USA v. Joe Gonzalez
UNPUBLISHED OPINION FILED. [14-41336 Affirmed ] Judge: TMR , Judge: JES , Judge: CH Mandate pull date is 09/03/2015 for Appellant Joe Gonzalez [14-41336]
Date Filed: 08/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
August 13, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-1641-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Joe Gonzalez appeals his jury trial convictions and concurrent 72-month
sentences for conspiracy to possess with intent to deliver 100 kilograms or more
of marijuana, see 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), 846, and for possession
with intent to deliver 100 kilograms or more of marijuana, see §§ 841(a)(1) and
(b)(1)(B), 846; 18 U.S.C. § 2. We affirm.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 08/13/2015
We reject Gonzalez’s claim that the district court plainly erred by failing
to instruct the jury that an agreement with a government agent cannot form
the basis for a conspiracy conviction. See Sears v. United States, 343 F.2d 139,
142 (5th Cir. 1975). Even if a Sears instruction may have been appropriate,
we pretermit the question whether the failure to give it was error. See United
States v. Delgado, 672 F.3d 320, 342 & n.28 (5th Cir. 2012) (en banc); United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). If there was error,
Gonzalez has not shown that it was “reversible plain error.” Delgado, 672 F.3d
Gonzalez “never advanced the argument that [he] conspired only with a
government agent.” Delgado, 672 F.3d at 343. Instead, his argument focused
on discrediting the Government’s confidential informant, someone the defense
painted as an untrustworthy felon eager to be remunerated by the Government
for producing a drug trafficking conviction. Gonzalez’s theory of defense was
that there was no conspiracy at all—that there was only the informant placing
and planting ideas in law enforcement agents’ heads. “Thus, the lack of a Sears
instruction did not impede [Gonzalez’s] defense” and provides no “grounds for
reversal.” Delgado, 672 F.3d at 343 (internal quotation marks and citation
We reject also Gonzalez’s contention that the district court abused its
discretion by propounding a deliberate ignorance instruction.
States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007). Any error in giving such
an instruction is harmless if substantial evidence showing actual knowledge
was adduced at trial, as happened in Gonzalez’s case. See United States v.
McElwee, 646 F.3d 328, 341 (5th Cir. 2011).
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