U.S. v. Hernandez, No. 04-16663.
| Citation | 433 F.3d 1328 |
| Decision Date | 27 December 2005 |
| Docket Number | No. 04-16663. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arturo HERNANDEZ, also known as Cesar Muniz, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Appeal from the United States District Court for the Middle District of Florida.
Before CARNES, HULL and PRYOR, Circuit Judges.
Arturo Hernandez appeals his convictions and sentences for conspiracy to possess with intent to distribute two kilograms of cocaine hydrochloride, and possession with intent to distribute two kilograms of cocaine hydrochloride. 18 U.S.C. § 2; 21 U.S.C. §§ 841, 846. Hernandez argues that the evidence was insufficient to support his convictions, the district court erroneously denied his motion for a new trial, and his sentence violated the Sixth Amendment, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because the evidence was sufficient to support the verdicts and a new trial was not warranted, we affirm the convictions. Because the district court erred when it applied the Sentencing Guidelines as mandatory and the error was not harmless, we vacate Hernandez's sentence and remand for resentencing.
In 2004, Felipe Rivas, a confidential informant, approached David Lopez's son about buying Lopez's truck. Lopez's son asked Rivas if he was interested in drugs. When Rivas spoke with Lopez about buying the truck, he told Lopez that he drove a "semi" for a living. Lopez then asked Rivas if he ever transported drugs, and Rivas responded, yes. Lopez and Rivas exchanged telephone numbers and began to communicate about transporting drugs from Texas to Florida.
Several days later, Rivas met with Lopez and Antonio Benavides to discuss transporting five "keys" of cocaine from Texas. Rivas agreed to go to Texas to get the drugs for Lopez and Benavides. Days later, Rivas called Lopez and stated that he was returning from Texas with the drugs. Lopez informed Rivas that he needed five "keys" of cocaine immediately, and they arranged to meet to transfer the drugs. The agreed upon price was $17,000 per kilogram.
On the day of the meeting, Rivas called Lopez to finalize the exchange. Lopez informed Rivas that he had enough money for only two kilograms because "one of his guys had a car accident." Drug Enforcement Agents provided Rivas with packaged cocaine, and Rivas took the drugs to the appointed meeting place along with Erica Rodriguez, an undercover officer who posed as his wife. Lopez met Rivas and told him that there were "some guys coming with the money." Lopez and Rivas then called Benavides to give him directions to the meeting place. Benavides then arrived with Hernandez in a black Ford Expedition. Benavides was driving the vehicle, and Hernandez was riding in the passenger seat. Lopez approached the window of the Expedition and asked how much money Benavides and Hernandez had. Hernandez replied "nine and this." Hernandez was holding a bag of money and Benavides was pulling more money out of his pockets and putting it in the bag. Lopez took the money from Hernandez.
Rivas then called Lopez over to his vehicle to look at the drugs. Rivas told Lopez there were five kilograms there, and Lopez responded that he would need more because "two of these belongs to these guys." After Lopez checked the cocaine, Rivas got into his car. He heard Hernandez yell "trainos nos de nosotros" or "bring ours." Rivas told Lopez to give it to him. Lopez, Benavides, and Hernandez then were arrested.
Hernandez, Lopez, and Benavides were indicted for conspiracy to possess with intent to distribute cocaine hydrochloride and possession with intent to distribute cocaine hydrochloride. Lopez pleaded guilty. Hernandez and Benavides proceeded to trial.
At trial, a number of witnesses testified regarding Hernandez's involvement in the conspiracy. Rivas, who was wearing a wire during all the transactions, testified that, at the transfer, Lopez asked Hernandez how much money there was and Hernandez responded that there was "nine and this." Rivas testified that Hernandez was holding a bag full of money. Rivas testified that Benavides also removed money from his pants pockets and put the money in the bag. After the arrests, the agents found $33,800 in the bag.
Rivas testified that, while he was completing the transaction with Lopez, he heard Hernandez say that he wanted his two in Spanish, and Lopez told Rivas "this guy wants his two." On cross-examination, Rivas stated that Hernandez said "trainos nos de nosotros," which means "bring us ours." Rivas further testified that, during the transfer, Lopez stated that he would need more cocaine later because two of the kilograms of cocaine he was purchasing belonged to "these guys," which referred to Benavides and Hernandez. Rivas testified that he had not seen or heard of Hernandez before the day of the drug deal.
Rodriguez, who remained in Rivas's truck during the transfer, testified that, toward the end of the transaction, she saw Hernandez make a beckoning motion with his hand and heard him say "bring us our two." Like Rivas, Rodriguez later testified, on cross-examination, that Hernandez said "trainos nos de nosotros" or "bring us ours." Rodriguez testified that, before the transfer, she had not seen, heard of, or met Hernandez.
Rana Saoud, a special agent for the Immigration and Customs Enforcement, testified that she participated in the investigation. Saoud videotaped the transaction between Lopez and Rivas. Saoud also testified that she read the Miranda rights and conducted a short interview with Benavides after he had waived his rights. Saoud testified that Benavides stated that he received a telephone call earlier in the day from Hernandez, who asked Benavides to give him a ride to meet with Lopez because Hernandez was drunk and did not want to drive. Another agent, Karl Weiss, testified that Benavides also stated he had not met Hernandez before that day.
Lopez and Benavides also testified at trial. Lopez testified that Hernandez was not involved in the purchase of the cocaine. Lopez stated that he asked to borrow Hernandez's car because one of his other associates had an accident earlier in the day. Lopez testified that, when he first asked to borrow Hernandez's car, Hernandez refused because it was his employer's car. Lopez then asked Hernandez to give him a ride, but Hernandez refused because he was intoxicated. Lopez testified that Hernandez finally agreed to allow him to use the car if someone else drove. Lopez testified that, at the scene of the drug deal, he asked Hernandez to hand him a bag located in the car and asked Benavides how much money was there, to which Benavides replied "nine." He testified that Hernandez did not say "bring us ours," but instead shouted that he was leaving.
Benavides testified that Hernandez was drunk the day of the drug deal and possibly did not know what was happening. Benavides testified that he had known Hernandez about a year and a half. Benavides testified that Hernandez was asleep in the car while Benavides drove. Benavides also testified that he did not hear Hernandez say anything.
The jury convicted Hernandez of the offenses charged, and the jury found that Hernandez's offenses involved two kilograms of cocaine hydrochloride. The district court denied Hernandez's motion for judgment of acquittal or, in the alternative, a new trial. The district judge stated that, although he questioned the credibility of the witnesses for the prosecution and found the case against Hernandez to be weak, he could not supplant the findings of the jury. After calculating the appropriate sentencing range under the Guidelines, the district court sentenced Hernandez to the lowest sentence in the range, and the district court stated that it would have imposed a lower sentence if it had the authority.
We review de novo the denial of a motion for judgment of acquittal. United States v. Bowman, 302 F.3d 1228, 1237 (11th Cir.2002). "When the motion raises a challenge to the sufficiency of the evidence, we review the sufficiency of the evidence de novo, drawing all reasonable inferences in the government's favor." Id. We review the denial of a motion for a new trial for abuse of discretion. Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir.2004).
Hernandez appeals both his convictions and sentence. As to his convictions, Hernandez makes four arguments: (1) the evidence was insufficient to support the verdict; (2) the standard of review used to judge the sufficiency of the evidence is unconstitutional; (3) the district court employed the wrong standard when it denied his motion for a new trial; and (4) the judgment entered against him incorrectly reflects convictions for five kilograms instead of two. Finally, Hernandez argues that his sentence, which was imposed under a mandatory guidelines system, violated the Sixth Amendment contrary to Booker. Because the government correctly concedes both that we should remand this case for resentencing and that the judgment of conviction erroneously states the amount of cocaine involved as five kilograms instead of two, we do not address those two arguments. We address Hernandez's first three arguments in turn.
Hernandez argues that the evidence is too weak and the inferences too tenuous to support his conviction. He argues that the government has only "two brief snippets of testimony" that connect him with the offenses: the testimony that he said "nine and this" and "bring ours." Hernandez argues that the statement "nine and this" does not make sense and the government did not explain what the words meant. He also argues that the statement "bring ours" was not explained by...
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