United States v. Cantwell

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

November 20, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

05-41027

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CRYSTAL CHARLENE CANTWELL,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of Texas

Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

BENAVIDES, Circuit Judge:

Crystal Charlene Cantwell was convicted of one count of

conspiracy to manufacture methamphetamine and one count of aiding

and abetting the possession of pseudoephedrine with the intent to

manufacture methamphetamine. She now appeals her conviction,

arguing insufficiency of the evidence and ineffective assistance of

counsel at trial. The government contends that her appeal is

untimely because Cantwell failed to file her notice of appeal

within ten days of entry of the judgment. We reject the

government’s argument and consider the appeal to be timely filed.

Nevertheless, we find that there was sufficient evidence to support

Cantwell’s conviction, and we therefore AFFIRM. We also find that

the record is not sufficiently developed for this court to consider

Cantwell’s ineffective assistance claim. She should present that

issue to the district court in the first instance.

I. TIMELINESS OF THIS APPEAL

As a preliminary matter, we note that Ms. Cantwell’s notice of

appeal was timely filed. A criminal defendant ordinarily has ten

days from the entry of the judgment to file a notice of appeal.

FED. R. APP. P. 4(b)(1)(A). A district court may extend the time to

file by no more than 30 days. FED. R. APP. P. 4(b)(4); United

States v. Awalt, 728 F.2d 704, 705 (5th Cir. 1984). Ms. Cantwell

filed her actual notice of appeal on June 27, 2005, more than 40

days after the entry of judgment in this case. However, Cantwell

did file a motion for extension of time during the ten-day period,

and such a filing can serve as the functional equivalent of a

notice of appeal. See Smith v. Barry, 502 U.S. 244, 248–49 (1992)

(“If a document filed within the time specified by Rule 4 gives the

notice required by Rule 3, it is effective as a notice of

appeal.”).

To act as the functional equivalent of a notice of appeal, the

motion must set forth (1) the party taking the appeal, (2) the

judgment being appealed from, and (3) the court to which the party

is appealing. See FED. R. APP. P. 3(C)(1). Cantwell’s motion

clearly sets forth the parties’ names, as well as the date of her

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underlying judgment. It does not state the court to which she was

appealing, but that omission is irrelevant because this is the only

court to which she could appeal. See McLemore v. Landry, 898 F.2d

996, 999 (5th Cir. 1990) (finding third element met where only one

avenue of appeal exists). Therefore, keeping in mind that Rule 3

must be liberally construed in favor of appeals, Smith, 502 U.S. at

248, we have no hesitation in finding that Cantwell’s motion for

extension of time was sufficient notice to the government of her

intent to appeal, and we therefore exercise jurisdiction.

II. FACTS AND STANDARD OF REVIEW

On January 8, 2004, at about 11:00 p.m., Officer Ricardo Adame

stopped a silver Ford Taurus for speeding. Inside the car were

Crystal Charlene Cantwell, William Travis Reagan, and Emily Rice.

During the stop, Officer Adame noticed several empty boxes of

Actifed cold medicine on the floor of the car. The officer knew

that Actifed, which contains pseudoephedrine, could be used to

manufacture methamphetamine. A later search of the car revealed a

total of 1,296 Actifed tablets and several lithium batteries.

Lithium is also a key ingredient in methamphetamine.

Cantwell was indicted on one count of conspiracy to

manufacture methamphetamine (Count One) and one count of aiding and

abetting the possession of 1,296 pseudoephedrine tablets with the

intent to manufacture methamphetamine (Count Two). A jury

convicted her of both counts, and the district court sentenced her

to concurrent prison terms of 76 months.

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At trial, the government relied heavily on the testimony of

Emily Rice. She testified that she was “drug buddies” with Mr.

Reagan for a period of about eight months, during which time they

procured and used drugs together. Specifically, she explained that

she “would give [ingredients] to [Reagan] and he would take them to

somebody else and get drugs for that.” She also stated that “he

would get ingredients from me and other people and he would take

them out to people that were manufacturing.” She did not know

Cantwell very well, but said that Cantwell was Reagan’s friend.

According to Rice, on January 8, the three companions drove

from Victoria, Texas to Corpus Christi. There they visited several

stores, where they stole the Actifed and batteries. On the way

back to Victoria, while Cantwell was driving, Rice took the pills

out of the boxes, bundled them up, and handed them up to Reagan for

safekeeping. The plan was for Reagan to take the drugs to an

unnamed person and exchange them for drugs. On the ride back to

Victoria, however, Officer Adame pulled the car over and arrested

the three occupants.

Cantwell now challenges her conviction on the grounds that it

is not supported by sufficient evidence. When considering a

sufficiency challenge, we apply the rational jury standard, under

which we must “decide whether, viewing all the evidence in the

light most favorable to the verdict, a rational trier of fact could

have found that the evidence established the essential elements of

the offense beyond a reasonable doubt.” United States v.

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Villarreal, 324 F. 3d 319, 322 (5th Cir. 2003).

III. SUFFICIENCY OF THE EVIDENCE

A. CONSPIRACY TO MANUFACTURE METHAMPHETAMINE

To convict Cantwell under 21 U.S.C. § 846, the government must

prove “(1) the existence of an agreement between two or more

persons to violate the narcotics laws, (2) that each alleged

conspirator knew of the conspiracy and intended to join it, and (3)

that each alleged conspirator did participate in the conspiracy.”

United States v. Stone, 960 F.2d 426, 430 (5th Cir. 1992).

The evidence at trial was certainly sufficient to support a

finding that Rice and Reagan conspired to manufacture

methamphetamine. Rice testified that she and Reagan had been

working together to procure drugs for their personal use for a

period of about eight months. She would acquire ingredients and

give them to Reagan, who would take them to manufacturers in

exchange for finished drugs. From this evidence a juror could

reasonably conclude that Rice and Reagan were engaged in a

conspiracy to manufacture methamphetamine.

Similarly, the evidence was sufficient for a rational juror to

conclude that Cantwell knowingly and intentionally joined the

conspiracy. Cantwell was found in joint possession of 1,296

pseudoephedrine tablets and several lithium batteries. Ms. Rice

testified that she and Cantwell stole the tablets and batteries

together, and that the plan was to have Reagan exchange the

ingredients for drugs as he had done previously. All three

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participants discussed this plan ahead of time. Afterwards, while

Cantwell drove them back to Victoria, Rice removed the goods from

their packages, bundled them, and handed them up to Reagan, who was

sitting next to Cantwell.

These facts allow for the inference that Cantwell knew of and

participated in the conspiracy to violate the narcotics laws. Cf

United States v. Michelena-Orovio, 719 F.2d 738, 752 (5th Cir.

1983) (finding that defendant’s knowledge and joinder in conspiracy

to distribute marijuana could be inferred where quantity was far

too large for private consumption).1 Viewing all the evidence in

1

Cantwell points to other testimony that suggests that she was

acting independently of Rice and Reagan. Specifically, she notes

that Rice testified that Reagan offered to buy Cantwell’s stolen

pseudoephedrine from her and she refused. Cantwell argues that

this is an indication that she was acting independently of the

other two participants, and not engaged in the conspiracy.

However, Cantwell’s actions indicate otherwise. For instance, she

made no effort to keep her portion of the stolen goods separate

from the rest; she merely dumped them out into the backseat of the

car, where Rice bundled them, together with the pills that Rice had

stolen, and handed them to Reagan. Reagan then kept the pills and

the batteries together in a black bag under his feet in the front

seat. Officer Adame testified that he found the majority of the

pills in that black bag, along with a few others that were on the

floor by Reagan’s feet. Officer Adame did not report finding any

contraband at all in Cantwell’s tan purse, which is what she had

used to steal the pills in the first place. These facts belie the

notion that Cantwell was acting independently of Rice and Reagan

and attempting to keep her share of the pills for herself. A more

plausible reading of Rice’s testimony is that Reagan was simply

offering to buy Cantwell out of the conspiracy once she had stolen

the pills, so that he could take her share of the resulting

methamphetamine. In that light, her refusal of Reagan’s offer

would demonstrate a desire to remain a part of the conspiracy, not

to act independent of it. Of course, we need not speculate as to

precisely how the jury interpreted the testimony. Our reading

convinces us that there was sufficient evidence in the record for

a rational juror to conclude that the defendant was guilty. United

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the light most favorable to the verdict, we believe that a rational

juror could have found that all the elements of the offense were

proven beyond a reasonable doubt. Villarreal, 324 F. 3d at 322

(5th Cir. 2003).

B. AIDING AND ABETTING POSSESSION WITH INTENT TO MANUFACTURE

To prove possession with intent to manufacture, the Government

was required to prove (1) that Cantwell knowingly possessed

pseudoephedrine, (2) that she possessed it with the intent to

manufacture a controlled substance, and (3) that the substance was

pseudoephedrine. 21 U.S.C. § 841(c)(1). Cantwell contests only

the second element.

Even if Cantwell did not intend to manufacture drugs herself,

evidence that she knew of and intended “to further the goals of a

manufacturing operation” is sufficient for a conviction under 21

U.S.C. § 841(c)(1). United States v. Leed, 981 F.2d 202, 206 (5th

Cir. 1993). We find that the evidence set forth above was also

sufficient to allow a reasonable juror to infer that Cantwell knew

of the plan to manufacture drugs, and that she intended to further

that operation by her actions on January 8.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Cantwell also raises an ineffective assistance of counsel

claim on this, her direct appeal. “[T]he general rule in this

circuit is that a claim for ineffective assistance of counsel

States v. Villarreal, 324 F. 3d 319, 322 (5th Cir. 2003).

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cannot be resolved on direct appeal when the claim has not been

raised before the district court since no opportunity existed to

develop the record on the merits of the allegations.” United

States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506

U.S. 1007 (1992) (citations omitted). Since Cantwell’s ineffective

assistance claim has not been presented to the district court, we

decline to review it now. This in no way prejudices Cantwell’s

claim should she choose to raise it in a later postconviction

proceeding.

V. CONCLUSION

For the reasons set forth above, we AFFIRM Cantwell’s

conviction on both counts, and decline to review her ineffective

assistance claim at this time.

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