United States v. Edward Joseph Lowen

1The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1179
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Karina Sanchez-Gonzalez, *
*
Appellant. *
___________
Submitted: February 16, 2011
Filed: July 7, 2011
___________
Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Karina Sanchez-Gonzalez was convicted by a jury of conspiracy to distribute
50 or more grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846, and aiding and abetting possession with intent to distribute 50 or
more grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 18 U.S.C. § 2. The district court1 sentenced Sanchez-Gonzalez to the statutory
mandatory minimum of 120 months imprisonment. Sanchez-Gonzalez appeals her
conviction and sentence, and we affirm.

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I.
We recite the facts in the light most favorable to the verdict. In early 2009, the
Ramsey County Sheriff’s Department made four undercover purchases of
methamphetamine from Manuel Bustos-Moreno. At some point during this time,
police received information that Bustos-Moreno often used a female drug courier
named Karina. On May 6, 2009, an undercover officer made arrangements for a fifth
purchase of methamphetamine with the intention of arresting Bustos-Moreno, as well
as any courier involved in the delivery of the methamphetamine.
On May 7, 2009, Sanchez-Gonzalez arrived at the established time and location
for the arranged sale of methamphetamine. Sanchez-Gonzalez was immediately
arrested and police subsequently found over 50 grams of methamphetamine hidden
on her person. Police also located Bustos-Moreno near the scene and promptly
arrested him. Shortly thereafter, Sanchez-Gonzalez led police to Bustos-Moreno’s
“stash apartment,” where they discovered a pound of methamphetamine.
Following their arrest, Bustos-Moreno and Sanchez-Gonzalez were jointly
indicted for conspiracy to distribute methamphetamine and for possession with intent
to distribute methamphetamine. As part of a plea agreement, Sanchez-Gonzalez gave
a proffer to the Government in which she described her relationship and prior dealings
with Bustos-Moreno. After Sanchez-Gonzalez and the Government entered into their
plea agreement, a change of plea hearing was scheduled.
Prior to the change of plea hearing, however, Sanchez-Gonzalez retained new
trial counsel and cancelled the change of plea hearing. Sanchez-Gonzalez told the
Government that she had changed her mind and now wished to proceed to trial under
her prior plea of not guilty. At trial, Sanchez-Gonzalez claimed that she only
delivered the methamphetamine for Bustos-Moreno because he had threatened her
daughter. After a three-day trial, a jury found Sanchez-Gonzalez guilty on both

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2Sanchez-Gonzalez also requests a reversal in the “unlikely event” that the
district court erred in instructing the jury that she, as the defendant, bore the burden
of proof for the defense of duress. The Supreme Court has held that unless Congress
states otherwise, the defendant bears the burden of proof for the defense of duress.
See Dixon v. United States, 548 U.S. 1, 17 (2006). Not unexpectedly, we decline the
invitation to contradict the Supreme Court.
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counts, and the district court later imposed sentence. Sanchez-Gonzalez appeals,
claiming that she received ineffective assistance of counsel in violation of the Sixth
Amendment and that the district court erred at sentencing.2
II.
Sanchez-Gonzalez first claims she received ineffective assistance of counsel at
trial in violation of the Sixth Amendment and that reversal of her conviction and
sentence is therefore required. As Sanchez-Gonzalez acknowledges, however, we
review claims of ineffective assistance of counsel on direct appeal only in
“exceptional cases.” United States v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002).
Instead, claims of this nature are typically reviewed in an action brought under 28
U.S.C. § 2255. Id. An “exceptional case” that justifies our review of the claim on
direct appeal exists if the relevant factual record has been fully developed, a failure
to consider the claim on direct appeal would constitute a “plain miscarriage of
justice,” or the alleged error of trial counsel is “readily apparent.” United States v.
Hubbard, 638 F.3d 866, 869-70 (8th Cir. 2011) (quoting United States v. Ramirez-
Hernandez, 449 F.3d 824, 827 (8th Cir. 2006)).
Sanchez-Gonzalez’s claim of ineffective assistance of counsel is based on the
following remark made by her trial counsel during closing arguments: “Counselor’s
testimony that the only defense here is duress or coercion or however the instructions
of law will give it to you, that’s not true. Our defense is not guilty.” Sanchez-
Gonzalez claims that this statement constituted a waiver of her chosen defense at trial

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(i.e., duress) by her trial counsel. Sanchez-Gonzalez fails to persuade us that we
should review this issue on direct appeal.
Analyzing Sanchez-Gonzalez’s ineffective assistance claim requires further
development of the factual record. With the record before us, even assuming that
counsel’s statement constituted a waiver of a defense, we are unable to determine why
trial counsel made the contested statement. This information is critical. For example,
if counsel’s statement evidenced a legitimate strategic decision as to how to proceed
at trial, the statement would not indicate that Sanchez-Gonzalez received
constitutionally deficient assistance at trial. See Strickland v. Washington, 466 U.S.
668, 690-91 (1984) (stating that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable”). For this
same reason, we cannot conclude that trial counsel’s alleged error is readily apparent.
Moreover, declining to consider this claim on appeal would not constitute a
plain miscarriage of justice. Sanchez-Gonzalez remains free to pursue her ineffective
assistance claim through a section 2255 action. Although Sanchez-Gonzalez argues
that a section 2255 action may be deemed untimely if it is filed after we decide this
case because more than a year has passed since her conviction, her concern is
unfounded. See 28 U.S.C. § 2255(f)(1) (explaining that the one-year limitation on
section 2255 petitions runs from “the date on which the judgment of conviction
becomes final”); United States v. Hernandez, 436 F.3d 851, 856 (8th Cir. 2006)
(noting that a criminal defendant’s conviction did not become “final” for the purposes
of a section 2255 petition until ninety days after the Eighth Circuit issued its ruling on
direct appeal).
Sanchez-Gonzalez next claims that the district court erred when it declined to
award her safety-valve relief and to give her a reduction in offense level for
acceptance of responsibility. We review each claim for clear error. See United States
v. Wineman, 625 F.3d 536, 538 (8th Cir. 2010) (acceptance of responsibility); United

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States v. Sanchez, 475 F.3d 978, 980 (8th Cir. 2007) (safety-valve relief). Under this
standard of review, we will grant relief only if the district court’s conclusions were
“so clearly erroneous as to be without foundation.” United States v. Nguyen, 339 F.3d
688, 690 (8th Cir. 2003); see also United States v. Bolanos, 409 F.3d 1045, 1049 (8th
Cir. 2005).
Under 18 U.S.C. § 3553(f), a district court is permitted to grant safety-valve
relief to a criminal defendant and impose a sentence below a statutory mandatory
minimum if (1) the defendant does not have more than one criminal history point; (2)
the defendant did not use violence or possess a firearm in connection with the offense;
(3) the offense did not result in death or serious bodily injury; (4) the defendant was
not found to be an organizer, leader, manager, or supervisor of others or to have
engaged in a continuing criminal enterprise; and (5) the defendant has truthfully
provided to the Government all information and evidence the defendant has
concerning the offense. 18 U.S.C. § 3553(f)(1)-(5); see also United States v.
Alvarado-Rivera, 412 F.3d 942, 944-45 (8th Cir. 2005) (en banc). The only element
at issue here is whether Sanchez-Gonzalez truthfully provided the Government with
all the information and evidence that she had concerning the offense.
In making an assessment of the truthfulness of a defendant’s prior statements,
a district court may consider discrepancies between the defendant’s statements as well
as changes in his or her accounts over time. United States v. Guerra-Cabrera, 477
F.3d 1021, 1025 (8th Cir. 2007). Additionally, the district court can draw reasonable
inferences from the evidence and need not accept a defendant’s innocent explanations
for her apparently criminal conduct. Sanchez, 475 F.3d at 981; see also Bolanos, 409
F.3d at 1048 (recognizing that a district court does not commit clear error in denying
safety-valve relief if it is plausible that the defendant was untruthful or inconsistent
in her statements).

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Based on Sanchez-Gonzalez’s statements prior to and during trial, we find the
district court did not commit clear error in denying safety-valve relief. At trial,
Sanchez-Gonzalez testified that she “never took drugs for Bustos-Moreno” and that
she “didn’t know . . . he sold drugs.” However, when the Government asked her why
she had stated in a post-arrest interview that “[she] knew that Bustos used a female to
transport narcotics to Minnesota,” Sanchez-Gonzalez responded, “I told him that his,
his friend and—that he had also participated, something like that. That a woman
arrived and I, I don’t know, I think it was a story that he made up just to scare me or
something like that. I don’t know.” In addition, Sanchez-Gonzalez admitted at trial
that she allowed her apartment to be used as a stash house for drugs in return for
money.
Sanchez-Gonzalez’s explanation for transporting drugs on May 7—because she
was “very, very scared”—was similarly contradicted. Evidence admitted at trial
showed that after her arrest, Sanchez-Gonzalez never told the police that she was
scared of Bustos-Moreno or that he had threatened her in any way. Moreover, police
officers described Sanchez-Gonzalez’s demeanor immediately after her arrest as not
“distraught at all” and that Sanchez-Gonzalez “wasn’t crying.” Officer John
Saumweber, who spent nearly an hour with Sanchez-Gonzalez after her arrest,
testified that she never told him that Bustos-Moreno made her deliver the drugs or that
she was afraid of Bustos-Moreno. Viewing this evidence in light of the entire record,
it was not clear error for the district court to conclude that Sanchez-Gonzalez’s
statements to police and at trial were either untruthful or inconsistent. See Bolanos,
409 F.3d at 1048.
Because the district court did not clearly err when it withheld safety-valve relief
to Sanchez-Gonzalez, we need not address her final contention that she was entitled
to a two-point reduction for acceptance of responsibility. Even if the district court
erred in finding that Sanchez-Gonzalez did not qualify for an acceptance-of-
responsibility reduction, she was not prejudiced by the alleged error because the court

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could not have sentenced her below the mandatory minimum of 120 months
imprisonment. See United States v. DeCoteau, 630 F.3d 1091, 1098 (8th Cir. 2011)
(explaining that when a statutory mandatory minimum applies, a district court can
only sentence below the mandatory minimum by granting safety-valve relief or
through a motion by the Government for substantial assistance).
III.
For the foregoing reasons, we affirm Sanchez-Gonzalez’s conviction and
sentence.

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