USA v. Francisco Torres-Rodriguez

Filing

Opinion issued by court as to Appellant Francisco Torres-Rodriguez in 10-15855, Appellant Juan Jalomo-Ruiz in 10-15955, Appellant Alejandrino Popoca in 11-10083. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. [10-15855, 10-15955, 11-10083]

Case: 10-15855

Date Filed: 03/01/2013

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15855
________________________
D.C. Docket No. 3:10-cr-00067-RV-EMT-4

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO TORRES-RODRIGUEZ,
Defendant-Appellant.
________________________
No. 10-15955
________________________
D.C. Docket No. 3:10-cr-00067-RV-EMT-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JALOMO-RUIZ

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Defendant-Appellant.
________________________
No. 11-10083
________________________
D.C. Docket No. 3:10-cr-00067-RV-EMT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRINO POPOCA,
a.k.a. Alex,
a.k.a. Alejandrino Rodriguez-Popoca,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(March 1, 2013)
Before DUBINA, Chief Judge, HULL and ALARCÓN,* Circuit Judges.
PER CURIAM:
I
Defendant-Appellants Francisco Torres-Rodriguez (“Torres-Rodriguez”),
*

Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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Juan Jalomo-Ruiz (“Jalomo-Ruiz”), and Alejandrino Popoca (“Popoca”) appeal
their convictions and sentences imposed by the United States District Court for the
Northern District of Florida.
Torres-Rodriguez was convicted of (1) conspiracy to distribute and
possession with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846; and (2) possession with intent
to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and 841(b)(1)(B)(ii). Torres-Rodriguez received a 162-month sentence, which
included an enhancement for a co-conspirator’s possession of a firearm.
Jalomo-Ruiz was convicted of (1) conspiracy to distribute and possession
with intent to distribute less than five kilograms of cocaine, in violation of
21 U.S.C. § 841(a)(1) and 846; and (2) possession of a firearm while unlawfully in
the United States, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). He
received a 78-month sentence.
Popoca was convicted of (1) conspiracy to distribute and possession with
intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii), and 846; (2) possession with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(B)(ii); (3) use, carrying, or possession of a firearm in furtherance of a
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drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (4) possession of
a firearm while unlawfully in the United States, in violation of 18 U.S.C.
§§ 922(g)(5)(A) and 924(a)(2). Popoca received a 360-month sentence, which
included enhancements for obstruction of justice and drug quantity.
II
A
Torres-Rodriguez raises two issues on appeal:
(1) Whether the evidence was sufficient to support his conviction for
possession with intent to distribute 500 grams or more of cocaine; and
(2) Whether the district court erred in enhancing his sentence for possession
of a firearm.
B
Jalomo-Ruiz raises two issues on appeal:
(1) Whether the district court erred by omitting the lesser-included offense of
conspiracy to distribute and possession with intent to distribute 500 grams or less
of cocaine from the jury instructions; and
(2) Whether the evidence was sufficient to support his conviction for
conspiracy to distribute and possession with intent to distribute less than five
kilograms of cocaine.
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C
Popoca raises three issues on appeal:
(1) Whether the jury instructions and the Government’s closing argument
constructively amended the indictment;
(2) Whether the evidence was sufficient to establish Popoca’s convictions for
use, carrying, or possession of a firearm in furtherance of a drug trafficking crime
and for possession of a firearm while unlawfully in the United States; and
(3) Whether the district court violated Fed. R. Crim. P. 32(i)(1)(C) and his
due process right to notice when it relied on evidence outside of the Presentence
Investigation Report in enhancing his sentence for obstruction of justice and drug
quantity.
III
Several standards of review govern this appeal. “We review sufficiency of
the evidence de novo, viewing the evidence in the light most favorable to the
government and drawing all reasonable inferences and credibility choices in favor
of the jury’s verdict.” United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998).
When weighing the sufficiency of the evidence, “[i]t is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, provided a reasonable trier
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of fact could find that the evidence establishes guilt beyond a reasonable doubt.”
United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990).
We review the “district court’s factual findings for clear error and their
application of the Sentencing Guidelines to those facts de novo.” United States v.
Bradford, 277 F.3d 1311, 1312 (11th Cir. 2002). “We review de novo challenges
to the constitutionality of a defendant’s sentence,” assuming they are properly
preserved. United States v. Ghertler, 605 F.3d 1256, 1268 (11th Cir. 2010).
“[W]hen a party agrees with a court’s proposed instructions, the doctrine of
invited error applies, meaning that review is waived even if plain error would
result.” United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010).
When a defendant fails to raise a argument before the district court, we
review only for plain error. United States v. Dortch, 696 F.3d 1104, 1110 (11th
Cir. 2012). Reviewing for plain error, “we will not correct an error raised for the
first time on appeal unless there is an error that is plain; that affects substantial
rights; and that seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1112.
IV
After carefully reviewing the record in this case and reading the parties’
briefs, we conclude that each of Defendant-Appellants’ claims lack merit. We
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affirm their convictions and sentences.
AFFIRMED.

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