United States v. Vasquez , 108 F. App'x 979 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 21, 2004
Charles R. Fulbruge III
No. 03-40859 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL VASQUEZ; FRANCISCO BOTELLO,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1174-16
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Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Angel Vasquez and Francisco Botello were convicted by a
jury of conspiring to possess with intent to distribute in excess
of 1000 kilograms of marijuana and of possessing with intent to
distribute less than 50 kilograms of marijuana. Vasquez appeals
his convictions and his sentence, while Botello appeals only his
sentences.
Vasquez
Vasquez first argues that the evidence was insufficient to
sustain his convictions. He contends that the testimony of the
*
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this opinion should not be published and is not precedent except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. 03-40859
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Government’s confidential witness was incredible and
insubstantial and that there was no credible evidence to show
that he committed the offenses for which he was indicted. “As
long as it is not factually insubstantial or incredible, the
uncorroborated testimony of a co-conspirator, even one who has
chosen to cooperate with the government in exchange for
non-prosecution or leniency, may be constitutionally sufficient
evidence to convict.” United States v. Westbrook, 119 F.3d 1176,
1190 (5th Cir. 1997). We have reviewed the record, and we cannot
agree that the testimony of the confidential witness was
insubstantial or incredible. Moreover, a review of the
sufficiency of the evidence does not include review of the weight
of the evidence or of witness credibility. See United States v.
Garcia, 995 F.2d 556, 561 (5th Cir. 1993). The evidence was
sufficient to support Vasquez’s convictions.
Vasquez also challenges the district court’s evidentiary
rulings. He argues that the district court erred in admitting
the hearsay statements of co-conspirators under FED. R. EVID.
801(d)(2)(e). The district court did not abuse its discretion in
admitting the challenged evidence. See United States v. Cornett,
195 F.3d 776, 782 (5th Cir. 1999).
Vasquez also challenges the admission of mugshots taken
following his arrest. The district court did not abuse its
No. 03-40859
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discretion in admitting the mugshots. See United States v.
Carrillo, 20 F.3d 617, 620 (5th Cir. 1994); United States v.
Torres-Flores, 827 F.2d 1031, 1039 (5th Cir. 1987).
Vasquez also contends that the district court erred in
refusing to admit, pursuant to FED. R. EVID. 804(b)(3), an out-of-
court exculpatory statement made by a co-conspirator. The
district court did not abuse its discretion in refusing to admit
the statement. See United States v. Vega, 221 F.3d 789, 803 (5th
Cir. 2000). Because Vasquez has not shown error on the part of
the district court with respect to his convictions, the
convictions are AFFIRMED.
Finally, Vasquez argues that his 63-month sentence for
possessing with intent to distribute less than 50 kilograms of
marijuana should be corrected because it exceeds the 60-month
statutory maximum under 21 U.S.C. § 841(b)(1)(D). The Government
concedes the error. We review for plain error because Vasquez
did not object in the district court. See United States v.
Villarreal, 253 F.3d 831, 837 (5th Cir. 2001). “[A] sentence
which exceeds the statutory maximum is an illegal sentence and
therefore constitutes plain error.” United States v. Sias, 227
F.3d 244, 246 (5th Cir. 2000). Because the error seriously
affects the fairness and integrity of judicial proceedings, we
will exercise our discretion to correct it. See United States v.
Aderholt, 87 F.3d 740, 744 (5th Cir. 1996). Accordingly, we
VACATE Vasquez’s sentence for possession with intent to
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distribute less than 50 kilograms of marijuana and remand for
resentencing.
Botello
Botello challenges his sentences on two grounds. Botello
first argues that his offense level should have been reduced by
two levels for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a) because he admitted responsibility for the 90 pounds
of marijuana found in his vehicle. We accord great deference to
the district court’s denial of acceptance of responsibility. See
United States v. Jefferson, 258 F.3d 405, 412 (5th Cir. 2001).
Because Botello proceeded to trial and disputed his role in the
offense, we decline to disturb the district court’s determination
that Botello is not entitled to a reduction for acceptance of
responsibility. See United States v. Dean, 59 F.3d 1479, 1496
(5th Cir. 1995).
Botello also argues that the district court erred in holding
him responsible for 540 pounds of marijuana. The district
court’s determination that Botello was responsible for 540 pounds
of marijuana was plausible in light of the record as a whole and
thus was not clearly erroneous. See United States v. Alford,
142 F.3d 825, 831 (5th Cir. 1998). Botello’s sentences are
AFFIRMED.
For the foregoing reasons, the judgment of the district
court is AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING AS TO VASQUEZ ONLY.