U.S. v. Molina-Uribe

• Decision Date: 24 August 1988
• Docket Number: No. 87-2510,MOLINA-URIB,D,87-2510
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felipeefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1193

853 F.2d 1193

UNITED STATES of America, Plaintiff-Appellee, v. Felipe MOLINA-URIBE, Defendant-Appellant.

No. 87-2510.

United States Court of Appeals Fifth Circuit.

Aug. 24, 1988.

Joseph A. Connors, III, McAllen, Tex. (Court-appointed), J.M. Ramirez, Edinburg, Tex. (Court-appointed), Robert F. Campbell, McAllen, Tex., for defendant-appellant.

Henry K. Oncken, U.S. Atty., Paula Offenhauser, Frances H. Stacy, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before POLITZ and JOHNSON, Circuit Judges, and BOYLE, ^* District Judge.

EDWARD J. BOYLE, Sr., District Judge:

The appeal herein comes before us in a case which arises out of the killing of a DEA Agent by a drug trafficker in the Sometime before 3:00 p.m. on December 31, 1986, in McAllen, Texas, Felipe Molina-Uribe (Molina) and his co-defendant, Jesus Garcia Nieto (Garcia), were looking for a buyer for over 300 pounds of marijuana when they met the other co-defendant, Benito Cavazos-Lamas (Cavazos), in McAllen. Asked if he knew of a possible buyer, Cavazos indicated he did and, without knowing that Roberto "Raul" Ortiz (Ortiz) was a paid undercover DEA informant, arranged a meeting of Molina and Garcia with Ortiz, who was accompanied to the meeting by Ernesto Rodriguez-Ramirez (Rodriguez) another paid undercover DEA informer.

course of an undercover drug deal. The evidence concerning the events which culminated in the death of Agent William Ramos (Ramos) is essentially uncontroverted.

Ortiz, at various times between the first contact by Cavazos and completion of the sale arrangements, was in communication with the DEA agents to obtain instructions as the negotiations progressed. Finally, after several phone conversations between Ortiz and Molina and meetings in four different locations, it was arranged that DEA Special Agent Ramos, working undercover, but represented to Molina and Garcia as being a Cuban from New York, would be the buyer of the marijuana and a quantity of pills described as ionamines and pasadrenes, which Molina and Garcia were also offering for sale. Delivery and payment were to be made at 7:00 p.m. in the parking lot of Junior's Supermarket in Las Milpas, Texas.

Ramos, Ortiz and Rodriguez arrived at the parking lot in an undercover vehicle shortly after 7:00 p.m. When Molina arrived about 7:20 p.m. in a van loaded with large plastic bags containing the marijuana, Ortiz and Rodriguez went to Molina's van to inspect the marijuana following which they and Molina walked to the undercover vehicle where Ramos was waiting in the driver's seat. ¹ Molina entered the rear seat of the car. The plan was that Ramos and Molina would swap vehicles and later re-exchange them after Molina removed the money from Ramos' car and Ramos the marijuana from Molina's van.

After a brief conversation about the money, Ortiz and Rodriguez walked to the rear of the Ramos car ostensibly to get the money from the trunk for Molina's inspection. By pre-arrangement, the lifting of the trunk lid was the signal for a number of surveilling DEA agents to converge on Ramos' vehicle. As the lid was opened, Ortiz observed through the car's rear window that Ramos had turned in his seat, drawn his revolver and pointed it at Molina, whereupon Molina grabbed Ramos and the revolver and attempted to wrest it from Ramos. With the car shaking from the struggle going on within and Ramos calling for help, Ortiz and Rodriguez went forward to assist Ramos who was then partly in the rear seat with Molina.

Ortiz entered the car to help Ramos while yelling they were Federal Drug Agents, ordering Molina to release the gun and admonishing him that he could get into serious problems if he did not. Rodriguez remained outside on the right side of the car, leaned into the car and began pulling on Molina's boots. About then, a shot occurred. Ortiz then repeated his order to Molina to let go of the gun and told him Ramos was a Federal Agent at which time Ramos said "I already told him that he is arrested and he does not want to pay attention." The shot struck Rodriguez in the hand and he quickly retreated in pain. ²

As the struggle for the gun continued, second and third shots were fired. Again Ortiz admonished Molina to release the gun and told him they were Federal Agents, in response to which Ortiz said Molina made a statement in Spanish, the translation of which for the jury by Ortiz indicated that Molina thought Ramos and Ortiz were about to steal the marijuana and hurt him.

Finally, with Molina in possession of the gun and while Ramos had a hand on Molina's wrist trying to push the gun hand to the side, Molina forced the gun downward toward Ramos' chest, and fired the fourth shot into Ramos' chest fatally wounding him. (Ortiz Testimony--4R-236-294, 7R-692-707; Rodriguez Testimony--6R-560-588.)

DEA Agents Watkins and Alvarez arrived at Ramos' car almost immediately following the final shot. Watkins entered the car, put his revolver to Molina's head and Alvarez removed Ramos' gun from Molina's left hand. Molina was taken into custody and Ramos to the hospital in McAllen where he expired at 7:35 p.m.

Molina, Cavazos and Garcia were jointly charged in Counts One and Two of a superceding indictment returned on February 21, 1987. Count One, laid under 21 U.S.C. Sec. 846, alleged the co-defendants conspired to possess with intent to distribute in excess of 100 kilograms of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). In Count Two, the three were charged with the substantive offense.

Count Three, brought under 18 U.S.C. Secs. 1111 and 1114, charged that Molina, having been placed under arrest by Ramos and while attempting to escape, murdered Ramos while in the performance of his official duties by shooting him with the agent's Smith and Wesson revolver. Count Four alleges that during and in relation to the crime of violence described in Count Three, Molina used the firearm described in that count in violation of 18 U.S.C. Sec. 924(c).

On April 13, 1987, Molina pled guilty to Counts One and Two, but proceeded to trial on Counts Three and Four on which the jury returned verdicts of guilty on April 16, 1987. ³

On May 13, 1987, the Court imposed the following sentences: on each of Counts One and Two, a prison term of 25 years, a four year term of supervised release and a $50.00 special assessment; on Count Three, imprisonment for life ⁴ and a $50.00 special assessment; on Count Four, a five year prison term and a $50.00 special assessment. The Court ordered that the 25 year sentences run consecutively and the life sentence concurrently with those sentences. The five year sentence on Count Four will run consecutively to the other prison sentences under the provisions of 18 U.S.C. Sec. 924(c)(1).

Only Molina's appeal is before us. We will discuss his claims of error under the rubric of the particular counts to which they relate.

COUNT ONE

At his re-arraignment on Count One, the trial judge's Rule 11(c)(1) advice to Molina with respect to the applicable penalty was:

[Y]ou can be confined in the penitentiary for a period of five years without parole or probation, not less than five years without parole or probation, all the way up to 40 years, or you can be fined $2 million, or both; that is to say you can be fined $2 million and be confined for a maximum period of 40 years, five of which you would have to serve without probation or parole and there would have to be imposed against you an assessment of $50.00. 4R-206-207.

Molina contends his conviction on Count One should be reversed because the trial Then, in another and somewhat incongruent assignment of error, Molina complains that the Court failed to inform him of "the mandatory supervised release term of at least four years and up to life" and erred in failing to determine as to such term that "appellant understood the mandatory minimum penalty and the maximum possible penalty provided by law, including any 'special parole term.' " The "mandatory minimum penalty" referred to is presumably the five year mandatory minimum prison term of which he contends, as noted above, the Judge erroneously advised him (Br. 38-42). Why he would have the Court inform him with regard to a "special parole term" when he points out, correctly so, that Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), held special parole terms were not applicable under Sec. 846 ⁵ is not clear.

judge, in the plea proceedings, erroneously informed him that he was subject to a mandatory minimum five year term of imprisonment and was ineligible for probation and parole. He supports this contention with the assertion that 21 U.S.C. Sec. 846 does not authorize such a minimum prison term or prohibit probation or parole (Br. 34-35).

In another assignment of error he attacks the imposition of the four year term of supervised release on Count One, contending that the rationale of Bifulco should be applied to exclude application of the supervised release term in Sec. 846 convictions (Br. 35-38).

Finally, he urges that his plea of guilty was not intelligently, voluntarily and understandingly made because the trial judge failed to explain the mandatory four year supervised release term which is a penal consequence of his plea (Br. 35-38).

21 U.S.C. Sec. 846 denounces attempts and conspiracies to commit drug offenses and provides they are "... punishable by imprisonment or fine or both which may not exceed the maximum prescribed for the offense, the commission of which was the object of the attempt or conspiracy."

As pertinent to our consideration, 21 U.S.C. Sec. 841(b)(1)(B)(vii) provides a mandatory minimum five year prison term and a maximum 40 year prison term, a fine or both for the Sec. 841(a)(1) substantive offense which was the object of the conspiracy. Suspended sentences and...