United States v. Torres-Magana, 18-50056

• Decision Date: 10 September 2019
• Docket Number: No. 18-50056,18-50056
• Citation: 938 F.3d 213
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Guadalupe TORRES-MAGANA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

938 F.3d 213

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Guadalupe TORRES-MAGANA, Defendant–Appellant.

No. 18-50056

United States Court of Appeals, Fifth Circuit.

FILED September 10, 2019

Joseph H. Gay, Jr., Assistant U.S. Attorney, Diane D. Kirstein, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Richard Dennis Esper, Esq, El Paso, TX, for Defendant-Appellant.

Before SMITH, DENNIS, and HAYNES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jose Torres-Magana pleaded guilty of conspiracy to possess with intent to distribute five kilograms or more of cocaine. He appeals, contending that the district court clearly erred in enhancing his sentence under U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 2D1.1(b)(15)(A) (U.S. SENTENCING COMM’N 2016).¹ Finding no clear error, we affirm.

I.

Torres-Magana led a drug-trafficking organization that delivered cocaine across the country. He and his wife, Patricia Torres, met with a man in October of 2016 to arrange cocaine deliveries. That man was an undercover federal agent.

Almost two months later, Torres-Magana called his stepson, Alfonso Govea, Jr. (hereinafter "Govea"), and asked Govea to meet with him and Mrs. Torres, Govea’s mother. When they met, Mrs. Torres demanded that Govea meet with the agent. But Govea refused because "he knew it was something illegal" and wanted nothing to do with it. Displeased, Torres-Magana and Mrs. Torres argued with Govea.

Just a few days later, Torres-Magana again tried to solicit Govea. He called Govea and told him that he had "an emergency" and needed to take Mrs. Torres to a cancer treatment appointment. He asked Govea to deliver a box of cocaine that he had left outside Govea’s house. He implored Govea, stating that he had "never asked anything" from him and that he and Mrs. Torres would otherwise have delivered the box themselves. Again, Govea refused, driving to Torres-Magana’s house and arguing further with the couple about their attempts to involve Govea in the illegal delivery. But at long last, the stepson agreed to deliver the box of cocaine.

Though Govea was reluctant to participate in the drug delivery, he was involved in other ways with the drug organization. Indeed, he and Mrs. Torres co-owned businesses that laundered the drug proceeds.

Torres-Magana was arrested and pleaded guilty of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 846 & 841(a)(1). Among other enhancements, the revised presentence investigation report ("PSR") recommended a two-level enhancement under § 2D1.1(b)(15)(A), because Torres-Magana had "used fear, impulse, friendship, affection, or some combination thereof" to involve Govea in the controlled-substance offense. The PSR pointed out that Torres-Magana had argued with Govea "on several occasions while trying to convince him to participate in one of [his] drug-trafficking ventures." What’s more, Torres-Magana had pressured Govea to participate by telling him that Torres-Magana needed to take Mrs. Torres (Govea’s mother) to a cancer treatment appointment instead of delivering the box of cocaine himself. And "there [wa]s no indication Govea[ ] received compensation for his participation, nor that he had knowledge of the scope and structure of the enterprise."

Torres-Magana objected to an enhancement under § 2D1.1(b)(15)(A). He averred that the evidence did not suggest that Govea had only minimal knowledge of the drug enterprise’s scope and structure—even if Govea concededly had "minimal involvement" with it. Instead, the evidence supported the inference that Govea "was, at best, willfully blind" to the details of the drug enterprise. Surely Govea would not have been entrusted to deliver a box of a large amount of cocaine alone and unsupervised if Govea lacked "substantial knowledge" of the underlying enterprise. Torres-Magana also vaguely referenced Govea’s co-ownership of a business with Govea’s mother, Mrs. Torres. And Torres-Magana asserted that an enhancement was unwarranted because "no one received remuneration from this particular shipment."

The district court overruled Torres-Magana’s objection and applied the enhancement. The court noted that it could rely on the PSR in deciding whether the enhancement applied and that Torres-Magana had refused to put on any evidence outside of what was already in the record.

Based on an offense level of 35 and a criminal-history category of I, the guidelines recommended 168 to 210 months’ imprisonment. After considering Torres-Magana’s presentation, the guidelines, and the 18 U.S.C. § 3553(a) factors, the court sentenced Torres-Magana to 172 months.² Torres-Magana objected to "each of the defense objections that the [c]ourt overruled" and "to the overall sentence in light of [ 18 U.S.C. §] 3553." Torres-Magana appeals, contending that the district court clearly erred in imposing the enhancement.

II.

"Because [Torres-Magana] preserved [his objections to the enhancement] in the district court, we review the application of the Guidelines de novo and the district court's factual findings—along with the reasonable inferences drawn from those facts—for clear error." United States v. Alcantar , 733 F.3d 143, 146 (5th Cir. 2013). Under that deferential clear-error standard, "a sentencing court’s factual findings will be upheld if they are plausible in light of the record as a whole, and they will be deemed clearly erroneous only if a review of all the evidence leaves this court with the definite and firm conviction that a mistake has been committed." United States v. Richard , 901 F.3d 514, 516 (5th Cir. 2018) (internal quotation marks omitted).

Thus, even if we "would have weighed the evidence differently," we will not set aside—so long as they are plausible—the district court’s factual findings. United States v. Harris , 434 F.3d 767, 773 (5th Cir. 2005) (internal quotation marks omitted). Indeed, "[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City , 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

A.

Under § 2D1.1(b)(15)(A), a district court may enhance a base offense level by two levels if the defendant received a leadership-role enhancement under U.S.S.G. § 3B1.1 and (1) "the defendant used fear, impulse, friendship, affection, or some combination thereof to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances"; (2) "the individual received little or no compensation from the" offense; and (3) "the individual had minimal knowledge of the scope and structure of the enterprise." U.S.S.G. § 2D1.1(b)(15)(A).³ "The government must prove sentencing enhancements by a preponderance of the evidence." United States v. Juarez , 626 F.3d 246, 251 (5th Cir. 2010).

In deciding whether to apply an enhancement, district courts may adopt information in the PSR. See United States v. Gomez-Alvarez , 781 F.3d 787, 796 (5th Cir. 2015). "As a general rule, information in the [PSR] is presumed reliable and may be adopted by the district court without further inquiry if the defendant fails to demonstrate by competent rebuttal evidence that the information is materially untrue, inaccurate[,] or unreliable." Id. (internal quotation marks omitted). "The defendant bears the burden of demonstrating that the information is materially untrue[,] and if the defendant fails to offer rebuttal evidence[,] the sentencing court is free to adopt the information without further inquiry." Id. (internal quotation marks omitted) (cleaned up). The court generally should not consider a defendant’s unsworn objections and argumentation "in making its factual findings." United States v. Alfaro , 919 F.2d 962, 966 (5th Cir. 1990).⁴

B.

Torres-Magana challenges the district court’s findings on each prong of the § 2D1.1(b)(15)(A) enhancement. He does not challenge, however, that he received a leadership-role enhancement under § 3B1.1.

First, Torres-Magana contends that the district court improperly found that he used fear, impulse, friendship, affection, or some combination thereof to involve Govea—his stepson—in the controlled substance offense. On that point, he contends only that the court incorrectly "found" that Govea was Torres-Magana’s son—instead of his step son.

Second, he maintains that the government has "failed to show that had [the drug delivery] been successful, Govea[ ] would still not have benefited" from the delivery. He points out that "no one received any remuneration from this transaction," given that the government intercepted the cocaine.

Third, Torres-Magana avers that Govea had more than "minimal knowledge" of the drug enterprise’s scope because (1) Govea ran and co-owned businesses through which he laundered the drug proceeds; (2) he "did not have to be lured or intimidated into being a member of th[e] enterprise"; (3) he "clearly had extensive knowledge of the workings of th[e] enterprise"; and (4) the PSR determined that his role was not mitigating. Torres-Magana’s contentions are not persuasive.

1.

The district court properly found that Torres-Magana used his familial relationship with Govea—his stepson—to pressure him and involve him in the offense. Indeed, the record is full of evidence that Govea wanted nothing to do with the cocaine delivery and that Torres-Magana used their relationship to overcome Govea’s opposition.

Initially, Torres-Magana invited Govea to a meeting where Mrs. Torres demanded that Govea meet with (someone whom the couple did not realize was) an undercover agent. Govea refused, stating that he did not want to participate in illegal activity. Unmoved, Torres-Magana and Mrs. Torres argued with Govea about his refusal to get involved.

Not to be deterred, Torres-Magana later called Govea and told him that he had an emergency and needed to take Govea’s mother to a cancer treatment appointment. No doubt playing on Govea’s...