UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-3453
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTA ALICIA ZUNIGA,
Defendant-Appellant.
* * * * * * * *
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No. 93-3457
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE ZUNIGA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Louisiana
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(April 5, 1994)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants Juan Jose Zuniga-Hernandez (Zuniga) and
his wife, Marta Alicia Zuniga (Marta), were convicted in separate
proceedings of various drug-related offenses. In this consolidated
appeal, Zuniga asks us to reverse his conviction under 18 U.S.C. §
924(c)(1) and the sentence imposed therefor, arguing that his
receipt of firearms in exchange for heroin did not constitute "use"
of a firearm, during and in relation to a drug trafficking offense,
within the context of the statute. Marta contests the sufficiency
of the evidence underlying her conviction of distribution of
heroin. Furthermore, she claims that she was only a minor
participant in the offense and should have been accorded a downward
adjustment to her guidelines offense level on that basis.
Facts and Proceedings Below
In September 1992, a cooperating individual contacted the Drug
Enforcement Administration (DEA) with information concerning an
organization in Houston, Texas, dealing in heroin and firearms.
According to information obtained by the DEA, Zuniga was the head
of the organization. DEA Special Agent Guadalupe Flores, working
undercover, contacted Zuniga to negotiate the purchase of heroin
and the sale of machineguns and other firearms. The purchase price
agreed upon for the heroin was $5,000 per ounce. To disguise the
nature of their arrangements, Agent Flores and Zuniga referred to
heroin as "shoes" and to firearms as "machinery."
The cooperating individual maintained contact with Zuniga
throughout October and November 1992.1 Sometime during the autumn
1
Throughout the investigation, where possible, DEA agents
monitored and recorded the cooperating individual's contacts with
2
of 1992, Agent Flores agreed to purchase a one-ounce sample of
black tar heroin from Zuniga and to purchase more if the sample
proved satisfactory. Zuniga expressed his interest in acquiring
firearms from Agent Flores.
On December 8, 1992, DEA agents conducted surveillance of a
meeting at Zuniga's apartment complex in Houston. While Agent
Flores waited in his vehicle, the cooperating individual went to
Zuniga's apartment and asked Zuniga to meet with Agent Flores at
the car. Zuniga gave the one ounce of black tar heroin to the
cooperating individual and followed him to the car, where Agent
Flores paid Zuniga $1,000, the agreed-upon partial payment for the
one-ounce sample.
On the following day, Zuniga and his father, Salvador Zuniga
(Salvador), travelled from Houston to New Orleans to receive the
$4,000 balance owed for the one ounce of heroin and to negotiate
further heroin transactions, as well as the purchase of firearms.
Zuniga and Salvador met with undercover agents of the DEA,
including Agent Flores, and of the Bureau of Alcohol, Tobacco and
Firearms (ATF).2 The agents paid Zuniga the $4,000 and showed him
semi- and fully-automatic rifles which the agents purported to be
able to supply.
During this meeting, the agents agreed to purchase four ounces
more of heroin from Zuniga and arranged for the cooperating
individual to return to Houston to pick up the heroin from Marta,
Zuniga.
2
The ATF agents were involved in the firearms aspect of the
investigation.
3
at Zuniga's apartment. Zuniga telephoned his wife from New Orleans
to tell her that the cooperating individual would be coming to pick
up the "shoes."3 The agents agreed to pay Zuniga for the four
ounces of heroin once the cooperating individual had received the
heroin. The parties also arranged for an ATF special agent to
travel to Atlanta to obtain weapons requested by Zuniga.
On December 10, 1992, DEA Special Agent Randy Goodson, who was
the case agent for the Zuniga investigation, flew to Houston from
New Orleans, accompanied by the cooperating individual. The
cooperating individual telephoned Marta and told her he was in town
to pick up the "shoes." Under DEA surveillance, the cooperating
individual entered Zuniga's apartment and emerged approximately
five minutes later with a clear plastic bag which contained four
ounces of black tar heroin.4 While in Zuniga's apartment, the
cooperating individual telephoned Zuniga and Agent Flores in New
Orleans to inform them that he had received the four ounces of
heroin from Marta. Agent Goodson and the cooperating individual
3
The facts surrounding the cooperating individual's actions
in obtaining the four ounces of heroin are contested. For
example, in his testimony for the defense at Marta's trial,
Zuniga stated that he told Marta over the telephone that the
cooperating individual would be by to pick up a small plastic
container.
4
The government states in its brief, without reference to the
record, that the bag contained three and a half ounces of heroin.
Three and a half ounces is 99.225 grams. The presentence report
(PSR) prepared for Marta, however, set the amount at 107 grams,
or approximately four ounces, of heroin. Marta did not object to
the PSR's statement of the quantity of heroin in this bag as
being 107 grams, and the district court determined her offense
level to be 26, for offenses involving 100 to 400 grams of
heroin. She does not challenge her sentence on this basis on
appeal.
4
then returned to New Orleans.
Later on December 10, Zuniga and Salvador met with the
undercover agents and the cooperating individual in Jefferson
Parish, Louisiana, where they were shown various firearms. Zuniga
agreed to take several of the firearms; as payment for these
firearms, he allowed a $5,000 credit against the $20,000 owed for
the four ounces of heroin obtained by the cooperating individual.
Zuniga and Salvador helped load the firearms, which included two
machineguns, in the trunk of an automobile. The agents drove
Zuniga and Salvador to another location in Jefferson Parish,
ostensibly to pick up the $15,000 still owed for the four ounces of
heroin. Zuniga and Salvador were then arrested.
On February 17, 1993, a grand jury returned a superseding
indictment charging Zuniga, Marta, and Salvador with conspiracy to
distribute heroin (count one) and distribution of heroin (count
two), in violation of 21 U.S.C. §§ 846, 841(a)(1). In addition,
Zuniga and Salvador were charged with two firearms offenses: using
and carrying firearms and machineguns during and in relation to a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (count
three), and possession of machineguns in violation of 18 U.S.C. §
922(o)(1) (count four).
Zuniga pleaded guilty to all four counts and was sentenced to
concurrent terms of seventy-eight months imprisonment on each of
the conspiracy, distribution, and firearms possession counts. The
district court imposed a consecutive term of thirty-years
imprisonment on count three, for use of a machinegun during and in
relation to a drug trafficking offense.
5
Marta was tried and acquitted of the conspiracy charge, but
the jury convicted her of knowing and intentional distribution of
heroin, as charged in count two of the superseding indictment. The
district court sentenced her to sixty-five months imprisonment and
three years supervised release.
Both defendants filed timely notices of appeal.5 We have
consolidated their appeals and now affirm.
Discussion
I. Zuniga's Appeal
On appeal, Zuniga's sole challenge is to his conviction under
18 U.S.C. § 924(c)(1), count three of the superseding indictment.
This section enumerates the penalties faced by a defendant who
"during and in relation to any . . . drug trafficking crime . . .,
uses or carries a firearm."6 The government must make two
showings: (1) that Zuniga used or carried a firearm and (2) that
he did so during and in relation to a drug trafficking crime.
Zuniga's primary contention is that, at the time of his conduct,
bartering drugs for weapons did not constitute "use" of a weapon
within the context of section 924(c)(1).
The government contends that Zuniga has waived this issue
5
Salvador pleaded guilty to a superseding bill of information
charging him with misprision of the machinegun possession charge.
He is not a party to this appeal.
6
Zuniga received a term of thirty years imprisonment on count
three because two of the firearms received as partial payment for
the heroin were fully automatic assault rifles, or machineguns,
which carry a higher penalty. 18 U.S.C. § 924(c)(1). The term
"machinegun" is defined as "any weapon which shoots, is designed
to shoot, or can be readily restored to shoot, automatically more
than one shot, without manual reloading, by a single function of
the trigger." 26 U.S.C. § 5845(b); 18 U.S.C. § 921(a)(23).
6
because he did not raise it below in the context of his guilty
plea.7 Assuming, arguendo, that we may properly review this
contention, we find no merit in it.
Our court had not had opportunity to address this exact issue
prior to the time of Zuniga's conduct. We had, however, construed
section 924 broadly in other contexts. See, e.g., United States v.
Blake, 941 F.2d 334, 342 (5th Cir. 1991) ("The government may meet
its burden by showing that the weapon involved could have been used
to protect, facilitate, or have the potential of facilitating the
operation, and the presence of the weapon was in some way connected
with the drug trafficking.") (emphasis added), cert. denied, 113
S.Ct. 596 (1992). For more recent opinions of this Court
indicating the breadth of this provision, see United States v.
Singleton, No. 93-3479, slip op. 3258, 3261-63, 3262 n.17 (5th Cir.
Mar. 10, 1994); United States v. Guerrero, 5 F.3d 868, 870-873 (5th
Cir. 1993).
On June 1, 1993, a few days before Zuniga's sentencing, the
Supreme Court addressed this issue, holding that "using a firearm
in a guns-for-drugs trade may constitute `us[ing] a firearm' within
the meaning of § 924(c)(1)." Smith v. United States, 113 S.Ct.
7
Although Zuniga did not challenge count three of the
indictment on this ground, at his rearraignment, the district
court observed in passing that his offense conduct fell within
the confines of section 924(c)(1):
"The Government is not required to prove that you
actually fired or brandished the weapon in order to
prove use as that term is used herinabove [sic]. In
fact, the term use is broad enough to cover the
situation alleged hereinSQthat is, that the guns were
used as a medium of exchange in a trade for drugs."
7
2050, 2058 (1993). In Smith, the petitioner owned a fully
automatic MAC-10 firearm, which he agreed to trade to an undercover
officer for two ounces of cocaine. The officer indicated that he
would try to obtain the cocaine; he left to arrange the
petitioner's arrest. The contemplated exchange never occurred,
however, because, before the officer's return, the petitioner left
his motel room and was arrested following a high-speed chase.
The Court affirmed the petitioner's conviction, holding that
"[b]oth a firearm's use as a weapon and its use as an item of
barter fall within the plain language of § 924(c)(1), so long as
the use occurs during and in relation to a drug trafficking offense
. . . ." Id. at 2060.8 The Court observed that its holding was in
line with Congress's intent to decrease the possibility of violence
and death posed by the presence of firearms during drug offenses.
"The fact that a gun is treated momentarily as an item of commerce
does not render it inert or deprive it of destructive capability.
Rather, as experience demonstrates, it can be converted
instantaneously from currency to cannon." Id.
Zuniga attempts to avoid the ruling in Smith, arguing that
application of that ruling to his 1992 conduct would implicate ex
post facto considerations. The Due Process Clause of the Fifth
8
In so holding, the Court relied in part upon the language of
18 U.S.C. § 924(d), subsection (1) of which provides that any
"firearm or ammunition intended to be used" in the offenses
listed in section 924(d)(3) is subject to seizure or forfeiture.
The Court observed that, while section 924(d)(3) does list
several offense in which firearms might be used as weapons, the
section includes other offenses in which firearms are items of
commerce, such as the interstate transport of prohibited
firearms. See Smith, 113 S.Ct. at 2057.
8
Amendment protects a defendant from retroactive application of
unforeseeable judicial enlargement of criminal statutes. Marks v.
United States, 97 S.Ct. 990, 993 (1977). The Court's decision in
Smith was not unforeseeable, however, because it resolved a
conflict among the Courts of Appeals on this issue which existed at
the time of Zuniga's offense.
In April 1992, in its consideration of the Smith case, the
Eleventh Circuit concluded that trading guns for drugs satisfied
section 924(c)(1)'s requirement that the firearm be used during and
in relation to a drug trafficking offense. United States v. Smith,
957 F.2d 835, 836-7 (11th Cir. 1992), aff'd, 113 S.Ct. 2050 (1993).
Also in April 1992, the District of Columbia Circuit reached the
same conclusion in United States v. Harris, 959 F.2d 246, 261-62
(D.C. Cir.), cert. denied, 113 S.Ct. 362, 364 (1992). These cases
expressly disagreed with a prior decision of the Ninth Circuit, in
which that court reversed a defendant's conviction under section
924(c)(1), holding that an attempt to trade a firearm for ephedrine
to be used in manufacturing methamphetamine did not fall within the
confines of that statute. United States v. Phelps, 877 F.2d 28,
29-31 (9th Cir. 1989).
Where a split exists among the circuits, it is reasonably
foreseeable that the Supreme Court may resolve that conflict
adversely to the defendant. United States v. Rodgers, 104 S.Ct.
1942, 1949 (1984) ("any argument by respondent against retroactive
application to him of our present decision, even if he could
establish reliance upon [an earlier Eighth Circuit] decision, would
be unavailing since the existence of conflicting cases from other
9
Courts of Appeals made review of that issue by this Court and
decision against the position of the respondent reasonably
foreseeable"). At the time of his conduct, in December 1992,
Zuniga could reasonably have foreseen that the Supreme Court would
address the conflict among the Courts of Appeals concerning the
interpretation of section 924(c)(1) in the present context and
resolve the issue, as it did in Smith, adversely to him.
Therefore, application of the rule established in Smith to Zuniga's
conduct does not violate the Fifth Amendment.
Zuniga also contends that, even if the bartering of drugs for
firearms constituted "use" for purposes of section 924(c)(1), he
did not so use the firearms during and in relation to a drug
trafficking crime. He bases his argument on a narrow view of "drug
trafficking crime," arguing that the exchange of drugs for guns was
independent of the heroin distribution crime because each
transaction was separate: the first sale of one ounce of heroin to
Agent Flores in Houston, the delivery two days later of the four
ounces of heroin to the cooperating individual in Houston, and the
inspection and purchase of the guns in New Orleans.
This contention ignores the conspiratorial aspect of this
offense, as well as the obvious interrelation of the different
events. The payment for the one ounce of heroin was made in two
stages, $1,000 at the time of delivery in Houston, and $4,000 the
next day in New Orleans. The payment of the balance occurred at a
meeting during which undercover agents produced firearms for
Zuniga's inspection and negotiated with him the delivery of, and
payment for, the remaining four ounces of heroin. Moreover, Zuniga
10
accepted the firearms as partial payment for the four ounces of
heroin.
Far from being a separate crime, the drugs-for-guns trade
occurred as part of, or "during," the conspiracy to distribute
heroin. See Smith, 113 S.Ct. at 2058 ("There can be no doubt that
the gun-for-drugs trade was proposed during and in furtherance of
th[e] interstate drug conspiracy."). Furthermore, the trade was
"in relation to" the drug trafficking crime. As in Smith, the
presence of the firearms was not incidental, but rather an
essential part of the negotiations. Id. at 2059 ("On the
contrary,`[f]ar more than [in] the ordinary case' under §
924(c)(1), in which the gun merely facilitates the offense by
providing a means of protection or intimidation, here `the gun . .
. was an integral part of the transaction.'") (quoting United
States v. Phelps, 895 F.2d 1281, 1283 (9th Cir. 1990) (Kozinski,
J., dissenting from denial of rehearing en banc)).
Finally, in the present setting we do not regard Smith as
distinguishable on the basis that here the defendant owned the
drugs and was bartering them for the firearms, while in Smith the
defendant owned the firearm and was bartering it for the drugs.
We affirm Zuniga's conviction and sentence under 18 U.S.C. §
924(c)(1).
II. Marta's Appeal
Marta challenges her conviction and her sentence, the former
on the ground that the evidence was insufficient to support her
conviction, and the latter on the theory that she was entitled to
a downward adjustment to her offense level for her role as an
11
allegedly minor participant in the offense.
A. Sufficiency of the Evidence9
Upon a claim of insufficient evidence to support a conviction,
we review the evidence, whether direct or circumstantial, and all
the inferences reasonably drawn from it, in the light most
favorable to the verdict. United States v. Salazar, 958 F.2d 1285,
1290-1291 (5th Cir.), cert. denied, 113 S.Ct. 185 (1992). We must
affirm the conviction if we determine that any rational fact finder
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979).
Marta's challenge to the evidence underlying her conviction
turns on a credibility issue, a choice between her version of the
events at her apartment on December 10 or that of the cooperating
individual. She contends that she did not understand the
cooperating individual's reference to "shoes" over the telephone.
Although she did not know the cooperating individual well, she let
him into the apartment because she believed he was a friend of her
husband. According to her account of the facts, the cooperating
individual asked permission to use the telephone, which he took to
the bedroom to make his call. When he emerged, he was talking
about "sausage and stuff like that," which Marta did not
understand. Upon his request, she handed him an empty, plastic,
sandwich-type bag before he left the apartment.
9
Although defense counsel for Marta moved for judgment of
acquittal at the close of the government's case, he did not renew
this motion at the close of all the evidence. However, even had
the proper motions been made, the evidence would have been amply
sufficient, as demonstrated in the text.
12
The cooperating individual, however, testified that he told
her, when he telephoned to let her know he was in Houston, that he
would pick up the "shoes," without further explanation, and that
she knew why he was there. When he arrived at the apartment, he
again told her he was there to pick up the "shoes," whereupon she
handed him a plastic bag. The plastic bag contained four ounces of
black tar heroin when she handed it to him. Before leaving the
apartment, the cooperating individual called Zuniga in New Orleans
to tell him Marta had given him the "shoes."
Although both versions may be plausible, it was within the
sole province of the jury as the fact finder to decide the
credibility of the witnesses and to choose among reasonable
constructions of evidence. United States v. Garza, 990 F.2d 171
(5th Cir.), cert. denied, 114 S.Ct. 332 (1993). We will not second
guess the jury in its choice of which witnesses to believe. United
States v. Jones, 839 F.2d 1041, 1047 (5th Cir.), cert. denied, 108
S.Ct. 1999 (1988).
Viewing the evidence in the light most favorable to the
verdict, a reasonable jury presented with both versions of what
transpired between Marta and the cooperating individual could have
chosen to believe the cooperating individual and thus found, beyond
a reasonable doubt, that she knowingly and intentionally
distributed the heroin to the cooperating individual.
We conclude that the government presented sufficient evidence
to support Marta's conviction for distribution of heroin.
13
B. Role in the Offense
Marta next contends that she was a minor participant in the
criminal activity, and therefore, the district court should have
accorded her a two-level downward adjustment to her base offense
level, pursuant to U.S.S.G. § 3B1.2.10 She preserved this issue for
appeal with her objection to the PSR on this ground. The district
court overruled her objection. Marta was not convicted of the
conspiracy count, and the court did not attribute to her, for
sentencing purposes, any conduct other than her role of delivering
the four ounces of heroin to the cooperating individual.
We will uphold a sentence imposed under the Sentencing
Guidelines so long as it is the result of a correct application of
the Guidelines to factual findings which are not clearly erroneous.
United States v. Alfaro, 919 F.2d 962, 964 (5th Cir. 1990). We
review determinations of legal principles de novo and factual
findings for clear error. United States v. Mourning, 914 F.2d 699,
704 (5th Cir. 1990). A factual finding is not clearly erroneous if
it is plausible in light of the record read as a whole. United
States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991). The
determination of a defendant's role in an offense is factual in
nature, subject to review for clear error. United States v.
10
Section 3B1.2(b) allows a two-level reduction in an offense
level if the defendant was a minor participant in the criminal
activity. The commentary to this section defines a minor
participant as "any participant who is less culpable than most
other participants, but whose role could not be described as
minimal." U.S.S.G. § 3B1.2, comment. (n.3). A minimal
participant is one who is "plainly among the least culpable of
those involved in the conduct of a group," such as one who
offloads part of a single shipment of marihuana in a large
smuggling operation. Id. at nn. 1-2.
14
Palomo, 998 F.2d 253, 257 (5th Cir.), cert. denied, 114 S.Ct. 358
(1993).
The district court was not required to grant Marta the two-
level reduction merely because she was less culpable than her
codefendants. The commentary to section 3B1.2 makes clear that a
downward adjustment under its provisions is generally appropriate
only where the defendant was "substantially less culpable than the
average participant." U.S.S.G. § 3B1.2, comment. (backg'd); United
States v. Gadison, 8 F.3d 186, 197 (5th Cir. 1993). Marta bears
the burden of proving, by a preponderance of the evidence, her
minor role in the offense. United States v. Brown, 7 F.3d 1155,
1160 n.2 (5th Cir. 1993).
The jury, in convicting her of distribution of heroin,
rejected her testimony, in which she disclaimed any knowledge of
the contents of the plastic bag, her husband's illegal activities,
or the use of the term "shoes" to signify heroin. The district
court likewise found her version of the disputed events to be less
than credible.11 We agree. Her role in delivering the four ounces
of heroin to the cooperating individual was not unimportant. She
11
At Marta's sentencing hearing, the district court stated:
"As to [Marta's role in the offense], the Court can
hardly characterize the defendant's role in the heroin
conspiracy as minor. In fact, she and her husband
apparently worked as a team, Marta handling the drug
handoff on the homefront in Houston; while her husband,
Juan, contemporaneously handled the related gun
transaction in New Orleans. Defense counsel's
statement that this defendant was not involved in any
transaction with the confidential informant is simply
inaccurate and belied by the confidential informant's
credible testimony at trial. Accordingly, the Court is
of the opinion that no revision is appropriate."
15
was entrusted with custody of the four ounces of heroin, and she
arranged to be available at the apartment to receive the
cooperating individual's telephone call and to complete the actual
delivery. Furthermore, her acquittal of the conspiracy charge does
not affect the importance of her actions in the distribution of the
heroin or require the district court to accept her protestations of
ignorance and noninvolvement.
The district court's determination that Marta had not carried
her burden below to show that she was substantially less culpable
than an average participant, and thus was not entitled to the
requested downward adjustment, is not clearly erroneous.
Conclusion
For the reasons discussed above, the convictions and sentences
of Juan Jose Zuniga-Hernandez and his wife, Marta Alicia Zuniga,
are
AFFIRMED.
16