USA v. Jesus Chavez-Salgado

Filing

UNPUBLISHED OPINION FILED. [09-11190 Affirmed] Judge: PEH , Judge: EBC , Judge: PRO. Mandate pull date is 10/27/2010 for Appellant Jesus Francisco Chavez-Salgado, Appellant Reymundo Rendon-Alvarado and Appellant Jose Sanchez [09-11190]

USA v. Jesus Chavez-Salgado

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 6, 2010 N o . 09-11190 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t iff - Appellee v. J E S U S FRANCISCO CHAVEZ-SALGADO; REYMUNDO RENDONA L V A R A D O ; JOSE SANCHEZ, D e fe n d a n t s - Appellants

A p p e a l from the United States District Court for the Northern District of Texas C a s e No. 4:09-CR-079-1

B e fo r e HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM.* D efen d a n t-A p p e lla n ts Jesus Chavez-Salgado (Chavez), Reymundo RendonA lv a r a d o (Rendon), and Jose Sanchez (Sanchez) were convicted by a jury of c o n s p ir in g to possess with intent to distribute more than five kilograms of c o c a in e in violation of 21 U.S.C. § 846 and were sentenced to 121 months, 188 m o n th s , and 135 months of imprisonment, respectively. Appellants assert s e v e r a l errors by the district court, all contending that the government failed to

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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No. 09-11190 p r e s e n t sufficient evidence to prove the drug quantity alleged by the g o v e r n m e n t .1 A p p e lla n t s also argue that the district court clearly erred in determining, fo r sentencing purposes, that appellants' offense involved more than five k ilo g r a m s of cocaine. Rendon argues that the district court erred in increasing t h e base level of his offense by two levels pursuant to § 3B1.1(c) based on his role in the offense. Finally, Chavez argues that the district court erred by refusing t o give his requested jury instruction that would have required the government t o prove Chavez knew he conspired to possess more than five kilograms of c o c a in e with intent to distribute. We disagree and affirm. I . BACKGROUND A fte r receiving citizen complaints that the owner and employee of a tire b u s in e s s in Fort Worth were engaged in drug activity, the Fort Worth Police D e p a r t m e n t conducted an investigation where two undercover officers, Officer E r ic Martinez and Officer Jesus Cisneros, posed as high-level narcotics t r a ffic k e r s . On April 21, 2009, Officers Martinez and Cisneros arrived at the tire b u s in e s s carrying a "concealment mold," used by drug traffickers to hide c o n t r a b a n d . Upon arrival, the officers encountered Chavez and asked for the o w n e r of the property. Chavez informed the officers that the owner was not p r e s e n t , and inquired as to why the officers were looking for him. Officer M a r t in e z told Chavez that he had ten kilograms of cocaine to ship to Kentucky a n d that he needed help concealing drugs in a tire. Officer Martinez also showed h im the concealment mold. Chavez informed Officer Martinez that he had b u y e r s in Fort Worth and Dallas who would be willing to buy the same amount,

Specifically, Appellants each argue the district court erred in denying their motions for judgments of acquittal, made both at the close of the government's case-in-chief and at the close of all evidence. Sanchez argues the district court erred in denying his post-verdict joint motion for acquittal and for new trial. Chavez argues the district court erred in submitting to the jury the question of whether the conspiracy involved more than five kilograms of cocaine.

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No. 09-11190 t e n kilograms, and inquired as to the quality and the price of the cocaine M a r t in e z was selling. Officer Martinez and Chavez exchanged telephone n u m b e r s and the officers left the tire business. S u b s e q u e n t to the initial meeting, Chavez phoned Officer Martinez to in q u ir e whether Martinez had received more cocaine or expected to receive more. T h e two exchanged several phone calls over the next several days. A few days la t e r , Officers Martinez and Cisneros met with Chavez, who told Officer M a r t in e z he had a buyer for ten kilograms of cocaine and asked to check the q u a lit y of the cocaine. After traveling to a warehouse, Officer Martinez offered t w o cellophane-wrapped kilograms of cocaine to Chavez for inspection. Chavez a s k e d Officer Martinez to cut open the package, which he did, and Chavez s m e lle d the cocaine. Officer Martinez told Chavez the remaining eight kilograms o f cocaine were still inside the vehicle, and that they would not be removed until t h e officers were sure that Chavez's group had the money to pay for the drugs. C h a v e z assured the officer that his group in Dallas had sufficient money and the m e n parted ways. A few days later, Chavez called Officer Martinez to tell him the Dallas g r o u p did not have sufficient money to complete the transaction. Later, Chavez c a lle d Officer Martinez and said he had a different buyer out of Dallas who also w a n t e d ten kilograms, but only had enough cash for five kilograms. Chavez a s k e d Officer Martinez if he would be willing to trade vehicles for the other five k ilo g r a m s . Officers Martinez and Cisneros and Chavez met at Chavez's home to v ie w the vehicles. When the officers arrived, however, there was only one vehicle a t the home. Sanchez was also present and was introduced to the officers as " C h in o ." Sanchez told Officer Martinez he was working for a man in Dallas who w a n t e d ten kilograms of cocaine. Chavez also told the officers that Sanchez was t h e r e to represent the owner of the vehicles from Dallas. Sanchez also told the o ffic e r s that the group had money for five kilograms, and were willing to trade 3

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No. 09-11190 v e h ic le s for the other five kilograms. Sanchez also asked about the quality of the c o c a in e and asked to take one kilogram for testing, but the officers refused and e n d e d the meeting. A s the officers drove back to their office, Chavez called Officer Martinez a n d asked him to continue negotiations. Officer Martinez agreed, and the officers a g a in met with Chavez and Sanchez. Chavez and Sanchez were persistent in t h e ir request to take one kilogram of cocaine for testing, and Sanchez said he w o u ld return and purchase the other nine kilograms if the cocaine was of an a c c e p t a b le quality. Officer Martinez refused and the negotiations ended. Five days later, Chavez called Officer Martinez and said he had cash s u ffic ie n t to buy five kilograms of cocaine and vehicles in his possession. Officers M a r t in e z and Cisneros and two other undercover officers drove to Chavez's h o u s e . Sanchez was there, and handed over titles to three vehicles parked at the r e s id e n c e . Sanchez told Officer Martinez that his boss was parked at a nearby p a r k , and asked for a sample kilogram of cocaine to take to the boss. Officer M a r t in e z again refused to release any cocaine until seeing the money. After an a r g u m e n t with Officer Martinez, Sanchez used the phone, and then agreed to t a k e Martinez to see the money. Officer Martinez, Officer Cisneros, and Sanchez t h e n drove to the park. The parties were alarmed by a suspicious truck in the p a r k in g lot.2 A few minutes later, a different truck pulled next to the trio, c a r r y in g Rendon as a passenger.3 After all the parties exited the vehicles, Officer M a r t in e z again asked to see the money. Rendon agreed to show Officer Martinez t h e money, and motioned to the driver of the truck to open its hood. Rendon p o i n t e d to a bag lodged between the truck battery and the frame of the truck,

In actuality, the suspicious truck was a Bureau of Alcohol, Tobacco, and Firearms (ATF) rescue team.
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The driver of the truck, Mario Barrera-Luna, was found not guilty at trial.

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No. 09-11190 a n d Officer Martinez was able to see United States currency in the bag.4 At some p o in t during the meeting at the park, Officer Martinez told Rendon that "[w]hat m a d e you look bad is working with [Chavez]." Rendon replied, "I don't know [C h a v e z ] or what happened." The driver of the truck then said, in Spanish, "it's h o t here," which Officers Martinez and Cisneros took to mean that he thought it was too dangerous to continue the transaction at the park. The parties agreed t o complete the transaction at Chavez's house. Upon their return to Chavez's h o u s e , Officer Martinez and Rendon exited the vehicle and began talking in front o f the residence. Prior to exiting, Officer Martinez gave the prearranged arrest s ig n a l and arrest teams from the ATF and the Fort Worth Police Department t o o k the men into custody. C h a v e z , Rendon, and Sanchez were each indicted on a single count of c o n s p ir a c y to possess with intent to distribute more than five kilograms of c o c a in e in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). At trial, the g o v e r n m e n t called only two witnesses, Officers Martinez and Cisneros.5 At the c lo s e of the government's case-in-chief, Appellants moved for a judgment of a c q u it t a l , arguing that there was no evidence of any agreement by the A p p e lla n t s , and also no evidence that Appellants agreed to distribute more than fiv e kilograms of cocaine. The district court denied the motion. Chavez called two c h a r a c t e r witnesses in his defense. Rendon, Sanchez, and Barrera-Luna called n o witnesses. At the close of all evidence, the district court denied a second m o t io n for acquittal. Chavez and Sanchez also objected to the court submitting

A subsequent search of the bag revealed that it contained $29,910. Officer Martinez testified that, by sight, he did not believe the bag contained enough money for all ten kilograms, but contained enough for five kilograms. Officer Cisneros testified only very briefly before Sanchez objected to his testimony as cumulative. The court did not explicitly rule on Sanchez's objection, but indicated its belief that there was no need to have Cisneros testify to the same facts as Officer Martinez had. The government asked two additional questions and ended its examination. None of the defendants cross-examined Officer Cisneros.
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No. 09-11190 t o the jury the issue of whether the conspiracy involved more than five kilograms o f cocaine.6 The judge overruled the objection. The jury convicted Chavez, R e n d o n , and Sanchez of the charge listed in the indictment, conspiring to p o s s e s s with intent to distribute more than five kilograms of cocaine. Postv e r d ic t, the district court denied Sanchez's joint motion for acquittal and for new tr ia l. A t sentencing, Rendon and Chavez objected to the use of ten kilograms of c o c a in e to calculate their sentences, arguing that the amount attributed to each s h o u ld be less than five kilograms.7 The district court overruled their objections, s p e c ific a lly noting that the jury had found the amount of cocaine attributable to t h e conspiracy was more than five kilograms. Rendon additionally objected to t h e application of an adjustment to the base level of his offense of two levels due t o his role as a supervisor in the conspiracy under U.S.S.G. § 3B1.1(c). The d is t r ic t court also overruled this objection. The district court imposed a 121m o n th term of imprisonment as to Chavez, 135 months as to Sanchez, and 188 m o n th s as to Rendon. Appellants timely appealed. I I . ANALYSIS A. Sufficiency of the Evidence to Support the Cocaine Conspiracy C o n v ic tio n 1. Standard of Review

A motion for a judgment of acquittal is a challenge to the sufficiency of the e v id e n c e . United States v. Moreno, 185 F.3d 465, 470 (5th Cir. 1999). Appellants

The government and Rendon disagree as to whether Rendon properly objected to the district court's submission to the jury of the greater-than-five kilogram charge. In light of the ultimate disposition of this appeal, however, we need not address this issue. Sanchez did not object to the district court's calculation of his guidelines range, but contends that his motions for acquittal and a new trial sufficiently preserved the objection. The government disagrees, and argues Sanchez waived any error as to the quantity of cocaine for sentencing purposes. In light of the ultimate disposition of this appeal, however, we need not address this issue.
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No. 09-11190 m o v e d for a judgment of acquittal at the close of the government's case, renewed t h e motion at the close of all evidence, and Sanchez renewed the motion again a ft e r the jury verdict. Therefore, their challenge to the sufficiency of the evidence is preserved for de novo appellate review. See FED. R. CRIM. P. 29(a), (c)(1); U n ite d States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999). This court reviews t h e denial of a motion for new trial under an abuse of discretion standard. U n i te d States v. O'Keefe, 128 F.3d 885, 893 (5th Cir. 1997). "This standard is n e c e s s a r ily deferential to the trial court because we have only read the record, a n d have not seen the impact of witnesses on the jury or observed the demeanor o f the witnesses ourselves, as has the trial judge." Id. "Although grant or denial o f the motion is entrusted to the sound discretion of the judge, motions for new t r ia l are not favored, and are granted only with great caution." Id. at 897. A s to Appellants' related argument that the district court improperly s u b m it t e d to the jury the issue of whether the conspiracy involved more than fiv e kilograms of cocaine, "we must first decide whether the court's charge, as a w h o le , is a correct statement of the law and whether it clearly instructs jurors a s to the principles of law applicable to the factual issues confronting them". U n ite d States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003) (quotations o m i t te d ). The trial court's charge must not only be "legally accurate, but also fa c t u a lly supportable"; "the court may not instruct the jury on a charge that is n o t supported by evidence." Id. (quotations omitted). "In assessing whether the e v id e n c e sufficiently supports the district court's charge, we view the evidence a n d all reasonable inferences that may be drawn from the evidence in the light m o s t favorable to the Government. Any error is subject to harmless error r e v ie w ." Id. (quotations omitted). 2. Discussion

" T o prove that a defendant is guilty of conspiring to distribute illegal drugs u n d e r 21 U.S.C. § 846, the Government must prove beyond a reasonable doubt: 7

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No. 09-11190 (1 ) the existence of an agreement between two or more persons to violate n a r c o t ic s laws, (2) knowledge of the conspiracy and intent to join it, and (3) v olu n ta ry participation in the conspiracy." United States v. Turner, 319 F.3d 716, 7 2 1 (5th Cir. 2003). In this case, the indictment alleges a conspiracy involving t h e distribution of a quantity greater than five kilograms of cocaine, an amount t h a t triggers a statutory minimum penalty of ten-years imprisonment. T h e r e fo r e , a fourth element applies, and the government must prove the drug q u a n t it y alleged in the indictment beyond a reasonable doubt. Id. at 722. At trial, Appellants argued that the government did not prove the e x is t e n c e of an agreement between them sufficient for a conviction under § 846. O n appeal, however, Appellants do not challenge the government's proof as to t h e first three elements of § 846, but rather argue that the government failed to p r o v e that the conspiracy involved more than five kilograms of cocaine--put m o r e simply, Appellants do not dispute that they conspired to sell cocaine, but a r g u e they never agreed to sell more than five kilograms of cocaine. Having r e v ie w e d the record, we disagree, and hold that the evidence before the jury was s u ffic ie n t to support the verdict. As Chavez concedes in his brief, the evidence at trial showed Chavez and S a n c h e z each represented to the officers that they had an agreement between t h e m s e lv e s to purchase ten kilograms of cocaine from the officers. While A p p e lla n t s argue that, in fact, they had no such agreement, our review is " lim it e d to whether the jury's verdict was reasonable, not whether we believe it t o be correct." United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001). C h a v e z and Sanchez's representations to the officers support the jury's c o n c lu s io n .

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No. 09-11190 O ffic e r Martinez's testimony and transcripts of audio recordings 8 of c o n v e r s a t io n s between the Appellants and the undercover officers also support t h e jury's verdict. While Appellants make much of the fact that Officer Martinez is apparently the only person to definitively use the words "ten kilograms" on the a u d i o recordings, "[t]he agreement and the defendant[s'] knowledge and p a r tic ip a t io n in the conspiracy may be inferred from the development and c o llo c a tio n of circumstances." United States v. Hayes, 342 F.3d 385, 390 (5th Cir. 2 0 0 3 ) (quotations omitted). Appellants seize on portions of the audio transcript t h a t , in their view, demonstrate that they were not going to be able to c o n s u m m a t e a deal for ten kilograms. But the audio transcripts are not the only e v id e n c e of conversations between Appellants and the undercover

o ffic e r s -- in d e e d , several conversations were not recorded. Officer Martinez t e s t ifie d that the parties, specifically Chavez and Sanchez, agreed to a tenk ilo g r a m transaction. While Appellants advanced at trial that the $29,100 and t h e five vehicles offered in exchange for the cocaine are more consistent with t h e ir theory that the agreement was to buy an amount less than ten kilograms, O ffic e r Martinez testified that the vehicles were offered in good faith to reassure t h e officers that the ten-kilogram transaction would be completed. Appellants' intimation that they only intended to take possession of less t h a n five kilograms of cocaine on the day they were arrested is largely ir r e le v a n t9 -- a n inchoate crime such as conspiracy only requires the conspiracy t o be proven, "it is not necessary to show completion of the objective of that in c h o a t e crime." United States v. Rey, 641 F.2d 222, 224 n.6 (5th Cir. 1981 Unit

Transcripts were used because the conversations between the relevant parties were all conducted in Spanish. To the extent Appellants argue that they did not have the resources to purchase ten kilograms of cocaine, "factual impossibility does not preclude a conviction for conspiracy or attempt." United States v. Burke, 431 F.3d 883, 886 (5th Cir. 2005).
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No. 09-11190 A ). Moreover, even assuming arguendo that Appellants did only intend to p u r c h a s e less than five kilograms of cocaine on the day they were arrested, we h a v e held that piecemeal transactions of smaller amounts can be aggregated to d e fin e the total amount of drugs attributable to a conspiracy. See, e.g., Turner, 3 1 9 F.3d at 724 ("Because Jiminez dealt in one-kilogram quantities only, any a d d i t io n a l request by Robinson of Jiminez would have pushed the total drug q u a n t it y involved in the conspiracy over five kilograms. . . . the inference that m o r e than five kilograms were involved is reasonable."). Thus, while Rendon in p a r t ic u la r points to portions of the audio transcripts suggesting that he only in t e n d e d to purchase two kilograms of cocaine, Officer Martinez testified that R e n d o n was to purchase two kilograms on a specific day, not only two kilograms o f cocaine in total. Viewing the evidence in the light most favorable to the G o v e r n m e n t , the inference that more than five kilograms were involved in the c o n s p ir a c y is reasonable. As such, neither the district court's denial of A p p e lla n t s ' motions for acquittal nor Sanchez's motion for new trial was in error. B. Attributing More Than Five Kilograms of Cocaine for Sentencing P u rp oses " A district court's findings about the quantity of drugs implicated by the c r im e are factual findings reviewed under the clearly erroneous standard." U n ite d States v. Young, 981 F.2d 180, 185 (5th Cir. 1992) (quotations omitted). "Such fact findings are not clearly erroneous if they are plausible in light of the r e c o r d as a whole." Turner, 319 F.3d at 724 (quotations omitted). "The s e n t e n c in g judge is entitled to find by a preponderance of the evidence all the fa c t s relevant to the determination of a Guideline sentencing range." United S ta te s v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Appellants acknowledge that t h e ir argument that the district court clearly erred in determining that their o ffe n s e s involved ten kilograms of cocaine turns on the success of the failed s u ffic ie n c y of the evidence argument advanced above. For the same reasons

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No. 09-11190 d is c u s s e d above, we hold that the district court did not clearly err in attributing t e n kilograms to each appellant.1 0 C. Applying the Role Adjustment to Rendon " A district court's interpretation and application of the [Sentencing] G u id e lin e s is reviewed de novo and its factual determinations are reviewed for c le a r error." United States v. Rhine, 583 F.3d 878, 884 (5th Cir. 2009). The d is t r ic t court applied a two-level increase to Rendon's base level of 32 based on h is role in the offense under § 3B1.1(c) of the Sentencing Guidelines. Under that s e c t io n , "[b]ased on the defendant's role in the offense, increase the offense level a s follows: . . . [i]f the defendant was an organizer, leader, manager, or s u p e r v is o r in any criminal activity [not involving five or more participants or o t h e r w is e extensive] increase by 2 levels." U.S. SENTENCING GUIDELINES

M A N U A L § 3B1.1(c). The presentence investigation report (PSR) stated that R e n d o n "directed the activities of Sanchez," and that, therefore, a two-level in c r e a s e pursuant to § 3B1.1(c) was warranted. The PSR, mirroring the t e s t im o n y offered at trial, found that Sanchez "stated he worked for an in d iv id u a l in Dallas, later identified as Rendon-Alvarado, who was interested in p u r c h a s in g 10 kilograms of cocaine" and that Sanchez wanted to "purchase 1 k ilo g r a m of cocaine to show his boss." Furthermore, the PSR found that " S a n c h e z stated [to Officer Martinez that] his boss had the money at the city p a r k . . . nearby" and that Rendon met Sanchez and Officer Martinez at the park a short time later. Rendon objected to the PSR and argued that the evidence did n o t show he directed Sanchez's activities. At the sentencing hearing, the district

We note that, for sentencing purposes, there is no difference between a finding that an offense involved five or ten kilograms of cocaine. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(4) (explaining that if the offense involved "at least 5 KG but less than 15 KG of Cocaine," the base offense level is 32).

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No. 09-11190 c o u r t overruled Rendon's objection and applied the two-level increase "based on t h e facts recited in the [PSR]." T h e district court did not clearly err when factually determining that S a n c h e z was acting at Rendon's direction. "To qualify for an adjustment under t h is section, the defendant must have been the organizer, leader, manager, or s u p e r v is o r of one or more other participants." U.S. SENTENCING GUIDELINES M ANUAL § 3B1.1 cmt. n.2 (2009). In light of the district court's factual findings, w e hold that the district court did not err in applying a two-level increase to R e n d o n 's base offense level based on his role in the conspiracy.1 1 D. T h e District Court's Failure to Instruct the Jury on Mens Rea for t h e Drug Quantity Alleged in the Indictment F in a lly , Chavez argues that the district court erred by refusing to give his r e q u e s te d jury instruction that required the government to prove mens rea as t o the drug quantity alleged in the indictment. As Chavez acknowledges, this a r g u m e n t is foreclosed by United States v. Gamez-Gonzalez, 319 F.3d 695 (5th C ir . 2003). Chavez argues that the Supreme Court's recent decision in F lo r e s -F ig u e r o a v. United States, ___ U.S. ___, 129 S. Ct. 1886 (2009), strips G a m e z -G o n z a le z of its binding force, but concedes that we have rejected this a r g u m e n t . See United States v. Betancourt, 586 F.3d 303, 309 (5th Cir. 2009) (" F lores-F ig u ero a did not overturn Gamez-Gonzalez, and the Government did not n e e d to prove beyond a reasonable doubt that [Appellant] knew the type and q u a n t it y of drugs . . . ."). Accordingly, Chavez's argument is foreclosed by court p r e c e d e n t and we need not discuss it further.

At Rendon's sentencing hearing, an agent from the Drug Enforcement Administration testified that Rendon was identified by an unrelated investigation as being a member of a Dallas-based cell of La Familia, a Michoacan, Mexico, based drug cartel, and was known as "General." We note that the district court applied the role-based adjustment before this testimony.

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I I I . CONCLUSION F o r the foregoing reasons, we conclude that there was sufficient evidence t o show that Appellants were involved in a conspiracy to distribute more than fiv e kilograms of cocaine and that the district court did not clearly err in a t t r ib u t in g ten kilograms of cocaine to each Appellant for purposes of s e n te n c in g . Nor did the district court clearly err in applying a two-level increase t o Rendon's base offense level based upon his role in the offense. Finally, the d is t r ic t court did not err in declining to give Chavez's requested jury instruction a s to mens rea. We therefore AFFIRM.

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