United States v. Sena ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-10663
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME HEATH SENA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(97-CR-65-2)
_________________________________________________________________
September 13, 1999
Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jerome Heath Sena appeals his convictions and sentences for
conspiracy to possess and possession with intent to distribute
methamphetamine, challenging, for the first time on appeal, the
sufficiency of the evidence and the methamphetamine quantity used
for sentencing. Because these claims were not raised in district
court, the scope of our review is quite limited; we AFFIRM.
I.
On 22 November 1997, on Interstate 40 near Amarillo, Texas, a
Deputy Sheriff stopped a vehicle for a traffic violation.
Christopher McDonald was driving; Hope Huerta, in the front
*
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this opinion should not be published and is not precedent except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.
passenger seat. When they gave conflicting accounts, the Deputy
sought, and received from McDonald, consent to search the vehicle.
Discovered in the search were “bricks or bundles” wrapped in duct
tape, which contained 13.66 kilograms (approximately 32 pounds) of
methamphetamine.
Post-arrest, after McDonald agreed to cooperate with law
enforcement officials, he told them that he was delivering the
methamphetamine to appellant Sena. He also agreed to make recorded
telephone calls to Sena, in an effort to arrange a controlled drug
transaction.
On 23 November, the day after the traffic stop, the Agents
drove McDonald to the trailer in Amarillo where Sena lived with
several others. McDonald went inside to collect $10,000 that Sena
owed him for three kilograms of methamphetamine that McDonald had
“fronted” to him earlier; McDonald returned with the money and gave
it to the Agents, who then obtained a search warrant for the
trailer.
Discovered in the search of the trailer were plastic wrap,
duct tape, digital scales, a weekly planner with apparent notations
for drug transactions, marijuana, and a small quantity of
methamphetamine. The Agents arrested Sena, who told them that
McDonald was his main supplier. The Agents found $2,000 in cash on
Sena’s person.
McDonald testified at trial that, in July 1997, working for
Huerta, he first started bringing methamphetamine from California
to Amarillo; that a woman named Frances introduced him to Sena;
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that he would give Sena a “couple [of pounds] at a time” to sell,
and Sena would “bring me back the money”; and that, as of 22
November (when McDonald was arrested), Sena owed him for three
pounds of methamphetamine. As for the 32 pounds of methamphetamine
seized in the 22 November traffic stop, McDonald testified that he
“would have brought all 32 pounds to Amarillo to [Sena] and I would
have put it away in a refrigerator and held it and sold him so many
– two at a time”.
At the close of the Government’s case, Sena did not move for
judgment of acquittal; nor did he call any witnesses in his
defense. He was convicted for conspiracy to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 846, and
for possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The jury
also found $11,880 forfeitable as drug proceeds.
Sena’s Presentence Report (PSR) calculated his base offense
level at 38, based on the entire amount of methamphetamine seized
in the traffic stop. U.S.S.G. § 2D1.1. With Sena’s criminal
history category of I, the Guidelines’ imprisonment range was 235
to 293 months. The district court sentenced Sena at the bottom of
that range — concurrent 235-month terms of imprisonment and
concurrent five-year supervised-release terms.
II.
Sena challenges the sufficiency of the evidence for his
convictions, and the methamphetamine quantity used for his base
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offense level. As stated, these issues were not raised in district
court.
A.
Because Sena did not move for judgment of acquittal, our
review is “limited to the determination of whether there was a
manifest miscarriage of justice”. United States v. Ruiz, 860 F.2d
615, 617 (5th Cir. 1988). “Such a miscarriage would exist only if
the record is devoid of evidence pointing to guilt ... or ...
because evidence on a key element of the offense was so tenuous
that a conviction would be shocking.” Id. (internal quotation
marks and citations omitted).
1.
For his conspiracy conviction, Sena contends that the
methamphetamine quantity alleged in the indictment is an element of
the offense, and that the Government failed to prove that he
conspired to possess 35 pounds of it. As he concedes, this
contention is foreclosed by our precedent: “proof of the quantity
of controlled substances at issue is not an element of an offense
under 21 U.S.C. §§ 841(a)(1) and 846". E.g., United States v.
Cisneros, 112 F.3d 1272, 1282 (5th Cir. 1997) (brackets, internal
quotation marks, and citation omitted).
Obviously, the record is far from devoid of evidence either
that Sena knowingly agreed to traffic in methamphetamine or that he
voluntarily participated in the agreement. See United States v.
Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996) (to convict for
narcotics conspiracy, Government must prove existence of agreement
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to violate drug-trafficking laws, defendant’s knowledge of
agreement, and defendant’s voluntary participation in agreement).
The Government presented evidence that Sena had a standing
agreement to buy methamphetamine from McDonald, which he then
distributed.
2.
Sena’s sufficiency challenge to his possession conviction is
likewise premised on the contention that the methamphetamine
quantity alleged in the indictment is an element of the offense.
And, he asserts that there is no evidence that he ever had
constructive possession of the methamphetamine seized during the
traffic stop.
Acknowledging that his sufficiency challenge is reviewable
only for a “manifest miscarriage of justice”, Sena contends that
this “reduced” standard of review violates the “constitutional
requirement of proof beyond a reasonable doubt”. He contends
further that the standard violates the Equal Protection Clause
because it “discriminates between those defendants whose attorneys
make motions for judgment of acquittal and those ... whose
attorneys do not....”
Needless to say, only our en banc court can alter our
precedent regarding the standard of review for unpreserved
sufficiency challenges. E.g., United States v. Laury, 49 F.3d 145,
151 & n.15 (5th Cir.), cert. denied, 516 U.S. 857 (1995).
Sena’s equal protection challenge is frivolous at best. “The
Equal Protection Clause requires that all persons similarly
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situated should be treated alike.” Mayabb v. Johnson, 168 F.3d
863, 870 (5th Cir. 1999) (internal quotation marks and citation
omitted). Unless the classification involves a suspect class or a
fundamental right, “rational-basis review applies and this court
need only determine whether the classification is rationally
related to a legitimate government interest”. Rublee v. Fleming,
160 F.3d 213, 217 (5th Cir. 1998). A defendant is not rendered a
member of a “suspect class” simply because, at trial, his attorney
did not to move (for any number of possible reasons, many of which
would be legitimate) for judgment of acquittal. Cf. Nickens v.
Melton, 38 F.3d 183, 185 (5th Cir. 1994) (suspect classification
involves “race, nationality, or alienage”), cert. denied, 514 U.S.
1025 (1995).
Nor is a “fundamental right” involved. For starters, Sena
does not even have a constitutional right to appeal. See Abney v.
United States, 431 U.S. 651, 656 (1977) (right to appeal is
statutory).
Moreover, there is obviously a “rational basis” for applying
a more narrow standard of review for issues not raised (forfeited)
in district court. Defendants should challenge the sufficiency of
the evidence at trial, so that the matter can be resolved then and,
possibly, additional evidence adduced, rather than belatedly
raising the issue for the first time on appeal.
As stated, the drug quantity charged in the indictment is not
an element of the offense. See Cisneros, 112 F.3d at 1282. And,
the record is not devoid of evidence of Sena’s guilt; indeed, the
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evidence overwhelmingly established that he possessed
methamphetamine with the intent to distribute it. McDonald
testified that Sena owed him $10,000 for three pounds of
methamphetamine that had been “fronted” earlier; and that, after
his arrest, he went into Sena’s trailer and collected the $10,000.
And, according to one of the officers who arrested Sena, Sena
admitted that McDonald had sold him several pounds of
methamphetamine on several occasions.
B.
Sena maintains that 30 pounds of methamphetamine should not
have been attributed to him for sentencing purposes, because (1) he
did not actually, or constructively, possess that amount; and (2)
although the court determined that it was “reasonably foreseeable”
to him that 30 pounds would be involved in the transaction, the
court failed to make the required finding that he was aware of the
“scope of jointly undertaken criminal activity”. See U.S.S.G. §
1B1.3(a)(1)(B); United States v. Smith, 13 F.3d 860, 864-65 (5th
Cir.) (defendant cannot be held accountable for acts of co-
conspirators unless court finds that acts were reasonably
foreseeable and within scope of jointly undertaken criminal
activity), cert. denied, 511 U.S. 1134 (1994).
Sena did not object to the base offense level calculation of
38 (PSR ¶ 16), based on 9.15 kilograms of “actual” methamphetamine
(including all of the methamphetamine seized during the traffic
stop). Instead, he objected to three other PSR paragraphs: (1) ¶
19 (no offense level reduction for role in offense), claiming that
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he was a minor participant in the offense, because Huerta and
McDonald were in possession of the 30 pounds and he lacked
knowledge that they were transporting such large quantities; (2) ¶
22 (total offense level calculation), claiming that the appropriate
offense level should be 36, because two points should be deducted
for his role as a minor participant; and (3) ¶ 40 (guideline range
of 235-293 months imprisonment), claiming that, consistent with his
claim that the offense level should be 36, the imprisonment range
should instead be 188-235 months.
Likewise, at sentencing, Sena’s counsel focused solely on the
claim that Sena was entitled to an offense level reduction because
he was a “minor participant” in the offense. In urging that
reduction, counsel asserted that “there is really no evidence to
support a finding that Mr. Sena could [have] reasonably foreseen
that we are talking about this amount of drugs”. Finding this to
have been reasonably foreseeable to Sena, the court found
concomitantly that Sena was not a minor participant.
To say the least, especially in the light of no objection to
PSR ¶ 16 concerning the base offense level, counsel’s claim that
Sena could not have reasonably foreseen that the 30 pounds of
methamphetamine would be involved, made arguing for an offense
level reduction based on Sena’s role in the offense, was inadequate
to preserve his present contention that the 30 pounds were not
attributable to him for calculating the base offense level (now
claiming, instead, that the court failed to find that such quantity
was within the scope of jointly undertaken criminal activity). To
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preserve a contention for appeal, a party “must object with
sufficient specificity to allow the trial court to address the
issue”. United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997)
(internal quotation marks and citation omitted).
Accordingly, we review Sena’s new base offense level challenge
only for plain error. “Under Fed.R.Crim.P. 52(b), this court may
correct forfeited errors only when the appellant shows (1) there is
an error, (2) that is clear or obvious, and (3) that affects his
substantial rights.... If these factors are established, the
decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Waldron, 118 F.3d 369, 371 (5th Cir. 1997) (internal
quotation marks and citation omitted).
Even assuming an error, it was neither “plain” nor affected
Sena’s “substantial rights”. The PSR held Sena responsible for
9.15 kilograms of “actual” methamphetamine, resulting in a base
offense level of 38. U.S.S.G. § 2D1.1(c)(1). Even if only the
five pounds (or approximately 2.2 kilograms) of methamphetamine
with which Sena was personally involved had been attributed to him,
his base offense level likely would have been 36. See U.S.S.G. §
2D1.1(c)(2) (one to three kilograms of “actual methamphetamine”).
Along this line, for the offense level of 38, Sena’s sentence
of 235 months was at the bottom of the guideline range; the same
sentence would have been at the top of the guideline range for an
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offense level of 36. See U.S.S.G., Ch. 5, Pt. A (Sentencing
Table). It is thus possible that Sena could have received the same
sentence even if the court had used the quantity he now urges.
Likewise, even assuming a plain error that affected Sena’s
substantial rights, we would nevertheless decline to exercise our
discretion to correct it, because it does not affect the fairness,
integrity, or public reputation of judicial proceedings.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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