United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-51470
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOE ANTHONY MOLINA
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Joe Anthony Molina pleaded guilty to two
counts of possession with intent to distribute controlled
substances, one count of conspiracy to possess with intent to
distribute a controlled substance, one count of conspiracy to
possess a firearm in furtherance of a drug-trafficking crime, and
one count of possession of firearms in furtherance of a drug-
trafficking crime. He appeals his convictions, contending that
his pleas of guilty were involuntary because the district court
incorrectly advised him regarding the maximum imprisonment as to
one of the counts. He also appeals his sentence, arguing that
the district court improperly calculated his base offense level
under the United States Sentencing Guidelines and that the court
improperly applied a two-level enhancement for the use of a
minor. For the reasons that follow, we AFFIRM his convictions,
VACATE his sentence, and REMAND for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a search warrant, officers with the Austin
Police Department conducted a search of defendant-appellant Joe
Anthony Molina’s Austin, Texas, residence on September 2, 2004.
The search revealed evidence of a large marijuana growing
operation. The officers also found and seized, inter alia, 21.81
kilograms of marijuana, 414.39 grams of methamphetamine, 28.36
grams of Psilocin (mushrooms), and several firearms. An analysis
of the seized methamphetamine revealed that it contained 310.79
grams of actual (i.e., pure) methamphetamine and was thus of
approximately 75% purity.
The grand jury charged Molina, along with two co-
conspirators, in a six-count indictment on October 5, 2004.
Molina was not charged in count one; he pleaded guilty to counts
two through five. On count two, Molina pleaded guilty to
possession with intent to distribute more than 50 grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1). On count
three, he pleaded guilty to possession with intent to distribute
less than 50 pounds of marijuana, also in violation of
§ 841(a)(1). On count four, he pleaded guilty to conspiracy to
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possess with intent to distribute more than 50 grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. On
count five, Molina pleaded guilty to conspiracy to use and carry
a firearm during and in relation to, and to possess a firearm in
furtherance of, a drug-trafficking crime in violation of 18
U.S.C. § 924(c), (n). And on count six, he pleaded guilty to
using, carrying, and possessing firearms in furtherance of a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1).
Before Molina pleaded guilty, the district court admonished
him, inter alia, that the maximum sentence of imprisonment for
count three (possession with intent to distribute less than 50
pounds of marijuana) was twenty years.
The Presentence Investigation Report (“PSR”), ordered by the
district court, applied the 2004 version of the United States
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) and assigned
Molina a base offense level of 34, based on the amount of drugs
seized at the residence and distributed by the conspiracy.
Because more than one drug was involved, the PSR converted the
weight of each drug to its marijuana equivalent, pursuant to
U.S.S.G. § 2D1.1 cmt. n.10. In calculating the marijuana
equivalent of the methamphetamine seized, the PSR converted the
weight of actual methamphetamine in the substances (310.79
grams), using the harsher multiplier for actual methamphetamine,
rather than converting the weight of the total substances (414.39
grams).
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The PSR also recommended (1) a three-level enhancement,
pursuant to U.S.S.G. § 3B1.1(b), for Molina’s role as manager or
supervisor in a criminal activity involving five or more
participants; (2) a two-level enhancement, pursuant to U.S.S.G.
§ 3B1.4, for the use of a minor in the commission of the offense;
and (3) a three-level reduction, pursuant to U.S.S.G. § 3E1.1,
for Molina’s acceptance of responsibility. The PSR thus arrived
at a total offense level of 36. It also assigned Molina a
criminal-history category of IV.
Molina objected to the use of 310.79 grams of actual
methamphetamine in the Guidelines calculation. He also objected
to both enhancements. The district court overruled Molina’s
objections and adopted the PSR in its entirety.
The district court imposed a sentence of 262 months’
imprisonment on count two, 240 months’ imprisonment on count
three, 262 months’ imprisonment on count four, and 240 months’
imprisonment on count five, to be served concurrently.
Additionally, the court sentenced Molina to 60 months’
imprisonment on count six, to be served consecutively, for a
total of 322 months’ imprisonment.1 Molina timely appealed his
convictions and his sentence.
II. MOLINA’S CONVICTIONS
Molina first contends that his guilty pleas on all counts
1
The sentence also included five years of supervised
release and a $500 special assessment.
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were involuntary because the district court incorrectly
admonished him that the maximum sentence of imprisonment for
count three was twenty years, when in reality it was five.
A. Standard of Review
Because Molina did not object before the district court, we
review for plain error. See United States v. Vonn, 535 U.S. 55,
58-59 (2002). Under the plain-error standard, we may reverse
only if (1) there is error, (2) the error is clear under current
law, and (3) the error affects the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732-34 (1993);
United States v. Garcia Abrego, 141 F.3d 142, 165 (5th Cir. 1998)
(quoting United States v. Dupre, 117 F.3d 810, 817 (5th Cir.
1997)). Molina bears the burden of persuasion with respect to
this showing. United States v. Dominguez Benitez, 542 U.S. 74,
82 (2004). He must “show a reasonable probability that, but for
the error, he would not have entered the plea.” Id. at 83.
B. Discussion
Prior to accepting Molina’s plea of guilty, the district
court was required to inform him of the maximum possible penalty.
See FED. R. CRIM. P. 11(b)(1)(H). The district court advised
Molina that the maximum period of imprisonment for count three
(possession with intent to distribute less than 50 pounds of
marijuana) was twenty years. Both Molina and the government
agree that this admonition was plain error because the maximum
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imprisonment for count three is actually five years. See 21
U.S.C. § 841(b)(1)(D).2 But they disagree as to whether Molina’s
convictions must be set aside.
Molina contends that his convictions on all counts must be
vacated because the incorrect admonishment rendered his guilty
pleas involuntary. He posits that “[i]t could well be” that he
pleaded guilty because he believed that the easiest case for the
government to prove was on count three since, “[a]fter all, 48
pounds of marijuana are much harder to hide than 414 grams of
methamphetamine.” Def.-Appellant’s Br. 8. He opines (1) that
the main evidence that led the police to him was the presence of
marijuana, (2) that the police consistently developed more
evidence as to the marijuana possession before the search warrant
was executed, and (3) that he and his co-defendants were targeted
because of obvious signs of a large marijuana growing operation.
Based on this, Molina suggests that he “could well have concluded
that a marijuana trial was too risky” if he faced twenty years’
imprisonment, whereas he might have risked a trial had he known
that he faced only five years’ imprisonment on count three. Id.
Molina has not demonstrated a reasonable probability that he
2
Section 841(b)(1)(D) provides that the maximum
imprisonment for possessing less than 50 kilograms of marijuana
is five years. Although Molina was convicted of possessing less
than 50 pounds of marijuana, § 841(b)(1)(D) governs his sentence
because 50 pounds is approximately 22.7 kilograms. See U.S.S.G.
§ 2D1.1 cmt. n.10 Measurement Conversion Table (“1 lb = 0.4536
kg”).
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would not have pleaded guilty but for the improper admonition.
Count three was only one of several counts to which Molina
pleaded guilty, even though he was correctly admonished that
three of the counts carried a maximum term of life imprisonment.
Moreover, he does not direct this court to any portion of the
record supporting the proposition that the maximum sentence for
count three affected his plea decision. Because Molina has not
satisfied his burden, we affirm his conviction on count three.
We affirm his convictions on the remaining counts as well because
the district court’s admonishment as to those individual counts
satisfied Rule 11’s requirements. Cf. United States v. Still,
102 F.3d 118, 122-23 (5th Cir. 1996) (vacating sentence on count
one because of Rule 11 error but affirming sentence on count two
because Rule 11 was satisfied as to that individual count).
III. MOLINA’S SENTENCE
Molina argues that his sentence should be vacated because
the district court erred (1) in applying the Guidelines
multiplier for actual methamphetamine instead of that for a
methamphetamine mixture or substance; (2) in applying a
sentencing enhancement for the use of a minor; and (3) in
considering sentencing factors not admitted by him, depriving him
of his Sixth Amendment rights.3
3
Molina additionally maintains that his sentence of 240
months’ imprisonment on count three should be vacated because it
exceeded the statutory maximum of five years’ imprisonment. The
government concedes that the sentence for count three should be
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A. Standard of Review
We review the district court’s factual findings for clear
error and its interpretation and application of the Guidelines de
novo. United States v. Angeles-Mendoza, 407 F.3d 742, 746-47
(5th Cir. 2005). “A factual finding is not clearly erroneous as
long as it is plausible in light of the record as a whole.”
United States v. Holmes, 406 F.3d 337, 363 (5th Cir.) (quoting
United States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999)),
cert. denied, 126 S. Ct. 375 (2005).
B. Use of Actual Methamphetamine in Guidelines Calculation
Molina argues that the district court erred when it
calculated the marijuana equivalent of the methamphetamine seized
by applying the multiplier for actual methamphetamine instead of
that for a methamphetamine mixture or substance. Section 2D1.1’s
Drug Equivalency Table for Schedule I and II stimulants provides
that one gram of a mixture or substance containing
methamphetamine is equivalent to two kilograms of marijuana,
whereas one gram of actual methamphetamine is equivalent to
twenty kilograms of marijuana. U.S.S.G. § 2D1.1 cmt. n.10 Drug
Equivalency Tables. Molina contends that this ten-to-one ratio
violates due process because it is irrational and because its
vacated on this basis. We do not address this argument
specifically since we conclude that Molina’s overall sentence
must be vacated. On remand, however, the district court may
reconsider Molina’s sentence as to count three in light of 21
U.S.C. § 841(b)(1)(D).
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application is arbitrary.
Molina first posits that the ratio is irrational because,
“[u]nlike the notorious difference between cocaine and crack
cocaine, there is no qualitative difference involved here.”
Def.-Appellant’s Br. 11-12 (footnote omitted). The Seventh
Circuit rejected this argument in United States v. Turner, 93
F.3d 276 (7th Cir. 1996):
We agree with the district court that the
10:1 ratio is supported by a rational basis
because the pure product is more concentrated
and can be cut into larger quantities for
resale. Methamphetamine, as it is produced
through normal chemical processes, contains a
number of impurities that can be removed
through further processing. The finished
product can be cut into larger quantities for
resale. Accordingly, the sentencing scheme
for methamphetamine punishes more severely the
sophisticated cooks who could otherwise
manipulate the Guidelines by producing smaller
quantities of more concentrated
methamphetamine. We are unable to conclude
that Congress lacked a rational basis when it
elected to punish drug offenses involving pure
methamphetamine more severely.
Turner, 93 F.3d at 287 (citations and quotation marks omitted).
Molina has not directed us to authority contrary to Turner;
moreover, we agree with Turner’s rationale. Accordingly, we
reject Molina’s argument that the ten-to-one ratio has no
rational basis.
Molina also argues that the application of the ten-to-one
ratio is arbitrary. He opines that the decision whether to use
the actual-methamphetamine multiplier or the methamphetamine-
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mixture multiplier in the Guidelines calculation is determined by
the indictment. In essence, he suggests that if the government
chooses to present an indictment alleging possession of
methamphetamine, then the harsher actual-methamphetamine
multiplier is used in the Guidelines calculation; but if the
government chooses to present an indictment alleging possession
of a mixture or substance containing methamphetamine, then the
more-lenient methamphetamine-mixture multiplier is used,
resulting in a shorter sentence for the exact same conduct.4
Because the harshness of the sentence, he suggests, is therefore
within the government’s discretion, the application of the ten-
to-one ratio is arbitrary.
Molina misapprehends the operation of the Guidelines. The
choice of which multiplier to use is not determined by the
language of the indictment. Rather, commentary to § 2D1.1
provides: “In the case of a mixture or substance containing . . .
methamphetamine, use the offense level determined by the entire
weight of the mixture or substance, or the offense level
determined by the weight of the . . . methamphetamine (actual),
whichever is greater.” § 2D1.1(c) n.B. Thus, even if the
4
Molina suggests that, in his case, had the indictment
alleged possession of a mixture or substance containing
methamphetamine, then the court would have used the more-lenient
multiplier for a methamphetamine mixture or substance rather than
for actual methamphetamine in determining the marijuana
equivalent. This would have resulted in a base offense level of
30 rather than 34 for the exact same conduct solely because of
different language in the indictment.
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indictment alleges possession of a mixture or substance
containing methamphetamine, the Guidelines’ commentary directs
the court to apply the offense level determined by the weight of
the pure methamphetamine in the mixture or substance if doing so
would result in a higher offense level. Because the choice of
multiplier is determined by the Guidelines and not by the
government or the language of the indictment, we reject Molina’s
contention that the application of the ten-to-one ratio is
arbitrary. See Turner, 93 F.3d at 287.
C. Enhancement for Use of a Minor
Molina next asserts that the district court erred in
applying a sentencing enhancement for the use of a minor, his
seventeen-year-old girlfriend. He posits that, although there is
evidence that his girlfriend was present for and knew of some of
his drug trafficking, her presence and knowledge is not
sufficient to constitute use of a minor. We agree.
U.S.S.G. § 3B1.4 provides for a two-level enhancement “[i]f
the defendant used or attempted to use a person less than
eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense.” Commentary to
§ 3B1.4 states: “‘Used or attempted to use’ includes directing,
commanding, encouraging, intimidating, counseling, training,
procuring, recruiting, or soliciting.” § 3B1.4 cmt. n.1.
The government contends that the enhancement was proper
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because Molina’s minor girlfriend admitted some knowledge of the
drug business and admitted that she went on some of the drug runs
to Corpus Christi. The government opines that Molina used his
girlfriend to either drive him to the marijuana pickups or to
evade suspicion by law enforcement, or both, “as there is no
other plausible explanation for taking her on those trips.”
Gov’t Br. 35.
A number of cases have upheld sentencing enhancements for
the use of a minor when the minor is present during some portion
of the commission of the offense. But in each of these cases
there is an additional circumstance, beyond the minor’s mere
presence, demonstrating that the defendant used or attempted to
use the minor. For example, courts have upheld the enhancement
where (1) the minor participated in loading or unloading
contraband into or from a vehicle, see United States v. Ghali,
184 F. App’x 391, 397 (5th Cir.) (unpublished opinion), cert.
denied, No. 06-6708, 2006 WL 2736597 (Oct. 30, 2006); United
States v. Rivera, 248 F.3d 677, 682 (7th Cir. 2001); (2) the
defendant brought the minor along so that the minor could drive
the defendant’s car, see United States v. Gaskin, 364 F.3d 438,
464-65 (2d Cir. 2004); (3) the defendant brought the minor along
for moral support because the defendant otherwise could not have
committed the offense, see United States v. Paine, 407 F.3d 958,
965 (8th Cir. 2005); and (4) the defendant brought minor children
on a drug run to avoid detection by law enforcement, see United
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States v. Gutierrez, No. 00-40394, 251 F.3d 156, 2001 WL 300644,
at *1 (5th Cir. 2001) (per curiam) (unpublished table decision).
In this case, there is no evidence of anything more than
Molina’s girlfriend’s presence while unlawful activity occurred.
The PSR indicates that Molina’s minor girlfriend and her child
were present at Molina’s residence when the search warrant was
executed, that Molina’s girlfriend knew about the presence of
drugs and certain aspects of the drug operation, that she went
with Molina a couple of times to pick up marijuana, and that one
of the co-conspirators drove her back and forth to Corpus
Christi. But there is no evidence, for example, that Molina’s
girlfriend assisted in carrying or loading drugs, that she ever
drove Molina or his co-conspirators on the drug runs, that Molina
or the co-conspirators needed moral support, that Molina believed
that his seventeen-year-old girlfriend’s presence in the vehicle
during a drug run would assist in avoiding detection, or that
Molina ever asked or encouraged his girlfriend to assist or
become involved in the drug operation in any way. Moreover,
contrary to the government’s assertion that there is no other
plausible explanation for her presence on the trips between
Austin and Corpus Christi, the PSR indicates that Molina’s
girlfriend lived in Corpus Christi.5 It is just as logical an
5
The PSR states that Molina’s girlfriend “resides in Corpus
Christi,” raising the possibility that she lived there at the
time the PSR was prepared but not at the time of the underlying
events. But the PSR also states that Molina’s coconspirator
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inference, if not more so, that Molina’s girlfriend used Molina
and his co-conspirators to transport her between her residence in
Corpus Christi and Molina’s residence in Austin.
Because nothing in the record indicates more than Molina’s
girlfriend’s presence, we conclude that the district court
clearly erred in finding that Molina used a minor in the
commission of the offense. See United States v. Jimenez, 300
F.3d 1166, 1170 (9th Cir. 2002) (“Absent other evidence, the
‘mere presence of a minor’ is insufficient to support the
application of § 3B1.4.” (quoting United States v. Castro-
Hernandez, 258 F.3d 1057, 1060 (9th Cir. 2001))); see also United
States v. Alarcon, 261 F.3d 416, 422 (5th Cir. 2001) (concluding
that mere presence of children in vehicle was insufficient to
show use, absent evidence that defendant “made, wanted, or
suggested” that minor children ride in vehicle to avoid
detection).6 Accordingly, we vacate Molina’s sentence.
D. Use of Facts Not Admitted by Molina
“drove Molina to Corpus Christi to visit his girlfriend,”
indicating that the girlfriend lived in Corpus Christi during the
time of the underlying events.
6
We recognize that Alarcon is not controlling because the
panel in that case was considering whether there was sufficient
evidence to support a conviction for the use of a minor in
avoiding detection of an offense, in violation of 21 U.S.C.
§ 861(a)(2). See Alarcon, 261 F.3d at 422. Of course, our
review for sufficiency of the evidence with regard to a criminal
conviction is different since a conviction requires proof beyond
a reasonable doubt, whereas a sentencing finding requires a
preponderance of the evidence. We nonetheless find Alarcon
instructive as to what conduct constitutes use of a minor.
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Molina finally contends that his Sixth Amendment rights were
violated by the district court’s consideration of relevant
conduct that was neither proven beyond a reasonable doubt nor
admitted by him. Molina concedes that this argument is
foreclosed by United States v. Alonzo, 435 F.3d 551, 553 (5th
Cir. 2006) (“[United States v.] Booker[,] [543 U.S. 220 (2005),]
contemplates that, with the mandatory use of the Guidelines
excised, the Sixth Amendment will not impede a sentencing judge
from finding all facts relevant to sentencing.” (quoting United
States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert denied, 126
S. Ct. 43 (2005))). Molina presents this argument solely to
preserve it for appeal to the Supreme Court if necessary. Alonzo
is binding on us, absent a contrary decision of the Supreme Court
or en banc reconsideration of the issue. See United States v.
Stone, 306 F.3d 241, 243 (5th Cir. 2002). Accordingly, Molina’s
argument is without merit.
IV. CONCLUSION
For the foregoing reasons, Molina’s convictions are
AFFIRMED, his sentence is VACATED, and the case is REMANDED to
the district court for further proceedings.
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