United States v. Brown

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

___________________________

No. 92-2947
___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee
Appellant-Cross-Appellant,

VERSUS

CALVIN BROWN AND
BRENDA BROWN THURMAN,

Defendants-Appellants
Cross-Appellees,
and

JULIO CASTRO,

Defendant-Appellant,

CONSTANCE DIANNE HENDRIEX,

Defendant-Appellee.

___________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
____________________________________________________
(August 10, 1994)

Before WISDOM, DAVIS and DUHÉ, Circuit Judges.

DAVIS, Circuit Judge:

Appellants Julio Castro, Brenda Brown Thurman and Calvin Brown

appeal their convictions on drug trafficking charges. Castro also

appeals his sentence. The government appeals the sentences imposed

against Thurman and Brown, as well as against defendant Constance

Dianne Hendriex. For the reasons that follow, we affirm each of

the challenged convictions, we affirm the sentence imposed against
Castro, and we vacate the sentences imposed against Thurman, Brown

and Hendriex.

I.

In February 1992, fourteen defendants were charged in a two-

count indictment. Count one charged the defendants with conspiracy

to possess with intent to distribute cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Count 2 charged the

defendants with aiding and abetting the possession with intent to

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A) and 18 U.S.C. § 2. The appeals relating to four of

the fourteen defendants -- Brown, Thurman, Hendriex and Castro --

have been consolidated for presentation to this panel.

Castro's trial was severed and he was tried separately. The

court granted Castro's motion to dismiss count one of the

indictment on grounds that the conspiracy charge subjected Castro

to double jeopardy because of a prior conspiracy prosecution in New

York. Castro was then tried and convicted on count two.

Brown, Thurman and Hendriex were tried together. At the close

of the government's case, the court granted Thurman's and

Hendriex's motions for judgment of acquittal on count two. The

jury found Thurman and Hendriex guilty on count one, and Brown

guilty on both counts. The court entered judgments of conviction

on this verdict.

Juan Mora, an unindicted co-conspirator, was the government's

principal witness against Thurman, Hendriex and Brown. Mora

described in detail his management and supervision over a

distribution network for cocaine shipped from Columbia to the

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United States. Mora based his operations in Miami, but was

responsible for receiving shipments at various locations throughout

the United States. Mora hired Jesus Alberto Valencia and his wife

Alfreida Brown Valencia,1 to transport some of the cocaine to

various points throughout the United States. Mora explained that

the Valencias employed numerous drivers, among them Brown, Thurman

and Hendriex. Mora would pay the Valencias for each "trip," and

the Valencias in turn would distribute a portion of that fee to the

drivers in their organization.

Mora testified that the Valencias were responsible for

supervising the receipt, transportation and delivery of cocaine to

Mora's workers in New York. Jesus Valencia would personally meet

the loads in New York and orchestrate the transfer from the drivers

in his organization to the distribution networkers. Julio Castro

and Wilson O'Havaro managed the distribution operation in New York.

Mora also testified that Brown and Hendriex participated in

numerous drug smuggling trips, usually between California and New

York, New York and Miami, and New York and Houston. Mora stated

that Brown had been described by the Valencias as "one of the

biggest drug drivers in the United States."

Mora also testified that in September 1990, Thurman and

Douglas Medlock, another Valencia driver, flew to Ontario,

California and drove a mini-van to the east coast with a hidden

load of cocaine. Mora estimated that the vehicle contained between

40 and 60 kilograms of cocaine.

1
Jesus Alberto Valencia and Alfreida Brown Valencia were
also charged in the indictment. When this case was briefed, both
were fugitives.

3
 Mora also testified that he often contacted Thurman regarding

organization business via cellular telephone if the Valencias were

unavailable. A search of Thurman's residence produced a cellular

telephone, whose number had been used on many occasions in

connection with Valencia activities.

Walter Perkins2, another member of the Valencia drug smuggling

organization, testified that he had made six to eight trips for the

Valencias, one with Hendriex. He testified that although he did

not know the precise location of the hidden compartments, he knew

that he was transporting drugs or drug proceeds on each trip. He

testified that a trip would initiate with a phone call from either

Jesus or Alfreida, who would instruct him to contact Thurman to

obtain travel money. He testified that Thurman had provided him

$800-$4500 for travel expenses on several occasions.

Joyce Medlock, another organization driver, testified that in

late 1988 or early 1989, she and Brown had knowingly driven a load

of cocaine for the organization. She also explained that she

performed the function of a switchboard operator for the Valencia

organization by apprising Alfreida Valencia of the status and

location of organization drivers.

At Castro's trial, Mora explained that Castro was a salaried

organization employee involved in Mora's New York City distribution

operation. Castro would receive cocaine deliveries from

organization drivers, remove the cocaine from the hidden

compartments and await direction from Mora about further

2
Perkins was also charged in the indictment; he pled guilty
in June 1992.

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distribution. Castro would then deliver the cocaine and accept

payment for it.

II. THE DEFENDANTS' APPEALS

A. THE APPEAL OF JULIO CASTRO

1.

Castro argues first that the district court erred in using a

prior conspiracy conviction in the Southern District of New York to

enhance his sentence. The district court relied on the earlier

conviction to enhance Castro's sentence to the 20-year mandatory

minimum under 21 U.S.C. § 841(b)(1)(a), which provides in pertinent

part:

If any person commits [a drug violation involving 5
kilograms or more of cocaine], 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.

Castro complains that the government initially prosecuted him

for a conspiracy offense in the Southern District of New York for

the purpose of enhancing his sentence on the substantive offense he

was later tried for in the Southern District of Texas. Stated

differently, Castro argues that the government is prohibited from

prosecuting a criminal conspiracy separately from the underlying

substantive criminal offense for the purpose of obtaining a

sentencing enhancement.

We find no merit to Castro's argument. First, a substantive

crime and a conspiracy to commit that crime are not the same

offense for double jeopardy purposes. United States v. Felix, ___

U.S. ___, 112 S. Ct. 1377, 1385 (1992). Also, the conspiracy

prosecution in New York was based on a different transaction than

5
the instant offense. The New York conspiracy offense was related

to Castro's involvement in a single substantive offense:

transportation of five kilograms of cocaine in February 1991. The

instant offense involved Castro's participation in transporting

cocaine from Houston to New York in January 1991.

Castro's reliance on Deal v. United States, ___ U.S. ___, 113

S. Ct. 1993, 124 L. Ed. 2d 44 (1993) is misplaced. In Deal, the

defendant was convicted of six counts of bank robbery, six counts

of carrying and using a firearm in relation to the bank robbery and

one count of being a felon in possession of a firearm. With

respect to the firearm convictions, the district court applied 18

U.S.C. § 924(c)(1), which provides:

Whoever, during and in relation to any crime of violence
. . . uses or carries a firearm, shall, in addition to
the punishment provided for such crime of violence . . .,
be sentenced to imprisonment for five years . . .. In the
case of his second or subsequent conviction under this
subsection, such person shall be sentenced to
imprisonment for twenty years . . ..

Pursuant to this provision, the district court sentenced the

defendant to five years on the first firearms count and to twenty

years on each of the other five firearms counts. The Court held

that Deal's conviction on counts 2-6, although obtained in a single

proceeding, arose "in the case of his second or subsequent

conviction" within the meaning of § 924(c)(1). In other words, the

Court held that Deal's conviction on the first count could be

relied upon as a predicate to enhance the conviction on counts two

through six. The Court's reasoning in Deal therefore provides no

support to Castro's argument. The district court did not err in

6
using the earlier drug conspiracy conviction to enhance Castro's

sentence.

2.

Castro argues next that the district court violated his Sixth

Amendment right by restricting his cross-examination of Jeffrey

Harbour, one of his co-conspirators who was a government witness.

At trial, Castro's attorney asked Harbour on cross-examination "was

your wife indicted on this case on the same . . ." The prosecutor

objected on grounds of relevance and the court sustained the

prosecutor's objection. Castro argues that his question regarding

Dolly Harbour's indictment status was relevant to Harbour's motive

for testifying, and thus, his credibility.

If Castro had tried to determine from Harbour whether the

prosecutor had declined to prosecute Dolly as part of the

consideration for Harbour's plea agreement, Castro's argument would

have some weight. But he gave no signal to the district court that

his objective was to raise this question. He simply asked whether

Dolly had been indicted and did not follow up to give the district

court a clear signal of the purpose of his question. The district

court did not abuse its discretion in sustaining the objection.

3.

Finally, Castro complains that the district court made an

indefinite finding on the quantity of drugs he could reasonably

foresee that he and his co-conspirators were distributing. In the

alternative, Castro argues that the court's finding on this

question was clearly erroneous.

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 First, the district court complied with Fed. R. Crim. P.

32(c)(3)(D). At sentencing, the court stated: "The court adopts

the factual statements contained in the Presentence Report as to

which there were no objections, and as to the objection the Court

has overruled those objections." We have recognized that a

sentencing court may satisfy the requirements of Rule 32(c)(3)(D)

by rejecting a defendant's objections and orally adopting the

factual findings of the PSR. See United States v. Puma, 937 F.2d

151, 159-60 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct.

1165 (1992).

The only remaining question, therefore, is whether the PSR's

factual findings, which were adopted by the district court, are

clearly erroneous. The PSR stated that Castro aided and abetted

the transportation of more than 340 kilograms of cocaine. Castro

disputes this amount by denying his knowledge of certain shipments.

Castro claims actual participation in the shipment of only 148

kilograms of cocaine. However, Mora and Harbour testified to

Castro's involvement with the shipments which Castro now disavows.

The probation officer and the district court were entitled to rely

on this testimony in attributing the amounts involved in those

loads to Castro. We find no clear error in the district court's

finding as to the quantity of drugs reasonably foreseeable to

Castro.

B. THE APPEALS OF CALVIN BROWN AND BRENDA BROWN THURMAN

Both Brown and Thurman challenge the sufficiency of the

evidence to support their convictions. Brown challenges the

sufficiency of the evidence to support his conviction on counts one

8
and two, and Thurman challenges the evidence to support her

conspiracy conviction on count one. For purposes of a sufficiency

challenge, we view the evidence presented and all inferences

reasonably drawn therefrom in the light most favorable to the

verdict and determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457,

469 (1942).

Brown and Thurman were both convicted of conspiracy to possess

cocaine with intent to distribute it, in violation of 21 U.S.C. §

846. Under § 846, the government must prove: 1) the existence of

an agreement between two or more persons; 2) the defendant's

knowledge of the agreement; and 3) the defendant's voluntary

participation in the conspiracy. United States v. Maltos, 985 F.2d

743, 746 (5th Cir. 1992).

Brown and Thurman both argue that the government failed to

prove that they knowingly participated in a conspiracy. We have

recognized that a "jury may infer a conspiracy agreement from

circumstantial evidence and may rely upon presence and association,

along with other evidence, in finding that a conspiracy existed."

United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.

1989).

Brown was also convicted of aiding and abetting the possession

of cocaine with intent to distribute it, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A). To support a conviction under §

841(a)(1), the government must prove beyond a reasonable doubt the

1) knowing; 2) possession of a controlled substance; 3) with the

9
intent to distribute it. United States v. Sacerio, 952 F.2d 860,

866 (citing United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir.

1990)). Brown argues that the government failed to prove that he

knowingly aided and abetted the possession of cocaine. Possession

of contraband with intent to distribute it may be actual or

constructive, and may be proven by circumstantial or direct

evidence. United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir.

1992); United States v. Ojebode, 957 F.2d at 1218, 1223 (5th Cir.

1992).

With these standards in mind, our review of the trial record

leads us inescapably to the conclusion that the evidence is

sufficient to support the challenged convictions. As for Brown,

Mora testified that the Valencias described Brown as "one of the

biggest drug drivers in the United States." Brown was identified

by a number of witnesses as the driver of load vehicles delivering

cocaine to New York.

Brown's sister, Joyce Medlock, testified to the standard

procedures followed by all of the Valencia drivers, including

Brown, in transporting a load of contraband. These procedures were

clearly designed to conceal the drug smuggling operation.

Relatedly, Medlock also stated that in late 1988 or early 1989, she

had driven a load to New York with Brown. Moreover, before his

arrest, Brown himself admitted to taking "trips" in vehicles,

vehicles which were later established to be contraband smuggling

vehicles of the Valencia organization. Joyce Medlock also

testified that she and the other drivers, including Brown, knew

that they were carrying contraband. The jury was clearly entitled

10
to conclude that Brown worked in concert with the Valencias and

others to accomplish the objectives of the conspiracy and that

Brown knowingly possessed cocaine with the intent to distribute it.

In the government's case against Thurman, Mora testified that

he relied on Thurman to communicate with the other drivers

regarding organization activity when the Valencias were

unavailable. Mora and other drivers testified that Thurman

distributed expense money to the drivers.

Douglas Medlock also implicated Thurman by testifying that he

and Thurman drove a load of cocaine from California to New York

after giving feigned excuses for their absence from work. Work

records from Thurman's place of business corroborated Medlock's

testimony. A search of Thurman's residence also produced a

cellular telephone connected to Jesus Valencia, as well as vehicle

registration papers for a vehicle utilized by the organization.

In sum, our review of the record satisfies us that the

evidence amply supports Brown's convictions under both counts and

Thurman's conspiracy conviction.

III. THE GOVERNMENT'S APPEAL

The government argues that the district court erred in

awarding downward departures to Brown, Thurman and Hendriex. For

clarity, we will address each defendant's downward departure in

turn.

A. CALVIN BROWN

The PSR calculated Brown's criminal offense level at 36, with

a criminal history category of I, translating to a punishment range

of 188-235 months. The district court departed downwardly from the

11
applicable guideline range and imposed concurrent 120-month terms

of imprisonment. The only reason the court gave for its departure

was to "sentence the defendant to a term of incarceration

consistent with other defendants who were more culpable but

benefitted in sentencing by nature of their plea agreements."

A district court is authorized to depart downwardly from

application of the sentencing guidelines when there exists "a[] .

. . mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission in

formulating the guidelines." 18 U.S.C. § 3553(b). This standard

obviously limits the judge's discretion to depart from the

applicable guideline ranges, and we review de novo the legal issue

of whether a factor was permissibly relied on as a grounds for a

departure. United States v. Shano, 955 F.2d 291, 294 (5th Cir.),

cert. denied, ___ U.S. ___, 112 S. Ct. 1520 (1992).

We have held that a district court may not depart downwardly

based solely on the disparity of sentences among co-defendants or

co-conspirators. United States v. Ives, 984 F.2d 649, 651 (5th

Cir. 1993); see also United States v. Ellis, 975 F.2d 1061, 1066

(4th Cir. 1992); United States v. Wogan, 938 F.2d 1446, 1448-49

(1st Cir. 1991); United States v. Joyner, 924 F.2d 454, 459-61 (2d

Cir. 1991). In Ives, the defendant argued that the district court

erred when it refused to depart downwardly to harmonize his

sentence with the much shorter sentences imposed against equally

culpable co-conspirators. Id. at 650. In rejecting the

defendant's argument, we were persuaded by the "the clear trend .

. . to hold that a district court may not under any circumstances

12
depart from a recommended Guidelines' sentence -- either upward or

downward -- for the purpose of achieving parity or equity between

co-defendants." Id.

Because we conclude that the district court impermissibly

departed downwardly in sentencing Brown, we vacate his sentence and

remand for resentencing. See Williams v. United States, ___ U.S.

___, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992).

B. BRENDA BROWN THURMAN

At sentencing, the court found that Thurman participated in

transporting 40 kilograms of cocaine. The district court, over the

government's objection, then awarded Thurman a two-level reduction

for minor participation; the court thereby arrived at a base

offense level of 32, which, with a level I criminal history,

resulted in a punishment range of 121-151 months. The district

court, however, departed downwardly and sentenced Thurman to 120

months. Apparently, the one-month departure was intended to

achieve harmony with Brown's sentence, whom the district court

sentenced just before sentencing Thurman. For the reasons stated

above, we must vacate Thurman's sentence because a sentencing court

is not authorized to depart downwardly for the sole purpose of

achieving consistency in sentencing among co-defendants.

We find permissible, however, the court's two-level reduction

based on Thurman's minor participation. Under § 3B1.2(b), a

district court must reduce an offense level by two if it finds that

the defendant was a "minor participant" in the offense. A

defendant is considered a minor participant if he or she is

"substantially less culpable than the average participant." United

13
States v. Lokey, 945 F.2d 825, 840 (5th Cir. 1991). Whether

Thurman played only a minor role in the conspiracy is a factual

determination which must be upheld unless it is clearly erroneous.

United States v. Giraldo-Lara, 919 F.2d 19, 22 (5th Cir. 1990).

The testimony at trial revealed that Thurman distributed

travel money to organization drivers and that Thurman was a

passenger in one of the drug smuggling vehicles. The district

judge was entitled to conclude that Thurman was less culpable than

most other participants in this large drug smuggling operation. We

are persuaded that the district court did not commit clear error in

concluding that Thurman was a minor participant.

C. CONSTANCE DIANNE HENDRIEX

The government also appeals the sentence imposed against

Hendriex.3 The district court limited Hendriex's role to 40

kilograms of cocaine and awarded her a two-level reduction for

minor participation, arriving at a sentencing range of 121 - 151

months. Hendriex moved for a departure under § 5H1.6 because her

two children were under 5 years old and were being cared for by

their 65-year-old great-grandmother with limited financial

resources. The district court accepted this argument, granted

downward departure and sentenced Hendriex to 78 months

imprisonment, which is below the statutory minimum of ten years.

The government argues first that the district court was

without authority to impose a sentence below the statutory minimum

because the government did not move for such relief.

3
Hendriex did not appeal her conviction or sentence.

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 A district court's authority to sentence below the statutory

minimum is circumscribed by 18 U.S.C. § 3553(e), which provides:
Limited authority to impose a sentence below a statutory
minimum. -- Upon motion of the Government, the court
shall have the authority to impose a sentence below a
level established by statute as minimum sentence so as to
reflect a defendant's substantial assistance in the
investigation or prosecution of another person who has
committed an offense.

18 U.S.C. § 3553(e)(emphasis added).

In this case, the government made no motion to depart below

the statutory minimum sentence and thus, the district court

exceeded its authority in sentencing Hendriex to a term below the

statutory minimum. See United States v. Vilchez, 967 F.2d 1351,

1355-56 (9th Cir. 1992); see also United States v. Schmeltzer, 960

F.2d 405, 407-08 (5th Cir. 1992).

Aside from the departure below the statutory minimum, the

district court justified its departure from the guideline range of

121-151 months on grounds that Hendriex had demonstrated

"exceptional circumstances" within the meaning of § 5H1.6. In

granting the departure, the court stated:

The Court will depart, based on Section 5H1.6, for the
reason that the children, that is the children of Miss
Hendriex, are fairly young, that is under five years for
both, and for the further reason that the grand mother,
that is the person who would be supporting these
children, is 65 years old, and very well may find it
difficult to support these children over an extended
period of time.

Unless there are unique or extraordinary circumstances, a

downward departure from the guideline range based on the

defendant's parental responsibilities is improper. See, e.g.,

United States v. Cacho, 951 F.2d 308, 311 (11th Cir. 1992); United

States v. Goff, 907 F.2d 1441, 1446 (4th Cir. 1990)(district

15
court's downward departure because defendant had three children who

would be left with their grandmother was improper because "[t]here

is nothing extraordinary about Goff's family responsibilities.");

see also U.S.S.G § 5H1.6 commentary (Family ties and

responsibilities . . . are not ordinarily relevant in determining

whether a sentence should be outside the guidelines.)

The record in this case reveals that Hendriex is the single

parent of two young children who will be cared for by her

grandmother during Hendriex's incarceration. Although the children

have some undefined medical problems, the record discloses nothing

extraordinary. Hendriex "has shown nothing more than that which

innumerable defendants could no doubt establish: namely, that the

imposition of prison sentences normally disrupts . . . parental

relationships." United States v. Daly, 883 F.2d 313, 319 (4th Cir.

1989), cert. denied, ___ U.S. ___, 110 S.Ct. 2622 (1990). We

therefore find nothing "extraordinary" about Hendriex's parental

responsibilities which would warrant a downward departure below a

121 month sentence, which is at the bottom of the applicable

guideline range.

IV.

For the reasons stated above, we affirm the convictions of

Castro, Brown and Thurman. We also affirm Castro's sentence. But

we vacate the sentences imposed against Brown, Thurman and Hendriex

which we remand for resentencing consistent with this opinion.

AFFIRMED in part; VACATED AND REMANDED in part.

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