IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 6, 2009
No. 07-20702 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CARLOS LUIS GUERRA;
HECTOR MANUEL NUNEZ
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-433-1
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
A jury convicted Carlos Luis Guerra and Hector Manuel Nunez of
conspiracy to distribute more than five kilograms of cocaine under 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(ii), and 846, and aiding and abetting possession with
intent to distribute more than five kilograms of cocaine under 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A)(ii) and 18 U.S.C. § 2. Guerra and Nunez appeal both
their convictions and sentences. For the reasons stated herein, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 07-20702
I.
The following facts were presented at trial.
Alfonso Alvarez, a police officer with the South Houston Police
Department, was working undercover when an informant told him that Luis
Guerra was selling large quantities of cocaine. The informant, Guadelupe
Contreras, was a convicted felon who knew Guerra. Contreras called Guerra on
Alvarez’s behalf and asked whether Guerra could secure cocaine for Alvarez.
Guerra agreed, and Contreras arranged for the three to meet at a local taqueria
on October 31, 2006, to discuss the deal.
At the taqueria Guerra told Alvarez and Contreras that he would only sell
them the cocaine at his residence. When the three later left the taqueria,
Alvarez and Contreras followed Guerra to Hector Nunez’s home at 7310 Legacy
Pines Drive. They watched Guerra pull into the driveway and spoke with him
by cell phone to confirm the residence was the place the transaction would take
place. The next day Alvarez and Guerra spoke via phone and arranged to meet
at Nunez’s home on November 2.
On November 2, Alvarez and Guerra communicated via cell phone. That
afternoon Alvarez drove Contreras to Nunez’s home and let Contreras out to
verify the cocaine was there; Alvarez then drove off. Contreras entered the home
and Guerra showed him the cocaine. Contreras testified that Nunez, who was
standing nearby, promised him the cocaine “was good.” Contreras then called
Alvarez, who returned to pick him up.
Alvarez immediately alerted agents who had been surveying 7310 Legacy
Pines Drive that there was cocaine in the home. One of those agents was Violet
Szeleczky-Brown. She testified that on the morning of November 2 she saw
Nunez standing in the open garage. At around noon she saw a white pickup that
was registered to Nunez pull into the driveway; Guerra was its passenger.
Guerra got out of the truck and entered the home. He then exited the home, got
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No. 07-20702
back into the passenger side of the truck, and left. Szeleczky-Brown was still
watching when, three hours later, Guerra returned, this time as the passenger
of a white Volkswagen Jetta. When Guerra entered the home, the car drove
away. Guerra and Nunez later came outside and played basketball. Szeleczky-
Brown testified that at some point Guerra took a phone call on his cell phone
and, after he hung up, he spoke to Nunez and the two began jumping in the air
and gave each other a high five. Minutes later, a navy pickup pulled into the
drive. A man later identified as Arnoldo Trevino got out of the truck and handed
a blue bag to Guerra. After Guerra and Nunez walked into the home, Trevino
drove away. Alvarez and Contreras arrived shortly thereafter, and Szeleczky-
Brown watched as Contreras entered and later exited the home.
Shortly after Alvarez alerted them, agents arrived to execute search and
arrest warrants. They found the blue bag and 17 bricks of cocaine in it. They
also found pieces of paper on which what appeared to be monetary calculations
had been written. The agents seized that evidence, along with Guerra’s and
Nunez’s cell phones. They arrested Guerra and Nunez.
Fingerprints taken from both the bag and the pieces of paper were later
matched to those of Guerra. Cell phone records showed that on the day Guerra
met Alvarez and Contreras at the taqueria, Guerra called Nunez twenty-two
times.
On November 29, a grand jury indicted Guerra, Nunez, and Arnoldo
Trevino and charged them with conspiracy to distribute more than five
kilograms of cocaine under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii),1 and 846,2 and
1
28 U.S.C. § 841:
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any
person knowingly or intentionally –
(1) to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance
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No. 07-20702
aiding and abetting possession with intent to distribute more than five
kilograms of cocaine under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) and 18
U.S.C. § 2.3 Trevino pleaded guilty to conspiracy; Guerra and Nunez tried their
case to a jury and were convicted of both conspiracy and aiding and abetting
possession.
The district judge sentenced Guerra to two terms of 168 months, to be
served concurrently, and two five-year terms of supervised release, also to be
served concurrently.
****
(b) Penalties
Except as otherwise provided in section 859, 860, or 861, of this title,
any person who violates subsection (a) of this section shall be sentenced
as follows:
(1)(A) In the case of violation of subsection (a) of this section involving–
****
(ii) 5 kilograms or more of a mixture or substance containing
a detectable amount of –
****
(II) cocaine, its salts, optical and geometric isomers,
and salts of isomers;
****
such person shall be sentenced to a term of imprisonment which may not
be less than 10 years or more than life . . . .
2
28 U.S.C. § 846:
Any person who attempts to or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or conspiracy.
3
18 U.S.C. § 2:
(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable
as a principal.
(b) Whoever willfully causes an act to be done which if directly performed
by him or another would be an offense against the United States, is
punishable as a principal.
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No. 07-20702
The district judge sentenced Nunez to two terms of 151 months each, to be
served concurrently, and two five-year terms of supervised release, also to be
served concurrently.
II.
On appeal, Guerra and Nunez challenge their convictions and sentences.
Guerra alleges the evidence was insufficient to convict him of either
conspiracy or aiding and abetting possession, and that the district court’s
sentence was unreasonable.
Nunez also alleges the evidence was insufficient to convict him of either
conspiracy or aiding and abetting possession. He also alleges that the district
court’s sentence was unreasonable, but specifically complains that the district
court used the cocaine’s net weight, as opposed to its “pure” weight, to determine
his total offense level for sentencing purposes. In addition, Nunez claims that
at his arraignment hearing the magistrate judge incorrectly summarized the
charges against him and thus his not-guilty plea was not knowing and
voluntary. Finally, Nunez claims that he was charged not with possession, but
with aiding and abetting possession, and the district court therefore erred when
it instructed the jury that Nunez had been charged with possession.
We address the sufficiency of the evidence and reasonableness of the
sentences for both Guerra and Nunez before we address Nunez’s additional
claims.
III.
Both Guerra and Nunez claim that the evidence at trial was insufficient
to convict them of either conspiracy or aiding and abetting possession.
In evaluating the sufficiency of the evidence, we ask “whether any
reasonable trier of fact could have found that the evidence established the
essential elements of the crime beyond a reasonable doubt.” United States v.
Martinez-Lugo, 411 F.3d 597, 599 (5th Cir. 2005) (citing United States v. Ortega
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No. 07-20702
Reyna, 148 F.3d 540, 543 (5th Cir. 1998)). We consider the evidence “in the light
most favorable to the verdict” and therefore must draw “all reasonable
inferences in support of the verdict.” Id.
We address the conspiracy conviction first. To establish conspiracy to
possess and distribute more than five kilograms of cocaine, the government had
to prove the following elements beyond a reasonable doubt: “(1) an agreement
with one other person to possess with intent to distribute at least five kilograms
of cocaine; (2) defendant’s knowledge of the agreement; and (3) defendant’s
voluntary participation in the conspiracy.” United States v. Percel, 553 F.3d 903,
910 (5th Cir. 2008).
Guerra argues generally that there was no evidence that he entered an
agreement with Nunez and Trevino to possess and distribute cocaine. It is well-
established, however, that “the jury can infer the existence of an agreement from
circumstantial evidence.” Id. (citing United States v. Chavez, 947 F.2d 742, 745
(5th Cir. 1991)). At trial, there was more than adequate circumstantial evidence
from which a jury could infer the existence of an agreement between Guerra and
Nunez. Testimony and cell phone records showed that on October 31, 2006, the
day Guerra first agreed to sell cocaine to Alvarez and Contreras, Guerra called
Nunez twenty-two times. Agent Szeleczky-Brown testified that while surveying
Nunez’s home on November 2, she saw Guerra come and go, and also saw
Guerra take a phone call and apparently celebrate its news by jumping up and
down with Nunez and giving him a high five. Minutes later, she saw Trevino
arrive with a blue bag that was later found to contain seventeen bricks of
cocaine. Contreras testified that when he arrived, Guerra showed him the bag
of cocaine and Nunez vouched for its quality. From this evidence the jury could
easily infer that Guerra had entered an agreement with Nunez, if not also with
Trevino. Guerra fails to show that the evidence was insufficient to convict him
of conspiracy.
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No. 07-20702
Nunez argues that the evidence showed only that he was present, and not
that he was a co-conspirator. He points out that agents did not recover his
fingerprints from either the blue bag or the pieces of paper on which what
appeared to be monetary calculations had been written, and claims the pieces
of paper could not otherwise prove his participation in the conspiracy. Nunez
neglects, however, to mention that there was testimony that the calculated
figures on the pieces of paper represented the profit that would be made from the
sale and how it would be split between Guerra and Nunez. He also neglects to
mention that there was testimony that Guerra called Nunez twenty-two times
on October 31, that on November 2 Nunez and Guerra celebrated in Nunez’s
driveway only minutes before Trevino delivered the cocaine, and that Nunez told
Contreras the cocaine “was good.” And although as a fact it is not sufficient in
and of itself, it bears noting that all of these events transpired at Nunez’s house.
Knowledge of and voluntary participation in a conspiracy “may be inferred from
a ‘collection of circumstances.’” United States v. Fuchs, 467 F.3d 889, 908 (5th
Cir. 2006) (citations omitted). The “collection of circumstances” here was
sufficient to infer Nunez’s knowledge and voluntary participation and was
therefore sufficient to convict Nunez of conspiracy.
The evidence was also sufficient to convict both Guerra and Nunez of
aiding and abetting possession. To prove the crime of aiding and abetting, the
government had to establish that Guerra and Nunez: “(1) associated with the
criminal venture; (2) purposefully participated in the crime; and (3) sought by
[their] actions for it to succeed.” United States v. Pando Franco, 503 F.3d 389,
394 (5th Cir. 2007), cert. denied, — U.S. —, 128 S.Ct. 1874 (2008). We have held
that evidence supporting a conspiracy conviction typically supports an aiding
and abetting conviction. See, e.g., 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)). We conclude the evidence supporting Guerra’s and Nunez’s convictions
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No. 07-20702
of conspiracy equally supports their convictions of aiding and abetting
possession.
IV.
Both Guerra and Nunez challenge their sentences as unreasonable. In
our review to determine whether a sentence is reasonable, we ask whether the
district court abused its discretion. See, e.g., United States v. Herrera-Garduno,
519 F.3d 526, 529 (5th Cir. 2008). Our review is bifurcated: We “‘first ensure
that the district court committed no significant procedural error’” and “‘then
consider the substantive reasonableness of the sentence imposed.’” Id. (quoting
Gall v. United States, 552 U.S. — , 128 S.Ct. 586, 597 (2007)). Both Guerra and
Nunez allege procedural errors. See, e.g., United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008) (sentencing court procedurally errs when, for instance,
it fails to properly calculate the offense level and sentencing range, fails to
consider sentencing factors as listed in 18 U.S.C. § 3553(a), treats sentencing
guidelines as mandatory, or accepts as a basis for sentence clearly erroneous
facts) (citing Gall, 552 U.S. — , 128 S.Ct. at 597)).
Guerra claims the district court treated the sentencing guidelines as
mandatory. Guerra, however, offers no support for this claim, and the record
plainly refutes it. At Guerra’s sentencing hearing the district court told Guerra
that it had considered the sentencing guidelines and concluded that a sentence
under the guidelines would be consistent with, and take into account, the factors
listed in 18 U.S.C. § 3553(a). Guerra does not show the district court
procedurally erred by treating the sentencing guidelines as mandatory.
Nunez claims the district court improperly used the cocaine’s net weight,
as opposed to its “pure” weight, to determine his total offense level for sentencing
purposes. He argues the court should have calculated the weight of the cocaine
for sentencing purposes by multiplying the cocaine’s net weight, 17.01 kilograms,
by its purity, 80 percent. If the court had thus calculated the cocaine’s weight,
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No. 07-20702
Nunez would have been liable for only 13.6 kilograms of cocaine, and would have
qualified for a base offense level of 32, for which the sentencing range is 121 to
151 months. Instead, the court accepted for sentencing purposes the cocaine’s
net weight, 17.01 kilograms, which assigned to Nunez a base offense level of 34,
for which the sentencing range is 151 to 188 months.
We find no error in the court’s use of the cocaine’s net weight to determine
Nunez’s base offense level. Under the sentencing guidelines, a court determines
a defendant’s base offense level in drug cases by reference to a drug quantity
table. The table lists controlled substances and assigns base offense levels by
their weights. The notes that accompany the table explain:
Unless otherwise specified, the weight of a controlled
substance set forth in the table refers to the entire weight
of any mixture or substance containing a detectable
amount of the controlled substance. If a mixture or
substance contains more than one controlled substance,
the weight of the entire mixture or substance is
assigned to the controlled substance that results in the
greater offense level.
U.S.S.G. § 2D1.1(c) n.(A) (2006) (emphasis added).
For some controlled substances, for instance, PCP and methamphetamine,
the table designates weight “actual.” That designation refers to “the weight of
the controlled substance, itself, contained in the mixture or substance.” Id. at
n.(B). The table does not, however, designate the weight of cocaine “actual.” The
weight of cocaine for sentencing purposes is instead “the entire weight of any
mixture or substance containing a detectable amount of [cocaine].” Id. at n.(A).
The district court properly accepted for sentencing purposes the cocaine’s net
weight, 17.01 kilograms. Nunez fails to establish procedural error.
Neither Guerra nor Nunez challenge the substantive reasonableness of
their sentences. We note, however, that having found no procedural error, we
also find no substantive error. Guerra’s and Nunez’s sentences both fall within
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No. 07-20702
the properly-calculated guidelines range and are, therefore, presumptively
reasonable. See United States v. Gomez-Herrera, 523 F.3d 554, 558 (5th Cir.
2008) (citing Rita v. United States, 551 U.S. — , 127 S.Ct. 2456, 2462 (2007)).
There was no abuse of discretion.
V.
Nunez also claims that at his arraignment hearing the magistrate judge
incorrectly summarized the charges against him and therefore his not-guilty
plea was not knowing and voluntary. We find no error in the magistrate judge’s
delivery of the charges at Nunez’s arraignment.
A defendant has a right to know the charges against him and to have
adequate information from which to prepare his defense. See, e.g., United States
v. Correa-Ventura, 6 F.3d 1070, 1073 (5th Cir. 1993) (citing United States v.
Rogers, 469 F.2d 1317, 1318 (5th Cir. 1972)). An arraignment protects those
rights. See F ED. R. C RIM. P. 10 (defendant shall be informed of “the substance
of the charge” and called on to plead thereto). A conviction will not be vacated,
however, for lack of formal arraignment proceedings, absent possible prejudice.
Correa-Ventura, 6 F.3d at 1073.
The indictment in this case charged Guerra, Nunez, and Trevino with two
counts, one for conspiracy and the other for possession. At the arraignment, the
magistrate judge confirmed that the defendants’ attorneys had “discussed the
accusations in the indictment with [their] clients.” The magistrate judge asked
the defendants whether they had discussed the charges with their attorneys;
they answered “yes.” We have held that where a judge confirms that defense
counsel has informed a defendant of the charges against him, no prejudice
results from the failure of the judge to personally inform the defendant of those
charges. United States v. Grote, 632 F.2d 387, 389 (5th Cir. 1980) (“We do not
believe that any prejudice has resulted from the failure of the trial judge
personally to inform the defendant of the charges against him. The trial judge
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No. 07-20702
assigned that responsibility to appointed counsel, and he satisfied himself that
that responsibility had been discharged before calling upon the defendant to
plead.”).
Nevertheless, in addition to confirming that the defendants’ attorneys had
discussed the charges with their clients, the magistrate judge also summarized
both counts for the defendants:
Each of you are accused in Count One of the indictment
that alleges that you conspired or made an agreement
to possess with intent to distribute cocaine, five
kilograms or more, on or about October 31st, 2006, and
continuing through November the 2nd of 2006. That is
Count One of the indictment. Count Two alleges that
you each possessed with intent to distribute cocaine,
five or more kilograms of cocaine.
Nunez claims that the magistrate judge incorrectly told them that count
two charged them with possession, and complains that the magistrate judge did
not tell them that they had been charged with aiding and abetting possession.
These alleged errors are without merit. The magistrate judge correctly
summarized count two of the indictment, which plainly titled itself “Possession
with the Intent to Distribute (Cocaine)” and plainly charged the defendants with
possession under 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(ii).4 That count two also
charged the defendant with aiding and abetting possession under 18 U.S.C. § 2
4
COUNT TWO
Possession with the Intent to Distribute (Cocaine)
On or about 2 November 2006 . . . defendants herein,
aiding, assisting, and abetting each other and others, known and
unknown to the Grand Jury, did unlawfully, knowingly, and
intentionally possess with the intent to distribute a controlled
substance. This violation involved 5 kilograms or more of a
mixture and substance containing a detectable amount of cocaine,
a Schedule II controlled substance.
In violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)
and 18 U.S.C. § 2.
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No. 07-20702
does not render the magistrate judge’s summary of count two inadequate, where
the magistrate judge very correctly conveyed to the defendants “the substance
of the charge.” There was no error in the defendants’ arraignment proceedings.
VI.
Finally, Nunez claims that he was charged not with possession, but with
aiding and abetting possession, and that the district court therefore erred when
it instructed the jury that Nunez had been charged with possession. This issue
is without merit. As previously stated, the indictment very plainly charged
Nunez with possession with intent to distribute cocaine.
Moreover, we note that in its preliminary instructions to the jury, the
district court recited the elements of conspiracy, possession, and aiding and
abetting possession. In its jury charge prior to deliberations, the district court
carefully explained the elements of conspiracy, possession, and aiding and
abetting possession. The instructions were consistent with the charges in counts
one and two of the indictment. The judgment indicates that Nunez was
convicted of conspiracy and aiding and abetting possession with intent to
distribute. Contrary to his assertion otherwise, Nunez was not convicted of an
unindicted crime.
VII.
For the foregoing reasons, the convictions and sentences are
AFFIRMED.
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