United States v. Kirkpatrick , 184 F. App'x 421 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-40958
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY KIRKPATRICK,
Defendant-Appellants.
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On Appeal of the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-236-1
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Before HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
A jury convicted Kerry Kirkpatrick of four counts stemming
from his attempt to truck about 100 kilograms of marijuana across
the border. Kirkpatrick challenges his conviction on five
grounds and his sentence on two.
First, Kirkpatrick argues insufficient evidence that he
knowingly possessed the drugs, an element of all four counts.
Viewing the evidence in the light most favorable to the verdict,
see United States v. Gutierrez-Farias, 294 F.3d 657, 659-60 (5th
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40958
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Cir. 2002), to determine whether a rational trier of fact could
have found guilt beyond a reasonable doubt, United States v.
Bellew, 369 F.3d 450, 452 (5th Cir. 2004), we disagree. Although
the drugs were in a hidden compartment, necessitating evidence
aside from Kirkpatrick’s control of the truck, see United States
v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990), such evidence
exists here: the record shows Kirkpatrick was nervous and made
inconsistent, implausible, and untrue statements, and the sheer
circumstances of his flying down to Brownsville to drive a truck
across the border the same day for $500 or $1000 cash are
telling. See United States v. Martinez-Lugo, 411 F.3d 597, 599
(5th Cir. 2005). And his own admissions that he had his
“hunches, but...needed the money” and that “[he] can’t tell you
[he] didn’t think that [that he might be importing drugs], but
[he] didn’t want to believe it,” are a classic case of “willful
blindness,” from which a jury can infer knowledge. See United
States v. Scott, 159 F.3d 916, 922 (5th Cir. 1998). The evidence
overwhelms.
Second, Kirkpatrick suggests that the district court should
sua sponte have suppressed his statements to Investigator McLuhan
because Kirkpatrick made them while tired, rendering them
unreliable. Because he failed to object below, we review for
plain error. See United States v. Olano, 507 U.S. 725, 732-34
(1993). Because the only cases cited by Kirkpatrick, e.g.,
Miller v. Fenton, 474 U.S. 104 (1985); Richie v. Mullin, 417 F.3d
No. 05-40958
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1117 (10th Cir. 2005), are inapposite, and we see basis for the
claim, there was no error.
Third, Kirkpatrick argues that the district court erred in
overruling his motion to strike McLuhan’s statement regarding
Kirkpatrick’s drug use, elicited by Kirkpatrick’s own attorney
during cross examination when trying to note that Kirkpatrick did
not drink alcohol, requiring a new trial. The ruling was far
from an abuse of discretion, see United States v. Saldana, 427
F.3d 298, 306 (5th Cir. 2005), especially since Kirkpatrick
opened the door.
Fourth, Kirkpatrick claims the prosecutor misstated the
evidence during closing argument, or possibly opening argument,
specifically that Kirkpatrick did not know the last name of the
person who hired him to drive the truck and that the truck’s
title was not in the truck. Because he failed to object below,
we review for plain error. See Olano, 507 U.S. at 732-34.
Although it is possible, albeit difficult, to read the record as
containing these misstatements, given the overwhelming evidence
and the entirety of the case, they did not affect his substantial
rights. See Olano, 507 U.S. at 732-34.
Fifth, Kirkpatrick contends the prosecutor’s statement
during closing argument that Kirkpatrick was “in on the deal”
unfairly implies that Kirkpatrick had been dealing dope on other
occasions, unsupported by the record. Because he failed to
object below, we review for plain error. See Olano, 507 U.S. at
No. 05-40958
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732-34. There was no error. The record shows that the
prosecutor was speaking only of the transaction at issue.
Consequently, Kirkpatrick’s convictions are AFFIRMED.
Kirkpatrick also challenges his sentence. The district
court, sentencing shortly after Booker, misread that case’s
remedial holding in calculating a Guidelines range of 70-87
months. At the Government’s suggestion, the court “upwardly
departed” and sentenced Kirkpatrick to 97 months. More than a
month later, with the aid of our first opinion construing Booker,
United States v. Mares, 402 F.3d 511 (5th Cir. 2005), the court,
in a “continuation...of sentencing,” “re-sentenced” Kirkpatrick
to 105 months, using the proper Guidelines range of 100-125
months. Kirkpatrick now argues both that double jeopardy forbids
the second, increased sentence, hence the 97-month sentence
should be reinstated, and that the court erred in upwardly
departing without notice during the first sentencing, mandating
remand for resentencing, presumably with a 97-month cap. The
Government concedes that the second sentence was error under
Federal Rule of Criminal Procedure 35(a), requiring remand for
resentencing, without a cap. Kirkpatrick replies that remand for
resentencing is proper, without mentioning a cap.
Under Rule 35(a), a district court has seven days to correct
sentence, after which it lacks jurisdiction to resentence. See
United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1999).
Thus, the 105-month sentence here is invalid. Furthermore, the
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original, 97-month sentence was predicated on Booker error, hence
we VACATE it, not “reinstate” it, and REMAND for resentencing.
Double jeopardy poses no bar to or cap on resentencing, even
though Kirkpatrick has served part of his sentence. See Stuckey
v. Stynchcombe, 614 F.2d 75, 76 (5th Cir. 1980).
CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.