706 F.3d 603 (5th Cir. 2013), 11-41385, United States v. Cervantes

Docket Nº:11-41385, 11-41407.
Citation:706 F.3d 603
Opinion Judge:PRADO, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Cristobal CERVANTES; Luis Eduardo Alvarez; and Mark Anthony Milan, Defendants-Appellants.
Attorney:Sonja Marie Ralston, U.S. Department of Justice, Criminal Division, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee. Roberto Balli, Attorney, Oscar A. Vela, Jr., Attorney, Law Office of Oscar A. Vel...
Judge Panel:Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.
Case Date:January 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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706 F.3d 603 (5th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee


Cristobal CERVANTES; Luis Eduardo Alvarez; and Mark Anthony Milan, Defendants-Appellants.

Nos. 11-41385, 11-41407.

United States Court of Appeals, Fifth Circuit.

January 30, 2013

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          Sonja Marie Ralston, U.S. Department of Justice, Criminal Division, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

          Roberto Balli, Attorney, Oscar A. Vela, Jr., Attorney, Law Office of Oscar A. Vela, Jr., P.C., George V. Garcia, Abundio Rene Cantu, Attorney, Laredo, TX, for Defendants-Appellants.

         Appeal from the United States District Court for the Southern District of Texas.

          Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.

          PRADO, Circuit Judge:

          Appellants Mark Anthony Milan, Cristobal Cervantes, and Luis Eduardo Alvarez were convicted on charges stemming from a sting operation conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Appellants, along with a fourth defendant who did not appeal, worked with an undercover agent to plan an armed home invasion with the aim of stealing a large quantity of drugs. The home invasion was a sham. Appellants were arrested on the day the invasion was set to happen and subsequently indicted on six counts. After a jury trial, Appellants were convicted on all six counts. They now appeal their convictions and sentences on a number of grounds. 1 As explained below, the district court's only error occurred when it applied a sentencing enhancement that should not have been applied. Appellants' other arguments lack

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merit. Therefore, we AFFIRM the convictions of Cervantes, Alvarez, and Milan; VACATE the sentences of Cervantes and Alvarez; and REMAND for resentencing.

         I. Factual Background

         In January 2011, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ), received information that Mark Anthony Milan (" Milan" ) was interested in purchasing firearms. During recorded conversations, Milan told the ATF agent that he was interested in getting as many weapons as the agent could supply. In fact, Milan even attempted to negotiate a bulk discount. The deal was eventually called off, however, when Milan was unable to procure the purchase money quickly enough. Nevertheless, during the course of this attempted sting operation, a second ATF agent saw a picture of Milan and immediately recognized him from an earlier investigation involving an attempted home invasion. Based on the second agent's identification of Milan, taken together with other information received from a confidential source, the ATF elected to continue its investigation of Milan in hopes of eventually arresting him.

         After the firearm sale fell through, an undercover ATF agent arranged a meeting with Milan through a confidential informant to discuss the armed invasion of a non-existent stash house. Through a series of meetings— recordings of which were presented at trial— Milan and Cervantes 2 were told about a drug stash house from which they could steal some twenty-five kilograms of cocaine. Specifically, the undercover agent claimed to have been cheated by his cartel employer, and he wanted Milan to steal cocaine from the cartel's stash house to settle the score. According to the ATF agent, the stash house would have at least twenty-five kilograms of cocaine within, and Milan's team could keep all cocaine recovered beyond the first five kilograms, which the ATF agent claimed he was owed.3 At the time, twenty-five kilograms of cocaine in Laredo was worth over $400,000. The ATF agent also told Milan that the house would be guarded by at least two people, one of whom would be armed and intimidating. Milan and Cervantes agreed to rob the stash house, reassuring the ATF agent that " they had cars, they had guns." The ATF agent " was instructed at that time just to get them to the house, and they would do the rest." Milan and Cervantes repeatedly reassured the ATF agent that their crew would consist of professionals.

          As planned, on March 9, 2011, the ATF agent informed Milan that the target shipment of drugs had arrived at the stash house. Milan and Cervantes met the agent at a pre-determined location, with two additional crew members in the car with them, and traveled together to a second location where the arrest was scheduled to happen. After discussing the plan with Cervantes, the agent expressed a desire to review the plan with Milan and Cervantes' two associates, both of whom were still seated in Milan's vehicle. The agent's true desire was to identify the associates and ensure that they knew the nature of the group's plan. As the agent put it, he wanted to make sure that they

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" knew exactly why [they] were there." When Cervantes rolled down the window, the ATF agent was able to see Alvarez and Porras, both of whom he identified at trial.

         The undercover agent then reviewed parts of the plan with all four individuals, but not before asking Alvarez and Porras if they understood English; both nodded in response. The agent reminded the group that the house would be guarded and that it contained at least twenty-five kilograms of cocaine. Cervantes showed the agent a pistol that Cervantes then tucked into his waistband and Porras held up a duffle bag containing two rifles. After he expressed nervousness regarding the risk entailed by the operation, Alvarez reassured the agent by telling him that the group did not consist of " rookies." Alvarez even went so far as to tell the undercover agent that he would go into the house first. At no point did Milan, Cervantes, Alvarez, or Porras express any doubt, uncertainty, or unwillingness to proceed.

         Satisfied that the four men understood the plan, the undercover agent stepped away from the car and gave the arrest signal. The four men were then arrested without incident. The defendants were dressed in all black, and within the automobile the police recovered black hats bearing police labeling. Further, Alvarez and Porras were wearing bulletproof vests. At trial, Appellants were convicted on all six counts charged, whereas Porras, the fourth defendant, was convicted of only a single count.

         II. Jurisdiction

         The district court had jurisdiction under 18 U.S.C. § 3231. After judgment was entered, Appellants filed timely notices of appeal. As such, this Court has jurisdiction under 28 U.S.C. § 1291.

         III. Discussion

         Appellants present a number of issues on appeal, some that are Appellant-specific and others that overlap. Distinct legal issues are dealt with individually, but where Appellants have raised identical challenges, those issues are dealt with collectively under a single heading.

         A. Whether the Magistrate Judge erred in limiting the number of Appellants' relatives present for voir dire.

          Criminal defendants are guaranteed a public trial by the Sixth Amendment. United States v. Osborne, 68 F.3d 94, 98 (5th Cir.1995). The right to a public trial helps ensure, inter alia, the fairness of the proceedings. Id. (citing Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). However, the right is not absolute. Id. (citing Waller, 467 U.S. at 45, 104 S.Ct. 2210). Whereas the Supreme Court has enumerated a four-part test for determining whether closed proceedings are warranted, the requisite analysis varies when, as here, the challenged closure was partial rather than complete. Id. (citing Aaron v. Capps, 507 F.2d 685, 688 (5th Cir.1975)).

          When a criminal proceeding is only partially closed, the court must " look to the particular circumstances of the case to see if the defendant will still receive the safeguards of the public trial guarantee." Osborne, 68 F.3d at 98. This is because " the partial closing of court proceedings does not raise the same constitutional concerns as a total closure because an audience remains to ensure the fairness of the proceedings." Id. Partial closure of a courtroom during a criminal proceeding is a constitutional question reviewed de novo, and the Court will affirm so long as the lower court had a " substantial reason" for

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partially closing a proceeding. Id. at 98-99.

          Both Alvarez and Cervantes claim that the magistrate judge committed reversible error when he partially closed voir dire.4 Before jury selection began, the magistrate judge determined that each defendant could have only three relatives present in the courtroom during voir dire. The magistrate judge so decided in response to a request from Cervantes to allow six of his family members to observe the proceeding. The decision was made in light of a number of considerations, including the limited space available within the courtroom, the nature of the proceedings, and the desire to minimize disruptions. The judge was also concerned about Cervantes's close proximity to panel members without shackles given an earlier violent outburst at his detention facility. Alvarez and Cervantes claim that the partial closure of voir dire violated their Sixth Amendment right to a public trial.5 As discussed below, the magistrate judge gave multiple substantial reasons for partially closing voir dire, and we will affirm.

         In Osborne, a case involving sexual assault against a minor, the district court excluded an observer from the courtroom during the victim's testimony because the observer was both the sister of...

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