United States v. Jesus Lopez , 582 F. App'x 438 ( 2014 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 24, 2014
No. 13-40203
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
JESUS GREGORIO LOPEZ, also known as Goyo; ROBERTO GARZA;
RAMON ZAMORA,
Defendants–Appellants
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CR-418-4
Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Defendants–Appellants Jesus Gregorio Lopez (“Lopez”), Roberto Garza
(“Garza”), and Ramon Zamora (“Zamora”) were indicted for conspiracy to
possess with intent to distribute more than 1,000 kg of marijuana in violation
of 21 U.S.C. §§ 841(a)(1)(A), 841(b)(1)(A), and 846. After a jury trial, all three
were convicted and received lengthy prison sentences. On appeal, Lopez,
Garza, and Zamora allege a variety of errors were committed at trial. In
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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addition, Garza and Zamora challenge their sentences. After careful review of
the record and relevant case law, we affirm their convictions and sentences.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background 1
This appeal concerns a conspiracy to smuggle large quantities of
marijuana from Mexico into the United States, involving at least a dozen
individuals, from 2003 to 2012. At trial, the Government primarily relied on
testimony from the following individuals, all of whom admitted to being
involved in the drug conspiracy: Jesus Marroquin; Ronny Rice; Edward David
Mata; Richard Patton; Servando Guerra; Luis Andreas Longoria; Jose Maria
Carbajal, Jr.; Rene Salazar, Jr.; Jose Figueroa; and Adrian de la Garza. The
Government also offered testimony from numerous law enforcement officials
involved in investigating the conspiracy.
Jose Maria Carbajal, Jr. (“Carbajal”) began trafficking marijuana in the
mid-to-late 1980s. Initially, he carried 20-pound loads of marijuana in
backpacks through Encino and Falfurrias. Carbajal later met another supplier
and began moving larger loads of approximately 150 to 200 pounds. Carbajal
and his associates, Edward Mata (“Mata”) and Richard Patton (“Patton”), used
ATVs and night-vision goggles to trespass through ranches near the Falfurrias
Border Patrol Station to smuggle the marijuana past the checkpoint.
Sometime around 2005, Lopez learned of Carbajal’s operation, and he
approached Carbajal to offer Carbajal the use of his ranch, Las Carolina Ranch
(“Carolina”). Before beginning their working relationship, Lopez asked
Carbajal to pass a test: he wanted Carbajal to move some marijuana belonging
1 Because this appeal involves a challenge to the sufficiency of the evidence, we review
the facts “in the light most favorable to the jury verdict, including all reasonable inferences
and credibility choices.” United States v. Pierre, 958 F.2d 1304, 1310–11 (5th Cir. 1992) (en
banc). We discuss any relevant disputes about the facts in the appropriate sections below.
See infra subparts III(B) and IV(E).
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to Damien Solis, a drug trafficker, through Lopez’s ranch past the Falfurrias
Border Patrol Station. Carbajal passed the test, and he introduced Jesus
Marroquin (“Marroquin”) to Lopez. Carbajal told Lopez that he and Marroquin
would begin using Carolina. For the next seven years, Marroquin and Carbajal
moved loads of marijuana through ranches including Carolina, transporting
more than 25,000 pounds of marijuana into the United States.
In 2006, Lopez asked Carbajal to come to a meeting with Garza. Garza
had been trafficking in marijuana since at least 2004, using an employee,
Ronny Rice (“Rice”), to drive shipments into the United States. Soon after the
meeting between Lopez, Carbajal, and Garza, Garza’s brother, Alex Garza,
began delivering shipments to Carolina. According to Carbajal’s trial
testimony, “[t]hat’s where the big quantities started coming in.” The Garzas
and other distributors dropped off 500-to-1,500-pound loads of marijuana at
Carolina. Phone records revealed that Lopez was in frequent contact with
Carbajal and Garza. As the operation grew, Lopez decided to build an outhouse
with a false bottom on his ranch for the smugglers to conceal the marijuana.
The outhouse could hold between 1,000 and 1,500 pounds of marijuana.
Carbajal also used other ranches in addition to Carolina. He formed a
relationship with Zamora, who was employed at Baluarte Ranch, which was
also near the Falfurrias checkpoint. 2 Zamora helped Carbajal and two of
Carbajal’s associates to get jobs at Baluarte Ranch. Carbajal and others then
began smuggling marijuana through Baluarte Ranch; Zamora would help
them gain access the ranch and provided them places to store the marijuana.
They stored marijuana at Baluarte Ranch as often as two to three times a week
for three years and at least fifty times. Zamora also served as a lookout against
2 The parties and the record refer to the ranch where Zamora worked as both Baluarte
Ranch and the Hector Lopez Ranch. Both names identify the same property though, and for
the sake of consistency, we refer to the property as Baluarte Ranch.
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law enforcement officers. The conspiracy entered its most successful phase
once Zamora started working with Carbajal.
While investigating the conspiracy, the Government seized marijuana on
a number of occasions between 2003 and 2012. They recovered marijuana from
a number of Carbajal’s employees, Ronny Rice, and from Carbajal and Garza
themselves. Among the largest amounts recovered were 3,000 pounds from
Garza’s home, 2,000 pounds hidden in a truck Patton had abandoned, and
1,400 pounds from a trailer.
Carbajal was arrested in early 2011. Law enforcement officials had
begun to suspect Lopez’s involvement in the conspiracy, and they interviewed
him after Carbajal was arrested. They later returned to his ranch to execute
a search warrant, and they discovered an illegal alien, Marvin Ruiz (“Ruiz”),
whom Lopez employed as a ranch hand. Lopez was charged with harboring an
illegal alien. When the Government interviewed Ruiz, he told them that he
did not have any knowledge of illegal activity at the ranch. The parties dispute
when Lopez was made aware of this statement. See infra subpart III(D)(2).
Lopez agreed to allow the Government to release Ruiz from custody and
remove him from the United States before Lopez’s conspiracy trial.
B. Procedural Background
In 2012, Lopez, Zamora, Garza, and nine coconspirators were indicted
for conspiracy with intent to distribute more than 1,000 kg of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Lopez, Zamora, and
Garza went to trial, and the jury found all three guilty. Lopez was sentenced
to 292 months’ imprisonment with 5 years of supervised release. Zamora was
sentenced to 360 months in prison, followed by 5 years of supervised release.
Garza was sentenced to life in prison to be followed by 10 years of supervised
release.
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II. JURISDICTION
The district court had jurisdiction under 18 U.S.C. § 3231. This Court
has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
III. DISCUSSION
Lopez, Garza, and Zamora each raise a number of issues on appeal. We
address these issues in the following order. First, Zamora argues the district
court erroneously denied his motion to suppress evidence. Second, both
Zamora and Lopez challenge the sufficiency of the evidence supporting their
convictions. Third, Garza argues there was a material variance between the
charge in the indictment and the evidence at trial. Fourth, Lopez claims the
Government committed a Brady violation because it failed to timely disclose
exculpatory evidence. Finally, both Garza and Zamora argue that the district
court erred in calculating their sentences. We address each issue in turn.
A. Zamora’s Motion to Suppress
1. Standard of Review
When reviewing a district court’s denial of a motion to suppress, this
Court reviews “factual findings for clear error and legal conclusions regarding
the sufficiency of the warrant or the reasonableness of an officer’s reliance on
a warrant de novo.” United States v. Allen, 625 F.3d 830, 834 (5th Cir. 2010).
We “view the evidence in the light most favorable to the prevailing party, in
this case, the United States.” Id.
2. Analysis
When reviewing the denial of a motion to suppress evidence under the
Fourth Amendment, this Court conduct an alternative test. United States v.
Gibbs, 421 F.3d 352, 357 (5th Cir. 2005). First, we consider whether the good-
faith exception applies, that is, whether “the officer executing the warrant
relied on it in good faith.” Id. “For the good-faith exception to apply, the
executing-officer’s reliance on the issuing-judge’s probable-cause
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determination and the technical sufficiency of the warrant must have been
objectively reasonable.” Id. at 358. A warrant will ordinarily establish good
faith on the part of the officer executing the warrant. United States v. Craig,
861 F.2d 818, 821 (5th Cir. 1988). But the warrant will not establish good faith
if the affidavit supporting the warrant is bare bones, meaning it is “so lacking
in indicia of probable cause as to render belief in its existence entirely
unreasonable.” Id. (citation and internal quotation marks omitted). If the
good-faith exception applies, the inquiry ends; if this Court does not find good
faith, we will next consider “whether the warrant was supported by probable
cause.” Gibbs, 421 F.3d at 357 (citation and internal quotation marks omitted).
Even if both of these tests are met, this Court still applies a harmless error
analysis, which asks “whether the trier of fact would have found the defendant
guilty beyond a reasonable doubt [if the evidence had been suppressed].”
United States v. Willingham, 310 F.3d 367, 372 (5th Cir. 2002) (alteration in
original) (citation and internal quotation marks omitted).
Zamora argues that the district court erred in denying his motion to
suppress because the search warrant used to search his house listed the wrong
address. 3 He points out that the search warrant authorized the search of 2932
Fernando Salinas, Rio Grande City, Texas, but that the address of his home
and the house the agents actually searched is 2930 Fernando Salinas, Rio
Grande City, Texas. Zamora claims that because of the incorrect address, the
warrant did not give the officers a basis for searching any residence other than
2932 Fernando Salinas. He also claims the good-faith exception does not apply
3 The agents who searched Zamora’s home found “a grenade, 46 firearms, various
magazines for the firearms, two ballistic vests, a lot of ammunition, about 4 ounces of
marijuana, a pair of night vision goggles, [a] steel baton, handcuffs, [an automobile], and
miscellaneous documents.” At trial, the Government argued that finding the night-vision
goggles at Zamora’s home corroborated the coconspirators’ testimony that they used night-
vision goggles to get around the ranches while transporting drugs at night.
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because the affidavit failed to state probable cause for the agents to search
2930 Fernando Salinas. The Government responds that “[t]he district court’s
findings of fact, which were based on testimony offered at the suppression
hearing, establish both the validity of the warrant and the agents’ reasonable
reliance on it.” According to the Government, the warrant was not facially
invalid because it accurately described the premises to be searched, and the
agents’ reliance on the warrant was objectively reasonable.
We hold that the district court did not err when it denied Zamora’s
motion to suppress because the good-faith exception applies. We focus on
whether the warrant describes the premises to be searched with sufficient
specificity to ensure that the officers could locate the premises without
searching the wrong premises. See Darensbourg, 520 F.2d at 987 (“It is enough
if the description is such that the officer with a search warrant can, with
reasonable effort ascertain and identify the place intended. The test is one of
reasonableness, and [t]echnical requirements of elaborate specificity once
exacted under common law pleadings have no proper place in this area.”
(alteration in original) (citations and internal quotation marks omitted)). An
incorrect address is not necessarily fatal.
Indeed, this Court has previously upheld searches conducted pursuant
to warrants with an incorrect house number, the wrong street name, and even
the incorrect city. See, e.g., United States v. Gordon, 901 F.2d 48, 50 (5th Cir.
1990) (even though the street name was wrong on the warrant, the good-faith
exception applied because the defect was not apparent from simply looking at
the warrant, “the affiant [who was] the executing officer . . . had recently
viewed the location in question,” and “there was no possibility the wrong
premises would be searched” (internal quotation marks omitted)); United
States v. Avarello, 592 F.2d 1339, 1344 (5th Cir. 1979) (affirming denial of the
motion to suppress where the warrant listed the wrong city because the
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description of the premises allowed “the executing officers [to] locate and
identify the premises to be searched with reasonable effort”); United States v.
Darensbourg, 520 F.2d 985, 987 (5th Cir. 1975) (collecting cases where the
Fifth Circuit has upheld the denial of a motion to suppress when the address
was incorrect).
Here, the officers initially set out to execute an arrest warrant for
Zamora, which listed his address as 2930 Fernando Salinas. When they
arrived at the street, they were unable to find 2930, but they saw Zamora’s car
parked outside a house that had an electrical box labeled 2932. The agents
executed the arrest warrant, and then sought a search warrant, which listed
the address of the home as 2932 Fernando Salinas. The search warrant also
gave a physical description of the home, noted that Zamora had been found
inside the home, and stated that 2932 appeared on the home’s electrical box.
The district court found that the warrant accurately described Zamora’s
home so that the officers would not risk searching the wrong home. Zamora
does not dispute the accuracy of the description of his home in the warrant; he
only focuses on the incorrect address. But, as the cases above demonstrate, an
incorrect address in a search warrant does not automatically invalidate the
search. Because the warrant accurately described Zamora’s home, the officers
were able to find his house and there was little risk that they would
inadvertently search the wrong location. Thus, the district court correctly
denied Zamora’s motion to suppress.
B. Sufficiency of the Evidence (Lopez and Zamora)
1. Standard of Review
Both Lopez and Zamora admit that they failed to move for a judgment of
acquittal on the grounds that the Government had not presented sufficient
evidence to convict them. This Court reviews unpreserved challenges to the
sufficiency of the evidence for plain error. United States v. Delgado, 672 F.3d
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320, 330 (5th Cir. 2012) (en banc). Under plain error review, the defendant
“must show: (1) an error, (2) that is plain, (3) and that affected his substantial
rights.” United States v. Garcia–Gonzalez, 714 F.3d 306, 315 (5th Cir. 2013)
(citation omitted). Even if the Defendant–Appellant satisfies those criteria,
this Court “will exercise discretion to correct the error only if the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
(alteration in original) (citation and internal quotation marks omitted).
This Court has previously “described the standard of review for
unpreserved insufficiency claims in the most exacting language, stating that
such a claim ‘will be rejected unless the record is devoid of evidence pointing to
guilt or if the evidence is so tenuous that a conviction is shocking.’” Delgado,
672 F.3d at 330–31 (quoting United States v. Phillips, 477 F.3d 215, 219 (5th
Cir. 2007) (emphasis added) (internal quotation marks omitted)). “Put simply,
to satisfy the second prong of the plain-error test, [the defendant] must
demonstrate not just that the government’s evidence of conspiracy was
insufficient, but that it was obviously insufficient.” Id. at 331. This Court
reviews “the evidence in the light most favorable to the jury verdict, including
all reasonable inferences and credibility choices.” United States v. Pierre, 958
F.2d 1304, 1310–11 (5th Cir. 1992) (en banc).
2. Analysis
“To prove conspiracy to possess and distribute a controlled substance,
the government must show beyond a reasonable doubt (1) the existence of an
agreement between two or more persons to violate narcotics laws; (2) the
defendant’s knowledge of the agreement; and (3) his voluntary participation in
the conspiracy.” United State v. Valdez, 453 F.3d 252, 256–57 (5th Cir. 2006)
(footnote omitted). The Government cannot prove a conspiracy merely by
showing a defendant’s presence at a crime scene or association with
conspirators. Id. at 257. But “[a] conspiracy may be inferred from
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circumstantial evidence.” United States v. Villegas–Rodriguez, 171 F.3d 224,
228 (5th Cir. 1999). The Government is not required to prove “that each
defendant knew of every detail of the conspiracy, only that each knew of its
essentials.” Id. Importantly for this case, “a defendant may be convicted on
the uncorroborated testimony of a coconspirator who has accepted a plea
bargain unless the coconspirator’s testimony is incredible.” Id. “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.” United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir.
1994).
a. Lopez
Lopez’s main argument about the sufficiency of the evidence is that it
was uncorroborated and unreliable. Specifically, he complains that
The only evidence offered by the Government that [Lopez]
knowingly permitted the use of Las Carolina Ranch to store and
transport marijuana past the Falfurrias border patrol checkpoint
was the self-serving testimony of the “low-life” “boss” and self-
professed “pothead” Jesus Carbajal and his crew of terminally high
drug couriers who had each entered a guilty plea and given
testimony against [Lopez] in hopes of receiving a more lenient
sentence.
Lopez argues that the Government only offered “assumptions stacked upon
inferences and inferences stacked upon inferences,” and thus failed to prove he
knew that Carbajal was actually transporting drugs through his ranch. In
response, the Government argues that Lopez ignores the standard of review
and fails to make the requisite credibility inferences in favor of the jury’s
verdict. The Government claims that the record provides “overwhelming
evidence of Lopez’s guilt.”
We hold that the district court did not plainly err in entering a guilty
judgment because our review of the record demonstrates that there was more
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than sufficient evidence of Lopez’s guilt. Carbajal testified that Lopez
approached him and offered to allow Carbajal to use his ranch to help transport
the drugs past the border-patrol station. Carbajal also testified that Lopez
arranged a meeting between the two of them and Garza, and that after that
meeting, the smuggling business expanded significantly. The jury also heard
testimony from a number of other witnesses describing Lopez’s involvement in
the smuggling conspiracy. The coconspirators testified that they told Lopez
they were going to drop marijuana off at his ranch, that Lopez was present
during the loading and unloading of the marijuana, and that they witnessed
Lopez and Carbajal meeting. Witnesses also told the jury that Lopez was
present while loads of marijuana were being moved. In addition, the
Government presented evidence that Lopez ordered the construction of an
outhouse on his ranch so that the smugglers could hide the marijuana they
were transporting. Once law enforcement began to dismantle the conspiracy,
Lopez then concealed the outhouse. Lopez was also paid for his part of the
conspiracy.
To counteract the weight of this testimony, Lopez points to his testimony
at trial. He testified that he was a legitimate business man, who had been
steadily employed his whole life. He also testified that he rented part of his
ranch to Carbajal, and he thought Carbajal was moving barrels of hay. He
denied ever talking to Carbajal about transporting drugs or being paid for
drugs being stored on his ranch. But, it was the jury’s job to make credibility
determinations, and on appeal, this Court makes all reasonable credibility
choices in favor of the jury verdict. Pierre, 958 F.2d at 1310–11.
Considering all of this, the record was not devoid of evidence pointing to
guilt, and so we affirm on this issue.
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b. Zamora
Zamora’s primary argument regarding the sufficiency of the evidence is
that the testimony was uncorroborated. He claims that the Government tried
to corroborate the witness testimony with the ATV and night-vision goggles
that were used to smuggle drugs and were seized from Zamora’s home. But
Zamora claims he did not own or control the ATV and that he did not use the
night-vision goggles. Further, he argues that coconspirator testimony was
incredible as a matter of law because the witnesses gave conflicting dates,
ranging from 2005 to 2009, when testifying about when Zamora joined the
conspiracy. The Government responds that Zamora’s arguments completely
ignore the appropriate standard of review; applying the correct standard of
review, the Government argues, the evidence is not plainly insufficient.
We agree with the Government that the evidence supporting Zamora’s
conviction was not plainly insufficient. First, Zamora’s arguments that the
uncorroborated witness testimony is insufficient as a matter of law are
unavailing. As discussed above, see supra subpart III(B)(2), this Court has
previously held that the Government is entitled to prove its case based on
uncorroborated testimony from cooperating witnesses unless the testimony is
incredible as a matter of law. See Villegas–Rodriguez, 171 F.3d at 228.
Zamora does not otherwise attempt to argue that the testimony was incredible.
Second, a review of the record shows that there was evidence to support
the jury’s conviction. Zamora worked at Baluarte Ranch, and he secured jobs
for Carbajal and other coconspirators to further the smuggling operation.
Several witnesses testified that Zamora let them into Baluarte Ranch when
they arrived with shipments. The jury also heard testimony that Zamora
allowed other smugglers to store marijuana on the ranch or at his home. There
was also testimony that Zamora was a law enforcement lookout and that
Zamora personally transported loads off of Baluarte Ranch. Further, Zamora
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was paid $1,000 per load, earning $30,000 to $40,000 for his work with
Carbajal.
Considering all of this testimony, we cannot say that the record is devoid
of evidence to support the jury’s verdict. See Delgado, 672 F.3d at 330–31.
Thus, under plain-error review, the jury had sufficient evidence to find Zamora
guilty.
C. Variance Between the Indictment and Evidence at Trial (Garza)
At the outset, we note that Garza’s brief is somewhat inconsistent in how
it frames this issue. Garza labels it a challenge to the sufficiency of the
evidence in the headings of his brief. But, in the body of his brief, he discusses
the factors this Court uses to determine whether there has been a variance
between the indictment and proof at trial, and he then applies those factors to
his case. Thus, despite the headings in his briefing, we will construe this as a
variance argument.
1. Standard of Review
“The question whether the evidence establishes the existence of one
conspiracy (as alleged in the indictment) or multiple conspiracies is a fact
question within the jury’s province.” United States v. Mitchell, 484 F.3d 762,
769 (5th Cir. 2007). This Court affirms the jury’s finding of a single conspiracy
“unless the evidence and all reasonable inferences, examined in the light most
favorable to the government, would preclude reasonable jurors from finding a
single conspiracy beyond a reasonable doubt.” Id. (internal quotation marks
omitted). Even when the Court finds a variance, the Court will “reverse only
if the variance prejudiced the defendant’s substantial rights.” Id. The
defendant’s substantial rights are not affected “as long as the government
establishes the defendant’s involvement in at least one of the proved
conspiracies.” Id. at 770.
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2. Analysis
“A material variance occurs ‘when the proof at trial depicts a scenario
that differs materially from the scenario charged in the indictment but does
not modify an essential element of the charged offense.’” Id. at 769 (quoting
United States v. Delgado, 401 F.3d 290, 295 (5th Cir. 2005)). Determining
whether there is a variance between the indictment, which charged a single
conspiracy, and the proof at trial, which Garza alleges proved multiple
conspiracies, requires counting the conspiracies. “The principal considerations
in counting the number of conspiracies are (1) the existence of a common goal;
(2) the nature of the scheme; and (3) the overlapping of the participants in the
various dealings.” United States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999)
(per curiam).
Garza essentially argues that the Government only proved a series of
smaller conspiracies instead of the single, overarching conspiracy charged in
the indictment. He points out that Carbajal developed his smuggling scheme
before Garza became involved with the conspiracy. Although he admits that
several people used Carbajal’s system to transport marijuana from Mexico to
the United States, Garza argues that there was not a single conspiracy because
they were not sharing profits. The Government responds that everything
Garza admits was sufficient for the jury to find a single conspiracy. Further,
the Government argues that evidence clearly establishes a single conspiracy.
After reviewing the evidence adduced at trial, we hold that there was not
a material variance between the indictment and the proof at trial. Applying
the relevant considerations here, the evidence was sufficient for reasonable
jurors to find a single conspiracy beyond a reasonable doubt. This Court has
previously defined having a “common goal” broadly, finding a common goal
where “[t]he overall objective or goal was for everyone in the conspiracy to
profit from the illicit purchase and selling of cocaine.” United States v. Morris,
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46 F.3d 410, 415 (5th Cir. 1995); see also Morrow, 177 F.3d at 291 (describing
the conspirators’ common goal as “deriv[ing] personal gain from the sale of
mobile homes through the submission of false loan information”). Here, the
jury could reasonably have found that the conspirators had a common goal of
smuggling marijuana past the Falfurrias Border Patrol checkpoint for personal
gain. Even Garza admits that all of the individuals involved were seeking their
own profit from the illegal smuggling and sale of marijuana. While Garza
emphasizes that the coconspirators were in competition with each other after
smuggling the marijuana past the border, that fact does not preclude finding a
common goal. United States v. Ross, 58 F.3d 154, 158 (5th Cir. 1995).
Next, the nature of the scheme shows a single conspiracy. This Court
has explained that, in examining the nature of the scheme, we do not look at
charts or diagrams of wheels or chains in a conspiracy; instead, the Court
conducts a “functional and substantive analysis.” Morris, 46 F.3d at 415.
“Where the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme or to the overall
success of the venture, [or] where there are several parts inherent in a larger
common plan . . . , the existence of a single conspiracy will be inferred.” United
States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982). Here, the coconspirators
had coordinated drop-off times, and marijuana from different suppliers was
stored and transported together. Viewed in the light most favorable to the
verdict, this evidence shows that the several dealers who used Carbajal’s
smuggling network were part of his larger common plan, reflecting a single
conspiracy.
Finally, the overlapping participants show a single conspiracy. “Where
the memberships of two criminal endeavors overlap, a single conspiracy may
be found. There is no requirement that every member must participate in
every transaction to find a single conspiracy. Parties who knowingly
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participate with core conspirators to achieve a common goal may be members
of an overall conspiracy.” United States v. Richardson, 833 F.2d 1147, 1154
(5th Cir. 1987). The evidence at trial established that Lopez introduced Garza
to Carbajal at a meeting at Lopez’s ranch. After that meeting, Garza and his
brother began moving marijuana through Carbajal’s smuggling system. Based
on this testimony, the jury could reasonably have concluded that Garza was
interacting with Carbajal, the core member of the conspiracy, to achieve the
conspiracy’s common goal of smuggling marijuana past the border-patrol
station for profit. Thus, we conclude that there was not a material variance
because the proof at trial proved the single conspiracy charged in the
indictment.
D. Brady Violation (Lopez)
1. Standard of Review
This Court “generally review[s] whether the government violated Brady
de novo, although even when reviewing a Brady claim de novo, [the Court]
must proceed with deference to the factual findings underlying the district
court’s decision.” United States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011)
(citations and internal quotation marks omitted).
2. Analysis
“There are three components of a true Brady violation”: (1) the evidence
at issue, whether exculpatory or impeaching, must be favorable to the accused;
(2) “that evidence must have been suppressed by the State, either willfully or
inadvertently”; and (3) “prejudice must have ensued.” Strickler v. Greene, 527
U.S. 263, 281–82 (1999). Evidence is material for purposes of Brady “if there
is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different,” meaning the
probability is “sufficient to undermine confidence in the outcome.” United
States v. Bagley, 473 U.S. 667, 682 (1985) (internal quotation marks omitted).
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Lopez argues that the Government violated Brady because it failed to
disclose an exculpatory statement his ranch hand, Ruiz, made to the
Government. Ruiz was arrested for being in the country illegally, and he told
law enforcement agents that he had no knowledge of any illegal activity at
Lopez’s ranch. After Ruiz made that statement but before the trial in this case,
the Government sought to remove Ruiz from the country; Lopez agreed, and
Ruiz was deported. Lopez claims that he did not find out about Ruiz’s
statement until trial; according to Lopez, the Government claimed it had
complied with its Brady obligations and denied Ruiz had made any exculpatory
statements. Lopez argues that this was material because, at trial, several
witnesses pointed to Ruiz’s role in the conspiracy, and had Lopez been able to
question Ruiz, he could have proven his innocence. In response, the
Government urges us to decline to review this claim because Lopez failed to
raise it before the district court.
We decline to reach the merits of Lopez’s Brady claim because he failed
to raise it before the district court. The question of what Lopez knew about
Ruiz’s statement and when he knew it is the type of “fact-based judgment[]
that cannot be adequately first made on appellate review [and] is why Brady
challenges must be brought to the district court’s attention, winnowed by the
trial judge, and made part of the record through a motion for a new trial.” See
United States v. Rice, 607 F.3d 133, 142 (5th Cir. 2010) (citing United States v.
Gonzales, 436 F.3d 560, 580 (5th Cir. 2006)). Here, it is not clear from the
record whether Ruiz’s statement was actually suppressed. At a pretrial
conference, Lopez’s attorney stated, “[The prosecutor in Ruiz’s case] advised us
at [the time of Ruiz’s expedited departure hearing] that [Ruiz] had given an
exculpatory statement.” Lopez’s attorney then said that the agent to whom
Ruiz made the statement “has forgotten about that statement or has denied
that statement existed.” That same agent, however, testified to the statement
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at trial, and Lopez never explains how we are supposed to reconcile the conflict
between Lopez’s attorney’s statement in the pretrial conference and this
testimony at trial. Thus, because it is impossible to determine whether the
statement was suppressed based on the record before us, we hold that Lopez
has waived this issue and decline to reach the merits of Lopez’s Brady claim.
E. Calculation of Guideline Ranges (Garza and Zamora)
1. Standard of Review
Under Gall v. United States, 552 U.S. 38 (2007), appellate courts take a
two-step approach in reviewing sentences. See id. at 51. This Court will first
review the sentence to ensure that it is procedurally sound and will then
consider the substantive reasonableness of the sentence under an abuse of
discretion standard. Id. Nothing in this analysis, however, “purport[s] to alter
[this Court’s] review of the district court’s construction of the Guidelines or
findings of fact.” United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008). Thus, this Court reviews factual findings related to sentencing for
clear error: “[t]here is no clear error if the district court’s finding is plausible
in light of the record as a whole.” Id. (footnote and internal quotation marks
omitted). The district court may find the “facts relevant to a defendant’s
Sentencing Guidelines range by a preponderance of the evidence.” United
States v. Harper, 448 F.3d 732, 735 & n.2 (5th Cir. 2006).
Drug-quantity determinations are factual determinations. United States
v. Ramirez, 271 F.3d 611, 612 (5th Cir. 2001). Whether a defendant is a
minimal or minor participant is also a factual determination. United States v.
Pofahl, 990 F.2d 1456, 1485 (5th Cir. 1993).
2. Analysis
a. Garza
Garza argues the district court committed two errors in sentencing him.
First, he claims the district court erred in calculating the drug quantity
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attributable to him. Second, he argues that the district court erred in relying
on a temporally distant crime—his 1994 marijuana-possession conviction —
when calculating his criminal history. The Government responds that the
record supports the district court’s finding that Garza is responsible for at least
30,000 kg of marijuana. The Government also argues that Fifth Circuit
precedent forecloses Garza’s argument about the calculation of his criminal
history.
The drug quantity for sentencing purposes
includes both drugs with which the defendant was directly
involved, and drugs that can be attributed to the defendant in a
conspiracy as part of his “relevant conduct” under § 1B1.3(a)(1)(B)
of the Guidelines. Relevant conduct for conspiratorial activity is
defined in § 1B1.3(a)(1)(B) as “all reasonably foreseeable acts and
omissions of others in furtherance of jointly undertaken criminal
activity.”
United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994) (citation omitted).
“A district court may consider estimates of the quantity of drugs for sentencing
purposes.” United States v. Cooper, 274 F.3d 230, 240 (5th Cir. 2001) (internal
quotation marks omitted). The PSR is considered reliable evidence for
sentencing purposes. United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998)
(per curiam). “The defendant bears the burden of showing that the information
in the PSR relied on by the district court is materially untrue.” United States
v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).
We hold the district court did not clearly err in calculating the drug
quantity used as the basis of Garza’s sentence. First, some of Garza’s
arguments rely on his contention that the evidence at trial only proved several
smaller conspiracies, not a single conspiracy. But, we have already rejected
Garza’s variance argument, see supra subpart III(C), and a coconspirator can
be held reasonable for all reasonably foreseeable relevant conduct. See
U.S.S.G. § 1B1.3(a)(1)(B). Garza does not appear to argue that the acts of other
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suppliers were not foreseeable; he simply argues that they cannot be attributed
to him because he was not part of the overarching conspiracy.
Most importantly though, Garza’s arguments ignore the testimony that
clearly linked Garza to more than 30,000 kg of marijuana. Ronny Rice, who
worked as a driver for Garza and helped transport drugs across the border,
testified that from 2005 to 2010, he carried two to five loads per week, with
each load weighing 100 to 200 pounds. Even assuming the fewest loads at the
lowest weight, this means Rice carried approximately 23,587 kg for Garza from
2006 to 2010. And, this does not include the more than 7,000 kg the
Government seized from other members of the conspiracy—1,365 kg of which
was found at Garza’s home. Garza has not offered any evidence to show that
this information in the PSR is materially untrue. See Valencia, 44 F.3d at 274.
For these reasons, the district court did not err in calculating the drug quantity
used as the basis of Garza’s sentence.
Next, Garza argues that the district court erred when it used a
“temporally remote conviction” to calculate his criminal history. The
Guidelines allow a district court to consider “any prior sentence of
imprisonment exceeding one year and one month that was imposed within
fifteen years of the defendant’s commencement of the instant offense.”
U.S.S.G. § 4A1.2(e)(1). “So long as the defendant was incarcerated within the
statutory time period, the prior sentence will be counted in the criminal history
score—regardless of when the sentence was ‘imposed.’” United States v.
Arnold, 213 F.3d 894, 895–96 (5th Cir. 2000). Garza was released from prison
for the marijuana offense in 1997. This is within fifteen years from when he
commenced the conspiracy offense (2006). Garza himself acknowledges that
Fifth Circuit case law forecloses this argument, and so the district court did
not err in calculating his sentence. Thus, we affirm Garza’s sentence.
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b. Zamora
Zamora argues the district court committed three errors in calculating
his sentence: (1) the district court erred in calculating the relevant drug
quantity; (2) the district court erred in enhancing his sentence for firearm
possession; and (3) the district erred when it failed to reduce his sentence
because he was a minor participant. The Government responds that Zamora
can be held responsible for all reasonably foreseeable conduct of his
coconspirators. Given the scope of the conspiracy, the Government argues that
it was reasonably foreseeable that more than 30,000 kilograms of marijuana
would be smuggled into the United States. Further, the Government argues
there was no error in giving Zamora the enhancement for possession of a
firearm because Zamora had actual knowledge of the facts the district court
used as the basis of the enhancement. Finally, the Government claims the
district court correctly refused to give Zamora a minor-participant adjustment
because Zamora played an important role in the conspiracy and was
responsible for “[t]he most successful years” of the conspiracy.
We conclude the district court did not err in calculating the drug quantity
used as the basis for Zamora’s sentence. Zamora relies on Carreon to argue
that the district court was required to make express findings of the amount of
drugs attributable to him, based on his specific role in the conspiracy. But,
Carreon is distinguishable from this case in several ways. First, in Carreon,
the district court had attributed the entire quantity of drugs involved in the
conspiracy to the defendant without any explanation. 11 F.3d at 1231. Here,
the PSR estimated the conspiracy was responsible for more than 100,000 kg of
marijuana but used less than a third of that amount to calculate Zamora’s
sentence. Cf. United States v. Fernandez, 559 F.3d 303, 323–24 (5th Cir. 2009)
(affirming a sentence where the drug quantity attributed to the defendant was
“hal[f] the drug amount attributed to the conspiracy as a whole”). Further, the
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Court in Carreon specifically “rejected the proposition that a court must make
a ‘catechismic regurgitation of each fact determined’; instead, [this Court]
allowed the district court to make implicit findings by adopting the PSR.”
Carreon, 11 F.3d at 1231. Here, the district court made this implicit finding.
At the sentencing hearing, Zamora objected to the drug quantity, and the
district court heard arguments from both parties before overruling the
objection because Zamora was “responsible for the acts of that conspiracy.”
Moreover, the evidence at trial also supports the district court’s estimate
of the drug quantity attributable to Zamora. See Fernandez, 559 F.3d at 323
(affirming sentence where the evidence showed the defendant’s “knowledge of
the breadth of the conspiracy”); United States v. Duncan, 191 F.3d 569, 575–
76 (5th Cir. 1999) (affirming sentence where the “foundation for the findings
in the PSR regarding the foreseeability of the drug quantities involved [was]
manifestly apparent”). Mata testified that he and others transported loads to
Baluarte Ranch as often as two to three times per week for three years and at
least fifty times; he also testified that each load weighed between 350 and 450
pounds. At the low end, this means 7,937 kg of marijuana were transported
through Baluarte Ranch; at the high end, 95,526 kg of marijuana were
smuggled through the ranch. Further, Carbajal specifically testified that the
most successful years of the conspiracy were the years he worked with Zamora.
As the PSR noted, several coconspirators identified Zamora as the person who
helped them smuggle marijuana through Baluarte Ranch and scouted for law
enforcement. Law enforcement officers also seized specific loads of marijuana
on their way to Baluarte Ranch, with at least one load totaling more than 1,000
kg.
Finally and perhaps most importantly, Zamora bears the burden of
showing that the information in the PSR was materially untrue. See Valencia,
44 F.3d at 274. Zamora argues he did not start working at the Baluarte Ranch
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until 2009, so he cannot be held responsible for any drugs smuggled before that
date. But there was testimony at trial that Zamora joined the conspiracy as
early as 2005 or 2006. Based on this testimony, it was plausible for the district
court to conclude Zamora had been involved with the conspiracy for longer than
he claimed, and thus was responsible for a greater quantity of drugs. In the
absence of a more specific objection or additional evidence from Zamora
showing that the information in the PSR was materially untrue, he has not
met his burden of showing the district court erred in relying on the PSR. Thus,
we hold the district court did not clearly err in finding Zamora responsible for
30,000 kg of marijuana.
We also affirm the enhancement for possession of a firearm. The PSR
recommended the enhancement based on weapons that officers seized when
they searched Zamora’s home. The district court concluded that the evidence
was insufficient to show that those weapons were used in the offense, but still
applied the enhancement because the evidence at trial showed Zamora carried
a handgun. Zamora argues this was error; he claims he did not have proper
notice because the enhancement was based on facts not in the PSR. But this
Court has previously held that “if the defendant has actual knowledge of the
facts on which the district court bases an enhancement or a denial of a
reduction, the Sentencing Guidelines themselves provide” sufficient notice.
United States v. Marmolejo, 89 F.3d 1185, 1201 (5th Cir. 1996) (internal
quotation marks omitted). Zamora freely admits that he possessed a handgun,
and he acknowledges Marmolejo forecloses this argument. Thus, the district
court did not err in imposing the firearm enhancement.
Finally, we also hold that the district court did not err in deciding not to
award a minor-participant adjustment. Zamora argues he played only a minor
role in the conspiracy, allowing drug runners access to the Baluarte Ranch and
“perhaps, assist[ing] in unloading one of the shipments.” But, the evidence
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plausibly supported a more extensive role in the conspiracy, and Zamora
ignores Carbajal’s testimony that “[t]he most successful years were when I
started working [with Zamora] helping me out.” See supra subpart III(B)(2)(b).
Zamora’s involvement in the conspiracy was more than a single, isolated
incident, and he was well-compensated for his work. See Pofahl, 990 F.2d at
1485 (affirming district court’s denial of a minor-participant reduction where
defendant acted as a courier at least twice, recruited an individual to
participate in the conspiracy, and received large payments for his work);
United States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992) (“We have held that
a ‘mule’ or transporter of drugs may not be entitled to minor or minimal
status.”). Thus, we conclude the district court did not err in sentencing
Zamora.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
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