United States v. Hester

Case: 21-40253 Document: 00516348677 Page: 1 Date Filed: 06/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 8, 2022
No. 21-40253
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Tyton Hester,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:18-CR-85-1
Before Stewart, Clement, and Elrod, Circuit Judges.
Per Curiam:*
Tyton Hester was one of several defendants charged in a multi-agency
effort to prevent the movement of illegal narcotics from Mexico. After a first
trial resulted in a hung jury, he was convicted following a second trial on
counts for drug conspiracy, possession of a firearm in furtherance of a drug
trafficking crime, and felon in possession of a firearm. Based on his criminal
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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history, the district court sentenced Hester within the guidelines range to life
imprisonment on count one and 120 months on count three, to be served
concurrently, and 60 months on count two, to be served consecutively.
On appeal, Hester disputes the sufficiency of the evidence on all three
counts, argues that the evidence seized from two locations should have been
suppressed, and challenges five different guidelines issues. For the following
reasons, we AFFIRM the judgment of the district court.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The parties dispute Hester’s role in the broader drug conspiracy but
agree on many facts related to his involvement. Namely, Hester bought
methamphetamine from Roel Astran in Dallas that he would sell with others
at his auto shop in Sherman, Mobile MechanicXX. Hester appears to have
been Astran’s only customer. Astran received methamphetamine from Jesus
Ordaz and Christian and Daniel Mendoza. Ordaz received
methamphetamine from the Mendozas and Jesus Davila Hernandez. Davila
had primary sources of supply in Mexico.
According to the Government, Hester would drive to Dallas, pick up
Astran at a motel or on the street, and head to a stash house. After receiving
money from Hester, Astran would go inside, buy drugs, and provide them to
Hester, who would bring them back to Mobile MechanicXX or to the
apartment that he shared with his common-law wife. At Mobile
MechanicXX, the drugs were reallocated for further distribution and placed
in safes to sell. Footage seized from surveillance cameras that Hester had an
associate install on the premises shows Hester and others breaking drugs
down, selling bags, recording transactions in ledgers, and inserting and
removing drugs and cash from the safes. The Government contends that
these individuals were Hester’s “workers,” but Hester maintains that
“[e]ach acted effectively as independent contractors, not subordinates.”
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The Sherman Police Department had received information indicating
that Hester was a drug dealer. Surveillance it carried out at Mobile
MechanicXX revealed come-and-go traffic, with people not staying long and
conducting transactions in the parking lot and through car windows.
Pursuant to warrants approved by a state magistrate, officers searched
Hester’s auto shop and apartment. At Mobile MechanicXX, they found,
among other items, a lockbox with several bags of methamphetamine totaling
35.65 grams, a shotgun engraved with Hester’s initials, GPS trackers, drug
ledgers, ammunition, a methamphetamine pipe, a marijuana pipe, rifle and
handgun cartridges, digital scales, safes, and the DVR from the security
cameras that Hester had installed. Meanwhile, at his apartment, they found
a loaded semi-automatic pistol, a semi-automatic handgun, drug ledgers,
digital scales, body armor, and a bag containing 343.6 grams of
methamphetamine.
A grand jury charged Hester and seven co-defendants in a second
superseding indictment with conspiracy to possess with the intent to
distribute methamphetamine under 21 U.S.C. § 846 (count one). It also
charged Hester with possession of a firearm in furtherance of a drug
trafficking crime under 18 U.S.C. § 924(c) (count two) and felon in
possession of a firearm under 18 U.S.C. § 922(g)(1) (count three). Hester
filed a motion to suppress evidence retrieved during the search of his
apartment, alleging that the officers lacked probable cause. The district court
denied the motion because it was untimely and, in any case, the warrant
would have been supported by probable cause and fallen under the good faith
exception. Hester’s first trial lasted approximately two weeks and resulted in
a conviction on count three and a hung jury on counts one and two. His
second trial lasted six days and resulted in a conviction on the two remaining
counts. Notably, in the second trial, the Government introduced the video
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footage of illicit activity in Hester’s auto shop that was captured by his own
surveillance cameras.
Following his conviction, the probation office prepared a pre-sentence
report (“PSR”). Hester’s base offense level, 34, was increased through a
series of sentencing enhancements and ended up at the guidelines maximum,
43. Since his criminal history category was V, this resulted in a guidelines
imprisonment range of life imprisonment. The district court ultimately
sentenced Hester to life imprisonment on count one and 120 months on
count three, to be served concurrently, and 60 months on count two, to be
served consecutively.
Hester timely appealed, (1) disputing the sufficiency of the evidence
on all three counts, (2) arguing that the evidence seized from both his
apartment and auto shop should have been suppressed, and (3) challenging
five different guidelines issues: the amount of drugs attributed to Hester in
calculating his base offense level and the sentencing enhancements for
obstruction of justice under U.S.S.G. § 3C1.1, importation under U.S.S.G.
§ 2D1.1(b)(5), maintaining a premises for distribution under U.S.S.G.
§ 2D1.1(b)(12), and serving as an organizer of a drug distribution enterprise
under U.S.S.G. § 3B1.1(a).
II. DISCUSSION
A. Sufficiency of the Evidence
This court gives “substantial deference to the jury verdict,” United
States v. Delgado, 672 F.3d 320, 330 (5th Cir. 2012) (en banc), viewing all
evidence and making all reasonable inferences in the light most favorable to
it. United States v. Rodriguez, 260 F.3d 416, 423 (5th Cir. 2001). Thus, we
affirm the verdict unless no rational jury could have found guilt beyond a rea-
sonable doubt. United States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014).
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On appeal, Hester argues that the evidence was insufficient to support
his convictions for the drug and firearms counts. However, he “faces an
imposing standard of review” that he cannot overcome. United States v.
Parekh, 926 F.2d 402, 405 (5th Cir. 1991).
i. Count 1: Conspiracy to Possess with Intent to Distribute
In order to convict a defendant of conspiracy to possess with the intent
to distribute under 21 U.S.C. § 846, there must be “proof of (1) an agreement
between two or more persons to violate the narcotics laws, (2) the
defendant’s knowledge of the agreement, and (3) the defendant’s voluntary
participation in the conspiracy.” United States v. Booker, 334 F.3d 406, 409
(5th Cir. 2003).
According to Hester, the evidence introduced is insufficient to satisfy
each element because the Government relies heavily on “speculation,
conjecture[,] and unreliable witnesses.” He emphasizes that the officers
found no drugs, guns, or “evidence of high living” on him when he was
arrested; that cooperating and testifying defendants had incentives to
exaggerate and fabricate against him; that he does not speak Spanish and
never had conversations with anyone in Mexico; and that the first jury hung
on this charge. However, such facts do not indicate that Hester did not satisfy
the elements of conspiracy based on his dealings in Sherman. The
Government produced ample evidence that could support his conviction,
including copious testimony reflecting that Hester agreed with two or more
persons to distribute methamphetamine, surveillance footage showing him
participating with two or more persons to distribute methamphetamine, and
the fruits of the searches of his auto shop and apartment. He has failed to
demonstrate that no rational jury could have found guilt beyond a reasonable
doubt.
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ii. Count 2: Possession of a Firearm in Furtherance of Drug Trafficking
A conviction for possession of a firearm in furtherance of a drug
trafficking crime under 18 U.S.C. § 924(c) requires both (1) the commission
of a drug offense and (2) the defendant’s knowing possession of a firearm in
furtherance of that offense. See United States v. Montes, 602 F.3d 381, 386
(5th Cir. 2010).
Hester contends that his conviction rests on the existence of three
weapons and that there is no evidence that he used them to protect drugs or
proceeds. Specifically, he argues that the shotgun found at Mobile
MechanicXX was simply stored there as a means of protecting the auto shop
from intruders, and that the two guns found in his apartment were weapons
for his wife’s personal protection. However, the fact that there were drug
ledgers found by the loaded pistol in his home office undercuts his defense,
as does the surveillance footage capturing Hester at Mobile MechanicXX in
possession of one of the weapons his wife ostensibly used for her own
personal protection. Hester’s wife and associates also testified that these
were his weapons. In other words, viewing the evidence in the light most
favorable to the jury verdict, a reasonable jury could determine that Hester
possessed a firearm in furtherance of his drug conspiracy offense.
iii. Count 3: Felon in Possession of a Firearm
A conviction for felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1) requires that “(1) the defendant was previously convicted of a
felony, (2) the defendant knowingly possessed a firearm, and (3) the firearm
traveled in or affected interstate commerce.” United States v. Huntsberry,
956 F.3d 270, 279 (5th Cir. 2020).
Hester lists an array of reasons that the evidence is insufficient to
satisfy the essential elements of this charge, including that he did not have a
weapon on him when he was arrested, others had access to Mobile
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MechanicXX where the shotgun was found, and none of his co-defendants
testified that he took a weapon for drug purchases or used one for
enforcement of sales. Once again, it is unclear how these facts undermine his
felon in possession conviction. The parties stipulated at trial that Hester was
a felon and knew of his status as a felon before the date alleged in the relevant
indictment, and the Government presented evidence that all three firearms
had traveled in or affected interstate commerce. That Hester did not have a
firearm on him when he was arrested, others had access to Mobile
MechanicXX where the shotgun was found, and none of his co-defendants
testified that he took or used a firearm for purchases or sales, among other
facts Hester raises, do not demonstrate that no rational jury could have found
guilt beyond a reasonable doubt.
In sum, the Government provided sufficient physical, video,
documentary, and testimonial evidence to support Hester’s convictions on
all three counts.
B. Suppression of the Evidence
In assessing a denial of a motion to suppress, this court reviews factual
findings for clear error and conclusions of law de novo. United States v. Bur-
gos-Coronado, 970 F.3d 613, 618 (5th Cir. 2020). Viewing the evidence in the
light most favorable to the prevailing party below, we affirm the district
court’s ruling “if there is any reasonable view of the evidence to support it.”
United States v. Freeman, 914 F.3d 337, 342 (5th Cir. 2019) (quoting United
States v. Ortiz, 781 F.3d 221, 226 (5th Cir. 2015)).
i. Search of Hester’s Apartment
According to Hester, the state court violated his Fourth Amendment
rights by authorizing the search of his apartment where two of three firearms
were found. He argues that the affidavit supporting the search of his apart-
ment relied heavily on information regarding surveillance of his auto shop,
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and that the only evidence supporting the search of the apartment specifically
derived from an informant whose information was stale. 1 The officers were
allegedly eager to search his apartment and lacked probable cause to do so,
and the good faith exception allegedly does not apply because of the officer’s
misrepresentations of current information regarding the apartment.
As Hester did not directly challenge the untimeliness of his motion to
suppress, we need not consider it on appeal. United States v. Seymour, 101 F.
App’x 967, 968 (5th Cir. 2004) (per curiam) (citing Yohey v. Collins, 985 F.2d
222, 224 (5th Cir. 1993)). However, we note the district court correctly ob-
served that a reasonable officer could have believed that there was probable
cause to support the affidavit and subsequent warrant in light of the ongoing
nature of the suspected drug activity, the direct testimony from a witness who
had consistently been inside Hester’s home, and the supporting investigation
by law enforcement. Moreover, it does not appear that probable cause was so
lacking as to “render official belief in its existence entirely unreasonable.”
United States v. Leon, 468 U.S. 897, 923 (1984) (quoting Brown v. Illinois,
422 U.S. 590, 610–11 (1975) (Powell, J., concurring in part)). Thus, the dis-
trict court took a reasonable view of the evidence in denying the motion to
suppress evidence obtained from Hester’s apartment.
1
Hester also observes that, “[o]ddly, it appears that the district court denied [his]
motion to suppress without reading the two warrants or two affidavits” and that “[a]
[c]ourt of [a]ppeals should not defer to a district court” in this circumstance. The
Government counters that Hester’s complaint derives from his own failure to attach them
to his motion when, as the movant, he bore the burden of showing that the searches
challenged were unconstitutional. The Government recited large swaths of the affidavit
before the district court, and the district court in turn discussed the affidavit and quoted
from it. In any event, this court has since granted a motion to supplement the record with
the warrant for the apartment search and associated affidavit.
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ii. Search of Hester’s Auto Shop
Hester concedes that his challenge to the search of Mobile
MechanicXX “was not preserved at trial” and “[t]he plain error standard
applies.” To prevail on plain error review, a defendant “must show that
(1) the district court erred, (2) the error was clear or obvious, (3) the error
affected his substantial rights, and (4) this court should exercise its discretion
to correct the error because ‘the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.’” United States v. Lewis,
796 F.3d 543, 546 (5th Cir. 2013) (quoting United States v. Escalante-Reyes,
689 F.3d 415, 419 (5th Cir. 2012) (en banc)). However, Hester does not ex-
plain how he satisfied each of the four plain error prongs. According to Hes-
ter, if this court grants the motion to supplement the record with the relevant
warrant and affidavit, it will see that the evidence listed did not establish
probable cause. He makes the same arguments that he made in the context of
the apartment search regarding the staleness of the evidence.
Our court denied Hester’s attempt to supplement the record with the
search warrant and supporting affidavit for the search of his auto shop be-
cause those documents were not before the district court. Thus, this claim is
unreviewable and must fail.
In sum, the district court did not err by declining to suppress evidence
obtained from the searches of Hester’s apartment and auto shop.
C. Guidelines Challenges
This court reviews the district court’s drug-quantity calculation for
clear error. United States v. Eustice, 952 F.3d 686, 690 (5th Cir. 2020). Mean-
while, this court “review[s] a district court’s interpretation or application of
the [g]uidelines de novo and its factual findings for clear error.” United States
v. Conner, 537 F.3d 480, 489 (5th Cir. 2008). “There is no clear error if the
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district court’s finding is plausible in light of the record as a whole.” United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (per curiam).
Hester makes five different challenges to the district court’s applica-
tion of the sentencing guidelines, each of which will be taken up in turn.
i. Base Offense Level
A district court may estimate drug quantity in calculating what is at-
tributable to a defendant for sentencing purposes. See United States v. Lee,
966 F.3d 310, 326–27 (5th Cir. 2020). However, the PSR must have a factual
basis for the attribution of drugs to a defendant. See United States v. Valles,
484 F.3d 745, 759 (5th Cir. 2007) (per curiam). “In a drug-trafficking case,
relevant conduct may include all acts and omissions ‘that were part of the
same course of conduct or common scheme or plan as the offense of convic-
tion.’” United States v. Barfield, 941 F.3d 757, 762 (5th Cir. 2019) (quoting
U.S.S.G. § 1B1.3).
According to Hester, there was no factual basis for the attribution of
his co-defendants’ drugs to him. In support of this assertion, he makes sev-
eral points that he has made elsewhere regarding the co-defendants’ lack of
credibility and incentives to fabricate about his role in the conspiracy, as well
as the difficulties in connecting their drug dealing to his own. However, as
the Government observes, Hester presented no evidence to suggest that the
district court “clearly erred” in adopting its findings. The narcotics at-
tributed to him are all of those seized in the searches of his apartment and
auto shop, as well as some of those seized from co-defendants he supplied.
Their drugs were “part of the same course of conduct or common scheme or
plan as the offense of conviction,” as required by the guidelines. The Gov-
ernment convincingly argues that over twice as many drugs could have been
attributed to Hester had the probation office included certain testimony and
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other searches in its calculation, so the district court’s reliance on the more
conservative calculation does not amount to clear error.
ii. Obstruction of Justice Enhancement
Under U.S.S.G. § 3C1.1, the district court can apply a two-level en-
hancement for obstruction of justice if the defendant “willfully obstructed or
impeded, or attempted to obstruct or impede,” investigation into his offense.
According to Hester, this court should hold that the paucity of evi-
dence was insufficient to attribute to him two anonymous handwritten notes
and a handwritten letter, which contained warnings like “IF YOU ARE
TALKING YOU AIN’T WALKIN’.” He explains that the PSR merely “as-
sumed” that he must have written the notes and letter, and that in any case
there was “not an attempt to impede justice.” However, the Government
directs us to specific lines that match specific facts demonstrating that only
Hester could be the author. Notably, it underscores that one of the notes ad-
dressed Hester’s associate Amy Lashley by name and stated that “I saw the
video that you made. I got your statement on deck” when Lashley (and only
Lashley) had secretly recorded a video of a conversation between herself and
Hester in cooperation with investigators. Moreover, lines such as “nothing
good ever comes out of working with or helping the Feds!!!” and “stick to
the script no matter what” undoubtedly reflect an attempt to impede justice.
Thus, the district court did not clearly err, as its application of the enhance-
ment was plausible considering the record.
iii. Importation Enhancement
Under U.S.S.G. § 2D1.1(b)(5), the district court can apply a two-level
enhancement for importation when the charged offense involves “the impor-
tation of amphetamine or methamphetamine[.]”
According to Hester, the district court failed to establish that Hester
knew the methamphetamine was imported. However, he acknowledges that
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he is aware of Fifth Circuit caselaw that indicates this enhancement applies
when the offense involved the importation of methamphetamine “even if the
defendant did not know that the methamphetamine was imported.” United
States v. Serfass, 684 F.3d 548, 554 (5th Cir. 2012). The record establishes
that Hester’s methamphetamine source was Astran, Astran received meth-
amphetamine from Davila, and Davila’s primary sources of supply were in
Mexico. Because Serfass is binding, Hester’s argument is foreclosed.
iv. Premises Enhancement
Under U.S.S.G § 2D1.1(b)(12), the district court can apply a two-level
enhancement “[i]f the defendant maintained a premises for the purpose of
manufacturing or distributing a controlled substance[.]”
Hester asserts that the evidence presented was insufficient to support
the application of the premises enhancement. Specifically, he argues that the
videos taken from his security cameras are inconclusive and “[a]t
best . . . show[] only incidental drug sales at the shop.” But multiple corrob-
orated statements and items seized at Mobile MechanicXX, among other ev-
idence, “show[] that Hester’s mechanic shop was the centerpiece of his
drug-dealing business,” as the district court held. Again, there is no clear er-
ror because this was “plausible in light of the record as a whole.” Juarez-
Duarte, 513 F.3d at 208.
v. Organizer Enhancement
Under U.S.S.G. § 3B1.1(a), the district court can apply a four-level
enhancement “[i]f the defendant was an organizer or leader of a criminal ac-
tivity that involved five or more participants or was otherwise extensive[.]”
Hester notes that his role in the drug distribution does not fit within
this provision, which considers whether he
exercise[d] . . . decision making authority, the nature of partic-
ipation in the commission of the offense, the recruitment of
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accomplices, the claimed right to a larger share of the fruits of
the crime, the degree of participation in planning or organizing
the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
U.S.S.G. § 3B1.1(a) Application Note 4. According to Hester, “[n]o one tes-
tified [that he] displayed these controlling behaviors[,]” and even if some fac-
tors point to leadership, this does not necessarily mean that he was a leader.
Meanwhile, the Government points to his position atop an organizational
chart found at the auto shop, testimony indicating that Hester was “in
charge” and “the boss,” and his provision of supplies for his workers, among
other evidence. Considering such evidence, the district court did not clearly
err in holding that Hester qualified for the organizer enhancement.
Therefore, the district court did not clearly err in its calculation of
Hester’s base offense level and its application of the challenged sentencing
enhancements.
III. CONCLUSION
In summary, for the foregoing reasons, we AFFIRM the judgment of
the district court.
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