United States v. Guerra , 320 F. App'x 236 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 6, 2009
    No. 07-20702                    Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    CARLOS LUIS GUERRA;
    HECTOR MANUEL NUNEZ
    Defendants - Appellants
    Appeals from the United States District Court
    for the Southern District of Texas
    USDC No. 4:06-CR-433-1
    Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    A jury convicted Carlos Luis Guerra and Hector Manuel Nunez of
    conspiracy to distribute more than five kilograms of cocaine under 21 U.S.C. §§
    841(a)(1), 841(b)(1)(A)(ii), and 846, and aiding and abetting possession with
    intent to distribute more than five kilograms of cocaine under 21 U.S.C. §§
    841(a)(1) and 841(b)(1)(A)(ii) and 18 U.S.C. § 2. Guerra and Nunez appeal both
    their convictions and sentences. For the reasons stated herein, we affirm.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    No. 07-20702
    I.
    The following facts were presented at trial.
    Alfonso Alvarez, a police officer with the South Houston Police
    Department, was working undercover when an informant told him that Luis
    Guerra was selling large quantities of cocaine.      The informant, Guadelupe
    Contreras, was a convicted felon who knew Guerra. Contreras called Guerra on
    Alvarez’s behalf and asked whether Guerra could secure cocaine for Alvarez.
    Guerra agreed, and Contreras arranged for the three to meet at a local taqueria
    on October 31, 2006, to discuss the deal.
    At the taqueria Guerra told Alvarez and Contreras that he would only sell
    them the cocaine at his residence. When the three later left the taqueria,
    Alvarez and Contreras followed Guerra to Hector Nunez’s home at 7310 Legacy
    Pines Drive. They watched Guerra pull into the driveway and spoke with him
    by cell phone to confirm the residence was the place the transaction would take
    place. The next day Alvarez and Guerra spoke via phone and arranged to meet
    at Nunez’s home on November 2.
    On November 2, Alvarez and Guerra communicated via cell phone. That
    afternoon Alvarez drove Contreras to Nunez’s home and let Contreras out to
    verify the cocaine was there; Alvarez then drove off. Contreras entered the home
    and Guerra showed him the cocaine. Contreras testified that Nunez, who was
    standing nearby, promised him the cocaine “was good.” Contreras then called
    Alvarez, who returned to pick him up.
    Alvarez immediately alerted agents who had been surveying 7310 Legacy
    Pines Drive that there was cocaine in the home. One of those agents was Violet
    Szeleczky-Brown. She testified that on the morning of November 2 she saw
    Nunez standing in the open garage. At around noon she saw a white pickup that
    was registered to Nunez pull into the driveway; Guerra was its passenger.
    Guerra got out of the truck and entered the home. He then exited the home, got
    2
    No. 07-20702
    back into the passenger side of the truck, and left. Szeleczky-Brown was still
    watching when, three hours later, Guerra returned, this time as the passenger
    of a white Volkswagen Jetta. When Guerra entered the home, the car drove
    away. Guerra and Nunez later came outside and played basketball. Szeleczky-
    Brown testified that at some point Guerra took a phone call on his cell phone
    and, after he hung up, he spoke to Nunez and the two began jumping in the air
    and gave each other a high five. Minutes later, a navy pickup pulled into the
    drive. A man later identified as Arnoldo Trevino got out of the truck and handed
    a blue bag to Guerra. After Guerra and Nunez walked into the home, Trevino
    drove away. Alvarez and Contreras arrived shortly thereafter, and Szeleczky-
    Brown watched as Contreras entered and later exited the home.
    Shortly after Alvarez alerted them, agents arrived to execute search and
    arrest warrants. They found the blue bag and 17 bricks of cocaine in it. They
    also found pieces of paper on which what appeared to be monetary calculations
    had been written. The agents seized that evidence, along with Guerra’s and
    Nunez’s cell phones. They arrested Guerra and Nunez.
    Fingerprints taken from both the bag and the pieces of paper were later
    matched to those of Guerra. Cell phone records showed that on the day Guerra
    met Alvarez and Contreras at the taqueria, Guerra called Nunez twenty-two
    times.
    On November 29, a grand jury indicted Guerra, Nunez, and Arnoldo
    Trevino and charged them with conspiracy to distribute more than five
    kilograms of cocaine under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii),1 and 846,2 and
    1
    28 U.S.C. § 841:
    (a)   Unlawful acts
    Except as authorized by this subchapter, it shall be unlawful for any
    person knowingly or intentionally –
    (1)    to manufacture, distribute, or dispense, or possess with intent to
    manufacture, distribute, or dispense, a controlled substance
    3
    No. 07-20702
    aiding and abetting possession with intent to distribute more than five
    kilograms of cocaine under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) and 18
    U.S.C. § 2.3 Trevino pleaded guilty to conspiracy; Guerra and Nunez tried their
    case to a jury and were convicted of both conspiracy and aiding and abetting
    possession.
    The district judge sentenced Guerra to two terms of 168 months, to be
    served concurrently, and two five-year terms of supervised release, also to be
    served concurrently.
    ****
    (b)     Penalties
    Except as otherwise provided in section 859, 860, or 861, of this title,
    any person who violates subsection (a) of this section shall be sentenced
    as follows:
    (1)(A) In the case of violation of subsection (a) of this section involving–
    ****
    (ii)   5 kilograms or more of a mixture or substance containing
    a detectable amount of –
    ****
    (II)    cocaine, its salts, optical and geometric isomers,
    and salts of isomers;
    ****
    such person shall be sentenced to a term of imprisonment which may not
    be less than 10 years or more than life . . . .
    2
    28 U.S.C. § 846:
    Any person who attempts to or conspires to commit any offense defined in this
    subchapter shall be subject to the same penalties as those prescribed for the
    offense, the commission of which was the object of the attempt or conspiracy.
    3
    18 U.S.C. § 2:
    (a)     Whoever commits an offense against the United States or aids, abets,
    counsels, commands, induces or procures its commission, is punishable
    as a principal.
    (b)     Whoever willfully causes an act to be done which if directly performed
    by him or another would be an offense against the United States, is
    punishable as a principal.
    4
    No. 07-20702
    The district judge sentenced Nunez to two terms of 151 months each, to be
    served concurrently, and two five-year terms of supervised release, also to be
    served concurrently.
    II.
    On appeal, Guerra and Nunez challenge their convictions and sentences.
    Guerra alleges the evidence was insufficient to convict him of either
    conspiracy or aiding and abetting possession, and that the district court’s
    sentence was unreasonable.
    Nunez also alleges the evidence was insufficient to convict him of either
    conspiracy or aiding and abetting possession. He also alleges that the district
    court’s sentence was unreasonable, but specifically complains that the district
    court used the cocaine’s net weight, as opposed to its “pure” weight, to determine
    his total offense level for sentencing purposes. In addition, Nunez claims that
    at his arraignment hearing the magistrate judge incorrectly summarized the
    charges against him and thus his not-guilty plea was not knowing and
    voluntary. Finally, Nunez claims that he was charged not with possession, but
    with aiding and abetting possession, and the district court therefore erred when
    it instructed the jury that Nunez had been charged with possession.
    We address the sufficiency of the evidence and reasonableness of the
    sentences for both Guerra and Nunez before we address Nunez’s additional
    claims.
    III.
    Both Guerra and Nunez claim that the evidence at trial was insufficient
    to convict them of either conspiracy or aiding and abetting possession.
    In evaluating the sufficiency of the evidence, we ask “whether any
    reasonable trier of fact could have found that the evidence established the
    essential elements of the crime beyond a reasonable doubt.” United States v.
    Martinez-Lugo, 
    411 F.3d 597
    , 599 (5th Cir. 2005) (citing United States v. Ortega
    5
    No. 07-20702
    Reyna, 
    148 F.3d 540
    , 543 (5th Cir. 1998)). We consider the evidence “in the light
    most favorable to the verdict” and therefore must draw “all reasonable
    inferences in support of the verdict.” 
    Id. We address
    the conspiracy conviction first. To establish conspiracy to
    possess and distribute more than five kilograms of cocaine, the government had
    to prove the following elements beyond a reasonable doubt: “(1) an agreement
    with one other person to possess with intent to distribute at least five kilograms
    of cocaine; (2) defendant’s knowledge of the agreement; and (3) defendant’s
    voluntary participation in the conspiracy.” United States v. Percel, 
    553 F.3d 903
    ,
    910 (5th Cir. 2008).
    Guerra argues generally that there was no evidence that he entered an
    agreement with Nunez and Trevino to possess and distribute cocaine. It is well-
    established, however, that “the jury can infer the existence of an agreement from
    circumstantial evidence.” 
    Id. (citing United
    States v. Chavez, 
    947 F.2d 742
    , 745
    (5th Cir. 1991)). At trial, there was more than adequate circumstantial evidence
    from which a jury could infer the existence of an agreement between Guerra and
    Nunez. Testimony and cell phone records showed that on October 31, 2006, the
    day Guerra first agreed to sell cocaine to Alvarez and Contreras, Guerra called
    Nunez twenty-two times. Agent Szeleczky-Brown testified that while surveying
    Nunez’s home on November 2, she saw Guerra come and go, and also saw
    Guerra take a phone call and apparently celebrate its news by jumping up and
    down with Nunez and giving him a high five. Minutes later, she saw Trevino
    arrive with a blue bag that was later found to contain seventeen bricks of
    cocaine. Contreras testified that when he arrived, Guerra showed him the bag
    of cocaine and Nunez vouched for its quality. From this evidence the jury could
    easily infer that Guerra had entered an agreement with Nunez, if not also with
    Trevino. Guerra fails to show that the evidence was insufficient to convict him
    of conspiracy.
    6
    No. 07-20702
    Nunez argues that the evidence showed only that he was present, and not
    that he was a co-conspirator. He points out that agents did not recover his
    fingerprints from either the blue bag or the pieces of paper on which what
    appeared to be monetary calculations had been written, and claims the pieces
    of paper could not otherwise prove his participation in the conspiracy. Nunez
    neglects, however, to mention that there was testimony that the calculated
    figures on the pieces of paper represented the profit that would be made from the
    sale and how it would be split between Guerra and Nunez. He also neglects to
    mention that there was testimony that Guerra called Nunez twenty-two times
    on October 31, that on November 2 Nunez and Guerra celebrated in Nunez’s
    driveway only minutes before Trevino delivered the cocaine, and that Nunez told
    Contreras the cocaine “was good.” And although as a fact it is not sufficient in
    and of itself, it bears noting that all of these events transpired at Nunez’s house.
    Knowledge of and voluntary participation in a conspiracy “may be inferred from
    a ‘collection of circumstances.’” United States v. Fuchs, 
    467 F.3d 889
    , 908 (5th
    Cir. 2006) (citations omitted).    The “collection of circumstances” here was
    sufficient to infer Nunez’s knowledge and voluntary participation and was
    therefore sufficient to convict Nunez of conspiracy.
    The evidence was also sufficient to convict both Guerra and Nunez of
    aiding and abetting possession. To prove the crime of aiding and abetting, the
    government had to establish that Guerra and Nunez: “(1) associated with the
    criminal venture; (2) purposefully participated in the crime; and (3) sought by
    [their] actions for it to succeed.” United States v. Pando Franco, 
    503 F.3d 389
    ,
    394 (5th Cir. 2007), cert. denied, — U.S. —, 
    128 S. Ct. 1874
    (2008). We have held
    that evidence supporting a conspiracy conviction typically supports an aiding
    and abetting conviction. See, e.g., United States v. Rodriguez, 
    553 F.3d 380
    , 391
    (5th Cir. 2008) (quoting United States v. Singh, 
    922 F.2d 1169
    , 1173 (5th Cir.
    1991)). We conclude the evidence supporting Guerra’s and Nunez’s convictions
    7
    No. 07-20702
    of conspiracy equally supports their convictions of aiding and abetting
    possession.
    IV.
    Both Guerra and Nunez challenge their sentences as unreasonable. In
    our review to determine whether a sentence is reasonable, we ask whether the
    district court abused its discretion. See, e.g., United States v. Herrera-Garduno,
    
    519 F.3d 526
    , 529 (5th Cir. 2008). Our review is bifurcated: We “‘first ensure
    that the district court committed no significant procedural error’” and “‘then
    consider the substantive reasonableness of the sentence imposed.’” 
    Id. (quoting Gall
    v. United States, 552 U.S. — , 
    128 S. Ct. 586
    , 597 (2007)). Both Guerra and
    Nunez allege procedural errors. See, e.g., United States v. Rodriguez, 
    523 F.3d 519
    , 525 (5th Cir. 2008) (sentencing court procedurally errs when, for instance,
    it fails to properly calculate the offense level and sentencing range, fails to
    consider sentencing factors as listed in 18 U.S.C. § 3553(a), treats sentencing
    guidelines as mandatory, or accepts as a basis for sentence clearly erroneous
    facts) (citing Gall, 552 U.S. — , 128 S.Ct. at 597)).
    Guerra claims the district court treated the sentencing guidelines as
    mandatory. Guerra, however, offers no support for this claim, and the record
    plainly refutes it. At Guerra’s sentencing hearing the district court told Guerra
    that it had considered the sentencing guidelines and concluded that a sentence
    under the guidelines would be consistent with, and take into account, the factors
    listed in 18 U.S.C. § 3553(a).       Guerra does not show the district court
    procedurally erred by treating the sentencing guidelines as mandatory.
    Nunez claims the district court improperly used the cocaine’s net weight,
    as opposed to its “pure” weight, to determine his total offense level for sentencing
    purposes. He argues the court should have calculated the weight of the cocaine
    for sentencing purposes by multiplying the cocaine’s net weight, 17.01 kilograms,
    by its purity, 80 percent. If the court had thus calculated the cocaine’s weight,
    8
    No. 07-20702
    Nunez would have been liable for only 13.6 kilograms of cocaine, and would have
    qualified for a base offense level of 32, for which the sentencing range is 121 to
    151 months. Instead, the court accepted for sentencing purposes the cocaine’s
    net weight, 17.01 kilograms, which assigned to Nunez a base offense level of 34,
    for which the sentencing range is 151 to 188 months.
    We find no error in the court’s use of the cocaine’s net weight to determine
    Nunez’s base offense level. Under the sentencing guidelines, a court determines
    a defendant’s base offense level in drug cases by reference to a drug quantity
    table. The table lists controlled substances and assigns base offense levels by
    their weights. The notes that accompany the table explain:
    Unless otherwise specified, the weight of a controlled
    substance set forth in the table refers to the entire weight
    of any mixture or substance containing a detectable
    amount of the controlled substance. If a mixture or
    substance contains more than one controlled substance,
    the weight of the entire mixture or substance is
    assigned to the controlled substance that results in the
    greater offense level.
    U.S.S.G. § 2D1.1(c) n.(A) (2006) (emphasis added).
    For some controlled substances, for instance, PCP and methamphetamine,
    the table designates weight “actual.” That designation refers to “the weight of
    the controlled substance, itself, contained in the mixture or substance.” 
    Id. at n.(B).
    The table does not, however, designate the weight of cocaine “actual.” The
    weight of cocaine for sentencing purposes is instead “the entire weight of any
    mixture or substance containing a detectable amount of [cocaine].” 
    Id. at n.(A).
    The district court properly accepted for sentencing purposes the cocaine’s net
    weight, 17.01 kilograms. Nunez fails to establish procedural error.
    Neither Guerra nor Nunez challenge the substantive reasonableness of
    their sentences. We note, however, that having found no procedural error, we
    also find no substantive error. Guerra’s and Nunez’s sentences both fall within
    9
    No. 07-20702
    the properly-calculated guidelines range and are, therefore, presumptively
    reasonable. See United States v. Gomez-Herrera, 
    523 F.3d 554
    , 558 (5th Cir.
    2008) (citing Rita v. United States, 551 U.S. — , 
    127 S. Ct. 2456
    , 2462 (2007)).
    There was no abuse of discretion.
    V.
    Nunez also claims that at his arraignment hearing the magistrate judge
    incorrectly summarized the charges against him and therefore his not-guilty
    plea was not knowing and voluntary. We find no error in the magistrate judge’s
    delivery of the charges at Nunez’s arraignment.
    A defendant has a right to know the charges against him and to have
    adequate information from which to prepare his defense. See, e.g., United States
    v. Correa-Ventura, 
    6 F.3d 1070
    , 1073 (5th Cir. 1993) (citing United States v.
    Rogers, 
    469 F.2d 1317
    , 1318 (5th Cir. 1972)). An arraignment protects those
    rights. See F ED. R. C RIM. P. 10 (defendant shall be informed of “the substance
    of the charge” and called on to plead thereto). A conviction will not be vacated,
    however, for lack of formal arraignment proceedings, absent possible prejudice.
    
    Correa-Ventura, 6 F.3d at 1073
    .
    The indictment in this case charged Guerra, Nunez, and Trevino with two
    counts, one for conspiracy and the other for possession. At the arraignment, the
    magistrate judge confirmed that the defendants’ attorneys had “discussed the
    accusations in the indictment with [their] clients.” The magistrate judge asked
    the defendants whether they had discussed the charges with their attorneys;
    they answered “yes.” We have held that where a judge confirms that defense
    counsel has informed a defendant of the charges against him, no prejudice
    results from the failure of the judge to personally inform the defendant of those
    charges. United States v. Grote, 
    632 F.2d 387
    , 389 (5th Cir. 1980) (“We do not
    believe that any prejudice has resulted from the failure of the trial judge
    personally to inform the defendant of the charges against him. The trial judge
    10
    No. 07-20702
    assigned that responsibility to appointed counsel, and he satisfied himself that
    that responsibility had been discharged before calling upon the defendant to
    plead.”).
    Nevertheless, in addition to confirming that the defendants’ attorneys had
    discussed the charges with their clients, the magistrate judge also summarized
    both counts for the defendants:
    Each of you are accused in Count One of the indictment
    that alleges that you conspired or made an agreement
    to possess with intent to distribute cocaine, five
    kilograms or more, on or about October 31st, 2006, and
    continuing through November the 2nd of 2006. That is
    Count One of the indictment. Count Two alleges that
    you each possessed with intent to distribute cocaine,
    five or more kilograms of cocaine.
    Nunez claims that the magistrate judge incorrectly told them that count
    two charged them with possession, and complains that the magistrate judge did
    not tell them that they had been charged with aiding and abetting possession.
    These alleged errors are without merit.             The magistrate judge correctly
    summarized count two of the indictment, which plainly titled itself “Possession
    with the Intent to Distribute (Cocaine)” and plainly charged the defendants with
    possession under 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(ii).4 That count two also
    charged the defendant with aiding and abetting possession under 18 U.S.C. § 2
    4
    COUNT TWO
    Possession with the Intent to Distribute (Cocaine)
    On or about 2 November 2006 . . . defendants herein,
    aiding, assisting, and abetting each other and others, known and
    unknown to the Grand Jury, did unlawfully, knowingly, and
    intentionally possess with the intent to distribute a controlled
    substance. This violation involved 5 kilograms or more of a
    mixture and substance containing a detectable amount of cocaine,
    a Schedule II controlled substance.
    In violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)
    and 18 U.S.C. § 2.
    11
    No. 07-20702
    does not render the magistrate judge’s summary of count two inadequate, where
    the magistrate judge very correctly conveyed to the defendants “the substance
    of the charge.” There was no error in the defendants’ arraignment proceedings.
    VI.
    Finally, Nunez claims that he was charged not with possession, but with
    aiding and abetting possession, and that the district court therefore erred when
    it instructed the jury that Nunez had been charged with possession. This issue
    is without merit. As previously stated, the indictment very plainly charged
    Nunez with possession with intent to distribute cocaine.
    Moreover, we note that in its preliminary instructions to the jury, the
    district court recited the elements of conspiracy, possession, and aiding and
    abetting possession. In its jury charge prior to deliberations, the district court
    carefully explained the elements of conspiracy, possession, and aiding and
    abetting possession. The instructions were consistent with the charges in counts
    one and two of the indictment.       The judgment indicates that Nunez was
    convicted of conspiracy and aiding and abetting possession with intent to
    distribute. Contrary to his assertion otherwise, Nunez was not convicted of an
    unindicted crime.
    VII.
    For the foregoing reasons, the convictions and sentences are
    AFFIRMED.
    12