United States v. Huerta ( 2021 )

Case: 20-50343 Document: 00515830247 Page: 1 Date Filed: 04/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 21, 2021
No. 20-50343 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Yurika Huerta,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-250-2
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge: *
Yurika Huerta pleaded guilty to possessing a firearm as a convicted
felon. At sentencing, the district court applied a four-level enhancement for
possession of the firearm “in connection with another felony offense”—
distribution of methamphetamine. The district court also imposed a period
of supervised release and required drug treatment. The district court
delegated to the probation officer supervision of the “modality, duration,
*
Judge Willett concurs in the judgment only.
Case: 20-50343 Document: 00515830247 Page: 2 Date Filed: 04/21/2021
No. 20-50343
intensity, etc.” of that treatment. Because the evidence supported the
enhancement and because the district court did not delegate a core judicial
function, we AFFIRM.
I.
Officers, responding to a 911 call about a person with a gun, arrived at
a Super 8 Motel in Odessa, Texas. They found the appellant Yurika Huerta
alongside Frank Badilla, Amber Velarde, and a fourth individual. Huerta
possessed a Bulgaria Arms SAM7K 7.62x39mm automatic pistol loaded with
30 rounds of ammunition, and she appeared to be intoxicated. When officers
approached Badilla, he threw a Sig Sauer P238 .380 ACP pistol to the ground.
Badilla also possessed 2 ounces of marijuana and $9,658 in cash. Velarde
discarded a bag containing 81.6 grams of methamphetamine before she was
detained. The fourth individual possessed 5.2 grams of methamphetamine.
Badilla told the officers that he and Huerta had come to the motel to
meet Alan Oszuel Gonzalez about a vehicle. Badilla said that he and Huerta
swapped firearms when they arrived at the motel before they went to
Gonzalez’s room. They did not, however, enter Gonzalez’s room. Badilla
then admitted to the officers that they were meeting Gonzalez, not about a
vehicle, but rather about 15 pounds of methamphetamine that Badilla had
purchased but had not received. Though she said nothing about the
methamphetamine, Huerta told the officers that she had agreed to go, armed,
to the motel with Badilla.
Huerta pleaded guilty to possession of a firearm by a convicted felon.
18 U.S.C. §§ 922(g)(1) and 924(a)(2). A probation officer prepared a
presentence investigation report. The report recommended applying a four-
level sentencing enhancement for possession of a firearm in connection with
another felony offense—drug trafficking. U.S. Sent’g Guidelines Manual
(U.S.S.G.) § 2K2.1(b)(6)(B) (U.S. Sent’g Comm’n 2018); see also 21 U.S.C.
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§ 841(a)(1), (b)(1)(A)(viii). The report noted Badilla’s $9,658 in cash and
Velarde’s 81.6 grams of methamphetamine.
The report also recommended the following special condition of
supervised release:
The defendant shall participate in a substance abuse treatment
program and follow the rules and regulations of that program.
The program may include testing and examination during and
after program completion to determine if the defendant has
reverted to the use of drugs. The probation officer shall
supervise the participation in the program (provider. location,
modality, duration, intensity, etc.). During treatment, the
defendant must abstain from the use of alcohol and any and all
intoxicants. The defendant must pay the costs of such
treatment if financially able.
At sentencing, Huerta objected to the proposed four-level sentencing
enhancement. She did not object to the proposed substance-abuse-treatment
condition. The district court orally adopted the presentence investigation
report, saying “I find the report to be accurate. I adopt it and the application
of the United States Sentencing Guidelines contained in the report.”
The district court then issued its written judgment sentencing Huerta
to 52 months’ imprisonment. The judgment included the following
condition of supervised release:
The defendant shall participate in a substance abuse treatment
program and follow the rules and regulations of that program.
The program may include testing and examination during and
after program completion to determine if the defendant has
reverted to the use of drugs. The probation officer shall
supervise the participation in the program (provider, location,
modality, duration, intensity, etc.). During treatment, the
defendant shall abstain from the use of alcohol and any and all
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intoxicants. The defendant shall pay the costs of such
treatment if financially able.
Huerta timely appealed both the application of the sentencing
enhancement and the imposition of the substance-abuse-treatment
condition.
II.
In an appeal of a district court’s application of a sentencing
enhancement, we review findings of fact for clear error and conclusions of
law de novo. United States v. Dinh, 920 F.3d 307, 310 (5th Cir. 2019); see also
United States v. Scott, 821 F.3d 562, 567 (5th Cir. 2016). “A factual finding is
not clearly erroneous as long as it is plausible in light of the record read as a
whole.” Dinh, 920 F.3d at 310 (quoting United States v. Sanders, 942 F.2d
894, 897 (5th Cir. 1991)).
The sentencing guidelines prescribe a four-level sentencing
enhancement for possession of a firearm “in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(6)(B). The term “another felony offense”
includes “any federal, state, or local offense . . . punishable by imprisonment
for a term exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.” Id. § 2K2.1 cmt. n.14(C). Distribution
of more than 50 grams of methamphetamine is a federal offense punishable
by a minimum ten years’ imprisonment, and so it is “another felony offense”
for purposes of the sentencing enhancement. 21 U.S.C. § 841(a)(1),
(b)(1)(A)(viii); U.S.S.G. § 2K2.1 cmt. n.14(C).
This enhancement applies “in the case of a drug trafficking offense in
which a firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia.” U.S.S.G. § 2K2.1, cmt. n.14(B). In
applying the enhancement, the district court may consider “(A) all acts and
omissions committed, aided, abetted, counseled, commanded, induced,
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procured, or willfully caused by the defendant; and (B) in the case of a jointly
undertaken criminal activity . . . all acts and omissions of others that were . . .
reasonably foreseeable in connection with that criminal activity.” Id.
§ 1B1.3(a)(1).
Huerta came armed to the motel with Badilla, and firearms are “‘tools
of the trade’ of drug trafficking.” United States v. Cooper, 979 F.3d 1084,
1090 (5th Cir. 2020) (quoting United States v. Zapata-Lara, 615 F.3d 388, 390
(5th Cir. 2010)), cert. denied, No. 20-7122 (Mar. 22, 2021). She was found
with a firearm near 81.6 grams of methamphetamine discarded by Velarde
and $9,658 in cash possessed by Badilla—these amounts are indicative of
drug trafficking. See United States v. Mays, 466 F.3d 335, 341 (5th Cir. 2006)
(“[M]ere possession of a quantity of drugs inconsistent with personal use will
suffice for the jury to find intent to distribute.”); United States v. Rains, 615
F.3d 589, 594 (5th Cir. 2010) (considering the presence of $3,000 of cash
circumstantial evidence of intent to distribute). “[I]n light of the record read
as a whole,” it is far more than “plausible” that Huerta possessed the firearm
in connection with felony methamphetamine trafficking. Dinh, 920 F.3d at
310 (quoting Sanders, 942 F.2d at 897).
Huerta nevertheless contends that the government asks us on appeal
to make findings of fact and consider evidence that was not before the district
court. According to Huerta, the government now advances a new theory of
a joint undertaking between Huerta and Badilla. Not so. The government
relies primarily on the money possessed by Badilla and the drugs discarded
by Velarde, as well as Huerta’s conduct with Badilla, to support the
conclusion that Huerta’s possession of a firearm was “in furtherance of”
drug trafficking. That is exactly what the district court did as well. The
district court adopted Huerta’s presentence investigation report which laid
out in detail Badilla and Huerta’s actions prior to their arrest and the guns
and drugs found on or near Huerta. See U.S.S.G. § 1B1.3(a)(1)(A) (allowing
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the district court to consider “all acts and omissions committed, aided, [or]
abetted” by the defendant). As explained above, the circumstantial evidence
available to the district court supports its application of § 2K2.1(b)(6)(B).
The district court did not err in applying the four-level enhancement.
III.
Huerta also argues that the district court erred by delegating to her
probation officer the authority to supervise the “modality, duration,
intensity, etc.” of her drug treatment as a condition of supervised release.
We review preserved challenges to conditions of supervised release for abuse
of discretion; we review forfeited challenges for plain error. See United States
v. Franklin, 838 F.3d 564, 566 (5th Cir. 2016). A defendant forfeits a
challenge to a condition of supervised release if the defendant had the
opportunity to object in the district court but did not. United States v. Diggles,
957 F.3d 551, 560 (5th Cir.) (en banc), cert. denied, 145 S. Ct. 825 (2020).
In Diggles, we made clear that district courts must orally pronounce
discretionary special conditions of supervised release both to satisfy the
defendant’s right to be present at sentencing and to give the defendant an
opportunity to object. Id. at 556–60. Special conditions that must be
pronounced are those that are discretionary under 18 U.S.C. § 3583(d). Id.
at 558.
When a presentence investigation report recommends a list of special
conditions, a defendant has ample opportunity to review those conditions.
Id. at 560. The district court, then, satisfies its duty to pronounce by orally
adopting the report at sentencing. Id. The advance notice of the presentence
investigation report and the district court’s oral declaration that it is adopting
the report give the defendant an opportunity to object. Id.In this case, Huerta’s presentence investigation report recommended
substance-abuse treatment as a condition of supervised release. In particular,
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the report recommended delegating to the probation officer supervision of
the “modality, duration, intensity, etc.” of treatment. Substance-abuse
treatment is a discretionary condition of supervised release under § 3583(d),
so it must be orally pronounced. Id. at 558. The district court at sentencing
adopted the presentence investigation report as a whole, saying “I find the
report to be accurate. I adopt it and the application of the United States
Sentencing Guidelines contained in the report.” The district court thus
orally pronounced the challenged condition. See id.
Huerta did not object. We therefore review her delegation challenge
for plain error. See id. at 559; United States v. Dean, 940 F.3d 888, 890–91
(5th Cir. 2019). To establish plain error, Huerta must show “(1) an error
(2) that is clear or obvious, (3) that affects substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Huor, 852 F.3d 392, 398 (5th Cir. 2017)
(quoting United States v. Mendoza-Velasquez, 847 F.3d 209, 212 (5th Cir.
2017)). Huerta has not shown error that is clear or obvious.
“[A] district court cannot delegate to a probation officer the ‘core
judicial function’ of imposing a sentence, ‘including the terms and conditions
of supervised release.’” United States v. Barber, 865 F.3d 837, 839 (5th Cir.
2017) (quoting Franklin, 838 F.3d at 568). This limitation comes from Article
III of the Constitution, which entrusts judicial functions to the judicial
branch. Franklin, 838 F.3d at 567–68; see also U.S. Const. art. III, § 1 (“The
judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish.”). Delegations to probation officers should not be made lightly.
In the context of conditions of supervised release, a district court may
delegate only the “details” of the conditions; it may not delegate imposition
of the conditions themselves. Franklin, 838 F.3d at 568 (quoting United
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States v. Lomas, 643 F. App’x 319, 324 (5th Cir. 2016)). We recently
addressed the dividing line between permissible and impermissible
delegations in a pair of companion cases—United States v. Martinez and
United States v. Medel-Guadalupe. 987 F.3d 432 (5th Cir. 2021); 987 F.3d 424(5th Cir.), cert. denied, No.20-7483, 2021 WL 1520967 (Apr. 19, 2021).
Both cases concerned whether a district court may delegate to a
probation officer the decision to require “inpatient or outpatient” treatment.
See Martinez, 987 F.3d at 434; Medel-Guadalupe, 987 F.3d at 430. Citing each
other, Martinez concluded that the delegation was impermissible following a
relatively short 10-month sentence and Medel-Guadalupe concluded that the
delegation was permissible following a relatively long 10-year sentence where
it was clear that the district court continued to maintain a final say over the
decision. Martinez, 987 F.3d at 436 (citing Medel-Guadalupe, 987 F.3d at
431); Medel-Guadalupe, 987 F.3d at 431 (citing Martinez, 987 F.3d at 436).
Martinez emphasized the significant liberty interests at stake during
confinement for inpatient treatment. 987 F.3d at 436. Medel-Guadalupe
emphasized the long term of imprisonment and the district court’s “final say
over the decision” upon release “nearly a decade from now.” 987 F.3d at
431.
Read together, Martinez and Medel-Guadalupe establish two principles
regarding delegation to probation officers. First, “the district court will have
the final say” on whether to impose a condition. Medel-Guadalupe, 987 F.3d
at 431; see also Martinez, 987 F.3d at 435. Second, although a probation
officer’s authority extends to the “modality, intensity, and duration” of a
treatment condition, it ends when the condition involves a “significant
deprivation of liberty.” Medel-Guadalupe, 987 F.3d at 431; Martinez, 987
F.3d at 434, 436. Both principles spring from solicitude for the liberty
interests of the defendant.
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Applying these principles to this case, we conclude that the district
court did not clearly err by delegating supervision of the “modality, duration,
intensity, etc.” of treatment to the probation officer. The context of the
phrase in this case confirms this: Huerta’s participation in treatment is
mandatory; the probation officer “supervise[s] the participation”; and the
phrase “modality, duration, intensity, etc.” parenthetically describes that
supervision. There is no indication here that the probation officer would be
able to lock Huerta up for inpatient treatment, which would be a significant
deprivation of liberty following Huerta’s relatively short sentence. See
Martinez, 987 F.3d at 435. Nor is there any indication that the probation
officer may otherwise significantly deprive Huerta of her liberty during
treatment. And, of course, the district court has the final say over the
imposition of the conditions upon release. Cf. Medel-Guadalupe, 987 F.3d at
431; see also Martinez, 987 F.3d at 435.
* * *
For the reasons set forth above, the judgment of the district court is
AFFIRMED.
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