United States v. Chavez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-20622
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSCAR CHAVEZ; ARTURO RODRIGUEZ GUERRA; MIGUEL PEREZ LOPEZ

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
August 4, 1997

Before KING, DAVIS, and DEMOSS, Circuit Judges.

PER CURIAM:

Oscar Chavez, Arturo Rodriguez-Guerra, and Miguel Perez-

Lopez appeal their convictions for conspiracy to possess

marijuana with intent to distribute, in violation of 21 U.S.C.

§ 846, and for aiding and abetting the possession of marijuana

with intent to distribute, in violation of 18 U.S.C. § 2 and 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B). Miguel Perez-Lopez also

appeals his conviction for using and carrying a firearm during a

drug trafficking offense, in violation of 18 U.S.C. § 924(c).

Finally, Perez appeals an increase in his sentence for lying to

the court during his sentencing hearing. Finding no error, we

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affirm the judgments of conviction and sentences.

I. BACKGROUND

Oscar Chavez (“Chavez”), Arturo Rodriguez-Guerra

(“Rodriguez”), and Miguel Perez-Lopez (“Perez”) were charged by

indictment with conspiracy to possess marijuana with intent to

distribute, in violation of 21 U.S.C. § 846, and with aiding and

abetting the possession of marijuana with intent to distribute,

in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B). Perez was also charged with using and carrying a

firearm during and in relation to a drug trafficking offense, in

violation of 18 U.S.C. § 924(c).

The district court denied the defendants’ motions for

judgment of acquittal at the close of the government’s case-in-

chief and again at the close of the evidence, and the jury

convicted each of the defendants as charged. Chavez was

sentenced to 63 months confinement and a five-year term of

supervised release, and was assessed a $12,500 fine and a $100

special assessment. Rodriguez was sentenced to 120 months

confinement and a five-year term of supervised release, and was

assessed a $12,500 fine and a $100 special assessment. Perez was

sentenced to 78 months confinement on the drug counts, followed

by 60 months confinement on the firearm count. He was

additionally sentenced to a five-year term of supervised release,

followed by a three-year term of supervised release, and was

assessed a fine of $12,500 and a special assessment of $100.

The events leading to the indictment began in August 1995

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when Donato “Rico” Chavez, a paid informant for various law

enforcement agencies, contacted DEA agents Russell Reina and

Wendell Campbell and offered to provide information on alleged

drug dealer Oscar Chavez. The agents agreed to arrange a deal

for 400 pounds of marijuana. Rico contacted Chavez and set up

the purchase.

On September 27, 1995, Rico and Agent Reina, acting

undercover and driving separate vehicles, met with the defendants

at a restaurant. Chavez told Rico that Rodriguez was his friend

and that Rodriguez had the “stuff.” Chavez asked Rico if he had

the money, and Rico replied that it was in Reina’s truck. Rico,

Chavez, and Rodriguez approached the passenger side of Reina’s

pickup, where Reina displayed a bag of cash through the open

passenger window.

Rico gave Chavez the keys to the rented van that Rico had

driven to the site. Chavez handed the keys to Rodriguez, who in

turn handed them to a third person. Reina identified the third

person as Perez, but Rico was certain it was not. The third

person, identified as Perez by an agent on surveillance, departed

in the van. Chavez then suggested that the rest of them leave

the area. Rico, Chavez, and Rodriguez drove to a nearby Burger

King, followed by Reina in the pickup truck. Reina claimed that

Rodriguez drove in a manner that indicated he was attempting to

avoid surveillance, although Rico testified that there was

nothing unusual about their route.

Shortly after Rico, Chavez, Rodriguez, and Reina returned to

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the original restaurant, the van pulled into the parking lot.

Reina observed a bulky package in the back seat of the van and

gave the arrest signal. All three defendants were arrested.

During the course of the arrest, Perez pulled a loaded firearm

from his waistband, but threw it aside when overpowered by a

police officer.

II. DISCUSSION

A. Sufficiency of the Evidence to Support a Finding of

Predisposition Against Chavez

Chavez contends that the district court erred in failing to

grant his motions for judgment of acquittal because there was

insufficient evidence to support a finding of predisposition

against him. He argues that he properly raised the defense of

entrapment at trial and the government failed to meet its burden

of proving beyond a reasonable doubt that he was predisposed to

commit the charged drug offense.

“When the government . . . has induced an individual to

break the law, and the defense of entrapment is at issue, the

prosecution must prove beyond a reasonable doubt that the

defendant was inclined to commit the criminal act even before he

was approached by government agents.” United States v. Byrd, 31

F.3d 1329, 1334-35 (5th Cir. 1994)(citing Jacobson v. United

States, 503 U.S. 540, 548-49 (1992)), cert. denied, 514 U.S. 1052

(1995). Using a sufficiency of the evidence analysis, this court

must accept the facts in the light most favorable to the guilty

verdict and may reverse only if no rational jury could have found

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predisposition beyond a reasonable doubt. Id. at 1335. Many

factors may indicate a defendant’s predisposition, including “a

showing of a defendant’s desire for profit, his eagerness to

participate in the transaction, his ready response to the

government’s inducement offer, or his demonstrated knowledge or

experience in the criminal activity under investigation.” United

States v. Madrigal, 43 F.3d 1367, 1370 (10th Cir. 1994)(internal

quotation omitted), cert. denied, 514 U.S. 1089 (1995).

Rico testified that when he first met Chavez through Rico’s

friend Santos, Santos purchased marijuana from Chavez.

Furthermore, Chavez readily agreed to arrange a drug deal when

Rico told him he had a buyer, and Chavez demonstrated knowledge

of his role as a broker during the drug transaction. A jury

could reasonably infer from this evidence that Chavez was

predisposed to commit the offense.

B. Fifteen-Year-Old Conviction

Rodriguez argues that the district court abused its

discretion in permitting the government to introduce his 1979

conviction for conspiracy to possess with intent to distribute

cocaine. Rodriguez contends that the prior conviction is so

remote that its prejudicial value outweighs its probative value.

Extrinsic evidence is properly admitted under Federal Rule

of Evidence 404(b)1 only if it is relevant to an issue other than

1
Rule 404(b) provides in pertinent part: “Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, [or] intent . . . .

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the defendant’s character and its probative value is not

substantially outweighed by the danger of unfair prejudice.

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978),

cert. denied, 440 U.S. 920 (1979). We review the district

court’s ruling under Rules 4032 and 404(b) for abuse of

discretion. United States v. Gadison, 8 F.3d 186, 192 (5th Cir.

1993).

The admission of extrinsic evidence is permissible under

Rule 404(b) when a defendant places his intent at issue in a drug

conspiracy case by pleading not guilty. United States v.

Wilwright, 56 F.3d 586, 589 (5th Cir.), cert. denied, 116 S. Ct.

345 (1995). Although the temporal remoteness of extrinsic

evidence introduced to show intent weakens its probative value,

the age of a prior conviction has never been held to be a per se

bar to its use under Rule 404. See United States v. Broussard,

80 F.3d 1025, 1040 (5th Cir.), cert. denied, 117 S. Ct. 264

(1996). Instead, we apply the test set forth in Beechum.

This court stated in Beechum that “[t]he task for the court

in its ascertainment of probative value and unfair prejudice

under rule 403 calls for a common sense assessment of all the

circumstances surrounding the extrinsic offense.” 582 F.2d at

914. The probative value of extrinsic evidence is not an

absolute, but must be determined with regard to various factors,

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Rule 403 provides: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”

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such as the extent to which the defendant’s unlawful intent is

established by other evidence, the overall similarity of the

extrinsic and charged offenses, and the amount of time that

separates the extrinsic and charged offenses. Id. at 914-15.

Applying the Beechum test, the district court found:

Well, this is probative to show that [Rodriguez]
wasn’t merely present, that he had knowledge and
intent.

. . .

In this case, the evidence of the prior conviction
is relevant. It involves the same crime. Even though
it’s an old conviction, it is for conspiracy to possess
with intent to distribute cocaine. . . .

I think the admission of this prior conviction
makes it more likely than not that the jury will find
that the defendant was not a mere spectator, but that
he had knowledge and intent to possess with intent to
distribute.

The second criteria is whether the relevance is
substantially outweighed by the prejudice to the
defendant. And it’s not mere prejudice in the sense
that he might be convicted. It’s undue or unfair
prejudice.

I conclude that relevance in this case is not
substantially outweighed by the prejudice to the
defendant where the other evidence of the defendant’s
guilt is either circumstantial or is not strong in the
sense that the only direct evidence of Mr. Rodriguez
Guerra’s involvement is an alleged statement made by
Co-defendant Oscar Chavez to Rico Chavez, the
confidential informant, whose credibility has been
probed and will, no doubt, be subjected to argument by
defense counsel.

So, I conclude that, in this case, the relevance
to this -- of this conviction, given the lack of other
evidence of Mr. Rodriguez Guerra’s intent, is not
substantially outweighed by the prejudice to him from
admissibility of the conviction.

After admitting the prior conviction into evidence, the

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district court instructed the jury that they were to consider the

evidence of the “prior act . . . which was committed many years

before the offense for which he is charged in this case” for the

“very limited purpose” of “determining whether Mr. Rodriguez

Guerra had the state of mind or intent necessary to commit the

crimes against him charge in the indictment in this case.”

The district court considered each of the factors set out in

Beechum. In light of the similarity of the offenses and the

paucity of other evidence of intent, the court determined that

the probative value of the prior conviction, though weakened by

its age, was not substantially outweighed by any prejudicial

effect. We cannot say that the district court abused its

discretion in admitting the evidence of the 15-year-old prior

conviction.

C. Sufficiency of the Evidence to Support Rodriguez’s Convictions

“A conviction must be allowed to stand if, after viewing the

evidence in the light most favorable to the prosecution, the

reviewing court finds that a rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” United States v. Sotelo, 97 F.3d 782, 789 (5th Cir.),

cert. denied, 117 S. Ct. 620 (1996). The essential elements of a

conspiracy under 21 U.S.C. § 846 are (1) an agreement between two

or more persons to violate the narcotics laws, (2) a defendant’s

knowledge of the agreement, and (3) his voluntary participation

in that agreement. United States v. Misher, 99 F.3d 664, 667

(5th Cir. 1996). An agreement between coconspirators need not be

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proved by direct evidence, but may be inferred from a concert of

action. United States v. Alix, 86 F.3d 429, 436 (5th Cir. 1996).

A defendant’s presence and association with other members of the

conspiracy, when supported by other evidence, may be used to

support a finding of conspiracy. Misher, 99 F.3d at 668. To

prove aiding and abetting, the government must show that the

defendant (1) associated with a criminal venture, (2)

participated in the venture, and (3) acted in some way to make

the venture succeed. United States v. Quiroz-Hernandez, 48 F.3d

858, 871 (5th Cir. 1995). “The evidence supporting a conspiracy

conviction typically supports an aiding and abetting conviction.”

Id.

Viewed in the light most favorable to the prosecution, the

evidence sufficiently shows a concert of action among Chavez,

Rodriguez, and Perez to support a finding of an agreement to

possess marijuana with intent to distribute. Chavez and

Rodriguez were waiting together at the restaurant when Rico and

Reina first arrived. Chavez identified Rodriguez as the person

with the marijuana and later commented to Rico that he trusted

Rodriguez. Rodriguez and Chavez both approached the pickup to

view the cash, left together when the van departed, and then

returned together when the loaded van arrived.

D. Two-Level Increase in Rodriguez’s Offense Level

Rodriguez objected at sentencing to a two-level increase of

his base offense level pursuant to § 2D1.1(b)(1) of the

Sentencing Guidelines, which provides for such an increase “[i]f

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a dangerous weapon (including a firearm) was possessed.” The

application notes to this section state: “The enhancement for

weapon possession reflects the increased danger of violence when

drug traffickers possess weapons. The adjustment should be

applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.”

We have held that “one coconspirator may ordinarily be

assessed a § 2D1.1(b)(1) increase in view of another

coconspirator’s possession of a firearm during the drug

conspiracy so long as the use of the weapon was reasonably

foreseeable.” United States v. Mergerson, 4 F.3d 337, 350 (5th

Cir. 1993), cert. denied, 510 U.S. 1198 (1994). “A court may

ordinarily infer that a defendant should have foreseen a

codefendant’s possession of a dangerous weapon, such as a

firearm, if the government demonstrates that another participant

knowingly possessed a weapon while he and the defendant committed

the offense.” United States v. Gaytan, 74 F.3d 545, 559 (5th

Cir.)(internal quotations omitted), cert. denied, 117 S. Ct. 77

(1996). The district court’s decision to apply § 2D1.1(b)(1) is

essentially a factual determination reviewable under the clearly

erroneous standard. United States v. Rodriguez, 62 F.3d 723, 724

(5th Cir. 1995). The district court’s determination that

possession of the weapon by a coconspirator was foreseeable is

also a factual finding reviewable for clear error. Gaytan, 74

F.3d at 558-59.

The district court found that Rodriguez was convicted of a

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conspiracy to possess with intent to distribute marijuana, that

his codefendant Perez possessed a pistol during the conspiracy,

that the pistol was directly connected to the offense because it

was used to guard the marijuana, and that Perez pulled the weapon

from his waistband when approached by law enforcement officers.

On the basis of these findings, the district court inferred that

Rodriguez should have reasonably foreseen that Perez had a gun.

The district court did not clearly err in increasing Rodriguez’s

offense level two levels on the basis of § 2D1.1(b)(1).

E. The 924(c) Jury Charge

Perez argues that the district court impermissibly informed

the jury that his conduct constituted carrying a firearm during a

drug trafficking offense, thereby violating his Sixth Amendment

right to a jury determination as well as the due process

requirement that the government prove each element of the offense

beyond a reasonable doubt. See United States v. Johnson, 718

F.2d 1317, 1320-21 (5th Cir. 1983)(en banc). Because Perez did

not object to the court’s jury charge on the ground he now urges

on appeal, we review for plain error. FED. R. CRIM. P. 52(b).

“Plain error occurs only when the instruction, considered as a

whole, was so clearly erroneous as to result in the likelihood of

a grave miscarriage of justice.” United States v. Inocencio, 40

F.3d 716, 729 (5th Cir. 1994).

In its instructions to the jury in relation to the § 924(c)

charge, the district court used general examples to explain the

difference between “use” and “carry”:

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 A firearm can be carried without being used, e.g., if
an offender keeps a gun hidden in his clothing while
engaged in a drug transaction. A firearm can be used
without being carried, e.g., when an offender has a gun
on display during a transaction.

Perez argues that the first example is a “virtual recitation of

the testimony against” him and that it therefore improperly

directed a verdict of guilty on an element of the offense.

The jury instruction at issue is a correct statement of the

law and did not impermissibly address the evidence presented to

the jury at trial. See United States v. Lennon, 751 F.2d 737,

742-43 (5th Cir.), cert. denied, 471 U.S. 1100 (1985). The

challenged jury instruction is not plainly erroneous.

F. Increase of Perez’s Sentence

Perez argues that the district court added 15 months to his

sentence because the court believed that he lied about whether

his attorney had reviewed the presentence report with him, when

in fact Perez was merely confused as a result of his limited

English proficiency and illiteracy. Perez contends that

penalizing him for his confusion violated his right to due

process.

At the sentencing hearing, the district court engaged in a

lengthy exchange with Perez regarding whether or not he had read

the presentence report or had it explained to him in Spanish.

Perez’s responses changed throughout the course of the discussion

and differed from those of his attorney. As a result, the

district court made a finding that Perez was lying. After making

further findings and adopting the presentence report, the

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district court calculated the guideline range to be between 63

and 78 months. The district court then imposed the maximum

guideline sentence because Perez had lied in court.

In determining a sentence within the Guideline range, the

district court may consider a broad range of information. United

States v. Alvarez, 51 F.3d 36, 41 (5th Cir. 1995). In fact, the

district court may consider “any relevant information that the

Sentencing Guidelines do not expressly exclude from

consideration.” Id. (internal quotation omitted). A sentencing

court’s factual findings must be supported by a preponderance of

the evidence, and we review such findings for clear error.

United States v. McCaskey, 9 F.3d 368, 372 (5th Cir. 1993), cert.

denied, 114 S. Ct. 1565 (1994).

In his challenge to his sentence, Perez seems to be invoking

“the due process requirement that a defendant be sentenced on the

basis of evidence having some minimal indicia of reliability and

that the information bear some rational relationship to the

court’s decision to impose a particular sentence.” United States

v. Santiago, 993 F.2d 504, 506-07 (5th Cir. 1993). The defendant

has the burden of demonstrating that the information relied on at

sentencing is materially untrue. Id. Perez’s counsel makes a

plausible argument that Perez was simply confused. From a cold

record, however, we are unable to say that the district court

clearly erred when it concluded that Perez was lying. Perez,

therefore, has not met the burden of showing that the information

relied on by the district court -- that Perez had lied in court -

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- was materially untrue. Thus, the district court did not err in

increasing Perez’s sentence based on its finding that Perez had

lied in court.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgments of

conviction and the sentences imposed by the district court.

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