USA v. Luis Nava

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PUBLISHED OPINION FILED. [09-11035 Affirmed] Judge: JLD , Judge: PRO , Judge: LHS. Mandate pull date is 11/05/2010 for Appellant Luis Nava [09-11035]

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USA v. Luis Nava Doc. 0 Case: 09-11035 Document: 00511264251 Page: 1 Date Filed: 10/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 15, 2010 N o . 09-11035 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f A p p e lle e , v. L U I S NAVA, also known as Flaco, D e fe n d a n t A p p e lla n t . A p p e a l from the United States District Court for the Northern District of Texas B e fo r e DENNIS, OWEN, and SOUTHWICK, Circuit Judges. P R I S C I L L A R. OWEN, Circuit Judge: L u is Nava appeals the district court's imposition of a three-point s e n te n c in g enhancement for his role as a manager or supervisor in a drug c o n s p ir a c y . For the following reasons, we affirm. I N a v a , a member of the street gang known as the Almighty Latin King and Q u e e n Nation (Latin Kings), was charged in Count One of an eleven-count s u p e r s e d in g indictment with conspiracy to distribute and possess with intent to d is t r ib u t e five kilograms or more of cocaine and 100 kilograms or more of m a r iju a n a in violation of 21 U.S.C. 846, 841(a)(1), (b)(1)(A)(ii) & (b)(1)(B)(vii). Nava initially pleaded guilty pursuant to a plea agreement. At the sentencing Dockets.Justia.com Case: 09-11035 Document: 00511264251 Page: 2 Date Filed: 10/15/2010 No. 09-11035 h e a r in g , Nava's attorney objected to the recommendation in the Presentence I n v e s t i g a t i o n Report (PSR) that the three-point enhancement under United S t a te s Sentencing Guideline (U.S.S.G.) 3B1.1(b) should be applied because N a v a was a manager or supervisor in the conspiracy. Counsel asserted that t h e r e was no indication prior to the plea agreement that this enhancement w o u ld apply and that he had received no discovery showing that Nava had such a role. The court then allowed Nava to withdraw his guilty plea. N a v a later pleaded guilty to Count One of the superseding indictment, w it h o u t a plea agreement. At the subsequent sentencing hearing, the district c o u r t heard testimony from two government witnesses with regard to Nava's role in the conspiracy. The court overruled Nava's objection to the three-point e n h a n c e m e n t and determined that Nava's total offense level was thirty-eight. Since Nava had a criminal history category of I, this resulted in a guidelines r a n g e of 253 to 293 months of imprisonment. The court sentenced Nava to 264 m o n th s ' imprisonment, followed by a five-year term of supervised release. Nava n o w appeals. II W e review the district court's interpretation of the Sentencing Guidelines d e novo, and we review any factual determinations made in sentencing for clear e r r o r .1 The determination that a defendant qualifies for an enhancement for his r o le as a manager or supervisor is a factual finding reviewed for clear error.2 T h e court will find clear error in this regard "only if, based on the entire e v id e n c e , the court is left with the definite and firm conviction that a mistake h a s been committed."3 "A factual finding is not clearly erroneous if it is plausible 1 United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009). See United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006). Id. (internal quotation marks, brackets, and citation omitted). 2 3 2 Case: 09-11035 Document: 00511264251 Page: 3 Date Filed: 10/15/2010 No. 09-11035 in light of the record read as a whole."4 Factual findings must be supported by a preponderance of the evidence.5 III N a v a argues that the district court clearly erred in determining that he w a s a manager or leader of the drug conspiracy. He contends that there was in s u ffic ie n t evidence to support such a finding and that any evidence in support w a s unreliable. The Government contends that the evidence is reliable and s u p p o r t s the enhancement. U .S .S .G . 3B1.1(b) provides for a three-level offense increase "[i]f the d e fe n d a n t was a manager or supervisor (but not an organizer or leader) and the c r im in a l activity involved five or more participants or was otherwise extensive." The guidelines do not define "manager" or "supervisor," but the commentary d o e s note that the defendant "must have been the . . . manager, or supervisor of o n e or more other participants."6 The application notes further provide that, in d is t in g u is h in g a leadership and organizational role from one of mere m a n a g e m e n t or supervision, the court should consider: the exercise of decision making authority, the nature of p a r t ic ip a t io n in the commission of the offense, the recruitment of a c c o m p lic e s , the claimed right to a larger share of the fruits of the c r im e , the degree of participation in planning or organizing the o ffe n s e , the nature and scope of the illegal activity, and the degree o f control and authority exercised over others.7 T h e PSR contains the following evidence regarding Nava and the drug c o n s p ir a c y . It first explains that the Latin Kings have four regions in Texas and t h a t each region has individual chapters of the gang. The "Inca" is the gang 4 Id. (internal quotation marks and citation omitted). United States v. Rodriguez, 602 F.3d 346, 362 (5th Cir. 2010). U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) 3B1.1 cmt. n.2 (2009). U.S.S.G. 3B1.1 cmt. n.4. 5 6 7 3 Case: 09-11035 Document: 00511264251 Page: 4 Date Filed: 10/15/2010 No. 09-11035 m e m b e r in charge of each chapter, and the second in command of the chapter is k n o w n as the "Cacique." The PSR states that Nava had been identified as a fo r m e r "Cacique" for the Big Spring Chapter and as the Midland/Odessa "Inca." The Big Spring Chapter may have had up to forty total members. The PSR fu r t h e r states that this chapter distributed and/or acquired marijuana and c o c a in e throughout the state of Texas from approximately 2001 until December 2 0 0 8 ; Nava's brother, Jose Nava, "led the show"; and Jose Nava directed a v a r ie t y of individuals, including Luis Nava, in their drug trafficking activities. I n addition, the PSR states that the Big Spring Chapter purchased homes in Big Spring, seven of which were used by the this chapter to distribute drugs. Luis Nava ran one of those homes. Nava purchased cocaine from Celestino H in o jo s and transported it to members of the Latin Kings in both Big Spring and L ubbock . He also distributed large quantities of cocaine in Midland and Other sections of the PSR similarly d e liv e r e d some cocaine to Jose Nava. in d i c a t e that Luis Nava was distributing large quantities of cocaine and m a r iju a n a . The PSR shows that Luis Nava gave orders to other Latin Kings. For in s t a n c e , during a "war" with the Rios Family, a rival drug trafficking e n te r p r is e , Nava ordered Robert Allen Ramirez to burn down the home of Rios's m o t h e r . At another time, Nava ordered Guerrero Olivas and Domingo Robledo t o set grass fires in a certain location to draw police attention. Nava also r e q u e s t e d that his wife, Cecily Dominique Juarez, purchase Inositol, which is u s e d to cut powder cocaine. I n addition, two witnesses at the sentencing hearing testified as to Nava's role in the offense. Billy Koontz, a police officer for the City of Lubbock and the t a s k force officer with the Drug Enforcement Agency (DEA), testified first. He h a d been assigned to the investigation targeting Jose Nava and his drug t r a ffic k in g organization. Koontz testified that Luis Nava had been present at 4 Case: 09-11035 Document: 00511264251 Page: 5 Date Filed: 10/15/2010 No. 09-11035 a n internal meeting of the leadership of the Latin Kings, in which only "number o n e s " and regional officers had been allowed. Koontz was shown photographs o f the meeting and pointed out Nava in the photographs. Koontz testified that t h e transcript and photographs from the meeting showed that, when someone a s k e d who was closest to El Paso, Jose Nava pointed at Luis Nava and said "he's g o t regional," meaning that he was in charge of the region closest to El Paso. K o o n t z also testified extensively as to Nava's involvement in drug t r a ffic k in g . He explained that when Nava and his brother Jose moved to Big S p r in g in 2003, they met Joe Canales, and Canales began to supply them with m a r iju a n a . He stated that Canales and Jose Nava became partners, but that L u is and a third brother, Reynaldo Nava, were also involved in the drug t r a ffic k in g , which grew to include cocaine. Koontz further explained that in 2 0 0 7 , Jose and Luis Nava started obtaining drugs from a new source, Celestino H in o jo s , who would at times supply them with nine kilograms of cocaine. In a d d it io n , Koontz testified about an interview he had with Carol Nava, the wife o f Reynaldo. Koontz stated that she told him that she learned to dilute cocaine fr o m watching Luis Nava. P r o b a t io n officer Wayne McKim also testified at the sentencing hearing. McKim testified that when interviewing Nava, he noticed one of Nava's tattoos a n d asked him about it. McKim testified that Nava explained it was a tattoo s h o w in g rank and that his brother, Jose Nava, had no rank in the Latin Kings. A N a v a makes many objections to the reliability of the evidence, but they are u n a v a ilin g . In making factual findings for sentencing purposes, the district c o u r t may consider any evidence "which bears sufficient indicia of reliability to s u p p o r t its probable accuracy, including hearsay evidence." 8 If the defendant 8 United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002) (internal quotation marks and citation omitted); see also U.S.S.G. 6A1.3(a) ("In resolving any dispute concerning a factor 5 Case: 09-11035 Document: 00511264251 Page: 6 Date Filed: 10/15/2010 No. 09-11035 t a k e s issue with the evidence, he "bears the burden of demonstrating that the in fo r m a t io n cannot be relied upon because it is materially untrue, inaccurate or u n r e l i a b l e . "9 A presentence report "generally bears sufficient indicia of r e lia b ilit y to be considered as evidence by the sentencing judge in making factual d e t e r m in a t io n s ."1 0 Again, the defendant bears the burden of showing that the in fo r m a t io n in the presentence report is materially untrue.1 1 N a v a has not shown that the information introduced at sentencing or c o n t a in e d in the PSR is untrue. He first argues that the information contained in the PSR is not reliable since the PSR does not cite specific sources for the in fo r m a t io n . The PSR provides that the information contained within it was g a t h e r e d from: t h e Factual Resume prepared by the U.S. Attorney's Office, L u b b o c k , Texas, and investigative materials prepared by the L u b b o c k Police Department (LPD), Lubbock, Texas; the Lubbock C o u n t y Sheriff's Office, Lubbock, Texas; the Big Spring Police D e p a r tm e n t (BSPD), Big Spring, Texas; the U.S. Drug Enforcement A d m in is t r a t io n , Lubbock, Texas; the U.S. Drug Enforcement A d m in is t r a t io n , Houston, Texas; the Bureau of Alcohol, Tobacco, F ir e a r m s , and Explosives, Lubbock and Houston, Texas; the D a w s o n County Sheriff's Department, Lamesa, Texas; and the F e d e r a l Bureau of Investigation, Houston, Texas. It further provides that "DEA Task Officer Billy Koontz was consulted." Nava d o e s not explain why these sources are unreliable. Because a PSR generally b e a r s sufficient indicia of reliability and because Nava has not provided rebuttal important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy."). 9 Rodriguez, 602 F.3d at 363 (internal quotation marks and citation omitted). United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006). 10 11 6 Case: 09-11035 Document: 00511264251 Page: 7 Date Filed: 10/15/2010 No. 09-11035 e v id e n c e to show that the PSR and its sources are unreliable, the district court's r e lia n c e on it was not in error Nava also contends that the evidence presented at the sentencing hearing d id not have sufficient indicia of reliability since most of the testimony was " u n c o r r o b o r a t e d hearsay." The sentencing guidelines provide that "the court m a y consider relevant information without regard to its admissibility under the r u le s of evidence applicable at trial, provided that the information has sufficient in d ic ia of reliability to support its probable accuracy."1 2 The commentary further p r o v id e s that "[r]eliable hearsay may be considered."1 3 We have explained that e v e n uncorroborated hearsay may be considered as long as it has sufficient in d ic ia of reliability.1 4 N a v a has not shown that the evidence alleged to be hearsay was u n r e lia b le . Much of the hearsay evidence consisted of Koontz's statements about w h a t was said during the universal meeting of the Latin Kings leadership. But t h e s e statements were corroborated by the draft transcript of the meeting and t h e photographs of the meeting, and thus have sufficient indicia of reliability. As for Carol Nava's statements to Koontz, Nava made no showing as to why t h e s e statements are unreliable. In addition, Nava takes issue with his own s t a t e m e n t to McKim that his tattoo showed he had rank in the Latin Kings. Because this statement is an admission by a party-opponent, it is not hearsay u n d e r Federal Rule of Evidence 801(d)(2). I n sum, Nava has presented no evidence to rebut the information in the P S R or the testimony in the sentencing hearing, and he has made no showing 12 U.S.S.G. 6A1.3(a). U.S.S.G. 6A1.3 cmt. United States v. Slaughter, 238 F.3d 580, 585 (5th Cir. 2000) (per curiam). 13 14 7 Case: 09-11035 Document: 00511264251 Page: 8 Date Filed: 10/15/2010 No. 09-11035 t h a t the evidence is not sufficiently reliable. The district court did not err in c o n s id e r in g the PSR and testimony in making its sentencing determination. B N a v a next argues that the district court's finding that he was a manager o r supervisor is not plausible in light of the record. The evidence shows that N a v a ranked second in the Big Spring Chapter, which had approximately forty m e m b e r s , and that he gave orders to gang members on at least two occasions. The record also reflects that Nava was heavily involved in the drug trade--he b o u g h t and sold large quantities of drugs and ran a drug house. In addition, the P S R shows a strong connection between the Big Spring Chapter chapter of the L a t in Kings and the drug trade. It states that from 2001 until 2008, the chapter d is t r i b u t e d marijuana and cocaine throughout Texas, and that its drug t r a ffic k in g increased dramatically in 2005. Because of the increase, gang m e m b e r s conducted counter-intelligence and infiltrated the police. Big Spring C h a p t e r members also ran drug houses and engaged in war with rival drug e n te rp ris e s . N a v a contends, however, that leadership in a gang cannot be equated to le a d e r s h ip in a drug conspiracy in which the gang is involved, pursuant to our r u lin g in United States v. Lewis.1 5 There, we considered whether a four-point s e n te n cin g enhancement for being an "organizer or leader" in a m e t h a m p h e t a m in e conspiracy was appropriate for the defendant, who had a le a d e r s h ip role in the Aryan Circle.1 6 In ruling that the evidence did not support t h e sentencing enhancement, we explained that the record showed that the 15 476 F.3d 369, 389 (5th Cir. 2007). Id. 16 8 Case: 09-11035 Document: 00511264251 Page: 9 Date Filed: 10/15/2010 No. 09-11035 d e fe n d a n t 's role in the methamphetamine trade was minor, since it showed only t h a t he sold methamphetamine for one month and on five other occasions.1 7 T h is case is distinguishable from Lewis. One basis is that in Lewis the d e fe n d a n t received a four-point sentencing enhancement for being an "organizer o r leader," rather than the three-point enhancement for the lesser role of " m a n a g e r or supervisor."1 8 As mentioned supra, the application notes to 3B1.1 lis t certain factors to be considered in distinguishing an organizer or leader from a manager or supervisor, and in Lewis, the court found that the evidence did not s h o w that the defendant was an organizer or leader under the factors. 1 9 But h e r e , Nava was charged with being only a manager or supervisor. The present c a s e is also distinguishable from Lewis because the evidence shows that Nava h a d much more involvement in drug trafficking than did the defendant in Lewis. Nava was in charge of a drug house and bought and distributed large quantities o f cocaine and marijuana throughout 2008. Thus, the inference that Nava's le a d e r s h ip role in the Big Spring Chapter translated into a leadership role in the d r u g conspiracy requires less of a logical leap. T h e evidence shows that Nava ranked second in the Big Spring Chapter, t h is chapter was highly connected to drug trafficking, and Nava frequently t r a ffic k e d large quantities of drugs. This creates a permissable inference that N a v a 's leadership position in the Big Spring Chapter translated into a le a d e r s h ip position in the drug trafficking enterprise. The district court's d e t e r m in a t io n that Nava was a manager or supervisor in the drug trafficking c o n s p ir a c y involving Big Spring Chapter members is plausible in light of the record. 17 Id. Id. Id. 18 19 9 Case: 09-11035 Document: 00511264251 Page: 10 Date Filed: 10/15/2010 No. 09-11035 * * * F o r the foregoing reasons, we AFFIRM the district court's judgment. 10

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