United States v. Hernandez , 457 F.3d 416 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 19, 2006
______________________
Charles R. Fulbruge III
No. 05-50191 Clerk
______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIA HERNANDEZ; RUTILIO HERNANDEZ, also known as Rudy,
Defendants - Appellants.
______________________
Appeals from the United States District Court
for the Western District of Texas
_____________________
Before: DeMOSS, BENAVIDES, and PRADO, Circuit Judges.
BENAVIDES, Circuit Judge:
Maria and Rutilio Hernandez (“Appellants”) jointly appeal
their convictions and sentences for six counts of conspiracy, each
arising out of illegal drug activity. For the reasons below, we
affirm each of Appellants’ convictions and sentences.
I. BACKGROUND
The Government charged Appellants by indictment with the
following counts: (1) conspiracy to possess with intent to
distribute more than 1000 kilograms of marijuana, (2) conspiracy to
import more than 1000 kilograms marijuana, (3, 4, 5) three counts
of conspiracy to launder monetary instruments, and (6) conspiracy
to possess a firearm in furtherance of a drug trafficking crime.
The charges arose out of the elaborate drug trafficking operation
of Robert W. Fansler. According to the Government, Appellants and
Fansler orchestrated and financed a multi-million dollar marijuana
distribution enterprise. The indictment alleged, inter alia, that
Appellants’ coconspirators smuggled marijuana, currency, and
firearms between Mexico and the United States. The jury convicted
on all counts. After the verdict, Appellants moved to dismiss and
for a new trial on grounds of speedy trial right violations and
ineffective assistance of counsel. The district court denied the
motions.
As to sentencing, the court adopted the presentence reports’
guideline applications. Appellant Maria Hernandez’s Guideline
range was 235 to 293 months imprisonment. Appellant Rutilio
Hernandez’s Guideline range was 360 months to life imprisonment.
However, the court indicated that it would impose sentences “below
the guideline range” based on the “Court’s own departure.” It
sentenced Maria Hernandez to six concurrent terms of 204 months
imprisonment and Appellant Rutilio Hernandez to six concurrent
terms of 240 months imprisonment. This appeal followed.
II. DISCUSSION
A. Speedy Trial
Appellants’ first claim is that the district court erred by
denying their post-trial motions to dismiss the charges on speedy
trial grounds. Appellants make arguments under both the Speedy
Trial Act, 18 U.S.C. §§ 3161–74, and under the Sixth Amendment.
2
Under both authorities, this claim fails.
1. Speedy Trial Act Claim
Appellants contend that their post-verdict motions to dismiss
should have been granted because the Government failed to bring
them to trial within seventy days. See 18 U.S.C. § 3161(c)(1).
However, the district court properly held that Appellants waived
their right to dismissal under the Speedy Trial Act because they
did not move for dismissal before trial. See 18 U.S.C.A. §
3162(a)(2) (“Failure . . . to move for dismissal prior to trial
. . . shall constitute a waiver of the right to dismissal . . . .”)
Despite the plain language of section 3162(a)(2), Appellants
argue that Speedy Trial Act provisions are not waivable, citing
United States v. Willis, 958 F.2d 60 (5th Cir. 1992). Contrary to
Appellants’ arguments, Willis is inapposite. Willis held that a
particular period of delay was not excludable from the 70-day
maximum simply because a defendant acquiesces to the delay. Willis
did not address the situation here, in which the Appellants
entirely failed to assert their speedy trial rights until after the
verdict. Under these circumstances, section 3162(a)(2) manifestly
provides that Appellants have waived the right to dismissal. See
United States v. Jackson, 30 F.3d 572 (5th Cir. 1994).
2. Sixth Amendment Speedy Trial Right
Appellants also assert a constitutional speedy trial claim.
In Barker v. Wingo, 407 U.S. 407 (1972), the Supreme Court set
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forth a series of factors that courts should evaluate and balance
in assessing such claims. Those factors are: “(1) the length of
the delay, (2) the reason for [it], (3) the defendant’s diligence
in asserting his Sixth Amendment right, and (4) prejudice to the
defendant resulting from the delay.” United States v. Cardona, 302
F.3d 494, 496 (5th Cir. 2002). A full-fledged four-factor analysis
is warranted here because the total time from indictment to trial
exceeded one year. See United States v. Frye, 372 F.3d 729,
736–737 (2004) (discussing this Court’s “one-year guideline” for
whether the delay length is sufficient to call for an analysis of
all four Barker factors).
Upon analyzing the relevant factors, the district court found
no Sixth Amendment violation. The standard of review for assessing
a court’s “four-factors balancing” is unresolved in this Circuit.
Id. at 735–36. We will assume arguendo that our review is de novo.
In undertaking a “full Barker-analysis,” we initially look to
“the first three factors (delay-length; reason for it; diligence in
asserting right) in order to determine whether prejudice will be
presumed or whether actual prejudice must be shown.” Id. at 736.
Prejudice may be presumed where the first three factors weigh
“heavily” in the defendant’s favor. See United States v. Serna-
Villarreal, 352 F.3d 225, 231 (5th Cir. 2003).
As to the first factor, the fourteen-month delay here—though
long enough to prompt a full Barker analysis—is far too short to
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weigh in favor of presuming prejudice. Id. at 232. Additionally,
the third factor weighs heavily in the Government’s favor because
Appellants failed to assert their speedy trial rights until after
conviction. Barker, 407 U.S. at 532.
Appellants’ argument focuses entirely on the second factor:
the reason for the delay. Appellants contend that the Government
misled the court and wrongfully obtained continuances. The
Government sought continuances to secure the attendance and
testimony of a Government witness, Fansler, who had absconded to
Mexico prior to Appellants’ trial. In arguing for a continuance,
the Government represented that Fansler’s testimony was “absolutely
necessary” to its case. Appellants argue that this was misleading
inasmuch as the Government eventually proceeded to trial and
obtained a conviction without this “so-called ‘essential and
absolutely necessary witness.’”
Under Doggett v. United States, the second Barker factor cuts
strongly in favor of a defendant where the Government acts in bad
faith, intentionally holding up prosecution for the purpose of
prejudicing the defendant. 505 U.S. 647, 656 (1992). Cases of
“official negligence” weigh less heavily against the Government,
and “the weight assigned to [negligent delay] increases as the
length of the delay increases.” Serna-Villarreal, 352 F.3d at 232
(internal quotation marks omitted).
The Government’s actions do not show bad faith. The district
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court found that the Government acted “in good faith” to secure the
testimony of a material witness. According to the Government,
Fansler was to testify that Rutilio and Maria Hernandez were, in
fact, the “Rudy” and “Maria” frequently referred to in his drug-
dealing records.1 As the district court reasoned, the fact that
the Government was eventually “forced to proceed to trial without
the witness” fails to demonstrate that the Government did not
honestly believe its representations that Fansler’s testimony was
crucial when it made those representations.
We doubt that the Government’s actions amounted even to
official negligence. However, assuming that they did, this would
not show that prejudice should be presumed in this case.
Government-sought continuances resulted only in a comparatively
brief delay: 195 days.2 The minor delay in this case, even if
caused by Government negligence, would not warrant presumed
prejudice. See, e.g., Robinson v. Whitley, 2 F.3d 562, 570 (5th
Cir. 1993).
Prejudice cannot be presumed because the first three Barker
factors do not cut strongly in Appellants’ favor. Appellants fail
to argue that they suffered any actual prejudice. Therefore, their
Sixth Amendment speedy trial claim must fail.
1
Appellants’ theory of the case is mistaken identity.
They contend that a different “Rudy” and “Maria” were associated
with Fansler’s drug enterprise.
2
Additional delay resulted from defense continuances.
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B. Use of Successor Judge
Appellants’ second claim is that they should receive a new
trial because a second judge—and not their original trial
judge—presided over post-trial motions and sentencing. This claim
has no merit because Federal Rule of Criminal Procedure 25(b)
expressly authorizes successor judges where the original trial
judge cannot perform post-trial duties.
C. Ineffective Assistance of Counsel
For their third claim, Appellants argue that this Court should
order a new trial because they received ineffective assistance of
counsel. We decline to address this issue on direct review. We
“resolve claims of inadequate representation on direct appeal only
in rare cases where the record allow[s] us to evaluate fairly the
merits of the claim.” United States v. Sanchez-Pena, 336 F.3d 431,
445 (5th Cir. 2003). This is not such a rare case. The issue was
not fully litigated below: no evidentiary hearing was held; the
documentary evidence is one-sided; and the district court did not
make findings of fact or otherwise address Appellants’ claims on
the merits. In short, the record is insufficiently developed for
us to resolve Appellants’ ineffectiveness claims at this time.3
3
Appellants point out that the district court—in the course
of dismissing Appellants’ motions for new trial for lack of
jurisdiction—opined that Appellants made “a compelling argument
for a claim of ineffective assistance.” This does not change our
view that the record is inadequate for resolving the claim on
direct review. Whether or not Appellants made a compelling prima
facie argument for ineffective assistance, the underdeveloped
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D. Sufficiency
Appellants’ fourth claim is that the Government presented
insufficient evidence to prove that they conspired to commit an
offense under 18 U.S.C. § 924(c)(1)(A). That statute prohibits
“firearm possession that furthers, advances, or helps forward [a]
drug trafficking offense.” United States v. Ceballos-Torres, 218
F.3d 409, 415 (5th Cir. 2000). Our standard of review dictates
affirmance unless no rational trier of fact could have found
Appellants guilty of the offense. See, e.g., United States v.
Webster, 421 F.3d 308, 311 (5th Cir. 2005).
Appellants contend that the evidence is insufficient because
the Government never proved “that either Appellant ever possessed
a firearm.” This argument fails. The Government was not required
to prove that Appellants themselves possessed a firearm since it
charged them with conspiracy to violate the relevant statute. See
United States v. Dean, 59 F.3d 1479, 1489 (5th Cir. 1995) (holding
that a defendant may “be convicted under section 924(c) based on a
co-conspirator’s possession of a weapon during a drug trafficking
crime” so long as that possession was foreseeable). As explored
below, proof at trial showed that at least two of Appellants’
coconspirators foreseeably possessed firearms.
Appellants also charge that the Government failed to prove
nature of the record does not permit us to finally resolve it on
direct review.
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that any firearms were connected to drug trafficking. We disagree.
The Government presented evidence showing that federal agents found
a large cache of firearms at Fansler’s residence. Those firearms
were found along with paperwork related to the drug-running
conspiracy and $525,000 in cash. Additionally, one of Appellants’
drug-smugglers, Dennis Jackson, testified that he smuggled firearms
into Mexico on multiple occasions. Before one trip to Mexico,
Jackson picked up firearms from Appellants’ property.
The Government also presented evidence showing that smuggled
firearms commonly are used in connection with drug trafficking. A
federal agent testified at trial that drug smugglers often use
firearms to “buy protection for the people involved in drug
trafficking, including growers.” The Government also adduced
testimony that smuggled firearms frequently are used “as a trade
and barter in lieu of money for narcotics.” The Supreme Court has
held that “using a firearm in a guns-for-drugs trade” shows a
sufficient nexus between firearms and drug trafficking to warrant
conviction under section 924(c). Smith v. United States, 508 U.S.
223, 236 (1993).
The jury rationally could have concluded based on the evidence
presented that Appellants conspired to use firearms to further,
advance, or help forward a drug trafficking offense. For these
reasons, we affirm Appellants’ convictions.
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E. Firearm Enhancement
As to sentencing, Appellants argue that the district court
incorrectly enhanced their sentences pursuant to U.S.S.G.
§ 2D1.1(b)(1). Section 2D1.1(b)(1) provides for a two-level
sentencing enhancement “if a dangerous weapon (including a firearm)
was possessed” in connection with a drug trafficking conspiracy.
This Court reviews interpretations of the Sentencing Guidelines de
novo and findings of fact connected to sentencing for clear error.
United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006).
In challenging the enhancement, Appellants essentially
reiterate their sufficiency claims, arguing (1) that they
themselves never possessed firearms and (2) that any possession was
unconnected to the drug-trafficking offense. As to the first
contention, “[a] defendant’s sentence may properly be enhanced
under U.S.S.G. § 2D1.1(b)(1) if the possession of a firearm by one
of his coconspirators was reasonably foreseeable.” United States
v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997). As explained above,
the Government showed that Appellants’ coconspirators possessed
firearms, and that possession was foreseeable under the
circumstances. See id. (holding that “ordinarily one
coconspirator’s use of a firearm will be foreseeable because
firearms are tools of the trade in drug conspiracies”) (internal
quotation marks omitted). The district court did not clearly err
in finding that Appellants’ coconspirators foreseeably possessed a
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firearm.
Appellants’ argument that any firearm possession was
unconnected to drug trafficking also fails. The Government showed
a sufficient nexus between the firearms and drug trafficking to
obtain a section 924(c) conviction. The showing required for a
section 2D1.1 sentencing enhancement is lower than that required
for a conviction under section 924(c). See U.S.S.G. § 2D1.1 cmt.,
n.3; see also ROGER W. HAINES ET AL., FEDERAL SENTENCING GUIDELINES HANDBOOK:
TEXT AND ANALYSIS, 510–15 (2006 ed). For the same reasons that a
rational jury probably could have found that Appellants’
coconspirators used the firearms to further, advance, or help
forward a drug trafficking offense, the judge did not clearly err
in determining that the firearms were connected to the offense for
the purposes of section 2D1.1.4
F. Statement of Reasons
In their second sentencing challenge, Appellants contend that
the district court insufficiently explained the reasons for their
sentences. Under 18 U.S.C. § 3553(c), a district court must
explain “the reasons for its imposition of a particular sentence.”
This requirement is satisfied when the district court “indicates
4
For the first time in their reply brief, Appellants argue
that the Guidelines prohibit a section 2D1.1(b)(1) enhancement
where the defendant is also convicted under section 924(c). We
do not address this issue because Appellants effectively waived
it by failing to raise it in their opening brief. See, e.g.,
United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
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the applicable guideline range and how it is chosen.” United
States v. Reyes-Lujos, 238 F.3d 305, 310 (5th Cir. 2001). The
court here did so. In its statements of reasons, the court
indicated the Guideline range as to each count. It also stated
that it was “adopt[ing] the presentence report and guideline
applications.” Id.
Appellants argue, however, that the district court should have
provided the additional, more thorough articulation required for
non-Guideline sentences since it sentenced them below their
Guideline ranges. See Smith, 440 F.3d at 707. Assuming that the
district court insufficiently articulated its reasoning for giving
Appellants a sentence lower than their Guideline ranges, any error
did not prejudice Appellants.
Finally, Appellants complain that the district court failed to
explicitly rule on their specific requests for downward departures
before it gave them sentences below their Guideline ranges. This
argument overlooks that this Court ordinarily has no jurisdiction
to review a court’s refusal to depart downwardly. See United
States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999).5
The jurisdictional bar applies even where the district court
responds to a request for downward departure with a “summary denial
5
The exception, not relevant here, is where the defendant
points to something in the record indicating that the district
court held an erroneous belief that it lacked the authority to
depart. Valencia-Gonzales, 172 F.3d at 346.
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without explanation” or with an implicit denial by imposing a
Guideline sentence. Id.; United States v. Alcala, 165 Fed. App’x.
333, 334 (5th Cir. Jan. 31, 2006) (unpublished). Here, the court
implicitly denied Appellants’ particularized departure requests by
imposing a sentence based on its own departure grounds. We have no
jurisdiction to review Appellants’ apparent claim that the court
should have departed further. See United States v. Alvarez, 51
F.3d 36, 40–41 (5th Cir. 1999). In conclusion, Appellants’
sentencing challenges fail.
For the reasons above, Appellants’ convictions and sentences
are AFFIRMED.
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