United States v. Gonzalez-Alvidres , 281 F. App'x 351 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2008
No. 07-50981
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARCOS ANTONIO GONZALEZ-ALVIDRES; NICANOR PORTILLO-OLIVAS
Defendants-Appellants
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-191-1
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Marcos Antonio Gonzalez-Alvidres (“Gonzalez”) and Nicanor Portillo-
Olivas (“Portillo”) appeal their convictions, following a jury trial, on count one
of the indictment for aiding and abetting, and intentionally and knowingly
instigating, conniving, attempting to cause, and conspiring to cause a mutiny or
riot at the Ector County Correctional Center (“ECCC”), in violation of 18 U.S.C.
§ 1792. Portillo also appeals his conviction on count two for aiding and abetting,
and intentionally and knowingly using fire to commit the felony offense set forth
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-50981
in count one, in violation of 18 U.S.C. § 844(h). Gonzalez and Portillo argue that
the evidence was insufficient to support their convictions.
At trial, the government called a number of corrections officers from ECCC
to testify. Gonzalez and Portillo put on no evidence. Instead, they moved for a
motion of acquittal at the close of the government’s case. Because Gonzalez and
Portillo preserved the issue of the sufficiency of the evidence, the applicable
standard of review is “whether, viewing all the evidence in the light most
favorable to the verdict, a rational trier of fact could have found that the
evidence establishes the essential elements of the offense beyond a reasonable
doubt.” United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003). A review
of the sufficiency of the evidence does not include a review of the weight of the
evidence or a review of matters of witness credibility. See United States v.
Myers, 104 F.3d 76, 78-79 (5th Cir. 1997). “The evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” United States v. Lopez, 74 F.3d 575, 577 (5th
Cir. 1996).
The evidence at trial showed the following. In the early afternoon, while
Officer Prieto was patrolling the area of cell block 2-N, Gonzalez indicated that
he had a problem with another inmate in a different cell block and that he
needed to speak to the other inmate. Prieto did not allow Gonzalez out but
instead went to speak with his supervisor, Officer Vasquez. Gonzalez then used
the prison intercom system to buzz the main office in order to speak with Officer
Vasquez. Gonzalez said that he needed to talk to someone about a problem.
When Vasquez and Prieto returned, Gonzalez was at the entrance to cell-block
2-N, and was surrounded by a small group of other inmates who also seemed
agitated. One of those inmates was co-defendant Portillo. Vasquez took
Gonzalez out of the cell into a hallway to talk to him. Gonzalez requested that
he be allowed to speak with the inmate in another cell block. When Vasquez
denied the request Gonzalez became more agitated and demanding. Gonzalez
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No. 07-50981
said to Vasquez, in Spanish, “You know what will happen if you don’t take me
out.”
In response to this incident, Gonzalez was moved to a private holding cell
in cell block 2-C, away from 2-N. Officer Prieto testified that when officers came
to remove Gonzalez, Gonzalez whispered something to Portillo and the two
exchanged hand signals.
Shortly thereafter, another intercom request came from 2-N. This time,
Officers Vasquez and King returned to find co-defendant Portillo at the entrance
to cell block 2-N. He was with a small group of inmates who appeared agitated.
Portillo asked the officers why Gonzalez had been removed and when he would
return. The officers responded that it would be a few days before Gonzalez
could return. Portillo then said to the officers: “you know what is going to
happen” if you do not bring Gonzalez back. The officers testified that Portillo
and the other inmates nearby appeared angry at the responses to their
questions.
Officers then returned to 2-N to gather Gonzalez’s personal belongings to
take to cell block 2-C. When the officers arrived at 2-N, Portillo told them they
could “come and get it,” referring to Gonzalez’s personal belongings. Officer King
testified that the situation recovering Gonzalez’s belongings was “tense.”
About five minutes after the officers gathered Gonzalez’s belongings, and
thirty minutes after the initial intercom call from Gonzalez, the fire alarm
alerted a fire in 2-N. When officers arrived at the scene of the fire, they spent
five-to-fifteen minutes putting out the fire with the use of oxygen masks and
multiple extinguishers. After the fire was out, the officers noticed that the fire
had been set amongst a pile of blankets and mattresses. A fire investigator
determined that the fire was intentionally set in 2-N, but there was no way to
determine who set the fire.
Based on their past interactions with inmates and their observations
during the course of the events leading up to the fire, multiple witnesses testified
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that they understood Gonzalez and Portillo to be the “functional leaders” of cell
block 2-N.
The jury found that Portillo and Gonzalez conspired to cause a mutiny or
riot at ECCC. Portillo and Gonzales argue that there was insufficient evidence
to establish a conspiracy to mutiny or riot. The elements of a conspiracy may be
established by circumstantial evidence and “may be inferred from the
development and collocation of circumstances.” United States v. Gonzales, 79
F.3d 413, 423 (5th Cir. 1996) (internal quotation marks omitted); see United
States v. Pierre, 958 F.2d 1304, 1311 (5th Cir. 1992). A conspiracy between
Gonzalez and Portillo to cause a mutiny or riot reasonably could be inferred from
the following evidence at trial: the brief period of time between the denial of
Gonzalez’s request to speak to an inmate in another cell, his removal from
cellblock 2-N, and the fire; testimony that Gonzalez, or Gonzalez and Portillo,
appeared to be “leaders” of the cellblock; Gonzalez was angry that his request to
talk to another inmate was denied; that Gonzalez and Portillo whispered and
made hand motions to each other before Gonzalez was removed from the
cellblock; that Portillo and other inmates were upset and angry that Gonzalez
had been removed from the cellblock; and that Gonzalez and Portillo made
similar threats to corrections officers just before the fire was set. Based on this
evidence, the jury could reasonably find that Gonzalez and Portillo conspired to
cause a mutiny or riot. See 18 U.S.C. § 1792. The evidence also supports the
jury’s verdict that Portillo used fire to commit the offense of conspiracy to cause
a mutiny or riot. See id. at § 844(h). Because the evidence was sufficient to
support the jury’s verdict, we affirm the convictions.
Gonzalez also challenges his sentence, arguing that the district court erred
in calculating his base offense level as 22 pursuant to UNITED STATES
SENTENCING GUIDELINES MANUAL (“USSG”) § 2P1.3 (2006). “[T]he
abuse-of-discretion standard of review applies to appellate review of all
sentencing decisions–whether inside or outside the Guidelines range.” Gall v.
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No. 07-50981
United States, 128 S. Ct. 586, 596 (2007). This court reviews the district court’s
application of the Guidelines de novo, and the district court’s findings of fact for
clear error. See United States v. Cuyler, 298 F.3d 387, 389 (5th Cir. 2002). The
Guideline for engaging in, inciting, or attempting to incite a riot involving
persons in a facility for official detention is set forth in § 2P1.3, which provides
for a base offense level of 22 “if the offense was committed under circumstances
creating a substantial risk of death or serious bodily injury to any person.”
USSG § 2P1.3(a)(1). We have held that a “jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a preponderance of the
evidence.” United States v. Valdez, 453 F.3d 252, 264 (5th Cir.) (internal
quotation marks and citation omitted), cert. denied, 127 S. Ct. 456 (2006). Based
on the sentencing record, the district court did not clearly err in finding that the
offense for which Gonzalez was convicted (i.e., conspiracy to cause a mutiny or
riot) created a substantial risk of death or serious bodily harm based on the fire
that was set in furtherance of the conspiracy.
Gonzalez asserts, without citation to the record or legal authority, “that
based on the evidence before this Court, any restitution attributable to the fire
should not be charged against him.” We require arguments to be briefed in order
to be preserved. See Yohey v. Collins, 985 F.2d 224, 225 (5th Cir. 1993); FED. R.
APP. P. 28(a)(9). Gonzalez’s challenge to the imposition of restitution is not
adequately briefed and is deemed abandoned. See Yohey, 985 F.2d at 224-25.
AFFIRMED.
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