United States v. Ayala , 107 F. App'x 410 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit August 13, 2004
Charles R. Fulbruge III
Clerk
Nos. 03-20562
03-20565
03-20579
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JESUS LORENZO AYALA (03-20562),
MANUEL LORENZO GARCIA (03-20565),
ARMANDO PEREZ (03-20579),
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas, Houston
H-02-CR-36
Before JOLLY, DAVIS, and JONES, Circuit Judges,
W. EUGENE DAVIS, Circuit Judge:*
Jesus Lorenzo Ayala (“Ayala”), Manuel Lorenzo Garcia
(“Garcia”), and Armando Perez (“Perez”) challenge their sentences
imposed following their entry of guilty pleas to possession with
intent to distribute and conspiracy to possess with intent to
*
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should not be published and is not precedent except under the limited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.
distribute marijuana. They argue that evidence the district court
relied on from a government informant used to compute the amount of
marijuana in question was unreliable and insufficient to satisfy
the preponderance of the evidence standard. Because the district
court judge did not hear testimony from the informant, after the
government argued that the informant was not credible, we conclude
the district court erred in relying on that evidence. We,
therefore, vacate the sentences and remand these cases for
resentencing and to give the district court an opportunity to
examine the credibility of the government informant.
I.
Terry Blevins (“Blevins”) was involved in a drug trafficking
scheme with Ayala, Garica, and Perez in which he used his 1993 Ford
pick-up truck to transport marijuana between Roma and Houston,
Texas. The truck bed had a false bottom and hidden compartment
that could be used to conceal contraband. According to Blevins,
Garcia and/or an associate Eduardo Aguirre (“Aguirre”) would
contact Blevins by telephone and explain that they needed him to
make a delivery. Blevins would drive his truck to a restaurant in
Roma, contact Garcia and Aguirre to tell them he was arriving, and
hand off his truck to Ayala and Perez. Blevins would stay in a
Roma motel, the Roma Inn or MVP Motel, until his truck was returned
to him. He would then drive his truck, now full of marijuana, to
the instructed location in Houston, followed by Garcia, and/or
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Aguirre, Ayala, and Perez in a separate vehicle.
According to Blevins, upon arriving in Houston he would hand
the truck over to Ayala and Perez who would drive the truck to an
undisclosed location and unload the drugs. Defendants would then
return the truck to Blevins and pay him $3,000 for his services.
Blevins informed the Drug Enforcement Agency (“DEA”) of this
drug trafficking operation, and on December 18-19, 2001 the DEA
surveilled an entire transaction between Blevins and defendants.
Agents followed the truck from Roma to Houston while Blevins was
driving, and then followed the truck to the residence where the
drugs were unloaded by defendants. The DEA agents arrested
defendants along with other associates who were helping to unload
the contraband. Later that evening the DEA obtained a warrant to
search the residence where the drugs were unloaded and seized 384.7
kilograms of marijuana and numerous scales, bags, and cellophane
that could have been used to divide up the contraband for sale.1
On January 18, 2002 Ayala, Garcia, Perez, and additional
coconspirators were indicted for possession with intent to
distribute a controlled substance under 21 U.S.C. § 841(a)(1),
841(b)(1)(B)(vii), and 18 U.S.C. § 2, and conspiracy to possess
with intent to distribute a controlled substance in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846. Each defendant
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Agents also seized 61 kilograms of marijuana from the freezer of a trailer
on the property pursuant to a consensual search. It could not be determined,
however, whether those drugs came from the defendants in this case.
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pleaded guilty to both counts of the indictment on October 18,
2002. Subsequently, the United States Probation Office prepared a
presentence investigation report for each of the defendants. The
report recommended approximating “the quantity of the controlled
substance [involved in the case]” thus enhancing the defendants’
sentences, because the amount of contraband “seized d[id] not
reflect the scale of the offense[.]” U.S.S.G. § 2D1.1. cmt. n. 12.
In making this approximation the PSR primarily relied upon the
testimony of informant Blevins. Blevins asserted that he was asked
to make a delivery twice a week from June or July 2001 to September
2001 and once a week after September 11, 2001. The DEA agents
investigation also revealed that Blevins had stayed at the Roma Inn
or MVP Motel a total of ten times from September to December 2001.
The DEA further determined in its investigation that Blevins’s Ford
Truck was able to carry 453.6 kilograms of marijuana. The
probation officer also learned that Blevins was detained in a
November 2001 traffic stop in which a state trooper discovered
Blevins’s pickup truck’s hidden compartment and seized a small
quantity of loose marijuana found there. Based upon this
information the probation officer estimated that Blevins had made
eight additional deliveries of 384 kilograms each before the
delivery resulting in arrest, for a total of 3461.9 kilograms of
marijuana. This total was used in computing the base offense
levels in the PSR.
The defendants objected to the PSR arguing that the
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information from Blevins, who was then a confidential informant,
was not reliable and that the estimates of the amount of marijuana
transferred in the past were overly speculative. The government
also challenged the PSR objecting to the use of historical
quantities of marijuana in the computation of the defendants’ base
offense levels since it believed that Blevins was deceitful and
unreliable and that the details of prior deliveries had not been
corroborated by sufficient information and investigation. As such
the government did not believe that the approximated amounts were
supported by proof by a preponderance of the evidence.
The judge, upon hearing testimony of one of the DEA agents but
not Blevins, overruled both the government’s and defendants’
objections to the PSR and sentenced all defendants based upon the
quantities set forth in the PSR.
In this appeal, defendants argue that the district court erred
in accepting the PSR’s estimates of drug quantity over both the
government’s and defendants’ objections because the amounts of
marijuana had not been established by a preponderance of the
evidence. The defendants ask us to vacate their sentences and
remand the cases for resentencing. The government now argues,
contrary to its position before the district court, that the
district court did not err by adopting the PSR over the parties’
objections thus enhancing the base offense level with the increased
amounts testified to by Blevins.
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II.
The sentencing guidelines require the court to approximate the
amount of drugs at issue in a case where either there has been no
drug seizure or the amount seized does not reflect the scale of the
offense. United States Sentencing Guidelines § 2D1.1, cmt. n. 12.
Estimates of the amount of drugs in controversy are fact questions
which must be decided to determine relevant conduct under the
guidelines. We review such findings for clear error. United
States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998); United States
v. Torres, 114 F.3d 520, 527 (5th Cir. 1997).
The government must prove facts relevant to sentencing, like
the drug quantity estimate in this case, by a preponderance of the
evidence. United States v. Huskey, 137 F.3d 283, 291 (5th Cir.
1998). Thus, the issue becomes whether the district court clearly
erred in finding by a preponderance of the evidence that 3461.9
kilograms of marijuana is the amount of marijuana at issue in this
case.
Defendants’ primary arguments focus on the fact that the
government conceded below that it could not prove the estimated and
enhanced drug quantities by a preponderance of the evidence because
of the unreliability of the informant Blevins. The defendants
assert both that it is the government’s burden to prove relevant
conduct by a preponderance of the evidence and that the district
court erred in ignoring the government’s objection. They argue
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further that the government is judicially estopped from now
supporting the district court’s drug quantity estimate.
We are not convinced by the defendant’s arguments as
presented. There is nothing about the government’s concession per
se that would preclude the district court from adopting the drug
quantity estimate in the PSR. Courts are not bound by government
concessions. Alexander v. United States, 390 F.2d 101, 108 (5th
Cir. 1968); United States v. Shelton, 325 F.3d 553, 560 & n.10 (5th
Cir. 2003). Nor are we bound by the government’s earlier
concessions via judicial estoppel. Courts have frowned upon
application of the doctrine of judicial estoppel in the criminal
context and we see no reason to bind the government to its earlier
concession. See Nichols v. Scott, 69 F.3d 1255, 1272 & n.33 (5th
Cir. 1995). As such we decline to vacate defendants’ sentences
based purely upon the government’s objections to the PSR below.
We do find, however, that the district court’s estimate of the
amount of drugs at issue was clearly erroneous. The district court
refused to hear Blevins’s live testimony despite the government’s
assertion that the informant had repeatedly lied to them while
assisting the government in other cases. Instead the court
discounted this information and accepted the probation officer’s
account in the PSR.
The government points out that some corroborating evidence was
presented supporting the PSR’s findings. DEA Agent Nelson
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testified that he believed Blevins was a reliable informant in this
case despite his deceit in other cases where he served as an
informant. The probation officer uncovered hotel receipts
reflecting ten visits by Blevins to Roma, Texas, which corresponded
to Blevins’s account of the smuggling transactions. The government
also produced evidence of Blevins’s November 2001 arrest in which
the police discovered small amounts of loose marijuana in the
secret compartment in Blevins’s truck. But without Blevins’s
testimony, this evidence has little or no probative value. When
the prosecutor in this case, who had extensive contacts with
Blevins, and while acting as an officer of the court, explained why
Blevins could not be trusted, we conclude the district court erred
in crediting Blevins’s information without hearing his testimony.
Accordingly, we find that the district court clearly erred in
finding by a preponderance of the evidence that defendants were
responsible for 3,461.9 kilograms of marijuana.
III.
For the reasons stated above we vacate defendants’ sentences
and remand to the district court for resentencing. The court may
sentence defendants either on the quantity of drugs seized or hear
Blevins’ testimony and sentence defendants based on the court’s
evaluation of Blevins’ credibility with respect to any drug
quantities in addition to the drugs seized.
We, therefore, vacate defendant’s sentences and remand this
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case to the district court for further proceedings consistent with
this opinion.
VACATED.
REMANDED.
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