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
2
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.
4
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.
7
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.
14
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.
16
United States v. Brown
Court: Court of Appeals for the Fifth Circuit
Date filed: 1994-08-10
Citations: 29 F.3d 953
Copy CitationsCombined Opinion