U.S. v. Zuniga

• Citation: 18 F.3d 1254
• Decision Date: 05 April 1994
• Docket Number: ZUNIGA-HERNANDE,D,93-3457,Nos. 93-3453,s. 93-3453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marta Alicia ZUNIGA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juan Joseefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1254

18 F.3d 1254

UNITED STATES of America, Plaintiff-Appellee, v. Marta Alicia ZUNIGA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose ZUNIGA-HERNANDEZ, Defendant-Appellant.

Nos. 93-3453, 93-3457

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

April 5, 1994.

Carlos L. Correa, Houston, TX, Gary Schwabe, Jr., Asst. Federal Public Defender, John F. Mulvehill, Federal Public Defender, New Orleans, LA, for defendant-appellant in No. 93-3453.

Michael H. Idoyaga, New Orleans, LA, for defendant-appellant in No. 93-3457.

Herbert W. Mondros, Lawrence Benson, Asst. U.S. Attys., Robert J. Boitmann, U.S. Atty., New Orleans, LA, for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Juan Jose Zuniga-Hernandez (Zuniga) and his wife, Marta Alicia Zuniga (Marta), were convicted in separate proceedings of various drug-related offenses. In this consolidated appeal, Zuniga asks us to reverse his conviction under 18 U.S.C. Sec. 924(c)(1) and the sentence imposed therefor, arguing that his receipt of firearms in exchange for heroin did not constitute "use" of a firearm, during and in relation to a drug trafficking offense, within the context of the statute. Marta contests the sufficiency of the evidence underlying her conviction of distribution of heroin. Furthermore, she claims that she was only a minor participant in the offense and should have been accorded a downward adjustment to her guidelines offense level on that basis.

Facts and Proceedings Below

In September 1992, a cooperating individual contacted the Drug Enforcement Administration (DEA) with information concerning an organization in Houston, Texas, dealing in heroin and firearms. According to information obtained by the DEA, Zuniga was the head of the organization. DEA Special Agent Guadalupe Flores, working undercover, contacted Zuniga to negotiate the purchase of heroin and the sale of machineguns and other firearms. The purchase price agreed upon for the heroin was $5,000 per ounce. To disguise the nature of their arrangements, Agent Flores and Zuniga referred to heroin as "shoes" and to firearms as "machinery."

The cooperating individual maintained contact with Zuniga throughout October and November 1992. ¹ Sometime during the autumn of 1992, Agent Flores agreed to purchase a one-ounce sample of black tar heroin from Zuniga and to purchase more if the sample proved satisfactory. Zuniga expressed his interest in acquiring firearms from Agent Flores.

On December 8, 1992, DEA agents conducted surveillance of a meeting at Zuniga's apartment complex in Houston. While Agent Flores waited in his vehicle, the cooperating individual went to Zuniga's apartment and asked Zuniga to meet with Agent Flores at the car. Zuniga gave the one ounce of black tar heroin to the cooperating individual and followed him to the car, where Agent Flores paid Zuniga $1,000, the agreed-upon partial payment for the one-ounce sample.

On the following day, Zuniga and his father, Salvador Zuniga (Salvador), travelled from Houston to New Orleans to receive the $4,000 balance owed for the one ounce of heroin and to negotiate further heroin transactions, as well as the purchase of firearms. Zuniga and Salvador met with undercover agents of the DEA, including Agent Flores, and of the Bureau of Alcohol, Tobacco and Firearms (ATF). ² The agents paid Zuniga the $4,000 and showed him semi- and fully-automatic rifles which the agents purported to be able to supply.

During this meeting, the agents agreed to purchase four ounces more of heroin from Zuniga and arranged for the cooperating individual to return to Houston to pick up the heroin from Marta, at Zuniga's apartment. Zuniga telephoned his wife from New Orleans to tell her that the cooperating individual would be coming to pick up the "shoes." ³ The agents agreed to pay Zuniga for the four ounces of heroin once the cooperating individual had received the heroin. The parties also arranged for an ATF special agent to travel to Atlanta to obtain weapons requested by Zuniga.

On December 10, 1992, DEA Special Agent Randy Goodson, who was the case agent for the Zuniga investigation, flew to Houston from New Orleans, accompanied by the cooperating individual. The cooperating individual telephoned Marta and told her he was in town to pick up the "shoes." Under DEA surveillance, the cooperating individual entered Zuniga's apartment and emerged approximately five minutes later with a clear plastic bag which contained four ounces of black tar heroin. ⁴ While in Zuniga's apartment, the cooperating individual telephoned Zuniga and Agent Flores in New Orleans to inform them that he had received the four ounces of heroin from Marta. Agent Goodson and the cooperating individual then returned to New Orleans.

Later on December 10, Zuniga and Salvador met with the undercover agents and the cooperating individual in Jefferson Parish, Louisiana, where they were shown various firearms. Zuniga agreed to take several of the firearms; as payment for these firearms, he allowed a $5,000 credit against the $20,000 owed for the four ounces of heroin obtained by the cooperating individual. Zuniga and Salvador helped load the firearms, which included two machineguns, in the trunk of an automobile. The agents drove Zuniga and Salvador to another location in Jefferson Parish, ostensibly to pick up the $15,000 still owed for the four ounces of heroin. Zuniga and Salvador were then arrested.

On February 17, 1993, a grand jury returned a superseding indictment charging Zuniga, Marta, and Salvador with conspiracy to distribute heroin (count one) and distribution of heroin (count two), in violation of 21 U.S.C. Secs. 846, 841(a)(1). In addition, Zuniga and Salvador were charged with two firearms offenses: using and carrying firearms and machineguns during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1) (count three), and possession of machineguns in violation of 18 U.S.C. Sec. 922(o )(1) (count four).

Zuniga pleaded guilty to all four counts and was sentenced to concurrent terms of seventy-eight months imprisonment on each of the conspiracy, distribution, and firearms possession counts. The district court imposed a consecutive term of thirty-years imprisonment on count three, for use of a machinegun during and in relation to a drug trafficking offense.

Marta was tried and acquitted of the conspiracy charge, but the jury convicted her of knowing and intentional distribution of heroin, as charged in count two of the superseding indictment. The district court sentenced her to sixty-five months imprisonment and three years supervised release.

Both defendants filed timely notices of appeal. ⁵ We have consolidated their appeals and now affirm.

Discussion

I. Zuniga's Appeal

On appeal, Zuniga's sole challenge is to his conviction under 18 U.S.C. Sec. 924(c)(1), count three of the superseding indictment. This section enumerates the penalties faced by a defendant who "during and in relation to any ... drug trafficking crime ..., uses or carries a firearm." ⁶ The government must make two showings: (1) that Zuniga used or carried a firearm and (2) that he did so during and in relation to a drug trafficking crime. Zuniga's primary contention is that, at the time of his conduct, bartering drugs for weapons did not constitute "use" of a weapon within the context of section 924(c)(1).

The government contends that Zuniga has waived this issue because he did not raise it below in the context of his guilty plea. ⁷ Assuming, arguendo, that we may properly review this contention, we find no merit in it.

Our court had not had opportunity to address this exact issue prior to the time of Zuniga's conduct. We had, however, construed section 924 broadly in other contexts. See, e.g., United States v. Blake, 941 F.2d 334, 342 (5th Cir.1991) ("The government may meet its burden by showing that the weapon involved could have been used to protect, facilitate, or have the potential of facilitating the operation, and the presence of the weapon was in some way connected with the drug trafficking.") (emphasis added), cert. denied, --- U.S. ----, 113 S.Ct. 596, 121 L.Ed.2d 533 (1992). For more recent opinions of this Court indicating the breadth of this provision, see United States v. Singleton, 16 F.3d 1419, 1422-24 n. 17 (5th Cir.1994); United States v. Guerrero, 5 F.3d 868, 870-873 (5th Cir.1993).

On June 1, 1993, a few days before Zuniga's sentencing, the Supreme Court addressed this issue, holding that "using a firearm in a guns-for-drugs trade may constitute 'us[ing] a firearm' within the meaning of Sec. 924(c)(1)." Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2058, 124 L.Ed.2d 138 (1993). In Smith, the petitioner owned a fully automatic MAC-10 firearm, which he agreed to trade to an undercover officer for two ounces of cocaine. The officer indicated that he would try to obtain the cocaine; he left to arrange the petitioner's arrest. The contemplated exchange never occurred, however, because, before the officer's return, the petitioner left his motel room and was arrested following a high-speed chase.

The Court affirmed the petitioner's conviction, holding that "[b]oth a firearm's use as a weapon and its use as an item of barter fall within the plain language of Sec. 924(c)(1), so long as the use occurs during and in relation to a drug trafficking offense...." Id. at ----, 113 S.Ct. at 2060. ⁸ The Court observed that its holding was in line with Congress's intent to decrease the possibility of violence and death posed by the presence of firearms during drug offenses. "The fact that a gun is treated momentarily as an item of commerce does not render it inert or deprive it of destructive capability. Rather, as experience demonstrates,...