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United States v. Razo

United States Court of Appeals, First Circuit

April 1, 2015

UNITED STATES OF AMERICA, Appellee,
v.
MARK RAZO, Defendant, Appellant

Page 32

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. John A. Woodcock, Jr., U.S. District Judge.

Jeffrey M. Silverstein, with whom Law Office of Jeffrey M. Silverstein, P.A., was on brief, for appellant Mark Razo.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty, II, United States Attorney, was on brief, for appellee.

Before Lynch, Chief Judge, Howard and Barron, Circuit Judges.

OPINION

Page 33

BARRON, Circuit Judge.

At his trial in the federal District of Maine, Mark Razo faced a number of charges relating to drug trafficking. After his conviction on all counts, he received a sentence of 300 months in prison. Razo now asserts various alleged errors both at trial and at sentencing. Finding none that require reversal, we affirm both the conviction and the sentence.

I.

Razo was charged with one count of conspiracy to commit a drug trafficking offense under 21 U.S.C. § § 841(a)(1) and 846 and three counts of criminal use of a communications facility to facilitate a trafficking offense under 21 U.S.C. § § 843(b) and (d). The jury convicted Razo on all counts. The District Court then sentenced Razo to 300 months of imprisonment on the conspiracy count. The judge also sentenced Razo to 48 months of imprisonment on the three counts of criminal use of a communications facility. That sentence was to be served concurrently with Razo's sentence for the conspiracy count.

This appeal followed. Razo challenges his conspiracy conviction and sentence under the Confrontation Clause. He also brings challenges under the Sentencing Guidelines and Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Finally, he challenges as improper both the use at trial of certain recorded phone calls and venue in the District of Maine. We discuss the facts relevant to each of the these challenges in the course of our analysis.

II.

Razo's primary challenge arises under the Confrontation Clause, which provides that " [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

Page 34

with the witnesses against him." U.S. Const. amend. VI. Razo contends to us, as he did below, that the Clause bars the admission of a portion of the testimony of a state chemist, Amy Johnson.

At trial, Johnson testified about the laboratory analysis she performed on a substance seized from one of Razo's co-conspirators, Blanca Ortiz. Johnson testified that her analysis confirmed the substance was pure methamphetamine. And her testimony about the methamphetamine's purity was key to the jury's finding that the conspiracy involved 50 grams of pure methamphetamine. Moreover, the District Court relied on this jury finding at sentencing in finding Razo guilty of an aggravated drug trafficking offense under 21 U.S.C. § 841(b)(1)(A), which carries a statutory maximum of life.

Razo's Confrontation Clause challenge focuses solely on the portion of Johnson's testimony that concerned a " known standard" methamphetamine sample that the state crime lab used to create a reference point for comparison with seized evidence. The state crime lab annually received that sample from a private manufacturer, the Sigma Chemical Company. Members of the crime lab then analyzed the sample to confirm that the lab's " reference library" accurately reflected the properties of the known standard sample.

Specifically, Razo points to the part of Johnson's testimony in which she states that the state crime lab relied on the manufacturer's assurance that the known standard sample was 100-percent pure. And Razo also points to the part of Johnson's testimony acknowledging that, after testing the seized substance, she compared the results of that testing to results generated ...


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