United States v. Cruz ( 2001 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-50100
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PATRICIO CRUZ, also known as Ticho,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(EP-99-CR-0972)
July 18, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Patricio Cruz pleaded guilty to one count of possession with
intent to distribute more than 100 kilograms of marijuana and to
one count of conspiracy to possess with intent to distribute more
than 100 kilograms of marijuana. Cruz was sentenced to two 108-
month prison terms, to be served concurrently, a five-year term of
*
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opinion should not be published and is not precedent except under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.
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supervised release, and a special assessment of $200. He timely
appealed his sentence. Finding that the amount of marijuana
attributed to him under the sentencing guidelines was based in part
on a confidential informant’s uncorroborated report, we vacate his
sentence and remand for resentencing.
I.
According to the factual basis provided by the government at
Cruz’s rearraignment, on February 2, 1999, the FBI received
information from a confidential source of information (SOI) that
Patricio Cruz and a person whose first name was “Angel” were
involved in a plan to ship a load of marijuana in a tractor-trailer
bearing a specific logo, which was parked in a K-Mart parking lot
in El Paso, Texas. The FBI confirmed that the specified vehicle
was at the K-Mart, and early in the morning of February 3, 1999,
after the vehicle left the parking lot, El Paso County sheriff’s
deputies stopped the vehicle upon observing it drifting onto the
shoulder of the road. As the officers approached the cab, they
noticed a strong marijuana odor emanating from the trailer. The
driver and a passenger gave consent to a search of the vehicle.
The officers found approximately 300 pounds of marijuana in large
bags under the sleeper mattress in the cab and more than 1,000
pounds of marijuana wrapped in cellophane and packaged in boxes
underneath wooden pallets in the trailer portion of the vehicle.
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The total weight of marijuana seized by the officers on February 3
was 1,392 pounds (631.41 kilograms). The driver told the officers
that he was hired by Angel Tafoya, who was supposed to be following
the tractor-trailer in another vehicle accompanied by Cruz.
Tafoya was arrested on June 1, 1999, and admitted to the
officers that he hired the driver and passenger involved in the
February 3 seizure of marijuana. Tafoya also stated that Cruz was
involved in the conspiracy to transport the marijuana, and that he
was hired by Cruz to find the drivers and to accompany the load of
marijuana to Dallas. According to the government’s factual basis,
the passenger in the tractor-trailer was prepared to testify that
Cruz’s job was to coordinate the transportation of the marijuana,
i.e., locating a truck and drivers, arranging for lodging, and
providing return-transportation for all involved.
In response to the government’s proffered factual basis, Cruz
asserted that he thought that the only marijuana being transported
was the 300 pounds of marijuana found in the cab of the truck,
which he had helped load. Cruz argued that the different types of
packaging of the marijuana in the cab and the marijuana in the
trailer should support his assertion. After offering this
clarification to the factual basis, Cruz pleaded guilty to
possession with the intent to distribute more than 100 kilograms of
marijuana and conspiracy to possess with intent to distribute more
than 100 kilograms of marijuana.
The presentence report (PSR) issued after Cruz’s rearraignment
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detailed the February 3 incident, including the full 1,392 pounds
seized from the trailer and cab of the tractor-trailer as relevant
conduct. The PSR also included in the amount of marijuana Cruz
should be responsible for as relevant conduct approximately 10,000
pounds (4,430.31 kilograms) of marijuana seized by the FBI at an El
Paso warehouse on April 13, 1999. According to the PSR, a
confidential SOI reported that Cruz made two trips to Mexico to
pick up $120,000 for transporting 10,000 pounds of marijuana to El
Paso. The PSR detailed no other evidence corroborating the SOI’s
report connecting Cruz to the 10,000 pounds seized on April 13.
The total marijuana attributed to Cruz in the PSR was 5,061
kilograms, for an offense level of 34 under the sentencing
guidelines. The PSR recommended a three-level reduction for
acceptance of responsibility; the resulting offense level of 31
carried a guideline range of imprisonment from 108 to 135 months.
Cruz objected to the PSR on the grounds that the marijuana
seized on April 13 should not be attributed to him, because the
allegation that he was involved with the transportation of the
10,000 pounds was based only on the uncorroborated and unreliable
report of an SOI who was not available for cross-examination, and
that he should be held accountable only for the 1,392 pounds seized
on February 3 for which he had been charged. Cruz also objected
that the PSR should have recommended a downward adjustment in his
offense level for his minor role in the offense because he “did
nothing more than help load 300 lbs. of marijuana and he found some
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drivers for Tafoya.”
The government responded to the objection regarding the April
13 marijuana seizure by revealing more details of the SOI’s report:
that the SOI informed the FBI that Cruz and another member of the
conspiracy, after retrieving the money for the transportation of
the 10,000 pounds and after learning that the marijuana had been
subsequently seized, hid the $120,000 they had received. The
government did not, however, indicate that any details of the SOI’s
report linking Cruz to the 10,000 pounds of marijuana could be
corroborated by other evidence. Regarding the failure to recommend
a two-level downward departure for minor participation, the
government argued that Cruz’s own admission described his role as
more than a mere mule in the transportation of the marijuana. The
government pointed out that Cruz admitted that he coordinated the
transportation, hiring the truck and drivers and helping to load
300 pounds of the seized marijuana, which was a sufficiently large
role to make him as culpable as other defendants in transporting
the marijuana.
At the sentencing hearing, Cruz’s counsel again argued that,
because Cruz only helped load the 300 pounds found in the cab of
the tractor-trailer, his role was a minor one. He expressly
limited his objection regarding the 300 pounds of marijuana,
however, to the question of whether Cruz played a minor role in the
transportation of the marijuana: “[J]ust for the record, I’m not
objecting that he was only responsible for 300. We understand he’s
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responsible for the entire amount. . . . As far as [Cruz’s]
knowledge and involvement with what was happening, and I was just
offering that to show that perhaps there is something to what he is
saying that he is a minor role.”
The district court overruled Cruz’s objections and sentenced
Cruz to the minimum imprisonment under the guideline range, 108
months, followed by 5 years’ supervised release, and a $200 special
assessment. Cruz timely appealed. On appeal, he argues that (1)
the 10,000 pounds of marijuana seized on April 13 should not be
included in the amount of drugs used for sentencing because its
inclusion was based on a confidential informant’s report that was
uncorroborated and had no other indicia of reliability; (2) he
should be held responsible only for the 300 pounds of marijuana
found in the cab of the tractor-trailer because he had no knowledge
of the 1,092 pounds of marijuana found in the trailer and could not
have reasonably anticipated that more marijuana was involved in the
smuggling conspiracy; and (3) the district court should have
applied the two-level downward departure to Cruz for having had a
minor role in the offense.
II.
A.
The district court’s sentencing determinations of drug
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quantities and relevant conduct are factual determinations that we
review for clear error. United States v. Kelley, 140 F.3d 596, 609
(5th Cir. 1998) (citing United States v. Reyna, 130 F.3d 104, 112
(5th Cir. 1997); United States v. Wilson, 116 F.3d 1066 (5th Cir.
1997); United States v. Leal, 74 F.3d 600, 607 (5th Cir. 1996)).
“There must be an acceptable evidentiary basis for the court’s
factfindings at the sentencing hearing. The district court’s
findings are not clearly erroneous if they are plausible in light
of the record reviewed in its entirety.” Id. (citing United States
v. Narvaez, 38 F.3d 162, 166 (5th Cir. 1994)).
For purposes of sentencing, the district court may rely on any
relevant evidence “without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3; see also United States v.
Young, 981 F.2d 180, 185 (5th Cir. 1993). While the burden is on
the defendant to “demonstrat[e] that information the district court
relied on in sentencing is materially untrue,” Young, 981 F.2d at
185 (internal quotations omitted), when the defendant successfully
argues that the information relied on by the sentencing court is
not “reasonably reliable,” we cannot uphold the sentence. United
States v. Shacklett, 921 F.2d 580, 584-85 (5th Cir. 1991); see also
United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990)
(“[A]s [the defendant] presented no rebuttal evidence, the district
court had discretion to adopt the PSI’s facts without more specific
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inquiry or explanation, provided that those facts had an adequate
evidentiary basis.”) (emphasis added).
A PSR generally bears sufficient indicia of reliability to be
considered as evidence by a sentencing judge when making factual
determinations, but unsupported and uncorroborated statements “do
not acquire the patina of reliability by mere inclusion in the
PSR.” United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir.
1998). The out-of-court declaration of a confidential informant
may be relied upon by the sentencing court when “there is good
cause for the nondisclosure of his identity and there is sufficient
corroboration by other means.” United States v. Rogers, 1 F.3d
341, 343 (5th Cir. 1993) (citing U.S.S.G. § 6A1.3).
In the present case, Cruz argues that the PSR indicates no
other evidence corroborating the SOI’s report that Cruz was
involved in a conspiracy to possess the 10,000 pounds of marijuana
seized on April 13. We agree. Throughout the sentencing
proceedings and on appeal, the government has indicated no further
evidence tending to corroborate the details of the SOI’s report.
Our review of the record reveals nothing that corroborates the
report of the SOI that Cruz received $120,000 for the
transportation of the marijuana seized on April 13 or that he
subsequently hid these proceeds. Unlike the evidence relating to
the marijuana seized on February 3, there is no evidence that the
SOI’s report was corroborated by further investigation or by
statements of witnesses or co-conspirators. Accordingly, we must
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find that the district court clearly erred when it relied on the
PSR to include the 10,000 pounds of marijuana seized on April 13 in
its sentencing determination. See Narviz-Guerra, 148 F.3d at 537;
Shacklett, 921 F.2d at 584; United States v. Michael, 894 F.2d
1457, 1459-60 & 1459 n.1 (5th Cir. 1990).
This error was not harmless. See Narviz-Guerra, 148 F.3d at
537-38 (examining whether the sentencing error resulting from the
district court’s reliance on an insufficiently reliable PSR was
harmless by evaluating whether the error led to an increased
sentence); see also United States v. Misher, 99 F.3d 664, 671 (5th
Cir. 1996). The inclusion of the 10,000 pounds of marijuana seized
on April 13 increased Cruz’s base offense level to 34. If the
district court had limited the relevant conduct to the 1,392 pounds
of marijuana seized on February 3, Cruz’s offense level would have
been 28. U.S.S.G. § 2D1.1(c). After applying the three-level
reduction for acceptance of responsibility, the maximum
imprisonment Cruz could have been sentenced to under the lower
offense level would have been 71 months, significantly less time
than the 108 months he received.
B.
Cruz did not object before the sentencing court to the
inclusion of the full 1,392 pounds of marijuana seized on February
3 as relevant conduct. Cruz’s counsel expressly informed the
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court that he was emphasizing his role in loading 300 pounds of
marijuana into the cab of the truck not as an objection to being
held responsible for the marijuana in the trailer, but strictly to
support his objection that he played a minor role in the
conspiracy. Because Cruz’s counsel expressly assented to being
held responsible for the full 1,392 pounds, he waived any objection
to the inclusion of the 1,092 pounds of marijuana found in the
trailer as relevant conduct, and we are precluded from reviewing
his argument on appeal that he should be held responsible only for
the 300 pounds seized from the cab of the tractor-trailer. United
States v. Olano, 507 U.S. 725, 732-33 (1993) (“The first limitation
on appellate authority under Rule 52(b) is that there indeed be an
‘error.’ Deviation from a legal rule is ‘error’ unless the rule
has been waived. . . . [W]aiver is the ‘intentional relinquishment
or abandonment of a known right.’”) (quoting Johnson v. Zerbst, 304
U.S. 458, 464 (1938)).
C.
Cruz’s final argument on appeal is that the court erred in not
applying a two-level reduction to his offense level pursuant to
section 3B1.2 of the sentencing guidelines for minor participation.
A minor participant is defined as “any participant who is less
culpable than most other participants.” U.S.S.G. § 3B1.2,
Application Note 3. “Culpability is a determination requiring
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sensitivity to a variety of factors.” United States v. Buenrostro,
868 F.2d 135, 138 (5th Cir. 1989). The defendant “bears the burden
of proving his minor role in the offense by a preponderance of the
evidence.” United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995)
(citing United States v. Zuniga, 18 F.3d 1254 (5th Cir. 1994)). The
minor participant downward adjustment is intended to be applied
infrequently “because most offenses are committed by participants
of roughly equal culpability.” Id. (citing United States v.
Allibhai, 939 F.2d 244, 254 (5th Cir. 1991)). Accordingly, the
sentencing court’s application of the minor participant sentencing
guideline is a “sophisticated factual determination” that we review
under the clear error standard. Buenrostro, 868 F.2d at 137.
Cruz argues that he was a minor participant because he was
neither the chief organizer of the drug smuggling operation nor the
owner of the marijuana. However, “[i]t is improper for a court to
award a minor participation adjustment simply because a defendant
does less than the other participants. Rather, the defendant must
do enough less so that he at best was peripheral to the advancement
of the illicit activity.” United States v. Thomas, 932 F.2d 1085,
1092 (5th Cir. 1991). Cruz admitted to hiring the drivers for the
tractor-trailer, personally helping to load the 300 pounds of
marijuana found in the cab of the tractor-trailer, and planning to
escort the load from El Paso to Dallas. Additionally, the
government presented statements by Tafoya and the passenger in the
tractor-trailer that Cruz was the coordinator of the transportation
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of the marijuana, responsible for hiring Tafoya and the truck,
arranging for lodging for the drivers and the people in the escort
vehicle, and for the return transportation of the others involved
upon delivery of the marijuana to Dallas. His participation was
beyond that of a mere courier and was integral to advancement of
the illicit activity. See id.; see also Brown, 54 F.3d at 241;
United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir. 1989).
In light of Cruz’s admissions and the government’s evidence, the
sentencing court’s refusal to apply a reduction for minor
participation by Cruz was not clearly erroneous.
Conclusion
For the foregoing reasons, we VACATE the sentence of the
district court, and REMAND for resentencing. The district court
may hold a new sentencing hearing at which the government and the
defendant may introduce evidence relevant to Cruz’s involvement
with the marijuana seized on April 13, 1999.
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