United States v. Cantu , 319 F. App'x 326 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 2, 2009
No. 08-40305
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HOMERO REY CANTU, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-382-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Homero Rey Cantu, Jr., appeals his jury trial convictions and sentences
imposed for conspiracy to launder money, conspiracy to possess with intent to
distribute more than 100 kilograms of marijuana, and providing false
information to a federally insured bank. Cantu was sentenced to terms of
imprisonment of 240 months on the money laundering count, 325 months on the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40305
drug distribution count, and 325 months on the false information count, the
terms to run concurrently.
Cantu argues that the district court should have dismissed the indictment
based on a “speedy trial” violation. The Government argues that Cantu waived
any complaint under the Speedy Trial Act because he did not move for a
dismissal of the indictment on that basis prior to trial. Cantu did not object to
the Speedy Trial Act violation prior to the verdict. Thus, Cantu has waived the
right to assert that claim. See United States v. Hernandez, 457 F.3d 416, 420
(5th Cir. 2006).
However, Cantu may still assert his claim under the Sixth Amendment,
and he argues that he is entitled to a dismissal under the factors set out in
Barker v. Wingo, 407 U.S. 514, 530 (1970). Cantu was tried within four and one-
half months of his indictment. In the absence of “extreme prejudice or a showing
of willfulness by the prosecution to delay the trial in order to hamper the
defense, . . . a delay of less than one year is not sufficient to trigger an
examination of the Barker factors.” Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir.
1994). The record shows that the delay was not sufficient to be presumptively
prejudicial, did not result in extreme prejudice, and was not the result of
willfulness of the prosecution. Thus, Cantu’s Sixth Amendment claim cannot
succeed. Id.
Cantu argues that his indictment did not set out the elements of the
money laundering conspiracy count and was ambiguous. The indictment
contained the statutory elements of the offense and provided Cantu with notice
that he was being charged with engaging in transactions to conceal his
possession of proceeds derived from specified unlawful activity, the distribution
of controlled substances. Thus, it was sufficient and not subject to dismissal by
the district court. See United States v. McGilberry, 480 F.3d 326, 329 (5th Cir,
2007); United States v. Pennell, 409 F.3d 240, 243 (5th Cir. 2005).
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Cantu also argues that the evidence was insufficient to support his
conviction for conspiracy to engage in money laundering. Cantu moved for a
judgment of acquittal at the close of the Government’s case and renewed his
motion at the close of all of the evidence; thus, he has preserved his sufficiency
claim for appellate review. See United States v. Ferguson, 211 F.3d 878, 882 (5th
Cir. 2000). Accordingly, this court reviews to determine whether a rational jury
could have found the essential elements of the offense beyond a reasonable
doubt. See United States v. Lopez-Moreno,420 F.3d 420, 437-38 (5th Cir. 2005).
The Government provided evidence that Cantu had no reported income
between 2001 and 2006, a period during which he made large cash expenditures.
“Evidence that a defendant’s cash outflow in a financial transaction exceeds his
legitimate income is sufficient to show that the transaction ‘involves the
proceeds of specified unlawful activity,’ even if the defendant claims income from
other sources.” United States v. Westbrook, 119 F.3d 1176, 1191 (5th Cir. 1997)
(internal citation omitted). Based on this evidence, the jury could determine
that Cantu’s income was the result of unlawful activity and that he used that
income to purchase a house and vehicles and to compensate coconspirators.
Cantu’s compensation of coconspirators and his receipt of funds from drug
purchasers facilitated the specified unlawful activity of drug trafficking and
indicated the coconspirators agreement to join in the money laundering
conspiracy. See United States v. Armstrong, 550 F.3d 382, 403-04 (5th Cir.
2008). Further, a coconspirator testified that he was provided with cash or
money orders to purchase vehicles for Cantu that were used to transport drugs.
The jury could have found that these purchases were a means of concealing
illegal drug proceeds as well as used to promote the illegal drug activity.
Viewing the evidence in the light most favorable to the verdict, the evidence was
sufficient to support the verdict that Cantu and others conspired to launder the
proceeds of unlawful activity.
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No. 08-40305
Cantu argues that the evidence was insufficient to show that he agreed to
the scope of the conspiracy to distribute marijuana as charged in the superseding
indictment. He also challenges the amount of marijuana attributed to him in the
presentence report (PSR). Insofar as Cantu is challenging the sufficiency of the
evidence to support the guilty verdict on count three, the only element that he
is challenging is the Government’s failure to prove his intent to distribute more
that 100 kilograms of marijuana. The Government proved that Cantu conspired
to distribute far in excess of 100 kilograms of marijuana by introducing the
testimony of coconspirators whose testimony was not incredible and was
corroborated by numerous phone records and the ranch gate keys found in
Cantu’s possession. See United States v. Valdez, 453 F.3d 252, 257 (5th Cir.
2006). The evidence of Cantu’s participation in the drug trafficking conspiracy
that transported massive amount of marijuana was overwhelming. A rational
jury could have found the essential elements of the drug conspiracy offense
beyond a reasonable doubt. See Lopez-Moreno, 420 F.3d at 437-38; United States
v. Infante, 404 F.3d 376, 385 (5th Cir. 2005).
Insofar as Cantu is complaining about the drug amount attributed to him
at sentencing, the PSR contained reliable and detailed evidence of the drug
transactions that was not rebutted by Cantu. The evidence presented at trial
and the information in the PSR provided sufficient reliable evidence to support
the district court’s determination of the amount of drugs attributable to Cantu
for sentencing purposes. See United States v. Vital, 68 F.3d 114, 120 (5th Cir.
1995).
Cantu argues that the district court clearly erred in enhancing his offense
level by four levels based on his leadership role in the criminal activity. Both the
PSR and the trial testimony showed that Cantu recruited several coconspirators
to assist him in the transportation of drugs for distribution in Texas, and
Louisiana. Cantu instructed the couriers as to the routes to be taken and
provided the vehicles to be used. The evidence showed that Cantu paid the
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No. 08-40305
coconspirators and received the proceeds from the drug sales. Cantu also
provided a stash house to store drugs and then paid the owner for the use of the
house. The finding that Cantu was a leader or organizer of the criminal activity
was plausible in light of the record as a whole. The district court did not clearly
err in making the enhancement. See U.S.S.G. § 3B1.1, comment. (nn. 2,
4); United States v. Parker, 133 F.3d 322, 329-30 (5th Cir. 1998).
Cantu’s conviction and sentence are AFFIRMED.
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