United States v. Leocadio Carrillo-Gonzales

Case: 15-50156 Document: 00513316205 Page: 1 Date Filed: 12/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50156 FILED
Summary Calendar December 21, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LEOCADIO CARRILLO-GONZALES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-344
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Leocadio Carrillo-Gonzales (Carrillo) appeals his jury trial conviction
and 210-month sentence for conspiracy to distribute and to possess with intent
to distribute 50 grams or more of actual methamphetamine. See 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A), 846. We affirm.
We reject the contention that reversal is required because there was
insufficient evidence to show that Carrillo had the requisite knowledge of the
illegal agreement. To convict, the Government was required to prove beyond
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50156
a reasonable doubt that (1) an agreement existed between two or more persons
to possess the controlled substance with the intent to distribute it, (2) Carrillo
knew of that agreement, (3) he voluntarily participated in that agreement, and
(4) the conspiracy involved at least the amount of the substance proscribed by
statute. See United States v. DeLeon, 247 F.3d 593, 596 (5th Cir. 2001); see
also Jackson v. Virginia, 443 U.S. 307, 318 (1979). Reviewing de novo, we view
the evidence “in the light most favorable to the verdict” and “draw[ ] all
reasonable inferences from the evidence to support the verdict.” United States
v. Myers, 104 F.3d 76, 78 (5th Cir. 1997).
Notwithstanding his denials, a reasonable jury could infer from the
evidence that Carrillo knew of the conspiracy and participated in it. See United
States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997). Two witnesses testified
that Carrillo and Maria Hernandez, a co-conspirator, removed six packages of
methamphetamine from the back seat of Carrillo’s automobile and transferred
them to an informant working for the Drug Enforcement Agency. Also, a third
co-conspirator testified that Carrillo and Hernandez had transported narcotics
for him previously. This evidence, viewed most favorably to the verdict, was
sufficient to convict. See Mulderig, 120 F.3d at 546; Myers, 104 F.3d at 78.
We reject also Carrillo’s claim that reversal is required because the
district court admitted evidence—a laboratory report about the contents of the
packages involved in the offense—in violation of the Confrontation Clause of
the Sixth Amendment. Before ruling on the Government’s request to have the
laboratory report received into evidence, the district court asked whether
Carrillo opposed the request. Defense counsel said no. Thus, if it was error to
admit the report, the error arguably was invited by the defense. See United
States v. Delgado, 672 F.3d 320, 339 (5th Cir. 2012) (en banc).
But, for the reasons given below, Carrillo cannot prevail even if this were
an instance of forfeited error subject to review for plain error. To succeed on
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plain error review, Carrillo must show (1) a forfeited error (2) that is clear or
obvious and (3) that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). We assume, without deciding, that Carrillo has met
these three prongs of plain error review. See Crawford v. Washington, 541 U.S.
36, 68-69 (2004); Bullcoming v. New Mexico, 131 S. Ct. 2705, 2716-17 (2011);
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). However, we
will exercise our “discretion to remedy the error” only if “the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.”
Puckett, 556 U.S. at 135 (internal quotation marks, bracketing, and citation
omitted). Such discretion “should be employed in those circumstances in which
a miscarriage of justice would otherwise result.” United States v. Escalante-
Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc) (internal quotation marks
and citation omitted).
Carrillo does not argue that a miscarriage of justice would result if we
did not exercise our discretion to remedy the error. See United States v.
Andaverde-Tinoco, 741 F.3d 509, 522 (5th Cir. 2013); United States v.
Williams, 620 F.3d 483, 496 (5th Cir. 2010). Moreover, Carrillo made no effort
at trial to exclude or contradict an agent’s testimony about the laboratory
findings, his counsel later stated there was no objection to the report’s
admission, and he made no argument that the findings were inaccurate or did
not satisfy the Government’s burden of proof. Under these circumstances, we
decline to exercise our discretion to correct any error. See Johnson v. United
States, 520 U.S. 461, 470 (1997); Andaverde-Tinoco, 741 F.3d at 524.
AFFIRMED.
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