U.S. v. Becerra

• Decision Date: 16 September 1998
• Docket Number: No. 96-40569,96-40569
• Citation: 155 F.3d 740
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross Appellant, v. Ruben Gil BECERRA, Defendant-Appellant-Cross-Appellee, and Aureliano Salinas, Sr.; Aureliano Salinas, Jr.; Alberico Salinas; Victor Leal; Jorge Luis Ramirez, Defendants-Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 740

155 F.3d 740

UNITED STATES of America, Plaintiff-Appellee-Cross Appellant, v. Ruben Gil BECERRA, Defendant-Appellant-Cross-Appellee and Aureliano Salinas, Sr.; Aureliano Salinas, Jr.; Alberico Salinas; Victor Leal; Jorge Luis Ramirez Defendants-Cross-Appellees.

No. 96-40569.

United States Court of Appeals Fifth Circuit.

Sept. 16, 1998.

James L. Powers, Paula Camille Offenhauser, Asst. U.S. Attys., Houston, TX, for United States.

Paul David Gallego, Hale & Gallego, Laredo, TX, for Becerra.

Jose Luis Ramos, Rio Grande City, TX, for Aureliano Salinas, Jr.

Julio A. Garcia, Laredo, TX, for Leal.

Abraham S. Kazen, III, Austin, TX, for Ramirez.

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

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

After a long and somewhat distorted journey, this case now reaches us on appeal for the second time. See United States v. Leal, 74 F.3d 600, 607-08 (5th Cir.1996). In the first appeal, a prior panel affirmed the convictions of Ruben Gil Becerra ("Becerra"), Aureliano Salinas, Sr. ("Salinas, Sr."), Aureliano Salinas, Jr. ("Salinas, Jr."), Alberico Salinas ("Beco") ¹, Victor Leal ("Leal"), and Jorge Luis Ramirez ("Ramirez") for conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marijuana (Count 1) and for possession with intent to distribute the same amount of that drug (Count 2), in violation of 21 U.S.C. §§ 846 and 841(a)(1). The prior panel, however, reversed and vacated the sentences that the district court imposed, concluding that the district court committed clear error in attributing to the defendants the 3,160 pounds of marijuana that police discovered in a shed on the ranch where defendant Becerra unloaded a tanker-trailer full of marijuana.

Our opinion "remand[ed] to the district court for resentencing, attributing to the defendants the amount of marijuana related to the testimony at trial." Id. at 607-08. None of the parties disputed that the testimony at trial put the weight of the expected marijuana delivery at around 1,100 pounds. See id. On remand, however, the government argued that the district court was not bound by our prior opinion to resentence the defendants based on "the testimony at trial" because the prior panel did not have a transcript of Becerra's sentencing hearing or his confession to the FBI, both of which supported the district court's conclusion that the defendants transported all 3,160 pounds of marijuana discovered in the shed. Nonetheless, the district court determined that it was bound by our prior opinion to resentence each of the defendants based on 1,100 pounds of marijuana, the amount that the confidential government informant ("confidential informant" or "CI") had testified he believed would be delivered.

The government now appeals, alleging that the district court erred in determining that it was bound by our prior opinion to resentence the defendants using 1,100 pounds of marijuana, and that we should apply an exception to the law of the case doctrine to reverse our earlier determination in Leal. The government also argues that, in any event, the district court lacked jurisdiction to resentence Leal. Becerra cross-appeals, claiming that the district court erred in resentencing him without granting a four-level, minimal-participant reduction and a three-level, acceptance-of-responsibility reduction. We affirm. Although we agree with the government that the now-supplemented record would have adequately supported the district court's decision to sentence the defendants based on 3,160 pounds of marijuana, the exceptions to the law of the case doctrine do not apply to the case at hand. We similarly reject Becerra's claims of error.

I

While our prior opinion in Leal sets out most of the facts of the underlying drug conspiracy, the parties failed to provide the prior panel with significant portions of the district court record. Consequently, the panel did not have before it several important pieces of information relevant to the validity of the district court's sentencing decision. Accordingly, we recite the facts as they relate to the issues currently on appeal and point out the critical facts that the prior panel did not have an opportunity to consider.

The drug conspiracy for which the defendants were convicted culminated on November 5, 1991, with defendants Becerra and Leal driving a tractor-trailer full of marijuana to a ranch north of San Antonio ("Kirchner Ranch"). Because the confidential informant had given the police all the details of the planned delivery, drug enforcement agents had the trailer under constant surveillance throughout this day. After the trailer arrived at the ranch, Becerra unloaded the marijuana into a shed on the Kirchner Ranch. The police arrested Becerra and Leal as they drove the empty trailer from the ranch. The police then entered the ranch and discovered 3,160 pounds of marijuana in the shed. The police subsequently arrested all of the defendants and indicted them for their actions in the drug conspiracy.

Of utmost importance in this case is the fact that Becerra gave two detailed statements to Federal Bureau of Investigation ("FBI") agents in which he admitted that he was told on at least two occasions that the November 5th delivery would total 3,000 pounds. Another significant fact is that Becerra confessed to Judge Kazen in his original sentencing hearing that the shed was empty when he began unloading the trailer and that some of the defendants--after trial, but before sentencing--told him to say that the shed was full of marijuana when he arrived. For reasons we cannot surmise, the government failed to bring either of these facts to the attention of our prior panel. Not surprisingly, Becerra similarly failed to raise them with our prior panel. Because these facts were not considered on the first appeal, we will set them out in detail here.

A.

In early January 1992, after Becerra and the other defendants had been released from jail at the request of the U.S. Attorney's Office, ² FBI Agent Mike Rayfield ("Agent Rayfield" or "Rayfield") arranged for Becerra to fly from Dallas to San Antonio to meet at the FBI offices. The FBI paid for Becerra's plane ticket and Agent Rayfield met him at the San Antonio airport on January 18, 1992. Agent Rayfield, together with another FBI Agent, David Schmactenberger, interviewed Becerra for several hours. Although the interview was not tape recorded, Agent Rayfield took detailed notes of Becerra's statement ("January 18th statement"). Becerra provided a complete description of the November 5th drug conspiracy. Becerra's statement indicates that just prior to the delivery he was told by Michael Goerndt (who is not a defendant in this case) that the delivery would be increased from 800 pounds to 3,000 pounds:

On Tuesday, November 5, 1992, BECERRA picked up GOERNDT at GOERNDT's house at approximately 11:00 a.m. Between 3:00 and 4:00 p.m., GOERNDT was paged by a guy from Laredo. BECERRA advised that GOERNDT then called Laredo from a pay phone. Upon completion of the call, GOERNDT told BECERRA "were in luck, 800 pounds is on the way." GOERNDT told BECERRA that they were to meet the load at 10:00 p.m.

BECERRA advised that GOERNDT was paged again at 7:00 p.m. GOERNDT made a phone call and at the completion of the call told BECERRA they were to meet ERNIE, PABLO, and ROGELIO at a McDonalds and 3,000 pounds of marijuana was on the way. GOERNDT further told BECERRA that 2,000 pounds was for PABLO and 1,000 pounds was for someone else.

Becerra's statement also indicates that during the November 5th delivery, another defendant (Beco) bragged that the 3,000 pound marijuana shipment came from him:

BECERRA advised that once at the motel ROGELIO stayed in the car (BECERRA's car) and he, BECERRA, went to the room and met with a Hispanic male (later identified by BECERRA in a photo array as ALBERICO SALINAS) who rode with BECERRA and ROGELIO as they led the tanker tractor-tailor to the KIRCHNER ranch. During the drive, ALBERICO constantly bragged about his marijuana trafficking and indicated the 3,000 pounds to be delivered came from him.

Becerra also admitted to Agent Rayfield that he (Becerra) was the one who unloaded the marijuana from the trailer into a shed located next to the main residence. After the interview was finished, Agent Rayfield took Becerra back to the airport and told Becerra to "stay in touch."

On June 9, 1993, after Becerra was rearrested and incarcerated in Mansfield Correctional Facility, Agent Rayfield, together with Drug Enforcement Agency Agent Jeffrey Jackson ("Agent Jackson"), met with Becerra to go over his January 18th statement. Agent Rayfield read Becerra his Miranda rights and Becerra signed a statement explaining that he did not have a lawyer and that he did not wish to have one present at that time. Agent Jackson then told Becerra that he would get no more than five years time to serve if he agreed to fully cooperate and testify in this case. ³ Becerra told the agents that he was hoping for probation, but Agent Jackson informed Becerra that probation was not possible. The agents and Becerra reviewed Becerra's statement sentence by sentence, making amendments and changes where Becerra remembered different details. Becerra again acknowledged that the statement was his complete recollection of the events surrounding the November 5th drug bust. Becerra did not state that there was already a substantial amount of marijuana in the shed when he began unloading the trailer (let alone 2,000 pounds), and he did not retract his statements acknowledging that he was told the shipment totaled 3,000 pounds.

Before trial, Becerra sought to have his statements suppressed on the ground that they had been taken in violation of his constitutional rights. The district court held an extensive suppression hearing in September 1993...