United States v. Miranda

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-11183

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROSALINDA MIRANDA, ABEL ESPINOZA, RIGOBERTO RODRIGUEZ, also know
as Rigo, OSCAR RODRIGUEZ, HECTOR ESPINOZA, also known as Toro,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Texas
April 17, 2001
Before KING, Chief Judge, REYNALDO G. GARZA, and PARKER, Circuit
Judges.
ROBERT M. PARKER, Circuit Judge:

Rosalinda Miranda, Abel Espinoza, Rigoberto Rodriguez, Oscar

Rodriguez, and Hector Espinoza appeal their convictions and

sentences for drug related offenses. We affirm all the convictions,

affirm the sentences of Rosalinda Miranda, Abel Espinoza, Rigoberto

Rodriguez, and Hector Espinoza, vacate Oscar Rodriguez’s sentence,

and remand his case for resentencing.

FACTS AND PROCEDURAL HISTORY

1
 A large-scale investigation by the Federal Bureau of

Investigation (“FBI”) and the Dallas Police Department into the

distribution of cocaine and marijuana in the Dallas, Texas area led

to a nineteen-count federal indictment against twenty-one

individuals. The indictment alleged, in pertinent part, that from

May 1996 until June 1997, Appellants (1) conspired to possess with

the intent to distribute marijuana, cocaine, and cocaine base, in

violation of 21 U.S.C. § 856; (2) distributed or possessed cocaine

and cocaine base in violation of 21 U.S.C. § 841; and (3) used a

telephone to facilitate the distribution of cocaine and cocaine

base. Appellants, all related to one another by blood or marriage,

sold drugs primarily out of crack houses or “trap” houses. They did

a high volume of small quantity sales, typified by “dime rocks” of

cocaine -- $10 rocks with an estimated weight of .125 grams.

Appellants were jointly tried, along with Roberto Garcia, in

July 1998. After a two-and-a-half-week trial, the jury returned a

verdict acquitting Garcia and finding the remaining defendants

(Appellants) guilty on all counts. The district court overruled

Appellants’ objections to the Pre-Sentence Investigation Reports

(“PSRs”) prepared by the United States Probation Office, adopted the

PSRs’ findings and sentencing recommendations and sentenced

Appellants as follows:

_______________________________________________________________
Defendant Off.Level/Crim.Hist U.S.S.G.Range Count:Sentence

Rosalinda Miranda 41/I 324-405 1: 364 months

2
 18: 48 months
__________________________________________________________________

Abel Espinoza 38/I 235-293 1: 235 months
11: 48 months
14: 48 months
_________________________________________________________________

Rigoberto Rodriguez 38/I 235-293 1: 240 months
2: 240 months
__________________________________________________________________

Oscar Rodriguez 38/II 262-327 1: 262 months
6: 240 months
_________________________________________________________________

Hector Espinoza 41/I 324-405 1: 364 months
17: 48 months
20: 48 months
_________________________________________________________________

DISCUSSION

A. Motion for Severance

Rosalinda Miranda moved to sever her trial from the trial of

her co-defendants claiming that the other defendants could raise

defenses inconsistent and antagonistic to her own, and that she

would be prohibited from calling them as witnesses. She also stated

that she would be prejudiced by the spillover effect of evidence

incriminating her co-defendants. The government filed a response,

arguing that joinder was permitted under Federal Rules of Criminal

Procedure 8 and 14. The district court denied the motion, finding

that Rosalinda Miranda had not demonstrated compelling prejudice or

shown that a limiting instruction would not protect her interests.

We review the district court’s denial of severance for abuse of

discretion. Zafiro v. United States, 506 U.S. 534, 539 (1993).

3
 We have noted that “persons indicted together should be tried

together, especially in conspiracy cases.” United States v. Neal,

27 F.3d 1035, 1045 (5th Cir. 1994) (citations omitted). However,

separate trials should be granted when “there is a serious risk that

a joint trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable judgment

about guilt or innocence.” Zafiro, 506 U.S. at 539.

We are not convinced that Rosalinda Miranda suffered undue

prejudice as the result of spillover of evidence offered against her

co-defendants. The district court clearly instructed the jurors to

give separate consideration to the evidence as to each defendant.

The jury is presumed to have been able to follow these instructions

and, indeed, its finding of “not guilty” as to Garcia demonstrates

the validity of that presumption. Neal, 27 F.3d at 1045 (stating

that “the jury’s ‘not guilty’ verdicts as to some defendants

demonstrate that the jurors followed the district court’s

instructions and considered the evidence separately as to each

defendant”).

Likewise, we find no merit in Rosalinda Miranda’s claim that

she was prejudiced by being denied the opportunity to challenge

statements made in taped phone conversations because her co-

defendants did not take the stand at trial. While not entirely

clear, Rosalinda Miranda appears to be claiming that, had she been

4
able to cross-examine her co-defendants, they would have testified

that she was not the “Rosa” that was mentioned in the phone

conversations. To warrant severance based on the exculpatory

testimony of a co-defendant, a defendant must show “(1) a bona fide

need for the testimony; (2) the substance of the testimony; (3) its

exculpatory nature and effect; and (4) that the co-defendant would

in fact testify if the severance were granted.” United States v.

Nutall, 180 F.3d 182, 187 (5th Cir. 1999) (citing United States v.

Broussard, 80 F.3d 1025, 1037 (5th Cir. 1996)). Rosalinda Miranda

failed to show that any of her co-defendants would have in fact

testified at her trial if severance were granted or that their

testimony would have been exculpatory.

We conclude that the district court did not abuse its

discretion in denying Rosalinda Miranda’s motion for severance.

B. Evidentiary Rulings

Appellants challenge the district court’s admission of evidence

in two separate instances during trial. We review evidentiary

rulings for abuse of discretion. See United States v. Parsee, 178

F.3d 374, 379 (5th Cir. 1999).

1. Drug transactions that pre-dated the indicted conspiracy

At trial, the government introduced the testimony of Gracie

Martinez, who testified that she had bought drugs from Abel Espinoza

sometime “around 1989, 1990, 1991.” Abel Espinoza objected, arguing

5
that the government had failed to make the necessary pretrial

disclosures regarding the introduction of evidence of Abel

Espinoza’s prior bad acts, and that the testimony concerned events

prior to the dates of the indicted conspiracy.

The district court admitted the evidence, finding that

Martinez’s testimony was background information and therefore not

subject to Federal Rule of Evidence 404(b). In the alternative, the

district court determined that the probative value of the evidence

outweighed its possible prejudice and that the evidence went to

intent and was thus admissible under Rule 404(b). See United States

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

On appeal, Abel Espinoza focuses solely on whether the

testimony can withstand a Beechum analysis, arguing that the

government failed to inform him of its intention to present

extrinsic evidence of his prior bad acts and that Martinez’s

testimony resulted in undue prejudice. Abel Espinoza also claims

that the district court did not adequately articulate its

Beechum analysis findings and that the limiting instruction was

inadequate to protect his rights.

Abel Espinoza does not address the district court’s decision

that Martinez’s testimony constituted intrinsic background

information and therefore Rule 404(b)’s limits on admissibility of

extrinsic acts did not apply. Evidence of other acts is intrinsic

“when the evidence of the other act and the evidence of the crime

6
charged are inextricably intertwined or both acts are part of a

single criminal episode or other acts were necessary preliminaries

to the crime charged.” United States v. Williams, 900 F.2d 823, 835

(5th Cir. 1990)(internal quotation marks omitted). In United States

v. Wilson, 578 F.2d 67 (5th Cir. 1978), this court held that

evidence of a drug transaction that was not part of the crime

charged was nonetheless admissible as intrinsic evidence because it

“was part of the background facts surrounding the commission of the

crime.” Id. at 72. The court noted that the evidence was not

submitted to show the defendant’s proclivity towards crime, but to

complete the witness’s account of his various dealings with the

defendants. Id. We conclude that the district court did not abuse

its discretion in viewing Martinez’s testimony about her earlier

drug purchases from Abel Espinoza as background information

establishing the connection between a witness and a defendant.

United States v. Aleman, 592 F.2d 881, 884 (5th Cir. 1979).

2. Testimony regarding the use of code words in recorded calls

FBI Special Agent Amado Vega-Irizarry (“Vega”) testified at

trial that he had been involved in the investigation of the

conspiracy and in translating intercepted phone calls from Spanish

to English. Vega identified various code words that callers had

used and the English drug terms to which the words referred. On the

third day of Vega’s testimony, Hector Espinoza objected on the

grounds that Vega was testifying as an expert. The district court

7
overruled Hector Espinoza’s objections, holding that Vega was not

testifying as an expert, but stated that if he were, he nonetheless

had “the necessary expertise to be able to give this testimony in

light of his experience in the law enforcement area.”

On appeal, Hector Espinoza maintains that the district court

abused its discretion because Vega’s testimony “crossed the line”

from lay to expert opinion testimony, citing United States v.

Griffith, 118 F.3d 318, 321 (5th Cir. 1997) (stating that “[d]rug

traffickers’ jargon is a specialized body of knowledge, familiar

only to those wise in the ways of the drug trade, and therefore a

fit subject for expert testimony”), and that Vega was not qualified

to testify as an expert on the subject of drug dealers’ jargon or

code words.

The government replies that Vega’s testimony was admissible

pursuant to Federal Rule of Evidence 701, which provides:

[i]f the witness is not testifying as an expert, the
witness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.

We agree. Vega’s extensive participation in the investigation of

this conspiracy, including surveillance, undercover purchases of

drugs, debriefings of cooperating witnesses familiar with the drug

negotiations of the defendants, and the monitoring and translating

of intercepted telephone conversations, allowed him to form opinions

concerning the meaning of certain code words used in this drug ring

8
based on his personal perceptions. We therefore hold that Vega’s

testimony was admissible pursuant to Rule 701 and that the district

court did not abuse its discretion in admitting his testimony.

C. SENTENCING ISSUES

1. Drug amounts attributable to defendants for sentencing

purposes on the conspiracy count.

a. Appellants’ objections and arguments.

The PSRs state that the conspiracy was responsible for

distributing 3.3 kilograms of crack cocaine, 7.2 kilograms of

cocaine, and 56.32 kilograms of marijuana. Pursuant to the Drug

Equivalency Tables in the Sentencing Guidelines, these drug amounts

equal 67,496.32 kilograms of marijuana for sentencing purposes. See

U.S.S.G. § 2D1.1. The PSRs attributed the entire amount of drugs

to each appellant, resulting in a base offense level of 38. See id.

§ 2D1.1(c)(1).

Appellants argue that the district court erred in adopting the

PSR recommendations and attributing the entire amount of drugs to

each of them. Appellants contend that the evidence at trial

established that they did not join the conspiracy until late in the

game or that they were minor players in the scheme. In addition to

contesting the accuracy of the factual determinations concerning

drug amounts, Appellants contend that the procedure used by the

district court in reaching those determinations violated their

constitutional due process rights. Appellants objected to the PSRs

9
and filed motions to present live testimony at their sentencing

hearings.

In his written Objections to Pre-Sentence Report, Oscar

Rodriguez stated, in pertinent part, “[t]he Pre-Sentence Report has

calculated the base offense level too high. The probation officer

has apparently relied upon the case agent to determine the quantity

of drugs to be used in the guideline calculations. . . . The

determination of the quantity of drugs to be used to determine the

guideline sentence is the responsibility of the probation office and

the Court. It is improper to delegate this important task to a

biased case agent.”

Abel Espinoza’s written Objections to Pre-Sentence Report

stated, “Mr. Espinoza objects to the drug quantity used to establish

the base offense level.. . . Mr. Espinoza’s alleged knowledge of the

scope of the conspiracy and his alleged participation was very

limited. The only drug quantities attributable to Mr. Espinoza

should be the 1/16th of an ounce referred to in the phone calls of

May 23, 1997, and the 75 pounds of marijuana which was sold . . .

. The drug quantity distributed by the conspirators in this case

was not reasonably foreseeable to Mr. Espinoza and he should not be

held responsible for the entire drug quantity.”

Hector Espinoza objected in writing to drug quantities

attributed to him in the Pre-sentence Report, alleging that “no

evidence was presented at trial” to support the PSR’s conclusions

that he had knowledge of or was linked with a conspiracy to

10
distribute cocaine/cocaine base or that he coordinated how the

marijuana entered the United States or that he transported

marijuana. He did not challenge the conclusion that he was

responsible for “13 or 12 avocados [of marijuana], whatever this

quantity is determined to be.”

Rosalinda Miranda’s Objections to the Pre-Sentence Report

challenges the drug quantities attributed to her, stating that there

was no evidence produced at trial or produced by the government to

support the statement that she was involved to the degree alleged

in paragraph 39 of the PSR -- that is, 3.3 kilograms of crack

cocaine, 7.2 kilograms of cocaine and 56.32 kilograms of marijuana.

Rigoberto Rodriguez objected succinctly to the PSR on the basis

that the drug quantity used to establish his base level offense was

not correct.

In addition to the Appellants’ written objections to their

PSRs, Appellants moved to present live testimony consisting of cross

examination of case agents during the sentencing hearing to

challenge the PSRs’ conclusions concerning the drug amount

attributable to each Appellant. The district court denied the

motions, ruling that if a defendant makes only unsworn objections

to the PSR but submits nothing in the way of evidence, the court is

free to adopt, without further inquiry, the PSR and to consider it

as reliable evidence at sentencing. On appeal, Appellants challenge

that denial, arguing that this circuit’s case law does not require

11
criminal defendants to submit sworn affidavits or other admissible

evidence to the district court prior to sentencing in order to

obtain an evidentiary hearing to challenge factual statements made

in the PSR regarding drug quantities for sentencing purposes.

Further, they argue that due process requires that defendants be

given an opportunity to present evidence during the sentencing

hearing to rebut the conclusions reached in the PSR.

b. Standard of Review

The district court sentenced Appellants prior to the Supreme

Court’s recent decisions in Jones v. United States, 526 U.S. 227

(1999) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000), as well as this court’s opinions interpreting Apprendi,

United States v. Doggett, 230 F.3d 160 (5th Cir. 2000), and United

States v. Meshack, 225 F.3d 556 (5th Cir. 2000). These decisions

make it clear that when the Government seeks, as it did in the case

at bar, enhanced penalties based on the amount of drugs attributable

to a defendant, the quantity must be stated in the indictment and

submitted to a jury for a finding of proof beyond a reasonable

doubt. Doggett, 230 F.3d at 165. The Supreme Court decided Jones

in March 1999, while the present appeal was pending. Apprendi was

decided on June 26, 2000, after briefing was complete, but prior to

oral argument, in this case. While Appellants squarely presented a

challenge to the fairness and reliability of the fact-finding

process employed in determining the amount of drugs attributable to

12
each Appellant, they did not specifically object to the procedure

employed by the district court on the basis that they were entitled

to a jury determination of drug quantity based on a beyond-a-

reasonable-doubt standard of proof, even though the objections

lodged had a due process basis which is the underpinning of both

Jones and Apprendi.

In light of their failure to raise the Jones/Apprendi

objections below, we review the district court’s drug-quantity-

determination procedure for plain error. See United States v. Rios-

Quintero, 204 F.3d 214, 215 (5th Cir. 2000) (reviewing for plain

error even though the case the defendants relied upon was not

decided at the time of trial); see also United States v. Candelario,

-– F.3d -–, 2001 WL 94607 at *8 (11th Cir., February 5, 2001)

(reviewing Apprendi issue for plain error when defendant objected in

district court to drug amount attributed to him, but did not raise

a constitutional objection on Apprendi grounds).1 Plain error is

defined as “(1) an error; (2) that is clear or plain; (3) that

affects the defendant’s substantial rights; and (4) that seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.

1
In relying on Candelario, we do not imply adoption of the
Eleventh Circuit’s characterizations of trial court objections to
drug quantity determinations as either “evidentiary” or
“constitutional.” Id. at 2. While that dichotomy may prove to be
a useful and accurate way to analyze Apprendi issues, we leave the
question for another day.

13
2000).

c. Preservation of Issue for Appeal

Appellant’s brief must contain the “appellant’s contentions and

the reasons for them, with citations to the authorities and parts of

the record on which the appellant relies[.]” FED. R. APP. P.

28(a)(9)(A). Failure to satisfy the requirements of Rule 28 as to

a particular issue ordinarily constitutes abandonment of the issue.

See United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).

However, the issues-not-briefed-are-waived rule is a prudential

construct that requires the exercise of discretion. Compare McGee

v. Estelle, 722 F.2d 1206 (5th Cir. 1984)(refusing to examine an

issue not adequately briefed on appeal absent the possibility of

injustice so grave as to warrant disregard of usual procedural

rules) with United States v. Marcello, 423 F.2d 993 (5th Cir.

1970)(reaching the merits of defendant’s contentions regarding a

denial of change of venue in spite of the fact that the issue was

not briefed). We may consider such an issue, particularly where

substantial public interests are involved. Hatley v. Lockhart, 990

F.2d 1070, 1973 (8th Cir. 1993). Moreover, we must liberally

construe briefs in determining what issues have been presented for

appeal. Sec. & Exch. Comm’n v. Recile, 10 F.3d 1093 (5th Cir.

1993).

In this case, we find the following circumstances relevant to

the exercise of our Rule 28 discretion. One, Apprendi was decided

14
after briefing and one of the defendants refers us to the new

decision in his post-argument brief. Thus, it is not completely

accurate to characterize the issue as waived or abandoned. Two,

Appellants protested at trial and on appeal that their due process

rights had been infringed by the district court’s procedure for

determining drug quantity. We cannot in good faith ignore Apprendi

in a discussion of what process is due a criminal defendant who

challenges a drug quantity determination. Finally, it is clear from

the record in this case that Appellants were sentenced in violation

of constitutional due process as interpreted by the Supreme Court in

Apprendi. Based on these factors, we will consider whether that

violation was plain error as to each of the Appellants in this case.

See United States v. Garcia, –- F.3d –-, 2001 WL 128341 (5th Cir.

Feb. 15, 2001)

d. Did the District Court Plainly Err?

To reiterate, the Supreme Court has held that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S. Ct.

at 2362-63; see also Jones, 526 U.S. at 252. In Doggett, we applied

Apprendi to 21 U.S.C. § 841 drug convictions. Doggett, 230 F.3d at

164-65. Factual determinations made by a district court, based on

a preponderance of the evidence, concerning drug amounts that simply

dictate a sentence within the statutorily allowed range are not

15
called into question by Apprendi. Meshack, 225 F.3d at 576.

The first prong of plain error analysis requires that we

determine whether the district court erred in assigning sentences to

Appellants that exceed the relevant statutory maximums. In the

present case, the indictment charged that Appellants conspired to

possess with intent to distribute in excess of 5 kilograms of

cocaine, in excess of 50 grams of cocaine base and in excess of 50

kilograms of marijuana. However, the district court instructed the

jury that the “evidence in the case need not establish that the

amount or quantity of controlled substance was as alleged in the

count under consideration, but only that a measurable amount of that

controlled substance was in fact the subject of the acts charged in

that count.” Further, the jury was instructed that the government

need only prove that the defendant under consideration conspired to

violate the law as to one or more of the charged substances – that

is, cocaine, cocaine base, or marijuana. The most we can be sure

that the jury found beyond a reasonable doubt is that Appellants

conspired to possess with intent to distribute a measurable amount

of marijuana. The maximum sentence for the first such conviction is

imprisonment of not more than 1 year, a minimum fine of $1000 or

both. 21 U.S.C. §§ 846, 841(b)(4) & 844(a). Appellants’ sentences

on Count One, ranging from 235 to 364 months exceed the statutory

maximum sentence for the crime of conviction as this case was

presented to the jury and are therefore error, thus satisfying the

16
“error” prong of the plain error analysis.

An error meets the “plain” requirement – the second prong – if

it is “obvious” or “clear under current law.” United States v.

Olano, 507 U.S. 725, 734 (1993). A new rule for the conduct of

criminal prosecutions must be “applied retroactively to all cases,

state or federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes a ‘clear

break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328

(1987). Even assuming that the Government is correct that the

district court’s procedure comported with clear, controlling

precedent at the time it ruled on Appellants’ objections, the

failure to have the jury determine drug quantity for sentencing

purposes is obviously error, post-Apprendi and -Doggett. The error

is therefore plain for purposes of the present appeal. See Johnson

v. United States, 520 U.S. 461, 468 (1997) (holding that “where the

law at the time of trial was settled and clearly contrary to the law

at the time of appeal – it is enough that an error be ‘plain’ at the

time of appellate consideration”).

The third prong of plain error review asks whether the error

affected the defendant’s substantial rights. Federal Rule of

Criminal Procedure 52(b) states that “[p]lain error or defects

affecting substantial rights may be noticed although they were not

brought to the attention of the court.” This step is akin to the

“substantial rights” analysis employed in preserved-error cases

17
under the harmless error provisions of Rule 52(a), which provides

that “[a]ny error which does not affect substantial rights shall be

disregarded.”2 To affect substantial rights an error must have

affected the outcome of the district court proceedings. Olano, 507

U.S. at 734. Because Appellants were sentenced to serve between 20-

30 years of incarceration -– considerably longer than the maximum

sentences available pursuant to the jury determination under the

federal drug offense statute as interpreted by Apprendi and its

progeny -– in a judicial proceeding that did not comport with

constitutional due process, the error clearly affected Appellants’

substantial rights.

Based on the foregoing, we hold that the procedure used by the

district court to determine drug quantities attributable to each of

these Appellants was plain error. We correct plain error only if we

determine, in our discretion, that the error “seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings.” United States v. Franks, 46 F.3d 402, 404 (5th Cir.

1995). In exercising this discretion, we have considered whether

applying the proper rule would result in significant reduction in

the length of a sentence. United States v. Williamson, 183 F.3d

458, 464 (5th Cir. 1999).

2
The Supreme Court in Olano noted that there is one important
difference between Rule 52(a) and Rule 52(b) “substantial rights”
inquiry: under 52(a) the Government bears the burden of persuasion
with respect to prejudice, while under 52(b) that burden falls on
the defendant. Olano, 507 U.S. at 734.

18
 We note that the amount of drugs attributed to each defendant

in the PSRs has ample support in the trial record. The District

Court finding that Abel Espinoza and Rigoberto Rodriguez were not

minor participants and that Hector Espinoza and Rosalinda Miranda

were managers are findings properly made by the district court as

part of the sentencing process, are not clearly erroneous and are

legitimate to consider, post-Apprendi, on the question of whether or

not to exercise our discretion to correct plain error. Considering

the evidence in the record and the evidence available to the

government should the case be retried, we conclude that the error,

though plain, did not “seriously affect the fairness, integrity or

public reputation of judicial proceedings.” Franks, 46 F.3d at 404.

It is highly unlikely that a jury on retrial, properly instructed

post-Apprendi, considering the evidence available to the government,

would find drug quantities attributable to each defendant to be

different from the amounts attributed to each defendant in the PSRs.

We therefore elect not to correct the error.

2. Criminal History Category

Appellant Oscar Rodriguez’s PSR indicated that he had a prior

conviction for unauthorized use of a motor vehicle. As such, the

PSR recommended, and the district court found, that Oscar

Rodriguez’s Criminal History Category was II. Oscar Rodriguez

contends on appeal that he was not the same Oscar Rodriguez

responsible for the prior conviction. The government concedes error

19
and recognizes that Oscar Rodriguez should not have had a Criminal

History Category of II. We therefore vacate Oscar Rodriguez’s

sentence on Count Six as well and remand for new sentencing with the

appropriate Criminal History Category.

3. Offense Level Adjustments

Prior to sentencing, Appellants Abel Espinoza and Rigoberto

Rodriguez requested a two-level decrease in their offense levels

based on their minor participation in the conspiracy, pursuant to

U.S.S.G. § 3B1.2(b). The district court refused to grant either

Appellant a decrease and adopted the PSRs’ recommendation regarding

offense levels. The district court also adopted the PSRs’ finding

that Appellants Hector Espinoza and Rosalinda Miranda were managers

of the conspiracy as defined by U.S.S.G. § 3B1.1(b) and the PSRs’

recommendation that their base offense levels be increased by three.

We review a district court’s determination that a defendant

qualifies for an offense level adjustment for an aggravating or

mitigating role in the offense for clear error. United States v.

Valencia, 44 F.3d 269, 272 (5th Cir. 1995). A district court’s

factual findings are not clearly erroneous if they are “plausible in

light of the record as a whole.” United States v. Alford, 142 F.3d

825, 831 (5th Cir. 1998). A party seeking an adjustment in the base

level of an offense bears the burden of proving by a preponderance

of the evidence that the adjustment is warranted. See United States

v. Patterson, 962 F.2d 409, 414 (5th Cir. 1992). The sentencing

20
court is free to consider all relevant evidence, even inadmissible

evidence, in determining whether an adjustment is warranted so long

as the evidence has a “sufficient indicia of reliability to support

its probable accuracy.” Id.

In this case, the district court did not make independent

findings concerning offense levels, but adopted the PSRs. A review

of the record reveals sufficient facts to support a finding that

Abel Espinoza and Rigoberto Rodriguez were average, not minor

participants and that Rosalinda Miranda and Hector Espinoza were

managers of the conspiracy. A minor participant adjustment is not

appropriate simply because a defendant does less than other

participants; in order to qualify as a minor participant, a

defendant must have been peripheral to the advancement of the

illicit activity. United States v. Thomas, 932 F.2d 1085, 1092 (5th

Cir. 1991). The evidence supports a finding that Abel Espinoza and

Rigoberto Rodriguez were each actively involved in the conspiracy as

distributors who sold drugs to individual users. The district

court did not err in refusing to afford them minor participant

status.

To determine whether a defendant is appropriately termed a

manager, the court considers factors such as the exercise of

decision-making authority, nature of participation in commission of

the offense, recruitment of accomplices, claimed right to a larger

share of the profits, degree of participation in planning or

21
organizing the offense, nature and scope of the illegal activity and

degree of control and authority exercised over others. U.S.S.G. §

3B1.1 Application Note 4. According to investigative reports cited

in the PSRs, Hector Espinoza managed the conspiracy’s marijuana

shipments from Mexico to Texas, while Rosalinda Miranda controlled

the sales of illegal drugs at three different locations. We find no

clear error in the district court’s conclusion that Hector Espinoza

and Rosalinda Miranda were managers.

CONCLUSION

Based on the foregoing, we affirm all of Appellants’

convictions and the sentences of all Appellants except Oscar

Rodriguez, whose sentence we vacate and remand for re-sentencing.

AFFIRMED in part, VACATED in part, and REMANDED.

22
KING, Chief Judge, concurring in part and concurring in the
judgment:

I concur in the judgment, together with Parts A and B of the

opinion, insofar as it affirms the convictions and sentences of

Appellants. However, I respectfully disagree with the majority’s

decision (set out in Part C.1 of the opinion) to raise sua sponte an

Apprendi issue that was neither preserved below nor raised on appeal

to this court. It is error, and unfortunate as well, to embark on

that path. If we limited ourselves to the issues raised in the

district court and in Appellants’ briefs, we would do the required,

and routine, analysis of the adequacy of the evidence supporting

Appellants’ sentences in affirming all sentences (except for the

sentence of Oscar Rodriguez, which the government concedes should be

vacated).

First, Appellants did not raise the constitutional concern of

Apprendi in any way, shape, or form. The Supreme Court defined the

issue in Apprendi as “whether [the defendant] had a constitutional

right to have a jury [make a finding] on the basis of proof beyond

a reasonable doubt.” Apprendi v. New Jersey, 120 S. Ct. 2348, 2355

(2000). Appellants have never argued that the jury must find

certain aspects of their case beyond a reasonable doubt.3 Their

3
The majority states that one of the Appellants refers to
Apprendi in a post-argument brief. In a letter brief responding to
a brief that we asked the government to file providing record
support for each Appellant’s sentence, one of the Appellants, Abel
Espinoza, actually represented Apprendi as having only “tangential
effects, if any,” on this case. He also recognized the policy
underlying the preservation-of-issues rule — that the government

23
garden-variety Sentencing Guidelines challenges all go toward the

government’s failure to prove by a preponderance of the evidence the

amount of the drugs attributed to them (and toward the district

court’s decision not to permit them to cross-examine case agents

during sentencing so that they could demonstrate that the government

failed to carry its burden). As the briefs do not discuss Apprendi,

we do not have the benefit of any party’s views on the matter.4

The majority raises the Apprendi issue sua sponte, however,

stating that the preservation-of-issues rule is subject to the

discretion of the court. In Silber v. United States, the Supreme

Court stated: “While ordinarily we do not take note of errors not

called to the attention of the Court of Appeals nor properly raised

here, that rule is not without exception.” 370 U.S. 717, 717-18

would not have an opportunity to respond — and stated that he did
not wish to “sand bag” the government. See United States v. Garcia
Abrego, 141 F.3d 142, 168 n.14 (5th Cir.) (stating that appellant
could not raise arguments for the first time in post-oral argument
letter brief, which, pursuant to court instructions, was to address
only adequacy of record support for arguments that had already been
made), cert. denied, 525 U.S. 878 (1998). Rather, he cited
Apprendi for his contention that the district court’s “sentencing
policy . . . may well merit increased scrutiny in light of the High
Court’s [holding].”
4
The majority cites Hatley v. Lockhart, 990 F.2d 1070, 1073
(8th Cir. 1993), to support its view that it is proper to exercise
our discretion in this case to address an issue not raised by any
party. However, I note that in Hatley, the Court of Appeals for
the Eighth Circuit recognized the problematic issue and requested
supplemental briefing, thus providing all parties with the
opportunity to provide input on the matter. See id. I am
reluctant to express any opinion on the correctness of the
majority’s analysis of the Apprendi error because we have had no
briefing whatsoever on that issue.

24
(1962). The Court then narrowly defined the contours of this

exception: “In exceptional circumstances, especially in criminal

cases, appellate courts, in the public interest, may, of their own

motion, notice errors to which no exception has been taken, if the

errors are obvious, or if they otherwise seriously affect the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 718 (emphasis added) (internal quotations omitted) (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)).5 We have also

recognized that we have the power to raise sua sponte an issue and

examine it for plain error. See, e.g., United States v. Pineda-

Ortuno, 952 F.2d 98, 105 (5th Cir.) (“Where plain error is apparent,

the issue may be raised sua sponte by this court even though it is

not assigned or specified.” (citing Silber)), cert. denied, 504 U.S.

928 (1992).

Thus, I whole-heartedly agree that the preservation-of-issues

rule is not without exception, albeit limited. However, I have been

unable to find a case in which a court sua sponte raised an issue,

but then afforded no relief.6 The core idea underlying sua sponte

5
I note that, in Silber, the defendant did raise the issue in
the trial court, but then failed to raise it at all in the
appellate court or the Supreme Court.
6
The majority cites United States v. Marcello, 423 F.2d 993,
1006 (5th Cir.), cert. denied, 398 U.S. 959 (1970), in which the
court stated that there was no error in the trial court’s denial of
the defendant’s second motion for a change of venue. The court
made this determination despite the fact that the issue was not
briefed. In Marcello, the defendant had raised and discussed a
similar issue regarding the first motion for a change of venue.
See id. at 1001-06. Further, it is not clear whether this topic

25
consideration is to correct some terrible error that resulted in a

gross miscarriage of justice. See McGee v. Estelle, 722 F.2d 1206,

1213 (5th Cir. 1984) (refusing to examine issues not raised “absent

the possibility of injustice so grave as to warrant disregard of

usual procedural rules”). It makes no sense to cast aside a

fundamental rule of appellate review, regarding preservation of

issues, and address an error, but then conclude that the error is

not so egregious that it impairs the integrity of the judiciary.

While courts are not always entirely precise in terminology, there

does not appear to be a distinction between “noticing” errors and

“correcting” errors. In Johnson v. United States, the Supreme Court

indicated as such by using the term “notice” in its analysis of the

United States v. Olano, 507 U.S. 725 (1993), plain error standard of

review: “If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only

if . . . the error seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” 520 U.S. 461, 467

(1997) (emphasis added) (second alteration in original) (internal

quotations and citations omitted); see also id. at 470 (using the

terms “correct” and “notice” interchangeably). Therefore, when

was perhaps raised at oral argument.
The majority also cites Securities & Exchange Commission v.
Recile, 10 F.3d 1093, 1096 (5th Cir. 1993), for the proposition
that we must liberally construe briefs in determining what issues
have been presented for appeal. However, the Recile court
continued by stating that “issues not raised at all are waived.”
Id. (emphasis added).

26
courts do sua sponte evoke plain error review, they have generally

done so to correct grievous mistakes. See, e.g., Silber, 370 U.S.

at 717; Pineda-Ortuno, 952 F.2d at 105; cf. Petrocelli v. Angelone,

242 F.3d 867, 875-76 (9th Cir. 2001).

As the majority correctly points out, the evidence of the drug

quantities attributable to Appellants in this case was overwhelming

and another trial would likely reach the same result. Therefore,

there is no grave injustice that necessitates our reaching past the

preservation-of-issues rule and sua sponte conducting plain error

review. A routine analysis of the sufficiency of the evidence is

all that is required to dispose of Appellants’ claims in this

regard.

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