United States v. Norberto Castillo-Gamez , 466 F. App'x 859 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 24, 2012
No. 11-14130
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 9:11-cr-80055-DMM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORBERTO CASTILLO-GAMEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 24, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Norberto Castillo-Gamez appeals his convictions and sentence for
conspiring to and transporting illegal aliens within the United States for private
gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (a)(1)(A)(ii).1 After a
thorough review of the record, we affirm.
Castillo-Gamez and co-conspirator Marino Velasquez-Santizo were charged
with one count of conspiracy and three counts of transporting illegal aliens for
private gain. Prior to trial, both defendants moved to suppress the evidence
obtained during the traffic stop that led to their arrest on the ground that the Border
Patrol agent lacked probable cause or reasonable suspicion to conduct the stop.
At a suppression hearing, Border Patrol agent Cesar Barrientos testified that
he was conducting traffic surveillance on I-95 looking for high-capacity vehicles
when he observed a tan minivan in the center lane. The minivan appeared to be
loaded down, although it had only four passengers, and it had tinted windows and
Alabama license plates. When he pulled next to the minivan, the driver appeared
stiff and did not make eye contact. He ran a check on the license plate and found a
note cautioning that the driver might not be the registered owner. These facts led
him to believe that the minivan was carrying illegal aliens, so he conducted a stop.
1
Although Castillo-Gamez has completed his twelve-month prison term, he remains on
supervised release; thus his appeal is not moot. Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir.
1995).
2
Barrientos explained that the use of high-capacity vehicles, especially those with
tinted windows, and the appearance that the vehicle is weighted down are all
indicative of alien smuggling. He further explained that smugglers are more likely
to use I-95 than the Florida Turnpike because the Turnpike charges tolls and has
cameras. Based on this testimony, the district court concluded that Barrientos had
reasonable suspicion to stop the minivan, and thus the court denied the motion to
suppress.
At trial, Barrientos testified that after his arrest, Castillo-Gamez gave a
sworn statement in which he admitted that he was hired by “Marcelino” to
transport the aliens to New York and back for $500. Although he did not know the
passengers, he admitted that he knew they were illegal. Castillo-Gamez told
Barrientos that the passenger in the front seat of the minivan, Velasquez-Santizo,
was in charge of collecting fees.
Velasquez-Santizo2 testified that Marcelino asked him to transport illegal
aliens and that he had hired a man named Norberto to drive the van. Castillo-
Gamez objected to Velasquez-Santizo’s testimony on hearsay grounds, but the
court admitted the statement as a co-conspirator’s statement under Federal Rule of
Evidence 801(d)(2)(E). Velasquez-Santizo stated that he was responsible for
2
Velasquez-Santizo pleaded guilty to conspiracy and testified for the government.
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collecting fees from the aliens and that he received $400 for his involvement.
Velasquez-Santizo and Castillo-Gamez both drove the minivan at times, picking up
and dropping off passengers at Marcelino’s instruction in various locations. After
they had picked up a passenger in Maryland, they headed south on I-95. Castillo-
Gamez was driving when they were stopped. One of the passengers, Haricel
Hernandez-Izquierdo, testified that he paid $240 for transportation to Florida from
Maryland.
Castillo-Gamez testified in his own defense, denying that he was paid to
drive the van. Instead, he explained that he only drove to help Velasquez-Santizo,
who was tired. He further denied that he told Barrientos that he knew the
passengers were illegal aliens.
The jury convicted Castillo-Gamez on all counts. The probation officer
calculated Castillo-Gamez’s advisory guidelines range including a two-level
enhancement for obstruction of justice. Castillo-Gamez’s sentencing range was 15
to 21 months’ imprisonment. Castillo-Gamez objected to the calculations, arguing
that he was entitled to a minor-role reduction, U.S.S.G. § 3B1.2, and that the
enhancement for obstruction of justice was in error. He also argued that he should
receive a downward departure under § 5K2.0 and 5H1.6 because he cared for his
mentally disabled girlfriend. He further requested a downward variance.
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The district court denied the minor-role reduction, finding that Castillo-
Gamez was not less culpable than his co-conspirators, but did not apply the
enhancement for obstruction of justice. This changed the advisory guideline range
to 10 to 16 months. The court sentenced Castillo-Gamez to 12 months’
imprisonment. On appeal, Castillo-Gamez raises five issues: (1) the district court
improperly denied his motion to suppress; (2) the evidence was insufficient to
convict him of conspiring to transport illegal aliens or of transporting illegal aliens;
(3) the district court improperly admitted Velasquez-Santizo’s testimony; (4) these
cumulative errors rendered his trial unfair; and (5) the sentence imposed was
procedurally and substantively unreasonable. We address each in turn.
I. Motion to Suppress
When reviewing a district court’s denial of a motion to suppress evidence,
we review factual findings for clear error and the application of the law to those
facts de novo, construing all facts in the light most favorable to the party who
prevailed in the district court. United States v. Ponce-Aldona, 579 F.3d 1218, 1221
(11th Cir. 2009).
The Fourth Amendment provides that the “right of the people to be secure in
their persons . . . and effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend. IV. If an officer reasonably suspects that a
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vehicle may contain illegal aliens, he may briefly stop the car and “‘investigate the
circumstances that provoke suspicion.’” United States v. Bautista-Silva, 567 F.3d
1266, 1271–72 (11th Cir. 2009) (quoting United States v. Brignoni-Ponce, 422
U.S. 873, 881 (1975)). This reasonable suspicion must be more than a mere hunch,
and it must be based on “specific articulable facts” and rational inferences from
those facts. Id. at 1272 (quoting Brignoni-Ponce, 422 U.S. at 884). A court
evaluating whether an officer had reasonable suspicion to stop a vehicle must
consider the totality of the circumstances to determine whether the agent had “‘a
particularized and objective basis for suspecting legal wrongdoing.’” Id. (quoting
United States v. Arvizu, 534 U.S. 266, 273 (2002)). Courts “may not consider each
fact only in isolation, and reasonable suspicion may exist even if each fact ‘alone is
susceptible of innocent explanation.’” Id. (quoting Arvizu, 534 U.S. at 277–78).
Here, the district court properly concluded that Barrientos had a reasonable
suspicion that the minivan carried illegal aliens. As Barrientos testified, the
minivan had out-of-state license plates, tinted windows, and appeared to be
weighted down. Barrientos knew that smugglers often used I-95 to avoid the
cameras and tolls on the Florida Turnpike. And when he pulled along side the
minivan, Barrientos noticed that Castillo-Gamez appeared stiff and did not make
eye contact. Considering these facts together, Barrientos had a reasonable
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suspicion that the minivan contained illegal aliens. See Bautista-Silva, 567 F.3d at1272–74.
II. Sufficiency of the Evidence
Generally, we review de novo whether there is sufficient evidence to support
a conviction, drawing all inferences in favor of the jury’s verdict. United States v.
Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). But where, as here, a defendant
fails to renew his motion for judgment of acquittal after presenting evidence on his
own behalf, that failure “operates as a waiver of the motion for acquittal and
forecloses any review of the sufficiency of the evidence except where a
miscarriage of justice would result.” United States v. Tapia, 761 F.2d 1488, 1491
(11th Cir. 1985) (citation and internal quotation marks omitted). A miscarriage of
justice would result only if “‘the evidence on a key element of the offense is so
tenuous that a conviction would be shocking.’” Id. at 1492 (quoting United States
v. Landers, 484 F.2d 93, 94 (5th Cir. 1973)).
Under 8 U.S.C. § 1324, “[a]ny person who[,] knowing or in reckless
disregard of the fact that an alien has come to, entered, or remains in the United
States in violation of law, transports . . . such alien within the United States by
means of transportation or otherwise, in furtherance of such violation of law,” and
“for the purpose of . . . private financial gain” shall be fined or imprisoned for up
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to ten years. 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i). The same section
criminalizes conspiring to commit that offense. Id. § 1324(a)(1)(A)(v)(I). To
obtain a conspiracy conviction under this subsection, the government was required
to prove the existence of “an agreement to commit the substantive offense.”
United States v. Reme, 738 F.2d 1156, 1161 (11th Cir. 1984). Evidence of a
defendant’s acts in furtherance of a conspiracy to transport illegal aliens can
support an inference that the defendant agreed to commit the substantive offense of
transporting illegal aliens. Id. If a defendant testifies at trial, the jury may
disbelieve him and treat his untruthfulness as substantive evidence of guilt. United
States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010).
We conclude that Castillo-Gamez has not shown that the evidence on any
element of his offenses was so tenuous that his convictions are shocking, resulting
in a miscarriage of justice. Barrientos testified that he stopped a van with four
passengers who were illegal aliens, and Castillo-Gamez was the driver. Velasquez-
Santizo testified about the conspiracy to transport illegal aliens. And although
Castillo-Gamez denied any participation in a conspiracy, the jury was free to
disbelieve his testimony and treat it as substantive evidence of his guilt. Because
the evidence showed that Castillo-Gamez conspired to transport illegal aliens and
that he actually transported them, the evidence was sufficient to support his
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convictions.
III. Admission of Hearsay Evidence
We review a district court’s admission of evidence for an abuse of
discretion. United States v. Hill, 643 F.3d 807, 840 (11th Cir. 2011). The district
court’s conclusions that (1) a conspiracy existed, (2) Castillo-Gamez, Velasquez-
Santizo, and Marcelino participated in it, and (3) Marcelino’s statements were
made in furtherance of the conspiracy are reviewed for clear error. United States v.
Garcia, 13 F.3d 1464, 1472–73 (11th Cir. 1994). We review de novo evidentiary
challenges based on the Confrontation Clause. United States v. Caraballo, 595
F.3d 1214, 1226 (11th Cir. 2010).
Generally, hearsay evidence is inadmissible. Fed. R. Evid. 802. But an out-
of-court statement offered against an opposing party that “was made by the party’s
coconspirator during and in furtherance of the conspiracy” is not hearsay. Fed. R.
Evid. 801(d)(2)(E).
The admission of certain evidence can violate a defendant’s rights under the
Confrontation Clause, which protects a defendant’s right “to be confronted with
the witnesses against him.” U.S. Const. amend. VI. The admission of statements
made by coconspirators in furtherance of a conspiracy, however, does not violate a
defendant’s constitutional right to confrontation because such statements are not
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testimonial. See Crawford v. Washington, 541 U.S. 36, 55 (2004) (“Most of the
hearsay exceptions covered statements that by their nature were not testimonial–for
example, . . . statements in furtherance of a conspiracy.”); United States v.
Underwood, 446 F.3d 1340, 1346–48 (11th Cir. 2006). Further, statements of an
uncharged co-conspirator may be admitted as long as the existence of the
conspiracy itself has been established. United States v. Salisbury, 662 F.2d 738,
740 (11th Cir. 1981).
Here, the evidence established the existence of a conspiracy between
Castillo-Gamez, Velasquez-Santizo, and Marcelino. The evidence further showed
that the statements were made during and in furtherance of the conspiracy. Thus,
Marcelino’s statements, admitted through Velasquez-Santizo’s testimony, were
admissible because they were not hearsay. Further, although Castillo-Gamez
argues that these statements were the only evidence showing his involvement in the
conspiracy, in a statement to Barrientos, Castillo-Gamez admitted being part of a
conspiracy to transport illegal aliens at Marcelino’s direction. Accordingly, the
district court did not err in admitting Velasquez-Santizo’s testimony about
Marcelino’s statements.
IV. Cumulative Error
“[T]he cumulative effect of multiple errors may so prejudice a defendant’s
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right to a fair trial that a new trial is required, even if the errors considered
individually are non-reversible.” United States v. Ramirez, 426 F.3d 1344, 1353
(11th Cir. 2005) (internal quotation marks omitted). If a defendant claims that
cumulative errors exist but fails to show any error, we will affirm. See United
States v. Augustin, 661 F.3d 1105, 1127–29 (11th Cir. 2011).
As noted above, Castillo-Gamez has failed to demonstrate any error, much
less cumulative error. Therefore, he has not shown that his trial was unfair or that
he is entitled to a new trial.
V. Sentencing
We review sentences for procedural and substantive reasonableness under a
deferential abuse of discretion review. United States v. Irey, 612 F.3d 1160,
1188–89 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011). We lack
the authority to review claims that the district court erred in denying a downward
departure when the district court understood its authority to depart. United States
v. Llanos-Agostadero, 486 F.3d 1194, 1199 (11th Cir. 2007). A district court’s
denial of a minor role reduction is reviewed for clear error. United States v.
Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010).
A sentence is procedurally unreasonable if the district court improperly
calculates the guideline range, considers the Sentencing Guidelines to be
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mandatory, does not consider the proper statutory factors, imposes a sentence
based on clearly erroneous facts, or does not explain adequately the sentence.
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). A sentence is
substantively unreasonable if, considering the totality of the circumstances, the
court weighed the factors in 18 U.S.C. § 3553(a) unreasonably and imposed a
sentence that did not achieve the purposes of sentencing outlined in § 3553(a).
Irey, 612 F.3d at 1189. Ordinarily, we expect a sentence within the advisory
guideline range to be reasonable. United States v. Martinez-Gonzalez, 663 F.3d
1305, 1311 (11th Cir. 2011).
Here, Castillo-Gamez challenges the denial of his minor-role reduction, the
court’s failure to apply a downward departure or variance, and the failure to give
him credit for time served.
a. minor-role reduction
Under U.S.S.G. § 3B1.2, a defendant is entitled to a two-level decrease if he
“was a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). An
adjustment is appropriate if a defendant “play[ed] a part in committing the offense
that makes him substantially less culpable than the average participant.” Id.
§ 3B1.2, comment. (n.3(A)). To determine whether a defendant is entitled to a
minor role reduction, the district court should consider his conduct in comparison
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to the relevant conduct attributed to him in determining his base offense level and
in comparison to the conduct of the other participants. Bernal-Benitez, 594 F.3d at
1320. The defendant bears the burden of proving his minor role by a
preponderance of the evidence. Id. A defendant “is not automatically entitled to a
minor role adjustment merely because [he] was somewhat less culpable than the
other discernable participants.” United States v. Rodriguez De Varon, 175 F.3d
930, 944 (11th Cir. 1999) (en banc).
Here, Castillo-Gamez has not met his burden to show that he was entitled to
a minor role reduction. Castillo-Gamez points to nothing other than his own
testimony to show that he was substantially less culpable than others. But the
testimony of Velasquez-Santizo and Barrientos show that Castillo-Gamez was at
least as culpable as Velasquez-Santizo. Thus, Castillo-Gamez has not shown that
the district court clearly erred in refusing to apply this reduction.
b. downward departure
Although Castillo-Gamez argues that the district court erred in refusing to
depart downward pursuant to U.S.S.G. § 5H1.6, he does not contend that the
district court misunderstood its authority to do so. Accordingly, we lack
jurisdiction to review that claim. Llanos-Agostadero, 486 F.3d at 1199.
Additionally, Castillo-Gamez has not shown that the district court
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unreasonably declined to vary downward under 18 U.S.C. § 3553(a). The court
considered the § 3553(a) factors as well as its belief that Castillo-Gamez was
untruthful when he testified at trial. The court concluded that a 12-month total
sentence, within the applicable guideline range, was appropriate. Castillo-Gamez
has not demonstrated that the district court abused its discretion, and we find
nothing unreasonable in the sentence imposed.
c. credit for time served
Under 18 U.S.C. § 3585, in certain circumstances, a defendant should
receive credit toward the service of a term of imprisonment for time spent in
official detention before the date on which his sentence commences. 18 U.S.C.
§ 3585(b). This section, however, does not authorize a district court to compute
and award credit for time served at sentencing. United States v. Wilson, 503 U.S.
329, 333 (1992). Rather, “Congress has indicated that a computation of credit
must occur after the defendant begins his sentence. A district court, therefore,
cannot apply § 3585(b) at sentencing.” Id.; see also United States v. Jayyousi, 657
F.3d 1085, 1118 n.5 (11th Cir. 2011) (acknowledging that the Attorney General
gives credit for time served in pretrial confinement).
Before the district court, Castillo-Gamez requested a sentence of time
served, but he did not request credit for time served. Even if he had, the district
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court did not have the authority to give him such credit. Wilson, 503 U.S. at 333.
In sum, Castillo-Gamez has failed to show that his sentence was
procedurally or substantively unreasonable. The district court properly calculated
his guideline range, explained the sentence, and weighed the § 3553(a) factors
before imposing a total sentence of 12 months, within his advisory guideline range
and below the statutory maximum of 10 years. Because Castillo-Gamez’s total
sentence is procedurally and substantively reasonable, we affirm.
AFFIRMED.
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