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United States v. Felicianosoto

United States Court of Appeals, Eighth Circuit

August 15, 2019

United States of America Plaintiff - Appellee
v.
Alvin Felicianosoto Defendant-Appellant

          Submitted: June 13, 2019

          Appeal from United States District Court for the District of South Dakota - Sioux Falls

          Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.

          KELLY, CIRCUIT JUDGE.

         A jury found Alvin Felicianosoto guilty of conspiracy to distribute metham-phetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court[1] sentenced him to concurrent 210-month terms of incarceration. On appeal, Felicianosoto argues that his attorney violated his Sixth Amendment rights by conceding guilt as to the possession with intent to distribute count at trial and that the district court committed several sentencing errors. We affirm.

         I

         The evidence presented at trial revealed the following. In July 2016, Alex Ventura was arrested by Sioux Falls police officers and became a cooperating witness. Ventura agreed to arrange a controlled methamphetamine buy from Felicianosoto on July 20, 2016, and police arrested Felicianosoto en route to the sale. On his person they found a mixture containing 107.4 grams of pure methamphetamine (approximately four ounces). The next day, police executed a search warrant on Felicianosoto's residence and discovered five bags of methamphetamine, packaging, and a scale in the garage.

         Victoria Parrow testified that she met Felicianosoto through Ventura in 2015 and had regularly purchased methamphetamine from him. After purchasing smaller amounts for several weeks, she began purchasing half-pound quantities. She estimated that she purchased a half pound every other week for six or seven months, and then sold it to others. She primarily communicated with Felicianosoto via text message. Several of those messages were read aloud at trial, and she explained that they were setting up sales of methamphetamine.

         Two other witnesses-Blanca Luna-Soto and Edras Chua-Lemus-testified that they had supplied methamphetamine to Felicianosoto. Luna-Soto testified that, in late 2015 or early 2016, her husband, Chua-Lemus, sold Felicianosoto methamphetamine in exchange for a car title. Chua-Lemus similarly testified that he met Felicianosoto in 2015 and sold him methamphetamine on two occasions (first a half pound and then later one pound).

         The police interviewed Felicianosoto on December 20, 2016, and Officer Hector Soto testified about the contents of that interview. Felicianosoto reportedly told officers that the methamphetamine found on his person when he was arrested on July 20 had belonged to Ventura and that Felicianosoto was merely holding it for him. He also claimed that the methamphetamine discovered at his house on July 21 belonged to Ventura. He reportedly told officers that he sometimes distributed methamphetamine to others on Ventura's instructions.

         Felicianosoto testified at trial. He stated that he primarily stored Ventura's methamphetamine for him and provided him amounts when he needed it. He admitted to holding Ventura's methamphetamine on July 20, when he was arrested with approximately four ounces of methamphetamine on his person. He testified that he never sold methamphetamine to Parrow, but sometimes accompanied Ventura when Ventura sold to Parrow. Ventura would sometimes tell Parrow that the methamphetamine was Felicianosoto's to ensure that she would pay. Felicianosoto denied ever obtaining methamphetamine from Chua-Lemus or Luna-Soto and denied knowing about the methamphetamine discovered in his garage.

         Throughout the trial, Felicianosoto's counsel conceded his client's guilt as to the possession with intent to distribute charge but asked for a verdict of not guilty on the conspiracy charge. In his opening statement, counsel acknowledged that "Alvin did have methamphetamine in his possession, as it is alleged in Count 2, in July of 2016." At closing, he stated, "We know that Alvin got caught with four ounces. He got called and he showed up, and he's never denied that." Later, his counsel said: "Yes, he distributed it, or attempted to, and for that I'm not asking you to acquit him. The government is right. In that Verdict Form there was more than 50 grams in his possession with intent to distribute. That is guilty." He went on to attack the evidence supporting the conspiracy charge, as well as the credibility of the government's witnesses.

         The jury convicted Felicianosoto on both counts. On the conspiracy count, the jury found that Felicianosoto was responsible for 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. On the possession with intent to distribute count, the jury found that he was responsible for 50 grams or more of actual methamphetamine.

         Prior to sentencing, Felicianosoto objected to the recommendation that he receive a two-level enhancement for obstruction of justice under United States Sentencing Guidelines § 3C1.1 (2016) based on his purportedly false material testimony at trial. The district court overruled the objection, finding that Felicianosoto had testified falsely when he denied knowing Chua-Lemus and Luna-Soto, denied placing the drugs in his garage, and denied selling drugs to Parrow. After sustaining Felicianosoto's drug-quantity objection, the district court calculated a total offense level of 34 and a criminal history category of II. This established an advisory Guidelines range of 168 to 210 months' imprisonment, with a mandatory 10-year minimum sentence on each count. After a lengthy ...


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