United States v. Gainer

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 2, 2006
Charles R. Fulbruge III
Clerk
No. 04-41695
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RHONDA JEAN GAINER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1452-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
A jury convicted Rhonda Jean Gainer of possession with intent
to distribute less than 50 kilograms of marijuana. The district
court refused a downward departure and sentenced Gainer to 27
months of imprisonment. Gainer appeals.
Gainer contends for the first time on appeal that 21 U.S.C.
§ 841 is facially unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). She concedes that her argument is
foreclosed by United States v. Slaughter, 238 F.3d 580, 582 (5th
*
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this opinion should not be published and is not precedent except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. 04-41695
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Cir. 2000) (holding that Apprendi did not render § 841
unconstitutional). Gainer raises the argument only to preserve it
for possible future review; it provides no basis for relief.
Gainer contends that the evidence was insufficient to prove
she knew marijuana was concealed in the van she owned and was
driving at the time the marijuana was discovered. The
circumstantial evidence, viewed with its reasonable inferences in
a light favorable to the verdict, supported the jury’s conclusion
that Gainer was aware of the concealed marijuana. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The evidence included Gainer’s
dubious explanation for her almost 4000-mile round trip from
Peoria, Illinois, to Guadalajara, Mexico, over the space of just a
few days, and substantial and obvious alterations made to the van
made in order to accommodate the marijuana. See United States v.
Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002) (incredible
explanations); United States v. Ortega Reyna, 148 F.3d 540, 544
(5th Cir. 1998) (obvious alterations). Because the evidence was
sufficient to establish her guilty knowledge, her conviction is
affirmed.
Gainer contends that her sentence was based on an unproven
drug quantity and imposed under mandatory Sentencing Guidelines in
violation of the Sixth Amendment and United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005). Gainer failed to raise these
challenges in the district court; review is for plain error. See
United States v. Cruz, 418 F.3d 481, 483 (5th Cir. 2005). We need
No. 04-41695
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not address whether there was plain Sixth Amendment error with
respect to drug quantity, because we find that, in light of Booker,
the district court committed an obvious “Fanfan” error by
sentencing Gainer under mandatory Guidelines. See United States v.
Cruz, 418 F.3d 481, 484 (5th Cir. 2005); United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733; see also Booker, 125 S. Ct.
at 756-57 (rendering Guidelines advisory).
Gainer has demonstrated a sufficient probability that the
district court would have imposed a lesser sentence under advisory
Guidelines. See Cruz, 418 F.3d at 485. In denying a downward
departure, the district court agreed with Gainer that her family
circumstances were “unusual” and “certainly serious,” and the court
expressed its compassion for her family. The record suggests that
the court nonetheless felt it was precluded from granting a
departure by the guideline requirement that the family
circumstances be “exceptional.” See U.S.S.G. §5K2.0(a)(4). In
addition, the sentence at the absolute minimum of the guideline
range supports an argument that the district court would have
imposed a lesser sentence but for mandatory guideline restrictions.
See United States v. Rodriguez-Gutierrez, 428 F.3d 201, 205 (5th
Cir. 2005).
Accordingly, we vacate the sentence and remand for
resentencing under advisory Guidelines. See Cruz, 418 F.3d at 485(finding plain Fanfan error where district court imposed the
minimum sentence and denied a downward departure while explaining
No. 04-41695
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that to depart the court would have “to deviate from the
impositions” of the Guidelines). We “leave to the discretion of
the district court” whether to grant a downward departure or to
reassess the significance of drug-quantity evidence. See United
States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING