USA v. Luis Nava

• Decision Date: 15 October 2010
• Docket Number: No. 09-11035.,09-11035.
• Citation: 624 F.3d 226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis NAVA, also known as Flaco, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

624 F.3d 226

UNITED STATES of America, Plaintiff-Appellee,

v.Luis NAVA, also known as Flaco, Defendant-Appellant.

No. 09-11035.

United States Court of Appeals,Fifth Circuit.

Oct. 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Scott A.C. Meisler, Washington, DC, for Plaintiff-Appellee.

Sequoyah Perry, Lubbock, TX, for Defendant-Appellant.

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

Before DENNIS, OWEN and SOUTHWICK, Circuit Judges.

OWEN, Circuit Judge:

Luis Nava appeals the district court's imposition of a three-point sentencing enhancement for his role as a manager or supervisor in a drug conspiracy. For the following reasons, we affirm.

I

Nava, a member of the street gang known as the Almighty Latin King and Queen Nation (Latin Kings), was charged in Count One of an eleven-count superseding indictment with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii) & (b)(1)(B)(vii). Nava initially pleaded guilty pursuant to a plea agreement. At the sentencing hearing, Nava's attorney objected to the recommendation in the Presentence Investigation Report (PSR) that the three-point enhancement under United States Sentencing Guideline (U.S.S.G.) § 3B1.1(b) should be applied because Nava was a manager or supervisor in the conspiracy. Counsel asserted that there was no indication prior to the plea agreement that this enhancement would apply and that he had received no discovery showing that Nava had such a role. The court then allowed Nava to withdraw his guilty plea.

Nava later pleaded guilty to Count One of the superseding indictment, without a plea agreement. At the subsequent sentencing hearing, the district court heard testimony from two government witnesses with regard to Nava's role in the conspiracy. The court overruled Nava's objection to the three-point enhancement and determined that Nava's total offense level was thirty-eight. Since Nava had a criminal history category of I, this resulted in a guidelines range of 253 to 293 months of imprisonment. The court sentenced Nava to 264 months' imprisonment, followed by a five-year term of supervised release. Nava now appeals.

II

We review the district court's interpretation of the Sentencing Guidelines de novo, and we review any factual determinations made in sentencing for clear error. ¹ The determination that a defendant qualifies for an enhancement for his role as a manager or supervisor is a factual finding reviewed for clear error. ² The court will find clear error in this regard “only if, based on the entire evidence, the court is left with the definite and firm conviction that a mistake has been committed.” ³ “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” ⁴ Factual findings must be supported by a preponderance of the evidence. ⁵

III

Nava argues that the district court clearly erred in determining that he was a manager or leader of the drug conspiracy. He contends that there was insufficient evidence to support such a finding and that any evidence in support was unreliable. The Government contends that the evidence is reliable and supports the enhancement.

U.S.S.G. § 3B1.1(b) provides for a three-level offense increase “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” The guidelines do not define “manager” or “supervisor,” but the commentary does note that the defendant “must have been the ... manager, or supervisor of one or more other participants.” ⁶ The application notes further provide that, in distinguishing a leadership and organizational role from one of mere management or supervision, the court should consider:

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. ⁷

The PSR contains the following evidence regarding Nava and the drug conspiracy. It first explains that the Latin Kings have four regions in Texas and that each region has individual chapters of the gang. The “Inca” is the gang member in charge of each chapter, and the second in command of the chapter is known as the “Cacique.” The PSR states that Nava had been identified as a former “Cacique” for the Big Spring Chapter and as the Midland/Odessa “Inca.” The Big Spring Chapter may have had up to forty total members. The PSR further states that this chapter distributed and/or acquired marijuana and cocaine throughout the state of Texas from approximately 2001 until December 2008; Nava's brother, Jose Nava, “led the show”; and Jose Nava directed a variety of individuals, including Luis Nava, in their drug trafficking activities.

In addition, the PSR states that the Big Spring Chapter purchased homes in Big Spring, seven of which were used by the this chapter to distribute drugs. Luis Nava ran one of those homes. Nava purchased cocaine from Celestino Hinojos and transported it to members of the Latin Kings in both Big Spring and Lubbock. He also distributed large quantities of cocaine in Midland and delivered some cocaine to Jose Nava. Other sections of the PSR similarly indicate that Luis Nava was distributing large quantities of cocaine and marijuana.

The PSR shows that Luis Nava gave orders to other Latin Kings. For instance, during a “war” with the Rios Family, a rival drug trafficking enterprise, Nava ordered Robert Allen Ramirez to burn down the home of Rios's mother. At another time, Nava ordered Guerrero Olivas and Domingo Robledo to set grass fires in a certain location to draw police attention. Nava also requested that his wife, Cecily Dominique Juarez, purchase Inositol, which is used to cut powder cocaine.

In addition, two witnesses at the sentencing hearing testified as to Nava's role in the offense. Billy Koontz, a police officer for the City of Lubbock and the task force officer with the Drug Enforcement Agency (DEA), testified first. He had been assigned to the investigation targeting Jose Nava and his drug trafficking organization. Koontz testified that Luis Nava had been present at an internal meeting of the leadership of the Latin Kings, in which only “number ones” and regional officers had been allowed. Koontz was shown photographs of the meeting and pointed out Nava in the photographs. Koontz testified that the transcript and photographs from the meeting showed that, when someone asked who was closest to El Paso, Jose Nava pointed at Luis Nava and said “he's got regional,” meaning that he was in charge of the region closest to El Paso.

Koontz also testified extensively as to Nava's involvement in drug trafficking. He explained that when Nava and his brother Jose moved to Big Spring in 2003, they met Joe Canales, and Canales began to supply them with marijuana. He stated that Canales and Jose Nava became partners, but that Luis and a third brother, Reynaldo Nava, were also involved in the drug trafficking, which grew to include cocaine. Koontz further explained that in 2007, Jose and Luis Nava started obtaining drugs from a new source, Celestino Hinojos, who would at times supply them with nine kilograms of cocaine. In addition, Koontz testified about an interview he had with Carol Nava, the wife of Reynaldo. Koontz stated that she told him that she learned to dilute cocaine from watching Luis Nava.

Probation officer Wayne McKim also testified at the sentencing hearing. McKim testified that when interviewing Nava, he noticed one of Nava's tattoos and asked him about it. McKim testified that Nava explained it was a tattoo showing rank and that his brother, Jose Nava, had no rank in the Latin Kings.

A

Nava makes many objections to the reliability of the evidence, but they are unavailing. In making factual findings for sentencing purposes, the district court may consider any evidence “which bears sufficient indicia of reliability to support its probable accuracy, including hearsay evidence.” ⁸ If the defendant takes issue with the evidence, he “bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” ⁹ A presentence report “generally bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” ¹⁰ Again, the defendant bears the burden of showing that the information in the presentence report is materially untrue. ¹¹

Nava has not shown that the information introduced at sentencing or contained in the PSR is untrue. He first argues that the information contained in the PSR is not reliable since the PSR does not cite specific sources for the information. The PSR provides that the information contained within it was gathered from:

the Factual Resume prepared by the U.S. Attorney's Office, Lubbock, Texas, and investigative materials prepared by the Lubbock Police Department (LPD), Lubbock, Texas; the Lubbock County Sheriff's Office, Lubbock, Texas; the Big Spring Police Department (BSPD), Big Spring, Texas; the U.S. Drug Enforcement Administration, Lubbock, Texas; the U.S. Drug Enforcement Administration, Houston, Texas; the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Lubbock and Houston, Texas; the Dawson County Sheriff's Department, Lamesa, Texas; and the Federal Bureau of Investigation, Houston, Texas.

It further provides that “DEA Task Officer Billy Koontz was consulted.” Nava does not explain why these sources are unreliable. Because a PSR generally bears sufficient indicia of reliability and because Nava has not provided rebuttal...