U.S. v. Pineda-Ortuno

• Decision Date: 16 January 1992
• Docket Number: PINEDA-ORTUNO and C,No. 90-8718,90-8718
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gilbertoarlos Ramirez-Carranza, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 98

952 F.2d 98

UNITED STATES of America, Plaintiff-Appellee, v. Gilberto PINEDA-ORTUNO and Carlos Ramirez-Carranza Defendants-Appellants.

No. 90-8718.

United States Court of Appeals Fifth Circuit.

Jan. 16, 1992.

Steven L. Woolard, Fort Stockton, Tex. (Court-appointed), for Pineda-Ortuno.

Dan Newsome, Marfa, Tex. (Court-appointed), for Ramirez-Carranza.

LeRoy Morgan Jahn, Asst. U.S. Atty., Richard F. Ederer, U.S. Atty., San Antonio, Tex., W.W. Torrey, Asst. U.S. Atty., Midland, Tex., for U.S.

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

Before HIGGINBOTHAM and BARKSDALE, Circuit Judges, and McBRYDE ¹, District Judge.

McBRYDE, District Judge:

Appellants, Gilberto Pineda-Ortuno ("Pineda") and Carlos Ramirez-Carranza ("Ramirez"), appeal from their convictions of (1) conspiracy to possess more than 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 846, (2) possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), (3) carrying a firearm, a Titan .38 caliber revolver during and in relation to the possession and conspiracy violations, in violation of 18 U.S.C. § 924(c)(1), and (4) carrying a firearm, a Colt .38 caliber semiautomatic pistol, during and in relation to the possession and conspiracy violations in violation of 18 U.S.C. § 924(c)(1). Seven issues common to appellants are presented by them for review. ² Three address the sufficiency of the evidence to support the jury's verdict of guilt under 21 U.S.C. §§ 841(a)(1) & 846 and 18 U.S.C. § 924(c)(1); one concerns the judge's charge; two concern the judge's instructions to the jury; and another concerns alleged improper statements made by the prosecutor in closing argument. Ramirez designates an additional issue presented for review as to evidence used against him at trial. We have concluded that none of the issues designated by appellants is ground for reversal.

Pineda includes an additional argument under one of his points that the evidence is insufficient to sustain his guilt on the two gun counts "because ... at most the government proved one act with two weapons." Pineda's brief at 9. We interpret his complaint to be that the trial court erred in sentencing him on both firearms counts because each was not linked to a separate drug trafficking offense in the indictment. Because we conclude that this constitutes plain error, we vacate the sentences of both appellants, even though the issue was not raised by Ramirez, and remand with instructions that the firearms count elected by the government be dismissed. Appellants will then be resentenced upon the remaining counts.

I.

On July 25, 1990, United States Border Patrol Agent Felix Chavez stopped a blue 1977 Chevrolet Caprice. Ramirez was driving the vehicle. Pineda occupied the rear seat where he appeared to have been sleeping. Agent Chavez determined that Ramirez and Pineda were both Mexican citizens. Because Ramirez was "acting in a nervous manner", he referred the vehicle to the secondary inspection area, where supervisory Border Patrol Agent Joseph L. Tammen and Agent Chavez requested that appellants exit the vehicle. Agents Chavez and Tammen conversed with appellants in Spanish while conducting a search of the vehicle. The dog used in the search jumped into the trunk of the car, indicating that contraband was in the trunk or back seat area. Agent Chavez inspected the back seat of the vehicle and felt something under the seat. When he lifted the seat, he found a brick-sized object wrapped in tape and a .38 caliber semiautomatic pistol with two fully loaded magazines adjacent to it. The agents conducted a field test and determined that the taped package contained cocaine. Appellants were placed under arrest. Upon further inspection, the agents found another taped package and a fully loaded revolver.

Prior to and following their arrest, appellants gave conflicting stories as to their activities. Basically, each alleged that he had agreed to accept money to drive the car from Anaheim, California, to Houston, Texas, and that he did not know where or to whom the vehicle was to be delivered, but that the other defendant did know. When asked if he owned the car, Ramirez asserted that it belonged to Pineda. Pineda, however, denied ownership, and asserted that the car belonged to Pedro Duran in California.

At trial, Agent Chavez testified that appellants appeared nervous as the car was being searched. Further, when he went over to inspect the back seat of the car, Pineda came up behind him and was looking at him as though upset. Chavez asked Pineda to step back so that he could search the interior of the car. After defendants were arrested, Chavez asked if they knew the contraband was under the back seat. Ramirez replied that he knew the guns were there.

Agent Tammen testified that Pineda came up behind Agent Chavez in an aggressive manner as Chavez was going to inspect the back seat. Pineda acted as though the agents were getting close to something he did not want them to find.

DEA Agent Kelly, who interviewed appellants, testified that Ramirez wanted to make a deal with the government and asked, "if I was to tell you the whole story, what would you do for me?" or something to that effect.

Ramirez testified that he was a mechanic and carpenter who lived on Palm Street in Anaheim, California. He had been told he would be paid $500.00 plus bus fare back to California for helping to drive the car to Houston. He received no money up front. He did not know where to deliver the car, but Pineda did. Ramirez saw Pineda with a pistol, government's exhibit 8, the .38 revolver, before they left on their trip. Pineda started off driving the car, then Ramirez took over and Pineda got in the back seat. Ramirez further testified that while he was in jail, he was threatened, he was beaten, and finally, he was offered $5,000.00 by Pineda not to testify, even though Ramirez maintained that he knew nothing to tell.

Pineda testified that a man named Pedro Duran offered to pay him $400.00 to drive the car from California to Houston. The car was to be delivered to Duran's brother because Duran did not have immigration papers to allow him to travel. Duran told Pineda that Ramirez would have the address where the car was to be delivered. Pineda received $500.00 from Duran to pay for expenses on the trip and a plane ticket for Pineda's return to California. Pineda drove the car for several hours then went to sleep in the back seat. He awoke when the car was stopped at the Sierra Blanca checkpoint. Pineda gave the DEA agents a telephone number for Duran, which was also the number on a motor vehicle contract and security agreement found in the car when it was stopped. The contract reflected that the car was purchased by a Roberto Carreno of 1233 Palm, Anaheim, California, apparently the same street where Ramirez said he lived.

Two fellow prisoners testified that they were not aware of any threats made against Ramirez. A jailer testified that there was no record of any assault or threatened assault against Ramirez. Nor was there any record of any bribe offered to Ramirez.

Each appellant was convicted of one conspiracy count, one count of possession with intent to distribute and two counts of carrying a firearm during the commission of a drug trafficking crime. They were sentenced to seventy-eight (78) months imprisonment on each of the two drug trafficking crimes, to run concurrently, and sixty (60) months on each of the firearms counts, to run consecutive to each other and consecutive to the sentence for the drug trafficking crimes.

II.

Appellants first challenge the sufficiency of the evidence to support their convictions on the drug trafficking counts. Both allege that the government failed to prove that they knowingly possessed the cocaine hidden under the back seat of the car and that they conspired to possess and distribute it.

We review the sufficiency of the evidence supporting a criminal conviction to determine whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Espinoza-Seanez, 862 F.2d 526, 536 (5th Cir.1988). The evidence is viewed most favorably to the government, drawing all reasonable inferences and credibility choices in favor of supporting the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988). The standard is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Knowing possession can be inferred from a defendant's control over the vehicle in which the illicit substance is contained in a hidden compartment if there exists other circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.1990). Here, appellants' control over the vehicle, which they both admitted driving, when combined with appellants' nervousness, conflicting statements, and implausible stories, is sufficient to support a finding that they had knowing possession. United States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir.1990). Contra, United States v. Ferg, 504 F.2d 914 (5th Cir.1974). The fact that appellants possessed a larger quantity of cocaine than an ordinary user would possess for personal consumption supports the finding that appellants intended to distribute the drug. United States v. Kaufman, 858 F.2d 994, 1000 (5th Cir.1988).

Appellants rely on United States v. Pierre, 932 F.2d 377 (5th Cir.1991), in support of their position that the evidence is insufficient to support knowing possession and conspiracy. However, rehearing en banc has been granted in that...