United States v. Cantu ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-50123
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS CANTU,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-347-20
_________________________________________________________________
February 11, 2003
Before JOLLY, HIGGINBOTHAM, and MAGILL*, Circuit Judges.
PER CURIAM:**
Carlos Cantu (“Cantu”) appeals his conviction of conspiracy
and possession with intent to distribute more than fifty grams of
methamphetamine. He argues that the government failed to prove
venue; that his Sixth Amendment right to confront witnesses was
violated by a limitation on his cross-examination of a witness; and
that his trial counsel rendered ineffective assistance. Cantu also
challenges the sentence enhancement imposed for perjury and
*
Circuit Judge of the Eighth Circuit, sitting by designation.
**
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this opinion should not be published and is not precedent except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.
obstruction of justice. For the reasons set forth below, we affirm
the judgment of the district court.
I
In 1996 and 1997, Cantu lived in California with several
roommates, including Luis Martinez. (“Martinez”) In 1997, Cantu
moved from California to Raymondville, Texas. In 1998, Eloy Garcia
(“Garcia”), a government informant,1 moved from Texas to California
where he met Martinez. Garcia and Martinez discussed the drug
trade, and Martinez informed Garcia that he had a friend living in
Texas, Cantu, who could obtain drugs. In December 1998, Martinez
introduced Cantu to Garcia in California.
Cantu introduced Garcia to Mariano Marquez (“Marquez”) in an
effort to set up a methamphetamine deal in California. Garcia
received a sample of methamphetamine from Marquez. However, the
deal, which was set for February 1999, ultimately did not take
place.
In March 1999, Cantu contacted Garcia from Texas and asked if
Garcia was still interested in obtaining methamphetamine. Garcia
referred Cantu to his “nephew”, DPS agent Saldivar. In May 1999,
Cantu arranged to meet Saldivar and Ishmael Gonzalez (“Gonzalez”)
at an HEB store in Harlingen, Texas. Cantu and Saldivar met
outside the HEB store on May 29, 1999, where they discussed
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Garcia worked with a DEA agent, Scott Nagle (“Nagle”), in
California, and a Texas Department of Public Safety agent, Frank
Saldivar (“Saldivar”). Neither agent knew of the other’s
investigation of Cantu.
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Saldivar’s purchase of fifteen pounds of methamphetamine, which
Gonzalez would supply. Cantu asked Saldivar if he were interested
in purchasing some heroin, made statements regarding the details of
the heroin business and placed phone calls regarding heroin. Cantu
and Saldivar then entered the HEB store, where Cantu introduced
Saldivar to Gonzalez and they discussed the methamphetamine deal.
Cantu assured Saldivar that he was doing business with a good
organization.
In June 1999, Gonzalez traveled to Dallas through Waco to
complete the methamphetamine deal and introduce Saldivar to several
other members of the organization. During that trip to Dallas,
Gonzalez was arrested. Other members of the organization were
arrested after completing a methamphetamine transaction in San
Antonio, Texas in August 1999.2
A jury convicted Cantu of conspiracy to possess with the
intent to distribute more than fifty grams of methamphetamine in
violation of 21 U.S.C. §§ 841 and 846 and possession with intent to
distribute more than fifty grams of methamphetamine in violation of
21 U.S.C. § 841 and 18 U.S.C. § 2. He was sentenced to concurrent
terms of 188 months imprisonment and five years supervised release.
He appeals his conviction and the enhancement of his sentence.
II
Cantu argues that the district court erred in not instructing
2
The organization transported drugs through and completed drug
transactions in San Antonio, Waco and Austin.
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the jury on venue. He further argues that the evidence is not
sufficient to establish venue. Cantu concedes that he did not
raise the issue of venue at trial. Under this court’s precedent he
has waived his challenges to venue.
Generally, failure to raise the issue of venue before trial or
before jury verdict in the district court, constitutes waiver of
the issue of venue. United States v. Carbajal, 290 F.3d 277, 289
(5th Cir. 2002); United States v. Carreon-Palacio, 267 F.3d 381,
391-93 (5th Cir. 2001). Cantu argues that his general Rule 29
motion was sufficient to preserve the issue of venue for appeal.
This court has expressly rejected that argument. Carbajal, 290 F.3d
at 289 n. 19 (“Carbajal failed to preserve this issue for appeal by
specifically raising the issue in his motion for acquittal or by
requesting a jury instruction on venue”). See also United States
v. Bala, 236 F.3d 87, 95-96 (2nd Cir. 2000). Cantu’s argument that
he is entitled to plain error/manifest injustice review of his
venue challenges is similarly foreclosed. Carbajal, 290 F.3d at
289.
In spite of a failure to make a formal objection before trial,
“failure to instruct on venue is reversible error when trial
testimony puts venue in issue and the defendant requests the
instruction.” Carreon-Palacio, 267 F.3d at 392 (citing United
States v. Winship, 724 F.2d 1116, 1124-25 (5th Cir. 1984)). Cantu
concedes that he did not request an instruction on venue and does
not argue that the trial testimony put venue in issue. The
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district court therefore did not err by not giving, sua sponte, a
venue instruction to the jury.
III
Cantu argues that his trial counsel’s failure to raise the
issue of venue in the district court amounts to ineffective
assistance. This court does not review claims of ineffective
assistance of counsel on direct appeal unless the issue was
presented to the district court. United States v. Lampazianie, 251
F.3d 519, 527 (5th Cir. 2001); United States v. Rinard, 956 F.2d 85,
87 (5th Cir. 1992). However, this court will resolve ineffective
assistance claims in “rare cases where the record allows [this
court] to evaluate fairly the merits of the claim.” United States
v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). This is not one of
those rare cases. Cantu did not raise this claim in the district
court. There is nothing in the record regarding the merits of the
claim including counsel’s awareness of problems with venue or his
reasons for not raising objections to venue. Because there is
nothing in the record that would allow us fairly to evaluate the
merits, we do not address Cantu’s ineffective assistance claim.
IV
On cross-examination, Cantu’s counsel asked Garcia how much
income he earned as an informant in 1999. Counsel for the
government objected based on relevancy and the district court
sustained the objection. Cantu argues that the district court
erred in sustaining the objection and that this error violated his
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Sixth Amendment right to confront the witnesses against him.
We turn first to Cantu’s Sixth Amendment claim. The Sixth
Amendment guarantees the right of an accused “to be confronted with
the witnesses against him” and the opportunity for an effective
cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678
(1986). A defendant’s Sixth Amendment rights are violated when he
is prohibited from proper cross-examination designed to show “facts
from which jurors could appropriately draw inferences relating to
the reliability of the witness.” Id. On the other hand, the Sixth
Amendment is not violated by limitations on cross-examination if
the jury is presented with sufficient information to “appropriately
draw inferences relating to the reliability of the witness.” Id.The record is clear that Cantu was able to elicit sufficient
information from Garcia on cross-examination to inform the jury on
issues of credibility. Garcia testified that he was a professional
informant and had been since 1979. He testified that he worked for
federal and state authorities in California and Texas, and that he
was paid for providing information to these authorities. He
testified further that he was paid by the case, that he was paid
$7,200 for his work on the case against Cantu, and that he was paid
after Cantu was apprehended. From this testimony, the jury was
exposed to facts sufficient to show that Garcia might have a reason
to lie. The district court’s ruling on the government’s objection
relating to Garcia’s income for 1999 did not violate Cantu’s Sixth
Amendment rights.
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Once the Sixth Amendment has been satisfied, this court
reviews the district court’s restrictions on cross examination for
abuse of discretion. United States v. Maloof, 205 F.3d 819, 829
(5th Cir. 2000); United States v. Perez, 217 F.3d 323, 331 (5th Cir.
2000). Cantu argues that the amount Garcia earned in 1999 is
relevant to the strength of Garcia’s potential motive to entrap
Cantu because if Garcia had not earned a lot that year, he would be
more likely to lie in Cantu’s case. The government counters that
Garcia’s income in 1999 is irrelevant because Garcia’s income in
the last six months of 1999 (after Cantu’s arrest) was not yet
earned when Garcia was associating with Cantu. We think that the
relevancy of this information is doubtful and cannot say that the
district court abused its discretion in determining that the
information was irrelevant.
V
Finally, Cantu argues that the district court erred in
enhancing his offense level by two levels for obstruction of
justice and perjury under U.S.S.G. § 3C1.1. This court reviews
factual findings made by a district court for sentencing purposes
under the clearly erroneous standard, and reviews the district
court's legal application of the Guidelines de novo. United States
v. Asibor, 109 F.3d 1023, 1040 (5th Cir. 1997).
Section 3C1.1 provides a two level enhancement of offense
level “[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
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during the investigation, prosecution, or sentencing of the instant
offense.” U.S.S.G. § 3C1.1. The comments to § 3C1.1 specifically
include “committing, suborning, or attempting to suborn perjury” as
conduct warranting an enhancement for obstruction. To support an
enhancement based on perjury, the district court must make an
independent finding that the defendant gave “false testimony
concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake or
faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993);
United States v. Wild, 92 F.3d 304, 308 (5th Cir. 1996).
At the close of trial, the district court doubled the bond in
the case “based on obstruction of justice and perjury that I’ve
heard this afternoon.” The presentence report included findings
that Cantu “wilfully obstructed the administration of justice,”
specifically citing Cantu’s testimony denying his involvement in
the conspiracy, denying his prior dealings with and connection to
people in the drug trade, and claiming that he was entrapped and
forced to deal drugs. An addendum to the presentence report
concluded that Cantu’s untruthful testimony was given with willful
intent rather than as a result of confusion. At the sentencing
hearing, the district court adopted the presentence report in full
and made the following findings:
[T]he defendant took an oath to tell the truth. This
defendant committed perjury and obstructed justice.
During the trial proceedings, the defendant made numerous
false statements knowing those statements were false.
The statements that were given under oath were material
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and... the defendant gave false testimony as to the
element of entrapment by denying prior heroin dealings.
Cantu argues that the court’s findings are clearly erroneous
because the court did not identify particular false testimony. The
district court is not required to identify specific perjurious
statements in order to apply § 3C1.1. United States v. Gonzalez,
163 F.3d 255, 263 (5th Cir. 1998). The district court, by adopting
the presentence report, made an independent finding that Cantu’s
testimony regarding his involvement in the conspiracy, his prior
dealings in the drug trade, his connection to those involved in the
drug trade, and his claim of entrapment was inconsistent with all
of the other testimony and evidence on these points in a way that
is attributable to perjury rather than confusion. This
identification of instances of perjury satisfies the requirements
of § 3C1.1. Cantu also argues that his testimony that he had not
engaged in heroin dealing did not conflict with any evidence in the
record. While there was no direct testimony as to specific prior
heroin deals, there was testimony indicating that Cantu approached
Saldivar about selling them heroin; that Cantu had knowledge of the
heroin business; and that Cantu had established heroin dealing
contacts. Cantu’s testimony that he did not deal in heroin prior
to his contact with Garcia conflicts with this testimony. The
finding that these conflicts in testimony are attributable to
perjury by Cantu is not clearly erroneous.
Cantu argues that under Apprendi v. New Jersey, 530 U.S. 4669
(2000) and Ring v. Arizona, 122 S.Ct. 2428 (2002), the sentence
enhancement violates his Sixth Amendment right to a jury
determination of the facts essential to punishment. In Apprendi,
the Supreme Court held that “[o]ther than the fact of prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The
Supreme Court applied Apprendi in Ring, holding that capital
defendants are entitled to a jury determination of factors
increasing their maximum punishment from life to death. Ring, 122
S.Ct. at 2432. We have consistently held that Apprendi is limited
to facts which increase the penalty beyond the statutory maximum
and is not applicable to the district court’s factual findings for
the purposes of determining sentences under the Sentencing
Guidelines within the applicable statutory range. United States v.
Doggett, 230 F.3d 160, 165 (5th Cir. 2000). Ring does not change
that analysis. Cantu’s sentence in this case, 188 months in prison
and five years of supervised release, is well within the statutory
maximum of life in prison; therefore, Apprendi does not apply.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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