United States v. Vasquez

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-40794

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CRISTOBAL VASQUEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

July 11, 2002
Before JOLLY, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:

Pursuant to a written conditional plea agreement, Cristobal

Vasquez pleaded guilty to possession with intent to distribute in

excess of five kilograms of cocaine. Vasquez was sentenced to 240

months imprisonment, a 10 year period of supervised release, and a

$100 special assessment. On appeal, Vasquez challenges his

conviction and sentence. For the reasons that follow, we affirm.

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 BACKGROUND

South Texas highways often serve as corridors for illegal

immigration and drug-trafficking activity originating in Mexico.

In an effort to stem these illegal activities, the United States

Border Patrol has established checkpoints along the highways

leading from border towns to the state’s interior. Two such

checkpoints are operated outside of Laredo on Highway 59 and

Interstate 35. These two checkpoints can be avoided, however, by

utilizing dirt roads that traverse private ranches in the area.

In January 2001, Border Patrol Agent Freeman, traveling on

Highway 59 outside of Laredo, noticed a late model Ford pickup

truck, bearing no commercial markings or radio equipment antennas,

exit Highway 59 onto a dirt ranch road. In Agent Freeman’s

experience, it was uncommon for a new pickup truck to use the dirt

ranch roads. Coupled with the knowledge that this particular dirt

road ultimately provided egress to Highway 44 from a private ranch

northeast of the Border Patrol checkpoints on Highway 59 and

Interstate 35, Agent Freeman suspected that the vehicle was

attempting to avoid the checkpoints.

Acting on his suspicion, Agent Freeman proceeded to the

Highway 44 egress point and parked his vehicle parallel with the

road. Because of his familiarity with the area, Agent Freeman knew

that it takes approximately 50 minutes to travel to the Highway 44

egress point from the dirt road beginning on Highway 59 if no stops

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are made along the way. When the same pickup truck emerged from

the dirt ranch road approximately 50 minutes later and turned on to

Highway 44, Agent Freeman followed. The driver, Vasquez,

repeatedly checked his rear-view mirror, indicating to Agent

Freeman that he was nervous, and within a half mile, Agent Freeman

stopped the pickup truck to perform an immigration inspection. An

inspection of the vehicle resulted in the discovery of a false

compartment in the bed of the truck containing 147 bundles of

cocaine weighing 162.2 kilograms.

Vasquez was indicted by a grand jury and charged with one

count of conspiracy to possess more than 5 kilograms of cocaine

with intent to distribute in violation of 21 U.S.C. §§ 846,

841(a)(1) and 841(b)(1)(A) (“Count One”) and one count of

possessing more than 5 kilograms of cocaine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)

and 18 U.S.C. § 2 (“Count Two”). Vasquez pleaded not guilty to

both charges and then filed a motion to suppress the prosecution's

evidence. Following an evidentiary hearing, the district court

found specific and articulable facts sufficient to create

reasonable suspicion and held that “Agent Freeman's actions were

justified and within the scope of an investigatory detention

involving the possibility of illegal drug or immigration activity.”

Vasquez then entered a conditional guilty plea to Count Two

pursuant to a written plea agreement which preserved his right to

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appeal the district court's denial of the suppression motion.

Subsequently, Count One of the indictment was dismissed and Vasquez

was sentenced to 240 months imprisonment, a 10 year period of

supervised release, and a $100 special assessment.

On appeal, Vasquez asserts that the district court erred in:

1) denying his motion to suppress the prosecution's evidence; 2)

enhancing his sentence under 21 U.S.C. § 841 on the basis of a

prior Texas state deferred adjudication; and 3) enhancing his

sentence on the basis of a prior conviction when he was represented

in the district court case by the same attorney as in the prior

state case, and a conflict of interest existed because defense

counsel failed to and/or was unwilling to litigate the issue of his

own effectiveness in the earlier state deferred adjudication

proceeding. Vasquez also contends, for the first time on appeal,

that 21 U.S.C. §§ 841 (a) and (b) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the district

court erred in imposing a 240 month mandatory minimum sentence

pursuant to 21 U.S.C. § 841(b)(1)(A) because his prior conviction

was not alleged in the indictment.

STANDARD OF REVIEW

We accept a district court's ruling on a motion to suppress

based upon live testimony at a suppression hearing unless it is

clearly erroneous or influenced by an incorrect view of the law.

United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994); United

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States v. Laury, 985 F.2d 1293, 1314 (5th Cir. 1993). The evidence

is viewed in the light most favorable to the party that prevailed

at trial. Laury, 985 F.2d at 1314. Questions of law are reviewed

de novo, United States v. Muniz-Melchor, 894 F.2d 1430, 1433 (5th

Cir. 1990), as are the district court's ultimate conclusions of

Fourth Amendment reasonableness. United States v. Colin, 928 F.2d

676, 678 (5th Cir. 1991). We review a district court's application

of the sentencing guidelines de novo and findings of fact for clear

error. United States v. Alarcon, 261 F.3d 416, 423 (5th Cir.

2001). We review for plain error, issues raised for the first time

on appeal. United States v. Meshack, 225 F.3d 556, 575 (5th Cir.

2000).

ANALYSIS

Vasquez raises a number of issues on appeal. We address each

in turn below.

A. Motion to Suppress

Vasquez contends that the district court erred in denying his

motion to suppress. Specifically, Vasquez argues that Agent

Freeman lacked reasonable suspicion to justify the stop of his

vehicle which ultimately led to the discovery of cocaine and his

conviction.

A Border Patrol agent on roving patrol may temporarily detain

a vehicle for investigation only if he is “aware of specific

articulable facts, together with rational inferences from those

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facts, that reasonably warrant suspicion that the vehicle is

involved in illegal activities.” United States v. Inocencio, 40

F.3d 716, 722 (5th Cir. 1994) (internal quotations and citations

omitted). Factors relevant in determining whether a Border Patrol

agent acted with reasonable suspicion include:

(1) known characteristics of a particular area, (2)
previous experience of the arresting agents with
criminal activity, (3) proximity of the area to the
border, (4) usual traffic patterns of that road, (5)
information about recent illegal trafficking in aliens
or narcotics in the area, (6) the behavior of the
vehicle's driver, (7) the appearance of the vehicle,
and (8) the number, appearance and behavior of the
passengers.

Id. (citations omitted). No single factor is dispositive in

determining whether an agent acted with reasonable suspicion. Id.

Rather, each case is examined in light of the "totality of the

circumstances known to the agent, and the agent's experience in

evaluating such circumstances." Id. (internal quotation and

citation omitted).

In the instant case, Vasquez's vehicle was observed traveling

on Highway 59, a known corridor for illegal immigration and drug

trafficking. The vehicle bore no commercial markings or radio

equipment antennas and was consistent with the type used by

traffickers. The vehicle was observed detouring on to a private

dirt ranch road known for use by alien and drug traffickers to

evade Border Patrol checkpoints on Highway 59 and Interstate 35.

Agent Freeman did not believe the pickup truck was a ranch vehicle

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because in his experience, it was uncommon for a new vehicle to

use the ranch roads. The elapsed time between the vehicle's detour

onto the dirt road and egress onto Highway 44 beyond the

checkpoints was consistent with a vehicle being driven straight

through without making any stops along the way and thus having no

purpose other than circumventing the Border Patrol checkpoints.

Finally, Vasquez repeatedly checked his rear-view mirror and

appeared nervous as Agent Freeman began to follow him on Highway

44.

Vasquez maintains, however, that the circumstances surrounding

the stop of his vehicle do not add up to reasonable suspicion. In

an effort to support this position Vasquez asserts that Agent

Freeman articulated no facts supporting an inference that the

vehicle in question came from the border, and that his presence on

and use of the private dirt road did not create reasonable

suspicion simply because the road was known to be used for illegal

activities. Furthermore, Vasquez contends that the appearance of

having driven straight through the dirt ranch road did not create

reasonable suspicion because he could have been dropping something

off, picking something up, or inspecting the ranches from the

vehicle. Finally, Vasquez argues that the fact that his pickup

truck was new and that Agent Freeman was unfamiliar with it did not

create reasonable suspicion because trucks are common in ranching

country, and Agent Freeman admitted that he did not know every

vehicle that used the dirt ranch road.

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 We do not find Vasquez's arguments persuasive. Although each

and every specific fact articulated at the suppression hearing,

when examined alone, may be insufficient to create reasonable

suspicion, when examined together, as a whole, there can be no

doubt that Agent Freeman's suspicion was reasonable and his actions

justified. Accordingly, we find no error on the part of the

district court in denying Vasquez's motion to suppress.

B. Deferred Adjudication

Vasquez asserts that the district court erred by enhancing his

sentence based on a prior Texas state court deferred adjudication

for aggravated possession of marijuana pursuant to 21 U.S.C. §

841(b)(1)(A). Vasquez's 240 month sentence1 resulted from the

following provision: “If any person commits [a violation of §

841(a)] after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of

imprisonment which may not be less than 20 years and not more than

life imprisonment . . . .” 21 U.S.C. § 841(b)(1)(A). Although

Vasquez concedes that his Texas deferred adjudication is a “prior

conviction” under 21 U.S.C. § 841(b)(1)(A), he contends that his

deferred adjudication was not “final” and could not be used to

1
Had the district court not enhanced Vasquez's sentence based on
his prior state deferred adjudication, the statutory minimum
sentence would have been 10 years and the maximum sentence would
have been life imprisonment. See § 841 (b)(1)(A). Vasquez's
guideline range was 151 to 188 months. Pursuant to U.S.S.G. §
5G1.1(c), the district court would have been limited to imposing a
sentence within the applicable guideline range.

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enhance his sentence because he still had the possibility of

appellate review of his state case at the time that he committed

the instant offense.

Vasquez asserts that he retained the right, upon revocation of

his deferred adjudication, to appeal the revocation and any

sentence imposed thereon. Furthermore, Vasquez argues that even

after revocation of his deferred adjudication, he could still file

a motion for new trial, which if granted, would undo the state

court conviction, and if the motion was denied, he would have the

right to appeal the denial.

We have not previously addressed this issue with respect to 21

U.S.C. § 841(b)(1)(A). In United States v. Morales, 854 F.2d 65

(5th Cir. 1988), however, we considered an objection to a

sentencing enhancement made pursuant to 21 U.S.C. § 841(b)(1)(B),

an analogous drug enhancement statute containing the same language

as 21 U.S.C. § 841(b)(1)(A).2 In Morales, the defendant objected

to the enhancement arguing that his prior conviction was not final

under Texas law. Morales, 854 F.2d at 68. After noting that “the

meaning to be assigned to the term 'ha[s] become final' in 21

2
Section 841(b)(1)(B) applies to any person convicted of a drug
felony which carries a penalty of imprisonment of not less than
five years nor more than 40 years, and provides for the following
enhancement: “If any person commits such a violation after a prior
conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment which may not be less
than 10 years and not more than life imprisonment . . . .” 21
U.S.C. § 841(b)(1)(B).

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U.S.C. § 841(b)(1)(B) is a question of federal, not state law,” we

held that

the final-conviction language of § 841(b)(1)(B) applies
to a conviction which is no longer subject to
examination on direct appeal, including an application
for certiorari to the United States Supreme Court,
either because of disposition on appeal and conclusion
of the appellate process, or because of the passage,
without action, of the time for seeking appellate
review. [The defendant] did not appeal his Texas felony
conviction and the time for doing so has passed; thus,
for federal sentencing enhancement purposes under §
841(b)(1)(B), that conviction has become final.

Id. at 65, 68-69 (emphasis added and internal citations omitted).

Our language in Morales is clear. For purposes of sentencing

enhancement under § 841(b)(1), a conviction does not become final

until the time for seeking direct appellate review has elapsed, and

enhancement is authorized only if the commission of the § 841

offense occurs after the prior felony drug offense has become

final.

Under Texas law, a defendant must file a notice of appeal

“within 30 days after the day sentence is impose or suspended in

open court.” See TEX. R. APP. PROC. 26.2(a)(1) (1999). A defendant

whose deferred adjudication is revoked may appeal only from the

revocation. The underlying adjudication may be appealed only at

the time probation is given. TEX. CODE CRIM. PROC. ANN. ART. 42.12, §

23(b) (Vernon Supp. 1999)(A defendant's right “to appeal for a

review of the conviction and punishment, as provided by law, shall

be accorded the defendant at the time he is placed on community

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supervision. When he is notified that his community supervision is

revoked for violation of the conditions . . ., he may appeal the

revocation.”); see also Manuel v. State, 994 S.W.2d 658, 661-62

(Tex. Crim. App. 1999) (en banc) (“[A] defendant placed on deferred

adjudication community supervision may raise issues relating to the

original plea proceeding, such as evidentiary sufficiency, only in

appeals taken when deferred adjudication community supervision is

first imposed.”). Thus, the proper analysis of whether Vasquez's

prior state conviction had become “final” focuses not on whether

his deferred adjudication had been revoked and a formal

adjudication of guilt entered, but instead on whether the time for

appealing the entry of deferred adjudication had passed.

Vasquez pleaded guilty in Texas state court to aggravated

possession of marijuana on March 1, 2000. Vasquez subsequently

received deferred adjudication and was placed on probation for a

period of 10 years. The instant federal offense was committed on

January 30, 2001, and on April 9, 2001, the State filed a motion to

adjudicate Vasquez's guilt based on alleged violations of

probation. Vasquez does not claim to have appealed the imposition

of probation in his Texas case within the 30 day time period for

filing such an appeal. Accordingly, 30 days after the Texas court

imposed probation pursuant to Vasquez's guilty plea, his conviction

for the state offense became “final” for purposes of the §

841(b)(1)(A) enhancement, and the district court did not err in

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basing an enhancement of Vasquez's federal sentence on the state

conviction.

C. Conflict of Interest

Vasquez maintains that the district court erred in enhancing

his sentence because he was represented in both the prior state

case and the instant federal case by the same defense counsel, and

the district court, aware of the conflict of interest, did not

conduct a hearing and obtain a valid waiver of conflict pursuant to

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).

Specifically, Vasquez argues that a conflict of interest arose from

counsel's failure and/or unwillingness to litigate the issue of his

own effectiveness in the earlier state deferred adjudication

proceeding.

Under the Sixth Amendment, a defendant has a constitutional

right to “representation that is free from any conflict of

interest.” United States v. Vaquero, 997 F.2d 78, 89 (5th Cir.

1993). A conflict of interest exists “when defense counsel places

himself in a position conducive to divided loyalties.” Id.

(citations omitted). (internal quotations and citations omitted).

The need for a hearing pursuant to Garcia to determine whether the

defendant knowingly and voluntarily waived the right to

representation free from any conflict is triggered by the finding

of an actual conflict of interest. Id.

Generally, an attorney owes a duty of loyalty to his client

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which requires the attorney to place his client's interest ahead of

his own interests. Beets v. Scott, 65 F.3d 1258, 1269 (5th Cir.

1995) (en banc) (citations omitted). The framework for analyzing

attorney conflicts outside of the multiple or serial client context

was elucidated in Strickland v. Washington, 466 U.S. 668, 689-94

(1984). To show prejudice under Strickland, a defendant must

demonstrate that counsel's error was so serious as to “render[] the

result of the trial unreliable or the proceeding fundamentally

unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A

failure to establish either deficient performance or prejudice

defeats the claim. Strickland, 466 U.S. at 697.

Vasquez contends that counsel's conflict of interest prevented

him from raising a collateral challenge to his Texas state deferred

adjudication based on counsel's alleged ineffectiveness during the

deferred adjudication proceeding. Vasquez does not specify,

however, how counsel was ineffective at the deferred adjudication

proceeding, nor does he state how the alleged ineffectiveness

affected the outcome of the proceeding. Vasquez's conclusory

allegations respecting counsel's ineffectiveness are insufficient

to show that he was prejudiced by counsel's representation of him

in the state and federal proceedings or that a conflict actually

existed. Because Vasquez has not shown that an actual conflict

existed, he has not shown the need for a hearing and waiver of

conflict pursuant to Garcia. Accordingly, the district court did

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not err in enhancing Vasquez's sentence on the basis of his prior

Texas state court conviction resulting in deferred adjudication.

D. Constitutionality of 21 U.S.C. § 841(a) and (b)

Although Vasquez did not raise the issue in the district court

proceeding, he now argues on appeal that the district court erred

in sentencing him under 21 U.S.C. § 841 because the provisions

found at § 841(a) and (b) are unconstitutional. Specifically,

Vasquez contends that the statute's assignment of penalties based

on the types and quantities of controlled substances is facially

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Vasquez concedes that his argument is foreclosed by our

decision in United States v. Slaughter, 238 F.3d 580 (5th Cir.

2000), cert. denied, 532 U.S. 1045 (2001), yet he seeks to preserve

it for further review. In light of our holding in Slaughter, we

reject Vasquez's argument.3

E. Mandatory Minimum Sentence

Vasquez asserts, for the first time on appeal, that the

district court erred in sentencing him to a 240 month mandatory

3
We also note that Apprendi is not applicable to the instant
case. Apprendi provides 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, 530 U.S. at 490.
Vasquez was indicted for possessing more than five kilograms of
cocaine with intent to distribute in violation of 21 U.S.C. §
841(a) and (b). The 240 month sentence received by Vasquez does
not exceed the statutory maximum sentence of life imprisonment
afforded by 21 U.S.C. § 841.

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minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A). In support

of this assertion, Vasquez again relies on Apprendi, and maintains

that his prior conviction could not serve as the basis for a

sentencing enhancement because the prior conviction was not alleged

in the indictment. Vasquez acknowledges that his argument is

foreclosed by the Supreme Court's decision in Almendarez-Torrez v.

United States, 523 U.S. 224 (2000), but he seeks to preserve it for

further review. Because Apprendi did not overrule Almendarez-

Torrez, Vasquez's argument is without merit. See Apprendi, 530

U.S. at 490; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000), cert. denied, 531 U.S. 1202 (2001). Accordingly, the

district court did not err in sentencing Vasquez to a 240 month

mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A).

CONCLUSION

For the reasons discussed above, we affirm Vasquez’s

conviction and sentence.

AFFIRMED.

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