United States v. Gaspar-Felipe, 19-50997

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
PartiesUnited States of America, Plaintiff-Appellee, v. Esteban Gaspar-Felipe, Defendant-Appellant.
Docket Number19-50997
Decision Date13 July 2021

United States of America, Plaintiff-Appellee,

Esteban Gaspar-Felipe, Defendant-Appellant.

No. 19-50997

United States Court of Appeals, Fifth Circuit

July 13, 2021

Appeal from the United States District Court for the Western District of Texas USDC No. 4:18-CR-682-4

Before Jones, Costa, and Duncan, Circuit Judges.


Esteban Gaspar-Felipe appeals his convictions and sentence for his role in an alien smuggling operation during which an alien died. We affirm.

I. Background

A. Facts

In August 2018, a group of thirteen people, led by a guide nicknamed "Chivo," illegally entered the United States by crossing the Rio Grande. The group-which was reduced to eleven by the end of the trip-walked through the desert for nine nights until they reached a Texas highway. Chivo made a call on his cell phone and, several hours later, two cars arrived to pick them up. A juvenile named David Morales was driving a Chrysler 300 sedan with Orlando Gomez (Orlando) in the front passenger seat. Alexandra Wharff was driving a Chevy pickup with her boyfriend, Carlos Gomez (Carlos), in the front passenger seat. Four of the aliens went into the Chrysler, and the other seven-including Chivo-went into the Chevy.

Shortly after that, early in the morning of September 7, 2018, Border Patrol agents observed these two vehicles traveling in tandem on the highway from Marathon, Texas. The agents initiated a traffic stop on the Chrysler, which pulled to the side of the road but then drove off quickly as the agents approached. The agents were unable to catch the fleeing vehicles, which were traveling at about 100 miles per hour even though it was still dark and intermittently raining, so they alerted other officials ahead. An officer deployed spike strips, which disabled the pickup, but the Chrysler evaded them. Carlos and the aliens exited the disabled truck and escaped into the brush, but Wharff remained in the truck and was arrested immediately.

Continuing its high-speed flight, the Chrysler traveled through school zone traffic, passed school buses, and avoided a second set of spike strips. During the pursuit, which reached a top speed of 115 miles per hour, police radio traffic included reports that an object was thrown from the Chrysler's window that might have been a firearm. A third spike-strip deployment was partly successful, but the Chrysler continued to drive on the rim of the flattened tire. Officers positioned their vehicles to try and force the Chrysler to detour away from an upcoming area of school traffic and morning congestion, but the Chrysler thwarted that attempt by driving against oncoming traffic. Officers then fired their rifles at the Chrysler, trying to disable the tires. After the Chrysler stopped, officers found that one of the aliens, Tomas Juan-Tomas, had been shot to death. The other occupants were captured and detained.

Meanwhile, after escaping the disabled pickup, Carlos took the aliens into hiding so he could complete delivery and receive his payment for transporting them. But Wharff provided information that led to Carlos's arrest, and Carlos then provided information that led to the arrest of appellant Esteban Gaspar-Felipe, the last of the aliens still in hiding. Cecilio Jimenez-Jimenez and Juan Juan-Sebastian, two of the aliens in the Chrysler, identified Gaspar-Felipe as Chivo, who guided their group from Mexico.

B. Procedural History

A grand jury charged Wharff, Orlando, Carlos, and Gaspar-Felipe with two counts of transporting an illegal alien for the purpose of commercial advantage and private financial gain (Counts One and Two), and one count of transporting an illegal alien for the purpose of commercial advantage and private financial gain resulting in death (Count Three). Gaspar-Felipe was also charged with illegal reentry (Count Four). Although Gaspar-Felipe was willing to plead to Counts One, Two, and Four, he would not plead guilty to Count Three. Because the government would not offer a plea deal that excluded his guilty plea to Count Three, Gaspar-Felipe proceeded to trial.

The district court granted the government's motion to declare Jimenez-Jimenez and Juan-Sebastian unavailable material witnesses because they were removed to Guatemala after they provided videotaped depositions, and the government was unable to contact them to arrange for their returning to testify at Gaspar-Felipe's trial.

The jury found Gaspar-Felipe guilty as charged in Counts One, Two, and Four. For Count Three, the jury found Gaspar-Felipe guilty of transporting an illegal alien for commercial advantage and private financial gain, but it found-by answering a special interrogatory-that his offense did not result in Juan-Tomas's death.

A presentence report (PSR) determined Gaspar-Felipe's total offense level was 28, including a ten-level adjustment under United States Sentencing Guidelines § 2L1.1(b)(7)(D) because a person died during the smuggling venture. The PSR did not apply an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 because Gaspar-Felipe put the government to its burden of proof at trial. Based on a criminal history category of I, the resulting advisory range was 78 to 97 months in prison.

Gaspar-Felipe objected to the PSR on various grounds, including the lack of an adjustment for acceptance of responsibility and the reliance on acquitted conduct, namely the death of Juan-Tomas. Alternatively, Gaspar-Felipe requested a downward variance because he was acquitted of Juan-Tomas's death, he had been willing to plead guilty to most of the counts on which he was convicted, and a variance was warranted by the relevant sentencing factors. The court overruled all of Gaspar-Felipe's objections. After hearing arguments, the court denied Gaspar-Felipe's motion for a downward variance and determined the advisory range was appropriate. Accordingly, the court imposed a total within-Guidelines term of 78 months in prison and three years of supervised release.

Gaspar-Felipe timely appealed.

II. Discussion

Gaspar-Felipe's arguments fall into two groups: challenges to his convictions and challenges to his sentence. We address each group in turn.

A. Challenges to Gaspar-Felipe's Convictions

i. Confrontation Clause

Gaspar-Felipe argues he was convicted in violation of the Confrontation Clause, a claim we review de novo. United States v. Buluc, 930 F.3d 383, 387 (5th Cir. 2019).

The issue concerns two witnesses-Juan Juan-Sebastian and Cecilio Jimenez-Jimenez-who were among the aliens Gaspar-Felipe smuggled. Captured after the September 2018 car chase, both men were deposed and then returned to Guatemala. But the government failed to secure either man's presence at Gaspar-Felipe's June 2019 trial, and so it moved to have them declared unavailable. Gaspar-Felipe timely objected, claiming their absence would violate his Sixth Amendment right to confront the witnesses against him. The district court granted the government's motion and both men's videotaped depositions were played for the jury.[1]

The Sixth Amendment provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const., amend. VI. This clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004). It is undisputed that "the playing of [a] videotaped deposition [at trial] constitute[s] the admission of [a] testimonial statement[]," United States v. Tirado-Tirado, 563 F.3d 117, 122-23 (5th Cir. 2009), and that Gaspar-Felipe was able to cross-examine both Juan-Sebastian and Jimenez-Jimenez during their depositions.[2] Thus, Gaspar-Felipe's Confrontation Clause claim turns on whether the men were "unavailable."

"A witness is 'unavailable' for Confrontation Clause purposes if the 'prosecutorial authorities have made a good-faith effort to obtain his presence at trial.'" Tirado-Tirado, 563 F.3d at 123 (quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980), overruled on other grounds by Crawford, 541 U.S. 36).[3] "The lengths to which the government must go to produce a witness to establish the witness's unavailability is a question of reasonableness and the government need not make efforts that would be futile." United States v. Aguilar-Tamayo, 300 F.3d 562, 565 (5th Cir. 2002). To be sure, a "merely perfunctory effort" is not enough. United States v. Allie, 978 F.2d 1401, 1408 (5th Cir. 1992); see also Aguilar-Tamayo, 300 F.3d at 566 (government did not use "reasonable means" where it "stipulated that it took no steps to secure the presence of . . . witnesses"). But when the government takes "numerous steps to insure that deported witnesses w[ill] return for trial," it has likely made a good faith effort. Aguilar-Tamayo, 300 F.3d at 566 (discussing Allie, 978 F.2d 1401). Furthermore, "[t]he ultimate success or failure of [the government's] efforts is not dispositive," provided it "has employed reasonable measures to secure the witness' presence at trial." Allie, 978 F.2d at 1407 (quoting Aguilar-Ayala v. Ruiz, 973 F.2d 411, 418 (5th Cir. 1992); see also Mechler v. Procunier, 754 F.2d 1294, 1297 (5th Cir. 1985) (witness unavailable where "state demonstrated adequate, though unsuccessful, attempts to secure her presence"). "The prosecution bears the burden of establishing that a witness is unavailable." Tirado-Tirado, 563 F.3d at 123.

In this case, the government's efforts to secure Juan-Sebastian's and Jimenez-Jimenez's presence at trial began during their depositions. The government informed both men they might have to testify at a future trial, received their verbal assurances under oath that they would return to testify if summoned, and issued...

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