Case: 21-50358 Document: 00516229942 Page: 1 Date Filed: 03/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 8, 2022
No. 21-50358 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Francisco Resendiz Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-72-2
Before Wiener, Graves, and Duncan, Circuit Judges.
Per Curiam:*
A jury found Defendant-Appellant Francisco Resendiz Martinez
guilty, in January 2020, of conspiracy to distribute at least 500 grams of a
mixture or substance containing a detectable amount of methamphetamine,
in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A)(viii). The district
court imposed a within-Guidelines sentence of 292 months of imprisonment
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-50358
and five years of non-reporting supervised release. On appeal, Resendiz
challenges both his conviction and his sentence. We affirm.
I. The Conviction.
Challenging his conviction, Resendiz contends that the district court
erred by excluding the testimony of a proposed expert, Dr. Deborah
Ohanesian. Resendiz claims that Dr. Ohanesian would have testified that it is
“her opinion that [he] had a limited understanding of English and about his
intellectual limitations, including limited schooling in Mexico, which
prevented him from fully understanding” an arresting officer’s questions.
Relevant to this objection is that officer’s testimony regarding the traffic stop
during which Resendiz was arrested. The officer testified that he asked
Resendiz “if there [were] any drugs, weapons, or large amounts of money in
the vehicle,” to which Resendiz replied in the negative. However, when the
officer asked Resendiz “if there was anything illegal in the vehicle,” Resendiz
said “yes” in “a nervous voice.”
“A district court has ‘wide latitude’ and ‘broad discretion’ to exclude
expert testimony.” United States v. Reed, 908 F.3d 102, 117 (5th Cir. 2018)
(citing Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 615 (5th Cir.
2018)). Such a court’s decision to exclude expert testimony will not be
disturbed unless it is “manifestly erroneous,” id., which we define as “a
complete disregard of the controlling law,” id. (quoting Williams, 898 F.3d
at 615). And, even in the event of manifest error, “we ‘will not overturn a
conviction based on the exclusion of evidence unless a reasonable probability
exists that the error contributed to conviction.’” United States v. De Leon,
728 F.3d 500, 505 (5th Cir. 2013) (quoting United States v. Gulley, 526 F.3d
809, 819 n.2 (5th Cir. 2008)); see United States v. Okulaja, 21 F.4th 338, 344
(5th Cir. 2021).
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We doubt that the district court erred in excluding Dr. Ohanesian’s
testimony. 1 But, even assuming that it did, any error was harmless. Dr.
Ohanesian’s testimony—if found credible by the jury—would have, at most,
undercut the probative value of Resendiz’s admission to the arresting officer
that there was something illegal in the vehicle. 2 As an initial matter, that
statement’s probative value was tempered by Resendiz’s contemporaneous
statement that there were no drugs in the vehicle.
Even assuming that the jury found Resendiz’s admission regarding
something illegal being in the vehicle (but not his denial regarding drugs) to
be probative and that the jury would not have done so had Dr. Ohanesian
testified, the trial record contains ample other evidence of Resendiz’s guilt.
During the traffic stop, officers recovered 21.2 pounds of methamphetamine
from a suitcase in the vehicle. See United States v. Gonzalez-Rodriguez, 621
F.3d 354, 360 (5th Cir. 2010) (Except when drugs are stored in a hidden
compartment, “a jury may infer that a defendant has knowledge of drugs in
a vehicle when the defendant exercises control over the vehicle.”).
Additionally, Johnny Casillas, a coconspirator, testified at length about his
use of Resendiz as a drug courier. In particular, Casillas testified that he told
Resendiz “upfront” that he would be transporting “drugs.” Casillas also
testified that, on at least one occasion, Resendiz helped him unload the drugs,
which were packaged in “see-through plastic,” from the truck that Resendiz
1
Dr. Ohanesian has no obvious expertise in linguistics, and her testimony would
have been irrelevant unless it opined whether Resendiz understood the officer’s question.
2
As an initial matter, we doubt that the statement had much probative value, if any.
If the jury believed Resendiz’s statement that there was something illegal in the car was not
the product of a failure to understand the question, the same would go for his statement
that there were no drugs in the car. Combined, those statements seem to make it less likely
that Resendiz knew or reasonably should have known about the drugs, not more likely.
After all, why would Resendiz lie about the presence of drugs, only to immediately
incriminate himself with a more general statement?
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had just driven. The record also includes intercepted text messages and
phone calls that support Casillas’s testimony. There is no reasonable
probability that the jury would have acquitted Resendiz but for the alleged
error. See De Leon, 728 F.3d at 505–06.
II. The Sentence.
Resendiz contends that the district court erred by denying his request
for a safety valve adjustment to his sentence under United States Sentencing
Guideline § 5C1.2 and 18 U.S.C. § 3553(f). When, as here, a potential
guidelines calculation error has been preserved, we review the district court’s
interpretation of the Guidelines de novo and its factual findings for clear
error. See United States v. Lima-Rivero, 971 F.3d 518, 520 (5th Cir. 2020);
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). A district court’s
determination that defendants have not “truthfully provided” all relevant
information and evidence they possess regarding the charged offenses (as
required for safety-valve relief by 18 U.S.C. § 3553(f)(5)) is a factual finding
that we review for clear error. United States v. McElwee, 646 F.3d 328, 345
(5th Cir. 2011); see United States v. Towns, 718 F.3d 404, 412 (5th Cir. 2013).
The safety valve provision of § 5C1.2 allows a district court to
sentence a defendant below the statutory minimum sentence and to award a
two-level reduction to his offense level if he meets all five criteria set forth in
18 U.S.C. § 3553(f). United States v. Anchundia-Espinoza, 897 F.3d 629, 632
(5th Cir. 2018) (citing United States v. Lopez, 264 F.3d 527, 529–30 (5th Cir.
2001)). Section 3553(f)(5) requires that, by the time of sentencing, “the
defendant has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses that were part
of the same course of conduct or of a common scheme or plan.” A defendant
must bear “the burden of establishing eligibility for the safety valve
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reduction.” Achundia-Espinoza, 897 F.3d at 632 (citing United States v.
Flanagan, 80 F.3d 143, 146–47 (5th Cir. 1996)).
At bottom, Resendiz complains that the district court committed clear
error in denying him a safety valve sentence reduction because neither the
court nor the government ever identified “how [Resendiz] failed to truthfully
provide all information he had regarding the offense.” See also Lima-Rivero,
971 F.3d at 521–23 (concluding that a district court clearly erred by basing its
determination that the defendant had not truthfully provided the relevant
information on “a case agent’s mere speculation”). Although we might not
have reached the same conclusion as did the district court, we cannot say that
its determination was clearly erroneous. At trial, Resendiz admitted that he
was “evasive” and “not straightforward” with officers during his initial
interview. Then, at trial and in subsequent interviews, Resendiz maintained
that he knew only that something illegal was in the luggage, not that it was
drugs. We have previously affirmed a district court’s decision that the safety
valve was inapplicable when a defendant’s testimony “directly contradicted
information gathered by the government.” United States v. Edwards, 65 F.3d
430, 433 (5th Cir. 1995); see, e.g., United States v. Castillo, 334 F. App’x 698,
699 (5th Cir. 2009) (unpublished) (similar). We do so again today.
Finally, Resendiz claims that the district court erred in denying his
request for a two-point reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(a). We review a determination whether a defendant is
entitled to a reduction for acceptance of responsibility under an “exceedingly
deferential” standard. United States v. Smith, 977 F.3d 431, 436 (5th Cir.
2020) (citing United States v. Silva, 865 F.3d 238, 244 (5th Cir. 2017)). We
will affirm a sentencing court’s decision not to award a § 3E1.1 reduction
unless it is “without foundation.” United States v. Juarez-Duarte, 513 F.3d
204, 211 (5th Cir. 2008) (per curiam).
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The adjustment for acceptance of responsibility “is not intended to
apply to a defendant who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt.” § 3E1.1, cmt n.2. But the
Guidelines countenance “rare situations” when “a defendant goes to trial to
assert and preserve issues that do not relate to factual guilt,” and is,
therefore, eligible for an acceptance-of-responsibility adjustment. Id.
Resendiz claims that this is one of those “rare situations,” but, we disagree.
Resendiz explains that he went to trial “to argue that his limited
understanding of the English language and his intellectual limitations
prevented him from fully understanding the questions being asked of him by
officers.” In other words, Resendiz claims that he went to trial to put the
government to its burden of proof as to his mens rea. As noted, at trial
Resendiz denied knowledge that he was transporting drugs. His mens rea is
a factual element of guilt. The district court’s decision to deny the
adjustment for acceptance of responsibility was not without foundation.
The judgment of the district court is AFFIRMED.
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