United States v. Maldonado , 241 F. App'x 198 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 18, 2007
Charles R. Fulbruge III
Clerk
No. 04-50938
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS MALDONADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(2:03-CR-668-1)
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
On 16 August 2004, Jose Luis Maldonado was sentenced, inter
alia, to 262-months imprisonment, after a jury convicted him of
possessing marijuana, with the intent to distribute, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Proceeding pro se, he
challenges, inter alia: the sufficiency of the evidence; and his
career-offender sentencing enhancement. CONVICTION AFFIRMED;
SENTENCE VACATED; REMANDED FOR RESENTENCING.
*
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this opinion should not be published and is not precedent except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.
I.
On 29 August 2003, Border Patrol Agents in Texas were informed
that a tractor-trailer carrying narcotics might cross the Cline
checkpoint on Highway 90 around 3:00 a.m. Around 3:15 a.m.,
Maldonado’s tractor-trailer entered Cline’s primary inspection
area, where Agents questioned him about his truck’s contents and
destination. Upon inspecting the bill of lading, which Maldonado
had signed, Agents determined he was considerably off his travel
route. When questioned, Maldonado nervously told Agents he took a
12-hour detour to deliver his wife and child to Del Rio. Agents
requested, and Maldonado consented, to a search of the trailer.
A narcotics-trained canine immediately alerted on the rear of
the trailer and went into a “pinpoint stare” at the front. When
Agents approached the trailer’s rear doors, they smelled air
freshener, which, they later testified, is often used to mask
narcotics’ odors. At the rear doors, the dog alerted again.
Commercial trailers are sealed using an aluminum strip
roughly half an inch wide by five inches long to prevent tampering
with the load inside; the seal is then stamped with a number
reflected on the bill of lading. At trial, an Agent testified
trailer seals can be removed and replaced without breaking them.
After recording and matching Maldonado’s trailer’s seal number to
that on the bill of lading, Agents broke the seal and opened the
doors, revealing pallets of antifreeze with 12 duffel bags on top.
Entering the trailer, Agents smelled a stronger air-freshener scent
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and found the trailer’s interior walls wet with the fragrance.
When asked what the bags contained, Maldonado responded: “That is
not mine”. He then became aggravated and cursed while being
handcuffed and read his Miranda rights.
Further inspection revealed: the duffel bags held
approximately 953 pounds of marijuana wrapped in cellophane blocks;
broken seals were in the trailer; and Madonado’s cab contained,
inter alia, a pair of night-vision goggles and a logbook bearing no
entries for the previous two days. At trial, an Agent testified
the marijuana would have sold for approximately $450 per pound in
the San Antonio area.
II.
The delay in this appeal demands explanation. As noted,
Maldonado is proceeding pro se. He had counsel at trial (February
2004) and sentencing (August 2004). On appeal, he changed counsel
in December 2004, and in October and December 2005, before
proceeding pro se in May 2006. Before Maldonado’s motion to
relieve his last attorney was granted, that attorney had already
filed Maldonado’s opening brief. That brief was withdrawn, and
Maldonado filed his substitute pro se brief in August 2006. He
filed his pro se reply brief in December 2006 (and his corrected
reply brief in January 2007).
Regarding his conviction, Maldonado contends: the evidence
was insufficient to convict him of knowingly possessing marijuana
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with the intent to distribute it; the district court erroneously
refused to suppress evidence of the marijuana; and the jury was
inadequately instructed because the court reporter failed to
transcribe the jury charge. These contentions fail.
For his sentence, he asserts his career-offender enhancement
was improper under Guidelines § 4B1.2. The Government concedes
error.
A.
Concerning the insufficiency-of-the-evidence claim, the denial
of Maldonado’s motions for judgment of acquittal is reviewed de
novo. E.g., United States v. Burns, 162 F.3d 840, 847 (5th Cir.
1998). Viewing the evidence in the light most favorable to the
verdict, we accept the jury’s credibility choices and reasonable
inferences. E.g., United States v. Anderson, 174 F.3d 515, 522
(5th Cir. 1999). Restated, a conviction must be upheld if a
rational jury could have found the Government proved the offense’s
essential elements beyond a reasonable doubt. Id.
Maldonado maintains the evidence fails to establish he knew
the marijuana was in his trailer. Needless to say, knowledge is an
essential element of drug offenses for possession with the intent
to distribute. See 21 U.S.C. § 841(a); United States v. Moreno,
185 F.3d 465, 471 (5th Cir. 1999). Ordinarily, such knowledge may
be inferred from a defendant’s control over the narcotics’
location. Moreno, 185 F.3d at 471. When drugs are concealed,
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however, additional circumstantial evidence is required. Id.; see
also, United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir.
1990) (it is a “fair assumption that a third party might have
concealed the controlled substance[] in the vehicle with the intent
to use the unwitting defendant as the carrier in a smuggling
enterprise”).
Maldonado’s trailer contained 953 pounds of marijuana, valued
at more than $400,000. The jury could have reasonably inferred he
would not have been entrusted to transport such a large value or
quantity of narcotics without his knowledge. E.g., United States
v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003) (large quantity or
high value of narcotics is probative of knowledge); United States
v. Ramos-Garcia, 184 F.3d 463, 465-66 (5th Cir. 1999) (70 pounds of
hidden marijuana evincing knowledge).
The jury also could have reasonably inferred Maldonado’s
knowledge of the marijuana through his nervousness, conflicting
statements, or implausible story. Diaz-Carreon, 915 F.2d at 954-
55. The evidence showed, inter alia: the trailer was loaded and
sealed at a warehouse near Houston, Texas; the trailer was weighed
before and after loading; a digital photograph of the load was
taken before the trailer was sealed; despite his employer’s policy
forbidding detours, Maldonado rerouted 12 hours out of the way to
Del Rio (approximately 320 miles each way), instead of delivering
the load directly to San Antonio per the bill of lading; in further
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contravention of his employer’s requirements, and of the law,
Maldonado failed to maintain his truck’s log book for at least two
days; and night-vision goggles were not necessary for a driver’s
duties in the trucking business. The weighing and the digital
photograph demonstrate the trailer could not have contained the
weight (over 900 pounds) of the marijuana when it left the
warehouse. The remaining circumstantial evidence casts serious
doubt on the claim that Maldonado took his child and wife to Del
Rio in his fully-loaded, 80,000 pound truck in the dead of night.
Id. His nervousness further supports the jury’s inference of
knowledge. Id. In short, ample evidence supports a reasonable
jury’s finding, beyond a reasonable doubt, Maldonado knew he was
transporting marijuana.
B.
Regarding the denial of his motion to suppress the marijuana,
Maldonado contends, for the first time on appeal, the Agents
extended his primary checkpoint questioning beyond the time
permitted by the Fourth Amendment. He also maintains his consent
was not voluntarily given. In his reply brief he asserts the
Agents exceeded the scope of their delegated powers. When error is
properly preserved, a suppression ruling is reviewed de novo;
factual findings, for clear error. E.g., United States v. Castro,
166 F.3d 728, 731 (5th Cir. 1999). But “[g]enerally, if a party
fails to timely raise an issue in district court, we will review it
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for plain error unless the party made its position clear to the
district court and to have objected would have been futile”.
United States v. Castillo, 430 F.3d 230, 242 (5th Cir. 2005).
Plain, although not per se reversible, error exists if a clear or
obvious error affected a party’s substantial rights. E.g., United
States v. Olano, 507 U.S. 725 (1993).
In district court, Maldonado merely claimed his consent was
limited to the Agents looking at the back of his trailer, not to
their looking inside the trailer. The district court ruled it need
not reach the issue because “there was adequate evidence to give
rise to probable cause to search the trailer”. We agree.
Because Maldonado did not preserve in district court his claim
concerning the duration of the primary-checkpoint questioning, it
is reviewed only for plain error. Castillo, 430 F.3d at 242.
Maldonado fails to show a clear or obvious error because
uncontradicted testimony at the suppression hearing was that the
initial questioning in the primary checkpoint, including when he
consented to the search, “took no more than one minute”. “[A]
couple of minutes” is a permissible duration for a checkpoint stop.
United States v. Machuca-Barrera, 261 F.3d 425, 435 (5th Cir.
2001). Moreover, the Border Patrol may extend a checkpoint stop to
search for drugs based on “consent or probable cause”. Id. at 434.
Thus, no clear error exists.
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Regarding Maldonado’s remaining contention, not raised until
his reply brief, it goes without saying that this court does not
consider issues raised for the first time in a reply brief. E.g.,
United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).
C.
Maldonado next asserts the jury was inadequately instructed
because the court reporter neglected to transcribe the jury charge.
The Court Reporter Act requires a verbatim transcript of all
proceedings in open court in a criminal case. 28 U.S.C. § 753(b);
United States v. Taylor, 607 F.2d 153, 154 (5th Cir. 1979). For
reversal, however, depending on whether defendant has the same
counsel on appeal as at trial, a defendant must show an omission
either “prejudice[d] his appeal” (same counsel) or concerns “a
substantial and significant portion of the record” (new counsel).
United States v. Selva, 559 F.2d 1303, 1305-1306 (5th Cir. 1977).
Here, of course, Maldonado is proceeding pro se. See Taylor, 607
F.2d at 154 (not having to decide standard for pro se appellant).
The district court provided a copy of the jury charge to each
juror and asked them to read it along with the court. The court
also provided Maldonado a copy of the charge, and the record
contains the charge, signed by the Judge. Maldonado, of course,
was present at trial. Moreover, proceeding pro se, he does not
allege any error in these copies of the charge. Accordingly,
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regardless of the legal standard to be applied, Maldonado fails to
show reversible error.
D.
Finally, Maldonado contends the district court violated United
States v. Booker, 543 U.S. 220 (2005), in finding he was a career
offender under Guidelines § 4B1.2. Inter alia, Maldonado claims
the district court erred in characterizing as violent a prior
Washington state-court third-degree assault conviction, which that
court had deemed non-violent.
Because Maldonado’s trial counsel timely raised an objection
at sentencing pursuant to Blakely v. Washington, 542 U.S. 296, 302
(2004) (facts used in state court to increase a sentence beyond the
statutory maximum must be proved to a jury beyond a reasonable
doubt), his challenge is reviewed for harmless error. See United
States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005) (“if ... the
Sixth Amendment issue presented in Booker ... is preserved in the
district court by an objection, we will ordinarily vacate the
sentence and remand, unless ... the error is harmless under Rule
52(a) of the Federal Rules of Criminal Procedure.”). The
Government concedes it cannot demonstrate the error was harmless.
III.
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For the foregoing reasons, Maldonado’s conviction is AFFIRMED;
his sentence is VACATED; and this matter is REMANDED to district
court for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
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