United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 6, 2007
Charles R. Fulbruge III
Clerk
No. 04-40967
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL SANTIAGO AMADOR-VELASCO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
5:04-CR-102-ALL
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Defendant-appellant Manuel Santiago Amador-Velasco (Amador)
was convicted, following the jury’s April 15, 2004 verdict of
guilty, of one count of conspiracy to possess with intent to
distribute more than five kilograms of cocaine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and one count of
aiding and abetting the possession with intent to distribute more
than five kilograms of cocaine in violation of 18 U.S.C.§ 2, 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A). He was sentenced July 15,
*
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this opinion should not be published and is not precedent except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.
2004 to concurrent terms of 151 months’ confinement and five
years’ supervised release on each count. Amador appeals his
convictions on the grounds that the evidence is insufficient and
that his expert witness was improperly excluded. He also appeals
his sentence, arguing that the district court committed Booker
error by sentencing him under a mandatory Guidelines regime. We
affirm.
I.
Amador, a forty-five-year-old used-car dealer from
Monterrey, Mexico, was stopped at 5:30 p.m. on December 26, 2003,
at the United States Border Patrol checkpoint facility located
fifteen miles north of Laredo, Texas on IH-35. Amador was the
driver and sole occupant of his 2002 Chevrolet station wagon.
Border Patrol Agent Jaime Vega questioned Amador regarding his
immigration status and citizenship, to which Amador replied he
was not a United States citizen and was on his way from his home
in Monterrey, Mexico to shop in San Antonio. Agent Vega
testified he became suspicious because Amador refused to make eye
contact with him and tightly gripped his steering wheel.
As Agent Vega continued to question Amador, Border Patrol
Agent Luis Uribe escorted his drug detection canine, Tessa,
around Amador's vehicle. Tessa alerted to the car, and Amador
was consequently directed to the secondary inspection site. At
the secondary inspection site, Amador remained outside his car
2
with Agent Vega while Agent Uribe walked Tessa around the car a
second time and Tessa alerted again to the underbody of the
vehicle. Agent Uribe then raised the car on a lift for further
inspection and ultimately found a false compartment under the
vehicle where the spare tire was located. During this time,
Agent Vega notes that Amador was acting “fidgety” and otherwise
impatiently.
Easily opening the trap door to the false compartment by
knocking off the Bondo holding it in place, Agent Uribe found
bundles of cocaine weighing 18.821 kilograms in total (estimated
value: $ 1.4 million). Agent Uribe opined that the trap-door
compartment was constructed in such a way to allow for repeated
use. When shown the contraband, Amador appeared “calm,” did not
act “shocked,” and denied knowledge of the bundles of cocaine.
At this point, DEA Agent Clint Hardcastle arrived at the
checkpoint, took control of the drugs, and read Amador his
rights. Agents found no luggage or clothing indicating a planned
stay in the United States. A Mexico-issued car registration and
bill of sale dated August 9, 2003, confirmed that Amador owned
the vehicle.
Amador does not contest that the vehicle was his but claims
his possession was not exclusive due to the complex circumstances
1
Both the government and the defendant stipulated at trial
that the “net weight of the cocaine involved [was] 18.82
kilograms, or approximately 41.5 pounds.”
3
surrounding his procurement of it. He claims that while driving
one day in Monclova, Coahuila, Mexico (two-and-a-half hours from
his home in Monterrey), he happened to encounter the station
wagon in question on the street with a “for sale” sign.2 He
pulled over and spoke to two strangers, Victor Manuel
Echavarria-Gomez (Echavarria) and Roberto Becera (Becera), about
purchasing the vehicle. The vehicle was selling for 97,000 pesos
but Amador resisted, claiming he only had 50,000 pesos on hand.
Becera ultimately agreed to accept half of the negotiated price
of 88,000 pesos if Amador agreed to work for him to pay off the
remaining balance of 44,000 pesos.
According to Amador, Becera offered to pay him 30,000 pesos
(approximately $3,000.00) per month if he would illegally
transport American dollars from the United States to Mexico to
avoid the reporting requirements. Becera acknowledged the false
compartment in the car used for this purpose, referring to it as
a “safe.” Amador accepted the terms of the deal. At this point,
on August 9, 2003, Amador took possession of the vehicle,
obtaining a temporary permit until the registration was placed in
his name.
Amador testified that Becera took possession of the car at
the beginning of November 2003, ostensibly to get documentation
2
Amador testified that he traveled to Monclova to buy cars
to sell in his ten-year-old used-car business about ten times a
year “because they were cheaper there than in Monterrey.”
4
to change the license plates on the vehicle, and returned it to
Amador December 7 or 8, 2003. Amador subsequently received (and
followed) Becera’s instructions on December 25, 2003, via
messenger, directing Amador to travel to Laredo, Texas on
December 26, 2003. Amador did so, leaving the vehicle at the
Mall Del Norte in Laredo at 4:00 p.m. on December 26, ostensibly
to be loaded with currency for the return trip to Mexico. When
Amador returned approximately an hour later, he encountered
Becera who instructed him on a change of plans, directing him to
go to San Antonio to have the false compartment loaded with
currency. Amador then began to drive toward San Antonio until he
was intercepted at the checkpoint just outside Laredo where he
was subsequently arrested.
II.
A.
Amador first argues that the evidence is insufficient to
establish his knowledge of the contents of his vehicle's hidden
compartment. He claims he never made any inconsistent
statements, has always denied knowledge of the drugs, has no
criminal record, and had no other items in his possession that
would arouse suspicion. Further, he argues that his possession
of the vehicle was not continuous throughout his ownership of it
and that the car was previously searched (without incident) with
use of a drug-sniffing dog when he crossed the border from Mexico
5
into Laredo, Texas. He then claims that unknown to him someone
placed the drugs in the hidden compartment after he crossed into
the U.S.
We review the evidence de novo in the light most favorable
to the verdict, but will uphold the verdict only if there is
substantial evidence from which a rational trier of fact would
find beyond a reasonable doubt all the essential elements of the
offense charged. United States v. Alarcon, 261 F.3d 416, 422–23
(5th Cir. 2001); United States v. Moreno, 185 F.3d 465, 471 (5th
Cir. 1999). The jury is free to choose among the various
reasonable constructions of the evidence and the evidence does
not have to exclude all hypotheses of innocence. Moreno, 185
F.3d at 471. Yet, “[i]f the evidence tends to give ‘equal or
nearly equal circumstantial support’ to guilt or innocence,
however, reversal is required: When the evidence is essentially
in balance, ‘a reasonable jury must necessarily entertain a
reasonable doubt.’” United States v. Ortega Reyna, 148 F.3d 540,
543 (5th Cir. 1998) (quoting United States v. Lopez, 74 F.3d 575,
577 (5th Cir. 1996)).
To convict Amador of possessing cocaine with intent to
distribute, the government had to prove beyond a reasonable doubt
that Amador (1) knowingly (2) possessed cocaine (2) with intent
to distribute. Moreno, 185 F.3d at 471; 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) and 846. To establish aiding and abetting the
6
criminal venture of possession with intent to distribute cocaine,
the government had to prove “that [Amador] (1) associated with
the criminal enterprise; (2) participated in the venture; [and]
(3) sought by his action to make the venture succeed.” United
States v. Valdez, 453 F.3d 252, 260 (5th Cir. 2006); 18 U.S.C §
2; 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Amador only
challenges the knowledge requirement.
A jury may infer knowledge if the defendant was in control
of the drug-containing vehicle but proof of the defendant’s
knowledge generally depends on inference and additional
circumstantial evidence where the drugs are hidden in a secret
compartment. Moreno, 185 F.3d at 471; Ortega Reyna, 148 F.3d at
544. We require this level of proof in hidden compartment cases
because there “is at least a fair assumption” that the defendant
may have been used as an unwitting carrier or mule in the drug
smuggling enterprise. United States v. Diaz-Carreon, 915 F.2d
951, 954 (5th Cir. 1990). We have previously recognized as
circumstantial evidence of guilty knowledge: (1) nervousness; (2)
absence of nervousness or a calm, collected demeanor; (3) refusal
to make or retain eye contact; (4) reluctance to answer
questions; (5) lack of surprise when the illegal drugs are found;
(6) statements that are inconsistent; (7) explanations that are
implausible; (8) possession of a large amount of cash; (9)
obvious or significantly noticeable changes to the vehicle,
7
particularly when the defendant has had possession of the vehicle
for a significant period of time. Ortega Reyna, 148 F.3d at 544.
There is sufficient evidence in the record by which a
rational jury could find Amador guilty under our recent
precedent. In Moreno, this court held that evidence exposing the
defendant’s “inconsistent statements and implausible
explanations” were sufficient to “lead a reasonable trier of fact
to doubt [the defendant’s] credibility.” 185 F.3d at 472. In
Resio-Trejo, another hidden-compartment drug case, the defendant
exhibited no signs of nervousness during the search of his
vehicle, like Amador, but this court stressed the defendant’s
well-documented, continuous ownership and inspection regimen to
find the additional circumstantial evidence needed to sustain his
convictions. 45 F.3d at 912. Long, exclusive control and
ownership may not be necessary under Resio-Trejo. To support our
finding in Resio-Trejo, we cited a case where the evidence was
sufficient when the defendant possessed the vehicle in question
for a mere week prior to the search. 45 F.3d at 912 (citing
United States v. Olivier–Becerrill, 861 F.2d 424, 427 (5th Cir.
1988)). It is uncontested that Amador possessed the vehicle in
question for well over four months prior to his arrest, though
Amador claims there was a brief period where Becera had
possession approximately three weeks prior to Amador’s arrest.
The jury would not be unreasonable in choosing to disregard
8
Amador’s story about his acquisition of the vehicle as not
entirely credible. Amador’s odd behavior when he was stopped at
the checkpoint may also provide at least marginal support for the
jury’s findings, including his lack of surprise when the cocaine
was discovered in his car. Further, the false compartment was
sealed with Bondo, an auto-repair putty, which when Agent Uribe
knocked it off with a hammer had dried to a level Agent Uribe
estimated at “several days old” but not months old, suggesting
the cocaine had been placed in the car prior to Amador’s border
crossing but well after Becera no longer had possession of the
car. And, the jury could have considered that the monetary value
of the drugs found in the vehicle, $ 1.4 million, made it
unlikely for Amador to have been an innocent, misled mule. See
United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003);
United States v. Gamez-Gonzales, 319 F.3d 695, 699 (5th Cir.
2003).
Crucially (and unlike any of the hidden compartment cases he
relies on), Amador freely admitted he knew about the hidden
compartment at the time he bought the car from two strangers in
an area of Mexico remote from his home at a reduced price in
exchange for his use of the compartment to furnish illegal
smuggling services. His explanation that he thought the
compartment was to be used to facilitate a different smuggling
purpose (money instead of drugs) could have been rejected by a
9
rational jury. Also, a jury can consider “as circumstantial
proof of guilty knowledge” a “charade of ignorance,” as could be
present in driving a car with a hidden compartment for illegal
purposes without checking the compartment. Moreno, 185 F.3d at
476. Amador’s claims he could not have checked the compartment
could be disregarded by the jury (particularly since Agent Uribe
testified he accessed the contents of the hidden compartment in a
matter of minutes).
We hold that the jury’s verdict was adequately supported by
the evidence presented at trial.
B.
Amador next claims that the district court abused its
discretion by not admitting testimony from his proffered expert
witness, Julio Garcia, a defense attorney from Laredo, Texas, who
had served some eight years as state district attorney in the
area during the 1980s. Garcia was to testify that drug smugglers
often lie to their carriers to prevent theft and conceal the
value of the drugs. The testimony was excluded under Rules of
Evidence 702 and 704(b) due to a lack of a sufficiently reliable
basis for Garcia’s testimony and because the proposed testimony
regarded Amador’s mental state, an ultimate issue for the jury.
We review the district court’s decision to admit or exclude
evidence for abuse of discretion. United States v. Dixon, 413
F.3d 520, 523 (5th Cir. 2005); United States v. Gutierrez-Farias,
10
294 F.3d 657, 662 (5th Cir. 2002). “Expert testimony is
admissible if (1) it will assist the trier of fact to understand
the evidence or to determine a fact in issue; (2) it is based on
sufficient facts or data; (3) it is the product of reliable
principles and methods; and (4) the witness has applied the
principles and methods reliably to the facts of the case.” Dixon,
413 F.3d at 523 (citing FED. R. EVID. 702). Rule 704(b) prohibits
expert opinions as to whether a defendant did or did not have the
mental state constituting an element of the offense.
The district court held a Daubert hearing outside the
presence of the jury to determine the admissibility of Garcia’s
testimony. Garcia testified that, after discussions with
investigating officers, witnesses and defendants–clients, he had
come to the opinion that “owners of drugs lie to the drivers of
their ‘merchandise’ to prevent theft, and conceal the type of
contraband being transported to prevent knowledge of the value of
the contraband.” Garcia admitted, however, that his information
was obtained second- or third-hand, that he had no personal
knowledge as to the facts on which he based his opinion, and that
he never corroborated or verified any of his information. The
district court excluded Garcia’s testimony because it: (1)
questioned the reliability of the information upon which attorney
Garcia premised his opinion, per Rule 702; and (2) concluded that
attorney Garcia’s testimony was proffered for the purpose of
11
addressing the ultimate issue in the case in violation of Rule
704(b).
We have held that a court’s decision to disallow testimony
similar to that offered by Garcia was not in error and that
allowed testimony similar to that offered by Garcia was in error.
See United States v. Gutierrez-Farias, 294 F.3d 657, 663 & n5
(5th Cir. 2002); United States v. Mendoza-Medina, 346 F.3d 121,
129 (5th Cir. 2003).
In the present case, the district court acted well within
its discretion in excluding Garcia’s proffered testimony under
either Rule 702 or Rule 704(b). There appears to be a very
tenuous factual basis for his testimony. Also, like numerous
other cases we have decided, it would not be an abuse of
discretion to find that Garcia’s proffered testimony skirts too
close to the ultimate issue in this case—Amador’s mental state.
III.
Amador argues for the first time on appeal that he was
sentenced in violation of United States v. Booker, 125 S.Ct. 738
(2005), contending the sentencing judge, visiting Chief District
Judge Berrigan of the Eastern District of Louisiana (who did not
preside at trial), made her sentencing decision under the
misconception that the Guidelines were mandatory, rather than
12
merely advisory.3 Amador’s presentence report established a base
level of 34 with a guideline range of 151 to 188 months (the
statutory range was 120 months to life pursuant to 21 U.S.C. §
841(b)(1)(A)). There were no objections to the presentence
report (and none are pursued on appeal), and Judge Berrigan
sentenced Amador to the lowest sentence within the range:
concurrent terms of 151 months on each count.
Since Amador did not raise any objections below to the
sentencing, our review is for plain error. FED. R. CRIM. P. 52(b);
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). For
there to be plain error, there must be “(1) ‘error’, (2) that is
‘plain’, and (3) that ‘affect[s] substantial rights’.” United
States v. Cotton, 122 S.Ct. 1781, 1785 (2002). In order for an
error to affect a defendant’s substantial rights, the error “must
have affected the outcome of the district court proceedings,”
3
The error Amador alleges is more correctly characterized as
Fanfan error. As clarified in the recent opinion United States
v. Rodriguez–Mesa, 443 F.3d 397, 404 (5th Cir. 2006), Booker
addresses two types of error:
“‘Booker error is found where the district court
applied the mandatory Guidelines and enhanced a
defendant's sentence on the basis of facts neither
admitted by him nor found by a jury beyond a reasonable
doubt, in violation of the Sixth Amendment[,]' whereas
‘Fanfan error is found where the district court applied
the mandatory Guidelines to enhance a defendant's
sentence absent any Sixth Amendment Booker error.’”
(remanding for resentencing under harmless error review
and quoting United States v. Walters, 418 F.3d 461, 463
(5th Cir. 2005) (remanding for resentencing under
harmless error standard of review)).
13
United States v. Olano, 113 S.Ct. 1770, 1778 (1993), and the
defendant must demonstrate a probability thereof “sufficient to
undermine confidence in the outcome.” United States v. Dominguez
Benitez, 124 S.Ct. 2333, 2340 (2004). “If all three conditions
are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Cotton, 122 S.Ct. at 1785.
Sentencing under mandatory application of the Guidelines is
plain error, thereby satisfying the first two prongs, so Amador
must show that this error affected his substantial rights by
“evidence in the record suggesting that the district court would
have imposed a lesser sentence under an advisory guidelines
system.” United States v. Taylor, 409 F.3d 675, 677 (5th Cir.
2005); United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir. 2005). A court’s “imposition of a sentence at the
bottom of the guidelines range, alone, does not indicate that
there is a reasonable probability that the court would have
imposed a lesser sentence under advisory sentencing guidelines.”
United States v. Duarte-Juarez, 441 F.3d 336, 339 (5th Cir.
2006). “However, a minimum sentence is ‘highly probative, when
taken together with relevant statements by the sentencing judge
indicating disagreement with the sentence imposed, that the
Booker error did affect the defendant’s substantial rights.’”
14
Id.; see also Mares, 402 F.3d at 521.
The sentencing hearing was quite brief. After ascertaining
that there were no objections to the PSR, the district judge
adopted the PSR and its 151-188 months guideline range. The
government announced it had no comment, and defense counsel
merely stated:
“MR. PENA, SR: The only thing that we are asking, Judge
is that you consider the low end of this case which is
bad enough in itself. It’s 151 months.
THE COURT: I agree with you.”
The court then asked defendant if he wished to say anything and
Amador made a short statement which, as defense counsel then
briefly explained to the court, was essentially a vague and
oblique reiteration of his trial defense that he didn’t know
cocaine was in the compartment. The following then transpired:
“Okay. I will state for the record that I do agree with
the implication of defense counsel that the guidelines
are bad enough as it is, and I hope that some day the
guidelines with respect to drug offenses in particular
will be more reasonable and more compassionate to all
the circumstances involved.
All right. Pursuant to the Sentencing Reform Act of
1984, it is the judgment of the Court that the
defendant . . . is hereby committed . . . for a total
term of 151 months.”
The government argues that the court’s remarks are not
sufficient to show that the judge would have reached a different
conclusion under an advisory scheme, also noting that Amador has
not offered any reasons or evidence that would justify a downward
departure or variance from the Guidelines. Furthermore, Amador
15
did not object to the presentence report and never asked for a
sentence below the Guideline range or offered any particular
reason for leniency or a low sentence in his case. He asked for
151 months, and that is what he got.
Amador has not succeeded in meeting his heavy burden under
plain error review—he must show more under our precedent to
convince this court that the sentencing judge would likely have
sentenced him to a lower sentence, below the Guidelines range,
but for the judge’s (assumed) misconception that the Guidelines
were mandatory.4
For example, in United States v. Pennell, 409 F.3d 240, 245
(5th Cir. 2005), the defendant met his burden where sentencing
court stated:
“Once again, I say that from many standpoints of
fairness and justice, it might be better to sentence
people just based on actual loss, but I don't think
that's the way the guidelines are written or the
appellate courts interpreted them in most cases. So I
feel constrained to overrule your objection.”
In United States v. Garcia, 416 F.3d 440, 441 (5th Cir. 2005),
this burden was met where the court in the sentencing hearing
“discussed at length the difficulties of long prison sentences
and their effect on families,” and, noting that the defendant was
a married father of small children, then “opined: ‘You [Garcia]
are a young man and I would prefer to sentence you to a lesser
4
The district court never referred to the guidelines as
being mandatory or inflexible or the like, although we assume
that the court regarded them as mandatory in the Booker sense.
16
sentence than required under the guidelines but I’m going to
follow the law and assess punishment appropriately based on the
circumstances that are presented before me.’” Id. (emphasis
added). The Garcia court then sentenced the defendant to the
lowest sentence in the applicable Guidelines range. Id.
Likewise, in United States v. Montes–Nunez, 2005 WL 3099635
(5th Cir. Nov. 21, 2005) (unpublished), this court found
reversible Fanfan error under plain error review where the
minimum guideline sentence was imposed and the sentencing judge
repeatedly stated that the range was excessive and that the
sentence imposed was “an excessive sentence any way you cut it.”5
5
The judge’s statements in United States v. Montes-Nunez are
as follows:
“[Defense Attorney]: ... [The defendant] didn't come
over here with a machine gun. He wasn't robbing. He
wasn't killing. [The sentence is excessive.]
The Court: I understand . . . I understand what you are
saying.
[Defense Attorney]: He just crossed the political
boundary.
The Court: I understand. But the problem is that
Congress has said that crossing the political boundary
when you are a convicted criminal alien is going to be
a serious offense.
[Defense Attorney]: I understand that, Your Honor. But
this Court also has certainly the power and also is in
a position to do justice here. And to make the sentence
fit the gravity of the crime.
The Court: I am not going to do it by perverting the
guidelines because the sentence is very high for coming
over illegally. I agree with you. This is an excessive
17
This court has also cited the Eleventh Circuit’s United States v.
Shelton, 400 F.3d 1325 (11th Cir. 2005).6 In Shelton, the
sentence any way you cut it. However, it is not within
my power to ignore the guidelines or the law just
because I don't agree with the guideline ranges.
[Defense Attorney]: Well, I do agree that the sentence
range here would be excessive. And I am basically
presenting a technical argument to the Court that
ameliorates the severe effect of the sentencing range
and-
The Court: I understand . . .
[Defense Attorney]: I think there is a good argument
that can be made that the guidelines could be applied
in that way.
The Court: But I would—what I would be doing is, I
would be misapplying the guidelines. And that's what
gives rise to the Protect [sic] and the Patriot Act.
This is a misapplication of the guidelines to these
laws. That's what is making Congress very angry about
the courts. And that's why they are tightening it up. I
would suggest, make this argument to Congress, see if
they will change the laws. And I would support you in
your request in terms of Congress. However, I am not
going to misapply the guidelines and get around the
intent of Congress because I don't agree with the
sentencing range. And I think that they are personally
excessive. I agree with you. They are excessive.” Id.
(emphasis added).
6
In Bringier, however, this court distinguished Shelton:
“Unlike Shelton, the sentencing judge here did not
lament over the sentence he imposed, nor did he state
that the sentence is ‘more than appropriate' or ‘too
severe.' Instead, he merely acknowledged the sentence
was harsh. In addition, the fact that the sentencing
judge imposed the minimum sentence under the Guideline
range (360 months) alone is no indication that the
judge would have reached a different conclusion under
an advisory scheme.” United States v. Bringier, 405
F.3d 310, 318 n.4 (5th Cir. 2005)
18
Eleventh Circuit vacated and remanded for resentencing under
plain error review where the defendant pointed to statements in
the record which, when taken together, indicated that the
sentencing court would have sentenced him to a lower sentence
under an advisory regime as opposed to the presumed mandatory
regime. The sentencing court commented that Shelton’s sentence
was “very, very severe” due to his criminal history points and
the mandatory consecutive sentence for the section 924(c)
firearms count. Id. at 1328. It also noted that “unfortunately”
the Guidelines criminal-history calculation takes into account
each of the defendant's past charges and not the fact that the
sentences imposed on those charges were short as a result of such
factors as the youth of the defendant or amount of drugs
involved. Id. It also expressed its disapproval of the severity
of the sentence by stating that Congress has taken a “very, very
hard stance when it comes to guns and drugs.” Id. Finally, the
sentencing court indicated that the most lenient sentence it
could impose, a sentence at the low end of the Guidelines range,
was “more than [was] appropriate in this situation.” Id.
(emphasis added).
Here, the district court’s comments simply do not rise to
the level present in the above cases but rather are more similar
to those in which we have not found plain error. The defendant
in United States v. Bringier, 405 F.3d 310 (5th Cir. 2005),
19
failed to satisfy his burden to prove his substantial rights were
affected. In Bringier, the sentencing court merely noted,
similar to the present case, that the sentence imposed was harsh:
“I do not know that the testimony at the trial ever
made it, nailed it down, but I suspect-and I think you
probably suspect as well-that your activities led to
the death of your wife and child. I just think it is,
you know, a tragedy, you know, a waste of a young man
that could have been many things.
I do not know what to tell you other than this is
the—even though it is a harsh sentence of 30 years,
that is the lowest sentence that I could give you. Your
convictions on these counts could have carried a life
sentence, but I do not see any reason to sentence you
beyond the minimum.” Id. at 317 n.4.
In United States v. Mendoza–Sanchez, 456 F.3d 479 (5th Cir.
2006), the defendant failed to show that the sentencing court’s
plain Fanfan error affected his substantial rights. In
Mendoza–Sanchez, the district court sentenced the defendant to
the lowest end of the Guidelines range but we noted that “the
fact that the sentencing judge imposed the minimum sentence under
the sentencing Guidelines range, alone, is no indication that the
judge would have reached a different conclusion under an advisory
scheme.” Id. at 484. See also, e.g., United States v. Rodriguez-
Gutierrez, 428 F.3d 201, 204-06 (5th Cir. 2005); United States v.
Duarte-Juarez, 441 F.3d 336, 339-40 (5th Cir. 2006).7
7
Additionally noteworthy is our opinion in United States v.
Pineiro, 410 F.3d 282 (5th Cir. 2005), where the defendant
preserved his objection thereby causing his Fanfan claim to be
reviewed for harmless error—placing the burden on the government
to show that the sentencing judge would not have imposed a
20
The district court’s statements here skirt very close to the
line but nevertheless fall on the side of affirmance as, in the
context of the overall sentencing proceeding, they lack the
specificity needed for Amador to satisfy his heavy burden to
mandate plain error reversal. For example, unlike in Garcia,
where the judge explicitly said “I would prefer to sentence you
to a lesser sentence than required under the guidelines,” 416
F.3d at 441, the district court here only deplores the state of
different sentence under an advisory regime. We vacated the
sentence and remanded for resentencing under the harmless error
standard, holding that a judge’s silence as to whether he would
have imposed a different sentence under an advisory regime does
not satisfy the government’s burden, but stated, specifically,
that the sentencing judge’s remarks would likely not warrant
remand under plain error review. Noting that the sentencing
judge never said the range was too high in light of the offense
or that he would rather impose a lower sentence, we found the
following statements by the sentencing judge sufficient for
remand under harmless error review but insufficient for remand
under plain error review:
“Mr. Pineiro, you do understand, and I’m sure your
attorney has told you, that the Court in meting out
sentencing, this and virtually every other case that
comes before the Court, I’m bound by sentencing
guidelines [that are] prepared by the US Sentencing
Commission. So I have to operate within those
[parameters], unless there are certain reasons why the
guidelines can be bent[. F]or example, with substantial
cooperation, the government can file a motion for a
downward departure based on substantial assistance by a
defendant, and the Court can depart. In that regard,
the Court can also depart upward in certain cases where
there are . . . aggravating circumstances not fully
taken under consideration by the guidelines. I don’t
know of [any] reason in this case why either—there
should be either an upward or a downward departure from
the guidelines. So to that extent, the Court will
adhere to the guidelines.” Id. at 286 n.6.
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guideline drug sentences in a wholly general way—there does not
appear to be anything in her statements affirmatively indicating
that she likely would have reached a different sentence in this
particular case under an advisory scheme. Rather, at the most
the minimum sentence is merely “bad enough” not too bad (or, her
agreement may simply be with 151 months as an appropriate
sentence). Amador must show something more specific or concrete
for plain error—not merely general hypotheses of a sentencing
judge’s possible inclination but an adequate indication she would
actually have preferred to sentence this particular defendant for
these particular offenses below the applicable Guidelines range.
See Mares, 402 F.3d at 521–22. Amador’s case does not amount to
an error worthy of remand under the high burden presented by
plain-error review.
IV.
For the foregoing reasons, the defendant’s convictions and
sentence are
AFFIRMED.
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