U.S. v. Ocana

• Citation: 204 F.3d 585
• Decision Date: 18 February 2000
• Docket Number: No. 98-41133,98-41133
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FLORA ALICIA OCANA, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 585

204 F.3d 585 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FLORA ALICIA OCANA, Defendant-Appellant.

No. 98-41133

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

February 18, 2000

Rehearing Denied March 27, 2000.

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Southern District of Texas

Before KING, Chief Judge, POLITZ, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Flora Alicia Ocana appeals the sentence she received after pleading guilty to conspiracy to possess with intent to distribute approximately 90 kilograms of marihuana, in violation of 21 U.S.C. 846, 841(a)(1), and 841(b)(1)(c). Ocana challenges the district court's enhancement of her sentence based on post-conviction conduct. This post-conviction conduct led to an increase in Ocana's base level offense, and a sentence enhancement for role in the offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 19, 1997 Flora Alicia Ocana ("Ocana") was arrested after a traffic stop and found to be in possession of 90 kilograms of marihuana. In May 1997, Ocana and her co-defendant Keenan Stroud Bennet were indicted on one count of conspiracy to possess marihuana with intent to distribute, and a second count of possession of marihuana with intent to distribute. On July 25, 1997 Ocana plead guilty to the first count of the indictment. Ocana also agreed to provide a truthful rendition of the facts for the probation department in exchange for the government's agreement to dismiss count two of the indictment and recommend a sentence at the low end of the applicable guideline range. The initial presentence report ("PSR") was submitted September 26, 1997 and determined that the total offense level was 21, which was based on an offense level of 24 for possession of 90 kilograms of marihuana and a three-level decrease for acceptance of responsibility. This initial determination equaled a guideline range of 37-46 months imprisonment.

In November 1997, border patrol agents stopped Ricardo Flores ("Flores"), Norma Salina Cervantes ("Cervantes"), and Cervantes's three sons. The border patrol discovered 48 kilograms of marihuana. Cervantes immediately informed the border patrol and FBI that the drugs belonged to Ocana, who had hired them to transport the marihuana ("November 1997 offense" or "post-conviction conduct"). ¹ On June 5, 1998 the government provided ex parte notice to the court concerning alleged misconduct of the defendant. Based on the information about the November 1997 offense the probation officer filed an addendum to the PSR ("second addendum") recommending that Ocana be sentenced based on a total offense level of 28. This total offense level included a base offense level of 26, a figure that included the additional 48 kilograms of marihuana. In the second addendum the PSR also recommended a two-level upward adjustment for role in the offense and recommended denying the three-level decrease for acceptance of responsibility.

Ocana's attorney filed objections to the second addendum to the PSR. Ocana argued that the November 1997 offense was not relevant to her sentencing, and she also denied ownership or responsibility for the marihuana that was found by the border patrol. The probation officer filed a third addendum to the PSR in response to Ocana's objections. The third addendum to the PSR stated that pursuant to 1B1.3(a)(2) the November 1997 offense was part of the same course of conduct as the offense for which Ocana plead guilty, and therefore was required to be considered in determining Ocana's sentence.

At the sentencing hearing FBI Agent Rob Andrews ("Agent Andrews"), Flores, and Cervantes were called to testify. On the morning of the hearing Flores and Cervantes informed Agent Andrews, and testified that Ocana had recruited them to transport marihuana to Florida on at least two other occasions before they were apprehended by the border patrol in November 1997. Cervantes and Flores testified that Ocana told them to rent a van, and take their kids on the trip to make it look like a family vacation. They claimed that on all of these trips they drove the van to Winter Garden, Florida, found a hotel, and then contacted Ocana who would fly to Florida and meet them at the hotel. They stated that Ocana would pick up the van from them at the hotel and complete the final delivery of the drugs. After hearing this testimony the court overruled Ocana's objections and adopted the findings of the second addendum to the PSR. The court accepted the inclusion of the 48 kilograms of cocaine in the determination of the base offense level, the two-level enhancement for Ocana's role in the offense, and the rejection of the three-level reduction for acceptance of responsibility. The sentencing guideline range for a total offense level of 28 is 78 to 97 months. The court sentenced Ocana to a 90 month term of imprisonment and a three year term of supervised release.

DISCUSSION

Ocana raises three issues on appeal. First, Ocana argues that the district court erred in increasing her base offense level based on conduct that occurred after she was convicted. Second, Ocana challenges the district court's finding of a two-level enhancement for role in the offense based upon evidence of Ocana's alleged post-conviction conduct. Finally, Ocana contends that the district court erred in relying on her alleged co-conspirators testimony because it did not have a sufficient indicia of reliability.

A.Standard of Review

This court normally reviews the district court's application of the Sentencing Guidelines de novo and its factual findings for clear error. A sentence will be upheld unless it was imposed in violation of law, was an incorrect application of the sentencing guidelines, or is outside the range of the applicable sentencing guideline. United States v. Hernandez-Guevara, 162 F.3d 863,876 (5th Cir. 1998). Failure to object to either the PSR or the district court's sentence results in review for plain error. See United States v. Ruiz, 43 F.3d 985, 988. (5th Cir. 1995).

In the present case, the Government urges this court to review the district court's application of the sentencing guidelines for plain error because Ocana did not raise the same objections in the district court that she raises in this appeal. We find that Ocana did make written objections to the PSR. The third addendum to the PSR acknowledges Ocana's objections to the second addendum to the PSR regarding the increase in her base offense level and the adjustment for her role in the offense. Ocana's objection to the second addendum's recommendation on her base offense level was as follows:

"The defendant asserts that the information in the Second Addendum to the Presentence Report is not relevant conduct impacting her sentence of conviction. The defendant denies the ownership or any responsibility for the marihuana that Norma Cervantes and Ricardo Flores were caught transporting."

Ocana's objection to the PSR's recommendation of an upward adjustment role in the offense was "that she did not have a role in the instant offense concerning Norma Cervantes and Ricardo Flores."

The purpose of requiring defendants to make timely objections to the PSR and actual sentence is "founded upon considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact." Ruiz, 43 F.3d at 988 (quoting United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc)). Ocana's objections fulfill this stated purpose. While she did not specifically cite to the USSG section which the PSR applied, she did make a general objection that notified the court of her disagreement with the use of the November 1997 offense in her sentencing, and gave the district court the opportunity to address the relevance of the unadjudicated conduct. Ocana's objections to the PSR were in writing, and there was a written response by the probation officer that referenced 1B1.3(a)(2). The district court was clearly notified of the grounds upon which Ocana's objections were being made.² See Krout, 66 F.3d at 1434 (a party should raise a claim of error in a manner that allows the district court to correct itself). Therefore, we conclude that Ocana sufficiently raised the issues which she now appeals, and we will review her claims under the normal standard of review for Sentencing Guideline issues.

B. Base Offense Level

Ocana argues that the district court erred in considering the November 1997 offense in the calculation of her base offense level because this conduct occurred after her conviction. The PSR stated that Ocana's base level offense was increased pursuant to USSG 1B1.3. Under 1B1.3 district courts are permitted to consider unadjudicated offenses which occur after the offense of conviction for sentencing purposes if the unadjudicated offense is "relevant conduct". In order for an unadjudicated offense to be "relevant conduct" it must be part of the same course of conduct, common scheme or plan as the offense of conviction. Vital, 68 F.3d 114, 118 (5th Cir. 1995). The district court found that the November 1997 offense was part of the same course of conduct as the April 1997 incident for which Ocana was convicted.

A finding by the district court that unadjudicated conduct is part of the same course of conduct or common scheme or plan is a factual determination subject to review by this court under the clearly erroneous standard. See Vital, 68 F.3d at 118. Therefore, in order for Ocana to demonstrate that the district court incorrectly applied the sentencing guidelines under 1B1.3 she must show that the district court's finding that the offenses involving Cervantes and Flores were part of the same course of conduct as the April 1997 offense was a clearly erroneous finding.

Offenses qualify as part of the same course...