Case: 10-51238 Document: 00511725010 Page: 1 Date Filed: 01/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 13, 2012
No. 10-51238 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOHNNY OCHOA, JR.,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before SMITH, PRADO, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
A jury found Johnny Ochoa, Jr. guilty of (1) conspiracy to possess with
intent to distribute at least five kilograms of cocaine and (2) unlawful use of a
communication facility, in this case a cell phone. The district court sentenced
him to 235 months and 48 months, running concurrently. On appeal, Ochoa
argues that there was insufficient evidence to support his conspiracy conviction.
He also argues that the district court erred in denying his Motion to Suppress
information obtained from his cell phone as well as statements he made before
and after arrest. Specifically, he contends that officers lacked probable cause
Case: 10-51238 Document: 00511725010 Page: 2 Date Filed: 01/13/2012
No. 10-51238
to arrest him and that their search of his cell phone was illegal. Finally, Ochoa
challenges his sentence. We conclude that there was sufficient evidence to
support Ochoa’s conspiracy conviction. We also conclude that the district court
did not err by denying the motion to suppress. The officers reasonably believed
that they had probable cause to arrest Ochoa, and the information found during
the search of Ochoa’s cell phone would have been inevitably discovered during
the inventory of his car. Finally, we conclude that the district court committed
no error in sentencing him. Accordingly, we AFFIRM the district court in all
respects.
I.
While patrolling the area south of Uvalde, Texas, Border Patrol Agent
Juan Gomez received a dispatch over the radio to be on the lookout for a small,
two-tone truck.1 Shortly thereafter, Gomez saw the truck, which was driving
approximately 100 miles per hour in the rain, and followed it into a gas station.
He then noticed that the driver was gripping the steering wheel and looking in
the rearview mirror repeatedly. Gomez also noticed that the truck did not have
license plates. Accordingly, he decided to initiate a stop of the truck when it left
the gas station.
The driver identified himself as Jesus Guerra and told Gomez that he was
traveling to Uvalde to pick up his grandmother. When questioned further,
however, Guerra did not know the route to Uvalde. Gomez then noticed that the
license plates were on the dashboard of the truck and asked why they were not
on the truck, but Guerra did not have a good explanation. It was later confirmed
that the plates did not belong to the truck driven by Guerra. At that point,
Guerra gave consent for Gomez to search his truck. Gomez and another agent
1
The evidence is reviewed in the light most favorable to the verdict. United States v.
Salazar, 542 F.3d 139, 143 (5th Cir. 2008).
2
Case: 10-51238 Document: 00511725010 Page: 3 Date Filed: 01/13/2012
No. 10-51238
found six packages of cocaine in the truck with a total value of $150,000 in the
floorboard of the truck and arrested Guerra.
Agents from the Drug Enforcement Administration (DEA) arrived to
question Guerra. After being read his rights, Guerra agreed to make a
statement. He told the DEA agents that he was delivering the cocaine to Waco,
Texas for Armando Lopez, with ultimate delivery to some unknown person.
Lopez had given him a phone number (“the 254 number”) for a person identified
as “Julio4,” with instructions to call him when he arrived in Waco. Guerra
agreed to cooperate with the DEA agents to make a controlled delivery.
Although Guerra did not know the name of the person he was meeting,
Lopez had told Guerra to identify himself as “Eagle Pass,” and the recipient of
the drugs would identify himself as “Waco.” The 254 number was in the ashtray
of the truck when he retrieved it from the Wal-Mart in Eagle Pass. He
subsequently lost the phone number, however, and received it in a text message.
The agents arranged for Guerra to run his hands through his hair, a “bust
signal,” to indicate that he had made contact with Waco.
As Guerra drew near Waco, he called the 254 number and was told to stop
at the gas station at exit 334A. Following the direction of the DEA agents,
Guerra told Julio4 that he had missed his exit and was at the Exxon station at
exit 334B. He was told that Waco would be there in five minutes.
Approximately seven minutes later, Guerra saw a vehicle pass through the
parking lot; the driver was on his cell phone. Moments later, Guerra received
a phone call from Julio4 telling him that everything was okay and that he was
to follow the car. The vehicle stopped behind Guerra’s truck. Guerra walked up
to the open window, and the driver identified himself as Waco and asked if
Guerra was Eagle Pass. Guerra gave the bust signal. He later identified the
driver of the vehicle as the defendant in this case, Johnny Ochoa. The DEA
agents arrested Ochoa and gave him his Miranda warnings on the way to the
DEA office.
3
Case: 10-51238 Document: 00511725010 Page: 4 Date Filed: 01/13/2012
No. 10-51238
One of the DEA agents, Agent Pennington, drove Ochoa’s car to the DEA
office. While he was driving, he heard a cell phone ring several times but could
not find it. When the team of agents arrived at the DEA office, Agent Hundley
located the phone and gave it to Officer Thrash. Thrash looked through the
contact list and located the 254 number that Guerra had called earlier in the
evening under the nickname “Julio4.” Although there were no phone calls
directly between Ochoa and Guerra, phone records submitted by the government
confirmed that Ochoa had been in contact with Julio4 six or seven times that
evening.
Agent Thrash questioned Ochoa after confirming that he had been given
his Miranda warnings. Ochoa first told Thrash that he had gone to the Exxon
to meet someone. He immediately changed his story, telling Thrash that he had
gone to the Exxon to get a Snickers bar. Thrash terminated the interview and
let another officer question Ochoa. Before the officer began the questioning,
Ochoa placed a bag of methamphetamine from his pocket on the table. Thrash
seized the drugs.
Guerra was charged as a co-defendant and pleaded guilty. Ochoa was
tried before a jury. Guerra and various law enforcement officers testified for the
government, and Ochoa neither testified himself nor called any witnesses. After
a two-day trial, the jury found Ochoa guilty of both counts.
At sentencing, the government sought a mandatory minimum sentence of
twenty years under 21 U.S.C. § 841(b)(1)(A) based on a state conviction for
possession of methamphetamine.2 To prove the state conviction, the government
introduced fingerprint evidence linking the prints on the booking card for the
state conviction to Ochoa’s prints from the current offense. The district court
chose not to apply the Section 841(b)(1)(A) enhancement and sentenced Ochoa
2
That statute provides, “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 20 years.” 21 U.S.C. § 841(b)(1)(A)(ii).
4
Case: 10-51238 Document: 00511725010 Page: 5 Date Filed: 01/13/2012
No. 10-51238
to 235 months’ imprisonment, and ten years of supervised release for conspiracy
to possess with intent to distribute at least five kilograms of cocaine. It
sentenced him to 48 months’ imprisonment and one year supervised release for
unlawful use of a communication facility. It ordered the sentences to be served
concurrently.
Ochoa filed a timely notice of appeal, challenging both his conviction and
his sentence.
II.
A. Whether the evidence was sufficient to support Ochoa’s
conspiracy conviction.
Ochoa first argues that there was insufficient evidence to convict him of
conspiracy to possess with intent to deliver cocaine in violation of 21 U.S.C.
§§ 841, 846.3 Ordinarily, the standard of review for sufficiency of the evidence
is whether any reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. United States v. Hayes, 342 F.3d
385, 389 (5th Cir. 2003). Here, however, Ochoa never moved for a judgment of
acquittal. Therefore, we review only to determine whether the conviction
amounts to a manifest miscarriage of justice. United States v. Aguilar, 503 F.3d
431, 435 (5th Cir. 2007). This standard is “far more strict” than plain error
review. United States v. Mudekunye, 646 F.3d 281, 293 (5th Cir. 2011). Ochoa’s
conviction should be reversed only if “the record is devoid of evidence pointing
to guilt or contains evidence on a key element of the offense that is so tenuous
that a conviction would be shocking.” United States v. Dowl, 619 F.3d 494, 500
(5th Cir. 2010); see Aguilar, 503 F.3d at 435.
To establish a conspiracy, the government must prove that: (1) an
agreement existed between two or more persons to violate federal narcotics law,
(2) the defendant knew of the existence of the agreement, and (3) the defendant
3
Ochoa does not challenge his conviction for unlawful use of a communication facility.
5
Case: 10-51238 Document: 00511725010 Page: 6 Date Filed: 01/13/2012
No. 10-51238
voluntarily participated in the conspiracy. United States v. Cardenas, 9 F.3d
1139, 1157 (5th Cir. 1993). Ochoa argues that the government failed to prove
the second and third elements, namely, that Ochoa knew the agreement was to
transport cocaine and voluntarily participated in it.
“[E]ach element may be proven by circumstantial evidence,” United States
v. Mulderig, 120 F.3d 534, 547 (5th Cir. 1997), and proof of a tacit conspiratorial
agreement is sufficient, United States v. Freeman, 434 F.3d 369, 376 (5th Cir.
2005). To prove the defendant’s participation in a conspiracy, it is not necessary
to prove that he knew exactly how others would carry out their parts of the
scheme:
Where the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme or to
the overall success of the venture, where there are several parts
inherent in a larger common plan, or where the character of the
property involved or nature of the activity is such that knowledge on
the part of one member concerning the existence and function of
other members of the same scheme is necessarily implied due to the
overlapping nature of the various roles of the participants, the
existence of a single conspiracy will be inferred.
United States v. Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994) (quoting United
States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982)); see also United States v.
Rodriguez, 553 F.3d 380, 391 n.4 (5th Cir. 2008) (“Conspiracy law contemplates
the existence of subgroups.”). Furthermore, we have inferred knowledge of the
conspiracy when the defendant is entrusted to carry a large amount of drugs.
United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003) (inferring
knowledge based on drugs that were worth $300,000).
We hold that the evidence is sufficient to affirm Ochoa’s conviction.
Taking all of the evidence in the light most favorable to the verdict, the
government established both that Ochoa knew of, and voluntarily participated
in, the conspiracy:
6
Case: 10-51238 Document: 00511725010 Page: 7 Date Filed: 01/13/2012
No. 10-51238
• Ochoa was present at the gas station where the drop-off was
arranged to occur,
• Julio4 told Guerra that his contact would arrive at the gas station
in five minutes, and Ochoa arrived seven minutes later,
• Ochoa pulled up behind Guerra’s truck,
• the truck he drove was not registered to him,
• Guerra received a phone call from the 254 number moments after
he saw Ochoa on his phone,
• Guerra was instructed by his contact at the 254 number to follow
the car that had just pulled into the gas station,
• Ochoa used designated code names to identify both himself and
Guerra,
• he told Guerra to follow him and began pulling out of the gas
station,
• the cocaine was worth approximately $150,000,
• Ochoa had been in contact six or seven times with the person at the
254 number,
• the 254 number was saved in Ochoa’s contact list under the name
“Julio4,”
• during questioning, Ochoa gave conflicting reasons for his presence
at the gas station, and
• he turned over a bag of methamphetamine during questioning.
Based on Guerra’s testimony and the phone records submitted by the
government, the jury could reasonably infer that Julio4 directed the conspiracy
involving Ochoa and Guerra and told Ochoa when and where to go for the drop
off. Ochoa had been in ongoing contact with Julio4 throughout the evening
before he met Guerra. Moreover, the large amount of drugs involved and
Ochoa’s knowledge of the secret code names indicate that he knew the illegal
purpose of the conspiracy. In sum, sufficient evidence supported the jury’s
verdict.
B. Whether the district court erred in denying Ochoa’s motion
to suppress.
Ochoa next argues that the district court erred by denying his Motion to
Suppress the information retrieved from his cell phone and the statements he
made both before and after his arrest. It is undisputed that the officers here had
neither an arrest warrant nor a search warrant. When reviewing the denial of
7
Case: 10-51238 Document: 00511725010 Page: 8 Date Filed: 01/13/2012
No. 10-51238
a motion to suppress, we review factual findings for clear error and conclusions
of law de novo. United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).
Six witnesses, including Ochoa’s co-defendant, Guerra, testified for the
government at the hearing on the motion to suppress. Ochoa did not testify or
call any witnesses. The district court did not make any factual findings or give
the legal basis for its ruling, saying only that it “agree[d] with the government’s
position.”
1. Probable Cause to Arrest
First, despite the district court’s conclusion to the contrary, Ochoa argues
that the agents did not have probable cause to arrest him. A warrantless arrest
is justified if the arresting officers had probable cause to believe that the
defendant committed a felony. United States v. Watson, 273 F.3d 599, 602 (5th
Cir. 2001). “Probable cause for a warrantless arrest exists when the totality of
the facts and circumstances within a police officer’s knowledge at the moment
of arrest are sufficient for a reasonable person to conclude that the suspect had
committed or was committing an offense.” Id. (quoting United States v. Wadley,
59 F.3d 510, 512 (5th Cir.1995)). The officer making the arrest need not have
direct knowledge of all of the facts establishing probable cause, as long as he has
communicated with the officer who does. United States v. Ibarra, 493 F.3d 526,
531 (5th Cir. 2007).
Ochoa argues that the agents arrested him based on three facts: (1) Guerra
was driving from Eagle Pass to Waco to deliver a load of cocaine, (2) Guerra
received telephone instructions that an unknown party would meet him at the
designated location, and (3) Ochoa drove through the parking lot and Guerra
gave the bust signal. He misconstrues the facts, however. As detailed above,
Ochoa did not simply drive through the parking lot; the agents watched Ochoa
drive directly to Guerra’s car and park his car behind it. Moreover, Guerra’s
contact told him that someone would be arriving to meet him in five minutes,
and Ochoa arrived seven minutes later. The agents had arranged for Guerra to
8
Case: 10-51238 Document: 00511725010 Page: 9 Date Filed: 01/13/2012
No. 10-51238
give the bust signal once the contact identified himself by his code name, and the
agents saw him give it after talking to Ochoa briefly. In addition, Ochoa got
back into his car to drive out of the parking lot immediately after talking to
Guerra. The agents testified that they believed they had probable cause to
arrest Ochoa. For these reasons, we conclude that officers had probable cause
to arrest Ochoa because the totality of the facts and circumstances within the
officers’ knowledge at the moment of arrest was sufficient for a reasonable
person to conclude that he had committed an offense. Watson, 273 F.3d at 602
(quoting Wadley, 59 F.3d at 512).
2. Search of Ochoa’s Cell Phone
Second, Ochoa challenges the search of his cell phone. The government
argues in response that the search was legal and that, even if it was not, the
district court properly denied the motion to suppress because the cell phone
would have been inevitably discovered when officers later conducted a routine
inventory search of the vehicle. The government made the same arguments at
the hearing on the motion to suppress before the district court, and the district
court denied the motion noting simply that it “agree[d] with the government’s
position.” We conclude that we need not determine whether the search itself was
proper because, in any event, the cell phone would have inevitably been
discovered pursuant to law enforcement’s routine inventory search of the vehicle.
“The inevitable discovery doctrine applies if the Government demonstrates
by a preponderance of the evidence that (1) there is a reasonable probability that
the contested evidence would have been discovered by lawful means in the
absence of police misconduct, and (2) the Government was actively pursuing a
substantial alternate line of investigation at the time of the constitutional
violation.” See United States v. Zavala, 541 F.3d 562, 579 (5th Cir. 2008).
The government argues that Ochoa’s cell phone would have been
discovered during the lawful inventory of his vehicle. “[A]n inventory search of
a seized vehicle is reasonable and not violative of the Fourth Amendment if it is
9
Case: 10-51238 Document: 00511725010 Page: 10 Date Filed: 01/13/2012
No. 10-51238
conducted pursuant to standardized regulations and procedures that are
consistent with (1) protecting the property of the vehicle’s owner, (2) protecting
the police against claims or disputes over lost or stolen property, and (3)
protecting the police from danger.” Id. (quoting United States v. Hope, 102 F.3d
114, 116 (5th Cir. 1996)). We have recognized that evidence initially seized
improperly should not be suppressed if it would have been discovered pursuant
normal police practices. United States v. Seals, 987 F.2d 1102, 1108 (5th Cir.
1993); see also United States v. Castro, 166 F.3d 728, 734 (5th Cir. 1999).
Agent Robertson testified that DEA has standard operating procedures
calling for an inventory of a vehicle to protect the agency from claims of lost or
stolen property. Indeed, pursuant to those procedures, agents began taking an
inventory of Ochoa’s car shortly after the cell phone was seized. Further, there
was at least a reasonable probability that the agents would have uncovered the
cell phone, which had been ringing as one of the agents drove Ochoa’s car to the
agency, during the inventory. Accordingly, we hold that the district court
properly denied the motion to suppress based on the inevitable discovery rule.
C. Whether the district court erred in sentencing Ochoa.
In his third issue on appeal, Ochoa argues that the district court “erred at
sentencing in finding the Government had proven its enhancement allegations,
and then sentencing below the mandatory minimum.” Where a defendant fails
to object to a sentencing enhancement, we review for plain error. United States
v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
Ochoa’s argument is factually incorrect: the district court did not apply the
sentencing enhancement. The government sought a sentencing enhancement
under 21 U.S.C. § 841(b)(1)(A), which provides that “[i]f any person commits . . .
a violation [of this subsection] 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.”
Although the district court found at the sentencing hearing that the government
10
Case: 10-51238 Document: 00511725010 Page: 11 Date Filed: 01/13/2012
No. 10-51238
had proven the facts necessary to justify the sentencing enhancement, it did not
apply it “out of an abundance of caution.”4 Rather, it sentenced him to 235
months, less than the statutory minimum of 20 years that would have been
triggered had the district court chosen to apply the Section 841(b)(1)(A)
enhancement.
The recommended Guidelines range for Ochoa was 188 to 235 months’
imprisonment, and the district court sentenced Ochoa at the top of the range,
235 months. Within-Guidelines sentences enjoy a presumption of
reasonableness and are reviewed for an abuse of discretion. United States v.
Scott, 654 F.3d 552, 555 (5th Cir. 2011). Ochoa does not challenge the
Guidelines calculation. Nor does he address the fact that the district court
sentenced him within Guidelines. He briefly argues that his sentence “shocks
the conscience” when compared to Guerra’s sentence of three years’
imprisonment. However, Guerra cooperated with DEA agents and assumed
responsibility for his crime by pleading guilty. In any event, “a mere disparity
of sentences among co-defendants does not, alone, constitute an abuse of
discretion.” United States v. Lemons, 941 F.2d 309, 320 (5th Cir. 1991). The
district court did not abuse its discretion in sentencing Ochoa.
AFFIRMED.
4
Moreover, when given the opportunity, Ochoa did not challenge any of the facts in the
presentence report, which listed his prior drug conviction for possession of methamphetamine
in McLennan County, Texas.
11