USA v. Zavala

Filing

UNPUBLISHED OPINION FILED. [08-41134 Affirmed 08-41164 Affirmed ] Judge: JLW , Judge: EMG , Judge: ECP Mandate pull date is 01/03/2011 for Appellant Rene Zavala and Appellant Jose Zavala [08-41134, 08-41164]

USA v. Zavala

Case: 08-41134 Document: 00511319767 Page: 1 Date Filed: 12/13/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-41134 December 13, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA Plaintiff­Appellee v. R E N E ZAVALA; JOSE ZAVALA D e fe n d a n t s ­ A p p e lla n t s

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 6:06-CR-27-4

B e fo r e WIENER, GARZA and PRADO, Circuit Judges. P E R CURIAM:* S im o n Balderas, Jr. was convicted of three counts of possessing a firearm d u r in g and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Defendants­Appellants Rene Zavala and Jose Zavala, two of Balderas's c o -c o n s p ir a t o r s , were convicted of the same three substantive counts under the P in k e r to n doctrine that holds co-conspirators liable for the foreseeable acts of o t h e r members of the conspiracy. The Zavalas' lengthy sentences, which are b a s e d on several drug trafficking violations, include an additional 55-year

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 08-41134 Document: 00511319767 Page: 2 Date Filed: 12/13/2010

No. 08-41134 m a n d a t o r y minimum term of confinement for the three § 924(c) counts. This a p p e a l requires us to determine whether the Zavalas' 55-year prison terms, b a s e d solely on Pinkerton liability for a co-conspirator's foreseeable conduct, v io la t e the Eighth Amendment. We hold that they do not. I R e n e Zavala and his brother, Jose, were among nineteen co-conspirators c h a r g e d for their roles in a drug trafficking ring spanning Texas, Louisiana, and F lo r id a . In 2006, a jury convicted the Zavalas and Simon Balderas, Jr. of, among o t h e r things, conspiracy to distribute methamphetamine, fourteen counts of p o s s e s s io n with intent to distribute methamphetamine, and three counts (C o u n t s 9, 11, and 13) of possessing a firearm during and in furtherance of a d r u g trafficking crime in violation of 18 U.S.C. § 924(c). Section 924(c) mandates a five-year minimum sentence for a first offense and a 25-year minimum s e n te n c e for a second or subsequent offense, to run consecutively to each other a n d to any other sentence. § 924(c)(1)(A)(i), (C)(i), (D)(ii). The "second or

s u b s e q u e n t " convictions can occur in the same proceeding. See Deal v. United S ta te s , 508 U.S. 129, 134­36 (1993). Thus, the Zavalas' convictions on the three § 924(c) counts required a 55-year mandatory minimum term of confinement, to r u n consecutively to the sentences imposed for their other drug trafficking c o n v ic tio n s . In July 2008, this court set aside the Zavalas' convictions on three u n r e la t e d counts and remanded their cases for resentencing. See United States v . Zavala, 286 F. App'x 170 (5th Cir. 2008), cert. denied, 129 S. Ct. 611 and 619 (2 0 0 8 ). Before doing so, the court considered the sufficiency of the evidence on C o u n ts 9, 11, and 13, and found that Balderas's possession of a firearm in fu r t h e r a n c e of the drug trafficking conspiracy was reasonably foreseeable to R e n e and Jose. Zavala, 286 F. App'x at 174­75. The court affirmed the Zavalas' t h r e e § 924(c) convictions based on Pinkerton v. United States, 328 U.S. 640 2

Case: 08-41134 Document: 00511319767 Page: 3 Date Filed: 12/13/2010

No. 08-41134 (1 9 4 6 ), accordingly. Id. Because the court remanded for resentencing, it did not a d d r e s s the Zavalas' Eighth Amendment challenges to their lengthy prison s e n te n c e s , which were based largely on Pinkerton liability for Balderas's conduct a s a co-conspirator. Id. at 178. On remand, the district court resentenced Rene to 895 months' imprisonment, among other measures. Counts 9, 11, and 13 account for 660 m o n th s , or 55 years, of this total sentence. The court resentenced Jose to 922 m o n th s in prison, with 660 months (55 years) likewise being attributable to the t h r e e § 924(c) convictions.2 T h e Zavalas timely appealed and now argue that: (i) the evidence was in s u ffic ie n t to support a finding of foreseeability as to Balderas's conduct; and (ii) their 55-year sentences, based on Pinkerton liability for Balderas's u n fo r e s e e a b le conduct, violate the Eighth Amendment. II I n this second appeal, we are bound by the law of the case doctrine and m a y not reconsider issues previously adjudicated unless one of the exceptions to t h e doctrine applies. See United States v. Hollis, 506 F.3d 415, 421 (5th Cir. 2 0 0 7 ). This court reviews de novo an Eighth Amendment challenge to a

s e n te n c e . See Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003). Questions o f statutory interpretation are also reviewed de novo. See United States v. C la y to n , 613 F.3d 592, 595 (5th Cir. 2010). A R e n e Zavala argues that the consecutive sentences on Counts 9, 11, and 1 3 , mandating 55 years in prison, violate the Eighth Amendment because there w a s no finding that Balderas's possession of a firearm during his drug dealings w a s foreseeable to Rene. Jose Zavala similarly argues that his 55 year sentence
Jose Zavala had also been convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His longer sentence is due to this additional conviction.
2

3

Case: 08-41134 Document: 00511319767 Page: 4 Date Filed: 12/13/2010

No. 08-41134 fo r the three § 924(c) counts is cruel and unusual because it is based on conduct t h a t was neither foreseeable or attributable to him personally, but rather is b a s e d on his criminal association with Balderas. To the extent that the Zavalas argue that the evidence was insufficient to s u p p o r t their § 924(c) convictions, and specifically, that Balderas's conduct was n o t reasonably foreseeable to them, review of that issue is foreclosed by the law o f the case doctrine. Under this doctrine, "an issue of fact or law decided on a p p e a l may not be reexamined either by the district court on remand or by the a p p e lla te court on subsequent appeal." United States v. Lee, 358 F.3d 315, 320 (5 t h Cir. 2004) (internal quotation marks and citation omitted). The proscription c o v e r s issues that this court has decided expressly or by necessary implication, " r e fle c t in g the sound policy that when an issue is once litigated and decided, that s h o u ld be the end of the matter." Id. (internal quotation marks and citation o m i t t e d ) .3 O n direct appeal from the original judgment, the Zavalas challenged their c o n v ic t io n s on Counts 9, 11, and 13, arguing that the evidence was insufficient t o show that Balderas's possession of a firearm during and in furtherance of the d r u g trafficking conspiracy was foreseeable to them. See generally Zavala, 286 F . App'x at 175 ("Jose and Rene insist that they cannot be held accountable for B a ld e r a s 's possession of the firearm because such possession was not reasonably fo r e s e e a b le ." ). The court's July 2008 decision rejected that argument,

r e c o g n iz in g that "[w]e have consistently held that, under Pinkerton, it is
There are three exceptions to the law of the case doctrine that permit an appellate court to depart from a ruling made in a prior appeal in the same case. See Lee, 358 F.3d at 320 n.3. These include cases where: (1) the evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice. Id. (citing United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). Our review of the record convinces us that the court's July 2008 foreseeability determination was not clearly erroneous. Thus, none of these exceptions apply. The Zavalas have not argued, in the district court on remand or here, that their case falls within an exception to the law of the case doctrine.
3

4

Case: 08-41134 Document: 00511319767 Page: 5 Date Filed: 12/13/2010

No. 08-41134 fo r e s e e a b le that a drug defendant's co-conspirator will carry a firearm during a d r u g transaction when a substantial quantity of drugs is involved." Id. (citing U n ite d States v. Dean, 59 F.3d 1479, 1490 n.20 (5th Cir. 1994)). Given the large q u a n t it ie s of methamphetamine involved here, the court found that it was " fo r e s e e a b le that Balderas would conduct the sale of drugs with a firearm." Id. Thus, the court found sufficient evidence to support the jury's guilty findings on C o u n ts 9, 11, and 13, and affirmed Rene and Jose's convictions accordingly. Id. The court's July 2008 finding that Balderas's conduct was foreseeable to R e n e and Jose Zavala is the law of the case and binding on this appeal. B T h e Zavalas contend that their consecutive sentences for the three § 924(c) c o n v ic t io n s -- e ffe c t iv e ly life-sentences--are based on Balderas's unforeseeable c o n d u c t , and thus, violate the Eighth Amendment's proportionality principle. In light of our previous foreseeability finding, however, we reject this framing of t h e issue. Rather, the question before us is whether the Zavalas' 55-year

s e n te n c e enhancements, which are based entirely on Pinkerton liability for a coc o n s p ir a t o r 's foreseeable conduct, pass constitutional muster. The Eighth Amendment prohibits a sentence that is grossly

d is p r o p o r t io n a t e to the crime for which it is imposed. See United States v. G o n z a le s , 121 F.3d 928, 942 (5th Cir. 1997). When evaluating an Eighth

A m e n d m e n t proportionality challenge, this court makes a threshold comparison b e tw e e n the gravity of the charged offense and the severity of the sentence. See M c G r u d e r v. Puckett, 954 F.2d 313, 315­16 (5th Cir. 1992). Only if the sentence is grossly disproportionate to the offense do we go on to compare the sentence at is s u e with (1) sentences imposed for similar crimes in the same jurisdiction, and (2 ) sentences imposed for the same crime in other jurisdictions. Id. at 316. If t h is court concludes that the sentence is not grossly disproportionate, our in q u ir y is at an end. Gonzales, 121 F.3d at 942. It is "exceedingly rare" for a 5

Case: 08-41134 Document: 00511319767 Page: 6 Date Filed: 12/13/2010

No. 08-41134 n o n -c a p it a l sentence to violate the Eighth Amendment. Rummel v. Estelle, 445 U .S . 263, 272 (1980). We have previously considered sentences imposed under § 924(c) similar in duration to those presented here and have found that such sentences do not v io la t e the Eighth Amendment. See United States v. Looney, 532 F.3d 392, 3 9 6 ­ 9 7 (5th Cir. 2008) (finding 30-year sentence enhancement under § 924(c) constitutional); Gonzales, 121 F.3d at 942­44 (same). Our sister circuits have fo u n d likewise on similar facts. See, e.g., United States v. Robinson, 617 F.3d 9 8 4 , 990­91 (8th Cir. 2010); United States v. Angelos, 433 F.3d 738, 750­53 (10th C ir . 2006). We adopt the reasoning employed in these cases and find, as a t h r e s h o ld matter, that the Zavalas' 55-year sentences are not grossly d is p r o p o r t io n a t e to the gravity of their offenses. T h e Zavalas argue that their cases are distinguishable because, unlike o r d in a r y § 924(c) convictions and sentences that hold the defendant accountable fo r his own criminal conduct, here, the Zavalas are being punished for the c o n d u c t of another (i.e., Balderas). This distinction is intriguing, as it implicitly a s k s us to consider the outer bounds of accomplice liability under Pinkerton as b o th Eighth Amendment and due process matters. See United States v.

C a s ta n e d a , 9 F.3d 761, 766 (9th Cir. 1993) ("due process constrains the a p p lic a t io n of Pinkerton where the relationship between the defendant and the s u b s t a n t iv e offense is slight."). We need not define the outer boundaries of P in k e r to n liability today, however, given the central roles that Rene and Jose Z a v a la held in the drug trafficking conspiracy prosecuted. There is no lingering d u e process question after our finding that Balderas's firearm possession was fo r e s e e a b le . See Zavala, 286 F. App'x at 174­75; see also Castaneda, 9 F.3d at 7 6 6 ("The foreseeability concept underlying Pinkerton is also the main concern u n d e r ly in g a possible due process violation.") (quotation omitted).

6

Case: 08-41134 Document: 00511319767 Page: 7 Date Filed: 12/13/2010

No. 08-41134 Nor do we find an Eighth Amendment violation. W e have observed r e p e a t e d ly that "firearms are the tools of the trade of those engaged in illegal d r u g activity." Dean, 59 F.3d at 1490 n.20. Congress has addressed this threat in § 924(c), the "basic purpose" of which is "to combat the dangerous combination o f drugs and guns." Muscarello v. United States, 524 U.S. 125, 132 (1998) (c it a t io n and internal quotation marks omitted). The statute's harsh sentencing t e r m s for using or carrying a firearm in connection with drug trafficking activity a r e entitled to substantial deference, given Congress's "broad authority . . . in d e t e r m in in g the types and limits of punishments for crimes." Solem v. Helm, 4 6 3 U.S. 277, 290 (1983). In light of the severity of the harm to society posed by criminals who p o s s e s s guns in furtherance of drug trafficking crimes, see Angelos, 433 F.3d at 7 5 2 , and the foreseeability of just such an offense in the conspiracy at issue here, w e do not find this to be the type of "extraordinary" case in which the sentences a t issue are grossly disproportionate to the predicate offenses for which they w e r e imposed. See Lockyer v. Andrade, 538 U.S. 63, 77 (2003). The Zavalas alternatively argue that their 55-year sentence enhancements p o s e an Eighth Amendment problem because these terms effectively constitute life sentences. We disagree. While there is no question that Rene and Jose Z a v a la 's sentences are lengthy, they are not grossly disproportionate. See

L o o n e y , 532 F.3d at 396 ("while a life sentence for a crime involving no actual v io l e n c e might be considered disproportionate punishment, it is not `grossly d is p r o p o r t io n a t e ' as that term is understood under current law"); see also United S ta te s v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003) ("Lengthy prison sentences, even t h o s e that exceed any conceivable life expectancy of a convicted defendant, do n o t violate the Eighth Amendment's prohibition against cruel and unusual p u n i s h m e n t when based on a proper application of . . . statutorily mandated c o n s e c u t iv e terms."). We find no constitutional error in the Zavalas' sentences. 7

Case: 08-41134 Document: 00511319767 Page: 8 Date Filed: 12/13/2010

No. 08-41134 III The district court's judgments are AFFIRMED.

8