United States v. Rodriguez ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 28, 2007
No. 06-40863
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CAESAR A RODRIGUEZ; CONCEPCION A ACOSTA
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-522-1
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
Caesar A. Rodriguez and Concepcion A. Acosta appeal their convictions
and sentences for possession with intent to distribute more than 1000 kilograms
of marijuana and aiding and abetting. They argue that their statements should
have been suppressed because there was an unreasonable delay between their
arrest at 1 a.m. on a Saturday and their initial appearance before a magistrate
judge on the following Tuesday. Although, shortly after his arrest, Rodriguez
*
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should not be published and is not precedent except under the limited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. 06-40863
made inconsistent statements which were used against him at trial, he has not
shown that he was prejudiced by the delay as he did not make any further
incriminating statements as a result of the delay. See United States v. Martin,
431 F.3d 846, 849 (5th Cir. 2005).
Acosta made an incriminating statement during an interview with
Investigator Ricardo Rivera on Monday during the delay between his arrest and
initial appearance. The district court denied Acosta’s motion to suppress his
statements based on a Fourth Amendment violation and determined that his
confession was given voluntarily after he was advised of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). The district court implicitly
determined that Acosta’s statement was not made as a result of threats or
coercion. Acosta testified at trial that police officers tried to wear him down in
order to elicit damaging statements. Rivera and Officer Carlos Mireles testified
that Acosta appeared to be in good health, alert, and awake and that he did not
complain of heart related symptoms or any other medical problems. Rivera
testified at trial that the initial appearance did not take place on Monday
because he was still investigating the case and preparing the complaint against
Rodriguez and Acosta on Monday. Because Acosta has not shown that the delay
had a coercive effect on his confession or that there was a specific causal
connection between the delay and his confession, he has not shown that the
district court erred in denying his motion to suppress his statement due to the
delay between his arrest and his initial appearance. See Martin, 431 F.3d at
849.
Rodriguez and Acosta argue that the evidence presented at trial was
insufficient to support their convictions. Rodriguez and Acosta made numerous
inconsistent statements, gave implausible explanations of their actions, and had
possession of large amounts of cash. Further, Acosta made a statement to
Rivera that he agreed to transport a load of 300 pounds of marijuana for Miguel
Centenio and was to be paid $28,000. The actual quantity of marijuana hidden
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in the trailer was 2,196 kilograms (4,831 pounds). The large quantity and value
of the marijuana ($3 million) are additional probative evidence that Rodriguez
and Acosta knew that the marijuana was hidden in the trailer. See United
States v. Villareal, 324 F.3d 319, 324 (5th Cir. 2003); United States v. Garcia-
Flores, 246 F.3d 451, 455 (5th Cir. 2001). Therefore, a review of the evidence
indicates that a reasonable trier of fact could have found that the evidence
established beyond a reasonable doubt that Rodriguez and Acosta possessed the
marijuana with intent to distribute it. See United States v. Mendoza, 226 F.3d
340, 343 (5th Cir. 2000).
Acosta argues that the district court erred in increasing his offense level
pursuant to U.S.S.G. § 3C1.1 based on a finding of obstruction of justice without
making the requisite finding that he committed perjury. Because Acosta did not
raise this issue in the district court, review is limited to plain error. See United
States v. Castillo, 430 F.3d 230, 241-42 (5th Cir. 2005). The district court
adopted the factual findings in the Presentence Report (PSR), including the
finding that in a post-arrest interview Acosta admitted that he agreed to
transport the marijuana for a fee and that at trial Acosta falsely testified that
he did not know that the marijuana was hidden in the trailer. Thus, the district
court found that Acosta obstructed justice by testifying falsely at trial that he did
not know that the marijuana was hidden in the trailer. See United States v.
Creech, 408 F.3d 264, 270-71 (5th Cir.), cert. denied, 126 S. Ct. 777 (2005).
Further, the district court’s adoption of the PSR’s findings demonstrates that the
district court did not base the enhancement solely on the jury’s verdict. See
United States v. Ricardo, 472 F.3d 277, 285-86 (5th Cir. 2006). Acosta has not
shown that the district court plainly erred in enhancing his sentence based on
its finding of obstruction of justice. See id.; see also United States v. Wild,
92 F.3d 304, 308 (5th Cir. 1996).
AFFIRMED.
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