Case: 10-41270 Document: 00511819768 Page: 1 Date Filed: 04/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 12, 2012
No. 10-41270 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO VASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
ON PETITION FOR REHEARING
Before REAVLEY, ELROD and GRAVES, Circuit Judges.
PER CURIAM:
Appellants’ Petition for Panel Rehearing is DENIED. We withdraw the
prior panel opinion, issued on January 13, 2012, and substitute the following.
A jury convicted defendant-appellant, Pedro Vasquez of (1) possessing with
intent to distribute over five kilograms of cocaine, (2) importing cocaine into the
United States, and (3) conspiring to possess with intent to distribute over five
kilograms of cocaine. Vasquez appeals all three convictions and his sentence of
three concurrent 125-month terms. We AFFIRM.
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Facts and Procedural History
On May 25, 2010, United States Customs and Border Patrol (“CBP”)
Antiterrorist Contraband Enforcement Team (“ATCET”) Officer Analia
Natividad Salazar selected Vasquez's Chevrolet Suburban, based on trend
analysis, for inspection at the Lincoln-Juarez Bridge Number 2, in Laredo,
Texas, approximately 4.5 kilometers from Nuevo Laredo, Mexico. This CBP
ATCET stop occurred at 11:55 a.m. in Laredo, Texas. Several CBP personnel
were present at and participated in the stop at the federal inspection area
(“FIA”), including but not limited to Officer José (Joe) Gonzalez. Officer Salazar
testified that she found it unusual that Vasquez drove the vehicle at "an
extremely slow pace" after he passed the primary inspection, and was "very alert
to his surroundings . . . pretty much looking forwards, sideways, backwards . .
. ." Officer Salazar further testified that Vasquez was constantly fidgeting his
hands when other CBP officers were inspecting the Suburban, and his eyes were
concentrated on the Suburban, particularly when officers inspected the hood
area. Officer Salazar noticed that when they inspected the hood area, Vasquez
"was a bit anxious of wanting to see what was being done and also wanting to
get near . . . ." Officer Salazar testified that when she asked him why he was
entering the United States, Vasquez said he had attended an alcoholics'
anonymous meeting in Nuevo Laredo, Mexico, and he was returning to work at
Cristalina Pools, a pool construction company in Laredo, Texas.
Rolando Villalobos, the owner of Cristalina Pools, testified that Vasquez
had worked for him for about two-and-a-half years. Villalobos further testified
that Vasquez would typically cross from Nuevo Laredo, Mexico, on foot every
morning, where he would then be picked up by other Cristalina Pools employees.
As far as Villalobos knew, Vasquez did not own a car. On several occasions,
Villalobos permitted Vasquez to leave work early in order to attend meetings in
Nuevo Laredo, Mexico. Villalobos testified that he knew nothing about the
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meetings except that Vasquez told him they were for alcohol-addiction
treatment. Shortly before May 25, 2010, Vasquez asked Villalobos for some time
off to try and make some money towing vehicles. Villalobos granted the request.
Officer Gonzalez testified that he was among the CBP personnel who
inspected the Suburban. He further testified that the inspection revealed what
appeared to be two car batteries in the engine compartment. Gonzalez also
testified that this was unusual, because Vasquez's Suburban is a gasoline vehicle
that needs only one battery. Gonzalez went on to testify that he and other
officers disassembled the batteries' casings. They discovered that each
car-battery casing was lined with lead sheeting and that each contained a
motorcycle battery and three shrink-wrapped bundles of cocaine. The six
bundles of cocaine had a total weight of 10.25 kilograms. The motorcycle
batteries were connected to the Suburban’s electrical system. Gonzalez testified
that tools, a hitch, and some chains in a bucket were found in the back of the
Suburban. CBP officers found another set of tools (a 1/2-inch wrench, a 7/16-
inch wrench and 2 pliers) behind the driver's seat on the floor. The sizes of the
wrenches and pliers fit the terminals on the motorcycle batteries. However,
Gonzalez testified that wrenches and pliers of that size are extremely common.
United States Department of Homeland Security Immigration and
Customs Enforcement (“ICE”) Special Agent Owen William Tims – the lead
investigator and case agent, as well as the duty agent on May 25, 2010 –
testified that he interviewed Vasquez at 1:20 p.m. on the bridge with the
assistance of two Spanish-speaking officers. He further testified that Vasquez
was visibly nervous. Special Agent Tims also testified that Vasquez initially
denied ownership of the car, but shortly changed his answer and admitted to
owning it. He went on to testify that Vasquez became more nervous at that
point, his hands and his mouth began quivering, and he started shifting
frequently in his seat. Vasquez's counsel attempted to elicit testimony from
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Special Agent Tims regarding Vasquez's other statements during the interview,
but the district court sustained the prosecutor's hearsay objection. Special Agent
Tims entered the information that he obtained from his interview of Vasquez in
an ICE C-CATS report.
CBP Officers Blanca De Leon and Maria Villarreal interviewed Vasquez
again in Spanish and wrote an I-213 Record of Deportable Alien immigration
report in English. Neither Officer De Leon nor Villarreal testified at trial.
Vasquez’s attorney attempted to question Special Agent Tims about the report.
The government objected that Special Agent Tims could not testify to a report
that someone else authored. The district court sustained the government’s
objection.
ICE agents and CBP officers had discovered a sales contract in the
Suburban. Javier Niera, of J&R Auto Sales, in Laredo, Texas, properly
authenticated the sales contract and testified that he sold the Suburban to
Vasquez in working order, with a single car battery. However, Niera testified
that the Suburban's air conditioning system was leaking and would work for
only two or three days before it needed more freon. Niera testified that another
man1 accompanied Vasquez when the Suburban was purchased. Niera had
previously seen the other man at the car lot. The man had previously purchased
at least four other vehicles, and during a previous visit, he had looked over the
Suburban. Niera testified that the man did all the talking and paid for the
Suburban, although only Vasquez signed the sales contract. Niera also testified
that the other man asked Niera to leave the Suburban's old plates on it, but
Niera refused because Texas law requires dealers to remove and destroy plates
registered in the name of a vehicle's previous owner.
1
During oral argument, Vasquez’s attorney represented that Timoteo – whose last
name is unknown to both Vasquez and the government – purchased, in cash, the 1997
Chevrolet Suburban on or about May 14, 2010 in Vasquez’s name only.
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Corey Grubbs, an ICE Special Agent, as well as Dr. Xiu Liu, Ph.D., a
forensic chemist with the United States Drug Enforcement Agency (“DEA”),
testified that 10.25 kilograms of cocaine had a street-value between $111,875
and $138,375 in Nuevo Laredo, Mexico; between $148,625 and $179,375 in
Laredo, Texas; between $225,500 and $266,500 in San Antonio, Texas; and
between $266,500 and $287,000 in Austin, Texas.
Standards of Review
I. Sufficiency of the Evidence
Vasquez moved for a judgment of acquittal at the close of the government's
case-in-chief and again after the close of the evidence. This court reviews the
district court's denial of a motion for acquittal de novo. United States v.
Campbell, 52 F.3d 521, 522 (5th Cir. 1995). A motion for acquittal should be
granted if the government fails to present evidence sufficient for a reasonable
jury to have found that each essential element of the offense was established
beyond a reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540, 543
(5th Cir. 1998). This court considers the evidence in the light most favorable to
the government, with all reasonable inferences and credibility determinations
made in the government's favor. United States v. Santillana, 604 F.3d 192, 195
(5th Cir. 2010). "The jury may choose among reasonable constructions of the
evidence: The evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of guilt." Id. (citing
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996) (emphasis supplied)).
“‘[C]ircumstances altogether inconclusive, if separately considered, may, by their
number and joint operation, especially when corroborated by moral coincidences,
be sufficient to constitute conclusive proof.’" United States v. Ayala, 887 F.2d 62,
67 (5th Cir. 1989) (quoting Coggeshall v. United States (The Slavers), 69 U.S. (2
Wall.) 383, 17 L. Ed. 911, 914-15 (1865) (emphasis supplied)). Jurors may
properly “‘use their common sense’" and “‘evaluate the facts in light of their
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common knowledge of the natural tendencies and inclinations of human beings’."
Ayala, 887 F.2d at 67 (quoting United States v. Henry, 849 F.2d 1534, 1537 (5th
Cir. 1988)).
II. Jury Instructions
Generally, this court reviews jury instructions for abuse of discretion and
harmless error. United States v. Betancourt, 586 F.3d 303, 305 (5th Cir. 2009).
However, when a defendant fails to object to jury instructions, we review for
plain error:
A party who objects to any portion of the instructions or to a failure to give
a requested instruction must inform the court of the specific objection and
the grounds for the objection before the jury retires to deliberate. An
opportunity must be given to object out of the jury's hearing and, on
request, out of the jury's presence. Failure to object in accordance with this
rule precludes appellate review, except as permitted under Rule 52(b).
Fed. R.Crim. P. 30(d). Reversal is justified under the plain error standard if the
jury instruction was (1) an error, that was (2) plain, that (3) affected the
defendant's substantial rights, and (4) seriously affected the fairness, integrity,
or public reputation of judicial proceedings. Johnson v. United States, 520 U.S.
461, 466-67, 117 S.Ct. 1544, 1548-49 (1997). “The standard of review of a
defendant’s claim that a jury charge was inappropriate is ‘whether the court’s
charge, as a whole, is a correct statement of the law and whether it clearly
instructs jurors as to the principles of law applicable to the factual issues
confronting them.’” United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir.
1990) (quoting United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990))
(emphasis added in Lara-Velasquez). The court’s charge “not only must be
legally accurate, but also factually supportable; the court ‘may not instruct the
jury on a charge that is not supported by evidence.’” Id. (quoting United States
v. Ortega, 859 F.2d 327, 330 (5th Cir. 1988) (emphasis supplied).
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III. Prosecutorial Statements
Where a defendant timely objects to prosecutorial statements, we review
for abuse of discretion. United States v. Stephens, 571 F.3d 401, 407 (5th Cir.
2009). However, because Vasquez did not object at trial to the statements at
issue here, we review for plain error. United States v. Vargas, 580 F.3d 274, 278
(5th Cir. 2009).
IV. Sentencing
Following United States v. Booker, 543 U.S. 220, which rendered the
Sentencing Guidelines advisory, we review sentences for reasonableness. United
States v. Gall, 552 U.S. 38, 46 (2007). “This review occurs in two stages. First,
the court must ensure that the district court did not err procedurally by, for
example, miscalculating or failing to calculate the sentencing range under the
Guidelines.” United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.
2009). “The district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, while its factual findings are reviewed for clear
error.” United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011). “If the sentence
is procedurally proper, the court engages in a substantive review based on the
totality of the circumstances” under an abuse of discretion standard.
Mondragon-Santiago, 564 F.3d at 360. “[A] sentence within the Guidelines
range is presumed reasonable on appeal.” Id.
Here, however, we review Vasquez’s sentence only for plain error because
at sentencing he did not specifically object to the court’s explanation of his
sentence or that the sentence was excessive. See id. at 361.
Analysis
I. Whether sufficient evidence existed to support Vasquez’s
conviction?
A. Count One: Conspiracy
To establish a drug conspiracy, "the government must prove: 1) the
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existence of an agreement between two or more persons to violate federal
narcotics laws; 2) the defendant's knowledge of the agreement; and 3) the
defendant’s voluntary participation in the agreement." United States v.
Gonzales, 79 F.3d 413, 423 (5th Cir. 1996). "[A] defendant may be convicted of
conspiring with other unknown persons if the indictment asserts that other such
persons exist and the evidence supports their existence and the existence of a
conspiracy." United States v. Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th
Cir. 1988). During closing argument, the government stated that “this case was
primarily one of circumstantial evidence . . .”
The government presented evidence2 that revealed several facts, which
standing alone are insufficient, but together, support the jury’s guilty verdict on
the conspiracy count. In particular, the government argues persuasively that
the conspiracy conviction is supported by the "large and valuable quantity of
cocaine,"3 the installation of the Suburban's two false car-battery casings, and
Niera's testimony about the man who bought the Suburban for Vasquez. ICE
Agent Grubbs and the government's expert, Dr. Liu with the DEA testified that
the street value of the cocaine was $111,875, at a minimum, in Nuevo Laredo,
Mexico and as much as $287,000 on the upper end in Austin, Texas. Indeed,
both Dr. Liu and ICE Agent Grubbs expressed opinions concerning the cocaine
2
This court makes clear that the government’s evidence in the present instance was
both circumstantial and cumulative, which supports the inference(s) that can be drawn in
order for the jury to declare Vasquez guilty of conspiracy.
3
The jury may consider the amount of the contraband seized “which . . . is enough to
justify the inference that more than one person must be involved in moving it towards its
ultimate dispersal.” United States v. Barnard, 553 F.2d 389, 393 (5th Cir. 1977); see also
United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002) (“To begin, the jury
could have inferred from the large quantity and value of marijuana, and the difficulty of
secreting it in the tires, that others were involved in the scheme.”); United States v.
Hawkins, 547 F.3d 66, 72 (2d Cir. 2008); United States v. Cohen, 427 F.3d 164, 170 (2d Cir.
2005); United States v. Howard, 966 F.2d 1362, 1364 (10th Cir. 1992) (“The huge quantity
of crack cocaine involved in this case permits an inference of conspiracy, but by itself this is
not enough to convict defendant.”) .
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– specifically, its weight and value, which the jury took into consideration.
This court must credit all of this evidence, because the “court will not
substitute its own determination of credibility for that of the jury . . .” United
States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994). While “[i]t takes at least two
to tango for conspiracy purposes[,]” United States v. Morgan, 835 F.2d 79, 82
(5th Cir. 1987), the government is not required to identify each of the co-
conspirators by name. See, e.g., United States v. Lance, 536 F.2d 1065, 1068 (5th
Cir. 1976). Here, there is more than ample evidence. Vasquez’s challenge to the
sufficiency of the evidence on the conspiracy count fails.
B. Count Two: Possession with the Intent To Distribute
The offense of possession with the intent to distribute requires proof of (1)
possession, (2) knowledge, and (3) intent to distribute. United States v. Garcia,
567 F.3d 721, 731 (5th Cir. 2009). Vasquez challenges only the knowledge
element. “The knowledge element in a possession case can be inferred from
control of the vehicle in some cases; when the drugs are hidden, however, control
alone is not sufficient to prove knowledge.” United States v. Pennington, 20 F.3d
593, 598 (5th Cir. 1994). “When the drugs are secreted in hidden compartments
. . . this Court has normally required additional circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge.” Ortega Reyna, 148 F.3d
at 544 (internal quotation marks omitted). We have previously recognized that
circumstantial evidence of guilty knowledge includes, inter alia, the following
types of behavior: nervousness, refusal or reluctance to answer questions,
inconsistent statements, and obvious or remarkable alterations to the vehicle.
Id. The high value of concealed narcotics can also support knowledge. United
States v. Villareal, 324 F.3d 319, 324 (5th Cir. 2003).
Here, there was sufficient additional circumstantial evidence for a
reasonable jury to infer Vasquez’s knowledge of the cocaine. Officer Salazar
testified that after passing inspection Vasquez drove unusually slowly and was
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highly alert. She testified that Vasquez was nervous when the Suburban was
inspected. Officer Tims testified that Vasquez exhibited nervousness when
questioned, and that he initially denied, but then admitted, owning the vehicle.
ICE Special Agent Grubbs testified that the cocaine found in Vasquez’s vehicle
was worth approximately $125,000 in Nuevo Laredo, Mexico, and $275,000 in
Austin, Texas. Officer Gonzalez testified that when running on the motorcycle
batteries, the Suburban could not draw enough power to run its headlights or air
conditioner without burning out the batteries and alternator. A reasonable jury
could have inferred from this that the reason Vasquez never used the headlights
or air conditioner4 during the twelve days he had the vehicle was because he was
aware of the limitations of the Suburban’s modified electrical system.
C. Count Three: Importation of Cocaine into the United States
To prove the offense of importing narcotics into the United States, the
government must prove the elements of the possession offense, as well as that
Vasquez played a role in transporting the cocaine from Mexico into the United
States. United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993). Vasquez
again challenges the sufficiency of the evidence only with respect to the
knowledge element. For the same reasons as count two, a reasonable jury could
infer Vasquez’s guilty knowledge from the circumstantial evidence admitted at
trial.
II. Whether the district court properly instructed the jury?
A. The Aiding and Abetting Instruction
Vasquez argues that the aiding and abetting jury charge was improper
because there was no evidence of any person whom he could have aided and
abetted. The offense of aiding and abetting requires proof that Vasquez: “(1)
associated with a criminal venture; (2) participated in the venture; and (3)
4
We note that the average May temperature in Laredo, Texas is 95°F.
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sought by action to make the venture successful.” Garcia, 567 F.3d at 731.
Because Vasquez objected to the district court’s aiding and abetting charge, our
review is for abuse of discretion. Betancourt, 586 F.3d at 305.
The district court did not abuse its discretion in instructing the jury on
aiding and abetting. “‘Typically, the same evidence will support both a
conspiracy and an aiding and abetting conviction.’” United States v. Rodriguez,
553 F.3d 380, 391 (5th Cir. 2008) (quoting United States v. Singh, 922 F.2d 1169,
1173 (5th Cir. 1991). Here, the jury could have inferred that others were
involved in Vasquez’s criminal venture from the same evidence that was
sufficient to support his conspiracy conviction, as discussed above.
B. The Deliberate Ignorance Instruction
If a deliberate ignorance instruction is given, a "balancing" instruction
should be considered upon request of defendant. See United States v.
Farfan-Carreon, 935 F.2d 678, 681 n.5 (5th Cir. 1991). In the present instance,
Vasquez neither objected to the deliberate ignorance instruction, nor did he
request a balancing instruction, hence, the plain error standard. See Betancourt,
586 F.3d at 305-06. The district court read into the record, word-for-word, this
court's pattern jury instruction on deliberate ignorance:
The word "knowingly," as that term has been used from time to time in
these instructions, means that the act was done voluntarily and
intentionally, not because of mistake or accident. You may find that a
defendant had knowledge of a fact if you find that the defendant
deliberately closed his eyes to what would otherwise have been obvious to
him. While knowledge on the part of the defendant cannot be established
merely by demonstrating that the defendant was negligent, careless, or
foolish, knowledge can be inferred if the defendant deliberately blinded
himself to the existence of a fact.
Fifth Circuit Pattern Jury Instructions: Criminal § 1.37.
The deliberate ignorance instruction "does not lessen the government's
burden to show, beyond a reasonable doubt, that the knowledge elements of the
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crimes have been satisfied." United States v. Reveles, 190 F.3d 678, 686 n.12
(5th Cir. 1999); see United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992)
(this court warned that a deliberate ignorance instruction “should rarely be
given” because it creates the risk that a jury may convict on a lesser negligence
standard); see also United States v. Newell, 315 F.3d 510, 528 (5th Cir. 2002) (the
essence of deliberate ignorance is “‘Don’t tell me, I don’t want to know.’”)
(quoting Lara-Velasquez, 919 F.2d at 951); cf. Global-Tech Appliances, Inc. v.
SEB S.A., 131 S.Ct. 2060 (2011) (analyzing deliberate ignorance’s civil
equivalent, willful blindness). A judge is cautioned that, in instructing on a
statute which punishes "otherwise innocent conduct," the knowledge
requirement applies to each element. United States v. Ahmad, 101 F.3d 386, 390
(5th Cir. 1996), reh'g and suggestion for reh'g en banc denied, 108 F.3d 335 (5th
Cir. 1997). Fifth Circuit precedent requires that a district court give a deliberate
ignorance instruction "when a defendant claims a lack of guilty knowledge and
the proof at trial supports an inference of deliberate indifference." United States
v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999).
Vasquez, through his attorney, stated before the district court and argued
on appeal to this court that he did not know about the cocaine. In particular,
Vasquez’s attorney stated, during his opening statement that:
[T]he government agents found cocaine hidden in the batteries. The other
thing, as [the government] told you-all, it was hidden and concealed. You
couldn't see the stuff. You couldn't see the cocaine or anything or
anything unusual by looking at -- under the hood. All you could see were
batteries. She talked about how they were motorcycle batteries. The
motorcycle batteries were concealed within a shell of larger batteries. So
anyone looking at them would see nothing but larger batteries. So there's
nothing unusual about the way the car looked, nothing unusual about the
way the car operated.
Vasquez’s attorney also stated at the beginning of his closing argument:
And the court has read you the instructions, and the instructions say the
government may not rely upon the defendant’s ownership and control of
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the vehicle to prove the defendant knew he possessed the controlled
substance. In other words, they can’t just show you that Pedro Vasquez
owned the vehicle. They can’t just show you that Pedro Vasquez was
driving the vehicle. They have to bring you other evidence, other evidence
to show beyond a reasonable doubt that he knew.
A reasonable doubt, we talked about in jury selection, is the kind of doubt
that would make you, you hesitate in the most important of your own
affairs. There is reasonable doubt in this case, and there’s reasonable
doubt because Pedro Vasquez is innocent. That’s why there’s doubt. And
that’s why there’s no evidence of his knowledge because the evidence
doesn’t exist because he’s innocent.
The trigger for deliberate ignorance is that the evidence at trial must raise
two inferences: that the defendant (1) was subjectively aware of a high
probability of the existence of the illegal conduct, and (2) purposely contrived to
avoid learning of the illegal conduct. United States v. Mendoza-Medina, 346
F.3d 121, 132-33 (5th Cir. 2003); see also United States v. Cavin, 39 F.3d 1299,
1310 (5th Cir. 1994). The essential feature of deliberate ignorance "is the
conscious action of the defendant — the defendant consciously attempted to
escape confirmation of conditions or events he strongly suspected to exist."
Mendoza-Medina, 346 F.3d at 133 (quoting Lara-Velasquez, 919 F.2d at 951).
Here, Vasquez contends that not only was the deliberate ignorance
instruction not supported by the evidence, but also that it was deficient because
it omits the requirement that a defendant possessed "subjective awareness of a
high probability of the existence of illegal conduct." Threadgill, 172 F.3d at 368.
In other words, Vasquez argues that the evidence at trial was insufficient to
support the deliberate ignorance instruction, and he asserts that the deliberate
ignorance instruction incorrectly stated the law. Vasquez is wrong.
The evidence demonstrates that Vasquez owned and controlled the
Suburban, which some unknown buyer purchased. Vasquez drove extremely
slowly, and then had a nervous demeanor when CBP officers and ICE agents
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questioned him. Vasquez’s Suburban, which requires only a single battery, had
two car batteries under its hood. Moreover, the car dealer testified that the
Suburban required changing the freon every two to three days in order to
operate the air-conditioning, thus necessitating a check under the hood.
Likewise, the photographs demonstrate how the batteries were loaded with
cocaine. Finally, Vasquez’s employer testified regarding Vasquez’s coincidental
leave of absence from Cristalina Pools. We do note that neither the government
nor the defendant requested that a deliberate ignorance instruction be given, but
nonetheless, the district court’s instruction was supported by the evidence at
trial and was a correct statement of the law.
III. Whether the prosecution’s closing argument was improper?
Vasquez next argues that he was deprived of his right to a fair trial by
prosecutorial statements that, he asserts, were improper. Vasquez’s “fairness
argument implicates due process. For a denial of constitutional due process, the
prosecution’s [improper statements] must so infect the trial as to substantially
affect the fairness of the proceeding.” Vargas, 580 F.3d at 277–78. To establish
reversible error, Vasquez must show that (1) “the prosecutor made an improper
remark; and (2) “the defendant was prejudiced.” Stephens, 571 F.3d at 408
(internal quotation marks omitted). “In determining whether a prosecutor’s
comment was improper, it is necessary to look at the comment in context.”
United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004). To show
prejudice, Vasquez must demonstrate that the remarks affected the outcome of
his trial. See United States v. McCann, 613 F.3d 486, 496 (5th Cir. 2010). This
inquiry requires us to assess “(1) the magnitude of the statement’s prejudice, (2)
the effect of any cautionary instructions given, and (3) the strength of the
evidence of the defendant’s guilt.” United States v. Munoz, 150 F.3d 401, 415
(5th Cir. 1998). Moreover, our review here is only for plain error because
Vasquez did not object at trial.
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Vasquez argues that two distinct comments during the prosecution’s
closing argument were improper. First, Vasquez argues that the prosecution
improperly argued that Vasquez did not make any statements of consequence
to law enforcement on the day of his arrest when, in fact, Vasquez had
repeatedly protested his innocence. During closing argument, the prosecutor
stated: “[T]he investigation did not stop there. Did the agents talk to him? Yes.
Though one may infer that much didn’t come out of it. You heard his behavior.
His actions. His inconsistencies.” (emphasis added). According to Vasquez, this
statement wrongly suggested to the jury that he never offered an innocent
explanation of his conduct to law enforcement and invited the jury to infer guilt
from the absence of such an explanation. However, read in context, the
statement can just as easily be understood as a reference to his evasive answers
about his ownership of the Suburban. We have previously held that where a
prosecutor’s statement is susceptible to at least “two possible readings, the
remarks do not rise to the level of obvious error,” as is necessary to satisfy the
second prong of the plain error test. Vargas, 580 F.3d at 279. There was no
plain error in this prosecutorial remark.
Second, Vasquez argues that the prosecution improperly argued outside
the record when it made the following comments during closing argument:
The government, we brought all these people here. . . . We tried to
leave no stone unturned. Some people didn’t even want to be here.
You heard one witness that was excited about getting out of here.
That’s reasonable. It’s not fun being up there in that stand. But yet
we did our investigation, and we tried to turn every stone that was
there. And the complete picture from my investigation and the
evidence is that that defendant, Pedro Vasquez, brought those drugs
in his truck, and he did so knowingly.
(Emphasis added). It is well-settled that a prosecutor may not refer or even
allude to evidence not adduced at trial. United States v. Murrah, 888 F.2d 24,
26 (5th Cir. 1989). Read in isolation, the prosecutor’s reference to “my
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No. 10-41270
investigation” is concerning. At the very least, it reflects poor word choice and
should have been avoided. Nevertheless, Vasquez has not shown that the
prosecutor’s remark was plain error. In context, “my investigation” can also be
understood as referring to the testimony of the agents who discovered the
cocaine and conducted the subsequent investigation.5
IV. Whether the district court’s sentence was unreasonable?
According to the PSR, Vasquez’s Guideline’s sentencing range was
121–151 months and the statutory range was 120 months to life. The district
court sentenced Vasquez to 125 months, explaining that it sentenced Vasquez
to five months above the statutory and Guidelines minimum because of the large
quantity of cocaine involved and the fact that Vasquez was convicted on three
separate counts.
Vasquez argues that his sentence was procedurally erroneous because the
number of counts of conviction is an improper consideration for a district court.
However, Vasquez cites no binding precedent for the proposition that a district
court may not consider the number of counts of conviction. Thus, Vasquez has
not established plain error. See United States v. Evans, 587 F.3d 667, 671 (5th
Cir. 2009) (error not plain where argument is novel and unsupported by circuit
precedent).
Vasquez also argues that his sentence was substantively unreasonable.
He argues that the district court failed to adhere to the principle that a district
court “shall impose a sentence, sufficient, but not greater than necessary,” to
achieve the purposes of sentencing. 18 U.S.C. § 3553(a). He argues that a
sentence above the Guidelines minimum violates this principle because there is
5
Vasquez also argues that it was improper for the prosecutor to argue “that the
agents left no stone unturned, in spite of the fact that the evidence revealed that the
agents had declined to investigate certain possible leads.” All that the prosecutor said,
however, was that the government “tried to leave no stone unturned” (emphasis added).
Vasquez has not demonstrated error on the basis of this remark.
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No. 10-41270
“nothing to indicate that a sentence above the Guideline minimum was
necessary to meet the objectives set forth in 18 U.S.C. § 3553(a).” We disagree.
Vasquez’s argument would do away with the presumption of reasonableness that
we accord to within-Guidelines sentences. See United States v. Rodriguez, 660
F.3d 231, 233 (5th Cir. 2011). It is not the government’s burden to justify the
reasonableness of a within-Guidelines sentence. Rather, it is the defendant’s
burden to rebut the presumption that such a sentence is reasonable. See id.
Conclusion
For the foregoing reasons, we uphold Vasquez’s conviction and sentence.
AFFIRMED.
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