United States v. Garza ( 2000 )

No. 99-50502
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50502
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
REYNALDO GARZA; J. GUADALUPE
GUTIERREZ-SANCHEZ; JUAN GUTIERREZ-GUTIERREZ,
also known as Carlos,
Defendants-Appellants.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. A-98-CR-71-1-JN
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April 12, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Reynaldo Garza and J. Guadalupe Gutierrez-Sanchez challenge
their convictions, and Juan Gutierrez-Gutierrez and Gutierrez-
Sanchez challenge the sentences imposed upon them after judgment
rendered pursuant to their jury-trial convictions for conspiracy to
possess with intent to distribute illegal narcotics and for the
substantive count of possession of cocaine with intent to
distribute.
*
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that this opinion should not be published and is not precedent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. 99-50502
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Garza argues that the district court erred in denying his pre-
trial motion to suppress evidence of marijuana seized from his
residence in a search conducted pursuant to a warrant. Because
Garza challenges the sufficiency of the affidavit underlying the
warrant, and because the affidavit clearly contained sufficient
detail from which a reasonable officer could rely on it, Garza must
establish by a preponderance of the evidence that any
misrepresentations in the warrant were made “intentionally or with
reckless disregard for the truth.” United States v. Alvarez, 127
F.3d 372, 373 (5th Cir. 1997). Garza failed to produce evidence to
show bad faith by the affiants in securing the warrant, thus we
conclude that the district court did not err in denying Garza’s
pre-trial motion to suppress evidence seized pursuant to a search
warrant. See id.; see also United States v. Cherna, 184 F.3d 403,
407-08 (5th Cir.), petition for cert. filed, 68 USLW 3391 (Dec. 7,
1999).
Garza also argues that the district court abused its
discretion at trial by overruling objections, made pursuant to
FED. R. EVID. 403 and 404(b), to the admission of (1) testimony of
Government informant Mark Edward Korn that the witness and Garza
had previously been engaged in the drug business together; (2)
Korn’s testimony that Garza had been running drugs to Chicago; (3)
Korn’s testimony that Garza was working with a large drug cartel
located in Mexico; (4) tape recorded conversations in which Garza
stated that he had threatened a woman who stored drugs for him; (5)
tape recorded conversations in which Garza described transporting
large amounts of contraband; and (6) evidence that marijuana was
No. 99-50502
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seized from Garza’s residence after his arrest. The marijuana
found at Garza’s residence, testimony regarding the cartel with
which he worked, and tape-recorded conversations regarding
transportation of contraband and threats made against members of
his organization were all relevant and intrinsic to the charges for
which he was tried. See United States v. Cortinas, 142 F.3d 242,
248 (5th Cir. 1998); United States v. Maceo, 947 F.2d 1191, 1198-99
(5th Cir. 1991). Korn’s testimony that Garza dealt drugs with Korn
in the past, long before the events of the instant conspiracy, were
relevant to show his confidential relationship with Korn. See
United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992). To the
extent the testimony concerned an extrinsic crime, it was
nonetheless admissible as it was relevant to issues other than
Garza’s character, and its probative value outweighed its
prejudicial effect. See United States v. Misher, 99 F.3d 664, 670
(5th Cir. 1996); United States v. Beechum, 582 F.2d 898, 911 (5th
Cir. 1978) (en banc).
The evidence, with all credibility determinations and
reasonable inferences resolved in favor of the verdict, was
sufficient to convict Gutierrez-Sanchez of both conspiracy and the
substantive drug trafficking offense. See United States v.
Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). United States v.
Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).
Gutierrez-Sanchez and Gutierrez-Gutierrez argue that the
district court committed clear error in basing their sentences on
12 kilograms of cocaine instead of the two kilograms that the trial
testimony revealed that they delivered. The Government argues that
No. 99-50502
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the two men promised Garza that they would deliver an additional 10
kilograms of cocaine. Neither Gutierrez-Sanchez nor Gutierrez-
Gutierrez presented any evidence to contradict the evidence,
testified to by Korn at trial and adopted by the Presentencing
Report (PSR), that the two men promised to deliver additional
cocaine to Garza. See United States v. Angulo, 927 F.2d 202, 205
(5th Cir. 1991)(defendants have burden of showing that information
relied upon at sentencing is “materially untrue, inaccurate or
unreliable"). As the delivery was interrupted only by the arrest
of the defendants, Gutierrez-Sanchez and Gutierrez-Gutierrez were
responsible for any undelivered cocaine. See U.S.S.G. § 2D1.1,
comment. (n. 12). It was thus not clear error for the district
court to hold Gutierrez-Sanchez and Gutierrez-Gutierrez responsible
for more cocaine than that which they actually delivered.
We have not been able to find references in the transcript to
the specific figure of 10 kilograms of cocaine, nor does the PSR
explain how the 10 kilogram quantity was derived. The trial
testimony does, however, refer to Garza’s expectation that
Gutierrez-Gutierrez and Gutierrez-Sanchez were to have delivered
1,000 pounds of cocaine; the testimony also showed that Garza told
Korn that his contacts were to bring him the additional cocaine --
an amount considerably greater than 10 kilograms. Thus, the
district court did not err in attributing an additional 10
kilograms of cocaine to Gutierrez-Sanchez and Gutierrez-Gutierrez.
AFFIRMED.