USA v. Juan Ortiz

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USA v. Juan Ortiz

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Case: 09-40394

Document: 00511190339

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Date Filed: 07/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 30, 2010 N o . 09-40394 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J U A N ANTONIO ORTIZ, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e WIENER, PRADO, and SOUTHWICK, Circuit Judges. L e s lie H. Southwick, Circuit Judge. J u a n Antonio Ortiz pled guilty to possession with intent to distribute more than 100 kilograms of marijuana. On appeal, Ortiz claims the district court e r r e d in calculating his total drug quantity amount. We agree. We VACATE O r t iz 's sentence and REMAND for resentencing. FACTS T h e government's undisputed proffer at Ortiz's rearraignment is the s o u r c e for the following factual summary. In May 2007, Immigration and

C u s t o m s Enforcement ("ICE") agents were conducting a drug investigation in B r o w n s v ille , Texas. On May 7, an ICE undercover operative provided Juan M ig u e l Pineda with a Chevrolet Suburban to use for transporting drugs. That

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No. 09-40394 n ig h t , agents were watching as Juan Pineda's cousin, Fernando Pineda, Jr., d r o v e the Suburban to a complex of condominiums within the Brownsville C o u n t r y Club. Twenty minutes later, the agents followed the Suburban to a g a s o lin e station. There, Fernando met Juan and switched vehicles with him. Then both men left in separate vehicles and drove north toward Harlingen. Within ten minutes, both were stopped for traffic violations. Agents discovered 2 1 4 .6 4 kilograms of marijuana inside the Suburban. The Pinedas told the a g e n t s that they had loaded the marijuana from a condominium garage at the c o u n t r y club. Agents located the condominium. It was leased to Cristal PulidoS o t e lo . They noticed a strong odor of marijuana. A narcotics dog noticed, too, a n d alerted at the garage door. Agents knocked, but no one responded. A g e n t s returned to the condominium the next day. They arrested Ortiz, P u lid o -S o t e lo , and Enedelia Cuellar. Approximately 270 kilograms of marijuana w e r e in plain view in the kitchen, another 466 kilograms were in closets within t h e garage, and 550 grams of cocaine were inside a suitcase in the first bedroom. Ortiz admitted that he was aware of the marijuana in the house and that h e had provided the Pineda cousins with the marijuana discovered in the S u b u r b a n . Cuellar gave a statement claiming ownership of the suitcase in w h ic h the cocaine was found. She later claimed a friend gave her the suitcase t h e previous day and was supposed to pick it up later. Ortiz was charged with drug possession and conspiracy offenses in a sixc o u n t , multi-defendant indictment. On September 5, 2007, Ortiz pled guilty to p o s s e s s io n with intent to distribute more than 100 kilograms of marijuana. Ortiz did not dispute anything in the government's fact proffer and stated that h e had nothing else to add. His counsel, though, said that Ortiz would challenge a n y inclusion of the cocaine as part of his relevant conduct at sentencing.

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No. 09-40394 A lt h o u g h his conviction involved only 100 kilograms, his Pre-sentence R e p o r t ("PSR") determined Ortiz to be responsible for 1,063.59 kilograms of m a r iju a n a and its equivalent. See U.S.S.G. § 2D1.1 cmt. 10 (explaining drug e q u iv a le n c y ). The total included the 738.95 kilograms of marijuana seized from t h e house, the 214.64 kilograms of marijuana seized from the Suburban, and the 5 5 0 grams of cocaine, which, for sentencing purposes, has an equivalent value o f 110 kilograms of marijuana. Id. § 2D1.1 cmt. 10(E). This drug quantity c o r r e s p o n d e d with a base offense level of thirty-two. Id. § 2D1.1(c)(4) (more than 1 ,0 0 0 kilograms but less than 3,000 kilograms of marijuana). The probation officer recommended a two-level enhancement due to Ortiz's role as an "organizer, leader, manager, or supervisor," but a three-level reduction fo r acceptance of responsibility. The total offense level of 31, combined with a c r im in a l history category of V, resulted in an advisory Guidelines range of 168 t o 210 months. Ortiz raised two objections to the PSR that continue to be a s s e r t e d here. F ir s t , he argued that he should not be held accountable for the cocaine d is c o v e r e d in Cuellar's suitcase. This objection was overruled. S e c o n d , he argued that the drug quantity calculation should reflect the w e ig h t of the drugs alone and not the gross weight of the drugs and packaging. After hearing testimony from the probation officer and the ICE case agent, the d is t r ic t court overruled Ortiz's objection as to the marijuana. The basis for this d e c is io n was that no net weight measurement of the marijuana had been taken b e fo r e it was destroyed, and there was no judicial consensus on what percentage b y which the gross weight should be reduced in order to get the correct net w e ig h t . Thus, the district court found that Ortiz was accountable for the gross w e ig h t of the marijuana and packaging, which amounted to 953.59 kilograms.

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No. 09-40394 A s to the cocaine, though, a net weight measurement did exist. The d is t r ic t court sustained Ortiz's objection with respect to the cocaine and used the n e t weight of 500.6 grams rather than the gross weight of 550 grams for the drug q u a n t it y calculation. This reduction of approximately 50 grams equated to a 10 k ilo g r a m reduction in marijuana equivalency. See id. § 2D1.1 cmt. 10(E). As a result of the objection, Ortiz was now accountable for 1,053.59 k ilo g r a m s . The change had no effect on the Guidelines calculation, as the new q u a n t it y left him within the 1,000 to 3,000 kilograms range. His Guideline r a n g e of 168 to 210 months remained unchanged. O r t iz was sentenced to 120 months in prison, which was the sentence r e q u e s te d by the government. The written judgment, though, stated that 120 m o n th s was the mandatory minimum sentence. On appeal, Ortiz challenges the calculation of his sentence and the s t a t e m e n t that 120 months was the mandatory minimum sentence. D IS C U S S IO N T h e pro se notice of appeal was untimely. The government notes the u n t im e lin e s s but does not object to considering the merits. The time limit for a p p e a l can be waived. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2 0 0 7 ). We will review the merits of Ortiz's claims. S e n t e n c e s both inside and outside the Guidelines range are reviewed for a b u s e of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). First, the c o u r t must determine whether the district court committed any significant p r o c e d u r a l errors, such as improperly calculating the Guidelines range. Id. If t h e sentence is procedurally sound, the court considers the substantive r e a s o n a b le n e s s of the sentence imposed. Id. The district court's application of

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No. 09-40394 t h e Guidelines is reviewed de novo, and factual findings are reviewed for clear e r r o r . United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008). I . Cocaine Attributed to Ortiz as Relevant Conduct W e need to expand on the discussion of the facts in order to assess the v a lid it y of attributing the cocaine to Ortiz as relevant conduct for sentencing. J u a n Ortiz lived with his wife and children in Matamoros, Mexico. Ortiz p a id the rent on the condominium at the Brownsville Country Club where the d r u g s were found. Living there were Cristal Pulido-Sotelo, with whom Ortiz was h a v in g an affair, and her young daughter. Ortiz used the condominium as a s t a s h house for marijuana and occasionally stayed overnight. E n e d e lia Cuellar lived in Matamoros. She was friends with Pulido-Sotelo a n d often stayed during weekends at the condominium so she could enjoy the B r o w n s v ille nightlife. Cuellar usually shared the first bedroom with PulidoS o t e lo while Pulido-Sotelo's daughter slept in the second bedroom. H o w the suitcase containing cocaine came to be at the condominium is not c o n c lu s iv e ly shown. Among the versions is one in the PSR. It states that on M a y 6, 2007, Cuellar spent the night with an unidentified male friend in B r o w n s v i l l e . The following morning, Cuellar went to Matamoros to ask her m o t h e r for some money. Soon after she returned to Brownsville, Cuellar's male fr ie n d contacted her to ask if she was going to pick up her suitcase. Cuellar a r r a n g e d for the two of them to meet at the port of entry so that she could r e t r ie v e it. After getting her suitcase back, Cuellar was picked up by "Shelly," a female she had only known for a short time. That evening, which was the n ig h t the Pinedas were arrested, Cuellar arrived at Pulido-Sotelo's condominium w it h the suitcase. She then left to visit various Brownsville nightclubs.

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No. 09-40394 O t h e r stories about the suitcase were given during debriefing sessions. None of them directly connect the suitcase or the cocaine to Ortiz. W h ile Cuellar was out, ICE agents came to the condominium and detected t h e odor of marijuana. When Cuellar returned in the early morning hours, she n o tic e d the marijuana in the kitchen. Since Ortiz and Pulido-Sotelo were in the fir s t bedroom where Cuellar usually slept, Cuellar slept in the second bedroom w it h Pulido-Sotelo's daughter. O n May 8, ICE agents returned to the condominium and "knocked and a n n o u n c e d " their presence. However, after seeing a female approach the door a n d then rush back into the condominium, the agents entered without a w a r r a n t. No challenge to the entry and search is made on appeal. Once inside, t h e agents saw marijuana in plain view in the kitchen. On that basis, they a r r e s t e d Ortiz, Pulido-Sotelo, and Cuellar. A search of the condominium led to t h e discovery of more marijuana in the garage as well as the cocaine under w o m e n 's clothing in the suitcase. The suitcase was in the first bedroom where O r t iz and Pulido-Sotelo had spent the night. It was also where the two were lo c a t e d when the agents entered the condominium. Following his arrest, Ortiz admitted being a regular cocaine user and that h e had used some on the morning he was arrested. The cocaine in the suitcase w a s the only cocaine discovered in the apartment. Ortiz has always denied h a v in g any knowledge about the cocaine in the suitcase. A t the sentencing hearing, defense counsel argued that the cocaine should n o t be attributed to Ortiz as relevant conduct. Counsel claimed that Cuellar put t h e suitcase in the first bedroom when she arrived at the condominium, because s h e planned to sleep in that room as usual when she returned from the

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No. 09-40394 n ig h t c lu b s . Ortiz's connection with the cocaine was only that it happened to be in the room in which he spent the night. In support of this argument that there was no connection between Ortiz a n d the cocaine, the defense counsel called ICE case agent Amador Zapata and p r o b a t io n officer Enrique Guerra to testify. Zapata provided background

in fo r m a t io n about the discovery of the cocaine. Ortiz's counsel then asked w h e t h e r there was any evidence tying Ortiz to the cocaine other than the fact t h a t he rented the condominium with Pulido-Sotelo. Zapata responded: N o , I have even submitted the cocaine to be fingerprinted. I s u b m it t e d all individuals' fingerprints to be compared to any s u c c e s s fu l prints taken off the cocaine, and there were no successful p r in t s removed from the cocaine wrappings. Therefore, . . . we w e r e n 't able to fully identify in that manner who might have t o u c h e d the cocaine. But there's nothing to tell me that any one of t h o s e three -- or all three could have put the cocaine in there. I h a v e no idea. O n cross-examination, Zapata explained that the suitcase was three to fo u r feet away from the bed where Ortiz and Pulido-Sotelo had spent the night. T h e only reason he associated the cocaine with Cuellar was that it was found in h e r suitcase under women's clothing. Zapata also explained that he believed all t h r e e individuals lied during their debriefing sessions and that it was difficult t o determine the truth. For example, Zapata was suspicious of Pulido-Sotelo's s t a t e m e n t s that Cuellar imported the cocaine from Mexico. He thought that to b e unlikely because importers rarely hold on to drugs once they cross the border. Zapata said ICE also had no prior intelligence of Cuellar being involved in c o c a in e trafficking. In response to the government's questions, Zapata explained t h a t it was possible Ortiz put the cocaine in the suitcase when the police entered t h e condominium in an effort to distance himself from it.

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No. 09-40394 D e fe n s e counsel also called probation officer Enrique Guerro. The officer explained why he included the cocaine as part of Ortiz's relevant conduct: W e held that Mr. Ortiz's relevant conduct as far as him p r o v id in g Ms. Pulido-Sotelo the apartment, paid for her rent, gave h e r an additional allowance per week, stored the drugs in said place, t h e drugs that were seized from the Suburban were loaded in that p a r t ic u la r place, we felt that everything should be accountable to h im . T h e cocaine that was found inside the red suitcase, we felt t h a t since he rented the apartment, he was paying for the rent, a n y th in g that was found within the house he should be held a c c o u n t a b le for. T h e district court found by a preponderance of the evidence that the c o c a in e was properly attributable to Ortiz as relevant conduct. The district court n o te d that Ortiz was in charge of the drug trafficking being operated out of the c o n d o m in iu m , that he had previous drug trafficking convictions, and that he was a d m it t e d ly a frequent user of cocaine. In contrast, Pulido-Sotelo and Cuellar h a d no criminal histories and had only admitted using cocaine on four occasions a n d on one occasion, respectively. Furthermore, the district court explained that it found the story of how Cuellar claims to have received the suitcase to be very u n b e lie v a b le . The district court noted that a more likely scenario was that C u e l l a r brought the drugs to the condominium at Ortiz's instruction and that " O r t iz , being more experienced, knew that by placing the cocaine in that suitcase t h a t he could back away from it and . . . leave the defendant Cuellar holding the b a g for all practical purposes." The marijuana equivalent of the cocaine was included in Ortiz's total drug q u a n t it y for the purposes of calculating his base offense level. This added 100 k ilo g r a m s of marijuana to Ortiz's total. N o w that we understand why Ortiz was held responsible for the cocaine, w e examine the legal basis for doing so. When calculating a defendant's base 8

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No. 09-40394 o ffe n s e level in a drug case, the district court may consider a defendant's r e le v a n t conduct. United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir. 2 0 0 7 ). Relevant conduct is defined as "all acts and omissions" that were either (1 ) part of a "common scheme or plan" or (2) part of the "same course of conduct" a s the offense of conviction. U.S.S.G. § 1B1.3(a)(2). Factual findings regarding r e le v a n t conduct are reviewed for clear error. United States v. Rhine, 583 F.3d 8 7 8 , 885 (5th Cir. 2009). These findings are not clearly erroneous as long as they a r e "plausible in light of the record as a whole." Id. We examine each factor. (1 ) Common Scheme or Plan

A n unadjudicated offense may be part of a "common scheme or plan" if it is "substantially connected to [the offense of conviction] by at least one common fa c t o r , such as common victims, common accomplices, common purpose, or s im ila r modus operandi." Id. at 885 (quoting U.S.S.G. § 1B1.3 cmt. n.9(A)) (a lt e r a t io n s in original). We broadly define what constitutes a "common scheme o r plan" in a drug distribution case. Id. However, the analysis cannot be too b r o a d , otherwise "almost any uncharged criminal activity can be painted as s im ila r in at least one respect to the charged criminal conduct." Id. at 889 (q u o tin g United States v. Mullins, 971 F.2d 1138, 1145 (4th Cir. 1992)). There are no common victims, and the modus operandi of the two offenses a r e not similar. Therefore, we examine whether it is plausible in light of the r e c o r d as a whole for the district court to have found that there were common a c c o m p lic e s or purposes. O r t iz argues that Pulido-Sotelo, the Pineda cousins, his marijuana s u p p lie r , and the person who was to receive the marijuana were his accomplices, a n d that there is no evidence any of these individuals were also involved in the c o c a in e offense. Rather, he argues the evidence shows that the only known p a r tic ip a n t s in the cocaine offense were Cuellar, her unidentified male friend, 9

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No. 09-40394 a n d the "Shelly" who picked her up after the suitcase had been delivered at the b o r d e r to Cuellar. T h e government relies on circumstantial evidence suggesting that Cuellar m a y have been an accomplice in both offenses. During at least one of the d e b r ie fin g sessions, one of the Pinedas told ICE agents that three women helped m o v e the marijuana from the condominium garage to the Suburban. PulidoS o t e lo was later identified as one of these women. Although no one ever

id e n tifie d them, the government theorizes that the other two women may have b e e n Cuellar and Pulido-Sotelo's young daughter. This argument presents only s p e c u la t io n that Cuellar may have been involved in both offenses. The district c o u r t did not find that Cuellar was. In addition, the general goal of selling drugs for a profit is insufficient to s a t is fy the common purpose factor. We have vacated a sentence where the only fa c t o r indicating a common scheme or plan was that the two offenses shared the g o a l of importing drugs into the United States. United States v. Wall, 180 F.3d 641, 645 (5th Cir. 1999). Ortiz's case is similar in that the only factor suggesting t h e existence of a common scheme or plan is the very general goal of selling d r u g s for profit. It is also error to define relevant conduct too broadly. See R h in e , 583 F.3d at 889. Such overbreadth exists when concluding that the m a r iju a n a and cocaine offenses were part of a common scheme. (2 ) S a m e Course of Conduct

A n unadjudicated offense that is not part of a common scheme or plan with t h e offense of conviction may still be considered relevant conduct if the offenses a r e part of the "same course of conduct." U.S.S.G. § 1B1.3 cmt. 9(B).

Unadjudicated offenses can be considered part of the same course of conduct "if t h e y are sufficiently connected or related to [the offense of conviction] as to

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No. 09-40394 w a r r a n t the conclusion that they are part of a single episode, spree, or ongoing s e r ie s of offenses." Id. T h e Guidelines identify factors that help in this determination: [1] the degree of similarity of the offenses, [2] the regularity ( r e p e t it io n s ) of the offense, and [3] the time interval between the o ffe n s e s . When one of the above factors is absent, a stronger p r e s e n c e of at least one of the other factors is required. Id . Two offenses may be sufficiently similar to be part of the same course of c o n d u c t if "there are distinctive similarities between the offense of conviction a n d the remote conduct that signal that they are part of a single course of c o n d u c t rather than isolated, unrelated events that happen only to be similar in k in d ." Wall, 180 F.3d at 646(quoting United States v. Maxwell, 34 F.3d 1006, 1 0 1 1 (11th Cir. 1994)). T h e r e are no such distinctive similarities here. Other than the fact that t h e cocaine was discovered in the same condominium as the marijuana, there is n o evidence that the marijuana and cocaine offenses are similar. There is no e v id e n c e that there were any common accomplices, suppliers, or buyers between t h e two offenses. In addition, the marijuana offense involved massive quantities o f the drug, much of it in plain view, throughout the condominium. In contrast, t h e relatively small amount of cocaine was located in one bag hidden inside C u e lla r 's suitcase. The fact that both marijuana and cocaine are illegal drugs is not enough for us to find that they arise from the same course of conduct. D e c id in g the "regularity" of the offense is a search for a "pattern of similar u n la w fu l conduct directly linking the purported relevant conduct and the offense o f conviction." Rhine, 583 F.3d at 889-90. Ortiz has two previous convictions for d r u g offenses, both of which involved the transportation or receipt of fairly large q u a n t it ie s of marijuana. The regular conduct that such proof supports is that 11

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No. 09-40394 O r t iz is involved in marijuana trafficking. It is not proof of regular conduct in v o lv in g other drugs. There is no evidence that cocaine importing, or perhaps e v e n importing whatever the supply, the demand, and the law enforcement risks m a k e most advisable, was Ortiz's pattern. Instead, we have a criminal who r e g u la r ly engages in a particular kind of crime. The marijuana and cocaine offenses occurred temporally and physically t o g e t h e r . The condominium was being used as a drug stash house. There was s t r o n g evidence that Ortiz was in charge of the condominium. Yet in this drug d is t r ib u t io n case, when the fact that two different drugs were in the same place a t the same time is all that is offered to prove two offenses are part of the same c o u r s e of conduct, and when the other evidence does not suggest any connection a t all, a "substantial connection" has not been shown to be plausible. The evidence revealed a significant marijuana trafficking operation for w h ic h Ortiz had central responsibility. It also revealed a separately packaged, s e p a r a t e ly delivered quantity of cocaine in a suitcase, which the direct evidence c o n n e c t e d to someone else. Only speculation based primarily on the proximity o f the cocaine's container connected the cocaine to Ortiz. This is not evidence t h a t the cocaine and the marijuana were joined in an "episode, spree, or ongoing s e r ie s of offenses." U.S.S.G. § 1B1.3 cmt. 9(B). The district court erred by a t t r ib u t in g the cocaine to Ortiz as relevant conduct. By considering the cocaine to be part of the relevant conduct, Ortiz was h e ld accountable for over 1,000 kilograms of marijuana and its equivalent. R e m o v in g the cocaine from the calculation results in a total drug quantity of 9 5 3 .5 9 kilograms of marijuana. This revised total means that Ortiz is now a c c o u n t a b le for between 700 and 1,000 kilograms of marijuana rather than being a c c o u n t a b le for between 1,000 and 3,000 kilograms. Accordingly, Ortiz's revised

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No. 09-40394 b a s e offense level will be 30 rather than 32. Id. § 2D1.1(c)(5). This lower a m o u n t changes the sentencing range. Consequently, we vacate the sentence. I I . Use of Gross Weight of Marijuana O r t iz also argues that the district court erred by using the gross weight, r a t h e r than the net weight, of the marijuana when calculating his total drug q u a n t it y . The gross weight was shown to be 953.59 kilograms. We have been given various estimates by the parties as to how much of a r e d u c t io n in the quantity of marijuana would occur by using different estimates o f the weight of the packaging. None of those would remove the quantity from t h e newly established 700 to 1,000 kilogram range. Because of this reduction r e s u lt in g from removal of the cocaine, any possible error in the use of the gross w e ig h t of the marijuana would be harmless. We decline to address possible error in how the gross versus net weight issue was resolved. One other point needs making. The government concedes that 60 months, n o t 120 months, was the mandatory minimum sentence. 21 U.S.C. §

8 4 1 (b )(1 )(B ). Any new sentence needs to be entered with that in mind. W e VACATE Ortiz's sentence and REMAND for resentencing.

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