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United States v. Barron

United States Court of Appeals, Sixth Circuit

October 15, 2019

United States of America, Plaintiff-Appellee,
v.
Nestor Barron (18-5222); Jorge de Jesus Macias Pedroza (18-5515), Defendants-Appellants.

          Argued: June 26, 2019

          Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:17-cr-00101-Danny C. Reeves, District Judge.

         ARGUED:

          Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant in 18-5222. Dan Carman, Lexington, Kentucky, for Appellant in 18-5515.

          Meghan Stubblebine, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

         ON BRIEF:

          Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant in 18-5222. Dan Carman, Lexington, Kentucky, for Appellant in 18-5515.

          Meghan Stubblebine, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

          Before: COLE, Chief Judge; SILER and CLAY, Circuit Judges.

          OPINION

          COLE, Chief Judge.

         In the fall of 2016, law enforcement agents in Lexington, Kentucky, began investigating Fernando Rafael Lara Salas for drug-trafficking activities. During the investigation, officers learned that Lara Salas was associated with Defendants Jorge de Jesus Macias Pedroza and Nestor Barron. Barron and Macias Pedroza were indicted for drug-related crimes. Barron pleaded guilty to conspiracy to distribute cocaine, and the district court sentenced him to a mandatory minimum sentence of ten years' imprisonment. Because Barron is entitled to relief under the safety-valve statute, we vacate his sentence and remand for resentencing. Macias Pedroza was found guilty by a jury of various drug and firearm charges, and because the trial court adequately instructed the jury regarding dual-role testimony, we affirm his conviction.

         I. BACKGROUND

         In July of 2017, law enforcement officers executed three search warrants as part of a drug-trafficking investigation-one at Fernando Rafael Lara Salas's residence, one at Jorge de Jesus Macias Pedroza's residence, and one at a trailer that the two men used for construction work. At Lara Salas's home, officers discovered Nestor Barron in an upstairs bedroom. Both Macias Pedroza and Barron were indicted for drug-related crimes. Barron pleaded guilty to conspiracy to distribute cocaine and Macias Pedroza was found guilty by a jury of various drug and firearm charges. Barron now appeals his sentence, and Macias Pedroza appeals his conviction. The two cases were consolidated and we address the facts of each in turn.

         A. Barron

         Around 8:30 a.m. on July 18, 2017, officers executed a search warrant at Lara Salas's residence in Lexington, Kentucky. Lara Salas was in bed in a downstairs bedroom and Barron was in bed in an upstairs bedroom, where officers also found an unidentified woman. The woman, Barron, and Lara Salas were all detained while officers conducted a search of the house.

         In the upstairs bedroom where Barron and the woman were found, officers discovered a black duffle bag under the bed that contained six bricks of a substance they believed to be drugs. The bricks were later tested and confirmed to be cocaine, with a net weight of 6.043 kilograms. On top of the bricks of cocaine, officers found $105, 375 in the bag. Officers also found approximately 1, 600 pills containing methamphetamine and MDA hidden inside a DVD player.

         At some point, after almost everything had been removed from drawers and placed in piles on the bed and floor, Detective Bowles conducted a secondary search of the upstairs bedroom. Underneath clothing, he discovered a box containing 26 rounds of nine-millimeter caliber ammunition. The room was very cluttered, and none of the officers involved in the initial search of the bedroom saw the box of ammunition. According to Bowles, he only found the ammunition after moving piles of clothing and other items, and it appeared to him that the box had been potentially set aside for collection. The record does not indicate where the ammunition was located during the primary search of the room.

         Finally, in addition to the drugs, money, and ammunition, the officers discovered personal documents for three different individuals during the search of the upstairs bedroom. First, officers found Barron's wallet with his identification card and birth certificate inside, as well as a bus ticket in Barron's name, showing that he traveled from Los Angeles, California, to Lexington, Kentucky, on May 26, 2017. Second, officers discovered Lara Salas's passport and the vehicle registration for Lara Salas's car. And third, officers found a wallet with identification documents for a woman.

         In the downstairs bedroom-where officers found Lara Salas in bed-law enforcement agents discovered a Jimenez semiautomatic nine-millimeter pistol in the drawer of a dresser located within arm's reach of the bed. The firearm was loaded with nine rounds of Luger ammunition, the same type of ammunition found in the upstairs bedroom. The officers also discovered cash banded together in a manner similar to the money in the duffel bag, plastic baggies with cut corners, Lara Salas's identification card, and utility bills in his and his wife's name.

         After officers conducted the search, DEA Special Agent Jason Moore conducted an interview of Barron. During the interview, Barron stated that he thought the bricks were cocaine and acknowledged that his fingerprints might be on the drugs. He said that he was paid approximately $150 by Lara Salas to pick up the cocaine on a street in Lexington on July 13 or 14. Barron stated that he met with a black male who was traveling from Cincinnati, Ohio, for approximately a minute and a half to complete the transaction, and he gave a physical description of the man he met with, but no name. Barron was then shown a picture of Robbie Warren, a suspected drug trafficker in Cincinnati who had been seen with Lara Salas on prior occasions. Barron asked "why he had to identify [the man in the photograph] if they already knew who he was," but then identified Warren as the person from whom he obtained the drugs. (Presentence Report, R. 132, PageID 937.)

         During the interview, Barron also told Agent Moore that he was from Los Angeles and that he and his girlfriend had been in Lexington for a little over one month. They were both staying at Lara Salas's house, and Barron stated that he and Lara Salas were friends and had known each other for a number of years. Lara Salas was also interviewed, and he denied any knowledge of the drug activity but admitted that he owned the firearm. He stated that he purchased the firearm in the Cardinal Valley neighborhood for $300 or $350 and that he owned the gun for safety.

         Based on the search and interviews, Barron was indicted and pleaded guilty to one count of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. The plea agreement contemplated a base offense level of 30, noted that a two-level reduction may be warranted if the court determined that Barron satisfied the safety-valve criteria set forth in United States Sentencing Guidelines §§ 2D1.1(c)(17) and 5C1.2(1)-(5), and anticipated a two- or three-level decrease for acceptance of responsibility.

         The presentence report agreed with the recommended base offense level of 30 and deducted three levels for acceptance of responsibility. The probation office, however, recommended applying a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm and thus calculated Barron's offense level as 29. Because Barron had no previous criminal history, his criminal history category was I, translating to an advisory Guidelines range of 87 to 108 months' imprisonment. But pursuant to 21 U.S.C. § 841(b)(1)(A), Barron faced a mandatory minimum sentence of 120 months, unless the court determined that Barron met the criteria for application of the safety valve. The presentence report stated that because Barron did not actually possess the firearm, he may be eligible for relief under the safety valve.

         At sentencing, the district court, over Barron's objection, concluded that it was reasonably foreseeable to Barron that another member of the conspiracy would have possessed a firearm and thus applied U.S.S.G. § 2D1.1(b)(1)'s two-level increase. The court also found that Barron did not meet the criteria for application of the safety valve for two reasons. First, the court found that Barron aided and abetted Lara Salas in the possession of a weapon in connection with the drug-trafficking offense, specifically by assisting him in acquiring ammunition. Second, the district court found that Barron did not qualify for relief under the safety valve because he did not provide truthful information to the government regarding the conspiracy. The court sentenced Barron to the mandatory minimum sentence of ten years.

         Barron timely appealed his sentence.

         B. Macias Pedroza

         The same day officers executed the search warrant at Lara Salas's residence, they executed a warrant at Macias Pedroza's residence in Lexington, Kentucky. There, officers found a pair of digital scales, at least one of which had white residue. The substance on the scale field-tested positive for cocaine, but the scale was not submitted to a laboratory for final testing. In addition to the scales, the officers found latex gloves, drug packaging materials, a small amount of marijuana, and a pistol.

         A third search warrant was executed a few days later at a trailer that law enforcement officers had previously observed Macias Pedroza and Lara Salas using for construction work. In the trailer, officers found four kilograms of a substance that initially field-tested positive for cocaine, but was later determined through laboratory testing to be tramadol. Some of the tramadol was marked with a "V," as was at least one kilogram of the cocaine found at Lara Salas's residence. In addition to the tramadol, officers discovered kilo-sized shrink wrap with a residual amount of a ...


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