United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 4, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40876
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE GUADALUPE MOLINA
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas, Laredo
No. 5:03-CR-1784-1
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Jose Guadalupe Molina appeals his
judgment of conviction and sentence, arguing that: (1) the
district court erred by denying his request for a mitigating role
adjustment under U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (2003)
[hereinafter U.S.S.G.]; (2) the district court erred by
sentencing him under the mandatory Guidelines, in violation of
*
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that this opinion should not be published and is not precedent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.
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United States v. Booker, 543 U.S. 220 (2005); and (3) the
statutes under which he was convicted, 21 U.S.C. §§ 841 and 846,
are unconstitutional. For the following reasons, we AFFIRM the
district court’s judgment of conviction and VACATE and REMAND for
resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 1, 2003, four border patrol agents responded to
a sensor activated on the Dolores Ranch in Laredo, Texas and set
up surveillance in the area.1 Agents Marco Lara and Duke
Canchola were stationed on the ground, and the other two agents
remained in their marked vehicle. Agent Lara notified the other
agents that he saw a man walking across the ranch, later
identified as the defendant-appellant Jose Guadalupe Molina.
Agent Lara then observed a second man approach Molina, and after
the two men spoke with each other and scanned the area, Molina
began walking toward Agent Canchola’s undetected position on the
ground. Agents Lara and Canchola also observed approximately ten
individuals carrying duffel bags on their backs, who appeared to
be following Molina.2
Once Molina approached Agent Canchola’s position, he was
arrested. Around the time Agent Canchola was arresting Molina,
1
The sensor alerts agents to possible drug trafficking or
illegal aliens crossing the border.
2
Agent Canchola testified that Molina appeared to be
scouting the area for law enforcement.
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the individuals with the duffel bags dropped their bundles and
fled. Agent Lara arrested a man in the group who was not
carrying any narcotics, later identified as Gerardo Mendez-
Sanchez. Although the agents did not arrest any of the
individuals carrying the narcotics, they recovered ten duffel
bags, which contained approximately 239.72 kilograms of
marijuana.
Molina and Mendez-Sanchez were advised of their Miranda
rights, and both agreed to make statements to the agents. Molina
told the agents that his job was to go north of the narcotics
load-up area and watch for law enforcement. In addition to
receiving his statement, the agents seized the cell phone that
Molina had been carrying in a plastic bag. The cell phone screen
displayed the word “mula,” slang for mule or courier in Spanish.
In his statement to the agents, Mendez-Sanchez explained that his
job was to erase the footprints left in the grass by those
carrying the narcotics. He also told the agents that Molina was
a scout for the drug operation.
On November 18, 2003, Molina and Mendez-Sanchez were charged
in a two-count indictment with: (1) conspiracy to possess with
intent to distribute more than 100 kilograms of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846; and (2)
possession with intent to distribute more than 100 kilograms of
marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§ 841(a)(1), (b)(1)(B). Pursuant to a written plea agreement,
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Mendez-Sanchez pleaded guilty to the possession count. Molina
pleaded not guilty, and his case proceeded before a jury. At
Molina’s trial, Mendez-Sanchez testified as a government witness
that the group was following Molina and that Molina was acting as
a guide. On January 14, 2004, a jury found Molina guilty of both
counts in the indictment.
In the Presentence Report (“PSR”), the probation officer
recommended a base offense level of 26, using U.S.S.G.
§ 2D1.1(c)(7), for an offense involving at least 100 kilograms of
marijuana. After concluding that Molina was a manager or
supervisor in the drug conspiracy pursuant to U.S.S.G.
§ 3B1.1(b), the probation officer recommended adding three levels
to arrive at a total offense level of 29. With Molina’s criminal
history category of I, the recommendation resulted in a guideline
imprisonment range of 87 to 108 months.
Molina objected to the PSR, disputing the three-level
aggravating role adjustment under U.S.S.G. § 3B1.1(b) and
requesting a minimal or minor role adjustment pursuant to
U.S.S.G. § 3B1.2(a)-(b). In an addendum to the PSR, the
probation officer maintained that Molina acted as a supervisor or
manager of the drug conspiracy, thus warranting the three-level
increase. The probation officer also recommended denying the
role adjustment under either § 3B1.2(a) or (b) because she
concluded that Molina’s role in the drug conspiracy was “[i]n no
way . . . minimal or minor.”
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At sentencing, Molina re-urged his objections, this time
citing Blakely v. Washington, 542 U.S. 296 (2004), in support of
his contention that the aggravating role adjustment under
U.S.S.G. § 3B1.1(b) was not warranted because there was no jury
finding that he had a managerial or supervisory role in the drug
conspiracy. He also argued that he should receive a mitigating
role adjustment pursuant to U.S.S.G. § 3B1.2(a)-(b), given that
his role in the conspiracy was minimal or minor.
The district court found that the facts did not support a
three-level enhancement for Molina’s role in the offense and
therefore did not apply the aggravating role adjustment. The
district court denied Molina’s request for a downward adjustment,
finding that Molina was “clearly not just one of the mules.”
After re-calculating Molina’s total offense level as 26, the
district court determined that the guideline imprisonment range
was sixty-three to seventy-eight months. In sentencing Molina,
the district court stated:
I’m going to sentence you at that lower level, 26. But
I am going to sentence you around the middle, slightly
above the middle, because of the weight of the marijuana,
first of all. And because, as I say, you’re clearly not
just one of the mules. So I’m going to sentence you to
72 months. When you get out, you will be on supervised
release for five years.
Molina filed this timely notice of appeal.
II. DISCUSSION
A. Mitigating Role Adjustment Under U.S.S.G. § 3B1.2
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Molina argues that he should have received a downward
adjustment under U.S.S.G. § 3B1.2 because there is no evidence
showing that he had a role in coordinating the drug smuggling or
that he knew anything about who supplied the marijuana or where
it was to be delivered. According to Molina, his limited role of
scouting the area for law enforcement and serving as a guide
supports his contention that the district court erred in denying
him a mitigating role adjustment.
Under U.S.S.G. § 3B1.2, a district court may reduce a
defendant’s offense level by four levels if the defendant was a
“minimal participant” in the criminal activity or by two levels
if the defendant was a “minor participant.” U.S.S.G. § 3B1.2(a)-
(b); United States v. Virgen-Moreno, 265 F.3d 276, 296 (5th Cir.
2001). “Such an adjustment is ‘generally appropriate only if a
defendant is substantially less culpable than the average
participant.’” Virgen-Moreno, 265 F.3d at 296 (quoting United
States v. Flucas, 99 F.3d 177, 181 (5th Cir. 1996)); see also
U.S.S.G. § 3B1.2 cmt. n.3(A).
As the commentary points out, the decision of whether to
apply § 3B1.2(a) or (b) “involves a determination that is heavily
dependent upon the facts of the particular case.” U.S.S.G.
§ 3B1.2 cmt. n.3(C) (noting that the court “is not required to
find, based solely on the defendant’s bare assertion, that such a
role adjustment is warranted”). Given this fact-intensive
inquiry, we will not reverse the district court’s finding that
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Molina’s conduct did not warrant the downward adjustment unless
that finding is clearly erroneous. See Virgen-Moreno, 265 F.3d
at 296. “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” United States
v. Villanueva, 408 F.3d 193, 203 (5th Cir.), cert. denied, 126 S.
Ct. 268 (2005); see also Anderson v. Bessemer City, 470 U.S. 564,
573-74 (1985) (“If the district court’s account of the evidence
is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed
the evidence differently.”).
The district court’s finding that Molina was “clearly not
just one of the mules” is supported by the record. Molina
admitted to the border patrol agents that he was scouting the
area for law enforcement, which means that his criminal activity
was not confined to “mule” or courier status. Additionally,
Mendez-Sanchez testified that the individuals carrying the
bundles of marijuana were following Molina and that Molina was
acting as a guide. See United States v. Pofahl, 990 F.2d 1456,
1485 (5th Cir. 1993) (holding that there was no clear error in
the district court’s finding that the defendant’s role was not
minimal or minor where the defendant’s “role was not confined to
that of a mule”); see also United States v. Bethley, 973 F.2d
396, 401 (5th Cir. 1992) (stating that “a ‘mule’ or transporter
of drugs may not be entitled to minor or minimal status”). The
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district court also considered the weight of the marijuana
involved in this case in denying Molina’s request. Our case law
supports such a consideration in denying an adjustment under
U.S.S.G. § 3B1.2. See United States v. Leal-Mendoza, 281 F.3d
473, 477 (5th Cir. 2002) (concluding that the district court did
not clearly err in refusing an adjustment where the defendants
were paid a substantial sum of money and moved a large quantity
of drugs); see also United States v. Rodriguez De Varon, 175 F.3d
930, 943 (11th Cir. 1999) (en banc) (stating that drug quantity
may be the best indication of a drug courier’s participation in
the criminal activity). Based on our review of the record in its
entirety, we hold that the district court did not clearly err in
refusing Molina an adjustment pursuant to U.S.S.G. § 3B1.2.
B. Sentencing Under Mandatory Guidelines
Although Molina contends that the district court committed
Booker error by sentencing him under the mandatory Guidelines, he
concedes that he failed to raise this issue before the district
court and therefore plain-error review applies. The government
correctly notes that this case involves Fanfan error, and not
Booker error, because Molina is complaining only about the
district court’s mandatory application of the Guidelines.3 See
United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005)
3
This case does not involve Booker error because Molina
stipulated to the amount of drugs involved in his offense, and
drug quantity was the only fact that the district court used to
increase Molina’s sentence.
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(discussing the difference between Booker and Fanfan error).
With regard to Molina’s suggested standard of review, the
government readily accepts plain error as the appropriate
blueprint for this case.
As an initial matter, we observe that we are not bound by
Molina’s concessions--or the government’s acceptance of those
concessions--because it is this court, and not the parties, that
determines the proper standard of review. See United States v.
Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc) (“[N]o
party has the power to control our standard of review. . . . If
neither party suggests the appropriate standard, the reviewing
court must determine the proper standard on its own”) (internal
citation omitted); see also St. Tammany Parish Sch. Bd. v.
Louisiana, 142 F.3d 776, 782 (5th Cir. 1998) (“Of course, we, not
the parties, determine the proper standard of review.”).
Our review of the record reveals that Molina made a Blakely
objection in the district court, thereby preserving Fanfan error
for harmless-error review. See United States v. Rodriguez-Mesa,
--- F.3d ----, 2006 WL 633280, at *5 (5th Cir. Mar. 15, 2006)
(stating that the defendant preserves Fanfan error by raising a
Blakely objection in the district court). Under harmless-error
review, we will normally vacate and remand for resentencing
unless the government can prove that the error was harmless
beyond a reasonable doubt. United States v. Mares, 402 F.3d 511,
520 n.9 (5th Cir.) (stating that if the issue presented in Fanfan
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is preserved, this court will vacate and remand unless the error
is harmless under FED. R. CRIM. P. 52(a)), cert. denied, 126 S. Ct.
43 (2005). “[T]he government must shoulder the heavy burden of
demonstrating that the district court would not have imposed a
different sentence under the advisory regime--in essence, the
[g]overnment must prove a negative.” United States v. Woods, ---
F.3d ----, 2006 WL 325262, at *3 (5th Cir. Feb. 13, 2006); see
also United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005)
(stating that the government must “prove beyond a reasonable
doubt that the district court would not have sentenced [the
defendant] differently had it acted under an advisory Guidelines
regime”).
We have reviewed the record in its entirety, and there is
nothing in the record indicating that the district court would
not have sentenced Molina differently under advisory Guidelines.
In fact, the district court judge did not make any statement at
sentencing regarding what he would have done under an advisory
sentencing regime. Under the harmless-error standard, “[t]he
judge’s silence as to whether or not he would have imposed a
different sentence under an advisory regime does not satisfy
th[e] [government’s] burden.” United States v. Pineiro, 410 F.3d
282, 286 (5th Cir. 2005). Accordingly, we must vacate Molina’s
sentence and remand for further proceedings.
C. Constitutionality of 21 U.S.C. §§ 841(a), 841(b), 846
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Finally, Molina argues, for the first time on appeal, that
the statutes under which he was convicted, 21 U.S.C. §§ 841(a),
841(b), and 846, are facially unconstitutional under Apprendi v.
New Jersey, 530 U.S. 466 (2000). As he correctly concedes, this
claim is foreclosed by circuit precedent. See United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000) (“We see nothing in
the Supreme Court decision in Apprendi which would permit us to
conclude that 21 U.S.C. §§ 841(a) and (b), 846, and 860(a) are
unconstitutional on their face.”).
III. CONCLUSION
For the foregoing reasons, we AFFIRM Molina’s judgment of
conviction as imposed by the district court, and VACATE and
REMAND for resentencing in accordance with this opinion.
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