United States v. Alberto Rodriguez , 399 F. App'x 866 ( 2010 )

Case: 07-40163 Document: 00511271991 Page: 1 Date Filed: 10/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2010
No. 07-40163
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALBERTO RODRIGUEZ, also known as Copi,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-65-2
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alberto Rodriguez appeals his conviction and 360-month sentence for
conspiracy to possess with the intent to distribute more than five kilograms of
cocaine, two counts of possession of a firearm by a felon, and possession with the
intent to distribute more than five kilograms of cocaine. Rodriguez argues that
the district court plainly erred in failing to excuse Juror Number 1 for cause
after it was revealed that the juror was possibly related to the prosecuting
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 07-40163 Document: 00511271991 Page: 2 Date Filed: 10/22/2010
No. 07-40163
attorney. He acknowledges that he did not object on this basis in the district
court and that review is limited to plain error.
To show plain error, Rodriguez must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If Rodriguez makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.The standard for determining whether a juror should be excused for cause
is whether the “juror’s views would prevent or substantially impair the
performance of his duties.” Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000)
(internal quotation marks and citation omitted). Bias may be actual or implied.
Solis v. Cockrell, 342 F.3d 392, 395-96 & n.6 (5th Cir. 2003).
Rodriguez does not show actual or implied bias to justify the removal of
Juror Number 1 from the jury. The juror was unaware of the existence of any
relationship with the prosecuting attorney until sometime after the conclusion
of the first day of trial. He stated that he did not recognize the prosecuting
attorney and had never socialized with her. Moreover, the juror was uncertain
as to whether he was related to her. He thought it was possible that he might
be a second cousin of the prosecutor. Juror Number 1 also stated that the
possible relationship to the prosecutor would not impair his ability to be fair or
listen to the evidence in a neutral manner. Thus, the record does not support a
finding of actual bias or a finding that Juror Number 1 was unable to act as an
impartial juror. See Virgil v. Dreke, 446 F.3d 598, 609 (5th Cir. 2006).
Additionally, the possible relationship between Juror Number 1 and the
prosecutor is not sufficiently close that it would inherently affect the juror’s
impartiality. See Andrews v. Collins, 21 F.3d 612, 620-21 (5th Cir. 1994). The
district court committed no error, plain or otherwise, in failing to remove Juror
Number 1 from the jury.
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No. 07-40163
Rodriguez also contends that the district court violated the principles
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220(2005), by basing his sentence on facts not found beyond a reasonable doubt by
a jury. Specifically, Rodriguez refers to the drug quantity for which he was held
responsible as relevant conduct, an upward adjustment under U.S.S.G.
§ 2D1.1(b)(1) for possession of a firearm during the offense, and an upward
adjustment under U.S.S.G. § 3B1.1(a) for his role as a leader or organizer.
Rodriguez was not sentenced under the mandatory guidelines system, and
the pre-Booker Sixth Amendment concern is no longer an arguable complaint.
See United States v. Johnson, 445 F.3d 793, 797 (5th Cir. 2006). In the absence
of the mandatory use of the Guidelines, the Sixth Amendment will not preclude
a sentencing judge from finding all facts relevant to sentencing. United States
v. Whitfield, 590 F.3d 325, 367 (5th Cir. 2009). Rodriguez’s argument is without
merit.
For the first time in his reply brief, Rodriguez challenges the sufficiency
of the evidence. He argues that the trial testimony of his wife was not credible.
Rodriguez also makes general assertions that the Government failed to prove the
elements of the offenses beyond a reasonable doubt. We decline to consider these
arguments. See United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir.
2006).
The judgment of the district court is AFFIRMED.
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