U.S. v. Franco-Torres, FRANCO-TORRES and M
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before GEE, WILLIAMS, and HIGGINBOTHAM; PATRICK E. HIGGINBOTHAM |
| Citation | 869 F.2d 797 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raul Martinanuel Velo-Gonzalez, Defendants-Appellants. Summary Calendar. |
| Docket Number | FRANCO-TORRES and M,No. 88-1382 |
| Decision Date | 24 March 1989 |
Page 797
v.
Raul Martin FRANCO-TORRES and Manuel Velo-Gonzalez,
Defendants-Appellants.
Summary Calendar.
Fifth Circuit.
Page 798
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.
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
Page 799
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.
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).
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."
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...
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U.S. v. Rodriguez De Varon, No. 96-5421
...question); United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989) (Breyer, J.) (mixed question); United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989) (fact question). While we unquestionably afford deference to a district court's subsidiary factual findings, the ultimate d......
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U.S. v. Mergerson, No. 92-1179
...those findings are clearly erroneous." United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir.1992); United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989). A factual finding is not clearly erroneous so long as it is plausible in light of the record read as a whole. See Unite......
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U.S. v. Pofahl, No. 92-8104
...Rivera, 879 F.2d 1247, 1254 (5th Cir.), cert. denied, 493 U.S. 998, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989); United States v. Franco-Torres, 869 F.2d 797, 800 (5th The district court's finding of obstructive conduct was not clearly erroneous. Pofahl wrote to her husband during his incarcerati......
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U.S. v. Mondello, No. 90-50121
...attempted to toss bags of marijuana out the window before being stopped by Border Patrol agents. See also United States v. Frances-Torres, 869 F.2d 797, 800 (5th Cir.1989) (defendant shot at agent chasing him and then threw the gun away to hide it from investigating officers). In each of th......
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U.S. v. Mergerson, No. 92-1179
...if those findings are clearly erroneous." United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir.1992); United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989). A factual finding is not clearly erroneous so long as it is plausible in light of the record read as a whole. See United ......
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U.S. v. Pofahl, No. 92-8104
...Rivera, 879 F.2d 1247, 1254 (5th Cir.), cert. denied, 493 U.S. 998, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989); United States v. Franco-Torres, 869 F.2d 797, 800 (5th The district court's finding of obstructive conduct was not clearly erroneous. Pofahl wrote to her husband during his incarcerati......
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U.S. v. Rodriguez De Varon, No. 96-5421
...question); United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989) (Breyer, J.) (mixed question); United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989) (fact question). While we unquestionably afford deference to a district court's subsidiary factual findings, the ultimate d......
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U.S. v. Mondello, No. 90-50121
...attempted to toss bags of marijuana out the window before being stopped by Border Patrol agents. See also United States v. Frances-Torres, 869 F.2d 797, 800 (5th Cir.1989) (defendant shot at agent chasing him and then threw the gun away to hide it from investigating officers). In each of th......