UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-20977
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
VICTOR HUGO CASTRO, also known as Torvic,
also known as Torby,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(H-00-CR-30-2)
September 5, 2002
Before DeMOSS, STEWART, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:*
The Appellant, Victor Hugo Castro (“Castro”), was charged in
an indictment with six counts of aiding and abetting with intent to
distribute a controlled substance and one count of conspiracy to
possess with intent to distribute a controlled substance. On
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
September 18, 2000, Castro entered a plea of guilty to the
conspiracy count. The government then dismissed the remaining
counts. Castro was sentenced to a term of imprisonment of 189
months on June 22, 2001. Castro now appeals this sentence.
BACKGROUND
Between June and September of 1998, the United States
conducted court authorized wire interception on Jorge Castro’s
pager, home telephone and cellular phone.2 These interceptions led
to the surveillance of several other individuals who were later
indicted for conspiracy and other drug charges. Among those that
were under surveillance was the Appellant, Castro. The wire
interceptions and surveillance revealed that Castro was involved in
cocaine and crack cocaine trafficking, and the government alleges
that these also revealed that Castro was a manager of the drug
trafficking activities.
Castro was charged, along with Jorge Eliecer Castro, Jhoymar
Angulo-Castro, Nurya Jamileth Estrada, Absalon Murillo-Gamboa and
Javier Martinez Sanchez, by indictment on January 19, 2000, in the
United States Court for the Southern District of Texas, with
conspiracy to possess with intent to distribute five kilograms or
more of a mixture or substance containing cocaine and 50 grams or
more of a mixture or substance containing cocaine base or crack
cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 21
2
Jorge Castro is the Appellant’s brother.
2
U.S.C. § 846 (count 1), and six counts of aiding and abetting with
intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B) and (b)(1)(C) and 18
U.S.C. § 2 (counts 3-8). Castro entered a plea of guilty to count
one of the indictment and was sentenced to 189 months confinement
and to a five-year term of supervised release. The district court
also ordered Castro to pay a $100 special assessment and a $5,000
fine. The remaining counts were dismissed on a motion by the
government. Castro now appeals claiming that the district court
erred in not considering his status as an illegal alien when
sentencing him, that it erred in assessing a three level
enhancement due to his role as a manager and that it erred in
holding him accountable for 231 grams of crack cocaine in light of
Apprendi.
DISCUSSION
The timeliness of Castro’s appeal.
The district court sentenced Castro on June 22, 2001, and
entered judgment on July 5, 2001. Apparently, the notice of entry
of judgment was inadvertently sent to the wrong attorney and
Castro’s attorney was not notified of the mistake until July 31,
2001, at which time Castro’s counsel filed a Motion for Extension
of Time to File Notice of Appeal. The district court ruled on his
motion on September 20, 2001, and granted Castro until October 1,
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2001, to file his Notice of Appeal. Castro’s Notice of Appeal was
then filed on September 24, 2001.
Under Fed. R. App. P. 3(a), “[a]n appeal permitted by law as
of right from a district court to a court of appeals may be taken
only by filing a notice of appeal with the clerk of the district
court within the time allowed by Rule 4.” “Rule 3's dictates are
jurisdictional in nature, and their satisfaction is a prerequisite
to appellate review.” Smith v. Barry, 502 U.S. 244, 248 (1992).
According to Rule 4(b), a notice of appeal in a criminal case must
be filed in the district court within 10 days of entry of the
judgment. Fed. R. App. P. 4(b). However, “[u]pon a finding of
excusable neglect or good cause, the district court may - before or
after the time has expired, with or without motion and notice -
extend the time to file a notice of appeal for a period not to
exceed 30 days from the expiration of the time otherwise prescribed
by this Rule (4)(b).” Fed. R. App. P. 4(b)(4) (emphasis added).
Though the district court could extend the time to file, this
would still limit the time to file to the ten-plus-thirty days
provided for in Fed. R. App. P. 4(b) and September 24 was beyond
that time range. However, “[i]f a document filed within the time
specified by Rule 4 gives the notice required by Rule 3, it is
effective as a notice of appeal.” Smith, 502 U.S. at 248-49. The
Motion for Extension of Time to File was filed on July 31, 2001,
within the ten-plus-thirty day time limit. The motion also
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identified the parties taking the appeal, the judgment being
appealed from and that it was appealing the matter to the court of
appeals. It therefore can act as the functional equivalent of a
Notice of Appeal. See Andrade v. California, 270 F.3d 743, 751-52
(9th Cir. 2001) (noting that such motions are functional
equivalents when the motion identifies the parties taking the
appeal, the judgment or order being appealed from and the court to
which the appeal is taken); Dillon v. United States, 184 F.3d 556,
557 (6th Cir. 1999) (“[W]here only one avenue of appeal exists,
Rule 3(c)(1)(C) is satisfied even if the notice of appeal does not
name the appellate court.”).
Castro’s Motion for Downward Departure based on his alien status
Castro contends that the district court abused its discretion
in denying his motion for departure based on his deportable alien
status. Prior to sentencing, Castro objected to the presentence
report on the ground that it failed to state that he was a
deportable alien who would do 100 percent of his sentence as
opposed to the usual 85 percent for inmates who are U.S. citizens.
At sentencing, defense counsel did not expand on his motion, and
the district court found that the mere fact that Castro was a
deportable alien did not place his case outside the heartland of
the guidelines.
This Court has jurisdiction to review a defendant’s challenge
to a sentence “only if it was imposed in violation of law; was
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imposed as a result of a misapplication of the sentencing
guidelines; was the result of an upward departure; or was imposed
for an offense for which there is no sentencing guideline and is
plainly unreasonable. United States v. DiMarco, 46 F.3d 476, 477
(5th Cir. 1995) (citing 18 U.S.C. § 3742(a)). “The imposition of
a lawful sentence coupled with the decision not to depart from the
guidelines provides no ground for relief.” Id. (citing United
States v. Miro, 29 F.3d 194, 198-99 (5th Cir. 1994). However, a
district court’s refusal to depart from the guidelines can be
reviewed by this Court only if the district court based its
decision upon an erroneous belief that it lacked the authority to
depart. United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th
Cir. 1999); DiMarco, 46 F.3d at 478 (noting that other circuits
have held that “appellate review is available for claims that the
district court erroneously believed that it lacked authority to
depart from the sentencing guideline range”); United States v.
Wilson, 249 F.3d 366, 380 (5th Cir. 2001). The burden of proving
a misapplication of the Guidelines is on the party challenging the
sentence on appeal. United States v. Corley, 978 F.2d 185, 186
(5th Cir. 1992).
Castro argues that the district court erred because it failed
to take into consideration the Supreme Court’s decision in United
States v. Koon, 518 U.S. 81 (1996), which held that district courts
have broad discretion to depart from the Guidelines when a
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particular case is outside the “heartland” of Guideline cases.
Under the standard articulated above, however, we can only review
the district court’s decision if it was made under the mistaken
belief that it could not consider his deportable status.
Therefore, in order to review the decision, “something in the
record must indicate that the district court held such an erroneous
belief.” United States v. Landerman, 167 F.3d 895, 899 (5th Cir.
1999). “[A] district court’s summary denial without explanation
does not indicate any such erroneous belief.” Valencia-Gonzales,
172 F.3d at 346 (citing United States v. Aggarwal, 17 F.3d 737, 745
(5th Cir. 1994)). Nothing asserted by Castro leads us to believe
that the district court was ignorant of the Koon decision or felt
constrained from considering his deportable status. Quite to the
contrary, the district court stated, with regard to the motion for
downward departure, that “[i]t’s not out of the heartland, and I’m
going to deny your motion for a downward departure.” As Castro has
failed to demonstrate that the district court was operating under
an erroneous understanding of the law when it denied his motion,
his argument fails.
The district court’s finding that Castro was a manager
Castro contends that the district court misapplied the
Guidelines when it increased his offense level under U.S.S.G.
§ 3B1.1(b). He bases this allegation on the fact that the district
court did not issue specific findings that he exercised some degree
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of control over at least four other participants. Castro also
contends that, in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), this issue should have been submitted to a jury.
Under U.S.S.G. § 3B1.1(b), a three level increase is permitted
“[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.” U.S.S.G.
§ 3B1.1(b). “Proof that the defendant supervised only one other
culpable participant is sufficient to make the defendant eligible
for the enhancement.” United States v. Cooper, 274 F.3d 230, 247
(5th Cir. 2001). Also, in calculating the number of participants,
the defendant may be included among the five. United States v.
Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994). In determining whether
a defendant is a leader, a court should consider the following
factors: “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.” U.S.S.G.
§ 3B1.1, comment. (n.4). We review such a factual finding for
clear error. United States v. Thomas, 120 F.3d 564, 574 (5th Cir.
1997).
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At sentencing, the prosecutor introduced portions of recorded
conversations between Castro and Absalon Murillo-Gamboa which could
reasonably be construed as implicating Castro as a manager. Other
intercepted wire communications involving Castro were also
presented. After hearing arguments and reviewing the evidence
presented, the district court found that the preponderance of the
credible evidence supported the three point enhancement. The
district court also later adopted the presentence report’s findings
of facts and application of the Guidelines to the facts. The
presentence report’s summary of Castro’s role in the offense
states:
Victor Castro is the brother of Jorge Castro and
was a manager in this cocaine trafficking
organization. When Jorge Castro was out of the
county in July/August, 1998, Victor Castro was in
charge of the operation. He recruited Hans Fajardo
and Jhoymer Angulo-Castro to participate in the
distribution of narcotics. Victor Castro
participated and coordinated several drug
transaction [sic] including those occurring on July
10, 1998; August 11, 1998; September 1, 8, 11,
1998; and February 10, 1999. According to the DEA
agent, Victor Castro had a separate source of
supply for the cocaine base. He is held
accountable for 4.75 kilograms of cocaine powder
and 231 grams of cocaine base. As the manager he
should receive a three-level upward adjustment for
his role in the offense.
“Ordinarily, a PSR [presentence report] bears sufficient indicia of
reliability to be considered as evidence by the sentencing judge
when making factual determinations.” Cooper, 274 F.3d at 239
(citing United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir.
9
1998)). “The district court may adopt the facts contained in the
PSR without further inquiry if the facts have an adequate
evidentiary basis and the defendant does not present rebuttal
evidence.” Id. (citing United States v. Alford, 142 F.3d 825, 832
(5th Cir. 1998)). In the present case, it is clear that the
district court not only considered the evidence as to whether the
adjustment was justified, but also permissibly relied upon the
presentence report for its findings of fact. As such, Castro has
failed to demonstrate how the district court’s decision was clearly
erroneous.
As for Castro’s claim that this issue should have been
presented to a jury, this Court has held that “error under Apprendi
requires reversal only if a defendant’s sentence exceeds the
statutory maximum.” Cooper, 274 F.3d at 243; United States v.
Keith, 230 F.3d 784, 787 (5th Cir. 2000); United States v. Doggett,
230 F.3d 160, 165 (5th Cir. 2000) (stating that even if a drug
amount is not alleged in the indictment, Apprendi does not apply
where the sentence is less than the statutory maximum provided by
21 U.S.C. § 841(b)(1)(C)). The count to which Castro entered a
plea of guilty alleged that he conspired to possess with intent to
distribute five kilograms or more of a mixture or substance
containing cocaine and 50 grams or more of a mixture or substance
containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) and 846. This offense has a statutory punishment
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range of 10 years to life imprisonment. See 21 U.S.C.
§841(b)(1)(A). Castro’s sentence of 189 months falls within this
statutory range, therefore, Apprendi does not apply.
The district court’s finding that Castro was accountable for 231
grams of crack cocaine
Relying on Apprendi, Castro contends that the district court
erred in holding him accountable for 231 grams of cocaine base
without having submitted the underlying facts supporting the
Guideline adjustment to a jury. As explained above, Castro’s
sentence fell within the statutory range set forth for the crime to
which he entered a guilty plea. Therefore, Apprendi does not
apply. Castro also contends, citing United States v. Crockett, 82
F.3d 722 (7th Cir. 1996)), that the mere fact that he engaged in
other drug transactions is not sufficient to justify treating those
transactions as “relevant conduct” for sentencing purposes.
Castro’s argument is misplaced. Crockett expressed a concern
over whether or not there was a specific finding that the other
drug transactions were part of a common scheme or plan involving
the charged offense. Id. at 730. In the present case, the
presentence report clearly states that Castro was accountable for
“4.75 kilograms of cocaine powder and 231 grams of cocaine base.”
As stated above, the district court permissibly adopted the
presentence report’s findings and Castro has failed to show any
evidence that would rebut this finding.
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CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court did not err in refusing to
grant Castro a downward departure in his sentence or in enhancing
his sentence. We therefore AFFIRM the district court’s sentence.
AFFIRMED.
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