United States v. Ordonez , 286 F. App'x 224 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2008
No. 06-41760 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GERBER WALDEMAR ORDONEZ; WILLIAM B BRADLEY; SIXTO
SANCHEZ LUGO
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Texas
U.S.D.C. No. 4:06-CR-14-3
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Gerber Waldemar Ordonez, William B. Bradley, and Sixto Sanchez Lugo
were convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.
Ordonez was also convicted of conspiracy to distribute methamphetamine in
violation of 21 U.S.C. § 846. They raise numerous challenges to their conspiracy
convictions and sentences. Because the district court committed no reversible
error, we AFFIRM their convictions and sentences.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41760
I.
Marco Guardiola was the central figure in a large conspiracy to distribute
cocaine, which he ran out of the Dallas, Texas, area. Guardiola took over the
business in 2004 from his former boss, Miguel Martinez, after Martinez was
killed. Guardiola received drugs from an organization based in Mexico and
distributed them to various places throughout the United States. Juan Cordova
was his right hand man, assisting him in distributing large amounts of cocaine.
Guardiola distributed cocaine to Chicago, Illinois to the organization’s
contact in Chicago he knew as “Compa” or “Compadre,” and later identified as
defendant Sixto Sanchez Lugo. Guardiola began transporting cocaine to Lugo
in Chicago in 2004.
On trips to Chicago, Guardiola also delivered cocaine to Kevin Bell, who,
in turn, delivered it to defendant William Bradley at his home in Indianapolis,
Indiana. Kevin Bell also delivered cocaine directly from the Dallas area to
Bradley in Indianapolis.
Guardiola also distributed cocaine in the Dallas area. He sold cocaine to
Brad Holland, who sold it to defendant Gerber Ordonez. In addition to
supplying Ordonez with cocaine he received from Guardiola, Holland purchased
methamphetamine from Ordonez.
Guardiola was arrested in September 2004 and began cooperating with
law enforcement. Many of his co-conspirators were eventually discovered by law
enforcement and arrested.
II.
Lugo, Bradley, and Ordonez were indicted for conspiracy to distribute and
to possess with the intent to distribute and dispense cocaine from January 1,
2004, through January 11, 2006 in violation of 21 U.S.C. § 846. Ordonez was
charged with conspiracy to manufacture, distribute and dispense
2
No. 06-41760
methamphetamine, from January 1, 2004 through February 8, 2006, in violation
of 21 U.S.C. § 846 and aiding and abetting the same, under 18 U.S.C. § 2.
After a trial, the jury found each defendant guilty of conspiracy to
distribute cocaine. The jury also found Ordonez guilty of conspiracy to distribute
methamphetamine.
Lugo was sentenced to imprisonment for a term of 151 months and five
years of supervised release. Bradley was sentenced to 121 months of
imprisonment and five years of supervised release. Ordonez was sentenced to
240 months of imprisonment and three years of supervised release for his
cocaine conspiracy conviction, to be served consecutively with a sentence of 360
months of imprisonment and five years of supervised release for his
methamphetamine conspiracy conviction.
III.
A.
Lugo challenges the sufficiency of the evidence against him. He also
challenges the admission of extrinsic evidence of his 2001 detention in a Chicago
airport and the admission of evidence of cocaine and drug paraphernalia found
in his home, contending that the evidence was inadmissible under Federal Rule
of Evidence 404(b).
B.
Bradley also challenges the sufficiency of the evidence against him.
Additionally, he challenges his sentence, contending that the district court erred
by enhancing his offense level and denying an adjustment to his Guidelines
range on the basis of firearms and drug paraphernalia found in his home.
Bradley contends that the court erred by not applying an adjustment to his
offense level because he was only a minor or minimal participant in the
conspiracy. He also contends that his sentence is unreasonable and that the
district court did not sufficiently explain its reasons for imposing it.
3
No. 06-41760
C.
Ordonez, likewise, challenges the sufficiency of the evidence against him.
He also contends that the district court did not give sufficient preliminary
instructions to the jury or sufficient instructions regarding the nature of the
conspiracies and the testimony of co-conspirators. Ordonez also challenges the
admission of evidence that he threatened the wife of a witness and the exclusion
of testimony to impeach another witness’s testimony regarding possession of a
cell phone in jail.1
We now turn to address the arguments raised by the three appellants.
IV.
A.
1.
We first consider Lugo’s argument that the evidence was insufficient to
support his conviction. Lugo moved for judgment of acquittal, so we review the
district court’s denial of that motion de novo. United States v. Williams, 520
F.3d 414, 420 (5th Cir. 2008). We review the sufficiency of the evidence to
determine whether, viewing the evidence in the light most favorable to the
verdict, a rational jury could have found the essential elements of the offense
beyond a reasonable doubt. Id. The elements of the offense of conspiracy to
distribute cocaine are (1) an agreement with one other person to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, cocaine; (2) defendant’s knowledge of the agreement; and (3)
defendant’s voluntary participation in the conspiracy. 21 U.S.C. § 846; 21 U.S.C.
§ 841(a)(1); United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003).
1
Ordonez also raises arguments relating to the prosecution’s opening statement and
the district court’s “failure” to order his counsel to move for judgment of acquittal. These
arguments are meritless. Ordonez also contends that the district court erred by enhancing his
Guidelines offense level on the basis of facts not found by the jury. This argument is foreclosed
by circuit precedent. See United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007).
4
No. 06-41760
We hold that the evidence was sufficient to support Lugo’s conviction.
Lugo’s co-conspirators, Guardiola and his right-hand man, Juan Cordova,
testified that they personally delivered many kilograms of cocaine to Lugo on
more than one occasion. They identified him in court as the man they knew as
“Compa” or “Compadre.” Guardiola testified that he made at least three
deliveries to Lugo in Chicago, delivering between 15 and 20 kilograms of cocaine
each time. Cordova testified that he went to deliver cocaine to Lugo and received
payment from Lugo. Kelly Leal and Juan Guardiola, Marco Guardiola’s brother,
testified that they flew to Chicago in November of 2004 to hand “Compa” a cell
phone so that Marco could ask him for money that was owed for a past cocaine
sale. They identified Lugo as the man who came to the door when they asked for
Compa and who spoke with Marco Guardiola. When Lugo was arrested, he had
a phonebook containing the names Kelly, Juan, and another of Marco
Guardiola’s brothers.
The jury reasonably could have believed the testimony of the government’s
witnesses and that Lugo’s repeated drug transactions with Guardiola and others
evince a knowing agreement to distribute cocaine and voluntary participation
in the conspiracy. We are “precluded from invading the province of the jury by
substituting our credibility determinations for those of the jury unless the
witness’s testimony is factually impossible, which would render it incredible as
a matter of law.” United States v. Landerman, 109 F.3d 1053, 1067 (5th Cir.
1997). Viewing the evidence in the light most favorable to the verdict, a rational
jury could have found the elements of the offense beyond a reasonable doubt.
2.
We now turn to Lugo’s challenge to the admission of extrinsic evidence.
We review the admission of evidence under Federal Rule of Evidence 404(b)
under an abuse of discretion standard, which is necessarily heightened on review
of evidentiary rulings in criminal trials. United States v. Carrillo, 981 F.2d 772,
5
No. 06-41760
774 (5th Cir. 1993). We follow a two-step inquiry to analyze the admissibility of
Rule 404(b) evidence: “First, it must be determined that the extrinsic offense
evidence is relevant to an issue other than the defendant’s character. Second,
the evidence must possess probative value that is not substantially outweighed
by its undue prejudice and must meet the other requirements of [R]ule 403.”
United States v. Mitchell, 484 F.3d 762, 774 (5th Cir. 2007) (quoting United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)).
The Government sought to admit evidence that Lugo was detained in
Chicago’s Midway airport in 2001 and was discovered to have $142,000 strapped
to his legs and another $1,500 in his pocket. The district court ruled before trial
that the evidence was extrinsic, but admissible under Federal Rule of Evidence
404(b), finding it was relevant for purposes other than the defendant’s character:
“his intent among other things.” The court also found that the “probative value
outweighs the harm in the case.” Lugo contends that the district court erred in
admitting the extrinsic evidence. He contends that the extrinsic evidence of his
past act was not relevant to the drug conspiracy with which he was charged.
Federal Rule of Evidence 404(b) provides that evidence of other crimes,
wrongs or acts is not admissible to prove the character of a person in order to
show action in conformity therewith, but may be admissible for other purposes
“such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” We have held that a defendant
places his intent in issue when he pleads not guilty in a drug conspiracy case
and “therefore, evidence of past drug transactions can be used to establish
criminal intent.” United States v. Misher, 99 F.3d 664, 670 (5th Cir. 1996).
We have further held that
[w]here the issue addressed is the defendant’s intent to
commit the offense charged, the relevancy of the
extrinsic offense derives from the defendant’s indulging
himself in the same state of mind in the perpetration of
6
No. 06-41760
both the extrinsic and charged offenses. The reasoning
is that because the defendant had unlawful intent in
the extrinsic offense, it is less likely that he had lawful
intent in the present offense.
Beechum, 582 F.2d at 911. The extrinsic offense must require the “same intent
as the charged offense” to be probative of intent to commit the charged offense.
United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003). The offenses need
not be identical. We have held, for example, that conspiracy to transport stolen
jewelry in interstate commerce involves the same intent as the extrinsic offense
of theft, which required the defendant to intend to deprive the owner of property.
Id at 354-55. Cf. United States v. Riddle, 103 F.3d 423, 433 (5th Cir. 1997)
(holding that evidence of irresponsible banking practices was not relevant to
show intent to commit bank fraud).
In this case, the officer who detained Lugo in 2001 testified that Lugo
gave inconsistent answers to questions and that his behavior and the fact that
he was traveling with a one-way, cash ticket was consistent with drug-
trafficking activity. Although it is certainly likely that people with large
amounts of cash hidden on their person are involved in illegal activity—indeed
in drug distribution activity—Lugo was not charged with or convicted of any
drug offense in connection with the 2001 seizure, and no such offense was proven
to the jury. There is no evidence that Lugo’s previous act required the same
intent as the charged offense of conspiracy to distribute cocaine. Although the
district court mentioned that the evidence was admissible to show “other things,”
it never stated on the record what those other things were.
Assuming that the district court abused its discretion in admitting
evidence of the 2001 incident, we will reverse only if the error was not harmless.
FED. R. CRIM. P. 52(a); Mitchell, 484 F.3d at 774. In a harmless error
examination, we view an error in relation to the entire proceeding, not merely
in isolation. United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008). We will
7
No. 06-41760
reverse only if there is a reasonable possibility that the improperly admitted
evidence contributed to the conviction. Id. However, “[w]hen the other evidence
of guilt is overwhelming, and the error would not have substantially influenced
the jury's verdict, the error is harmless.” Id. Here, there was substantial other
evidence that Lugo was guilty of the offense charged, discussed above.
Admitting evidence of his 2001 detention did not substantially influence the
jury’s verdict. We conclude that any error is harmless.
Lugo also contends that the district erred by admitting evidence that
approximately 62 grams of cocaine were found in a March 2006 search of his
California home after the conspiracy charged in the indictment had ended. He
contends that the cocaine and drug paraphernalia found in his home were not
evidence of conspiracy to distribute cocaine and that the evidence was highly
prejudicial. The cocaine was found along with a digital scale, cutting agent, two
firearms, and a candle portraying what the agent testifying identified as the
“patron saint of drug traffickers.” We have held that possession of drugs is
highly probative of a defendant’s knowledge and intent to commit conspiracy to
distribute drugs. See United States v. Duffaut, 314 F.3d 203, 209 (5th Cir. 2002);
United States v. Gadison, 8 F.3d 186, 191-92 (5th Cir. 1993) (holding that “[a]
prior conviction for possession of cocaine is probative of a defendant’s intent
when the charge is conspiracy to distribute”). The district court therefore did not
err by finding that the evidence was relevant to an issue other than Lugo’s
character.
Moreover, it does not appear that the probative value of the evidence was
outweighed by a risk of undue prejudice. The district court instructed the jury
immediately after the introduction of evidence regarding the search of Lugo’s
home that the “testimony is being admitted only for the limited purpose of being
considered by you on the question of . . . the Defendant’s intent, his modus
operandi or motive, opportunity, preparation and plan, and for no other
8
No. 06-41760
purpose.” A similar instruction was given before the jury deliberated. The
court’s instructions to the jury diminished any undue prejudice that might have
arisen from the introduction of the evidence of Lugo’s cocaine possession.2 See
United States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000) (“We consistently have
held that evidence of a defendant's prior conviction for a similar crime is more
probative than prejudicial and that any prejudicial effect may be minimized by
a proper jury instruction.”). Therefore, the district court did not err in admitting
the evidence.
B.
1.
We now consider Bradley’s challenges to his conviction and sentence.
First, we consider Bradley’s argument that the evidence was insufficient to
support his conviction. He properly preserved this argument by making a
motion for judgment of acquittal, so our review is de novo. Williams, 520 F.3d
at 420. Bradley contends that the only evidence presented against him was
the testimony of his co-conspirators, and that their testimony was not credible.
Kevin Bell testified that he knew Bradley from high school and began
selling marijuana to Bradley beginning in 2003. Kevin Bell testified that, on
four occasions in 2004, he delivered cocaine to Bradley at Bradley’s Indianapolis
home, in amounts ranging from five to nineteen kilograms. Kevin Bell had
previously pled guilty in connection with his involvement in the conspiracy.
Keith Bell, Kevin’s brother, testified that he accompanied Kevin on two of these
trips and witnessed Bradley giving Kevin Bell a bag of money for a delivery of
cocaine. Keith Bell had not been charged in connection with the case at the time
of trial.
2
Lugo contends that the court’s instruction did not cure any error because it simply
recited the list of permissible purposes found in Rule 404(b). We have held, however, that an
instruction that tracks the language of Rule 404(b) properly instructs the jury on permissible
uses of extrinsic evidence. United States v. Pompa, 434 F.3d 800, 805-06 (5th Cir. 2005).
9
No. 06-41760
The government also introduced evidence of recorded phone calls made by
Kevin Bell while he was in custody in May 2005 and January 2006. In January
2006, Kevin Bell called Bradley’s half-brother, Houston Leek, and attempted to
arrange a cocaine deal. According to the transcript of the calls, Leek arranged
a three-way conversation with another person, whom Bell identified as Bradley.
Upon his arrest in January 2006, a search of Bradley’s home produced over an
ounce of cocaine, digital scales, clear plastic, and four firearms.
Bradley points to some inconsistencies in the Bell brothers’ testimony and
some discrepancies with earlier accounts given to investigators. Bradley cross-
examined the Bells regarding the discrepancies in their stories, and the jury
judged their credibility. The court instructed the jury to view the unsupported
testimony of co-conspirators with great care and not to convict on the basis of
such testimony unless the jury believed the testimony beyond a reasonable
doubt. Bradley has not demonstrated that the testimonial evidence showed a
factual impossibility. We will not, therefore, second-guess the jury’s credibility
determinations. See Landerman, 109 F.3d at 1067. We hold that, viewing the
evidence in the light most favorable to the verdict, the evidence was sufficient
to support the verdict on each element of conspiracy. The district court did not
err in denying Bradley’s motion for judgment of acquittal.
2.
Bradley also raises several arguments concerning his sentence, which we
consider in turn.
a.
First, Bradley contends that the district court erred by enhancing his base
offense level by two levels according to U.S.S.G. § 2D1.1(b)(1), which provides for
the enhancement “if a dangerous weapon (including a firearm) was possessed.”
Application note 3 to the Guideline provides that “[t]he adjustment should be
applied if the weapon was present, unless it is clearly improbable that the
10
No. 06-41760
weapon was connected with the offense. For example, the enhancement would
not be applied if the defendant, arrested at his residence, had an unloaded
hunting rifle in the closet.” Whether the weapon was connected with the offense
is a factual finding reviewed for clear error. United States v. Cooper, 274 F.3d
230, 245 (5th Cir. 2001).
Under § 2D1.1, the government must show by a preponderance of the
evidence “that a temporal and spatial relation existed between the weapon, the
drug trafficking activity, and the defendant.” Cooper, 274 F.3d at 245 (quoting
United States v. Vasquez, 161 F.3d 909, 912 (5th Cir.1998)). “Under this
standard, the Government must show that the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part of the
transaction occurred.” United States v. Salado, 339 F.3d 285, 294 (5th Cir. 2003).
The enhancement is appropriate if a firearm “was possessed during the course
of manufacturing, importing, exporting, or trafficking in narcotics, including
attempting or conspiring to do so.” United States v. Dixon, 132 F.3d 192, 201-02
(5th Cir. 1997) (quoting United States v. Gaytan, 74 F.3d 545, 559 (5th Cir.
1996)). Relevant conduct may be considered, so that possession may be found
even if the firearm is not possessed during the offense of conviction. United
States v. Eastland, 989 F.2d 760, 769 (5th Cir. 1993). We have held, however,
that it is insufficient for the Government to show merely that a drug offender is
found with a gun while participating in an ongoing conspiracy. Cooper, 274 F.3d
at 246. The Government must show that the firearm or the location in which it
is found is connected in some way with drug-trafficking activities. Id.Bradley contends that the Government did not demonstrate by a
preponderance of the evidence a temporal and spatial relation between the
weapon, the drug activity for which he was convicted, and Bradley. Bradley was
arrested January 24, 2006. Therefore, Bradley argues that the guns were not
found in close enough temporal proximity to the conspiracy.
11
No. 06-41760
The government presented proof that three loaded pistols and a shotgun
were found in Bradley’s home. One pistol was found in the kitchen where a little
over an ounce of cocaine was also found. The serial number had been removed
from the weapon. The two other pistols were found on shelves in Bradley’s
master bedroom. In the bedroom closet a shotgun was found, along with digital
scales which had cocaine residue, clear plastic, baggie ties, and a plastic spoon.
Seven thousand dollars in cash was found in a safe in the closet. Kevin and
Keith Bell testified that Bradley’s home was the location of multiple deliveries
of cocaine. There was abundant evidence of a spatial relationship between the
firearms and drug-trafficking activity.
Bradley contends that there is not a sufficient temporal relation
connecting the search of his home in January 2006 and the last delivery made
to his home in 2004. However, the government introduced evidence of a recorded
telephone call between Kevin Bell, Houston Leek, and Bradley that took place
on January 23, 2006. Kevin Bell testified that during that conversation, he and
Bradley discussed a cocaine transaction that Bell had previously discussed with
Leek, acting as a go-between to Bradley. Bradley expressed interest in
distributing cocaine again on a regular basis. They discussed Bell selling
Bradley and Leek five kilograms of cocaine for $18,000 per kilogram. Bradley
denied that he actually made a cocaine deal with Bell, although he admitted that
his voice appeared on the recorded call during which they discussed a marijuana.
We have held that firearms may be “possessed” for purposes of §
2D1.1(b)(1) in connection with a drug conspiracy even if they are found after a
particular transaction in furtherance of the conspiracy. See United States v.
Caicedo, 103 F.3d 410, 412 (5th Cir. 1997). In Caicedo, the defendant argued
that weapons found two and a half months after cocaine was repackaged at an
informant’s residence were not possessed in connection with his conspiracy
offense. Id. The firearms were found in close proximity to drug paraphernalia
12
No. 06-41760
with cocaine residue. Id. Because Caicedo had not withdrawn from the
conspiracy, we affirmed the district court’s conclusion that it was not clearly
improbable that the firearms were connected with the cocaine conspiracy. Id.Here, over a year had passed between Bell’s last cocaine delivery to
Bradley in 2004 and the discovery of the firearms in January 2006. However,
like Caicedo, Bradley had not withdrawn from the conspiracy, which was
charged in the indictment through January 11, 2006. Bradley continued to
discuss a cocaine transaction with Leek and Bell as late as January 23, 2006, the
day before the firearms were found. Moreover, Officer Paul Buchman, who
searched Bradley’s house, testified that the amount of cocaine found there along
with the firearms was consistent with distribution. Because the government
presented evidence that Bradley continued to engage in the cocaine distribution
conspiracy up until his arrest, and because Bradley’s firearms were found in
close proximity to cocaine and drug paraphernalia, the district court did not
clearly err in finding, by a preponderance of the evidence, a sufficient spatial and
temporal nexus between the weapons, the drug activity, and Bradley to apply §
2D1.1(b)(1). Bradley has not shown that it is clearly improbable that the
firearms were connected to his offense. Cooper, 274 F.3d at 246 n.8 (explaining
that, once the government has established a temporal and spatial relationship
between the weapon, the drug-trafficking activity, and the defendant, the burden
shifts to the defendant to show that it was clearly improbable that the weapon
was connected to the offense).
b.
Bradley also contends that the district court erred by not applying the
“safety valve” provision of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). Bradley has
the burden of showing that he is entitled to the safety valve adjustment to his
sentence. United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
Section 5C1.2 requires proof that, among other things, Bradley did not possess
13
No. 06-41760
a firearm in connection with his offense. § 5C1.2(2). We have held that the
firearm provision of § 5C1.2(a)(2) and the firearm provision of § 2D1.1(b)(1)
should be interpreted analogously. Vasquez, 161 F.3d at 912. As discussed
above, the district court did not err in finding that Bradley possessed a gun for
the purposes of § 2D1.1(b)(1). It therefore did not err in not applying the safety
valve provision because Bradley did not show that he did not possess a firearm
in connection with the drug conspiracy offense.
c.
Bradley contends that he was a minimal or minor participant in the
conspiracy and was therefore entitled to a decrease in his offense level under
U.S.S.G. § 3B1.2. Section 3B1.2 requires a four-level decrease if the defendant
was a minimal participant in any criminal activity and a two-level decrease if
the defendant was a minor participant. A minimal participant is one who is
“plainly among the least culpable of those involved in the conduct of a group.”
U.S.S.G. § 3B1.2 cmt. n. 4. A minor participant is one “who is less culpable than
most other participants, but whose role could not be described as minimal.”
U.S.S.G. § 3B1.2 cmt. n. 5.
The defendant bears the burden of proving that his role was minor or
minimal. United States v. Atanda, 60 F.3d 196, 198 (5th Cir. 1995). We review
the district court’s finding for clear error. United States v. Griffith, 522 F.3d 607,
611 (5th Cir. 2008). We have held that, “when a sentence is based on an activity
in which a defendant was actually involved, § 3B1.2 does not require a reduction
in the base offense level even though the defendant’s activity in a larger
conspiracy may have been minor or minimal.” Atanda, 60 F.3d at 199. When a
defendant in a drug conspiracy is sentenced based only on the drugs he actually
participated in transporting, he cannot claim to be a minor participant in
relation to his offense. United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir.
1997).
14
No. 06-41760
The jury found, in connection with Bradley’s conviction, that he was guilty
of a conspiracy involving more than 500 grams but less than 5 kilograms of
cocaine. Bradley’s base offense level was assigned based on an amount of
cocaine above 3.5 kilograms but less than 5 kilograms. U.S.S.G. § 2D1.1(c)(5).
As discussed above, evidence was presented showing that Bradley personally
participated in the distribution of well more than 3.5 kilograms of cocaine. The
district court did not err in sentencing Bradley based on a quantity of drugs that,
consistent with the jury’s finding, the court found that Bradley had distributed.
The court therefore did not err in denying Bradley an adjustment under § 3B1.2.
d.
Bradley also contends that he is entitled to resentencing because the
district court failed to explain adequately his sentence.
In Rita v. United States, the Supreme Court noted that, “when a judge
decides simply to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.” 127 S.Ct. 2456, 2468 (2007). The
Court added that more than a brief statement may be required when a district
court is presented with nonfrivolous arguments for a sentence outside the
Guidelines. Id. at 2468-69. Nevertheless, the Court concluded that the district
court's reasons for rejecting the defendant's § 3553(a) arguments for a
non-Guidelines sentence in that case were, although brief, legally sufficient. Id.
at 2469. Specifically, the Court noted that the record made clear that the judge
listened to and considered the arguments and evidence but simply found the
circumstances insufficient to warrant a sentence below the Guidelines range.
Id. The judge said that the range was not “inappropriate” and that a sentence
at the bottom of the range was “appropriate.” Id. The Court acknowledged that
the judge might have said more, but was not required to do so. Id.
Here, the district heard Bradley’s arguments and objections to his
sentence. The court adopted the findings, reasoning, and Guidelines calculations
15
No. 06-41760
in the Presentence Report. The court stated that it had considered the
Sentencing Guidelines as well as the provisions of 18 U.S.C. § 3553(a). In the
light of the brief statement of reasons approved in Rita, we cannot say that the
district court here erred by insufficiently explaining its reasons for imposing
Bradley’s sentence. See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th
Cir. 2008).
Finally, Bradley asserts that his 121-month sentence was substantively
unreasonable. This court applies a presumption of reasonableness when
reviewing sentences within a properly-calculated guidelines range. See, e.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008). Bradley
has not overcome that presumption.
C.
1.
We now turn to Ordonez’ s challenges to his conviction, first considering his
contention that the evidence against him was insufficient to support the verdict.
Ordonez did not move for a judgment of acquittal. Where a defendant does
not move for a judgment of acquittal, we will reverse the conviction only where
it amounts to a manifest miscarriage of justice, that is, only if the record is devoid
of evidence pointing to guilt. United States v. Valles, 484 F.3d 745, 752-53 (5th
Cir. 2007). Here, the Government presented sufficient evidence that Ordonez was
guilty of both conspiracy to distribute cocaine and conspiracy to distribute
methamphetamine.
Several witnesses testified that Ordonez was involved in drug-trafficking
activity with Guardiola and another conspirator, Brad Holland. Guardiola
testified that Holland and Ordonez worked together to distribute cocaine, and
that Holland told Guardiola that Ordonez was his source of methamphetamine.
Holland testified that he participated in numerous sales of cocaine and
methamphetamine with Ordonez. Jacqueline Coker, who dated Holland, testified
16
No. 06-41760
that she delivered money for drugs from Ordonez to Holland. Kristi Griffith,
another woman Holland dated, witnessed Holland sell cocaine to Ordonez. When
she was arrested, she was on the way to meet Ordonez to pick up
methamphetamine. Lindsey Bell Drury and Jesse Horne, both Holland’s
customers, testified that, after Holland was arrested, they bought
methamphetamine directly from Ordonez. Kenneth Huddleston testified that he
bought methamphetamine from Holland and Ordonez.
On the basis of the substantial evidence against Ordonez, we hold that
Ordonez’s conviction does not amount to a manifest miscarriage of justice and
that the evidence is sufficient to support his convictions for conspiracy to
distribute cocaine and conspiracy to distribute methamphetamine.
2.
We next consider Ordonez’s argument that the district court erred in its
admission of hearsay testimony by co-conspirators and its instructions relating
to that testimony. Ordonez contends that the district court erred in admitting
hearsay testimony from co-conspirators who were not named in the indictment
on which Ordonez was tried. He contends further that the district court did not
adequately instruct the jury regarding the testimony of co-conspirators.
More specifically, Ordonez contends that the district court erred in its
admission of testimony from witnesses Bradley Holland, Jacqueline Coker,
Kenneth Huddleston, and Jesse Horne. He contends that hearsay evidence was
improperly received because the witnesses were not specifically identified as co-
conspirators by the indictment or the district court. Ordonez was charged with
two conspiracies, one involving cocaine and another involving methamphetamine,
and he contends that the court should have indicated to the jury which testimony
went to which conspiracy. Ordonez also contends that the district court should
have given cautionary or limiting instructions regarding Brad Holland’s
testimony, as well as that of Coker and Kristi Griffith and should have conducted
17
No. 06-41760
a hearing under United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc),
to determine whether two conspiracies existed.
Ordonez did not make these objections at trial, so we review for plain error.
Under the plain error standard, we will reverse only if (1) there is an error, (2)
the error is clear under current law, and (3) the error affects the defendant's
substantial rights. United States v. Garcia Abrego, 141 F.3d 142, 165 (5th Cir.
1998). When the three elements of plain error are present, relief is discretionary
with the court of appeals and should be granted only when a plain error
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en
banc), abrogated in part on other grounds by Johnson v. United States, 520 U.S.
461, 468 (1997) (quoting United States v. Atkinson, 297 U.S. 157 160 (1936).
For a statement that would otherwise be hearsay to be admissible under
Federal Rule of Evidence 801(d)(2)(E), “[t]here must be evidence that there was
a conspiracy involving the declarant and the nonoffering party, and that the
statement was made ‘during the course and in furtherance of the conspiracy.’”
Bourjaily v. United States, 483 U.S. 171, 175 (1987) (quoting FED. R. EVID.
801(d)(2)(E)). When these predicate facts are challenged, the offering party must
prove them by a preponderance of the evidence. Id. at 181. Here, the district
court found the necessary predicate facts that there was a conspiracy involving
Ordonez and that hearsay statements were made by conspirators during and in
furtherance of the conspiracy. The district court did not err by waiting until the
end of trial to determine the existence of the Rule 801(d)(2)(E) predicate facts, see
United States v. Fragoso, 978 F.2d 896, 900 (5th Cir. 1992), and Ordonez has not
shown that the district court’s findings were erroneous.
In giving its preliminary instructions, the court explained the presumption
of innocence, the burden of proof, the credibility of witnesses, and the privilege
against self-incrimination. The indictment was read to the jury and described
18
No. 06-41760
two conspiracies involving different types of drugs. The district court gave
appropriate cautionary instructions at the end of the trial to consider the
unsupported testimony of an accomplice or co-conspirator with great care. The
court further instructed that the jury should never convict a defendant on the
unsupported testimony of an alleged accomplice “unless you believe that
testimony beyond a reasonable doubt.” The court gave detailed instructions
concerning the elements of the charged conspiracies. Each witness’s testimony
made his or her role in the conspiracies clear, as each testified to particular
instances witnessing or participating in Ordonez’s transactions involving cocaine,
methamphetamine, or both. In sum, Ordonez has not shown plain error in the
district court’s instructions to the jury.
3.
We now consider Ordonez’s contention that the district court erred by
admitting evidence that Ordonez threatened the wife of another witness while
both were incarcerated prior to trial. Ordonez did not object at trial, so we, once
again, review for plain error.
Jesse Horne testified that, approximately one week prior to trial, as Horne
walked past Ordonez in the recreation area of the jail, Ordonez held up a piece
of paper with Horne’s address and his wife’s first and last names and told Horne
to “be careful.” Horne testified that his wife had a different last name than he
did and that he took the incident as a personal threat to his wife.
Ordonez contends that the district court erred by allowing extrinsic
evidence that he made a veiled threat against Horne’s wife. He contends that
there was no showing that the Government complied with Rule 404(b) in
disclosing the extraneous offense and the government’s intention to introduce it
at trial.
As discussed above regarding Lugo’s appeal, evidence of extrinsic bad acts
is admissible if it is relevant to an issue other than the defendant’s character and
19
No. 06-41760
if its probative value is not substantially outweighed by undue prejudice. See
Mitchell, 484 F.3d at 774. We have held that evidence of a threat by a defendant
to an adverse witness is probative of an issue other than character:
consciousness of guilt. United States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990).
Such evidence indicates “that the defendant was conscious of the weakness of his
case [and] creates a compelling inference that the defendant’s case lacks merit.”
Id. Therefore, evidence of Ordonez’s threat is probative of an issue other than
character. Ordonez does not argue that the evidence is more prejudicial than
probative. He has not demonstrated that the district court committed plain error
in admitting evidence of his threat to Horne.
4.
Finally, we address Ordonez’s argument that the court erred in not
allowing him to call a witness to impeach Brad Holland’s testimony concerning
a collateral matter.
Holland testified on cross-examination that he sneaked a cell phone into
the Red River County Jail, in violation of jail rules. Holland testified that
someone else brought the phone to the jail and that they were responsible for it,
but that he sneaked the phone in. He admitted that doing so was against the
rules. Ordonez sought to introduce the testimony of Robert Strucker, another
prisoner who was nearby when the contraband phone was brought into the jail
facility. Ordonez sought to show through Strucker’s testimony that Holland was
entirely responsible for the phone and that he attempted to put the blame on
Strucker and Strucker’s fiancée. The district court held a hearing on the issue,
and found that, under Federal Rule of Evidence 403, the probative value was less
than the other considerations in conducting a trial and, alternatively, that the
evidence was impeachment on a collateral matter.
We review properly preserved evidentiary rulings for abuse of discretion.
United States v. Miller, 520 F.3d 504, 510 (5th Cir. 2008). Rule 403 provides that
20
No. 06-41760
relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
At most, the proffered testimony would have been evidence that Holland’s
testimony had not appropriately allocated responsibility for a violation of jail
rules to which he admitted. The district court’s finding that this evidence was
not of sufficient probative value to merit inclusion in the trial was not an abuse
of discretion.
V.
For the foregoing reasons, we hold that the district court committed no
reversible error in the conviction and sentencing of Sixto Sanchez Lugo, William
Bradley, or Gerber Ordonez for conspiracy to distribute cocaine under 21 U.S.C.
§ 846 or of Ordonez for conspiracy to distribute methamphetamine under 21
U.S.C. § 846. Their convictions and sentences are therefore
AFFIRMED.
21