United States v. Cantu–Ramirez

• Decision Date: 06 February 2012
• Docket Number: No. 10–40279.,10–40279.
• Citation: 669 F.3d 619
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Oscar CANTU–RAMIREZ, also known as Cowboy, also known as Carin; Lauro Abel Grimaldo, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

669 F.3d 619

UNITED STATES of America, Plaintiff–Appellee,

v.Oscar CANTU–RAMIREZ, also known as Cowboy, also known as Carin; Lauro Abel Grimaldo, Defendants–Appellants.

No. 10–40279.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 2012.

Terri Lynn Hagan (argued), Heather Harris Rattan, Asst. U.S. Attys., Plano, TX, for Plaintiff–Appellee.

Danny Eugene Wood, Jr. (argued), Terrell, TX, William A. Bratton, III, Dallas, TX, Matthew McGavock Robinson (argued), Robinson & Brandt, PSC, Covington, KY, for Defendants–Appellants.

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

Before SMITH, PRADO and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Oscar Cantu–Ramirez (“Cantu–Ramirez”), Raul Cantu–Ramirez (“Raul”), and Lauro Abel Grimaldo (“Grimaldo”) appeal their sentences and convictions relating to their alleged roles in a 16–person conspiracy to distribute tens of thousands of pounds of drugs throughout the United States. We AFFIRM.

I.

A. The Conspiracy¹

This case arises from the successful investigation and prosecution of an international criminal organization that trafficked in significant amounts of marijuana and cocaine. The conspirators brought drugs from Mexico to the United States in a conspiracy so large that law enforcement investigated it on two fronts simultaneously. The first front was based in Texas, the second in Mississippi. The conspirators regularly shipped thousands of pounds of marijuana and hundreds of kilograms of cocaine at a time across the Mexican border and to various destinations in the United States ranging from Laredo to New York.

Nazario Cavazos ran the drug trafficking organization, and Cantu–Ramirez and Grimaldo were major figures in his organization. Cantu–Ramirez's co-conspirators testified that he was one of Cavazos's most trusted confidantes. Cantu–Ramirez negotiated the sale of marijuana and cocaine with an undercover agent; was responsible for the delivery of four marijuana samples to the agent; discussed customers who did not pay for drugs with co-conspirators; took orders for cocaine and marijuana from customers and co-conspirators; transported and collected payment for drugs on behalf of Cavazos; and was present when a vast quantity of marijuana was delivered to a business called Landmark Tile that testimony showed acted as a regular stopping point on the drugs' journey from Mexico to their ultimate destinations in the United States.

Grimaldo was also heavily involved in the conspiracy. Officer John Gottlob testified that Grimaldo was instrumental in supplying Cavazos with drivers to make the journey necessary to deliver giant stashes of drugs to destinations all across the United States. Grimaldo also personally delivered 1,000 pounds of marijuana to help the conspiracy and recruited and supervised his drivers, instructing them to call him as they cleared checkpoints designed to detect illegal cargo. Grimaldo was paid for his role, and he paid his drivers from the proceeds.

B. Proceedings Below

A grand jury returned a one-count indictment charging Cantu–Ramirez, Raul, Grimaldo, and thirteen others with conspiracy to manufacture or distribute or possess with intent to manufacture or distribute a controlled substance in violation of 21 U.S.C. § 846. Cantu–Ramirez, Raul, and Grimaldo were arrested pursuant to a warrant issued when the indictment was returned. After their arrest, Raul and Grimaldo knowingly and voluntarily waived their rights and agreed to answer law enforcement officers' questions.

Raul and Cantu–Ramirez are brothers. Before trial, Raul made incriminating statements to law enforcement. Cantu–Ramirez moved to sever his case from Raul's, claiming that no jury could compartmentalize the evidence against the brothers and give them both a fair trial. The district court denied the motion to sever and allowed the admission of Raul's confession on the condition that the parties agree to redactions of the confession to eliminate all reference to Cantu–Ramirez. The district court also instructed the jury that Raul's statements were evidence against him only and not to consider his statements as evidence against any other defendant.

During trial, but outside the presence of the jury, the government called Immigration and Customs Enforcement Special Agent David Guerra Jr. to address any remaining concerns about Raul's oral statement. After hearing Special Agent Guerra's testimony and Cantu–Ramirez's objections, the district court found Raul's redacted statement was admissible. When the jury returned, the district court warned it to consider Raul's statement only against him. Raul's redacted statement never mentioned Cantu–Ramirez.

Grimaldo made incriminating statements to law enforcement in an interview shortly after his early morning arrest. He received a Miranda warning and waived his rights, but he did not sign a written waiver. His interview occurred approximately ninety minutes before he was presented to a magistrate judge. Grimaldo argued at a suppression hearing that his statements were coerced and that his waiver of his Miranda rights was not voluntary. The Magistrate Judge issued a report recommending the denial of Grimaldo's Motion to Suppress. The district court adopted that recommendation.

The jury returned a guilty verdict against each defendant. It found Cantu–Ramirez responsible for the possession or distribution of five kilograms or more of cocaine, 1,000 kilograms or more of marijuana, and some amount of ecstasy/MDA. It found Raul responsible for the possession or distribution of 1,000 kilograms or more of marijuana. Grimaldo was found responsible for the possession or distribution of five kilograms or more of cocaine and 1,000 kilograms or more of marijuana.

Prior to sentencing, the probation officer prepared a pre-sentence report (“PSR”) and determined that Grimaldo was responsible for 693.14 kilograms of cocaine and 15,124.22 kilograms of marijuana, which converted to a total marijuana equivalency of 153,752.22 kilograms of marijuana and a base offense level of 38 under the Guidelines. The probation officer added three levels based upon the determination that Grimaldo played a leadership role in the conspiracy. With no criminal history points, his criminal history category was I, and his recommended Guidelines range of imprisonment was 324–405 months.

At the sentencing hearing, the district court sustained the government's objection to the three-level increase for Grimaldo's leadership role, increasing it to a four-level increase. The court also overruled Grimaldo's objections to the drug amount the PSR attributed to him. The court calculated Grimaldo's offense level at 42, which corresponded to a Guidelines sentencing range of 360 months to life imprisonment. Grimaldo requested a sentence of 120 months, noting several mitigating factors under 18 U.S.C. § 3553(a), such as his age, strong work history, family ties, and the effect incarceration would have on his family. The district court sentenced Grimaldo to 360 months, noting that his sentence was at the bottom of the Guidelines range. The court did not address his Section 3553(a) arguments at all. The district court sentenced Cantu–Ramirez to 360 months imprisonment, the low-end of his Guidelines range, and to five years supervised release. It sentenced Raul to 121 months imprisonment. It sentenced Grimaldo to 360 months imprisonment, the low-end of his Guidelines range, and to five years supervised release. Cantu–Ramirez, Raul, and Grimaldo timely appealed. We have since dismissed Raul's appeal and consolidated Cantu–Ramirez's and Grimaldo's appeals.

II.

A. Grimaldo waived his severance argument.

Grimaldo argues that the district court erred by failing to sever his case from his co-defendants'. That argument fails. We recently held, in United States v. Bernegger, that where an appellant failed to move to sever before trial as Federal Rule of Criminal Procedure 12(b) requires, he waived his severance argument on appeal. 661 F.3d 232, 236–37 (5th Cir.2011) (per curiam). Here, Grimaldo not only failed to move for severance before trial, he also failed to object to joinder and failed to join the motion to sever of his co-defendant. Accordingly, he has waived his severance argument.

B. The district court did not err by denying Grimaldo's Motion to Suppress his confession.

Grimaldo argues that the district court should have granted his Motion to Suppress his confession because DEA agents delayed presenting him to a magistrate judge for a little more than two hours for the purpose of interviewing him and extracting a confession.² The government responds that Grimaldo has failed to demonstrate a causal connection between the delay and his confession.

Whether a confession is admissible or not turns on whether it was made voluntarily. See, e.g., United States v. Seale, 600 F.3d 473, 482 (5th Cir.2010) (citing Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)). In reviewing a district court's judgment on a motion to suppress, we review the district court's factual findings for clear error and the ultimate issue of voluntariness, a legal conclusion, de novo. United States v. Clay, 408 F.3d 214, 221 (5th Cir.2005).

Before the enactment of Federal Rule of Criminal Procedure 5(a), an officer's obligation to present an arrestee before a magistrate judge without unreasonable delay was a common law requirement, and federal courts enforced it by suppressing a defendant's confession made after unreasonable delay. See Corley v. United States, 556 U.S. 303, 306–07, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). The purpose of that rule was to “prevent secret detention” and “to inform a suspect of the charges against him.” Id. at 306, 129 S.Ct. 1558 (citing McNabb v. United States, 318 U.S. 332, 342, 63 S.Ct. 608, 87 L.Ed. 819 (1943)). In Mallory v. United States, the Supreme Court applied the newly enacted Rule 5(a) and held that a...