U.S. v. Franco-Torres

• Decision Date: 24 March 1989
• Docket Number: FRANCO-TORRES and M,No. 88-1382,88-1382
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul Martinanuel Velo-Gonzalez, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 797

869 F.2d 797

UNITED STATES of America, Plaintiff-Appellee, v. Raul Martin FRANCO-TORRES and Manuel Velo-Gonzalez Defendants-Appellants.

No. 88-1382

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 24, 1989.

Lucian Campbell, Federal Public Defender, William R. Maynard, Asst. Federal Public Defender, El Paso, Tex., for Franco-Torres.

Ricardo D. Gonzalez, El Paso, Tex., (court-appointed), for Velo-Gonzalez.

LeRoy M. Jahn, Michael R. Hardy, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Raul Martin Franco-Torres and Manuel Velo-Gonzalez each pled guilty to conspiring to import more than one hundred kilograms of marijuana into the United States in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and 963. On appeal, they challenge only their sentences. Both defendants contend that the sentencing guidelines are unconstitutional. Both also contend that they should have received reductions to their offense level because they accepted responsibility for their crimes. Velo-Gonzalez contends he should have received an additional reduction to his offense level because he was a minimal, rather than minor, participant in his crime. Franco-Torres contests the district court's findings that he possessed a firearm during commission of the offense, and that he obstructed the administration of justice. Finding no error in the sentences imposed, we affirm.

I

Border patrol agents found some duffel bags containing marijuana. They set up a stake out. Velo-Gonzalez and Franco-Torres entered the area in a white van. The two men loaded the duffel bags into the van. Soon thereafter, the agents saw the van leave the area. Velo-Gonzalez was driving, and Franco-Torres was his passenger. The agents began following, and the suspects spotted Agent Mario Esparza, who was driving a marked Border Patrol car, behind them. They tried to escape, and a high speed chase was had. The van eventually ran into a wall. Both suspects fled on foot. The agents followed on foot, and caught the suspects. Upon questioning, Velo-Gonzalez and Franco-Torres said that they were to receive $700 and $500, respectively, for transporting contraband. The duffel bags were found to contain more than 500 pounds of marijuana.

The defendants and the government vigorously dispute what happened while the agents pursued the defendants on foot. Agent Esparza testified at the sentencing hearing that defendant Franco-Torres had shot at him. Earlier, however, when the court accepted the defendants' pleas, the prosecutor had said that one defendant shot at the agents, but that the agents could not identify which defendant had done so. Both defendants, on the other hand, denied that they possessed guns during the crime. Neither defendant possessed a gun at the time the two were taken into custody.

The chase took place close to midnight. The area of the chase was searched at the time of the chase and again the next morning, but no gun was found.

II

Both defendants challenge the constitutionality of the sentencing guidelines. Their argument is foreclosed by the Supreme Court's recent decision in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

III

Both defendants contend that they had accepted responsibility for their crimes, and that the district judge should therefore have reduced their offense levels by two points. See Guideline 3E1.1. Whether or not a defendant has accepted responsibility is a factual question, depending largely upon credibility assessments. With respect to such assessments, we defer to the conclusions of the sentencing judge. We will therefore affirm the sentencing judge's findings unless they are "without foundation." United States v. Thomas, 870 F.2d 174, 177 (5th Cir.1989).

In this case, the sentencing judge clearly disbelieved the testimony given by both defendants at the sentencing hearing. The judge found that they had not accepted responsibility for their crimes. We see no reason to conclude that these findings were "without foundation."

IV

The district court determined that Franco-Torres had a gun during commission of the crime, and that Franco-Torres fired at Agent Esparza. Franco-Torres contends that this factual finding was clearly erroneous. The finding that Franco-Torres possessed a gun formed the basis for a two-point increase to his offense level under Sec. 2D1.4. Section 2D1.4 provides that a defendant convicted of a conspiracy involving a controlled substance is to receive the sentence that would have applied had the conspiracy achieved its object. Section 2D1.1 specifies the sentence applicable to the object crime, and Sec. 2D1.1(b)(1) provides for a two-point increase to the offense level if the defendant possessed a firearm during commission of the crime.

The judge's finding that Franco-Torres fired the gun and disposed of it formed the basis for the judge's determination that Franco-Torres had obstructed justice. See Guideline 3C1.1.

At the sentencing hearing, Agent Esparza testified, under oath and subject to cross-examination, that Franco-Torres had shot at the agent during the chase. The agent said that he was climbing a wall that separated him from the defendant when the defendant fired the shot. Agent Esparza said he was able to tell which defendant had fired the shot because of the relative positions of the two, and because he had been shot at before.

On cross-examination, the attorney for Franco-Torres brought out that Agent Esparza had not been shot at for three years that there were various structures in the area which might have created echos and so misled Agent Esparza about the direction of the shot; and that Agent Esparza had not, in his original report on the incident, specified which defendant had shot at him. Franco-Torres testified, also under oath and subject to cross-examination, that he had no gun and had fired no shots. Franco-Torres said that the only shots fired came from the guns of Border Patrol agents. The evidence brought out at the sentencing hearing also showed that several agents had searched the area for a gun, but none was ever found.

The sentencing judge chose to believe the agent's testimony. The judge said, "I do find as a fact that you [Franco-Torres] had a firearm with you and that you attempted to fire it at the pursuing officer. He wouldn't have to be any genius to know that someone was shooting and that somebody was shooting at him."

The firearm issue turns upon the credibility of Agent Esparza's testimony. As the guidelines specifically require, we defer to the sentencing judge's credibility determinations. See 18 U.S.C. Sec. 3742(d). The issues were well-developed at the sentencing hearing, and the judge had a full opportunity to consider the competing accounts. We do not review de novo but ask only whether the trial judge's findings are clearly erroneous. They are not, and we will not disturb them.

V

Franco-Torres contends that even if the judge's factual findings are correct, those findings do not support a conclusion that Franco-Torres obstructed the administration of justice. Under Sec. 3C1.1, the sentencing judge is directed to increase the defendant's offense level by two if "the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant...