United States v. Suarez, No. 16-41267

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPRISCILLA R. OWEN, Circuit Judge
Citation879 F.3d 626
Parties UNITED STATES of America, Plaintiff–Appellee, v. Paul SUAREZ, Defendant–Appellant.
Decision Date12 January 2018
Docket NumberNo. 16-41267

879 F.3d 626

UNITED STATES of America, Plaintiff–Appellee,
v.
Paul SUAREZ, Defendant–Appellant.

No. 16-41267

United States Court of Appeals, Fifth Circuit.

January 12, 2018


Maureen Clancy Smith, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Sherman, TX, for Plaintiff–Appellee.

James Patrick Whalen, Whalen Law Office, Frisco, TX, for Defendant–Appellant.

Before SMITH, OWEN, and HIGGINSON, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

A jury convicted Paul Suarez for his involvement in a drug trafficking conspiracy and for firearms offenses. Suarez appeals contending that the convictions were not supported by sufficient evidence. He also asserts that the district court erred in imposing a 120–month (ten year) mandatory minimum prison sentence for possession of a sawed-off shotgun in furtherance of a drug trafficking crime. The evidence was sufficient to sustain each of Suarez's convictions, and they are affirmed. But that the mandatory minimum sentence of 120 months of imprisonment was inapplicable, and we therefore vacate the sentence and remand to the district court for resentencing.

I

After discovering methamphetamine in Timothy Sharp's truck during the course of a traffic stop, Cooke County Police obtained a warrant to search the residence of Erica Gutierrez, from whom Sharp said he purchased the drugs. When police searched Gutierrez's home, they found her and Paul Suarez—who, according to Sharp, acted as "consul or overseer" for Gutierrez's drug deals—in the master bedroom. Also found in that room were a distributable amount of methamphetamine, baggies, scales, security cameras, a .380 caliber Davis pistol, shotgun shells, body

879 F.3d 630

armor, and a .20 gauge Winchester sawed-off shotgun that, though disassembled, had ammunition in its chamber. Police also found a .20 gauge Ithaca sawed-off shotgun underneath a mattress in a second bedroom. During the search, officers answered a call to Gutierrez's cell phone from Travis Puckett, who wanted to buy methamphetamine. Puckett agreed to meet at a local hotel, and he was arrested when he arrived there to consummate the transaction.

Gutierrez and Puckett were witnesses at Suarez's trial. Gutierrez testified that Suarez distributed methamphetamine and split the profits with her, had stayed at the house the previous night, gave her the pistol, and knew about the Winchester but not the Ithaca. Puckett testified that Suarez was often present when he bought methamphetamine from Gutierrez and that Suarez made the sale if Gutierrez was unavailable. Puckett also testified that the Ithaca, which he identified by the tape on its handle, was "always" in the master bedroom when he made purchases there.

Count I of the indictment charged Suarez with conspiracy to possess with intent to distribute narcotics in violation of 21 U.S.C. § 846. Count II charged possession of the pistol and Winchester shotgun in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c). Counts III and IV alleged possession of the unregistered Winchester and Ithaca shotguns in violation of 26 U.S.C. § 5861(d). Suarez moved for acquittal on Counts III and IV under Federal Rule of Criminal Procedure 29, but the district court denied the motion. The proposed jury charge and verdict form for Count II did not require the jury to specify which firearm—the pistol or the Winchester—supported guilt on Count II, and Suarez did not object at trial.

The jury found Suarez guilty on all four counts. The Presentence Investigation Report (PSR) recommended 60 months of imprisonment for Counts I, III, and IV and concluded that Count II required a ten-year minimum prison sentence, to run consecutively to any other counts. The district court adopted the recommendation and sentenced Suarez to 180 months of imprisonment, but stated on the record that it would have sentenced Suarez to a shorter term but for the ten-year mandatory minimum sentence that it had concluded was applicable. This appeal followed.

II

The standard of review for insufficiency-of-the-evidence claims depends on whether the claims were preserved. We review claims preserved through a Rule 29 motion de novo, but "with substantial deference to the jury verdict."1 We affirm "if a reasonable trier of fact could conclude ... the elements of the offense were established beyond a reasonable doubt."2 Claims not preserved are reviewed for plain error.3 Suarez must show a clear or obvious legal error that affects his substantial rights and "seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings."4 In reviewing the sufficiency of the evidence, an error is

879 F.3d 631

"clear or obvious" "only if the record is 'devoid of evidence pointing to guilt,' or ... 'the evidence on a key element of the offense [i]s so tenuous that a conviction would be shocking.' "5 Relief is appropriate under this exacting standard only if the Government's evidence is "obviously insufficient"6 and the defendant shows "a manifest miscarriage of justice."7 Under both standards, we "view[ ] the evidence in the light most favorable to the verdict and draw[ ] all reasonable inferences from the evidence to support the verdict."8

A

We review the conviction under Count I for plain error.9 Count I charged Suarez with conspiracy to distribute, and possession with intent to distribute, 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Defense counsel conceded that the evidence supported conviction under this count, and we agree that the evidence was sufficient.

To prove a drug conspiracy, the Government must prove (1) an agreement between two or more persons to violate narcotics laws; (2) knowledge of the agreement; and (3) voluntarily participation in the agreement.10 Gutierrez's testimony alone provides sufficient evidence to establish all three elements. "A conviction, especially one accompanied by an accomplice instruction, may be sustained on the uncorroborated testimony of an accomplice so long as 'the testimony is not incredible or otherwise insubstantial on its face.' "11 The district court gave the jury an accomplice instruction. Gutierrez testified that Suarez assisted her in selling methamphetamine and divided the proceeds with her. Her testimony is neither incredible nor insubstantial on its face.

Gutierrez's testimony was not the only evidence of Suarez's involvement in the drug distribution conspiracy. Officers testified that they found Suarez in the master bedroom with Gutierrez and that the bedroom contained a distributable quantity of methamphetamine, packing and weighing materials, security cameras, guns, and body armor. Puckett testified that Suarez was usually present when he bought drugs from Gutierrez, Suarez had answered Gutierrez's phone before, and Puckett went to the hotel where he was arrested because he assumed the male officer who answered Gutierrez's phone was Suarez. Suarez argues that Gutierrez and Puckett are unreliable witnesses, but we generally "will not disturb (the jury's) verdict [or] weigh the credibility of witnesses."12 The record is not "devoid of

879 F.3d 632

evidence pointing to guilt," nor is the evidence "so tenuous that a conviction is shocking."13

B

We also review the conviction on Count II for plain error. Count II charged Suarez with violating 18 U.S.C. § 924(c) by possessing firearms in furtherance of a drug trafficking crime. The firearms identified in Count II were the sawed-off Winchester .20 gauge shotgun and the Davis .380 caliber pistol.

To support a conviction for possession of a firearm in furtherance of a drug trafficking crime, the Government must prove that Suarez had either actual or constructive possession of a firearm14 and that the possession "further[ed], advance[d], or help[ed] forward" the drug trafficking offense.15 The following non-exclusive factors are relevant to determining whether possession is "in furtherance" of a drug trafficking crime: (1) the type of drug activity conducted; (2) the accessibility of the firearm; (3) the type of firearm; (4) whether the firearm is stolen; (5) the legality of the possession; (6) whether the gun is loaded; (7) the proximity of the weapon to the drugs; and (8) the time and circumstances under which the firearm is found.16 "The mere presence of a firearm" is insufficient.17 When evidence of more than one firearm is presented to the jury to support a single count under 18 U.S.C. § 924(c)(1)(A), the jury is not required to agree unanimously on which weapon the defendant possessed.18

On plain error review, we conclude that the record is sufficient to sustain the conviction under § 924(c)(1)(A), and the consequent imposition of a five-year mandatory minimum sentence under § 924(c)(1)(A)(i). The indictment alleged that "[o]n or about February 4, 2015," the date that the search warrant was executed, Suarez possessed the Winchester shotgun and the Davis .380 caliber pistol in furtherance of a drug trafficking crime.

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42 practice notes
  • United States v. Evans, No. 17-20158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 12, 2018
    ...or "the evidence of a key element of the offense [i]s so tenuous that a conviction would be shocking." See United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018) (alteration in original) (quoting McDowell , 498 F.3d at 312 ).With this, we consider Evans’s three sufficiency challenges i......
  • United States v. Perry, 17-30610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 2022
    ...post-trial. Accordingly, we review their claims de novo , giving "substantial deference to the jury verdict." United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). Under this standard:We search the record for evidence supporting the convictions beyond a reasonable ......
  • United States v. Perry, 17-30610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 2022
    ...and post-trial. Accordingly, we review their claims de novo, giving "substantial deference to the jury verdict." United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). Under this standard: We search the record for evidence supporting the beyond a reasonable doubt, an......
  • United States v. Huntsberry, No. 18-31269
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 10, 2020
    ...de novo . Chon , 713 F.3d at 818. When a sufficiency challenge is not preserved, we review for plain error. United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018). "[T]his court reviews jury instructions for abuse of discretion and harmless error." United States v. Vasquez , 677 F.3d 6......
  • Request a trial to view additional results
42 cases
  • United States v. Evans, No. 17-20158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 12, 2018
    ...or "the evidence of a key element of the offense [i]s so tenuous that a conviction would be shocking." See United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018) (alteration in original) (quoting McDowell , 498 F.3d at 312 ).With this, we consider Evans’s three sufficiency challenges i......
  • United States v. Perry, 17-30610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 2022
    ...post-trial. Accordingly, we review their claims de novo , giving "substantial deference to the jury verdict." United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). Under this standard:We search the record for evidence supporting the convictions beyond a reasonable ......
  • United States v. Perry, 17-30610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 2022
    ...and post-trial. Accordingly, we review their claims de novo, giving "substantial deference to the jury verdict." United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). Under this standard: We search the record for evidence supporting the beyond a reasonable doubt, an......
  • United States v. Huntsberry, No. 18-31269
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 10, 2020
    ...de novo . Chon , 713 F.3d at 818. When a sufficiency challenge is not preserved, we review for plain error. United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018). "[T]his court reviews jury instructions for abuse of discretion and harmless error." United States v. Vasquez , 677 F.3d 6......
  • Request a trial to view additional results

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