United States v. Avila

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40336
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GILBERTO AVILA, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. C-01-CR-323-1
October 23, 2002
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
PER CURIAM:*
Defendant Gilberto Avila, Jr. appeals from the district
court's sentencing determination that his prior uncharged
marijuana offense was relevant in the base offense calculation
under U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 (2001).1 For the
*
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that this opinion should not be published and is not precedent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.
1
Avila was sentenced under the 2001 version of
Sentencing Guidelines, which is the current version.
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following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
On October 12, 2001, Gilberto Avila, Jr. ("Avila") drove a
Freightliner tractor/trailer to the border patrol checkpoint in
Sarita, Texas. He was joined by passenger Ismael Soza. During a
routine immigration stop, a drug-detecting dog alerted federal
agents to the presence of narcotics in Avila's trailer. A search
of the vehicle revealed 214 bundles of marijuana, weighing 905
kilograms in total. The bundles were wrapped with brown packing
tape and were hidden among boxes of limes and watermelons near
the front of the trailer. Avila agreed to cooperate with federal
authorities and negotiated a plea agreement.
Just about a year before, Avila had been involved in a
similar incident along the Mexico/Texas border. On October 28,
2000, Avila drove a Freightliner tractor/trailer to the border
patrol checkpoint in Falfurrias, Texas. A drug-detecting dog
directed agents to Avila's trailer, and a search revealed 67
bundles of marijuana, weighing 659 kilograms in total. The
marijuana was wrapped in brown contact paper and wallpaper and
hidden among boxes of watermelons near the front of the trailer.
Avila was indicted for the 2001 offense and pled guilty to
possession with intent to distribute 905 kilograms of marijuana
in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B) (2000). Before
the district court accepted Avila's plea, it advised Avila that
No. 02-40336
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his 2000 marijuana offense could be used as relevant conduct
during sentencing. The Presentence Report ("PSR") recommended a
base offense level of 32, counting as relevant 905 kilograms of
marijuana from the 2001 offense and 6591 kilograms of marijuana
from the uncharged 2000 offense. Avila objected to the inclusion
of the 2000 offense as relevant conduct. Ths district court
accepted Avila's stipulation to the facts in the PSR and heard
testimony of a federal agent regarding the 2000 offense. The
district court then adopted the PSR's finding that the 2000
offense constituted relevant conduct and sentenced Avila to 87
months' imprisonment followed by five years of supervised
release.
Avila appeals his sentence, claiming that the district court
erred in considering the 2000 offense relevant conduct under U.S.
SENTENCING GUIDELINES MANUAL § 1B1.3(a)(2) (2001). Avila argues that
the two offenses were not part of a "common scheme or plan" and
were not part of the "same course of conduct."
II. STANDARD OF REVIEW
We review a district court's application of the Sentencing
Guidelines de novo and the district court's findings of fact for
clear error. United States v. Jefferson, 258 F.3d 405, 413 (5th
1
Though the PSR incorrectly lists the amount of
marijuana from the 2000 offense as 695 kilograms, the PSR
properly calculated the offense level based on 659 kilograms and
the case agent testified during sentencing that the amount was
659 kilograms.
No. 02-40336
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Cir.), cert. denied, 122 S. Ct. 379 (2001). A district court's
finding as to what constitutes relevant conduct for purposes of
sentencing is a factual finding reviewed for clear error. United
States v. Ocana, 204 F.3d 585, 589 (5th Cir.), cert. denied, 121
S. Ct. 192 (2000).
A determination is clearly erroneous when, after a review of
the record, "the reviewing court is left with the 'definite and
firm conviction that a mistake has been committed.'" Jackson v.
OMI Corp., 245 F.3d 525, 528 (5th Cir. 2001) (quoting McAllister
v. United States, 348 U.S. 19, 20 (1954)). "If the district
court's account of the evidence is plausible . . . the court of
appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence
differently." Anderson v. City of Bessemer City, 470 U.S. 564,
573-74 (1985).
III. DISCUSSION
Arana challenges the base offense level used to calculate
his sentence, claiming his October 28, 2000 offense should not
have been considered "relevant conduct" under the Sentencing
Guidelines. First, he contends that the two events were not part
of a "common scheme or plan." Second, he argues that the two
events were not part of the "same course of conduct."
Under the Sentencing Guidelines, Avila's base offense level
depends on the amount of drugs involved in the offense. U.S.
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SENTENCING GUIDELINES MANUAL § 2D1.1 (2001). A district court may
include amounts from a prior uncharged drug offense if the
previous offense constitutes "relevant conduct" under § 1B1.3.
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 (2001); see also United
States v. Vital, 68 F.3d 114, 117 (5th Cir. 1995) ("It is well
established that a defendant's base offense level for the offense
of conviction must be determined on the basis of all 'relevant
conduct' as defined in U.S.S.G. § 1B1.3."). Relevant conduct
includes "all acts and omissions . . . that were part of the same
course of conduct or common scheme or plan as the offense of
conviction." U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(4) (2001).
The Commentary to the Sentencing Guidelines further defines
"common scheme or plan" and "same course of conduct."2 The
Commentary notes that "'[c]ommon scheme or plan' and 'same course
of conduct' are two closely related concepts." U.S. SENTENCING
GUIDELINES MANUAL § 1B1.3 cmt. n.9 (2001). For two offenses to be
part of a common scheme or plan, "they must be substantially
connected to each other by at least one common factor, such as
common victims, common accomplices, common purpose, or similar
modus operandi." U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 cmt. n.9(A)
(2001). Offenses are part of the same course of conduct if "they
2
The Commentary is given controlling weight if it is not
plainly erroneous or inconsistent with the Sentencing Guidelines.
United States v. Delgado-Nunez, 295 F.3d 494, 498 (5th Cir.
2002).
No. 02-40336
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are sufficiently connected or related to each other as to warrant
the conclusion that they are part of a single episode, spree, or
ongoing series of offenses." U.S. SENTENCING GUIDELINES MANUAL § 1B1.3
cmt. 9(B) (2001). Factors relevant to determining if the
offenses make up the same course of conduct are "the degree of
similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses"; "[w]hen
one of the above factors is absent, a stronger presence of at
least one of the other factors is required." Id.
We consider first whether the district court clearly erred
in finding that the two offenses were part of a common scheme or
plan. The Guidelines suggest that we look to factors such as
common victims, common accomplices, common purposes, or similar
modus operandi. In this case, Avila was an experienced truck
driver who twice transported large quantities of drugs from
Mexico to Texas. In both cases, Avila was transporting over one
thousand pounds of marijuana in a tractor/trailer, using
watermelons to evade detection. The marijuana was hidden among
the watermelons, near the front of the trailer, and was wrapped
in bricks. Avila was the driver both times; in 2001, he was
accompanied by a passenger. The two incidents took place in the
same area in Texas. Both occurred in October.
Assessing Avila's conduct using the factors set forth in the
Sentencing Guidelines, we find that district court did not
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clearly err in finding the two offenses to be part of a common
scheme or plan.3 The Guidelines require that the incidents be
"substantially connected to each other by at least one common
factor." U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 cmt. 9(A) (2001).
Here, Avila used a similar modus operandi in both 2000 and 2001:
he drove large quantities of marijuana from Mexico into Texas in
a Freightliner tractor/trailer and attempted to evade detection
using watermelons as a cover. See Powell, 124 F.3d at 665-66
(upholding a finding of a common scheme or plan when a defendant
used the same modus operandi to evade state and federal excise
taxes on gasoline). Though the district court did not make any
findings as to the victims or any particular criminal purpose,
the offenses share the general criminal purpose of transporting
large quantities of marijuana into the United States. The two
incidents occurred about a year apart in the same geographical
area. The many similarities between the two offenses, including
a nearly identical modus operandi, show that the district court
had sufficient evidence to conclude that the two offenses were
part of a common scheme or plan. See United States v. Anderson,
174 F.3d 515, 526-28 (5th Cir. 1999) (affirming that two offenses
were part of a common scheme or plan when they shared a common
3
"Particularly in drug cases, this circuit has broadly
defined what constitutes 'the same course of conduct' or 'common
scheme or plan.'" United States v. Bryant, 991 F.2d 171, 177
(5th Cir. 1993).
No. 02-40336
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criminal purpose and similar modus operandi).
Avila argues that under United States v. Wall, 180 F.3d 641(5th Cir. 1999), his marijuana offenses were not part of a common
scheme or plan. In Wall, we held that a series of three
marijuana offenses were not part of a common scheme or plan. See
180 F.3d at 645-46. The offenses were: (1) possession of 0.1
kilograms of marijuana, found in a car during a border stop in
Texas; (2) possession of 58 kilograms of marijuana, found in the
tires of a pick-up truck during a traffic stop in Arkansas; and
(3) possession of 20.8 kilograms of marijuana, found in the gas
tank of a pick-up truck during a border stop in Texas. Id. at
642-43. We found no common scheme or plan because the incidents
did not involve the same accomplices and they shared only "the
common general purpose of importing marijuana for distribution in
the United States." Id. at 645. We also found "insufficient
evidence of a distinctive modus operandi" because the incidents
involved different vehicles and different quantities of
marijuana. Id. This case is distinguishable from Hall because
of the evidence of Avila's modus operandi. In both incidents,
Avila drove the same type of vehicle containing over one thousand
pounds of marijuana and using a watermelon cover from Mexico to
Texas. Avila notes Wall's warning that two incidents are not
part of a common scheme or plan simply because both involve
marijuana. See id. at 646-47. In this case, however, Avila's
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two offenses share many similarities aside from drug type,
including a nearly identical modus operandi.
Avila also suggests that our holding in United States v.
Miller, 179 F.3d 961 (5th Cir. 1999), counsels against finding a
common scheme or plan.4 In Miller, we considered three incidents:
(1) a border stop where Miller was following a motor home
carrying 400 pounds of marijuana; (2) a traffic stop involving
Miller where 5 kilograms of cocaine were recovered; and (3)
Miller's sale of 2 kilograms of cocaine in a grocery store
parking lot. 179 F.3d at 962-63. We found Miller's offenses
were not part of a common scheme or plan because they "did not
involve common victims or accomplices, share similar modus
operandi, or serve a common purpose beyond the fact that they
were drug transactions." Id. at 966. Again, the present case is
distinguishable: Avila used the same modus operandi to transport
the same relative amount of the same drug from Mexico to Texas.5
The district court thus did not err in finding a common scheme or
plan.
4
Miller concerned the application of § 5C1.2 of the
Sentencing Guidelines, which also includes the term "relevant
conduct." 179 F.3d at 963-64. In Miller, we looked to our
§ 1B1.3 cases for guidance in defining "relevant conduct." Id.
at 964-65.
5
Avila reads Miller as requiring us to define modus
operandi narrowly. Miller only states, however, that we should
not broadly define the term "relevant conduct" as "any other drug
activity." 179 F.3d at 966 n.8.
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Because we uphold the district court's sentencing
determination based on the finding that the two incidents were
part of a common scheme or plan, we do not consider whether the
two incidents also qualify as part of the same course of conduct.
IV. CONCLUSION
For the foregoing reasons, the district court's sentencing
determination is AFFIRMED.