U.S. v. Cabral-Castillo, CABRAL-CASTILLO and B

• Citation: 35 F.3d 182
• Decision Date: 03 October 1994
• Docket Number: No. 93-8573,CABRAL-CASTILLO and B,93-8573
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guadalupeenito Alvarado-Montes, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 182

35 F.3d 182

UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe CABRAL-CASTILLO and Benito Alvarado-Montes Defendants-Appellants.

No. 93-8573.

United States Court of Appeals Fifth Circuit.

Oct. 3, 1994.

Rafael Salas, El Paso, TX (Court-appointed), for Guadalupe Cabral-Castillo.

Alejandro B. Gonzalez, El Paso, TX (Court-appointed), for Benito Alvarado-Montes.

Margaret Leachmen, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

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

Before KING and BENAVIDES, Circuit Judges, and LEE, ¹ District Judge.

TOM S. LEE, District Judge:

A three-count indictment was returned against appellants Benito Alvarado-Montes (Alvarado) and Guadalupe Cabral-Castillo (Cabral) charging each with possession with intent to distribute cocaine, conspiracy and importation of cocaine. Alvarado was charged in a separate indictment with assaulting a federal officer. Following a consolidated trial of the charges, a jury convicted Alvarado of each of the four counts, and he was subsequently sentenced to concurrent terms of 188 months for the drug offenses and 36 months on the assault charge. Cabral was convicted of the possession and conspiracy counts and received concurrent terms of 97 months for each count of conviction. On this appeal, Cabral challenges his conviction and sentence, contending that the district court erred in denying a motion to suppress Cabral's confession and that the sentencing judge erred in imposing a two-level increase for obstruction of justice under U.S.S.G. Sec. 3B1.1. Alvarado similarly complains of the two-level increase for obstruction and maintains, additionally, that the sentencing court erred in assessing separate two-level upward adjustments under U.S.S.G. Secs. 2D1.1(b)(1) and 3C1.2 based on the same conduct.

I.

On the night of November 12, 1992, Border Patrol Agent Max Hidalgo observed an individual dressed in dark clothing and carrying a gym bag, later identified as defendant Alvarado, illegally entering the United States by wading across the Rio Grande River. Alvarado was watched as he ran across the Border Highway and headed north. Within a short time, another Border Patrol agent, Tamra Sandoval, observed two men leaving the area in a green Ford LTD; the driver was later identified as Alvarado and the passenger as Cabral. Responding to a call from Agent Sandoval for assistance, Border Patrol Agents Bruce Concepcion and Frederico Solis followed the LTD as it pulled into the parking lot of a bar. Agents Concepcion and Sandovol likewise entered the parking lot, stopped and exited their respective vehicles. As Agent Concepcion stepped from his vehicle, a marked green Border Patrol Suburban, the LTD driven by Alvarado drove straight toward him at a high rate of speed. Agent Concepcion jumped behind the Border Patrol vehicle, drew his revolver and fired one shot at the defendants' vehicle. The LTD struck Concepcion's vehicle, then exited the parking lot and headed east at a high rate of speed. Concepcion and Sandovol followed in separate vehicles. Another agent, Martinez, who had been monitoring the radio transmissions concerning these events, joined the pursuit. As Martinez followed the LTD, he saw a black gym bag thrown from the driver's side of the LTD. At that point, Alvarado lost control of the LTD and crashed. The defendants were arrested, advised of their rights and taken to Border Patrol Headquarters. Agent Martinez retrieved the gym bag and found it to contain what appeared to be cocaine wrapped in plastic bundles. Subsequent testing at the DEA laboratory confirmed that the substance was, in fact, cocaine.

Once at the Border Patrol station, both defendants were interviewed by Customs Special Agent Robert J. Pizzuro. Alvarado did not provide a statement. Cabral, however, told agents orally and provided a written statement that Alvarado had offered him $500 to drive his car into El Paso and that Alvarado had carried the gym bag which contained the cocaine into the United States.

II.

In the district court, Cabral moved to suppress his statements to Customs Agent Pizurro, claiming that his statements were effectively coerced. Following a suppression hearing at which the government, but not Cabral, presented evidence, the district court made the following findings:

Cabral-Castillo's statement to the Customs agent was voluntary and not the product of coercion, either physical or psychological. Immediately after the car wreck in which he was involved, it was noted that the Defendant appeared "stunned", and that his forehead was bleeding from a cut. However, the statement in question was given at a different location, and more than two and one-half hours later. During this interval, Cabral-Castillo had received first-aid treatment for the cut on his head. He had also been given Miranda warnings at least twice. He waived his constitutional rights in writing. Furthermore, he chose to write out his statement, and to put it in his own words. In short, Cabral-Castillo gave the statement voluntarily, and with a full understanding of the fact that he could decline to make any statement. His motion to suppress must be denied.

On appeal, Cabral maintains that the district court should have granted his motion to suppress because his statements, both written and oral, were made under circumstances so oppressive as to render them involuntary. He contends, more particularly, that he was "tricked and deceived" into confessing by the agents' refusal to furnish him needed medical attention until he confessed. The uncontroverted testimony offered by the government at the suppression hearing plainly supports the district court's findings and there was therefore no error in the denial of Cabral's motion to suppress.

III.

Both defendants challenge the district court's imposition of a two-level increase to their base offense levels for obstruction of justice under U.S.S.G. Sec. 3C1.1 based on their having perjured themselves in their trial testimony. They maintain that the sentencing judge ² failed to make sufficient factual findings relating to any alleged perjury to support the increases.

Cabral and Alvarado both testified at the trial and denied any knowledge of the cocaine that formed the basis of the drug charges. Both maintained, additionally, that they were attacked and beaten by the agents during their arrest. As discussed above, Cabral further claimed that Agent Pizzuro engaged in coercive conduct which resulted in Cabral's confession. Following the jury's verdicts, the trial judge expressed for the record his view of the defendants' veracity, as he was aware that their sentences would be determined by a different judge. He stated:

I want the probation officers to note, and will--this, of course, will be on the record. With regard to the obstruction of justice determination in the sentence, that this Court feels that both Defendants perjured themselves and testified falsely in this case, falsely accusing agents when it appears obvious that their testimony was patently false, and I believe that should go in the probation report.

The presentence investigation reports prepared by the probation officer recommended the increases in defendants' base offense levels for obstruction of justice, explaining as follows:

During the trial in this case, the Defendants made allegations that Border Patrol agents in this particular case beat them after they were arrested and lied about the entire details of the offense. Cabral-Castillo indicated he was beaten and forced to make a statement admitting to the crime. It should be noted that at the time of the verdict, the Court ruled that there was sufficient evidence to apply an adjustment for obstruction of justice.

At the sentencing hearing, the court overruled Cabral's objection to the probation officer's findings, stating, "[O]n the obstruction of justice, which has to do with his allegedly false testimony, there is a finding that was made by another Court on that, and the Probation Office just reflected that. And I think that's a fact finding that I'm entitled to rely on." With the increase for obstruction, Cabral's guideline range on each count was 97 to 121 months; he was sentenced at the bottom of the range to concurrent terms of 97 months. The court similarly rejected Alvarado's objection to the recommendation of an enhancement for obstruction of justice, stating, "I think the calculations made in the presentence report are correct and I adopt them." The guideline range for Alvarado, with the two-point obstruction increase, was 188 to 235 months and, as with Cabral, he was sentenced at the low end, to concurrent terms of 188 months. In both cases, the sentencing court adopted the findings contained in the presentence report.

This court will uphold a sentence under the Guidelines "unless it was imposed in violation of the law; imposed as a result of an incorrect application of the sentencing guidelines; or outside the range of the applicable sentencing guideline and is unreasonable." United States v. Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 395, 126 L.Ed.2d 343 (1993). Application of the guidelines is a question of law subject to de novo review. Id. Section 3C1.1 provides for the enhancement of a defendant's offense level "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." The comments to the section recognize that "[a] defendant's denial of guilt is not a basis for application of this provision," U.S.S.G. Sec. 3C1.1, comment (n. 1(c)), inasmuch as the section is not intended to punish a defendant for exercising a constitutional right, United States v. Laury, 985 F.2d 1293 (5th Cir.1993). A sentence may, however, be enhanced...