U.S. v. Lopez-Urbina
| Decision Date | 15 August 2005 |
| Docket Number | No. 04-50135.,04-50135. |
| Citation | 434 F.3d 750 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roberto LOPEZ-URBINA; Raul Badillo-Rangel, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.
Larry Chris Iles, Rockport, TX, for Roberto Lopez-Urbina.
Appeal from the United States District Court for the Western District of Texas.
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
Roberto Lopez-Urbina and Raul Badillo-Rangel were both charged with carjacking (counts 1-3), using and carrying a firearm during a crime of violence (counts 4-6), conspiracy to use and carry a firearm during a crime of violence (count 7), and transportation of stolen vehicles (count 8) in violation of 18 U.S.C. §§ 2119, 924(c) and (o), 2312, and 2. The charges stemmed from two carjackings and one attempted carjacking that occurred in December 2002 in and around Austin, Texas. After a jury trial, they were convicted on all charges. On appeal, Badillo-Rangel challenges his conviction and sentencing. Lopez-Urbina appeals his sentence.
During the jury trial, evidence introduced by the prosecution established the following: Badillo-Rangel, who was in his late thirties, recruited Jose Canales and Jose Rodriguez, two high school students, to steal vehicles. At some point, Badillo-Rangel became dissatisfied with the number of vehicles Rodriguez and Canales were stealing so he enlisted Lopez-Urbina to assist them. Badillo-Rangel provided Lopez-Urbina with a firearm to use in connection with the thefts. Badillo-Rangel also provided his recruits with a red Suzuki Sidekick.
On December 8, 2002, Lopez-Urbina was driving the Suzuki when he, Rodriguez, and Canales approached a Chevrolet truck in the parking lot of a restaurant in Pflugerville, Texas. Lopez-Urbina banged on the window of the truck, opened the door and pointed a gun at the passenger while one of Lopez-Urbina's cohorts threatened the driver with a knife. Both occupants were ordered to get out of the truck and run. When the driver approached the front of the truck, he turned around to look back. Lopez-Urbina pointed the gun at him and appeared to cock the gun, again instructing the driver to run.
On December 9, 2002, Lopez-Urbina, Rodriguez, and Canales spotted and followed a Ford F-150 truck to a house. Badillo-Rangel had instructed the men to look for a Ford F-150 truck. Lopez-Urbina and Rodriguez attempted to steal the truck. Lopez-Urbina pointed a gun at the driver, and instructed the driver to exit the truck and give him the keys. Several of the driver's family members ran out of the house to see what was going on and began screaming. Lopez-Urbina fired the gun when it appeared someone was attempting to read the license plate of the Suzuki he had been driving. The men were unable to start the truck so they left without it.
Shortly thereafter, the men spotted a Dodge Ram truck. When the truck stopped in front of a house, Lopez-Urbina and Rodriguez approached the truck. Lopez-Urbina pointed a pistol at a person who was waiting in the truck and ordered him to get out. On Badillo-Rangel's instructions, Lopez-Urbina informed Rodriguez where to take the stolen vehicle. Rodriguez and Canales drove the truck to a designated drop off spot at an apartment complex. Canales then took the license plates off of the Dodge Ram and switched them for license plates on a truck in the parking lot.
On December 10, 2002, an Austin police officer found the license plates belonging to the Chevrolet truck. The Chevrolet's plates were discovered on an unidentified truck in an apartment complex. The plates belonging to the unidentified truck were recorded entering Mexico the previous evening on a vehicle driven by Alexis Carranza. Carranza was identified by a traffic citation he received in Texas close to the Mexican border. The citation led the police to Carranza's apartment. Carranza later testified that Badillo-Rangel hired him to drive stolen trucks to Mexico. He stated that Badillo-Rangel and Lopez-Urbina would leave trucks at his residence and Carranza would then drive the trucks to Mexico. Upon delivery in Mexico, Carranza would collect money that was to be returned to Badillo-Rangel. Badillo-Rangel also arranged for Carranza's transportation back to Texas.
The prosecution also offered the testimony of a local car dealer. The dealer testified that Badillo-Rangel told him that Lopez-Urbina would steal trucks and then the two of them would sell the trucks in Mexico. Badillo-Rangel had asked for the dealer's assistance in transporting the stolen trucks, but the dealer refused because he was already on probation.
The jury found Lopez-Urbina and Badillo-Rangel guilty of all eight counts charged in the indictment. Lopez-Urbina was sentenced to concurrent terms of 135 months of imprisonment for counts one, two, three, and seven; 120 months of imprisonment for count four, to run consecutively to count one; 300 months of imprisonment as to counts five and six, consecutive to the other sentences; and 120 months of imprisonment for count eight, to run concurrently with count one. Lopez-Urbina was also sentenced to three years of supervised release as to each of the eight counts, with all terms to be served concurrently. Badillo-Rangel was sentenced to concurrent terms of 120 months of imprisonment as to counts one, two, three, seven, and eight; 84 months of imprisonment as to count four, to be served consecutively to count one; and 300 months of imprisonment as to counts five and six, consecutive to the other sentences. Badillo-Rangel was also sentenced to three years of supervised release as to each of the eight counts, with all terms to be served concurrently. Lopez-Urbina's and Badillo-Rangel's notices of appeal were timely filed.
We first address Badillo-Rangel's challenge to his conviction. Badillo-Rangel argues that the district court erred in denying his motion for judgment of acquittal on the charge of aiding and abetting the use and carrying of a firearm during a crime of violence. At the close of the prosecution's case, Badillo-Rangel made a Rule 29 motion for judgment of acquittal because he argued that the prosecution failed to produce sufficient evidence to sustain a conviction on all counts against him. He renewed his motion prior to the charges being submitted to the jury.
We review the district court's denial of a motion for judgment of acquittal de novo. United States v. Floyd, 343 F.3d 363, 370 (5th Cir.2003) (citation omitted).
We will affirm the jury's verdict if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.
Id. (citation omitted).
In reviewing a challenge to a conviction based on the alleged insufficiency of the evidence, we must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted). "We do not consider whether the jury correctly determined guilt or innocence, [only] whether the jury made a rational decision." United States v. Rivera, 295 F.3d 461, 466 (5th Cir.2002) (citation omitted); see also United States v. Moser, 123 F.3d 813, 820 (5th Cir.1997) (). "`Our review of the sufficiency of the evidence does not include a review of the weight of the evidence or of the credibility of the witnesses.'" Floyd, 343 F.3d at 370 (quoting United States v. Myers, 104 F.3d 76, 78-79 (5th Cir.1997)). Indeed, because the evidence must be viewed in the light most favorable to the verdict, the evidence offered by the prosecution should be assumed to be true. United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir.1997). "`[I]f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt.'" Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985) (quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir. 1982)).
The specific charge that Badillo-Rangel attacks is aiding and abetting the use and carrying of a firearm during a crime of violence in contravention of 18 U.S.C. §§ 2 and 924(c). The indictment asserted that Badillo-Rangel aided and abetted Lopez-Urbina in the use and carrying of a firearm during the December 2002 carjackings. To convict a defendant of aiding and abetting a crime under § 2, "`the Government must prove (1) that the defendant associated with the criminal venture, (2) participated in the venture, and (3) sought by action to make the venture succeed.'" United States v. Sorrells, 145 F.3d 744, 753 (5th Cir.1998) (quoting United States v. Gallo, 927 F.2d 815, 822 (5th Cir.1991)). "`Association means that the defendant shared in the criminal intent of the principal.'" Id. (quoting United States v. Salazar, 66 F.3d 723, 729 (5th Cir.1995)). "Participation means that the defendant engaged in some affirmative conduct designed to aid the venture." Id. (citation omitted). "The government must therefore prove the underlying crime was committed by someone other than the defendant and that the defendant himself either acted or failed to act...
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