453 F.3d 252 (5th Cir. 2006), 04-50499, United States v. Valdez

Docket Nº04-50499.
Citation453 F.3d 252
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Cesar Arrnoldo VALDEZ, Hector Raul Valdez, Defendants-Appellants.
Case DateJune 15, 2006
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

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453 F.3d 252 (5th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cesar Arrnoldo VALDEZ, Hector Raul Valdez, Defendants-Appellants.

No. 04-50499.

United States Court of Appeals, Fifth Circuit.

June 15, 2006

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Joseph H. Gay, Jr., Asst. U.S. Atty., Mark Randolph Stelmach, Asst. U.S. Atty. (argued), San Antonio, TX, for Plaintiff-Appellee.

John Aloysius Convery (argued), Hasdorff & Convery, San Antonio, TX, for Cesar Arrnoldo Valdez.

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

Before Smith, Garza, and Owen, Circuit Judges.

Jerry E. Smith, Circuit Judge.

Hector and Cesar Valdez appeal their convictions and sentences on various drug charges. We affirm the convictions and Hector's sentence. We vacate Cesar's sentence and remand for re-sentencing.

I.

This case involves a drug conspiracy to transport large quantities of marijuana and, on at least two occasions, cocaine from Del Rio, Texas, to Dallas, Texas. Five defendants were charged in an eight-count indictment for their alleged involvement in the operation, but only the appellants, Hector and Cesar Valdez, were convicted following a jury trial.1

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Hector and Cesar were found guilty of conspiracy to possess with intent to distribute 1,000 kilograms or more of marihuana, in vio-lationof21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count One). Hector was also found guilty of aiding and abetting possession with intent to distribute more than 50 kilograms of marihuana on or about June 11 to June 13, 2001, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2 (Count Two); he was found not guilty of the two cocaine-related charges against him (Counts Seven and Eight). Cesar was found guilty of aiding and abetting possession with intent to distribute more than 100 kilograms of marihuana on or about October 16, 2001 (Count Four), and on or about December 2, 2001 (Count Five), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2.

The court sentenced Hector to 360 months of imprisonment on Count One (the conspiracy/marihuana charge) and 240 months on Count Two (the aiding and abetting charge), the sentences to run concurrently; 5 years of supervised release; and a $25,000 fine. Cesar was sentenced to 360 months on each of Counts One (conspiracy), Four (aiding and abetting/October 16, 2001) and Five (aiding and abetting/December 2, 2001), the sentences to run concurrently; 5 years of supervised release; and a $25,000 fine.

Hector and Cesar appeal, alleging that the evidence is insufficient to support their convictions and that the district court abused its discretion by denying their motions for severance, made clearly erroneous factual findings with regard to their relevant conduct and alleged leadership roles, and committed reversible Booker error.

II.

Where, as here, the defendants moved for judgment of acquittal at the close of the evidence, we decide whether the evidence is sufficient by "viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict" and determining whether "a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992). The jury has the sole responsibility for weighing the evidence and making credibility determinations. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995). "It is not necessary that the evidence exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt." Pruneda-Gonzalez, 953 F.2d at 193. "However, we must reverse a conviction if the evidence construed in favor of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged."2

A.

To prove conspiracy to possess and distribute a controlled substance, the government must show beyond a reasonable doubt (1) the existence of an agreement between two or more persons to violate narcotics laws; (2) the defendant's knowledge

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of the agreement; and (3) his voluntary participation in the conspiracy.3

Mere presence at a crime scene or association with conspirators is not enough to prove participation in a conspiracy, but the "agreement, a defendant's guilty knowledge and a defendant's participation in the conspiracy all may be inferred from the development and collocation of circumstances."4 "[A] defendant may be convicted on the uncorroborated testimony of a coconspirator who has accepted a plea bargain unless the coconspirator's testimony is incredible." United States v. Villegas-Rodriguez, 171 F.3d 224, 228 (5th Cir. 1999). "Testimony is incredible as a matter of law only if it relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature." United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).

There is ample evidence to support the conspiracy charge against Hector. Although much of the evidence consisted of testimony by three coconspirators--Alfred Garcia, Pedro Ramirez, and Javier Cardenas--who accepted plea bargains and hoped for sentence reductions in exchange for their testimony, their testimony is not incredible, and each coconspirator's testimony tends to corroborate the testimony of the other coconspirators. Moreover, the jurors were adequately informed during direct and cross-examination about the coconspirators' motivation for testifying, and the jury was free to believe or disbelieve their testimony.

Garcia testified that Hector and Ramirez started transporting marihuana out of Garcia's house in January 2001. Hector and Ramirez would pick up the marihuana from a supplier in Mexico, load it into Hector's truck, and take it back to Garcia's house to break up and repackage in duffle bags. Hector was occasionally involved in breaking down the marihuana and would wear socks on his hands to keep from getting fingerprints on the drugs. Hector's truck would be used to transport the drugs to Dallas, where a man named Rudy would buy them. Hector and Ramirez would pay him when he transported the drugs from Del Rio to Dallas.

Garcia's testimony was corroborated by Ramirez, who testified about the same agreement, which involved picking up the marihuana from the border, repackaging it into duffle bags at Garcia's, and transporting it to Dallas in Hector's truck. According to Ramirez, the money for each load would sometimes be split three ways between Ramirez, Hector, and Garcia, although sometimes Garcia would get paid less. Hector was paid regardless of whether he actually transported the marihuana. Ramirez also stated that Hector came up with the idea of leaving at 5:30 a.m. to avoid the Border Patrol.

Cardenas's testimony further corroborates the existence of the conspiracy and Hector's participation therein. Cardenas testified that Ramirez recruited him to drive a load to Dallas. Ramirez corroborated this testimony. Cardenas further testified that he picked up the marihuana by the river and unloaded it at Garcia's house; Garcia corroborated this testimony. Ramirez drove him to Hector's house to pick up Hector's truck with which to transport the drugs. According to Cardenas, once he got to Hector's place, Hector

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wanted him to drive Ramirez and Hector around the block so they could talk without the next-door neighbor, a sheriff, overhearing.

Cardenas was arrested on June 13, 2001, before reaching Austin, and he was driving Hector's truck with over 200 pounds of marihuana and over 130 pounds of cocaine. The arresting officer testified about the arrest and stated that an insurance card, bearing Hector's name, was found in the truck.5 A rational jury could have found Hector guilty of conspiracy beyond a reasonable doubt on the basis of all the evidence.

B.

As we have explained, the evidence was sufficient to support the finding that a conspiracy to possess with intent to distribute marihuana existed between Hector, Ramirez, and Garcia starting in January 2001. There is similarly ample evidence supporting the finding that Cesar had knowledge of the conspiracy and voluntarily participated in it sometime between January 2001 and October 2002.

Garcia and Ramirez testified that, after Cardenas was busted with marihuana and cocaine in Hector's truck, Cesar took over Hector's role in the operation. They testified that Cesar would recruit drivers to go pick up the marihuana at a rest area outside of Comstock (which is near Del Rio) and that the marihuana would be loaded onto Cesar's blue Chevy Silverado (although Cesar would not always accompany the drivers). According to Ramirez and Garcia, the marihuana was often taken from Comstock to Cesar's trailer in Austin before it was repacked and moved north to Dallas, although sometimes the loads were taken straight to Dallas.

Garcia testified that Cesar would be paid the same amount that his brother, Hector, had been paid during his involvement. Ramirez stated that, after Cesar took over Hector's role, the same person in Mexico was supplying the marihuana, and the same person in Dallas was buying the loads and paying the same amount as before.

The testimony of Antonio Reyes also corroborated Garcia's and Ramirez's testimony regarding Cesar's knowledge of and participation in the conspiracy. He testified that he saw large quantities of marihuana at Cesar's trailer home and that Cesar kept a large amount of money under his mattress. He also stated that Cesar had recruited him.6

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Reyes testified that he drove to Del Rio on two other occasions for Cesar; on the first, the marihuana was never delivered, and on the...

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