United States v. Sauseda, 041813 FED5, 12-50052

Docket Nº:12-50052
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. ARMANDO SAUSEDA, SR., FRANCISCO M. SAUSEDA, Defendants-Appellants
Judge Panel:Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
Case Date:April 18, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

ARMANDO SAUSEDA, SR., FRANCISCO M. SAUSEDA, Defendants-Appellants

No. 12-50052

United States Court of Appeals, Fifth Circuit

April 18, 2013

Appeals from the United States District Court for the Western District of Texas USDC No. 7:09-CR-252-1

Before REAVLEY, JOLLY, and SMITH, Circuit Judges.

PER CURIAM:[*]

After discharging firearms at a vehicle in Midland, Texas, causing the deaths of two people, Armando Sauseda, Sr. and his brother Francisco Sauseda were charged in a multi-count indictment, first, for conspiracy to possess, with intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 and, second, for aiding and abetting each other in the use of firearms to commit first-degree murder (as defined by 18 U.S.C. § 1111(a)), in violation of 18 U.S.C. §§ 924(c)(1), 924(j), and 2. After a jury trial, each defendant was found guilty on both counts. Armando and Francisco Sauseda each filed a timely appeal, alleging the court below committed various errors. We AFFIRM.

I. On May 31, 2009, Armando Sauseda ("Armando") was at a party in Midland, Texas with Jose "Chico" Urquidi Gardea ("Gardea"), a "main boss" in the Midland-Odessa drug trade and Steven Lee Soto ("Soto"), Gardea's deputy. At the party, an argument broke out between Armando and Soto. The next day, Armando received a phone call and, in the background, he could hear Soto saying, "I'm going to come pistol-whip you and kill you with your own gun." Armando and his brother Francisco Sauseda ("Francisco") felt threatened in the wake of the phone call and armed themselves, believing Soto and Gardea were coming to confront them. There was no discussion of a plan to kill Soto and Gardea and one witness, who was with the two defendants at the time, testified that he believed "nothing was going to happen." Nonetheless, Francisco and Armando positioned themselves outside, waited for Gardea and Soto, and, when, Gardea's Jeep arrived, they opened fire on the two. The shooting lasted for a brief time, and then Armando walked up to the hood of the Jeep and shot Soto in a coup de gras. Following the fusillade, both Armando and Francisco were arrested. They both admitted to firing at the Jeep. The jury convicted both Armando and Francisco of first-degree federal murder and conspiracy to possess, with intent to distribute, cocaine. They were sentenced to life imprisonment. On this appeal, Armando and Francisco's claims, broadly speaking, involve (1) the sufficiency of the evidence at trial, (2) jury instructions, (3) prosecutorial misconduct, (4) evidentiary admissions, and (5) sentencing. We briefly address these five categories.

II.

First, Armando and Francisco argue that there was insufficient evidence to support their respective convictions. Armando argues that the evidence at trial was insufficient to sustain a conviction for first or second-degree murder, saying at most it could support a conviction of voluntary manslaughter, because there was no evidence of premeditation or malice. This claim fails. Taking the facts in the light most favorable to the jury verdict, a rational juror could have found premeditation from the following sequence: (1) upon hearing the Jeep was coming down the alley behind his house, Armando reflected for an (admittedly very) brief amount of time, (2) picked up his gun and (3) decided to fire at the Jeep. See United States v. Shaw, 701 F.2d 367, 393 (5th Cir. 1983) (noting that, for premeditation, "[t]here must be some appreciable time for reflection . . . before execution of the act, although the period of time does not require the lapse of days or hours or even minutes.") (inset quotation marks omitted) (emphasis added); see also Matthew A. Pauley, Murder by Premeditation, 36 Am. Crim. L. Rev. 145, 151 (1999) (noting that, under one approach to premeditation, "time is irrelevant. . . . The defendant can premeditate in a very short time – in an instant, in fact."). Armando's actions were also "malicious" because the shots were fired with the intent to do harm. See Shaw, 701 F.2d at 392 n.20...

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