U.S. v. Lara-Velasquez

• Citation: 919 F.2d 946
• Decision Date: 11 December 1990
• Docket Number: D,LARA-VELASQUE,No. 90-8125,90-8125
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Urielefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 946

919 F.2d 946

3 Fed.Sent.R. 310

UNITED STATES of America, Plaintiff-Appellee, v. Uriel LARA-VELASQUEZ, Defendant-Appellant.

No. 90-8125.

United States Court of Appeals, Fifth Circuit.

Dec. 11, 1990.

Christine W. Kelso, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for defendant-appellant.

Krysta Leinenkugel and Leroy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before THORNBERRY, JOHNSON and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

Uriel Lara-Velasquez ("Lara-Velasquez") appeals his convictions and sentences on two counts of controlled substances violations: importation of marijuana into the United States from Mexico in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) (1988), and possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1988). This Court affirms Lara-Velasquez's convictions, but vacates his criminal sentences and remands for resentencing.

I. FACTS AND PROCEDURAL HISTORY

On October 1, 1989, Uriel Lara-Velasquez drove a red pickup truck with a fiberglass camper shell and California license plates across the international border into El Paso, Texas. He presented an amnesty card to the customs inspector at the Paso Del Norte Port of Entry and attempted to answer the inspector's routine questions. The inspector noticed that Lara-Velasquez was nervous; he was extremely "helpful" in answering the inspector's questions. Further, the inspector noticed that the camper shell on the pickup truck was a type commonly used to smuggle controlled substances across the border. Suspecting that the camper shell might conceal marijuana, the customs inspector directed Lara-Velasquez to secondary inspection.

At secondary inspection, customs officials closely examined the pickup truck. As the officials began to tap the sides of the camper shell for hollow spots, Lara-Velasquez suddenly moved backwards. The officials interpreted his movement as an attempt to escape and physically restrained Lara-Velasquez. A subsequent canine inspection of the vehicle revealed thirty-eight packages of marijuana cleverly concealed in a hidden compartment in the camper shell. ¹ Federal agents escorted Lara-Velasquez to a detention cell.

Lara-Velasquez waived his legal rights and consented to an interview with a special agent of the customs service. Lara-Velasquez initially told the agent that he had flown into El Paso to pick up a cousin and drive him to California. Later in the interview, Lara-Velasquez changed his story. He claimed that he and his brother had driven from California in the truck and crossed the border into Juarez. Lara-Velasquez informed the agent that he had left the truck unsupervised for only one hour in the three days he and his brother had been in Juarez. However, when the agent suggested that it would have taken longer than an hour to complete the hidden compartment on the camper shell, Lara-Velasquez stated that he and his brother had stayed in a hotel in Juarez, leaving the truck unoccupied for three days.

A grand jury indicted Lara-Velasquez on counts of importation of marijuana into the United States from Mexico ² and knowing possession of marijuana with the intent to distribute. ³ The case proceeded to trial on December 8, 1989. Lara-Velasquez, testifying on his own behalf, asserted an altogether different story from the account he gave the customs agent in his post-arrest interview. Lara-Velasquez testified that his father's cousin, "Uncle" Tony Alvarez ("Alvarez"), had encouraged him to fly to Mexico. Although his parents warned Lara-Velasquez that Alvarez was a "bad man," Lara-Velasquez accepted Alvarez's offer of airline tickets to Guadalajara. After Lara-Velasquez spent some time in Guadalajara visiting family, Alvarez apparently insisted that Lara-Velasquez return to the United States. Lara-Velasquez testified that he and Alvarez traveled to Juarez, Mexico, where Alvarez gave Lara-Velasquez the pickup truck and $100 cash.

At trial, Lara-Velasquez insisted that he was completely unaware of the existence of marijuana in the truck's camper shell. Indeed, he claimed that he had never smoked marijuana and could not recognize its smell. He maintained that he did not examine the truck, and simply followed--without question--Alvarez's instructions to drive the truck across the border. Federal agents at trial admitted that an ordinary person would not recognize the camper shell as a type commonly used to smuggle contraband, but suggested that the two different white shades of paint on the interior of the camper shell would raise an ordinary person's suspicions.

In its charge, the district court instructed the jury, on its own motion and over Lara-Velasquez's objection, as follows:

The word knowingly as that term has been used from time to time in these instructions means that the act was done voluntarily and intentionally, not because of mistake or accident. You may find that the defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant can not be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.

Record Vol. II at 157 (emphasis added). After substantial deliberation, the jury returned a guilty verdict on both counts of the indictment.

At the sentencing hearing, defense counsel urged that the district court assess the minimum forty-six month sentence for Lara-Velasquez's conviction under the Sentencing Guidelines. The defense counsel argued that rehabilitation could be accomplished in that time period and cited Lara-Velasquez's continuing school attendance as evidence of his rehabilitative potential. The district court, however, rejected the defense counsel's plea:

Number one, to the rehabilitation aspect. Under the guidelines, there isn't any. Guidelines are there for one thing according to the policy and that's to punish.

Record Vol. III at 8. The district court subsequently sentenced Lara-Velasquez to fifty-one months' imprisonment on each count and ordered that the sentences run concurrently. In addition, the district court assessed a five-year term of nonreporting supervised release after completion of the prison term.

II. DISCUSSION

On appeal, Lara-Velasquez raises two arguments. First, he complains that the evidence at trial was insufficient to support the district court's "deliberate ignorance" instruction. Second, he complains that the district court improperly determined that his rehabilitative potential was irrelevant to the calculation of his criminal sentence within the applicable Sentencing Guideline range.

A. Deliberate Ignorance Instruction

The standard of review of a defendant's claim that a jury instruction was inappropriate is "whether the court's charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual issues confronting them." United States v. Stacey, 896 F.2d 75, 77 (5th Cir.1990) (quoting United States v. August, 835 F.2d 76, 77 (5th Cir.1987)) (emphasis added). The court's charge not only must be legally accurate, but also factually supportable; the court "may not instruct the jury on a charge that is not supported by evidence." United States v. Ortega, 859 F.2d 327, 330 (5th Cir.1988), cert. denied, 489 U.S. 1027, 109 S.Ct. 1157, 103 L.Ed.2d 216 (1989). ⁴ In assessing whether the evidence sufficiently supports the district court's charge, this Court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Chen, 913 F.2d 183, 186 (5th Cir.1990).

A conviction for the crime of possession of marijuana with the intent to distribute requires that the Government prove three elements: (1) knowing (2) possession of marijuana (3) with the intent to distribute it. United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir.1990); United States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir.1986); United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). A conviction for the crime of importation of marijuana requires proof that the defendant knowingly played a role in bringing marijuana from a foreign country into the United States. Diaz-Carreon, 915 F.2d at 953; Williams-Hendricks, 805 F.2d at 500. In either event, the Government must establish beyond a reasonable doubt the criminal defendant's "guilty knowledge."

In the instant case, the district court instructed the jury that it could infer guilty knowledge "if the defendant deliberately blinded himself to the existence of a fact." Record Vol. II at 157 (emphasis added). While the court cautioned the jury that guilty knowledge could not be established merely by evidence of the defendant's negligence or carelessness, it instructed the jury that it could find guilty knowledge if it determined that "the defendant deliberately closed his eyes to what would otherwise have been obvious to him." Id. The district court's instruction is a common example of a "deliberate ignorance" instruction. ⁵ This Court has consistently upheld deliberate ignorance instructions as long as sufficient evidence supports their insertion in the charge. Chen, 913 F.2d at 191; United States v. de Luna, 815 F.2d 301, 302 (5th Cir.1987).

The term deliberate ignorance "denotes a conscious effort to avoid positive knowledge of a fact which is an element of an offense charged, the defendant choosing to remain ignorant so he can plead lack of positive knowledge in the event he should be...