State of Tennessee v. Jose Guadalupe Frausto-Magallanes ( 2021 )

11/12/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 14, 2021
STATE OF TENNESSEE v. JOSE GAUDALUPE FRAUSTO-
MAGALLANES
Appeal from the Criminal Court for Davidson County
No. 2019-D-2694 Cheryl A. Blackburn, Judge
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No. M2020-01450-CCA-R3-CD
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Defendant, Jose Guadalupe Frausto-Magallanes, pled guilty to possession with intent to
sell more than fifteen grams of heroin with an agreed sentence length of eight years as a
Range I standard offender with the trial court to determine the manner of service. The trial
court ordered Defendant to serve his entire eight-year sentence in the Department of
Correction. On appeal, Defendant argues that the trial court erred by ordering him to serve
his sentence in confinement. Following our review of the entire record and the parties’
briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.
Timothy Carter, Nashville, Tennessee, for the appellant, Jose Guadalupe Frausto-
Magallanes.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Mindy Morris,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
This case arises from surveillance by law enforcement of Defendant and his co-
defendant, Kevin Shaw, and execution of a search warrant during which Defendant and
Mr. Shaw were found to be in possession of approximately 2 kilograms (2,000 grams) of
heroin and 45 grams of marijuana, along with other items.
FACTUAL AND PROCEDURAL BACKGROUND
Initially, we point out that Defendant has failed to include in the appellate record
the transcript of the guilty plea submission hearing, in which the State would have
presented the factual basis for the plea. When a record does not include a transcript of the
guilty plea hearing, this court should determine “on a case-by-case basis whether the record
is sufficient for a meaningful review under the standard adopted in State v. Bise, 380
S.W.3d 682, 708 (Tenn. 2012).” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). We
conclude that the testimony and exhibits, including the presentence report, introduced into
evidence at the sentencing hearing provide us with sufficient information for appellate
review.
A Davidson County grand jury returned an indictment against Defendant charging
him with one count of possession with intent to deliver more than 150 grams of heroin, a
Class A felony. The following statement of facts, which was gleaned from a case summary
as provided by the Metropolitan Nashville Police Department, is contained in the
presentence report that was introduced as an exhibit at the sentencing hearing:
Count 1, possession with intent of heroin over 15 grams[.] “During
the month of July 2019, Detective Gbewa Mustapha was contacted
by a reliable confidential informant (CI) about an unknown Hispanic
male and unknown black males selling heroin. The CI identified one
of the black males as Kevin Shaw with a residential address of 1129
Ransom Way. The CI stated that the Hispanic male showed him on
his phone of what appeared to be a kilo of heroin for sale for $52,000.
The Hispanic male gave a middle man a sample of 2 grams of heroin
to give the CI which was turned over to Detective Mustapha. The
middle man told the CI that the Hispanic male had 9 kilograms that
he wanted to sell. The CI provided the middle man’s phone number
to Detective Mustapha. Detective Mustapha was then able to
confirm the unknown Hispanic male’s phone number.
Detectives set up surveillance on 1129 Ransom Way on 07/22/2019.
Shaw relayed information to the buyers that he was leaving for work
in Green Hills and on the way home. Shaw also stated that the heroin
was up the street, and someone was bringing it to him when he got
home. GPS surveillance showed that the unknown Hispanic male’s
phone number tracked to 4161 Apache Trail. The phone number
was tracked leaving Apache Trail and traveling to 1129 Ransom
Way. Detectives observed Shaw and the Hispanic male coming and
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going from the residence. The CI contacted Detective Mustapha a
short time later and stated the buy was set up for the next day at 0600
hours.
The CI provided detectives with a photo that showed a kilo of heroin
wrapped up on a scale and another kilo on a table. Surveillance units
observed the Hispanic male leave the residence in a vehicle
registered to Refugia Hervert Hernandez residing at 4161 Apache
Trail. Hernandez was followed to that location, and he used a key
to enter the residence.
On 07/23/2019 at approximately 0509 hours, Detective Mustapha
obtained a search warrant for 1129 Ransom Way. A copy of the
search warrant is contained with the case file.
On 07/23/2019 MNPD surveillance units set up on 4161 Apache
Trail and 1129 Ransom Way. A Hispanic male later identified as
[Defendant] was observed leaving 1129 Apache Trail in a white van
and traveling to 1129 Ransom Way. Once at that location
[Defendant] exited the van, and he entered the residence. The CI
made contact with Detective Mustapha and stated the deal was
happening. [Defendant] and Shaw were observed on the porch of
the residence, and the take down signal was given, and they were
detained.
Recovered pursuant to the execution of the search warrant were
approximately 2 kilos of heroin, approximately 45 grams of
marijuana, 23 THC vape pens, a digital scale, vacuumed seal bags,
4 cell phones, and $503.00 from the person [Defendant].
Detectives Mirandized Shaw who stated that he was trying to make
money so he could buy his kids some school clothes. Shaw stated
that the marijuana was his, but the heroin belonged to [Defendant].
Detective[s] Mirandized [Defendant] in Spanish, and he stated that
he received heroin from another Hispanic male and was supposed to
sell it for $36,000.00 a kilo and bring the money back to the other
Hispanic male. Detective Mustapha charged [Defendant] with the
above stated offense and he was transported to booking.[”]
Defendant pled guilty to possession with intent to sell more than 15 grams of heroin
with an agreed sentence of eight years as a Range I standard offender with the trial court
to determine the manner of service.
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Sentencing Hearing
Detective Gbewa Mustapha’s testimony at the sentencing hearing was similar to that
of the case summary contained in the presentence report. He said that he received
information from a CI in July 2019 about some individuals who were trying to sell 2
kilograms of heroin. The CI provided Detective Mustapha with telephone numbers and
other information. The CI said that the individuals had a total of 7 kilograms of heroin, but
“they wanted to sell these first two off first.” The CI provided Detective Mustapha with a
sample of the drugs, which field-tested positive for heroin.
Detective Mustapha explained that a “ping order” was obtained for Defendant’s
phone number, and GPS surveillance revealed that Defendant went from his residence on
Apache Trail “to the deal location on the day prior to the deal, which was the - - I believe
was the 22nd of July.” Detective Mustapha testified that both GPS surveillance and physical
surveillance “lined up the pings along with [Defendant] and the vehicle that we believed
that he was using.” Detective Mustapha further testified: “On the date of the 22nd, we went
back and forth about how much it was going to be for the kilo and where it was going to
be and when it was going to take place. The discussion was that the kilo was going to be
[$]52,000 per kilo.” The transaction was supposed to take place the following morning,
July 23, 2019.
Detective Mustapha testified that on the morning of July 23, 2019, there was
“physical surveillance” at Defendant’s residence and at the “deal location.” Defendant was
observed leaving his residence and traveling by van to the deal location, and he walked
inside the residence. At that point, at search warrant was executed at the residence, and
officers recovered approximately 1,990 grams of heroin. Detective Mustapha testified that
Defendant provided some information about where he obtained the heroin and how he got
involved in selling it. He also provided information about his co-defendant’s involvement.
Detective Mustapha noted that Defendant was the initial “target” of the investigation.
Defendant testified that if released from custody, he would live with Michael Valdez
on Apache Trail, and he planned to work for Ricardo Morrales painting and installing
drywall. Defendant thought that he could also work a second job through Mr. Valdez who
owned a hardwood flooring company. Defendant testified that he had a vehicle and a valid
driver’s license. He said that he had several cousins who lived in Nashville and owned
painting companies, and he had a good relationship with them. Defendant testified that
most of his family members lived in Texas, including his three daughters.
Defendant testified that he had been in custody for approximately four months and
had completed the New Avenues program. He had also participated in SAVE, a domestic
violence program. Defendant said that he participated in the program in order to “be a
better person to my family, my daughters, to my community, for myself.” Defendant
testified that he had high blood pressure, and he took several medications for hypertension
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and high cholesterol. He said that the hypertension medication caused some fluid buildup
that bothered him. Defendant testified that he tested positive for COVID-19 while in
custody, and it was sometimes hard for him to breathe.
Defendant testified that he had completed a drug boot camp program during his
previous incarceration. He was released and completed parole but began using cocaine
again after approximately three years. Defendant said that he last used drugs on July 22,
2019, the day before his arrest. He indicated that he began selling heroin to support his
cocaine addiction. On cross-examination, Defendant testified that he had previously used
cocaine, marijuana, and alcohol. He said that he is a legal resident of the United States but
that he had an Immigration and Customs Enforcement (“ICE”) hold.
The trial court made the following findings at the conclusion of the sentencing
hearing and denied Defendant’s request for alternative sentencing:
The problem that [Defendant] has, in addition to the detainer on him,
is the fact that not too long ago, which would have been 2008-A-
735, he was - - pled guilty and sentenced to 11 years. He didn’t - -
he didn’t make probation. He served the sentence. And the reason
I know that is because it looks like - - and he got his diploma while
he was in custody at Turney Center. It looks like Turney Center is
where he served. So I am not exactly sure when he got out of
custody. But that was a large amount of cocaine. And now we have,
even though the plea is to a B felony, it’s clearly an A weight of
heroin, which is extremely dangerous, especially in this community.
We have a lot of problems with that.
So[,] he has already had one opportunity to straighten out his life
when he gets out after the cocaine, and then we have him - - even
though he was helpful to some extent with the police department, I
just cannot in good conscience put him back on an alternative
sentence. I mean, this is a huge amount of heroin. And when we are
talking about amount of - - the testimony from the detective was that
it was going to be - - they were discussing that it was $52,000 per
kilo and they had 7 kilos available but they were going to just try 2
kilos. I mean, this is a huge amount of heroin to be selling in this
community. So I cannot in good conscience let him have an
alternative sentence. And in addition to that, the federal authorities
want him for - - and this is a crime of moral turpitude, so the chances
of him surviving being placed on some alternative sentence and the
Federal Government letting him stay here is pretty slim to none.
It is from this judgment that Defendant now appeals.
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ANALYSIS
Defendant argues that the trial court erred by failing to follow the sentencing
guidelines and denying his request for alternative sentencing and ordering him to serve his
full eight-year sentence in confinement. The State asserts that trial court did not abuse its
discretion by denying alternative sentencing.
The trial court has broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.” State
v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
Supreme Court clarified that the “abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012). Under
the Sentencing Act, trial courts are to consider the following factors when determining a
defendant’s sentence and the appropriate combination of sentencing alternatives:
(1) The evidence, if any, received at the trial and the sentencing
hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing
alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating
and enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office
of the courts as to sentencing practices for similar offenses in
Tennessee; and
(7) Any statement the defendant wishes to make in the defendant's
own behalf about sentencing.
(8) The result of the validated risk and needs assessment conducted
by the department and contained in the presentence report.
T.C.A. § 40-35-210(b).
The trial court must state on the record the factors it considered and the reasons for
the ordered sentence. T.C.A. § 40-35-210(e); Bise, 380 S.W.3d at 706. “Mere inadequacy
in the articulation of the reasons for imposing a particular sentence . . . should not negate
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the presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
T.C.A. § 40-35-401, Sentencing Comm’n Cmts.
Under the revised Tennessee sentencing statutes, a defendant is no longer presumed
to be a favorable candidate for probation or any other alternative sentence, including
community corrections. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A.
§ 40-35-102(6)). Instead, the “advisory” sentencing guidelines provide that a defendant
“who is an especially mitigated or standard offender convicted of a Class C, D or E felony,
should be considered as a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary.” T.C.A. § 40-35-102(6). However, no criminal
defendant is automatically entitled to probation as a matter of law. State v. Davis, 940
S.W.2d 558, 559 (Tenn. 1997). Instead, the defendant bears the burden of proving his or
her suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing T.C.A.
§ 40-35-303(b)). The defendant must show that the alternative sentencing option imposed
“will subserve the ends of justice and the best interests of both the public and the
defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds,
State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).
When imposing a sentence of full confinement, the trial court should consider
whether:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an
effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant [.]
T.C.A. § 40-35-103(1)(A)-(C). In addition, the sentence imposed should be (1) “no greater
than that deserved for the offense committed,” and (2) “the least severe measure necessary
to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2),(4).
As pointed out by the trial court at the sentencing hearing, Defendant in this case
was not eligible for probation and could only be considered for community corrections
because he was convicted of possession with intent to sell more than 15 grams of heroin, a
Schedule I substance. See T.C.A. § 39-17-417 (b). “A defendant shall be eligible for
probation . . . if the sentence imposed upon the defendant is ten (10) years or less; however,
no defendant shall be eligible for probation under this chapter is convicted of a violation
of . . . § 39-17-417(b)[.]” T.C.A. § 40-35-303(a). However, “eligibility for probation is
not required for consideration of community corrections.” State v. Johnson, 342 S.W.3d
520, 523 (Tenn. Crim. App. 2009).
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To qualify for consideration for punishment in the community, an offender must
meet all of the following criteria:
(A) Persons who, without this option, would be incarcerated in a
correctional institution;
(B) Persons who are convicted of property-related, or drug-or
alcohol-related felony offenses or other felony offenses not
involving crimes against the person as provided in title 39, chapter
13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use
or possession of a weapon was not involved;
(E) Persons who do not demonstrate a present or past pattern of
behavior indicating violence; and
(F) Persons who do not demonstrate a pattern of committing violent
offenses.
T.C.A. § 40-36-106(a)(1). Under the “special needs” provision of the statute, an offender
who does not otherwise meet the criteria above “and who would be usually considered
unfit for probation due to histories of chronic alcohol or drug abuse or mental health
problems, but whose special needs are treatable and could be served best in the community”
may be considered eligible for a community corrections sentence. Id. § 40-36-106(c). In
making this determination, the trial court must first find that the defendant is eligible for
probation. State v. Grigsby, 957 S.W.2d 541, 546-47 (Tenn. Crim. App. 1997) (citations
omitted).
Because he was convicted of a Class B felony, Defendant in this case was not
considered to be a favorable candidate for any form of alternative sentencing, including
community corrections. He was also not eligible for community corrections under the
“special needs” provision of the statute because he is not eligible for probation.
The record supports the trial court’s denial of alternative sentencing. It appears from
the record that the trial court denied Defendant’s request for alternative sentencing on the
fact that Defendant has a long history of criminal conduct, to avoid depreciating the
seriousness of the offense, and that measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to Defendant. T.C.A. § 40-35-103(A)-
(C). Defendant admitted that he has a long history of marijuana and cocaine use, which
supports a finding that he has a long history of criminal conduct. Also, as noted above,
Defendant was convicted in 2008 for the sale of more than 0.5 grams of cocaine. Although
he completed his sentence, including a drug boot camp program, and he completed his
parole, Defendant began using drugs again and sold drugs in this case. We note that
although Defendant pled guilty to possession with intent to sell more than fifteen grams of
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heroin, he was originally charged with possession with intent to deliver more than 150
grams of heroin, which the trial court noted was a huge amount of heroin to be selling in
the community. At the sentencing hearing, Detective Mustapha testified that
approximately 1,990 grams of heroin were actually recovered during the search of the
residence where Defendant was present. Detective Mustapha also testified that the CI had
informed him that Defendant and his co-defendant had a total of seven kilograms (7,000
grams) of heroin to sell. A trial court may deny alternative sentencing if it finds that any
one of the factors found in Tennessee Code Annotated section 40-35-103 apply. State v.
Christopher Allen, No. W2016-00505-CCA-R3-CD, 2017 WL 764552, at *4 (Tenn. Crim.
App. Feb. 24, 2017); State v. John Anthony Garrett, No. E2012-01898-CCA-R3-CD, 2013
WL 5373156, at *4 (Tenn. Crim. App. Sept. 23, 2013).
We conclude that the trial court in this case properly considered the relevant
purposes and principles of the sentencing statutes and ordered Defendant to serve his eight-
year sentence for possession with intent to sell more than 15 grams of heroin in
confinement. Defendant is not entitled to relief on this issue.
CONCLUSION
Based on the foregoing analysis, we affirm the judgment of the trial court.
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JILL BARTEE AYERS, JUDGE
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