United States v. Solis , 299 F.3d 420 ( 2002 )

Revised August 6, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41490
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CLEOTIDE SOLIS, also known as Little Cocho; ECLISERIO MARTINEZ
GARCIA; SALVADOR PINEDA CONTRERAS, also known as Chino; FRANCISCO
FAVELA, also known as Jr, also known as Big Jr, also known as
Dreamer; ALFONZO MEZA; ARTURO MEZA, also known as Jr; HILARIO
MERLAN SOLIS, also known as Cocho; AURELIO MENDEZ; JOSE ALBERTO
MEZA, also known as Beefy,
Defendants-Appellants.
Appeal from the United States District Court
For the Eastern District of Texas
July 18, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This appeal arises from a 36-count indictment of 29 defendants
for conspiracy to distribute heroin and cocaine in Plano, Texas and
individual violations of 21 U.S.C. § 841(a)(1). Eleven defendants
went to trial, ten were convicted of conspiracy and various
individual drug offenses, and nine—Jose Cleotide Solis, Ecliserio
Martinez Garcia, Salvador Pineda Contreras, Francisco Favela,
Alfonzo Meza, Arturo Meza, Hilario Merlan Solis, Aurelio Mendez,
and Jose Alberto Meza—now appeal their convictions and sentences.
I. Factual background
In September 1997, a concerted effort by local and federal law
enforcement agencies to apprehend heroin traffickers in Plano,
Texas led to the formation of the Plano Heroin Task Force. The
government’s investigation determined that in late 1996 Aurelio
Mendez and Ecliserio Martinez Garcia were part of a conspiracy to
import heroin from Guerrero, Mexico, where it was manufactured, to
North Texas. Mendez and Garcia sold the heroin to Hilario Merlan
Solis. Hilario’s brother Jose Cleotide Solis then distributed the
heroin until he was arrested on July 9, 1997.
Among Hilario’s customers was Alfonzo Meza. Alfonzo lived at
1120 Avenue I in Plano, which became known as the “blue house,”
with his brother Jose Alberto Meza and several friends including
Francisco Favela and Santiago Mejia. These individuals, along with
Alfonzo’s and Jose’s brother Arturo Meza, sold heroin from the blue
house.
Search of Alfonzo Meza’s house on May 14, 1997
On May 14, 1997, officers arrived at the blue house holding an
arrest warrant for Jose Meza. At the same time, building
inspectors accompanied by two other Plano Police officers arrived
at the blue house. The inspectors intended to condemn the house
2
for housing code violations. After the officers with the warrant
searched the house for Jose and found that he was not present, a
police officer approached Alfonzo Meza outside the house and asked
if there were any weapons inside. Alfonzo replied that there was
a .45-caliber pistol on a shelf in his bedroom and consented to the
officer’s retrieving the gun. However, when the officer could not
reach the gun without assistance, an accompanying officer moved a
cooler from across the room for the officer to stand on. On moving
the cooler, the accompanying officer noticed a baggie containing
what appeared to be heroin capsules. After retrieving the gun, the
officers re-approached Alfonzo and received consent to search the
entire house. The blue house was thereafter condemned.
Aftermath of the search and condemnation of Alfonzo Meza’s house
After the blue house was condemned, Mejia, Favela and others
sold heroin and cocaine from hotel rooms, using Jose Solis as their
source until Jose’s arrest in July 1997. Hilario Solis then
introduced Salvador Contreras Pineda as the source for these
individuals’ drugs.
State court convictions of Favela and Alfonzo Meza
On September 18, 1997, Favela was arrested in a hotel room
with cocaine and heroin. He pled guilty to possession with intent
to deliver more than 4 grams but less than 200 grams of heroin,
possession of less than 1 gram or heroin, possession with intent to
deliver more than 4 grams but less than 200 grams of cocaine, and
3
possession of less than 1 gram of cocaine in Texas state court and
was sentenced to 20 years imprisonment.
Alfonzo Meza was likewise convicted on April 6, 1998 in Texas
state court of two counts of delivery of cocaine, one count of
possession with intent to deliver cocaine, and one count of
possession with intent to deliver heroin. He was sentenced to
concurrent 15-year terms on each of the four counts.
Search of Salvador Pineda’s house on November 23, 1997
Pineda lived in a house at 211 Walnut Street in McKinney,
Texas, with his wife and Garcia and Garcia’s wife. On November 23,
1997, Pineda and Garcia were arrested away from their house.
Police officers then arrived at 211 Walnut Street and obtained
consent from Pineda’s wife to search the residence and the
outbuildings behind the house.
Convictions of Salvador Pineda and Ecliserio Martinez Garcia
Pineda pled guilty on March 3, 1998 to possession with intent
to distribute heroin and, on June 25, 1998, was sentenced to a term
of imprisonment of 125 months. Garcia pled guilty on March 13,
1998 pursuant to a written plea agreement with the government and
was sentenced to a term of imprisonment of 120 months.
Statement of Jose Meza on March 26, 1998 Jose Meza was arrested on
March 26, 1998 and promptly gave a videotaped confession to the
police.
4
Indictment in the present case
On June 24, 1998, the Federal Grand Jury for the Eastern
District of Texas returned a 36-count indictment charging 29
defendants. Count 1 charges a conspiracy from an unknown date
until December 1997 to distribute heroin and cocaine in violation
of 21 U.S.C. § 846. Counts 2-7, 9, 12-16, and 18-28 charge various
defendants with distribution of or possession with intent to
distribute heroin or cocaine or both in violation of 21 U.S.C. §
841(a)(1). Counts 6, 9, 12, 16, and 27 also charge that a user of
the drugs died or suffered serious bodily injury from the use of
the drugs.
Thereafter, Mendez was arrested on July 22, 1998, and his
house was searched. The following day, the co-conspirators named
in the indictment who were not already in custody were arrested in
a multi-agency drug sweep.
Course of proceedings in the district court
On December 17, 1998, the district court denied, inter alia,
Pineda’s and Alfonzo Meza’s motions to suppress evidence seized
from their residences; Jose Meza’s motion to suppress his
videotaped confession; Garcia’s, Jose Meza’s, Alfonzo Meza’s, and
Favela’s motions to dismiss the indictment; and Mendez’s motion to
sever. The district court allowed each defendant to join in other
defendants’ motions and objections without an additional filing.
5
The defendants also filed motions to strike surplusage in the
indictment, specifically any reference to heroin deaths or injuries
set forth in Counts 6, 9, 12, 16, and 27 and Count 1's Overt Acts
7, 10, 13, and 34. They also requested that the district court
limit the government’s proof at trial to evidence of possession,
distribution, and manufacture of controlled substances and other
statutory violations. The district court granted these requests
and struck the language from the indictment.
Trial began on February 3, 1999. The district court denied
motions for acquittal by Jose Solis, Garcia, Pineda, Favela,
Alfonzo Meza, Arturo Meza, Hilario Solis, Mendez, and Jose Meza on
February 22, and, on February 25, the following verdict was
returned:
Jose Solis guilty on Count 1-3, 6-7
Garcia guilty on Counts 1, 6, 9, 12, 14-15, 18-28
Pineda guilty on Counts 1, 6, 9, 12, 14-15, 18-25,
27-28
Favela guilty on Counts 1, 4-5, 13
Alfonzo Meza guilty on Counts 1-6, 12, 27
acquitted on Count 9
Arturo Meza guilty on Counts 1, 4-6, 9, 12, 27
Hilario Solis guilty on Counts 1, 6, 9, 12
Mendez guilty on Counts 1, 6, 9, 12, 27
Jose Meza guilty on Counts 1, 4-5, 12, 27
acquitted on Counts 6, 9
On December 7-8, 1999, the district court held a hearing on
the causes of death and serious bodily injury as a result of the
6
use of heroin and cocaine distributed by the defendants and on the
applicability of U.S.S.G. § 2D1.1(a)(2). The government presented
testimony from medical examiners as to the causes of death of the
individuals the government alleged died as a result of the sale of
drugs charged in Counts 6, 9, 12, and 27. The district court found
by a preponderance of the evidence that heroin caused the deaths of
three of the individuals—Milan Malina (Count 6), George Wesley
Scott (Count 9), and Rob Hill (Count 12)—and that heroin and
cocaine together caused the death of Erin Baker (Count 27) and the
serious bodily injury to Daniel Mierek (Count 16).
On December 8, 1999, the district court imposed the following
sentences on Garcia, Pineda, Favela, and Mendez:
Garcia life imprisonment on Counts 1, 6, 9, 12, 27
480 months on Counts 26, 28
240 months on Counts 14-15, 18-25
Pineda life on Counts 1, 6, 9, 12, 27
480 months on Count 28
240 months on Counts 14-15, 18-25
Favela 140 months on Counts 1, 4, 5, 13
Mendez life on Counts 1, 6, 9, 12, 27
On December 9, 1999, the district court imposed the following
sentences on Jose Solis, Alfonzo Meza, Arturo Meza, Hilario Solis,
and Jose Meza:
Jose Solis 240 months on Counts 1-3, 6-7
Alfonzo Meza 360 months on Counts 1, 6, 12, 27
240 months on counts 2-5
Arturo Meza 360 months on Counts 1, 6, 9, 12, 27
240 months on Counts 4-5
7
Hilario Solis 400 months on Counts 1, 6, 9, 12
Jose Meza 360 months on Counts 1, 12, 27
240 months on Counts 4-5
The district court ordered each defendant’s sentences to run
concurrently.
All nine defendants have timely appealed their convictions and
sentences. We address the defendants' challenges in turn.
II. Challenges to the defendants’ convictions
A. Motions to dismiss on grounds of double jeopardy and violation
of plea agreement
1.
Garcia argues that the district court erred in denying his
motion to dismiss on grounds that the prosecution violated his plea
agreement in an earlier case. He claims that his earlier guilty
plea barred this prosecution because the government agreed not to
charge him for acts which he committed prior to the date of the
plea agreement and which he disclosed to the government, provided
they were not crimes of violence or violations of Title 26 of the
United States Code.
We review de novo the legal question of whether the
government’s conduct violates the terms of the plea agreement,1 but
Garcia bears the burden of proving the facts establishing a breach
of the agreement—specifically, paragraph 9 providing that the
1
United States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).
8
government agrees “[n]ot to charge Defendant with any other
criminal violations concerning activities committed prior to the
date of this agreement which the Defendant makes known to the
United States and which did not involve crimes of violence or Title
26 offenses”—by a preponderance of the evidence.2 The
uncontroverted evidence offered at the hearing on Garcia’s motion
established that Garcia did not disclose the crimes for which he is
charged within the instant indictment. Garcia did not prove that
the government breached paragraph 9 of his plea agreement by
indicting Garcia in cause number 4:98-CR-47. We affirm the
district court’s denial of Garcia’s motion to dismiss on these
grounds.
2.
Pineda argues that the district court erred in denying his
motions to dismiss the indictment on double jeopardy grounds
because his indictment in an earlier case barred this prosecution
for possession with intent to distribute heroin.3
“[W]hether a prosecution violates the Double Jeopardy Clause
of the Fifth Amendment is a question of law and is reviewed de
novo,” but the district court’s factual findings are reviewed only
2
United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000).
3
Garcia raised a similar argument before the district court, which he has
not renewed on appeal, although he has generally moved to adopt his co-
defendants’ argument pursuant to Federal Rule of Appellate Procedure 28(i). He
may not, however, adopt Pineda’s argument on appeal because it is necessarily
fact-specific. See United States v. Baptiste, 264 F.3d 578, 586 n.6 (5th Cir.
2001) (“FRAP 28(i) permits appellants to do so for challenges that are not
fact-specific as to a particular defendant.”).
9
for clear error.4 Pineda’s challenge to the indictment fails.
Pineda may be charged with conduct in a conspiracy count, as overt
acts, in the instant indictment (4:98-CR-47) for criminal conduct
of which he has previously been convicted under a different
indictment (4:98-CR-3) under 21 U.S.C. § 841(a)(1).5 Even to the
extent conduct charged in Counts 1, 19-21, 23-25, and 28 of the
instant indictment was used as relevant conduct in sentencing
Pineda in cause number 4:98-CR-3, there is no violation of the
Double Jeopardy Clause in the indictment for this conduct in the
instant cause. Moreover, the sentences imposed on Pineda in the
two cases run concurrently.6
“Collateral estoppel completely bars a subsequent prosecution
only when a fact ‘necessarily determined’ in the first prosecution
is an essential element of the offense charged in the subsequent
prosecution.”7 The facts necessary to the determination of
Pineda’s guilt for possession with intent to distribute heroin in
cause number 4:98-CR-3 are not essential elements of the conspiracy
charge in Count 1 of the instant indictment, even if alleged
4
United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).
5
See United States v. Brackett, 113 F.3d 1396, 1400 n.6 (5th Cir. 1997);
United States v. Deshaw, 974 F.2d 667, 676 (5th Cir. 1992); United States v.
Marden, 872 F.2d 123, 125 (5th Cir. 1989).
6
See United States v. Wittie, 25 F.3d 250, 254-61 (5th Cir. 1994).
7
Brackett, 113 F.3d at 1399.
10
therein as overt acts.8 The court did not err in denying Pineda’s
motion to dismiss.
3.
Favela argues that the district court erred in denying his
motion to dismiss Counts 1, 4, 5, and 13 of the indictment on
double jeopardy grounds. He argues that he pled guilty in an
earlier prosecution in state court to the exact transactions listed
in Overt Acts 5, 6, and 16 in Count 1 of the instant indictment and
that his prior conviction in state court is for the same alleged
criminal conduct listed in Counts 1, 4, 5, and 13, all requiring
the same elements, except for the conspiracy charge in Count 1.
Favela argues that his claim is excepted from the dual sovereignty
doctrine because of the comprehensive interaction between the state
and federal agencies involved in his arrest.9
It is well-established that, “[u]nder the dual sovereignty
doctrine, successive prosecutions by separate sovereigns for crimes
arising out of the same acts are not barred by the Double Jeopardy
Clause,” unless “‘prosecution by one sovereign is used as a tool
for successive prosecution by another sovereign.’”10 However,
8
Cf. id. at 1399-1400.
9
Alfonzo Meza raised the same argument before the district court, which
he has not renewed on appeal, although he has generally moved to adopt his co-
defendants’ argument pursuant to Rule 28(i). He may not, however, adopt Favela’s
argument on appeal because it is necessarily fact-specific. See Baptiste, 264
F.3d at 586 n.6.
10
United States v. Johnson, 91 F.3d 695, 697 (5th Cir. 1996) (quoting
United States v. Lanza, 260 U.S. 377, 382 (1922)).
11
“[w]hen a defendant claims collusion between federal and state law
enforcement officials, the defendant has the burden of producing
evidence to show a prima facie double jeopardy claim.”11 The
district court’s determination of whether the defendant has come
forward with evidence to show a prima facie case of “collusion
between the federal and state government” is a factual finding we
review only for clear error.12
Favela’s double jeopardy claim is without merit. Under the
dual sovereignty doctrine, there is no double jeopardy violation in
any overlap that may exist between Favela’s state court drug
convictions and substantive counts or overt acts charged in the
instant indictment. Favela has not established any clear error in
the district court’s finding that there was no collusion between
the federal and state prosecutors in this case or, more
specifically, that there was no evidence that the state prosecution
of Favela was merely a tool of the federal authorities. The
district court did not err in denying Favela’s motion to dismiss.
B. Motions to suppress the fruits of consent searches
In reviewing the denial of the defendant’s motion to suppress,
we review the district court’s factual findings, including its
credibility choices, for clear error and its legal conclusions de
11
United States v. McKinney, 53 F.3d 664, 676 (5th Cir. 1995).
12
Id.
12
novo.13 “We view the evidence in the light most favorable to the
party that prevailed in the district court,” here the government.14
A search conducted pursuant to consent is excepted from the
Fourth Amendment’s warrant and probable cause requirements.15 “In
order to satisfy the consent exception, the government must
establish that consent to search was freely and voluntarily given
and that the individual who gave consent had authority to do so”
and “must prove by a preponderance of the evidence that consent was
voluntary and effective.”16 Additionally, “the government has the
burden of proving that the search was conducted within the scope of
the consent received.”17
Consent need not be given by the defendant himself. “In the
context of searches, it is well established that the police may
conduct a warrantless search of an area without running afoul of
the Fourth Amendment if a third party with common control over the
area consents to the search.”18
“The voluntariness of consent is a question of fact to be
determined from a totality of the circumstances,” and we review the
13
United States v. Hunt, 253 F.3d 227, 229-30 (5th Cir. 2001).
14
Id. at 230.
15
United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997).
16
Id.
17
United States v. Wilson, 36 F.3d 1298, 1304 (5th Cir. 1994).
18
United States v. Hernandez-Zuniga, 215 F.3d 483, 487 (5th Cir.), cert.
denied, 531 U.S. 1038 (2000).
13
district court’s finding of voluntariness for clear error.19
“‘Where the judge bases a finding of consent on the oral testimony
at a suppression hearing, the clearly erroneous standard is
particularly strong since the judge had the opportunity to observe
the demeanor of the witnesses.’”20 This court considers six factors
in evaluating the voluntariness of consent to search, all of which
are relevant, but no one of which is dispositive or controlling.21
The consent, however, may not be given “simply in acquiescence to
a claim of lawful authority.”22
1.
Pineda argues that the district court erred in denying his
motion to suppress the evidence found in the warrantless search of
his house and the outbuildings behind his house on November 23,
1997, based on the allegedly invalid consent obtained from Pineda’s
wife.
Pineda first contends that his wife’s consent was
involuntarily given. The district court, after hearing conflicting
19
United States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995).
20
United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (quoting
United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)).
21
Id. (“In evaluating the voluntariness of consent, we have considered
six factors: ‘(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the defendant’s awareness of his
right to refuse to consent; (5) the defendant’s education and intelligence; and
(6) the defendant’s belief that no incriminating evidence will be found.’”
(quoting United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988))).
22
United States v. Lopez, 911 F.2d 1006, 1010 (5th Cir. 1990).
14
testimony at a suppression hearing, found that: Pineda’s wife was
not placed under arrest prior to, or coerced into, signing the
form; an INS agent explained the form to Pineda’s wife in Spanish
and advised her of her rights to refuse consent and to require a
search warrant; Pineda’s wife was not threatened or promised
anything and did not appear to be distraught; Pineda’s wife
cooperated in the search and pointed out heroin in a closet; based
on the court’s observations at the hearing, she was intelligent
enough to know what was being asked of her; and she was aware that
incriminating evidence was at the house because she pointed heroin
out herself. Viewing the evidence in the light most favorable to
the government, and giving due deference to the credibility
determinations of the district court, we conclude that the district
court did not clearly err in its findings and that, under the
totality of the circumstances, the district court did not err in
concluding that Pineda’s wife’s consent was voluntarily given.
Pineda also argues that the government failed to prove that
his wife had authority to give consent to search the house and the
outbuildings. He argues that the record does not support the
government’s reliance on her joint access or control over the
residence and outbuildings or that the officers reasonably believed
that she was authorized to consent. The district court found that
Pineda’s wife has authority to consent to the search of the house
and outbuildings, because she lived there with her husband and
mutually used the property and had joint access to and control over
15
it. Based upon our review of the record as a whole, we conclude
that the district court’s findings are not clearly erroneous and
that, at the very least, the circumstances surrounding Pineda’s
wife’s giving consent to search are such that reasonable officers
could have believed that she was authorized to consent to a search
of her marital residence.23 Accordingly, we affirm the district
court’s denial of Pineda’s motion to suppress.
2.
Jose Meza argues that the district court erred in denying a
motion to suppress evidence taken from Alfonzo Meza’s house—the
“blue house”—in a search on May 14, 1997. We note that Alfonzo
Meza filed the motion to suppress the fruits of this search, not
Jose Meza. On appeal, the issue of the district court’s alleged
error in denying the motion to suppress the drugs, guns, and other
evidence recovered from the house is specifically raised only by
Jose Meza. Jose Meza’s argument on appeal may be adopted by
Alfonzo Meza through Rule 28(i), because the facts are not specific
to Jose Meza vis-à-vis Alfonzo Meza and because Alfonzo clearly has
standing to challenge the search of his residence. We conclude, in
any event, that neither defendant is entitled to relief on this
point of error.
To begin with, contrary to Jose Meza’s contention, the police
did not require probable cause or a warrant to ask Alfonzo Meza
23
See Gonzales, 121 F.3d at 938.
16
whether any weapons were located in the house, where there is no
indication that asking him this question amounted to a Fourth
Amendment seizure.24 Nor was probable cause required once the
officers obtained Alfonzo Meza’s consent to seize the gun he
identified as being in his bedroom on a shelf.25
Jose Meza argues that Alfonzo Meza’s consent to a search for
the gun he identified was not given freely and voluntary. In
support of this claim, Jose Meza notes that: seven police officers
were present, constituting a show of force and grounds for assuming
that the search was inevitable; the police officer asked Alfonzo
about weapons only after the officers serving the arrest warrant
for Jose Meza searched the house and did not find Jose; Alfonzo was
never read a Miranda warning before being asked about weapons;
Alfonzo was never advised that he had the right to refuse consent
to search for the gun; and there is no evidence that ownership of
the gun in his house was illegal.
We note first that many of these observations cut in favor of
a finding of voluntariness. For example, that Alfonzo was not in
custody and that the police were not required to read him a Miranda
warning.26 Moreover, while “knowledge that incriminating evidence
would be found does not necessarily weigh against a finding of
24
See Cooper, 43 F.3d at 145.
25
See United States v. Muchaca-Barrera, 261 F.3d 425, 435 n.33 (5th Cir.
2001).
26
See United States v. Tompkins, 130 F.3d 117, 122 (5th Cir. 1997).
17
voluntary consent,”27 the absence of an obvious crime in the
ownership of a gun certainly does not render consent involuntary.
Further, we have held consent to be voluntary even in the face of
greater shows of force than the presence here of seven officers,
some in uniform and none with weapons drawn or displaying force
beyond their presence in numbers.28 Furthermore, “[w]hile knowledge
of the right to refuse consent is one factor in determining
voluntariness, the failure to advise an individual of the right to
withhold consent is not determinative in and of itself.”29
We also note that, after hearing testimony at the suppression
hearing, the district court found that Alfonzo Meza voluntarily
gave oral consent to search the house for the gun. Viewing the
evidence in the light most favorable to the government, and
crediting the district court’s credibility determinations, we
conclude that, under the totality of the circumstances, Alfonzo
Meza’s consent to search for the gun in his room was voluntarily
given.
However, having obtained this consent to search and having
proceeded to the room where Alfonzo indicated the gun was located
on a shelf, an officer accompanying the officer who was given
consent to search for the gun moved a cooler over to the shelf to
27
Id.
28
See Gonzales, 121 F.3d at 939.
29
United States v. Galberth, 846 F.2d 983, 988 (5th Cir. 1988) (footnote
omitted).
18
allow the shorter, searching officer to reach the gun. Jose Meza
argues that, in so doing, the police exceeded the scope of the
consent to search and violated his Fourth Amendment rights and that
this violation tainted the subsequent consent Alfonzo gave to
search the entire house.30 We disagree. The uncontroverted
evidence shows that the cooler was moved only in order to
effectuate the search for the gun, for which consent was
voluntarily given. As such, the officers did not exceed the scope
of the consent,31 and, as the district court found, the heroin found
under the cooler was in plain view.32
We further conclude that, under the totality of the
circumstances, the subsequent consent to search was voluntarily
given. The district court, after hearing testimony at the
suppression hearing, found that: Alfonzo Meza gave written consent
to further search the residence; the consent form informed Alfonzo
of his right to refuse consent; Alfonzo was cooperative and was not
in custody at the time; there were no coercive police procedures
used; and Alfonzo was free to leave and did so. Viewing the
evidence in the light most favorable to the government, and giving
due deference to the district court’s credibility determinations,
30
See United States v. Vega, 221 F.3d 789, 801-02 (5th Cir. 2000), cert.
denied, 531 U.S. 1155 (2001).
31
See United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996); United
States v. McSween, 53 F.3d 684, 687 (5th Cir. 1995).
32
See United States v. Munoz, 150 F.3d 401, 411 (5th Cir. 1998).
19
we conclude that the district court did not clearly err in its
findings and that the district court correctly concluded that
Alfonzo Meza’s consent was voluntarily given. We hold that the
district court did not err in refusing to suppress the fruits of
the search of Alfonzo Meza’s residence.
C. Motion to suppress Jose Meza’s videotaped confession
Jose Meza argues that the district court erred in denying his
motion to suppress, and thereafter admitting, his videotaped
confession of March 26, 1998. He argues that he was intoxicated
when he gave the statement and, as such, despite being given a
Miranda warning, his confession was not the product of his free and
rational choice and he did not freely and voluntarily waive his
constitutional rights to counsel and silence.
“In reviewing a ruling on a motion to suppress a confession,
we give credence to the credibility choices and fact finding by the
district court unless they are clearly erroneous,” but “the
ultimate issue of voluntariness is a legal question reviewed de
novo.”33 Likewise, “a district court’s determination regarding the
validity of a defendant’s waiver of his Miranda rights is a
question of law reviewed de novo, but this court accepts the
factual conclusions underlying the district court’s legal
determination unless they are clearly erroneous.”34
33
United States v. Mullin, 178 F.3d 334, 341 (5th Cir. 1999).
34
United States v. Garcia Abrego, 141 F.3d 142, 171 (5th Cir. 1998).
20
We have rejected a challenge similar to Jose Meza’s in United
States v. Garcia Abrego,35 wherein the defendant argued that “that
the drugs that Mexican officials administered to him, coupled with
the solicitousness of U.S. law enforcement officials, rendered his
custodial statement involuntary.”36 There, we concluded that “[t]he
record contains ample evidence from which the district court could
conclude that the drugs that Mexican authorities administered to
Garcia Abrego did not impair his mental capacity” and that “Dr.
Coleman’s testimony that Garcia Abrego did not appear impaired and
evinced none of the symptoms of a Valium overdose, together with
the testimony of the officers who interviewed Garcia Abrego that he
appeared in no way impaired, provided an adequate basis for the
district court’s conclusion that Garcia Abrego’s mental capacity
was not impaired as a result of the drugs that he had been
administered earlier in the day.”37 We further observed that “the
district court was free to accord great weight to the testimony of
those individuals who actually observed Garcia Abrego prior to his
interview with law enforcement authorities.”38
Similarly, here, Jose Meza presented his own testimony that he
“did some speed” about an hour before being taken into custody and
35
141 F.3d 142 (5th Cir. 1998).
36
Id. at 170.
37
Id.
38
Id.
21
that he did not remember being arrested or being read a Miranda
warning. He also testified that he had been arrested and read
Miranda warnings several times previously and understood his rights
each time. Jose Meza also presented the testimony of a licensed
chemical dependency counselor who testified that, based on a review
of portions of the videotaped statement, Jose Meza appeared to be
on some kind of amphetamine.
The government presented the testimony of Billy Meeks, an
experienced Plano Police Department detective who interviewed Jose
Meza and who had prior dealings with him. Meeks testified that he
read Jose Meza a Miranda warning and that Jose responded that he
understood and that he was willing to talk. Meeks also testified
that there was no indication that Jose Meza was under the influence
of any controlled substance and that, when asked prior to the
interview, Jose Meza stated that he had last used cocaine or heroin
eleven days before. Meeks further testified that Jose Meza was not
in handcuffs, was not threatened or made any promises, and was
aware of questions asked and was responsive.
The district court also viewed portions of the videotape
itself. It then found that: the interview took place one hour
after arrest; Jose Meza was informed of the charges and read a
Miranda warning; no coercion was used and no promises were made;
and Jose Meza looked alert on the videotape, was lucid and
responsive, was quite articulate talking to Meeks and answering
22
Meeks’s questions, and appeared to be understanding the
conversation, despite occasionally yawning and scratching himself.
On the strength of these findings, which we conclude were not
clearly erroneous, we conclude that the government proved, by a
preponderance of the evidence, that Jose Meza voluntarily confessed
and validly waived his Fifth Amendment rights following a Miranda
warning.39 As such, we affirm the district court’s denial of Jose
Meza’s motion to suppress his videotaped statement.
D. Motions to sever
Joinder of defendants “is proper if co-defendants are alleged
to have participated in the same act or transactions constituting
the offense.”40 Generally, “persons indicted together should be
tried together, especially in conspiracy cases.”41 Under Federal
Rule of Criminal Procedure 14, a “[d]istrict court may grant a
severance ‘[i]f it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial together.’”42
39
See Mullin, 178 F.3d at 341-42; Garcia Abrego, 141 F.3d at 170, 171;
United States v. Andrews, 22 F.3d 1328, 1337-38 (5th Cir. 1994).
40
Burton v. United States, 237 F.3d 490, 494 (5th Cir. 2000).
41
Id.
42
United States v. Matthews, 178 F.3d 295, 298 (5th Cir. 1999) (quoting
FED. R. CIV. P. 14).
23
“We review the denial of a severance motion for an abuse of
discretion.”43 Our standards for challenges to a district court’s
denial of a motion to sever are well-settled: “To prevail, “the
defendant must show that: (1) the joint trial prejudiced him to
such an extent that the district court could not provide adequate
protection; and (2) the prejudice outweighed the government’s
interest in economy of judicial administration.”44
1.
Jose Solis argues that the district court erred in denying him
a severance because he was forced to trial with his brother, who
was charged with numerous overt acts which Jose Solis argues
produced a spill-over effect leading to Jose’s convictions, and
that he was afraid to testify on his own behalf.45 He argues that
he was convicted on guilt by association.46
We conclude that the district court did not abuse its
discretion in denying a severance for Jose Solis. The grounds
raised by Jose Solis do not rise to the level of a serious risk
43
United States v. Peterson, 244 F.3d 385, 393 (5th Cir.), cert. denied,
122 S. Ct. 133, and cert. denied, 122 S. Ct. 142 (2001).
44
Id. (quoting United States v. Richards, 204 F.3d 177, 193 (5th Cir.),
cert. denied, 531 U.S. 826 (2000)).
45
Jose Solis did not personally file a motion to sever but simply adopted
his co-defendants’ motions per the district court’s order, insofar as they were
applicable to him, and then orally reurged the motion to sever at trial.
46
To the extent the other defendants would seek to raise this issue by
adoption by reference under Rule 28(i), severance issues are fact-specific,
requiring a showing of “specific compelling prejudice,” United States v. Nutall,
180 F.3d 182, 187 (5th Cir. 1999), and so cannot be so adopted by reference, see
Baptiste, 264 F.3d at 586 n.6.
24
that a joint trial would compromise one of Jose Solis’s specific
trial rights or prevent the jury from making a reliable judgment
about guilt or innocence, and the district court issued sufficient
cautionary instructions to the jury.47 Moreover, the jury acquitted
some of the alleged co-conspirators, supporting an inference that
the jury sorted through the evidence, however complex, and
considered each defendant and each count separately.48
2.
Mendez argues that the district court erred in denying his
motion to sever because he was prejudiced by being tried with co-
defendants with prior convictions admitted in evidence against them
and by the cumulatively prejudicial combination of evidence,
offenses, and defendants and confusion of identities. Mendez’s
arguments do not merit reversal, especially where, as here, the
district court gave proper cautionary and limiting instructions
sufficient to mitigate the risks of prejudice of which Mendez
complains,49 and where it cannot be said that the “jury could not
be expected to compartmentalize the evidence as it relates to
47
See Peterson, 244 F.3d at 393-95; United States v. Broussard, 80 F.3d
1025, 1037 (5th Cir. 1996); see also United States v. Carbajal, 290 F.3d 277, 289
n.20, 291 (5th Cir. 2002); cf. United States v. Bermea, 30 F.3d 1539, 1573 (5th
Cir. 1994) (rejecting a similar claim by a defendant “that he was greatly
prejudiced by being tried jointly with three family members”); United States v.
Partin, 552 F.2d 621, 640-41 (5th Cir. 1977) (rejecting a similar guilt-by-
association-with-one’s-brother argument).
48
See United States v. Ellender, 947 F.2d 748, 755 (5th Cir. 1991).
49
See Richards, 204 F.3d at 193-94; United States v. Cihak, 137 F.3d 252,
259 (5th Cir. 1998); United States v. Rocha, 916 F.2d 219, 228-29 (5th Cir.
1990); Ellender, 947 F.2d at 755.
25
separate defendants.”50 We conclude that the district court did not
err in denying Mendez’s motion to sever.
Mendez, however, also argues that the district court erred by
denying his motions to sever, for mistrial, and for new trial based
on Jose Solis’s admission of the existence of a conspiracy during
his closing argument. He argues that this admission by a non-
testifying co-defendant violates his Fifth Amendment due process
and Sixth Amendment Confrontation Clause rights.
We review the denial of motions for mistrial and for new trial
for abuse of discretion.51 We reject Mendez’s argument. First, it
is not at all clear that Jose Solis actually admitted the existence
of the conspiracy. Throughout the closing, his attorney
alternately referred to “the alleged conspiracy” and “the
conspiracy.” Second, to the extent that the statement did admit
the existence of the conspiracy, the district court gave cautionary
instructions that argument and statements of counsel are not
evidence, as we have found sufficient to cure such prejudice in a
similar case, in which one defendant’s attorney indicated it was
his belief that the evidence was sufficient to establish his
client’s guilt on one of the counts.52 Furthermore, because the
50
United States v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987).
51
United States v. Barton, 257 F.3d 433, 439 n.10 (5th Cir. 2001) (motion
for new trial), cert. denied, 122 S. Ct. 905 (2002); United States v. Honer, 225
F.3d 549, 555 (5th Cir. 2000) (motion for mistrial).
52
United States v. Hawkins, 661 F.2d 436, 454-55 (5th Cir. Unit B Nov.
1981).
26
closing argument was not evidence, there was no denial of Mendez’s
rights secured by the Confrontation and Due Process Clauses.53
Furthermore, to the extent Mendez sought a mistrial and
severance on these grounds, we have held that one co-defendant’s
admitting a conspiracy was not a mutually antagonistic defense that
required severance.54 No particular co-defendant was implicated,
so the statement does not implicate Bruton concerns.55 We find no
error in the district court’s denial of Mendez’s motions to sever,
for mistrial, and for new trial.
E. Challenges to evidentiary rulings
1. Admission of summary testimony and charts under Federal Rule
of Evidence 1006
Garcia argues that the district court erred in admitting into
evidence the government’s exhibits 615-631, a series of charts
summarizing evidence of communications between the defendants. We
review a district court’s evidentiary rulings for abuse of
discretion and consider whether any error is harmless.56
We find no error in admitting the charts. The charts were
drawn from competent evidence before the jury, which was available
53
Cf. id.
54
See Rocha, 916 F.2d at 231; see also Zafiro v. United States, 506 U.S.
534, 538 (1993) (holding that “[m]utually antagonistic defenses are not
prejudicial per se,” so as to mandate severance).
55
See generally Nutall, 180 F.3d at 188.
56
See United States v. Powers, 168 F.3d 741, 748 (5th Cir. 1999).
27
to the defendants at trial and was subject to cross-examination.57
Moreover, the jury was properly instructed concerning use of the
charts and the limitations thereof.58 Furthermore, even if there
was error in the use of the charts or the testimony of Agent Scott
Douglas introducing them, Garcia does not argue that it affected
one of his substantial rights.59 The district court did not abuse
its discretion in admitting this summary evidence.
2. Admission of co-conspirator statements under Federal Rule of
Evidence 801(d)(2)(E)
Mendez argues that the district court abused its discretion in
admitting hearsay statements, through the non-hearsay definition
of Federal Rule of Evidence 801(d)(2)(E) for co-conspirator
statements, from Chris Cooper, Honey Parsa, Jonathon Kollman,
Meghann LaBonte, and Santiago Mejia regarding the source of drugs
and hearsay statements from himself, because these statements were
not made in furtherance of the conspiracy. We review “‘the
admission of hearsay evidence under the non-hearsay definition of
Rule 801(d)(2)(E) for abuse of discretion.’”60 Under our precedent,
“[t]he proponent of admittance under Rule 801(d)(2)(E) must prove
57
See United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001), cert.
denied, 122 S. Ct. 1605 (2002).
58
See id.
59
Compare United States v. Hart, No. 01-60304, 2002 WL 1285810, at *7
(5th Cir. June 12, 2002).
60
United States v. Phillips, 219 F.3d 404, 418 n.21 (5th Cir. 2000)
(quoting United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999)).
28
by a preponderance of the evidence (1) the existence of a
conspiracy, (2) the statement was made by a co-conspirator of the
party, (3) the statement was made during the course of the
conspiracy, and (4) the statement was made in furtherance of the
conspiracy.”61
After reviewing the evidence offered in connection with these
statements, we affirm the district court’s rulings admitting the
challenged co-conspirators’ statements and taped conversation. The
government offered adequate evidence in support of the district
court’s rulings admitting these statements, and the district
court’s findings in support of those rulings were not clearly
erroneous.62 Accordingly, the district court did not abuse its
discretion in admitting these statements under Rule 801(d)(2)(E).
61
Id.
62
See id. at 418-19; United States v. Green, 180 F.3d 216, 222-23 (5th
Cir. 1999).
29
3. Admission of redacted confessions of non-testifying co-
defendants Arturo Meza and Jose Meza
Mendez also argues that the district court abused its
discretion in admitting redacted summaries of Arturo Meza’s
statement and Jose Meza’s statements in violation of his Fifth
Amendment rights as developed by Bruton and its progeny.
We conclude that there was no Bruton error in the admission of
the summaries of the confessions of Arturo Meza and Jose Meza. The
summaries contain no references to co-defendants, or specifically
Mendez, even as a neutral pronoun.63 Additionally, the district
court provided proper limiting instructions.64 We affirm the
district court’s admission of the summaries of the statements of
Jose Meza and Hilario Meza into evidence.65
F. Prosecutor’s alleged comment on Garcia’s failure to testify and
post-arrest silence
Garcia argues that the district court erred in overruling his
objection to the prosecutor’s alleged comment on his refusal to
testify and his right to remain silent in violation of his Fifth
Amendment rights. “We review de novo whether a prosecutor’s
63
See Nutall, 180 F.3d at 188; United States v. Vejar-Urias, 165 F.3d
337, 339-40 (5th Cir. 1999).
64
See Vejar-Urias, 165 F.3d at 340.
65
We have also considered Mendez’s other evidentiary arguments but deemed
them to be without merit.
30
argument is an impermissible comment on the defendant’s right not
to testify.”66
“We apply a two-tiered test to [a defendant’s] claim that the
prosecutor improperly commented on his failure to testify,” the
first tier of which is to “determine whether the comments at issue
were constitutionally impermissible.”67 We conclude that the
prosecutor here did not make a constitutionally impermissible
comment by stating: “This is a circumstantial case, it’s a look
back in time and piecing together of evidence that Defendants
didn’t want you or I to discover.” Garcia objected to this
statement at trial, and the district court gave a cautionary
instruction and overruled the objection. The prosecutor then
clarified his argument to the jury by stating that, “[c]learly,
when people are engaged in criminal conduct, they don’t want to be
caught. And that’s the point I’m trying to make.”
Under these facts, the prosecutor’s manifest intent was not to
comment on the defendant’s silence and the character of the remark
was not such that the jury would naturally and necessarily construe
it as a comment on the defendant’s silence.68 The more plausible
explanation for the remark was that given by the prosecutor after
66
United States v. Morrow, 177 F.3d 272, 299 (5th Cir. 1999).
67
United States v. Virgen-Moreno, 265 F.3d 276, 291 (5th Cir. 2001),
cert. denied, 122 S. Ct. 843, and cert. denied, 122 S. Ct. 1452 (2002).
68
See id.
31
the objection was overruled. This comment was constitutionally
permissible, and we reject this point of error.69
G. Sufficiency of the evidence to establish venue for Count 12
Arturo Meza argues that the district court erred in denying
his motion for acquittal as to Count 12 when the government offered
insufficient evidence that any of the events described therein
occurred on August 19, 1997, in the Eastern District of Texas, as
required for venue. Mendez raises the same argument and also
argues that the government failed to prove venue for the most
prejudicial overt acts charged against him in Count 1.70
We review the district court’s denial of a motion for judgment
of acquittal de novo.71 Where a defendant argues that the
government failed to adduce evidence sufficient to support venue
for a particular count, “we view the evidence in the light most
favorable to the Government, drawing all reasonable inferences in
favor of the verdict.”72 According to statute, “[w]hen an offense
69
Garcia also argues that the prosecutor’s comment constituted a Doyle
violation. See Doyle v. Ohio, 426 U.S. 610, 618-19 (1976). “A Doyle violation
occurs when the government comments on the defendant’s silence to rebut the
defendant’s exculpatory story.” United States v. Garcia-Flores, 246 F.3d 451,
457 (5th Cir. 2001). However, Garcia did not offer an exculpatory story, and so
his argument based on post-arrest silence is misplaced.
70
All the other defendants move to adopt the arguments of the other
defendants by reference pursuant to Rule 28(i). However, “[s]ufficiency of the
evidence challenges are fact-specific, so we will not allow the appellants to
adopt those arguments.” Baptiste, 264 F.3d at 586 n.6.
71
Delgado, 256 F.3d at 273.
72
United States v. Loe, 248 F.3d 449, 465 (5th Cir.), cert. denied, 122
S. Ct. 397 (2001).
32
is begun in one district and completed in another, venue is proper
in any district in which the offense was ‘begun, continued, or
completed,’”73 and “venue is properly based on a preponderance of
the evidence showing the commission of any single act that was part
of the beginning, continuation, or completion of the crime.”74 We
have held that, “[a]lthough the government must prove venue by the
preponderance of the evidence, circumstantial evidence alone is
sufficient to establish venue.”75
Our review of the record convinces us that there was
sufficient evidence that the heroin distributed as alleged in Count
12 was transported from the Eastern District of Texas on August 19
and delivered as part of the conspiracy to an apartment that, as
the government stipulated, is located in the Northern District of
Texas.76 We note that, under Pinkerton liability, the government
73
United States v. Fells, 78 F.3d 168, 170 (5th Cir. 1996) (quoting 18
U.S.C. § 3237(a)).
74
Id. at 171.
75
Loe, 248 F.3d at 465.
76
See United States v. Tingle, 183 F.3d 719, 727 (7th Cir. 1999)
(“Distribution of drugs can be a continuing offense, and thus governed by §
3237(a) for purposes of venue, where there are multiple acts of the defendant
which constituted distribution.”); United States v. Brunty, 701 F.2d 1375, 1380-
81 (11th Cir. 1983) (holding that distribution is a continuing offense); cf.
United States v. Pomranz, 43 F.3d 156, 159 (5th Cir. 1995) (holding that
“conspiracy to distribute marihuana is a continuing offense under [18 U.S.C. §
3237]”); United States v. Davis, 666 F.2d 195, 199 (5th Cir. 1982) (holding that
possession with intent to distribute is a continuing offense under 18 U.S.C. §
3237). Compare Carbajal, 290 F.3d at 289 (“Even assuming that Carbajal did
preserve this issue for appeal, venue in the Eastern District was proper because
the government presented evidence that a convicted coconspirator purchased heroin
from Carbajal and resold it in Denton County, which is located in the Eastern
District of Texas.”).
33
need not prove by a preponderance of the evidence that Arturo Meza
himself transported the drugs from the Eastern District, but only
that he or one of his co-conspirators did so. The district court
did not err in ruling that there was sufficient evidence that one
or more of the Meza brothers traveled with the heroin alleged in
Count 12 from the Eastern District. As for Mendez’s second
argument, venue is not required over all overt acts alleged in
Count 1, and so his argument on this score is without merit.77
H. Sufficiency of the evidence to support the defendants’
convictions
In reviewing a challenge to the sufficiency of the evidence,
we must determine whether a rational jury could have found that the
evidence established guilt beyond a reasonable doubt on each
element of the offense, drawing all reasonable inferences from the
evidence and viewing all credibility determinations in the light
most favorable to the verdict.78 We do not evaluate the weight of
the evidence or the credibility of the witnesses.79
1.
77
Cf. Pomranz, 43 F.3d at 158-59 (“Furthermore, venue in conspiracy cases
is proper in any district where the agreement was formed or where an overt act
in furtherance of the conspiracy was performed.”).
78
Barton, 257 F.3d at 439. All the defendants timely made and properly
renewed their motions for acquittal at the close of the evidence, so we review
the sufficiency challenges de novo and not simply for plain error. See id.
79
Delgado, 256 F.3d at 273-74.
34
To sustain a conviction for conspiracy “under 21 U.S.C. § 841,
the government must prove beyond a reasonable doubt: ‘(1) the
existence of an agreement between two or more persons to violate
narcotics law; (2) the defendant’s knowledge of the agreement; and
(3) the defendant’s voluntary participation in the agreement.’”80
It is well-settled that “[a] jury may infer these elements from
circumstantial evidence.”81
Jose Solis, Pineda, Favela, Hilario Solis, and Mendez argue
that the evidence is insufficient to support their convictions for
conspiracy under Count 1 of the indictment.82 The extensive
evidence contained in the record and marshaled in the government’s
brief, however, affirms that these challenges are meritless. Thus,
the evidence, viewed in the light most favorable to the government,
adequately supports the jury’s findings beyond a reasonable doubt
that there was an agreement between two or more persons to
distribute heroin and cocaine, that each of these defendants knew
of the agreement, and that each voluntarily participated.83
80
Virgen-Moreno, 265 F.3d at 284 (quoting United States v. Gonzalez, 76
F.3d 1339, 1346 (5th Cir. 1996)).
81
Baptiste, 264 F.3d at 587.
82
As noted above, although all the other defendants move to adopt the
arguments of the other defendants by reference pursuant to Rule 28(i),
sufficiency of the evidence challenges may not be adopted by reference. Id. at
586 n.6.
83
Mendez also argues that the testimony of Martinez, Hancock, Alfonzo
Meza, and Jose Meza was inherently incredible as a matter of law. “‘Testimony
is incredible as a matter of law only if it relates to facts that the witness
could not possibly have observed or to events which could not have occurred under
the laws of nature.’” Green, 180 F.3d at 221 (quoting Bermea, 30 F.3d at 1552).
Mendez’s attacks on the credibility of the testimony of these witnesses do not
35
2.
Jose Solis, Pineda, Favela, Hilario Solis, and Mendez,
however, also challenge the sufficiency of the evidence to support
their convictions for several substantive counts of the indictment.
We have recently summarized the requirements for the government to
prevail on a charge of a substantive violation of 21 U.S.C. §
841(a)(1): “The essential elements of possession with the intent to
distribute controlled substances in violation of 21 U.S.C. § 841
are 1) knowledge, 2) possession, and 3) intent to distribute the
controlled substances.”84
The government notes that the defendants can, in the absence
of direct personal involvement, be held liable for the substantive
counts charged against them based on Pinkerton liability.85 “A
party to a continuing conspiracy may be criminally liable for a
substantive offense committed by a co-conspirator in furtherance of
the conspiracy, even though the party does not participate in the
substantive offense, or have any knowledge of it.”86 The government
rise to this level and so are without legal merit. See United States v. Meshack,
225 F.3d 556, 566 (5th Cir. 2000), cert. denied, 531 U.S. 1100 (2001), and
amended on other grounds on grant of reh’g in part, 244 F.3d 367 (5th Cir.), and
cert. denied, 122 S. Ct. 142 (2001).
84
Delgado, 256 F.3d at 274.
85
See United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998).
86
United States v. Garcia, 242 F.3d 593, 597 n.3 (5th Cir. 2001); see
also United States v. Narviz-Guerra, 148 F.3d 530, 535 (5th Cir. 1998) (“Thus,
once the conspiracy and the defendant’s knowing participation therein is proved
beyond a reasonable doubt, a defendant is guilty of the substantive acts his
partners committed in furtherance of the conspiracy.”).
36
also correctly notes that the jury was instructed on a Pinkerton
theory of liability as is required.87
We have further held, however, that “[a] party to a conspiracy
may be held criminally responsible for a substantive offense
committed by a coconspirator in furtherance of the conspiracy
[only] if the offense was reasonably foreseeable and was committed
during that party’s membership in the conspiracy.”88 Distribution
and possession with intent to distribute offenses are reasonably
foreseeable acts in furtherance of a conspiracy to distribute
drugs.89
Our review of the record convinces us that, with the exception
of Pineda’s challenge to his convictions for Counts 6 and 9, these
defendants’ arguments as to sufficiency of the evidence under the
substantive counts charged against them are without merit based on
the evidence presented at trial and, insofar as the defendants
claim to have had no personal involvement in any particular drug
transaction, on the basis of Pinkerton liability. Even drawing all
reasonable inferences from the evidence and viewing all credibility
determinations in the light most favorable to the verdict, however,
we conclude that there was no evidence of personal involvement by
87
See Garcia, 242 F.3d at 597 n.3.
88
Richards, 204 F.3d at 210.
89
See United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990); United
States v. Hodges, 606 F.2d 520, 523 (5th Cir. 1979); United States v. Decker, 543
F.2d 1102, 1104 (5th Cir. 1976).
37
Pineda in the transactions charged in Counts 6 and 9, as the
government itself admitted at trial. Furthermore, the evidence
presented at trial was insufficient to allow a reasonable jury to
conclude that Pineda was a member of the conspiracy at a time prior
to August 1997 and therefore at the time of the transactions on
June 8, 1997 (Count 6) and July 23, 1997 (Count 9) so as to support
Pineda’s convictions of Counts 6 and 9 under a Pinkerton theory.
3.
We affirm the district court’s denial of the motions for
acquittal of Jose Solis, Favela, Hilario Solis, and Mendez and of
Pineda as to Counts 1, 12, 14-15, 18-25, and 27-28, but we reverse
Pineda’s conviction on Counts 6 and 9, vacate his life sentences as
to Counts 6 and 9, and remand for entry of a judgment of acquittal
on these counts and resentencing, if necessary.
38
III. Challenges to the defendants’ sentences
A. Apprendi claims
1.
Garcia, Pineda, Alfonzo Meza, Arturo Meza,90 Hilario Solis,
Mendez, and Jose Meza argue that their sentences violate the rule
of Apprendi v. New Jersey91 because the indictment failed to allege
drug quantity and cause of death as required for sentencing under
21 U.S.C. § 841(b)(1) and because findings on these factual matters
were not made either by a jury or upon proof beyond a reasonable
doubt.92 We address the claimed Apprendi violations as to drug
quantity and cause of death in turn.
90
Arturo Meza did not raise an Apprendi challenge to his sentence, but
has moved to adopt his co-defendants’ Apprendi arguments by reference under Rule
28(i). Although we have generally stated that sentencing challenges cannot be
adopted under Rule 28(i), particularly challenges to the application of the
Sentence Guidelines, because they are fact-specific, the Apprendi issue here,
outside of a simple observation of the length of the sentences imposed on each
defendant, is not fact-specific. See Morrow, 177 F.3d at 302 n.3 (noting that
“challenges to the application of the Sentence Guidelines are generally
fact-specific and cannot be adopted by reference pursuant to Fed. R. App. P.
28(i)”); Baptiste, 264 F.3d at 586 n.6 (“FRAP 28(i) permits appellants to do so
for challenges that are not fact-specific as to a particular defendant.”); cf.
United States v. McWaine, 290 F.3d 269, 277 (5th Cir. 2002) (“We have raised sua
sponte Apprendi issues in other cases when necessary to avoid manifest
injustice.”). We thus conclude that Arturo Meza has sufficiently raised this
issue for appeal.
91
530 U.S. 466 (2000).
92
Favela and Jose Solis do not raise Apprendi challenges to their
sentences, and they could not successfully do so, because they were sentenced to
140 months and 240 months imprisonment, respectively, which is equal to or less
than the statutory maximum of 20 years prescribed by 21 U.S.C. § 841(b)(1)(C),
the default provision where no specific quantity or other enhancing fact is
alleged. See United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert.
denied, 531 U.S. 1177 (2001).
39
Following Apprendi, “[t]he district court must submit to the
jury any fact, other than a prior conviction, that increases the
penalty for a crime beyond the prescribed statutory maximum,” and,
“[i]f the government seeks an enhancement of the penalties for a
crime based on the amount of drugs, the quantity must be stated in
the indictment and submitted to the jury for a finding of proof
beyond a reasonable doubt.”93 In the absence of enhancing drug
quantities, “Section 841(b)(1)(C) sets the statutory maximum for an
offense involving an unspecified amount of a Schedule I substance
at 20 years in prison,” and “[h]eroin is a Schedule I substance.”94
However, section 841(b)(1)(C) provides that, “if death or
serious bodily injury results from the use of such substance [the
defendant] shall be sentenced to a term of imprisonment of not less
than twenty years or more than life.”95 We conclude that, pursuant
to Apprendi, like drug quantity, whether death or bodily injury has
resulted from a drug offense is a fact that must be proved beyond
93
United States v. Peters, 283 F.3d 300, 313 (5th Cir.), cert. denied,
122 S. Ct. 1949, and cert. denied, 122 S. Ct. 2612 (2002). This application of
Apprendi to 21 U.S.C. § 841 has been implicitly affirmed by the Supreme Court.
See United States v. Cotton, 122 S. Ct. 1781, 1785, 1786 n.3 (2002).
94
United States v. Cooper, 274 F.3d 230, 243 (5th Cir. 2001).
95
21 U.S.C. § 841(b)(1)(C); cf. id. § 841(b)(1)(A) (“such person shall
be sentenced to a term of imprisonment which may not be less than 10 years or
more than life and if death or serious bodily injury results from the use of such
substance shall be not less than 20 years or more than life”); id. § 941(b)(1)(B)
(“such person shall be sentenced to a term of imprisonment which may not be less
than 5 years and not more than 40 years and if death or serious bodily injury
results from the use of such substance shall be not less than 20 years or more
than life”).
40
a reasonable doubt to the finder of fact.96 Consistent with the
conclusions reached in our Apprendi case law regarding drug
quantity under 21 U.S.C. § 841(b)(1), whether “death or serious
bodily injury results from the uses of such substance” calls for a
factual determination which “significantly increases the maximum
penalty from 20 years ... to life imprisonment.”97 As such, the
fact of cause of death is “a fact used in sentencing that does ...
increase a penalty beyond the statutory maximum” and so “need[s to]
... be alleged in the indictment and proved to a jury beyond a
reasonable doubt.”98
Looking first to the alleged Apprendi errors involving drug
quantity, no objection was raised at trial to the failure to
include drug quantity in each count of the indictment or the
failure to submit drug quantity to the jury for determination upon
proof beyond a reasonable doubt, and, at sentencing, no objection
was made to the judge’s determination of drug quantity by a
preponderance of the evidence standard. Only the sentences imposed
96
See United States v. Neuhausser, 241 F.3d 460, 464-65 (6th Cir. 2000),
cert. denied, 122 S. Ct. 181 (2001); United States v. Flowal, 234 F.3d 932, 936
n.2 (6th Cir. 2000); United States v. Rebmann, 226 F.3d 521, 524-25 (6th Cir.
2000); cf. United States v. Cathey, 259 F.3d 365, 368 n.12 (5th Cir. 2001)
(implying in dicta that cause of death is a fact which could give rise to an
Apprendi violation had the defendant been sentenced to more than 240 months);
Doggett, 230 F.3d at 164 (“Section 841(b) defines the applicable penalties for
violations of § 841(a) based on the type and quantity of drug, previous
convictions, and whether death or serious bodily injury resulted from use of the
drug.”).
97
Doggett, 230 F.3d at 164.
98
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000) (per curiam),
cert. denied, 531 U.S. 1182 (2001).
41
in excess of 240 months on any given count are subject to Apprendi
challenge,99 such that only the defendants’ respective sentences for
Counts 1, 6, 9, 12, 26, 27, and 28 are subject to their Apprendi
challenges.100 In the indictment here, as to these counts, a drug
quantity of cocaine and/or heroin was alleged only in Count 26
against Garcia, stating only “more than 100 grams of heroin” and
listing the count as a violation of 21 U.S.C. § 841(a)(1) with a
potential penalty of “not less than 5 years nor more than 40
years,” and in Count 28 against Pineda and Garcia, stating “more
than 100 grams of heroin” and “approximately 250 grams of cocaine”
and listing the count as a violation of 21 U.S.C. § 841(a)(1) with
a potential penalty of “not less than 5 years nor more than 40
years.” Drug quantities were also alleged in Overt Acts 9, 15, 18,
19, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 35, 38, 39, and 40
listed under Count 1 for conspiracy in violation of 21 U.S.C. §
846.
In the absence of an objection at trial or sentencing, we
review the alleged Apprendi errors as to drug quantity for plain
error only.101 Under a plain error analysis, the court can correct
99
See Doggett, 230 F.3d at 165.
100
To recap, the Apprendi challenges apply only to Garcia’s sentences on
Counts 1, 6, 9, 12, 26, 27, and 28; Mendez’s sentences on Counts 1, 6, 9, 12, and
27; Hilario Solis’s sentences on Counts 1, 6, 9, and 12; Alfonzo Meza’s sentences
on Counts 1, 6, 12, and 27; Arturo Meza’s sentences on Counts 1, 6, 9, 12, and
27; Jose Meza’s sentences on Counts 1, 12, and 27; and Pineda’s sentences on
Counts 1, 12, 27, and 28, but, of course, excludes the sentences imposed on
Pineda for Counts 6 and 9, on which we have reversed his convictions.
101
Cotton, 122 S. Ct. at 1785; Peters, 283 F.3d at 313.
42
an error not raised at trial only if there is (1) error, (2) that
is plain, and (3) that affects the appellant’s substantial rights,
and further, if all three of these conditions are met, the court
may exercise its discretion to notice the forfeited error only if
(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.102
As to the failure to charge drug quantities in the indictment
as to Counts 1, 6, 9, 12, and 27, the government argues, inter
alia, that there is no Apprendi error because the penalty provision
listed in Count 1 for conspiracy and Counts 6, 9, 12, and 27
provided the defendants with notice that they could be sentenced to
imprisonment of “[n]ot less than 20 years not more than life.”
However, the district court here imposed sentences on the
defendants of greater than 240 months for Counts 1, 6, 9, 12, and
27 not based on drug quantities but based on a finding by a
preponderance of the evidence that the users of the heroin in
Counts 6, 9, and 12 and of the cocaine and heroin in Count 27 died
as a result of the drugs distributed to them by the defendants or
their co-conspirators. Indeed, this comports with the penalty
provision listed under Count 1, which matches up with the statutory
sentencing ranges under 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B),
and 841(b)(1)(C) of “not less than 20 years or more than life”
where “death or serious bodily injury results from the use of such
102
Cotton, 122 S. Ct. at 1785.
43
substance” and not the ranges in 21 U.S.C. §§ 841(b)(1)(A) and
841(b)(1)(B) based on specified drug quantities in the absence of
death or serious bodily injury caused by the use of the drug.103
The basis for the district court’s sentences is further confirmed
by a review of the presentence investigation reports on the
defendants, each of which the district court adopted in relevant
part at sentencing.
As to Garcia’s sentences for Counts 26 and 28 and Pineda’s
sentence for Count 28, there is no error in failing to include
specific drug quantities in the indictment as to these counts if,
as was the question presented in our recent decision in United
States v. Moreci,104 the information provided in each count “is
sufficient to inform a defendant of the specific charges made
against him, including the quantity of drugs alleged for the
103
See 21 U.S.C. § 841(b)(1)(A) (“Except as otherwise provided in section
859, 860, or 861 of this title, any person who violates subsection (a) of this
section shall be sentenced as follows: (1)(A) In the case of a violation of
subsection (a) of this section involving—(i) 1 kilogram or more of a mixture or
substance containing a detectable amount of heroin; ... such person shall be
sentenced to a term of imprisonment which may not be less than 10 years or more
than life and if death or serious bodily injury results from the use of such
substance shall be not less than 20 years or more than life ....”); id. §
841(b)(1)(B) (“In the case of a violation of subsection (a) of this section
involving—(i) 100 grams or more of a mixture or substance containing a detectable
amount of heroin; ... such person shall be sentenced to a term of imprisonment
which may not be less than 5 years and not more than 40 years and if death or
serious bodily injury results from the use of such substance shall be not less
than 20 years or more than life ....”); id. § 841(b)(1)©) (“In the case of a
controlled substance in schedule I or II, ... except as provided in subparagraphs
(A), (B), and (D), such person shall be sentenced to a term of imprisonment of
not more than 20 years and if death or serious bodily injury results from the use
of such substance shall be sentenced to a term of imprisonment of not less than
twenty years or more than life ....”).
104
283 F.3d 293 (5th Cir. 2002).
44
purpose of sentencing enhancements and what those enhancements may
be, in satisfaction of Apprendi.”105 Unlike the facts presented
Moreci, in which this court addressed this question as a matter of
first impression, here Counts 26 and 28 did not include the
identification of any particular subsection of 21 U.S.C. §
841(b)(1), but it did note that the possible penalties ranged from
5 year to 40 years imprisonment. Such a penalty range is found
only in 21 U.S.C. § 841(b)(1)(B), which provides that, in the case
of a violation involving “100 grams or more of a mixture or
substance containing a detectable amount of heroin,”106 an offender
upon conviction “shall be sentenced to a term of imprisonment which
may not be less than 10 years or more than life and if death or
serious bodily injury results from the use of such substance shall
be not less than 20 years or more than life.”107 In the face of
such information, Garcia and Pineda were on sufficient notice that
they were being indicted for violations of section 841(a)(1) for an
amount of more than 100 grams but less than one kilogram of heroin,
which could not implicate the penalty provisions of 21 U.S.C. §
105
Id. at 297.
106
But less than “1 kilogram or more of a mixture or substance containing
a detectable amount of heroin,” which would implicate the penalty provisions of
21 U.S.C. § 841(b)(1)(A), which provides that a convicted offender “shall be
sentenced to a term of imprisonment which may not be less than 10 years or more
than life and if death or serious bodily injury results from the use of such
substance shall be not less than 20 years or more than life.”
107
21 U.S.C. § 841(b)(1)(B).
45
841(b)(1)(C), including its maximum of 20 years in prison.108 There
is no Apprendi error with regard to drug quantity alleged in the
indictment in Counts 26 and 28.
Having established that there is no Apprendi error in the
indictment as to Counts 26 and 28, we turn to the alleged Apprendi
error in the district court’s failure to charge the jury as to drug
quantity on these counts. Here, we apply both plain and harmless
error analysis.109 Assuming there would otherwise be plain error,110
108
See id. § 841(b)(1)(C) (“In the case of a controlled substance in
schedule I or II, ... except as provided in subparagraphs (A), (B), and (D), such
person shall be sentenced to a term of imprisonment of not more than 20 years and
if death or serious bodily injury results from the use of such substance shall
be sentenced to a term of imprisonment of not less than twenty years or more than
life ...” (emphasis added)); cf. Moreci, 283 F.3d at 299 (conducting a similar
analysis with regard to a charge involving marijuana to conclude “that a charge
of ‘more than 50 kilograms’ takes an indictment out of the ‘default’ statute of
§ 841(b)(1)(D), into § 841(b)(1)(C), and, without more, operates to exclude the
penalties of §§ 841(b)(1)(A) and (B)”).
109
Peters, 283 F.3d at 313 (“Because the defendants did not object to the
failure of the district court to include instructions with respect to drug
quantity, we review for plain error. Assuming that the error was otherwise
plain, a jury instruction that omits an element of the offense is subject to
harmless error analysis. We will grant relief under this analysis only if the
district court’s failure to instruct the jury that it must find a specific drug
quantity beyond a reasonable doubt was not harmless. To determine harmlessness
when a jury is not instructed as to an element of an offense, we decide whether
the record contains evidence that could rationally lead to a contrary finding
with respect to the omitted evidence.” (footnotes omitted)).
110
This is by no means clear in light of United States v. Cotton, 122 S.
Ct. 1781 (2002), where the Court, after finding that there was error that was
plain, held that, “even assuming [the defendants’] substantial rights were
affected, the error did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 1786. This was because, despite
“the omission of drug quantity from the indictment,” there “[t]he evidence that
the conspiracy involved at least 50 grams of cocaine base was ‘overwhelming’ and
‘essentially uncontroverted.’” Id. The Cotton Court detailed how “[m]uch of the
evidence implicating [the defendants] in the drug conspiracy revealed the
conspiracy’s involvement with far more than 50 grams of cocaine base,” id., and
noted that the defendants “never argued that the conspiracy involved less than
50 grams of cocaine base, which is the relevant quantity for purposes of
Apprendi, as that is the threshold quantity for the penalty of life imprisonment
in 21 U.S.C. § 841(b)(1)(A),” id. at 1786 n.3. Thus, based on much the same
46
we conclude that any error was harmless because, as in United
States v. Green,111 there was “extensive, detailed, and
uncontroverted testimony regarding” the quantities of drugs charged
in Counts 26 and 28.112 Our review of the record indicates that it
contains no evidence which could lead the jury to rationally
conclude contrary to the quantities of drugs charged in Counts 26
and 28. The jury had the indictment with it during deliberations,
including the drug quantities charged in Counts 26 and 28, and the
defendants offered no testimony controverting the amount of drugs
involved in the charged drug transactions at trial and point to no
such testimony or evidence on appeal.113 We conclude that the
district court’s error in failing to instruct the jury to find a
specific amount of drugs beyond a reasonable doubt as to Counts 26
and 28 was harmless.
We turn then to the alleged Apprendi errors in the omission of
allegations as to cause of death from Counts 1, 6, 9, 12, and 27 of
the indictment and the district court’s failure to either charge
the jury to make factual findings as to cause of death or to make
reasoning as this court has used to find harmless Apprendi error where drug
quantity was not charged to the jury, see, e.g., United States v. Green, 246 F.3d
433, 437 (5th Cir.), cert. denied, 122 S. Ct. 280 (2001), the Cotton Court found
no reversible plain error although drug quantity was neither included in the
indictment, as it was here, nor charged to the jury, without reaching a harmless
error analysis.
111
246 F.3d 433 (5th Cir.), cert. denied, 122 S. Ct. 280 (2001).
112
Id. at 437.
113
See Virgen-Moreno, 265 F.3d at 298; Delgado, 256 F.3d at 281.
47
such a determination itself upon proof beyond a reasonable doubt.
No objection was raised at trial to the failure to submit cause of
death facts to the jury for determination upon proof beyond a
reasonable doubt. At sentencing, however, the defendants objected
to the failure to submit the evidence of the causes of death
resulting from the use of the drugs to a jury for determination by
a standard of proof beyond a reasonable doubt. The government
therefore concedes that our review of these challenges is de novo
but argues that the absence of cause of death from the indictment
was the result of the defendants’ own motion to strike and so any
such violation of the rule of Apprendi is invited error. We agree.
We have recently summarized the doctrine of invited error:
The doctrine of invited error provides that “when
injection of inadmissible evidence is attributable to the
actions of the defense, the defense cannot later object
to such ‘invited error.’” Under this doctrine, a
defendant cannot complain on appeal of alleged errors
which he invited or induced, especially where the
defendant may not have been prejudiced by the error. We
“will not reverse on the basis of invited error, absent
manifest injustice.”114
Here, the cause of death facts were alleged in the indictment under
Counts 1, 6, 9, 12, and 27,115 but the defendants successfully moved
to have these allegations stricken from the indictment and kept out
of evidence through a “Motion to Strike Surplusage in Indictment
114
United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001) (footnotes
omitted).
115
Count 16 alleged serious bodily injury caused to a user of the drugs
charged therein, but this count was dismissed at trial on the government’s
motion.
48
and Motion in Limine.” The defendants argued at trial, prior to
the Supreme Court’s decision in Jones v. United States,116 that the
deaths caused by drugs alleged in Counts 1, 6, 9, 12, and 27, for
which increased mandatory minimum and maximum sentences were
available under 21 U.S.C. § 841(b)(1), were merely sentencing
factors and not properly included in the indictment or the jury
charge. They argued that it was unnecessary for the jury to make
any determination regarding the deaths or injuries as alleged in
the indictment because causing death or injury is not an element of
the offense with which the defendants were charged and that,
because the deaths or injuries do not relate to guilt or innocence,
inclusion of these allegations in the indictment would unduly
prejudice the defendants. The defendants successfully argued
further that no evidence of the deaths or injuries to drug users
should be presented to the jury.
The defendants clearly induced the erroneous omission, by way
of a motion to strike, of the allegations regarding cause of death
from Counts 1, 6, 9, 12, and 27 of the indictment and the
subsequent failure to charge the jury to make factual findings by
proof beyond a reasonable doubt on these matters. As counsel
admitted at oral argument, there were clear strategic advantages to
keeping such prejudicial material from the jury, and the defendants
received the benefit of their successful efforts to insulate the
116
526 U.S. 227 (1999).
49
jury from this information. The government, in response to the
motion to strike, agreed that causing death or injury was not an
element of the charged offenses, but sought to present evidence of
the deaths or injuries to drug users as proof of the conspiracy,
showing the defendants’ motive, knowledge, and intent.
The defendants cannot maintain at trial that causing death or
injury is not an element and is simply a sentencing enhancement,
thereby inducing the district court to take the allegations from
the indictment and keep the evidence from the jury, and then argue
at sentencing that causing death or injury is an element and must
be decided by proof beyond a reasonable doubt, by the district
court, if not by a jury. The defendants elected to have the cause
of death or injuries issue decided as a sentencing matter by the
court by the usual preponderance standard at sentencing, and not by
the jury at trial by proof beyond a reasonable doubt as a matter of
guilt or innocence. The defendants knew that the differential
standards of proof were the accompanying baggage when they
succeeded in shuttling this issue to sentencing and away from
trial.117
That the defendants later tried to renege on this bargain is
of no moment, because they had waived their rights to have this
117
See United States v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998)
(“Ultimately, the district court ‘need only determine its factual findings at
sentencing by a preponderance of the relevant and sufficiently reliable
evidence.’” (quoting United States v. Angulo, 927 F.2d 202, 205 (5th Cir.
1991))).
50
issue determined by a jury as a matter of guilt or innocence, by
proof beyond a reasonable doubt.118 Our conclusion might be
different if the defendants had sought simply to waive their rights
to have a jury decide the cause of death or injury issues and had
elected to have the district court decide this issue as a matter of
guilt or innocence by proof beyond a reasonable doubt. But this
was not the strategy the defendants pursued or the bargain they
struck—the total package the defendants sought and received was to
take this issue entirely from the jury’s consideration and from the
trial to determine their guilt or innocence, on the ground that the
issue involved only sentencing enhancements to be decided by the
court by the well-settled preponderance standard.
As a result, we find no manifest injustice will flow from our
refusal to correct any such invited Apprendi errors. We therefore
reject the defendants’ Apprendi challenges to their various
sentences for Counts 1, 6, 9, 12, and 27.
2.
For the first time at oral argument, Jose Solis argued that
his sentence was imposed in violation of the rule of Apprendi
because the district court imposed his sentence under the twenty-
year mandatory minimum sentence based on the district court’s cause
118
At the so-called cause of death hearing, counsel for Garcia, in whose
objection all of the defendants joined, explicitly argued that, if the defendants
had waived their rights to a jury determination on the cause of death issues,
they were still entitled to a determination by the court based on proof beyond
a reasonable doubt.
51
of death findings by a mere preponderance of the evidence. We may
decline to address this issue because it was not first raised in
the briefs.119 We need not do so, however, because the contention
that Apprendi applies to mandatory minimums is meritless in light
of the Supreme Court’s recent decision in Harris v. United
States.120
B. Challenges to the evidence supporting the cause of death
findings for sentencing purposes
Several of the defendants raise challenges to the sufficiency
or propriety of the evidence supporting the district court’s cause
of death findings for purposes of sentencing the defendants. We
address these arguments in turn.
1.
Alfonzo Meza argues that, even under a preponderance standard,
the government’s proof at the cause of death hearing failed to
establish that the individuals’ deaths, as charged in Counts 6, 12,
and 27 of the indictment, were caused by the use of heroin. Thus,
he contends that the district court erred in enhancing his sentence
under U.S.S.G. § 2D1.1(a)(2).
Alfonzo Meza argues that the government admits that neither
Rob Hill (Count 12) nor Erin Baker (Count 27) died from heroin
119
See Comsat Corp. v. FCC, 250 F.3d 931, 936 n.5 (5th Cir. 2001)
(“Arguments presented for the first time at oral argument are waived.”). But cf.
McWaine, 290 F.3d at 277 (“We have raised sua sponte Apprendi issues in other
cases when necessary to avoid manifest injustice.”).
120
122 S. Ct. 2406 (2002).
52
overdoses but rather from an asthma attack (Hill) and a pulmonary
embolism (Baker). Alfonzo Meza observes that the government’s
expert witness testified that heroin caused Hill’s asthma attack
but that a combination of heroin, cocaine and diphenhydramine
caused Baker’s embolism. He asserts that, because these opinions
were not supported by a competent medical or scientific study, case
report, or other evidence indicating that heroin can cause asthma
attacks or blood clots, the government did not provide competent
and trustworthy expert evidence to show a link between heroin and
Hill’s and Baker’s deaths. Alfonzo Meza further argues that the
evidence is insufficient to prove by a preponderance of the
evidence that Milan Malina (Count 6) died from a heroin overdose
because it is equally probable he died from a cocaine overdose but
cocaine was not charged in Count 6 or discussed in the presentence
report (PSR).
Because we have determined that the defendants waived any
right they had to have the cause of death issue as to Counts 1, 6,
9, 12, and 27 resolved as a matter of guilt or innocence by a jury
by proof beyond a reasonable doubt, the district court’s cause of
death findings were only required to be made by a preponderance of
the evidence to support an enhancement under U.S.S.G. § 2D1.1(a)(2)
based upon the usual rules governing a court’s factual findings for
53
sentencing purposes.121 We review the district court’s factual
findings for clear error only, and, in making its findings, the
district court may consider any information which bears “sufficient
indicia of reliability to support its probable accuracy,” including
hearsay evidence, without regard to admissibility under the Federal
Rules of Evidence which govern at trial.122 “The district court’s
findings are not clearly erroneous if they are plausible in light
of the record reviewed in its entirety.”123
At sentencing, the defendant bears the burden of rebutting the
evidence used against him for purposes of sentencing by proving
that it is materially untrue, inaccurate or unreliable.124 “Mere
objections do not suffice as competent rebuttal evidence.”125
Alfonzo Meza does not deny that he supplied the heroin alleged
in Counts 6, 12, and 27, only that the heroin caused the respective
users’ deaths. We have recently held “that § 2D1.1(a)(2) is a
strict liability provision and does not require proof of proximate
121
See Huskey, 137 F.3d at 291. U.S.S.G. § 2D1.1(a)(2) provides for a
base offense level of 38 if “if the defendant is convicted under 21 U.S.C. §
841(b)(1)(A), (b)(1)(B), or (b)(1)©), or 21 U.S.C. § 960(b)(1), (b)(2), or
(b)(3), and the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance.” U.S. SENTENCING GUIDELINES MANUAL §
2D1.1(a)(2) (1998).
122
Huskey, 137 F.3d at 291; United States v. Smith, 13 F.3d 860, 863 n.5
(5th Cir. 1994). For this reason, Garcia’s and Mendez’s assertions, without
supporting argument, that their sentences were imposed in error because the
district court did not adhere to the Federal Rules of Evidence at the so-called
cause of death hearing are meritless.
123
United States v. Kelley, 140 F.3d 596, 609 (5th Cir. 1998).
124
United States v. Ashburn, 20 F.3d 1336, 1349 (5th Cir. 1994).
125
United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
54
causation or reasonable foreseeability” such that a defendant can
“be held responsible for overdose deaths if the government could
show a reasonable medical probability that heroin supplied by [the
defendant] caused the deaths.”126
Dr. William Rohr, the medical examiner who performed the
autopsies of Malina and Hill, testified that there was a reasonable
medical probability that the heroin used by Hill and Malina
proximately caused their deaths, and the defendants offered no
evidence to refute this expert testimony. Dr. Mark Andrew Krause,
the medical examiner who performed the autopsy of Baker, testified
that there was a reasonable medical probability that heroin and
cocaine, in some combination, caused Baker’s death, i.e., that it
is more likely than not that Baker would not have died had she not
ingested the cocaine and heroin, even though the proximate cause of
death was the pulmonary embolism.
Alfonzo Meza essentially attempts to argue a standard which we
have already rejected for purposes of sentencing under section
2D1.1(a)(2), that the drugs supplied by the defendant must be “‘a
direct cause of death, not a possible or remote cause.’”127
Although Dr. Krause stated that he could not say that the heroin
Baker ingested alone caused her death, his testimony that the
heroin and cocaine in combination contributed to or caused Baker’s
126
Carbajal, 290 F.3d at 283, 284.
127
See id. at 284.
55
death is sufficient to support the district court’s finding that
cocaine and heroin together caused the death of Baker.128 Again,
the defendants offered no rebuttal evidence to the contrary.
Accordingly, based on our review of the record, we conclude
that the district court did not clearly err in finding that heroin
caused the deaths of Hill and Malina and that cocaine and heroin
together caused the death of Baker, such that Alfonzo Meza was
properly sentenced on the basis of these users’ deaths pursuant to
U.S.S.G. § 2D1.1(a)(2).
2.
Arturo Meza argues that the district court erred in admitting
evidence offered by the government at the cause of death hearing of
cocaine allegedly supplied by the defendants in connection with the
death of Erin Baker as alleged in Count 27. He contends that this
was error because it differed from the factual basis offered for
Baker’s death in the PSR, to which the government did not object,
and that the government therefore waived any error arising from
discrepancies on this point in the PSR.
We review challenges to the admission of evidence for abuse of
discretion only, subject to a harmless error analysis.129 We have
held that the government waived any error as to discrepancies in
the findings in a PSR regarding drug quantity and equivalencies,
128
See id. at 286.
129
See Powers, 168 F.3d at 748.
56
which the district court had accepted in making its calculations,
by failing to object to the findings in the PSR before the district
court.130 Arturo Meza offers a unique spin on this holding, arguing
that the district court erred in allowing the government to offer
evidence that Erin Baker died from cocaine or heroin when the PSR
provides only that her death resulted from heroin use and the
government offered no objection to this finding in the PSR.131
The district court did not abuse its discretion in allowing
the government to present evidence in support of findings beyond
those contained in the PSR. Although it is well-settled that “a
district court may adopt the facts contained in a PSR without
further inquiry if those facts have an adequate evidentiary basis
with sufficient indicia of reliability and the defendant does not
present rebuttal evidence or otherwise demonstrate that the
information in the PSR is unreliable,”132 the district court is not
limited at sentencing to the findings in the PSR and the
evidentiary bases therefor. The authority upon which Arturo Meza
relies is inapposite, holding that the government waives its right
to challenge on appeal the district court’s findings where the
district court adopted the findings of the PSR and the government
130
United States v. Smallwood, 920 F.2d 1231, 1235 n.1 (5th Cir. 1991).
131
On appeal, Arturo Meza does not claim that he and his co-conspirators
were not the source of the cocaine ingested by Baker.
132
United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002).
57
failed to object to the relevant findings in the PSR in the
district court.133
Moreover, the district court provided the defendants with time
in the course of the hearing to prepare to challenge the
government’s evidence regarding cocaine distribution and use once
the government indicated its intention to present this evidence
following Dr. Krause’s testimony that Baker’s death was caused by
the ingestion of a combination of cocaine and heroin. Under these
circumstances, the district court did not abuse its discretion in
admitting evidence at the cause of death hearing that the
defendants supplied cocaine which caused Baker’s death.
3.
Pineda argues that the district court erred in denying his
objection to the portions of the PSR in which his base offense
level was calculated to be 38 pursuant to U.S.S.G. § 2D1.1(a)(2).
He contends that he was not involved with the deaths of Milan
Malina (Count 6), George Wesley Scott (Count 9), Rob Hill (Count
12), or Erin Baker (Count 27) or the serious bodily injury to
Daniel Mierek (Count 16). Pineda argues that the government
presented no evidence that he was involved in the conspiracy at the
time the deaths of Malina, Scott, and Hill occurred. He also
asserts, without supporting argument, that the government presented
133
See Smallwood, 920 F.2d at 1235 n.1.
58
insufficient evidence of causation regarding the deaths of Malina,
Hill, Scott, and Baker and the injury to Mierek.
We have already determined that there was insufficient
evidence to convict Pineda of Counts 6 and 9, and, although
“acquittal is not a barrier to consideration of the underlying
conduct at sentencing so long as that conduct was proven by a
preponderance of the evidence,”134 under the circumstances presented
here, Pineda’s involvement in the conspiracy prior to August 1997
was not even proven measured against this lower standard. As to
the death of Hill (Count 12) and Baker (Count 27), however, Pineda
has shown no clear error in the district court’s finding that
Pineda was criminally responsible for the drugs which resulted in
these users’ deaths. We have found, based on a reasonable doubt
standard, that there was sufficient evidence to convict Pineda
based on Pinkerton liability on Counts 12 and 27, and there is
likewise sufficient evidence in the record on which to sentence
Pineda for his involvement in the conspiracy which resulted in
these users’ deaths.135 Moreover, based on the discussion above as
134
United States v. Wells, 262 F.3d 455, 467 n.16 (5th Cir. 2001).
135
Cf. United States v. Alarcon, 261 F.3d 416, 423 n.3 (5th Cir. 2001)
(“Bearing in mind that we affirmed Ruben’s and Llama’s convictions for using a
minor, we need not consider the contention that their increased sentences for
using a minor should be vacated because there is insufficient evidence. The
burden of proof for affirming their convictions is beyond a reasonable doubt,
while the burden of proof in sentencing is a preponderance of the evidence.”),
cert. denied, 122 S. Ct. 854 (2002).
As to the evidence concerning the injury to Mierek, we need not consider
whether the district court’s factual findings as to the cause of his injuries are
supported by sufficient evidence, because any error would be harmless. Even if
Mierek’s injury charged under Overt Act 20 in Count 1 of the indictment had not
59
to Alfonzo Meza’s challenges to his sentences and our conclusion
that sufficient evidence exists in the record to support Pineda’s
convictions on Counts 12 and 27 on the basis of
Pinkerton liability, we conclude that the district court did not
clearly err in finding by a preponderance of the evidence that the
drugs charged in the respective counts caused the deaths of Hill
and Baker.136
4.
Mendez argues that there is insufficient evidence to tie him
to a cocaine conspiracy and so insufficient evidence to sentence
him for the deaths of victims alleged in Counts 6, 9, 12, and 27,
particularly Baker’s death alleged in Count 27. Mendez also argues
that the district court erred in allowing the admission through a
government witness of the inherently unreliable, redacted
statements of Jose Meza in violation of Mendez’s Fifth Amendment
rights as developed in Bruton. Based on our rejection of Mendez’s
challenges to his convictions on these same grounds, we reject his
points of error.
been used to sentence Pineda, a review of the PSR demonstrates that Pineda’s
combined adjusted offense level for purposes of sentencing would remain
unchanged. See United States v. Kings, 981 F.2d 790, 795 n.11 (5th Cir. 1993).
136
See Carbajal, 290 F.3d at 284 (noting but declining to apply to the
facts of the case before it that the Sixth Circuit had held, in “a situation in
which the defendant played no direct role in distributing or manufacturing the
drugs that allegedly caused the deaths,” that, “before the district court may
enhance a defendant’s sentence under § 841(b)(1)©) based solely on the conduct
of a coconspirator, the court must find that the coconspirator’s conduct was (1)
in furtherance of the conspiracy and (2) reasonably foreseeable”).
60
C. Denial of acceptance of responsibility
Pineda argues that the district court erred in denying him a
two-level decrease for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1, where he was willing to plead guilty to Count 1
prior to trial but wanted to challenge any sentencing enhancement
under 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2D1.1 and to challenge
the rulings on his pretrial motions to dismiss on double jeopardy
grounds and to suppress. He notes that he has pled guilty in other
proceedings to several of the charges alleged in Count 1 and argues
that he has admitted the essential elements of guilt from the
start. Thus, he contends that this is the rare situation in which
a defendant is not precluded from reduction for acceptance of
responsibility even though he exercised his right to trial.
While we generally review a district court’s factual finding
under the Guidelines for clear error, “[a] district court's
determination of whether a defendant is entitled to a reduction of
his offense level for acceptance of responsibility is reviewed with
even more deference than the pure ‘clearly erroneous’ standard.”137
As such, “[w]e will affirm a sentencing court’s decision not to
award a reduction under U.S.S.G. § 3E1.1 unless it is ‘without
foundation.’”138
137
United States v. Brenes, 250 F.3d 290, 292 (5th Cir. 2001).
138
United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999).
61
This is not one of the rare situations in which a defendant
who put the government to its proof at trial is nevertheless
entitled to a reduction for acceptance of responsibility. At the
very least, Pineda’s suppression issue, which relates to his
factual guilt, his failure to debrief the probation officer, and
his challenge to the substantive counts against him,
notwithstanding his offer to plead guilty to the conspiracy count,
distinguish this case from those in which such a reduction would be
warranted.139
Given our deferential standard of review, the district court
did not commit reversible error in denying Pineda a two-level
decrease for acceptance of responsibility.
D. Application of the grouping rules to determine Pineda’s sentence
Pineda also argues that the district court erred in denying
his objections to the paragraphs of the PSR wherein five levels
were added to his base offense level pursuant to U.S.S.G. §§ 3D1.2
and 3D1.4. He argues that all of his violations of the drug
statutes should have been grouped together under U.S.S.G. §
3D1.2(d) because they involve “substantially the same harm within
the meaning of” section 3D1.2.140
139
Compare United States v. Brace, 145 F.3d 247, 264-65 (5th Cir. 1998)
(en banc); Fells, 78 F.3d at 171-72; United States v. Maldonado, 42 F.3d 906,
913-14 (5th Cir. 1995); United States v. Montes, 976 F.2d 235, 241 (5th Cir.
1992).
140
All the defendants generally move to adopt the arguments of the other
defendants by reference pursuant to Rule 28(i), but Mendez explicitly seeks to
adopt Pineda’s argument by reference. However, “challenges to the application
of the Sentence Guidelines are generally fact-specific and cannot be adopted by
62
We “review de novo the district court’s application of the
Sentencing Guidelines grouping rule.”141 On this review, “[t]he
sentence will be upheld if it was imposed as the result of ‘a
correct application of the guidelines to factual findings which are
not clearly erroneous.’”142
U.S.S.G. § 3D1.2 provides:
All counts involving substantially the same harm
shall be grouped together into a single Group. Counts
involve substantially the same harm within the meaning of
this rule:
(a) When counts involve the same victim and the same
act or transaction.
(b) When counts involve the same victim and two or
more acts or transactions connected by a common criminal
objective or constituting part of a common scheme or
plan.
(c) When one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the
counts.
(d) When the offense level is determined largely on
the basis of the total amount of harm or loss, the
quantity of a substance involved, or some other measure
of aggregate harm, or if the offense behavior is ongoing
reference pursuant to Fed. R. App. P. 28(i).” Morrow, 177 F.3d at 302 n.3. We
have recognized an exception to this rule where the challenge raises only a
general question as to the application or interpretation of the Sentencing
Guidelines as to all defendants and so “does not require us to make any
fact-specific inquiries.” Id. How the district court grouped the specific
counts for which each defendant was convicted, however, is fact-specific as to
each defendant and so does not fit within this exception. See Baptiste, 264 F.3d
at 586 n.6. Notably, Pineda was charged in and convicted of Counts 1, 6, 9, 12,
14-16, 18-25, and 27-28 and sentenced for Counts 1, 6, 9, 12, 18-25, and 28,
while Mendez was charged in, convicted of, and sentenced for Counts 1, 6, 9, 12,
and 27. As such, because Mendez, like the other defendants, inadequately argued
this issue in his own brief, he has waived this issue on appeal. See Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999).
141
United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000), cert.
denied, 532 U.S. 986 (2001).
142
United States v. Leonard, 61 F.3d 1181, 1185 (5th Cir. 1995) (quoting
United States v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990)).
63
or continuous in nature and the offense guideline is
written to cover such behavior.143
We have explained that “Section 3D1.2 divided offenses into three
categories regarding grouping: (1) those to which the section
specifically applies; (2) those to which the section specifically
does not apply; and (3) those for which grouping may be appropriate
on a case-by-case basis.”144
Pineda argues that the district court erred in not grouping
all of his counts of conviction together pursuant to U.S.S.G. §
3D1.2(d), obviating the application of a five-level increase
pursuant to U.S.S.G. § 3D1.4, because they all involve
substantially the same harm and because he was not proven
responsible for any deaths alleged in Counts 6, 9, 12, and 27 and
should therefore have been sentenced solely on the basis of drug
type and quantity. Pineda also argues that, even if he is
responsible for the deaths under Counts 6, 9, 12, and 27, U.S.S.G.
§ 3D1.2(d) applies because his offense behavior was ongoing or
continuous in nature and the relevant offense guideline, U.S.S.G.
§ 2D1.1(a)(2), is written to cover such behavior, providing a base
offense level of 38 “if the defendant is convicted under 21 U.S.C.
§ 841(b)(1)(A), (b)(1)(B), or (b)(1)©), or 21 U.S.C. § 960(b)(1),
(b)(2), or (b)(3), and the offense of conviction establishes that
death or serious bodily injury resulted from the use of the
143
U.S. SENTENCING GUIDELINES MANUAL § 3D1.2 (1998).
144
United States v. Salter, 241 F.3d 392, 394 (5th Cir. 2001).
64
substance.”145 Moreover, section 2D1.1 is an offense guideline
explicitly covered by section 3D1.2.146 Therefore, Pineda argues
that his total offense level should have been 38 pursuant to
U.S.S.G. §§ 3D1.2(d) and 2D1.1(a)(2) and not 43 pursuant to
U.S.S.G. § 3D1.4.
The district court grouped Counts 1, 14-15, 18-25, and 28
together pursuant to section 3D1.2(b) but formed five other groups
containing Count 1 and each of Counts 6, 9, 12, 16, and 27, because
these were characterized by the death or serious bodily harm caused
to the user of the drugs alleged therein.147 The district court’s
grouping resulted in six groups, with adjusted offense levels
ranging from 34 to 38, which, pursuant to U.S.S.G. § 3D1.4,
resulted in a greater adjusted offense level of 38, to which five
units were added, to reach a total offense level of 43. This
offense level mandates a life sentence.
We have, however, reversed Pineda’s convictions for Counts 6
and 9. Even assuming the district court correctly applied sections
3D1.2 and 3D1.4 to group Pineda’s counts of conviction, our
decision vacating his sentence on these counts reduces the number
of groups and correspondingly the number of units by two. As such,
145
U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(a)(2) (1998).
146
Id. § 3D1.2.
147
See id. § 3D1.2, cmt. n.4 (“When one count charges a conspiracy or
solicitation and the other charges a substantive offense that was the sole object
of the conspiracy or solicitation, the counts will be grouped together under
subsection (b).”).
65
the total offense level pursuant to section 3D1.4 would be 41, not
43, which, with Pineda’s placement in Criminal History Category I,
provides for a range of 324-405 months and not a mandatory life
sentence. As such, we must reverse Pineda’s sentences and remand
for resentencing.
In order to provide guidance to the district court on
resentencing, however, we address the issue and conclude that the
district court did not err in its grouping analysis. The district
court correctly looked for guidance in interpreting the
applicability of section 3D1.2(d) to the background commentary to
section 3D1.2, which in turn references the Introductory Commentary
to Chapter 3, Part D of the Sentencing Guidelines.148 The district
court, guided by the analysis offered by the probation officer,
concluded that section 3D1.2 does not account for multiple counts
of death resulting from drug use, such that the prevailing
commentary lies in the Sentencing Commission’s observation that
“[c]ases involving injury to distinct victims are sufficiently
comparable, whether or not the injuries are inflicted in distinct
transactions, so that each such count should be treated separately
rather than grouped together.”149 However, this statement is
followed by the instruction that “[c]ounts involving different
victims (or societal harms in the case of ‘victimless’ crimes) are
148
See id. § 3D1.2, cmt. background; see also id. ch. 3, pt. D,
introductory cmt.
149
Id. § 3D1.2, cmt. background (1998)
66
grouped together only as provided in subsection (c) or (d).”150 And
section 3D1.2(d) provides that “[c]ounts involve substantially the
same harm within the meaning of this rule: ... if the offense
behavior is ongoing or continuous in nature and the offense
guideline is written to cover such behavior.”151
At sentencing, the probation officer agreed that Pineda’s
offense conduct was ongoing or continuous in nature. However, he
argued that section 2D1.1(a)(2) was not written to cover offense
conduct, such as Pineda’s, causing multiple deaths because it
simply provides a base offense level of 38 if “the offense of
conviction establishes that death or serious bodily injury resulted
from the use of the substance.” Therefore, the offense guideline
does not allow the court to take into account more than one death.
The district court agreed with the probation officer and determined
that section 3D1.2(d) does not cover deaths and does not allow for
aggregating multiple deaths.
Pineda responds that section 2D1.1(a)(2) was written to cover
the harm caused by the use of the controlled substance at issue.
He notes that section 2D1.1(a)(2) does not provide for the higher
base offense level only “if one death occurs” or “if multiple
deaths occur.”
150
Id.
151
Id. § 3D1.2(d) (1998).
67
We agree with the district court that section 3D1.2(d) does
not apply because the offense guideline, U.S.S.G. § 2D1.1(a)(2), is
not written to cover such behavior, i.e., multiple counts alleging
that the deaths of distinct victims resulted from the use of the
drugs charged.152 Accordingly, we are guided by the Sentencing
Commission’s observation that, unless sections 3D1.2(c) or 3D1.2(d)
applies, counts involving different victims should not be grouped
together.153 Our conclusion is further supported by the Sentencing
Commission’s commentary that a rule requiring the grouping together
of the stabbing of three prison guards in a single escape attempt
was rejected because “it probably would require departure in many
cases in order to capture adequately the criminal behavior.”154
Given the operation of section 2D1.1(a)(2), we are persuaded that
holding section 3D1.2(d) to require grouping multiple counts
involving the deaths of distinct drug users would require departure
in order to capture adequately the criminal behavior, and so the
offense guideline, U.S.S.G. § 2D1.1(a)(2), is not written to cover
the behavior for which Pineda was convicted in multiple counts.
We vacate Pineda’s sentences and remand for resentencing on
Counts 1, 12, 14-15, 18-25, and 27-28 consistent with this opinion.
152
Cf. United States v. Gist, 101 F.3d 32, 34 (5th Cir. 1996).
153
Id. § 3D1.2, cmt. background (1998).
154
Id.
68
E. Determination of relevant conduct for sentencing purposes
Hilario Solis argues that the government failed to present any
competent evidence as to the quantity of two kilograms of cocaine
attributed to him as relevant conduct. Mendez likewise argues that
there is no corroborating evidence that he was in the conspiracy or
chain of supply for the drugs that caused the users’ deaths
alleged in Counts 6, 9, 12, or 27, on the basis of which he was
sentenced. He argues that the district court erred in failing to
make individualized findings of his relevant conduct.
We review the district court’s factual determination of a
defendant’s relevant conduct for sentencing purposes for clear
error only.155 To count as relevant conduct under the guidelines,
“[i]t is not necessary for the defendant to have been charged with
or convicted of carrying out the other acts before they can be
considered relevant conduct,” although “the conduct must be
criminal.”156 Additionally, “[i]t is well established that relevant
conduct under the sentencing guidelines includes all reasonably
foreseeable acts of coconspirators in furtherance of the
conspiracy.”157
It is also well-settled that “a district court may adopt facts
contained in a Presentence Report (PSR) without further inquiry if
155
Cooper, 274 F.3d at 238.
156
Anderson, 174 F.3d at 526.
157
Cooper, 274 F.3d at 241.
69
the facts have an adequate evidentiary basis and the defendant does
not present rebuttal evidence.”158 Here, the district court relied
upon the findings of relevant conduct in Hilario Solis’s PSR, which
had an adequate evidentiary basis for the two kilograms of cocaine
attributed to Hilario Solis and to which Hilario Solis offered no
rebuttal evidence. Under these circumstances, the district court
properly adopted the PSR and relied upon the information contained
therein to make its factual findings.159 Moreover, because the
relevant conduct finding challenged here did not affect Hilario
Solis’s combined adjusted offense level, any error was harmless.160
As with Hilario Solis, the district court made sufficient
individualized findings as to Mendez by adopting the PSR, to which
Mendez offered no rebuttal evidence. Under these circumstances,
the district court, which had heard all of the evidence presented
against Mendez and his co-conspirators at trial, did not err in its
determination of Mendez’s relevant conduct.161
We find no clear error in the district court’s determination
of relevant conduct for purposes of sentencing Hilario Solis or
158
Peters, 283 F.3d at 314.
159
See United States v. Freeman, 164 F.3d 243, 251 (5th Cir. 1999).
160
See Kings, 981 F.2d at 795 n.11; accord United States v. Cade, 279 F.3d
265, 273 (5th Cir. 2002) (“The error is harmless only if the party defending the
sentence persuades us that the district court would have imposed the same
sentence absent the erroneous factor.”).
161
See Freeman, 164 F.3d at 251.
70
Mendez. The sentences imposed on these defendants are affirmed
over these challenges.
IV.
For the foregoing reasons, we AFFIRM the convictions and
sentences of Jose Solis, Garcia, Favela, Alfonzo Meza, Arturo Meza,
Hilario Solis, Mendez, and Jose Meza, and the convictions of Pineda
on Counts 1, 12, 14-15, 18-25, and 27-28. However, we REVERSE
Pineda’s convictions on Counts 6 and 9, VACATE his sentences on
Counts 1, 6, 9, 12, 14-15, 18-25, and 27-28, and REMAND for entry
of a judgment of acquittal on Counts 6 and 9 and for resentencing
on Pineda’s remaining counts of conviction consistent with this
opinion.
71