IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50197
UNITED STATES OF AMERICA,
Plaintiff-Appellee,,
versus
ARMANDO MELENDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Texas
(92-CR-133-1)
January 25, 1996
Before GARWOOD, SMITH and DENNIS, Circuit Judges.*
PER CURIAM:
Defendant-appellant Armando Melendez (Melendez) was found
guilty of conspiring to import a quantity of more than one hundred
kilograms of marihuana in violation of 21 U.S.C. §§ 952(a),
960(a)(1) and 963. On appeal, this Court remanded appellant’s
conviction to the district court to determine whether the
presentence investigation reports (PSRs) of various government
witnesses contained Brady or Giglio material and, if so, whether a
*
Pursuant to Local 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
new trial was required. In addition, this Court vacated Melendez’s
sentence and remanded to the district court for resentencing.
Melendez appeals the district court’s judgment and resentencing.
We affirm.
Facts and Proceedings Below
Melendez was charged together with fourteen other named
defendants pursuant to a superseding indictment filed on May 6,
1992, with numerous crimes relating to a large-scale marihuana
importing operation spanning seven years (1985-1992). The district
court granted a severance to Melendez and his co-defendant Octavio
Carreon, and the two were tried together for: (1) conspiring to
import a quantity of more than one hundred kilograms of marihuana
in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 963; (2)
conspiring to possess more than one hundred kilograms of marihuana
with intent to distribute, in violation of 21 U.S.C. §841(a)(1);
and (3) bribing a public official in violation of 18 U.S.C. §
201(b)(1).
Based largely on the testimony of the defendants’ alleged co-
conspirators, the jury found Melendez guilty of conspiring to
import marihuana, but acquitted him on the other two counts. On
appeal, this Court remanded Melendez’s conviction to the district
court to determine by “in camera inspection” whether the PSRs
prepared for these co-conspirators——who had served as government
witnesses against Melendez——contained exculpatory or impeachment
information under Brady or Giglio. United States v. Carreon, 11
F.3d 1225, 1238 (5th Cir. Jan. 5, 1994). In addition, this Court
2
vacated Melendez’s sentence and remanded to the district court with
instructions that it make findings in support of its resentencing
of Melendez. Id. at 1235-38.
On remand, the district court reviewed the PSRs of the
cooperating co-conspirators and concluded that they contained no
Brady or Giglio material; alternatively, the court observed that,
“[I]f any such information is contained in any one or more of these
reports, the Court finds that it could not have affected the
outcome of Melendez’ trial, and that the failure to disclose such
information . . . was harmless error.” April 4, 1994, Order After
Remand at 4, in United States v. Melendez, No. EP-92-CR-133-H
(W.D.Tex. 1994). Consequently, the district court resentenced
Melendez to 360 months’ imprisonment, five years of supervised
release, and a fine of $100,000——the same sentence Melendez
originally received.1
Thereafter, on April 19, 1994, this Court issued a
Supplemental Opinion in which we observed:
“The district court found that [the PSRs at issue]
contained no material Brady or Giglio information. Our
independent review of the same PSRs leads us to the same
conclusion. . . . For the foregoing reasons, Melendez’s
judgment of conviction is AFFIRMED.” United States v.
1
After reviewing the evidence regarding the constituent amounts
of marihuana attributable to Melendez, the district court reduced
the total amount of marihuana (from the district court’s original
finding) by approximately 9,000 kilograms. Nevertheless, even
after making this reduction in the total amount of marihuana
attributable to Melendez, this revised total still exceeded 100,000
kilograms; therefore, Melendez’s original base offense level of
forty remained the same. Furthermore, Melendez’s two-level upward
adjustment for his role in the offense, as well as his criminal
history category, obviously remained unchanged as well.
3
Carreon, No. 92-8682 at 2-3 (5th Cir. April 19, 1994)
(unpublished).
Discussion
This Court’s Supplemental Opinion of April 19, 1994, provides
the law of the case, and Melendez fails to demonstrate that the
present appeal from the resentencing should be permitted insofar as
it relates to his conviction. However, even if the issues raised
by Melendez respecting his conviction on the present appeal had not
already been resolved by the prior January 4 and April 19, 1994,
opinions of this Court, this Court would nevertheless affirm the
district court’s conviction of Melendez, as well as his
resentencing on remand.
Melendez raises several contentions on appeal. First, he
contends that the district court erred in denying his post-
conviction motion for judgment of acquittal because the evidence
against him was insufficient to support his conviction.
Principally, Melendez maintains that his conviction for conspiring
to import marihuana and his acquittal for knowingly possessing
marihuana with the intent to distribute it constitute “fatally
inconsistent” jury verdicts. Considering the distinct elements of
these two offenses, it is not at all clear that these verdicts are
inconsistent; however, even if they were “truly inconsistent”, this
Court has observed that:
“. . . The most that can be said . . . is that the
verdict shows that either in the acquittal or the
conviction the jury did not speak their real conclusions,
but that does not show that they were not convinced of
the defendant’s guilt.” United States v. Scurlock, 52
F.3d 531, 537 (5th Cir. 1995) (quoting United States v.
Powell, 105 S.Ct. 471, 475 (1984)).
4
Therefore, even where the verdicts are truly inconsistent, the
jury’s decision to acquit on one of the counts does not require
reversal of the defendant’s conviction on the other count. Id. at
538.2
In his second argument on appeal, Melendez contends that the
district court erred by failing to inspect in camera the PSR
prepared on April 11, 1991, for Charles Aragon (Aragon), an
important government witness, in contravention of this Court’s
instructions on remand. Melendez points out that the PSR relating
to Aragon actually inspected in camera by the district court was a
PSR prepared on September 28, 1992.3 Based on this, Melendez
contends that the district court’s inspection of the government
witnesses’ PSRs——ordered by this Court——was incomplete; he argues
that, in conducting an inspection for exculpatory or impeachment
information, the first PSR would be particularly insightful as
Aragon was allegedly already cooperating with the government at the
time the first PSR was prepared.
2
In his only other contention that the evidence against him was
insufficient, Melendez challenges the credibility of the
government’s witnesses——an assessment clearly within the sole
province of the jury.
3
The “first” (April 11, 1991) PSR was prepared in connection with
Aragon’s “first” sentencing by the district court for his
participation in the drug distribution operation. Aragon’s 1991
conviction was subsequently appealed and reversed, and Aragon was
granted a new trial. Before he could be retried, Aragon pleaded
guilty; the “second” (September 28, 1992) PSR was prepared in
connection with the district court’s sentencing pursuant to this
plea. For convenience, these PSRs will be referred to as Aragon’s
“first” and “second” PSRs.
5
However, on May 3, 1995, the government——by unopposed motion——
supplemented the record in this case by filing a copy of Aragon’s
first PSR. There is no dispute that the PSR so furnished by the
government is the same (April 11, 1991) PSR that Melendez has put
at issue. It is likewise clear that Aragon contributed nothing to
this PSR that would implicate Brady or Giglio. In fact, “[o]n the
advice of counsel, Aragon did not provide any statements to the
probation officer regarding his role in the offense.” April 11,
1991, Presentence Report at ¶ 56, in United States v. Aragon, No.
EP-90-CR-388B (W.D.Tex. 1991)(emphasis added).4 Therefore, we find
that it would be a waste of time and resources to remand this case
to the district court in order for that court to inspect this first
PSR in camera for Brady and Giglio information contributed by
Aragon.
In a footnote in his brief, Melendez makes a passing reference
relating to the district court’s failure to inspect in camera any
PSR prepared in connection with the sentencing of government
witness Jose Guzman (Guzman). In its April 4, 1994, Order After
Remand, supra, the district court asserted that it had been unable
to uncover any information that Guzman had ever been convicted in
either Texas or New Mexico. Melendez’s footnote asserts that
4
During oral argument on the present appeal, the government
informed this Court of Aragon’s decision not to contribute
anything——potentially exculpatory for Melendez or otherwise——to this
first PSR. At that time, counsel for Melendez expressed a
willingness to allow this Court to examine the April 11, 1991, PSR
in order to determine whether its contents justified remand to the
district court for a thorough in camera review in light of Brady
and Giglio.
6
Guzman was convicted in the United States District Court for the
District of New Mexico of drug trafficking offenses. Although
Melendez fails to provide a cause number for, or the date of, this
alleged conviction, he notes that Guzman responded to questioning
under oath at Melendez’s trial that he had been convicted of a
“marihuana offense” in 1990. March 15, 1995, Corrected Initial
Brief of Appellant at 26 n.15, in United States v. Melendez, No.
94-50197. We need not reach the issue of whether the district
court erred in failing to locate and inspect this missing PSR,
however, as counsel for Melendez——in oral argument on the present
appeal——in substance conceded that this PSR was of little
consequence because Guzman was not cooperating with the government
at the time this PSR would have been prepared. Furthermore, there
is nothing to suggest that Guzman’s purported 1990 conviction for
drug trafficking was connected to the drug operation underlying
Melendez’s present conviction.
In his final argument, Melendez contends that the district
court erred in its determination of the quantity of marihuana
attributable to him for sentencing purposes. This argument is
meritless, however, as it is clear that the district court not only
considered Melendez’s specific objections on this issue, but
actually reduced the amount of marihuana originally attributed to
Melendez based on the probation officer’s recommendation.5 There
5
The probation officer recommended that Melendez’s offense
conduct involved a total of approximately 131,353 kilograms of
marihuana, and the district court accepted this recommended finding
when it originally sentenced Melendez following his trial in
7
is likewise no merit to Melendez’s suggestion that the district
court erred by approximating certain of the constituent amounts of
marihuana attributable to him over the course of this conspiracy.
The United States Sentencing Guidelines recognize that
approximation is permissible “[w]here there is no drug seizure . .
. .” U.S.S.G. § 2D1.1 comment. (n.12). In the present case, in
which certain evidence of the constituent amounts of drugs involved
over the course of this lengthy conspiracy was necessarily derived
from the testimony of eyewitnesses——and not from a recovery of the
drugs involved——such approximation was unavoidable. We conclude
that the district court’s findings are sufficient and that it did
not err in determining the total quantity of drugs attributable to
Melendez for sentencing purposes.
Conclusion
Melendez’s judgment of conviction and sentence is
AFFIRMED.
October 1992. On remand, the district court excluded certain
quantities of marihuana to which Melendez had objected, reducing
the total amount by more than 9,000 kilograms.
8