United States v. Olaya

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 21, 2007
Charles R. Fulbruge III
Clerk
No. 06-20376
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
JUAN OLAYA,
Defendant-Appellant
Appeal from the United States District Court For the Southern
District of Texas, Houston Division
4-91-CR-58-2
Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
In this direct criminal appeal, Juan Olaya challenges his
conviction and sentence for conspiracy and possession of cocaine.
We AFFIRM.
I.
On April 17, 1991, Juan Olaya (“Olaya”) was charged along with
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
four co-defendants in a two-count indictment with conspiring to
possess with intent to distribute in excess of five kilograms of
cocaine and possessing with intent to distribute in excess of five
kilograms of cocaine. A warrant for Olaya’s arrest was issued on
the date the indictment was returned. However, Olaya was not
arrested until more than thirteen years later, on November 24,
2004.
On March 31, 2005, Olaya filed a motion to dismiss the
indictment against him, arguing that his right to a speedy trial
under the Sixth Amendment of the United States Constitution had
been violated by the delay in bringing him to trial. The district
court acknowledged the lengthy delay between Olaya’s indictment and
trial, but concluded that because the facts did not support an
intentional delay or gross negligence on the part of the
Government, and because Olaya had not put forth any evidence that
the delay had prejudiced his defense, the motion would be denied:
THE COURT: The [search] efforts look like they
were reasonable, and unless there is some particular harm
that you can point to that could have been otherwise
corrected, I will deny the motion to dismiss. Is there
any, other than just the passage of time, any witnesses
who have died? Nobody you know of?
DEFENSE COUNSEL: No. Just one of the co-
conspirators, but he would not be helpful.
At trial, the Government described Olaya’s participation in a
large scale cocaine drug trafficking organization. Officer Raymond
Montalvo, a police officer with the Houston Police Department who
2
had conducted surveillance as part of the investigation, testified
that he saw Olaya at one of the locations where cocaine was found,
a house at 3462 Sand Brook, on the date the drugs were recovered.
In addition to cocaine, agents found two pistols in the master
bedroom at the Sand Brook property.
At the conclusion of the trial, the jury found Olaya guilty of
both offenses charged in the indictment.
The Presentence Investigation Report (“PSR”) assigned Olaya a
base offense level of 36 because his offense involved 124.96
kilograms of cocaine. The PSR recommended that Olaya’s offense
level be increased as follows: (1) two levels, pursuant to United
States Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1), because
two loaded weapons were possessed during the offense; (2) two
levels, pursuant to USSG § 3B1.1(c), because Olaya was an organizer
or leader of criminal activity; and (3) two levels, pursuant to
USSG § 3C1.1, for obstruction of justice based on Olaya’s efforts
to avoid arrest. Olaya’s total offense level of 42, combined with
his criminal history category of I, yielded a sentencing guideline
range of 360 months to life imprisonment. The district court,
after sustaining Olaya’s objection to the obstruction of justice
enhancement, sentenced Olaya to 360 months imprisonment on each
count of conviction, to run concurrently, and five years of
supervised release on each count of conviction, also to run
concurrently.
3
On appeal, Olaya argues that the district court erred in (1)
denying his speedy trial motion; (2) applying the two level weapon
enhancement; and (3) applying the two level leader/organizer
enhancement.
II.
A.
Olaya first argues that the district court erred by denying
his motion to dismiss the indictment based on a violation of his
Sixth Amendment right to a speedy trial. He contends the
Government failed to present any evidence justifying the delay
between the filing of his indictment and his arrest.
The standard of review applicable to a speedy trial claim is
unsettled in this circuit. While, we review the trial court’s
findings of fact made for analysis of the speedy trial right for
clear error,1 we have recently recognized that our cases have not
specified the standard applicable to the district court’s balancing
of the various factors.2 Both the plaintiff and the Government
assert that because the district court’s balancing is akin to
conclusions of law or rulings on mixed questions of law and fact,
it should be reviewed de novo. This case does not require us to
resolve this question. We will review de novo, but if we were to
review for clear error, we would obviously reach the same result:
1
United States v. Serna-Villarereal, 352 F.3d 225, 230 (5th Cir. 2003).
2
See United States v. Frye, 372 F.3d 729, 735 (5th Cir. 2004).
4
Olaya's Sixth Amendment speedy trial right was not violated.
In evaluating a defendant’s claim that his right to a speedy
trial has been denied, this court applies a four-factor balancing
test derived from the Supreme Court’s opinion in Barker v. Wingo.3
We must consider: (1) the length of the delay; (2) the reason for
the delay; (3) whether the defendant asserted his right to a speedy
trial; and (4) whether the defendant was prejudiced by the delay.4
The first factor acts as a gatekeeper, triggering a full Barker
analysis if the delay is over one year, and therefore considered
“presumptively prejudicial.”5 Once that threshold has been
crossed, the length of the delay is considered together with
factors (2) and (3) to determine whether the presumption of
prejudice will be sustained. If the first three factors weigh
heavily for the defendant, or heavily against the Government, then
prejudice will be presumed. The Government, however, can avoid
dismissal with evidence showing that the presumption is extenuated,
as by the defendant’s acquiescence in the delay, or by
demonstrating that the defendant suffered no actual prejudice.6
1. The Length of the Delay
In this case, the threshold prong weighs heavily in favor of
3
407 U.S. 514, 530 (1972).
4
Id.5
Serna-Villarreal, 352 F.3d at 230.
6
Id. at 231 (citing Doggett v. United States, 505 U.S. 647, 658 (1992)).
5
defendant and against the Government. The 13 year delay triggers
a full Barker analysis.
2. The Reason for the Delay
Evidence is sparse on the reason for the delay. Olaya did not
allege bad faith and suggested only negligence on the part of the
Government.
The Government made some effort to locate defendant. In 1991,
when Olaya’s indictment was issued, Dan Egeland, a special agent
for the United States Bureau of Immigration and Customs Enforcement
testified that he tried to locate Olaya. Later, in 2001, a Deputy
Marshall went to Olaya’s wife’s residence in Miami in an attempt to
locate him. Olaya was ultimately arrested on November 24, 2004 at
a property owned by his wife in Houston, not far from the scene of
his original offense. The United States Marshall who found Olaya,
Arthur Fernandez, explained that he had used a public database to
determine what properties Olaya’s wife owned in Houston.
The record also supports the view that Olaya took steps to
avoid his capture. Instead of renewing his Texas driver’s license,
he obtained a Florida driver’s license in 1997 under the name
Fernando Vargas. In addition to the altered name, the license
reported a false birth date. This supports the district court’s
finding that Olaya knew of the pending charges and took steps to
6
evade capture.7
As a result of the lengthy delay between indictment and arrest
and substantial gaps in the Government’s active efforts to locate
Olaya, the second Barker factor weighs against the Government. But
because of Olaya’s efforts to avoid detection, this factor does not
weigh heavily against the Government.
3. Defendant’s Assertion of Speedy Trial Rights
Olaya asserted his Speedy Trial rights within 3 months of his
arrest which is ordinarily considered timely. However, the
evidence that Olaya sought to avoid capture, implying that he was
aware of his indictment long before his arrest, augers in favor of
the Government.8 We therefore consider this factor neutral.
4. Prejudice
Olaya fails to allege that he suffered any harm or actual
prejudice from the delay and instead relies on what he perceives as
a strong case for the presumption of prejudice. On the balance,
7
The district court did not have the benefit of the trial evidence, including testimony on the
previous attempts at arrest and the false document, when it made its ruling on the pretrial motion
to dismiss. However, the Supreme Court has recognized that facts developed at trial are properly
considered by an appellate court in reviewing a district court’s pre-trial speedy trial ruling. See
United States v. McDonald, 435 U.S. 850, 858 (1978) (discussing prejudice prong of Barker
analysis and noting that “[t]he resolution of a speedy trial claim necessitates a careful assessment
of the particular facts of the case. . . . [M]ost speedy trial claims, therefore, are best considered
only after the relevant facts have been developed at trial.”). Accordingly, we consider trial
evidence in assessing Olaya’s speedy trial claim in this case.
8
See Doggett, 505 U.S. at 653 (“Were [it] true [that the defendant knew of his indictment
years before his arrest], Barker 's third factor, concerning invocation of the right to a speedy trial,
would be weighed heavily against him.”).
7
the Barker factors weigh against the Government but not heavily
against the Government. Under such circumstances, prejudice will
either not be presumed or at most the presumption will be a weak
one.9 Olaya produced no evidence that his defense was prejudiced
and he therefore failed to demonstrate prejudice. Further, even if
we agree with Olaya’s argument that the Barker factors weigh
against the Government to an extent which would justify a
presumption of prejudice, his counsel’s frank concession in open
court effectively established that Olaya suffered no prejudice from
the delay.10 Olaya’s speedy trial claim fails.
B.
Olaya next argues that the district court erred by enhancing
his offense level pursuant to USSG § 2D1.1(b)(1) based on its
finding that he possessed two dangerous weapons during his offense.
Olaya contends that the Government failed to present any reliable
evidence to support the enhancement. In his objections to the PSR,
9
See United States v. Hernandez, 457 F.3d 416 (5th Cir. 2006) (“Prejudice cannot be
presumed [where] the first three Barker factors do not cut strongly in [defendant]’s favor.”).
10
Defense counsel could point to no particular harm resulting from the delay:
THE COURT: The [search] efforts look like they were reasonable, and
unless there is some particular harm that you can point to that could have been
otherwise corrected, I will deny the motion to dismiss. Is there any, other than just
the passage of time, any witnesses who have died? Nobody you know of?
DEFENSE COUNSEL: No. Just one of the co-conspirators, but he would
not be helpful.
8
Olaya denied having lived at, or exercising control over, the 3462
Sand Brook residence where the weapons were found.
A district court’s decision to enhance a defendant’s sentence
under § 2D1.1(b)(1) is a factual determination that this court
reviews for clear error.11
The Sentencing Guidelines direct a sentencing court to
increase by two levels the base offense level of a defendant who
possessed a dangerous weapon during the manufacture, import,
export, trafficking, or possession of drugs.12 Section 2D1.1(b)(1)
should be applied “if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.”13 “The
Government has the burden of proof under § 2D1.1 of showing by a
preponderance of the evidence that a temporal and spatial relation
existed between the weapon, the drug trafficking activity, and the
defendant.”14 At sentencing, a district court may consider “any
relevant evidence that has sufficient indicia of reliability to
support its probable accuracy.”15 For instance, a PSR based on the
results of a police investigation is sufficiently reliable to be
11
United States v. Dixon, 132 F.3d 192, 201 (5th Cir. 1997).
12
USSG § 2D1.1(b)(1); Dixon, 132 F.3d at 201.
13
USSG § 2D1.1, cmt. n.3; United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
14
Vasquez, 161 F.3d at 912 (internal quotation marks and citation omitted).
15
United States v. Buchanan, 70 F.3d 818, 828 (5th Cir. 1995) (internal quotations and
citation omitted).
9
considered as evidence for sentencing purposes.16 “If information
is presented to the sentencing judge with which the defendant would
take issue, the defendant bears the burden of demonstrating that
the information cannot be relied upon because it is materially
untrue, inaccurate or unreliable.”17
According to the PSR, Olaya and his co-defendants were using
a number of residences and vehicles to store, transport, and sell
drugs including a residence at 3462 Sand Brook in which the police
found 38 kilograms of cocaine and two pistols. One of Olaya’s co-
defendants told police that the Sand Brook resident was rented by
Olaya and that he “sort of” lived there. Although Olaya contends
that the PSR was not reliable because of its use of statements made
by his co-defendants, this court has previously determined that
such statements, if unrebutted, can be considered.18 Olaya’s
objections to the PSR were made in the form of unsworn assertions
and thus did not suffice as competent rebuttal evidence.19
Moreover, the district court’s factual findings as set forth in the
PSR are supported by testimony elicited at trial. Officers
testified that they seized cocaine and two weapons from the Sand
16
United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991).
17
United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
18
United States v. Peters, 283 F.3d 300, 315 (5th Cir. 2002); United States v. Vaquero,
997 F.2d 78, 84 (5th Cir. 1993).
19
See United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992).
10
Brook residence along with two letters addressed to Olaya and drug
paraphernalia from the garage. In addition, one officer testified
that he saw Olaya exiting the Sand Brook residence on the day drugs
were recovered from the residence. Together with the PSR, this
evidence was sufficient for the district court to find by a
preponderance of the evidence that cocaine involved in Olaya’s
offense was being stored at the Sand Brook residence, that the
weapons found in that location were related to the drug offense,
and that Olaya had control over the residence.20 The district court
did not err in enhancing Olaya’s sentence under § 2D1.1(b)(1).
C.
Olaya next argues that the district court erred by enhancing
his offense level pursuant to USSG § 3B1.1(c) based on a finding
that he was an organizer or leader of criminal activity.
Where as here, a defendant does not challenge the application
of an enhancement in the district court, the decision will be
reviewed for plain error only.21
Olaya cannot show plain error. At sentencing, the district
court found that Olaya had “used [his] brother in law, and [his]
dad and a bunch of other people.” The district court adopted the
20
See United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005) (where loaded weapons
were found in the same home as cash and on the same property that court found the defendant
had stored heroine, it was not “clearly improbable that the weapon was ocnnected with the
offense.”).
21
See United States v. Rodriguez, 15 F.3d 408, 414-415 (5th Cir. 1994).
11
findings of the PSR, which set forth facts showing that Olaya
coordinated the drug transactions and gave instructions to his co-
defendants. Those statements were corroborated by testimony at
trial. Moreover, questions of fact that could have been resolved
by the district court at sentencing may never constitute plain
error.22
D.
Finally, Olaya argues that he was sentenced in violation of
his Sixth Amendment rights under the Confrontation Clause, as
interpreted by the Supreme Court in Crawford v. Washington23 because
his sentence enhancements under § 2D.1.1(b)(1) and § 3B1.1(c) were
based on the post-arrest hearsay statements of his co-defendants.
As Olaya did not raise this issue in the district court, it is
reviewed for plain error only.24
In Crawford, the Supreme Court held that the admission of
testimonial statements by a witness who is not present at a
defendant’s criminal trial violates the Confrontation Clause unless
the witness is unavailable and the defendant has had a prior
opportunity for cross-examination.25 However, Crawford involved a
defendant’s Confrontation Clause right during his criminal trial.
22
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
23
541 U.S. 36, 52-54 (2004).
24
See Rodriguez, 15 F.3d at 414-15.
25
Crawford, 541 U.S. at 68-69.
12
As we have previously noted, there is no Crawford violation when
hearsay testimony is used at sentencing.26
III.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
26
United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
13