USA v. Ruben Gauna

Filing

OPINION filed : Gauna's sentence is AFFIRMED. Decision not for publication pursuant to local rule 206. Cornelia G. Kennedy, Boyce F. Martin , Jr., and Jane Branstetter Stranch (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0631n.06
FILED
No. 10-6193

Jun 18, 2012

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEONARD GREEN, Clerk

UNITED STATES,
Plaintiff-Appellee,
v.
RUBEN GAUNA,
Defendant-Appellant.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE

OPINION

Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Defendant Ruben Gauna appeals the sentence
imposed by the district court following his guilty plea to conspiracy to possess marijuana with the
intent to distribute, in violation of 18 U.S.C. §§ 812, 841(a)(1), and 846. Following a sentencing
hearing, the district court attributed twenty-eight pounds of marijuana and three ounces of crack
cocaine to Gauna and sentenced him to sixty months imprisonment. Gauna asserts that the district
court clearly erred in calculating the amounts of marijuana and crack cocaine attributable to him and
by attributing drug amounts to him based on his conspiracy involvement without making
particularized findings regarding the scope of that conspiracy. Gauna also challenges the district
court’s application of the obstruction of justice enhancement. For the following reasons, we
AFFIRM Gauna’s sentence.

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I. BACKGROUND
This case stems from the murder of Tennessee State Trooper Calvin Jenks, who was shot and
killed by Alejandro Gauna1 on January 6, 2007, after Trooper Jenks stopped the car in which
Alejandro was riding. Alejandro purchased three pounds of marijuana from his brother Ruben
Gauna and traveled from Austin, Texas to Tennessee in a rented Toyota with a coconspirator.
Alejandro and the coconspirator were stopped by Trooper Jenks in Tipton County, Tennessee.
Investigators later learned Alejandro and the driver of the car were involved in drug trafficking with
Ruben Gauna and others.
On April 28, 2009, a federal grand jury returned an indictment charging Ruben Gauna and
three codefendants with conspiracy to possess with intent to distribute marijuana, in violation of 18
U.S.C. §§ 812, 841(a)(1), and 846. On December 11, 2009, Gauna pled guilty to this charge in a
written plea agreement. In exchange for the plea, the Government agreed to recommend a threelevel reduction for acceptance of responsibility.
Gauna’s Presentence Report (“PSR”) set his base offense level at 26, adding a two-level
enhancement for possession of a weapon and a two-level enhancement for obstruction of justice,
thereby yielding a total offense level of 30. The Government subsequently recommended that certain
drug amounts described in the PSR not be included in Gauna’s relevant conduct and, in a Second
Addendum to the PSR, his base offense level was reduced to 16, yielding a total offense level of 20.
A Third Addendum to the PSR included a three-level reduction for acceptance of responsibility,

1

Alejandro Gauna and the Defendant-Appellant Ruben Gauna are brothers. For clarity, we
refer to Alejandro Gauna as “Alejandro” and Ruben Gauna as “Gauna” where their full names are
not used.

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reducing the total offense level to 17. Finally, a Fourth Addendum to the PSR was filed after the
Government supplied the Probation Office with additional information from a witness willing to
testify that she observed Gauna in conspiracy to traffic three ounces of crack cocaine. Gauna then
had a base offense level of 32, a total offense level of 31, and a criminal history category of V, which
yielded an advisory guideline range of 168 to 210 months, restricted by a statutory maximum of 60
months.
At a sentencing hearing on September 22, 2010, the district court heard testimony from three
Government witnesses. Tennessee Bureau of Investigation Special Agent David Harmon testified
regarding a January 2007 sworn statement by Kimberly Young, the girlfriend of coconspirator
Emilio Fernandez. Young said she saw a trash bag in which she counted twenty-eight bricks of
marijuana that was delivered to Ruben Gauna at the trailer where the Gauna brothers, Young, and
Fernandez lived. Harmon testified officers found a trash bag that contained marijuana residue in a
garbage can inside the residence.
The second Government witness, Jennifer Hernandez, testified that Gauna’s brother,
Alejandro, lived with her for six months to one year prior to 2006, during which time she
occasionally purchased marijuana from Alejandro. She testified that Alejandro only became a “big
time seller” when he moved out—about the time Ruben Gauna was released from jail and moved
in with Alejandro. Hernandez testified that she purchased marijuana at least three times a week from
Alejandro in 2006; that Ruben Gauna was with Alejandro most of those times and gave her
marijuana on a few occasions; and that she saw crack cocaine at the Gaunas’ residence “just about
every time” she went to buy marijuana there. On one occasion when the Gaunas were both present,

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Hernandez observed “at least like two ounces, two and a half ounces” of crack cocaine packaged for
distribution.
Finally, codefendant Emilio Fernandez testified that he met Gauna’s brother, Alejandro, in
October 2006; that he purchased crack cocaine from Alejandro once or twice a day; and that on at
least two occasions, he purchased crack cocaine from Gauna. On one of these occasions, Fernandez
testified that Gauna “fronted” him crack cocaine supplied by Alejandro and Guana told Fernandez
that he had just gotten out of jail and he would go back if necessary because he would kill Fernandez
if Fernandez didn’t pay his brother back the money. Fernandez testified Gauna was with Alejandro
about half of the times that Fernandez purchased crack cocaine from Alejandro.
In December 2006, Alejandro and Ruben Gauna moved in with Fernandez and Fernandez’s
girlfriend, Kimberly Young, in their trailer home. The Gauna brothers kept a safe in an empty room
in the trailer. Both Alejandro and Ruben Gauna used the safe. Fernandez testified he observed bags
of crack and bags of powder cocaine in the safe, totaling over an ounce of crack cocaine during the
time the Gaunas lived there. Fernandez testified it was obvious to him that Ruben Gauna was
involved in drug distribution with Alejandro.
Fernandez testified that after Alejandro shot and killed Trooper Jenks, Ruben Gauna
repeatedly called Fernandez. Over several calls, Gauna warned him “something had happened,”
police would be coming to the trailer home, and he should get out of the house. Gauna instructed
Fernandez not to tell police that the Gaunas had been staying at the trailer and to report falsely that
the car Alejandro was driving had been stolen.

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At the close of all evidence, and after hearing from Gauna, his attorney, and the Government,
the district court attributed twenty-eight pounds (estimating one pound per bundle) of marijuana and
three ounces of crack cocaine to Gauna. The district court confirmed this yielded a Guideline Range
of 168 to 210 months, but sentenced Gauna to the statutory maximum of 60 months’ imprisonment.
II. DISCUSSION
A.

Calculation of Drugs Attributable to Gauna
1.

Standard of Review

This Court reviews a sentencing court’s determination of the quantity of drugs attributable
to a defendant for clear error. United States v. Jackson, 470 F.3d 299, 310 (6th Cir. 2006). “[A]
finding is clearly erroneous when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been committed.”
United States v. Vasquez, 352 F.3d 1067, 1070 (6th Cir. 2003) (alteration in original) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). “A reviewing court may not reverse
a finding of the trier of fact merely because it would have decided the matter differently.” Id. at
1070-71. Rather, “[i]f the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently.” Id. (alteration in original)
(quoting Anderson, 470 U.S. at 573-74).
“The government must prove the amount to be attributed to a defendant by a preponderance
of the evidence.” United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004) (quoting United
States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000)). “A reviewing bench should sustain a

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sentencing court’s factual finding if it was supported by some minimum indicium of reliability
beyond mere allegation.” Hernandez, 227 F.3d at 699 (citations and internal quotation marks
omitted). If “the exact amount of drugs involved is uncertain, the court may make an estimate
supported by competent evidence.” United States v. Keszthelyi, 308 F.3d 557, 576 (6th Cir. 2002)
(citation omitted). District courts may approximate the quantity of drugs for sentencing purposes
based upon circumstantial evidence as long as they err on the side of caution. See United States v.
Elder, 90 F.3d 1110, 1127 (6th Cir. 1996).
2.

Marijuana

Gauna argues the district court erred in attributing twenty-eight pounds of marijuana to him
because the court failed to credit Fernandez’s PSR statement that he only saw eight bundles of
marijuana. At the sentencing hearing, Special Agent Harmon testified that Young told him she
observed twenty-eight bundles of marijuana delivered to Gauna and that she counted those bundles.
Gauna points to Fernandez’s PSR statement that he observed Rivera Arvizu, a supplier of marijuana
to Ruben Gauna, come to their trailer residence in early January 2007 and bring eight bundles of
marijuana to Gauna. The PSR also states that Fernandez overheard Gauna say, shortly before
Alejandro’s drive to Tennessee, that Gauna sold Alejandro three pounds of marijuana and, as a
result, he did not have enough marijuana for his customers. Although Fernandez testified at the
sentencing hearing, neither the Government nor Gauna’s counsel questioned him regarding the
amount of marijuana he observed. Gauna asserts Fernandez’s PSR statement that he saw eight
bundles should overcome Young’s statement because Fernandez was in a better position to know

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the quantity of marijuana given Young’s PSR statement that Fernandez acted as an interpreter
between Arvizu and Gauna for the drug deal.
At the sentencing hearing, Gauna’s counsel presented the court with Fernandez’s PSR
statement to dispute Young’s claim of twenty-eight bundles. The district court found Young’s
statement and the testimony of Special Agent Harmon to be credible. Gauna’s counsel noted that
the district court had also found Fernandez’s hearing testimony credible, to which the court
responded that the statements could be reconciled because someone might see only eight bundles,
though there could be twenty-eight bundles in total, or one could have seen them at different times.
In crediting Young’s statement, the district court essentially made credibility determinations
regarding Special Agent Harmon’s testimony and the statements provided by Young and Fernandez.
“The sentencing court’s credibility determinations, like other factual findings, must be
accepted on review unless shown to be clearly erroneous.” United States v. Hurst, 228 F.3d 751, 761
(6th Cir. 2000). This Court “accords great deference to such credibility determinations,” United
States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999), because the district court is “in the
best position to judge credibility,” United States v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996)
(finding it not clearly erroneous for the district court to credit testimony and articulate, on its own,
plausible explanations for apparent inconsistencies). “Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S.
at 574; see also United States v. Dillard, 438 F.3d 675, 681 (6th Cir. 2006) (holding district court’s
reconciliation of seemingly contradictory testimony was not clearly erroneous). As the district court
reasoned, the statements of Young and Fernandez could be reconciled because it is possible

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Fernandez only observed a subset of the marijuana Arvizu brought Gauna.2 The court’s crediting
of Young’s statement that she counted twenty-eight bundles and its reasoning that this statement was
reconcilable with Fernandez’s testimony were not clearly erroneous.
3.

Crack Cocaine

Gauna argues the district court clearly erred in attributing three ounces of crack cocaine to
him because this estimate was based on the unreliable testimony given by Jennifer Hernandez. The
PSR attributed three ounces of crack cocaine to Gauna based on Hernandez’s statement that she
observed three ounces on one particular occasion. Hernandez’s sentencing hearing testimony,
however, only established two ounces during that incident, which the Government conceded at the
hearing. However, Emilio Fernandez testified he observed an ounce of crack cocaine in the Gaunas’
safe, bringing the total to three ounces, which the district court noted was a “very, very, very
conservative determination.”
Gauna disagrees that Hernandez’s testimony established even two ounces because he asserts
her testimony was not reliable. Gauna points out that, when asked to approximate the amount of
total crack cocaine Hernandez witnessed whenever she went to the Gaunas’ residence, Hernandez
testified she “really didn’t know” because “crack cocaine is totally different from marijuana” and
“little bitty stones sitting up there, you don’t know what it is, if it is half an ounce, a whole ounce,
2

Notably, although Young testified that Fernandez acted as an interpreter during the drug
transaction between Gauna and Arvizu—and Gauna relies on this to argue Fernandez is a more
credible witness—Fernandez stated Gauna sent him to the back room as soon as Arvizu arrived and
that Fernandez only knew that the bundles contained marijuana because he later found marijuana
residue on the kitchen floor. Even if the two statements could not be reconciled, it would not be
clear error for the district court to credit Young’s statement that she snuck back and actually counted
twenty-eight bundles over Fernandez’s statement that he saw Arvizu bring in eight bundles before
he was sent to the back room.

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you don’t know.” The Sentencing Guidelines establish a minimum indicia-of-reliability standard
that evidence must meet in order to be admissible in sentencing proceedings. U.S.S.G. § 6A1.3(a)
(2009). “Thus, pursuant to § 6A1.3, ‘the district court is obligated to rely on reliable evidence at
sentencing.’” United States v. Christman, 509 F.3d 299, 305 (6th Cir. 2007) (citation omitted).
When asked about her ability to identify particular quantities of crack cocaine, Hernandez testified,
“I have seen it on the street . . . and knew what it was. I knew about how much it was too.” She
testified she had seen the same amount of crack cocaine before, she was familiar with it because her
family members used crack cocaine, she knew an ounce of crack cocaine was about twenty-eight
grams, and that an ounce of crack cocaine was smaller than an ounce of marijuana. Despite her
concerns about identifying amounts, Hernandez ultimately stated that she observed more than two
and a half ounces but less than ten ounces over the period in which she visited the Gaunas’ residence.
Gauna is correct that Hernandez’s testimony reveals she was more confident in the amount
of crack cocaine she witnessed on the one particular incident than the total amount she observed over
the entire period during which Gauna was present. However, neither the Government nor the district
court attributed the larger amount (potentially ten ounces) to Gauna. Hernandez consistently testified
at the hearing that she observed at least two ounces of crack cocaine on one occasion. Although
Hernandez’s PSR statement estimated three ounces on one occasion and her hearing testimony only
estimated two, the Government asked Hernandez to be conservative in her estimates at the hearing.
Gauna questioned Hernandez’s credibility at the sentencing hearing and the district court expressly
found her to be a credible witness and also stated that Fernandez’s observance of crack cocaine in
Gauna’s residence corroborated Hernandez’s testimony.

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Gauna cites United States v. Robison, 904 F.2d 365 (6th Cir. 1990), to support his argument
that Hernandez’s testimony was unreliable.

However, Hernandez’s testimony is clearly

distinguishable from the unreliable testimony in that case. In Robison, this Court held the witness’s
testimony about cocaine quantities was not “sufficiently accurate” because the witness admitted (1)
she was a heavy drug user subject to periods of memory loss; (2) the time period at issue in the case
was “a very hazy time” because of her level of drug usage; (3) she could not initially fix an estimate
of drugs and felt pressured into doing so; and (4) her estimate “was totally a guess” for which she
had “no factual basis.” Id. at 371-72. Hernandez’s lack of confidence in estimating an aggregate
amount of observed crack cocaine over an extended period of time does not rise to the level of
unreliability exhibited in Robison.
Gauna does not directly challenge the reliability of Fernandez’s testimony that he observed
an ounce of crack cocaine in Gauna’s safe. Instead, Gauna asserts no other testimony provided
reliable evidence of crack cocaine amounts attributable to him because no witness ever observed him
dealing in crack cocaine. However, this argument lacks foundation because Fernandez testified that
he purchased crack cocaine from Gauna on two separate occasions. As with Hernandez, the district
court found Fernandez a credible witness. Gauna has failed to demonstrate that the district court
clearly erred in its assessment of the credibility of Hernandez and Fernandez or its finding that three
ounces of crack cocaine should be attributed to Gauna.
4.

Scope of the Conspiracy

Gauna argues the district court erred by finding Gauna responsible for three ounces of crack
cocaine attributable to Alejandro without making individualized findings concerning the scope of

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the conspiracy to which Ruben Gauna agreed. For a defendant to be held accountable for the actions
of coconspirators, “(1) the conduct must be in furtherance of the jointly undertaken criminal activity;
and (2) the conduct must be reasonably foreseeable in connection with that criminal activity.”
United States v. Campbell, 279 F.3d 392, 399 (6th Cir. 2002) (citing U.S.S.G. § 1B1.3, cmt. n.2).
“[I]ndividualized findings regarding the scope of the conspiracy and the duration and nature of each
defendant’s participation in the scheme” are required, United States v. Meacham, 27 F.3d 214, 217
(6th Cir. 1994), and a preponderance of reliable evidence must establish both scope and
foreseeability, United States v. Critton, 43 F.3d 1089, 1098-99 (6th Cir. 1995).
Gauna does not dispute a foreseeability finding; rather, he argues that the court did not make
any particularized findings regarding the scope of the criminal activity to which Gauna agreed.
However, the record shows the court did make a finding regarding the scope of the conspiracy, as
it noted that the court had looked at the drug conspiracy and the scope of the drug conspiracy, and
“we have gone through that and set that out in a lot of detail.” The discussion preceding this
statement recounts the Government’s argument that the drug conspiracy, in addition to marijuana,
included a conspiracy to sell and distribute crack cocaine as evidenced by the testimony of
Hernandez and Fernandez. After discussing the witnesses’ credibility, the court concluded “the
evidence in the case that has been presented by the government supports the position that Mr. Ruben
Gauna and his brother were involved in a drug distribution operation, that it involved marijuana and
cocaine trafficking, that it was one conspiracy.”
The district court’s finding that a preponderance of the evidence showed a conspiracy to
distribute both marijuana and crack cocaine was not clearly erroneous. Although mere presence

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alone will not support a finding of conspiracy, presence is a material and probative factor which may
be considered, and a defendant’s participation in the conspiracy’s common purpose and plan may
be inferred from the defendant’s actions and reactions to the circumstances. See United States v.
Hodges, 935 F.2d 766, 773 (6th Cir. 1991) (citing United States v. Christian, 786 F.2d 203, 211 (6th
Cir. 1986)). There is sufficient evidence that Gauna participated in a conspiracy to sell crack
cocaine, including Fernandez’s testimony that Gauna (1) sold him crack cocaine on two occasions,
(2) threatened to kill Fernandez if he did not pay Alejandro for the “fronted” drugs, and (3) shared
a safe with his brother in which both powder and crack cocaine were stored. Therefore, the district
court made the requisite finding that the scope of the conspiracy to which Gauna agreed included the
sale of crack cocaine and such a finding was not clearly erroneous.
A.

Sentencing Enhancement for Obstruction of Justice
1.

Standard of Review

This Court has utilized two different standards of review when examining a district court’s
application of the sentencing enhancement for obstruction of justice under U.S.S.G. § 3C1.1,
including both a tri-partite standard of review and a more deferential standard that applies clear error
review to the entire analysis. See United States v. Cole, 359 F.3d 420, 430-31 (6th Cir. 2004).
Under the three-part standard, this Court first reviews the factual determinations made by the district
court for clear error. United States v. Middleton, 246 F.3d 825, 845-46 (6th Cir. 2001). “Second,
a district court’s conclusion that a given set of facts constitutes obstruction of justice is a mixed
question of law and fact that we review de novo. Finally, once a district court has determined that
a defendant has obstructed justice, then application of a two-level enhancement at that point is

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mandatory, and we review the enhancement de novo.” Id. (citation omitted). In contrast, in United
States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), this Court held that a clear error standard
of review was appropriate for reviewing sentencing enhancements under U.S.S.G. § 3C1.1 where
“the sole issue before the district court is a fact-bound application of the guideline provisions.” Id.
at 390. We have not yet endorsed a particular approach, Cole, 359 F.3d at 431, but we need not
decide this issue here because the district court’s decision in this case is correct under either
standard.
2.

Analysis

The district court applied a two-level sentencing enhancement for obstruction of justice based
on the phone calls from Gauna to Fernandez, which the court characterized as “a persistent tipoff.”
Guidelines § 3C1.1 provides for a two-level enhancement if “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense.” Obstruction of justice can include
“destroying or concealing or directing or procuring another person to destroy or conceal evidence
that is material to an official investigation or judicial proceeding . . . , or attempting to do so,” as long
as it is not solely conduct that occurs “contemporaneously with arrest (e.g., attempting to swallow
or throw away a controlled substance).” Id., cmt. n.4(D).
Gauna disputes the factual basis for the enhancement solely on the ground that there was no
evidence presented at the hearing establishing that Gauna advised Fernandez to dispose of drug
evidence when he and Young left the trailer. This argument is irrelevant because the district court
did not rely on destruction of drugs from the house. Rather, the district court concluded that a

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preponderance of the evidence showed the phone calls were made in an attempt to remove
individuals from the area and to obstruct the investigation. Fernandez testified, and Gauna did not
dispute, that Gauna called him several times to warn Fernandez the police were coming, to tell him
to get out of the house, to direct him to report the car as stolen, and to instruct him not to mention
that the Gaunas lived at the trailer. At argument, Gauna’s counsel characterized the phone calls as
merely informing Fernandez that police were coming to their residence. This ignores Fernandez’s
undisputed testimony that Gauna also directed Fernandez to report as stolen the vehicle Alejandro
had been riding in and to lie to law enforcement about whether the Gauna brothers lived with
Fernandez. This Court has previously held that an obstruction enhancement was properly applied
where a defendant called another person from jail asking him to report a getaway vehicle as stolen.
United States v. Waldon, 206 F.3d 597, 609 (6th Cir. 2000) (“This telephone call clearly qualifies
as an attempt on the part of Waldon to direct another person to conceal evidence material to the
investigation.”). Based on Fernandez’s testimony, the district court did not clearly err in finding
these facts and, even under the less deferential de novo standard, the court properly applied the
enhancement to Gauna.
Alternatively, Gauna argues that, even if there were facts sufficient to trigger the
enhancement, his conduct fell within the “contemporaneously with arrest” exception. Application
note 4(D) of Guidelines § 3C1.1 states that, if the defendant’s obstructive actions “occurred
contemporaneously with arrest (e.g., attempting to swallow or throw away a controlled substance),
it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted
in a material hindrance to the official investigation or prosecution of the instant offense or the

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sentencing of the offender.” This Court considered the application of this exception in Waldon,
finding that the exception did not apply because Waldon made the phone call six hours after his
arrest and, therefore, his actions were not an immediate attempt at obstruction. 206 F.3d at 608-09.
Gauna argues that his phone calls were made contemporaneously with Alejandro’s arrest.
At the sentencing hearing, Fernandez could not remember the exact times of the phone calls but it
is undisputed that Gauna called Fernandez multiple times. See United States v. Swoveland, 51 F.
App’x 516, 517 (6th Cir. 2002) (a thirty-minute period between defendant’s arrest and phone call
to a third party requesting destruction of evidence in her home was sufficient time “to contemplate
her actions before the call was made”). Gauna clearly had time to contemplate his actions, if not
before the first phone call, at least before his later calls. Therefore, the “contemporaneously with
arrest” exception does not apply and the district court properly applied the obstruction of justice
enhancement to Gauna’s sentence.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Gauna’s sentence.