Submitted: September 27, 2018
Appeals from United States District Court for the Eastern
District of Arkansas - Little Rock
COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
COLLOTON, Circuit Judge.
convicted Ampelio Hernandez and two brothers, Oscar Espinoza
Lopez and Raymundo Moreno Lopez, of conspiracy to distribute
methamphetamine. The jury also convicted the Lopez defendants
of substantive drug trafficking and firearms offenses, and
each Lopez brother pleaded guilty to two counts of
fraudulently using a Social Security number. The district
court sentenced the defendants to terms of
imprisonment. All three appeal their convictions, and Moreno
Lopez challenges his sentence on the two counts of Social
Security fraud. We affirm.
August 2013, the Central Arkansas Drug Task Force learned
from a confidential source that Espinoza Lopez and Moreno
Lopez were selling methamphetamine in the area around Searcy,
Arkansas. The Task Force, working with the Drug Enforcement
Administration, arranged to make controlled purchases of
methamphetamine from the two suspects through cooperating
informants. Between August 2013 and April 2014, the Task
Force acquired 242 grams of methamphetamine via controlled
purchases from the Lopez defendants. The Task Force also
seized 109 more grams by arresting and searching two
customers of the Lopez defendants. From October to December
2014, the Task Force gathered more evidence by intercepting
telephone calls and text messages from Espinoza Lopez's
telephone pursuant to a court-authorized wiretap.
jury charged the Lopez brothers and Hernandez with several
drug trafficking charges on September 2, 2015, but the
investigation continued. The Task Force made a controlled
purchase of 28.09 grams of methamphetamine from Moreno Lopez
on September 9, 2015. On September 14, investigators executed
a search warrant at Moreno Lopez's residence and seized
31.04 grams of methamphetamine and drug paraphernalia. Ten
days later, the Task Force searched a storage shed used by
Espinoza Lopez and seized evidence relating to drug
trafficking. During the investigation, the government also
learned that Espinoza Lopez and Moreno Lopez had falsely
represented Social Security numbers to their employer and on
an application to rent furniture.
three defendants eventually were tried on a superseding
indictment that alleged a conspiracy to distribute
methamphetamine that began "in or about June 2013"
and continued through "on or about September 1,
2015." The indictment also included substantive drug
trafficking counts and firearms counts against the Lopez
defendants. A jury found the defendants guilty on all
charges, and the district court imposed sentences.
Lopez and Moreno Lopez first argue that the district court
caused a constructive amendment of the indictment when it
allowed evidence of drug trafficking activity during
September 2015. The indictment charged a conspiracy that
continued "through on or about September 1, 2015,"
and the Lopez defendants contend that evidence of conduct
after September 1 allowed the jury to convict them of an
uncharged offense. Alternatively, they assert that the
disputed evidence resulted in a prejudicial variance from the
allegations in the indictment.
reject this contention because events in September 2015 were
within the scope of the charged conspiracy. An allegation
that the conspiracy continued through "on or about
September 1, 2015" encompassed events that occurred
"reasonably near" September 1. United States v.
Wallace, 713 F.3d 422, 428 (8th Cir. 2013).
Conspiratorial acts within September 2015 qualify as
occurring reasonably near the beginning of the month. See
United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir.
1987) (no material variance where indictment alleged "on
or about June 1984" and offense occurred in July or
early August); United States v. Leibowitz, 857 F.2d
373, 379 (7th Cir. 1988) (no variance where offense occurred
within twenty-one days of date alleged); United States v.
Harris, 344 F.3d 803, 804-05 (8th Cir. 2003) (events
within seven days were reasonably near to date alleged).
Lopez defendants next complain that there was insufficient
evidence to support their convictions for conspiracy to
traffic 500 grams of methamphetamine. They argue that only
352.2119 grams of methamphetamine were seized, and that the
jury's finding of 500 grams must have been the product of
"speculation and conjecture."
sufficiency argument understates the amount of seized
methamphetamine. Espinoza Lopez and Moreno Lopez concede that
over 352 grams of methamphetamine were seized before
September 1, 2015, through controlled buys and seizures after
the arrests of known customers. Investigators seized another
59 grams during September 2015; for the reasons discussed, a
reasonable jury could attribute this amount to the charged
conspiracy. With a total of 411 grams of seized
methamphetamine, there was ample evidence for a reasonable
jury to infer that the entire conspiracy involved the
distribution of more than 500 grams. The government
introduced telephone messages and text messages between
Espinoza Lopez and his co-conspirators that detailed other
drug trafficking activity. For example, in addition to the
methamphetamine seized during one customer's arrest in
December 2014, the government presented telephone calls from
October 2014 concerning a proposed sale of two ounces of
methamphetamine to the same customer. Intercepted messages
between Espinoza Lopez and another customer documented a
series of methamphetamine deliveries totaling over eleven
ounces. The evidence also included intercepted communications
from which a jury could infer that the Lopez brothers