United States v. Castro , 273 F. App'x 287 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4851
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN EVANGELISTA CASTRO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:06-cr-00054-sgw)
Submitted: March 5, 2008 Decided: April 14, 2008
Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron L. Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Evangelista Castro appeals his jury convictions for
conspiracy to distribute five hundred grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), and 846 (2000); and possession with the intent
to distribute five hundred grams or more of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) (2000). He was sentenced to 324
months’ imprisonment. Finding no error, we affirm.
Castro first claims the district court erred in denying
him a hearing under Franks v. Delaware, 438 U.S. 154 (1978). In
order to establish a Franks hearing is warranted, a defendant must
“(1) ‘make a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit,’ and
(2) that the statement was necessary to the finding of probable
cause.” United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994)
(quoting Franks, 438 U.S. at 171-72). “This showing ‘must be more
than conclusory’ and must be accompanied by a detailed offer of
proof.” United States v. Colkley, 899 F.2d 297, 300 (4th Cir.
1990) (quoting Franks, 438 U.S. at 171).
Police officers utilized confidential informants to make
controlled buys of methamphetamine from a group of individuals.
Officers did not know the identity of any of the individuals except
that one went by the name “Pedro” and lived in a trailer park where
- 2 -
some of the purchases had taken place. The individuals utilized
the same vehicle in all of the transactions. After one purchase,
officers followed the vehicle from the purchase to an apartment
complex. The vehicle was registered in the name of Castro living
at the apartment where the vehicle parked.
Police Investigator Doug Miller prepared an affidavit and
search warrant for the apartment. Miller did not list any names,
but instead stated that a controlled purchase had been made from a
subject in a vehicle that officers had followed back to the
apartment. Castro claimed Miller purposely tried to mislead the
magistrate judge because Miller knew the “subject” listed in the
affidavit was co-conspirator Pedro Alonzo, who lived at a different
residence.
Miller testified he did not know Alonzo was the driver
until after the search and that he did not include the name of the
subjects at the apartment to mislead the magistrate judge, but
because the actual residents were unknown at that time. As the
district court noted, the affidavit contains factual gaps and is
not well written. However, that does not prevent the affidavit
from establishing probable cause, and there is no indication that
Miller intended to deceive the magistrate judge or displayed a
reckless disregard for the truth. We therefore conclude the
district court did not err in denying Castro’s Franks motion.
- 3 -
Castro next claims the district court erred when it
denied his motion for a new trial. A district court may grant a
defendant’s motion for a new trial “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). A district court “‘should
exercise its discretion to grant a new trial sparingly,’ and . . .
should do so ‘only when the evidence weighs heavily against the
verdict.’” United States v. Perry, 335 F.3d 316, 320 (4th Cir.
2003) (quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir.
1997). This court reviews the denial of a Rule 33 motion for abuse
of discretion. United States v. Adam, 70 F.3d 776, 779 (4th Cir.
1995).
At trial, police officers testified that no Spanish
interpreter was present during the search of Castro’s residence or
later during interviews and that Castro effectively communicated
with them in English. Castro testified an interpreter was present
with police at all times. After the conclusion of the trial,
Castro filed a motion for a new trial claiming as new evidence that
the Government presented “false evidence” to the jury. At an
evidentiary hearing, an interpreter testified he was present during
the search of Castro’s apartment and police interviews.
The basis for Castro’s motion for a new trial was newly
discovered evidence. In order to warrant a new trial based on
newly discovered evidence, a defendant must show: (1) the evidence
is newly discovered; (2) the defendant used due diligence; (3) the
- 4 -
evidence is “not merely cumulative or impeaching”; (4) the evidence
is material; and (5) the evidence “would probably result in an
acquittal at a new trial.” United States v. Lofton, 233 F.3d 313,
318 (4th Cir. 2000) (internal quotation marks omitted). Unless the
defendant demonstrates all five of these factors, the motion should
be denied. United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989).
The evidence of the interpreter’s presence is merely
impeaching evidence. Castro’s attorney asked the officers about
the presence of the interpreter in an attempt to impeach their
recollection of the events. Castro argues the presence of the
interpreter was central to his case, but the only value of the
evidence is to prove the officers did not properly recollect the
search of Castro’s apartment. Under the third prong of the Chavis
case, a new trial on the basis of this evidence is not appropriate
because the evidence is merely impeaching. We also conclude the
evidence would likely not result in an acquittal at a new trial
because it does not change the physical evidence found at the
apartment or the other testimonial evidence. The district court
therefore did not abuse its discretion in denying Castro’s motion
for a new trial.
Castro next claims the court erred when it enhanced his
sentence for perjury. During his testimony, Castro admitted using
methamphetamine with Pedro Alonzo. Castro admitted he traveled to
- 5 -
North Carolina with Alonzo to pick up packages from Alonzo’s
source, but he claimed to not know what was in the packages. He
admitted giving $4000-4500 for the packages, but stated the money
was a loan intended for a child in Mexico with cancer.
Castro also testified that he provided money to others to
buy drugs and that “the only thing I thought was that [his friends]
were selling drugs.” He insisted “these people were using me to
perhaps keep drugs in something I had no experience in.” Castro
testified that a friend had given him the sweater that contained
the methamphetamine in his closet. He knew there were packages in
the sweater, but he did not know what they contained.
The sentencing court must impose a two-level adjustment
under U.S.S.G. § 3C1.1 if the defendant willfully obstructed or
impeded the administration of justice during the investigation,
prosecution, or sentencing of the offense of conviction and any
relevant conduct relating to the offense of conviction. The
adjustment applies when the district court determines that a
defendant committed perjury. U.S.S.G. § 3C1.1 cmt. 4(b); see also
United States v. Dunnigan, 507 U.S. 87, 94 (1993). The adjustment
for perjury is not applicable merely because the defendant
testified and was subsequently convicted. Dunnigan, 507 U.S. at
95. The court must find that the defendant gave false testimony
under oath “concerning a material matter with the willful intent to
- 6 -
provide false testimony, rather than as a result of confusion,
mistake, or faulty memory.” Id. at 94.
Castro argues the district court imposed the enhancement
automatically because he testified and was convicted. However,
Castro’s testimony directly and materially contradicted the jury’s
finding of guilt, indicating that the jury had found that he
falsely testified. Castro does not argue that the testimony was
the result of confusion, mistake, or faulty memory. Thus, we
conclude that the court did not err when enhancing Castro’s
sentence for obstruction of justice.
Castro finally claims the court erred in calculating the
drug quantity attributable to him at sentencing. At sentencing,
the quantity and nature of drugs attributable to a defendant may be
established by a preponderance of the evidence, and sentencing
findings in that regard are to be disturbed only if they are
clearly erroneous. See United States v. Carter, 300 F.3d 415, 425
(4th Cir. 2002); United States v. Cook, 76 F.3d 596, 604 (4th Cir.
1996). A sentencing court has broad discretion concerning its
determination of the nature and quantity of such drugs. See Cook,
76 F.3d at 604.
The district court found the quantity of drugs
attributable to Castro exceeded the five-kilogram threshold
required for a base offense level of thirty-six. The court came to
this conclusion by a preponderance of the evidence by combining a
- 7 -
ten—pound shipment (the remnants of which were found in Castro’s
closet) with the other trips made by Castro to North Carolina with
Alonzo. Alonzo specifically remembered a two—pound and a
three—pound shipment of methamphetamine. Though Castro questions
the credibility of Alonzo’s testimony, the district court found it
credible, and such witness credibility determinations are generally
given deference on appeal. See United States v. Locklear, 829 F.2d
1314, 1317 (4th Cir. 1987). Castro also questions the court’s
calculations, but the court declined to make a precise
determination because the quantity exceeded five kilograms. Adding
the three shipments, the total equals 6.82 kilograms, an amount in
excess of the five-kilogram threshold. We therefore find no clear
error in the court’s calculation of drug quantity.
Accordingly, we affirm Castro’s convictions and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 8 -