previously seen occupied by Pedraza,
arrived. Alfredo Garcia Albores was observed exiting the minivan, and Gutierrez exited Case Nos. 16-6599/6606/6612/6624 3 United States v. Arias Orozco, et al. the tractor-trailer cab carrying three bags that he handed to Albores. Subsequently,
Pedraza received a call from Orozco informing him that Albores “took the furniture . . .
the chairs as well.”
After the exchange, law enforcement officers conducted a traffic stop on the
minivan and recovered 28 kilograms of cocaine. The cocaine was vacuum-sealed to hide
its odor and stored in three black trash bags, which were further concealed in the
“decorative” department store shopping bags that Gutierrez was observed handing to
Albores.
The tractor-trailer was also stopped after the exchange. At the time of the stop,
Gutierrez was driving, Orozco was seated in the passenger seat, and Avila was in the
truck’s sleeper berth. A drug dog alerted to Avila’s wallet. During a second search, a
small bag of cocaine was found in an overhead compartment inside the passenger area of
the truck.
Also seized from the truck were logs kept by Avila and Gutierrez. Both logs
omitted an unscheduled stop made in Chicago the night before. Additionally, Avila’s log
indicated that they had arrived in Lexington, Kentucky on November 18, even though
GPS data indicated that the truck was still in or around Chicago, Illinois, at that time.
This inaccuracy had the effect of concealing the Chicago detour.
II.
A. Sufficiency of the Evidence (Orozco and Avila)
We review the sufficiency of the evidence for a conviction “in the light most
favorable to the prosecution” to determine whether “any rational trier of fact could have Case Nos. 16-6599/6606/6612/6624 4 United States v. Arias Orozco, et al. found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Circumstantial evidence, if “substantial and
competent,” may sustain a conviction even if no direct evidence exists. United States v.
Tarwater, 308 F.3d 494, 504 (6th Cir. 2002).
To support a finding that Orozco or Avila were guilty of conspiracy under
21 U.S.C. § 846, the government had to prove three elements: that there was an
agreement to violate federal narcotics laws, that the defendant knew of and intentionally
joined the conspiracy, and that he participated in the conspiracy. United States v.
Guzman, 677 F. App’x 221, 223 (6th Cir. 2017) (citing United States v. Sliwo, 620 F.3d
630, 633 (6th Cir. 2010)). “This Court has repeatedly held that participation in a scheme
whose ultimate purpose a defendant does not know is insufficient to sustain a conspiracy
conviction under 21 U.S.C. § 846.” Sliwo, 620 F.3d at 633. Charges of conspiracy,
including the elements of a defendant’s knowledge and intent, “are not to be made out by
piling inference upon inference.” Id. at 638 (quoting Direct Sales Co. v. United States,
319 U.S. 703, 711 (1943)). However, “[o]nce evidence of a conspiracy has been
established, a defendant’s connection to that conspiracy need only be slight.” United
States v. Ayoub, No. 15-1712, 2017 WL 2838331, at *13, ___ F. App’x ___ (6th Cir. July
3, 2017). “Membership and participation can be inferred through a defendant’s actions
and reactions to circumstances.” Id.
Orozco and Avila maintain that they were simply completing a side job, the
purpose of which was to deliver the sealed bags, and that they did not know that the bags Case Nos. 16-6599/6606/6612/6624 5 United States v. Arias Orozco, et al. contained drugs. Both assert that all of the evidence the government submitted to the jury
is consistent with their innocent explanation. But the record belies these claims.
There was significant circumstantial evidence sufficient to undermine Orozco and
Avila’s contention that they lacked knowledge of the conspiracy and to permit a jury
finding of guilt. The evidence showed that after delivering the bags, Orozco phoned
Pedraza to tell him that his “furniture” and “chairs” were delivered, even though the bags
obviously could not have contained furniture. Orozco attempted to explain this to the
jury by stating that he always used the word “furniture” to describe literally any kind of
delivery, including “books or . . . anything else.” The government also recorded Orozco
telling Pedraza that “snow” — a common colloquialism for cocaine — was on its way.
Although Orozco claimed that he was talking about the weather, the context of the call
leaves the reasonable juror free to conclude that the reference to “snow” was actually a
reference to cocaine.
Other evidence also supports Orozco’s participation in the conspiracy. Orozco
could not explain the defendants’ unapproved, unlogged detour to Chicago. Orozco
attempted to explain the detour by claiming that the truck had to stop in Chicago to pick
up “paperwork” that had been left on a parking lot corner “far away . . . in a shadow.”
The jury was entitled not only to disbelieve such testimony, but also to infer that this
testimony was an attempt to cover up the charged crime. See, e.g., United States v. Case Nos. 16-6599/6606/6612/6624 6 United States v. Arias Orozco, et al. Seltzer, 794 F.2d 1114, 1119 (6th Cir. 1986) (holding that the “incredible nature” of a
defendant’s testimony can support a jury’s finding of guilt).1
Avila, in seeking reversal, relies on Sliwo and United States v. Coppin, 1 F. App’x
283 (6th Cir. 2001). In Sliwo, officers observed the defendant acting as a “lookout” near
properties where a drug transaction took place. The defendant never was seen in an area
where drugs changed hands, nor was he seen in a vehicle that was transporting drugs.
Although the evidence suggested that the defendant knowingly participated in a scheme
with some sort of criminal purpose, we reversed the conviction because there was no
evidence that the defendant knew that the criminal purpose was to violate federal
narcotics laws. Id. at 636-37.
Similarly, in Coppin, the defendant was convicted based upon evidence of phone
calls between his phone and that of a drug supplier. There was no evidence that the
defendant was party to the phone calls, and there was evidence that others had access to
his phone. 1 F. App’x at 292. Additionally, there was evidence that the defendant was
present when drug money, but not drugs themselves, had changed hands. An alleged co-
conspirator testified, however, that the money was concealed, and that he believed that
the defendant was merely present to help another co-conspirator who could not speak
English. Id. As in Sliwo, we held that such evidence was insufficient for a rational juror
1 Orozco’s attempt to impeach the reliability of the interpreter of the wiretapped calls is without merit. Orozco does not settle on a particular line of attack, alternating between implications that (i) it was someone else’s voice in the calls; and (ii) the calls themselves were inaccurately translated. Orozco never identifies any allegedly inaccurate translation, nor does he claim that it was not his voice in the recordings. Case Nos. 16-6599/6606/6612/6624 7 United States v. Arias Orozco, et al. to find that the defendant acted with knowledge of a conspiracy to violate the narcotics
laws.
Unlike the defendants in Sliwo and Coppin, Avila was physically present in the
vehicle that transported the cocaine. “Evidence connecting a defendant to the location
where drugs are sold is . . . probative of his involvement.” Ayoub, 2017 WL 2838331, at
*13; see also Sliwo, 620 F.3d at 637 n.5 (“[I]f Defendant had entered the van after the
marijuana were loaded, even though the boxes were all closed, the conviction may have
been affirmed.”). And even though the drugs were concealed by vacuum-sealing and
opaque packaging, other circumstantial evidence would permit a reasonable jury to
conclude that Avila knew that the purpose of the conspiracy was to violate the federal
narcotics laws: the presence of unconcealed cocaine within the truck cab, to which Avila
had access; and the presence of a narcotic odor on Avila’s wallet to which the drug dog
alerted. A rational jury could conclude that the combination of the narcotic odor, which
was specific to Avila only, and the cocaine in the truck sufficed as evidence of Avila’s
knowing participation in a cocaine-distribution conspiracy. Finally, whereas in Sliwo we
observed that the “government failed to provide any evidence of any observed
conversation between Defendant and his alleged co-conspirators,” 620 F.3d at 633, Avila
traveled cross-country in close quarters with Gutierrez and Orozco, during which Orozco
made phone calls in which he referenced cocaine. Avila took steps to conceal the
Chicago detour in his log, and Gutierrez’s log mirrored this concealment. These facts
entitled the jury to believe that Avila was conferring with his co-conspirators about the
conspiracy. See also United States v. Valdez, 611 F. App’x 330, 336-37 (6th Cir. 2015). Case Nos. 16-6599/6606/6612/6624 8 United States v. Arias Orozco, et al. Viewing the evidence in the light most favorable to the prosecution, see United States v.
Garcia, 758 F.3d 714, 719 (6th Cir. 2014), there was sufficient evidence to sustain
Avila’s conspiracy conviction.
B. Motion to Suppress (Pedraza)
Pedraza argues that evidence gathered pursuant to a wiretap should have been
excluded. “In reviewing the validity of an electronic surveillance order, we will accord
great deference to the determinations of the issuing judge.” United States v. Corrado,
227 F.3d 528, 539 (6th Cir. 2000) (quotation marks omitted). “Thus, the fact that a . . .
reviewing court may feel that a different conclusion was appropriate does not require, nor
even authorize, the suppression of evidence gained through such a warrant.” Id. (quoting
United States v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988)).
Pedraza argues that the application for the wiretap did not meet the statutory
“necessity” requirement, 18 U.S.C. § 2518(1)(c). Under 18 U.S.C. § 2518(1)(c), each
application for a wiretap “shall” include, among other things, “a full and complete
statement as to whether or not other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
The necessity requirement found in § 2518(1)(c) is “designed to assure that wiretapping
is not resorted to in situations where traditional investigative techniques would suffice to
expose the crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). Pedraza
challenges the government’s wiretap application on four grounds related to that principle:
(1) traditional investigative techniques had been yielding “relatively quick and substantial
progress”; (2) the period during which traditional investigative techniques were employed Case Nos. 16-6599/6606/6612/6624 9 United States v. Arias Orozco, et al. was “too abbreviated,” lasting only about two months; (3) the government’s wiretap
application employed a non-chronological narrative designed to obscure the brevity and
significant achievements of traditional investigative techniques; and (4) the government
failed to claim that further use of traditional investigative techniques would be “futile,”
instead claiming only that achieving further goals of the investigation without a wiretap
would be “unlikely.” In his reply brief, Pedraza further claims that the government’s
wiretap application improperly reframed the inherent limitations of certain investigative
techniques as indicia of their futility in a specific case.
Even if the government’s traditional investigative techniques yielded progress
prior to the application, and even if that period was “abbreviated,” these are of no
moment. Neither of these claims is probative of whether the government’s application
was sufficient at the time it was made. See also United States v. Stewart, 306 F.3d 295,
305 (6th Cir. 2002) (“[T]he mere fact that some investigative techniques were successful
in uncovering evidence of wrongdoing does not mandate that a court negate the need for
wiretap surveillance.”). And, regarding the non-chronological narrative in the
government’s application, the record reflects that the district court judge was not misled;
in his order denying the suppression motion, Judge Reeves acknowledged the confusing
nature of the narrative, but he indicated that he was able to parse out the relevant facts.
Pedraza’s remaining claim, as supplemented in his reply brief, is that the
application simply did not satisfy § 2518(1)(c)’s requirements because the government
did not show that continued use of traditional investigative techniques would have been
futile or unlikely to succeed. To the contrary, the government’s application for a wiretap Case Nos. 16-6599/6606/6612/6624 10 United States v. Arias Orozco, et al. was exhaustively supported, evidencing a thorough, quality investigation. Non-invasive
techniques such as physical surveillance, trash searches, interviews with cooperating
defendants, and pen registers were either conducted and exhausted or, based on Pedraza’s
“surveillance-conscious” nature, deemed too risky to continue without jeopardizing the
investigation.
Pedraza argues that certain justifications for the wiretap, such as the inability of a
pen register or visual surveillance to identify the contents of a conversation, merely stated
the inherent limitations of traditional investigative techniques, and that consideration of
those inherent limitations would make a nullity of § 2518(1)(c). As a whole, however,
the application reflects that investigators were limited by case-specific factors such as
Pedraza’s surveillance-conscious nature and their objective of unraveling a particularly
complex drug distribution conspiracy.
Pedraza relies on United States v. Rice, 478 F.3d 704 (6th Cir. 2007), but that case
is distinguishable. The investigation in Rice was sparse, and the wiretap application
contained inaccuracies and embellishments. For instance, the application there stated that
“[p]hysical surveillance of the subjects of this investigation has been conducted . . . ,”
when, in fact, no surveillance of the defendant had occurred. Id. at 707. The application
in Rice listed the traditional investigative techniques of trash pulls, a grand jury, and
search warrants, but justified eschewing them by describing their inherent limitations in
drug cases. Id. at 708. By contrast, here, search warrants and trash pulls were utilized,
and the application explained why a grand jury would be counterproductive. And other
techniques, apparently absent in Rice, were used here, such as financial investigations Case Nos. 16-6599/6606/6612/6624 11 United States v. Arias Orozco, et al. and the use of information gathered from separate wiretap authorizations. The totality of
the wiretap application reflects that the district court did not err in denying the motion to
suppress.
C. Cross-Examination Regarding Polygraph Examination (Pedraza)
At trial, Albores testified pursuant to a plea agreement and directly implicated
Pedraza in the conspiracy. Albores’ plea agreement contained a provision requiring him
to submit to a polygraph examination if the government requested one. The government
never required Albores to submit to a polygraph examination, and Pedraza’s counsel
sought to elicit this fact on cross examination. The government objected, and the district
judge sustained the objection on the basis that whether the government administered the
polygraph was not relevant to Albores’ credibility as a witness against Pedraza; rather, it
was relevant only to whether the government believed Albores. Pedraza now claims that
the government’s decision not to subject Albores to a polygraph “was relevant to his
credibility and to avoid any mistaken conclusion by the jury that he had taken and passed
such a test.”
The government responds that whether it required Albores to submit to a
polygraph examination is not relevant to his credibility; and, in the alternative, any error
was harmless because the remaining evidence against Pedraza was overwhelming.
Pedraza’s reply brief does not address the polygraph issue.
We review a district court’s evidentiary rulings for an abuse of discretion. United
States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015). A court abuses its discretion
when it “relies on clearly erroneous findings of fact, improperly applies the law, or Case Nos. 16-6599/6606/6612/6624 12 United States v. Arias Orozco, et al. employs an erroneous legal standard,” or when we are “firmly convinced” that the trial
court “committed a clear error of judgment.” United States v. Miner, 774 F.3d 336, 348
(6th Cir. 2014). “Non-constitutional errors are subject to Rule 52(a) harmless error
analysis: the government must show by a preponderance of the evidence that the error did
not materially affect the verdict.” Kilpatrick, 798 F.3d at 378 (emphasis omitted).
Whether or not the government required Albores to take a polygraph examination
would not have been admissible evidence, and the trial court did not err in refusing to
allow such testimony. As the district court ruled, the government’s exercise or lack
thereof of its right to a polygraph of Albores was only relevant to “whether the United
States believes [Albores] or not,” a matter not at issue at trial. As this court has held,
“Broad discretion is given to the district courts in determinations of admissibility based
on considerations of relevance and prejudice, and those decisions will not be lightly
overturned.” Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 897 (6th Cir. 2004)
(citing United States v. Jackson-Randolph, 282 F.3d 369, 376 (6th Cir. 2002)). Pedraza
does not present any argument to surmount this high hurdle.
The decision was in any event harmless, because the evidence that Pedraza
engaged in a conspiracy to distribute cocaine was overwhelming: Pedraza was heard on a
call to a foreign number arranging the delivery of $312,000, later recovered from a
different truck driver connected to the conspiracy; Pedraza arranged to pick up
“28 pieces” from the foreign supplier, and 28 kilograms of cocaine eventually were
recovered in this case; and Pedraza was heard via wiretap arranging the meeting with
Orozco at which the cocaine changed hands. Investigators searching Pedraza’s home Case Nos. 16-6599/6606/6612/6624 13 United States v. Arias Orozco, et al. seized money ledgers that appeared to record drug payments and deliveries, and they
seized drug distribution paraphernalia such as digital scales, vacuum-sealing machines,
and a digital money counter.
Similarly, Pedraza’s convictions for money laundering and possessing a machine
gun were adequately and independently supported by evidence other than Albores’
testimony.
D. Objections to Hearsay Testimony (Pedraza)
Pedraza also contests the admission of certain testimony. His first objection
concerns DEA Agent Jared Sullivan’s identification of Solis — the truck driver who was
stopped with $312,000 in cash — as “the Volunteer.” Agent Sullivan was the individual
who located vacuum-seal bags while searching Pedraza’s home. One bag had the word
“Voluntario” (Spanish for “Volunteer”) written on it. Agent Sullivan testified that
“[w]hen that truck driver [Solis] called, he said, ‘I’m calling on behalf of The Volunteer,’
so that was significant to me.” The government asked Agent Sullivan whether there was
a particular individual that was identified as the Volunteer, and Agent Sullivan stated,
“Well, Mr. Garza Solis, the truck driver, I believe either is ‘The Volunteer’ or was
driving on behalf of ‘The Volunteer.’”
Pedraza asserts that “the identification of ‘The Volunteer’ was entirely an out-of-
court statement . . . introduced to prove its truth — the identity of ‘The Volunteer.’”
The jury, however, heard the very phone call in which Solis stated that he was calling on
behalf of the Volunteer. Accordingly, Agent Sullivan’s testimony was duplicative of the
phone call on which it was based — and Pedraza did not object to the admission of that Case Nos. 16-6599/6606/6612/6624 14 United States v. Arias Orozco, et al. phone call. Any error in the admission of Agent Sullivan’s testimony relaying the
contents of the phone call was harmless.
Pedraza’s second alleged error concerns DEA agents’ testimony about records of
funds that Pedraza used to purchase his house. Pedraza notes that, over his objection, the
trial judge ruled that the agents’ testimony concerning the financial records was
admissible under the business records exception, Fed. R. Evid. 803(6). But Pedraza
identifies no particular error in the trial court’s ruling. His assertion that the statements
were hearsay is not inconsistent with the trial court’s ruling that a hearsay exception
applied.
E. Substantive Reasonableness of Sentence (Orozco)
Based on the quantity of drugs that the jury attributed to him, Orozco’s mandatory
minimum sentence was 120 months. The sentencing judge determined the Guidelines
range to be 121 to 141 months, the correctness of which Orozco does not dispute, and the
judge sentenced Orozco to 140 months of imprisonment. Orozco now challenges the
substantive reasonableness of his 140-month sentence, arguing that he should have been
sentenced at the low end of the Guidelines instead.
The substantive reasonableness of a sentence is reviewed under an abuse-of-
discretion standard, and we may apply a presumption of reasonableness to sentences
within the Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). “A sentence
will be found to be substantively unreasonable ‘when the district court selects the
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
pertinent [18 U.S.C.] § 3553(a) factors or gives an unreasonable amount of weight to any Case Nos. 16-6599/6606/6612/6624 15 United States v. Arias Orozco, et al. pertinent factor.’” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (quoting
United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007)).
Orozco complains that his lack of criminal history and his positive standing in the
community were “barely” accounted for by the sentencing judge. He also asserts that his
sentence will not deter others from similar conduct any more than would a 121-month
sentence.
Orozco’s arguments are without merit. The sentencing judge explicitly considered
Orozco’s positive standing within his community, including his lack of a criminal
history; but the judge explained that Orozco’s serious criminal conduct outweighed these
factors. Additionally, the judge’s rationale was not limited to deterring the public at
large. He indicated that the sentence was calculated to deter Orozco from offending in
the future, and Orozco’s argument that his sentence will not stop the illicit drug trade fails
to address this fact.
Because Orozco’s argument “ultimately boils down to an assertion that the district
court should have balanced the § 3553(a) factors differently, it is ‘simply beyond the
scope of our appellate review, which looks to whether the sentence is reasonable, as
opposed to whether in the first instance we would have imposed the same sentence.’”
Sexton, 512 F.3d at 332 (quoting United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006)).
F. Guidelines Calculation (Gutierrez)
Gutierrez asserts that the sentencing judge violated Apprendi and Alleyne when he
found additional quantities of drugs attributable to Gutierrez as “relevant conduct.” See Case Nos. 16-6599/6606/6612/6624 16 United States v. Arias Orozco, et al. Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 133 S. Ct. 2151
(2013).
In the first superseding indictment, the government charged Gutierrez with
conspiracy to distribute 5 kilograms or more of cocaine. On the verdict form, however,
the jury indicated that Gutierrez was responsible for less than 500 grams of cocaine.
Whereas a conspiracy conviction involving 5 kilograms or more of cocaine authorizes a
statutory range of 10 years to life in prison, see 21 U.S.C. § 841(b)(1)(A)(ii)(II), the
statutory penalty for conspiring to distribute less than 500 grams of cocaine is 0 to
20 years, see 21 U.S.C. § 841(b)(1)(C).
Invoking USSG § 2D1.1(c)(4), the sentencing judge found by a preponderance of
the evidence that Gutierrez was in fact responsible for all 28 kilograms of cocaine, rather
than just the amount found by the jury. When the judge accounted for this fact, it
resulted in a base offense level of 32 and a Guidelines range of 121 to 151 months,
instead of the range of 41 to 51 months that would have resulted from the jury’s quantity
finding alone. The judge sentenced Gutierrez to 136 months.
Gutierrez does not dispute that he was responsible for all 28 kilograms of cocaine.
Rather, he claims that the judge’s factual finding had the effect of “generat[ing] a
mandatory minimum” of 10 years that was not permitted by the jury’s quantity finding.
Similarly, he argues that the judge’s finding elevated the statutory maximum, from
20 years to life in prison. Gutierrez claims that this violated Apprendi and Alleyne.
We disagree. It is settled law that judge-found drug quantity amounts that adjust
the Guidelines range, without exceeding the statutory range authorized by the jury, Case Nos. 16-6599/6606/6612/6624 17 United States v. Arias Orozco, et al. comply with Apprendi. “So long as the sentence falls within the statutory range
prescribed for the jury conviction, a district court may sentence a defendant based on
acquitted conduct because the standard of proof at sentencing is the lower preponderance
of the evidence standard.” United States v. Pritchett, 749 F.3d 417, 433 (6th Cir. 2014).
Notwithstanding the judge’s factual findings, he remained constrained by the
statutory limit to the sentence that was generated by the jury’s verdict, and Gutierrez’s
sentence was within that constraint. The judge’s determination of drug quantity did not
result in a sentence that violated the statutory maximum of 20 years. Nor is there any
indication in the record that the sentencing judge believed that he was bound by a 10-year
mandatory minimum as a result of his factual finding.
Finally, we reject Gutierrez’s assertion that his sentence was substantively
unreasonable under 18 U.S.C. § 3553(a)(1), because this assertion was unaccompanied
by any legal argument. “[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived,” and “[i]t is not sufficient
for a party to mention a possible argument in the most skeletal way, leaving the court
to . . . put flesh on its bones.” United States v. Robinson, 390 F.3d 853, 886 (6th Cir.
2004).
AFFIRMED.