United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 2, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40468
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE VALENCIA FARIAS; ADRIAN VALENCIA FARIAS,
Defendants-Appellants.
______________________
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CR-50038-1
______________________
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury convicted defendants, brothers Jorge and Adrian Farias,
of conspiracy to manufacture and distribute illegal drugs. On
appeal, Jorge argues that a prior plea agreement should have
precluded his prosecution. Jorge and Adrian both argue
insufficient evidence and improper sentencing. We AFFIRM the
convictions and sentences.
I
On September 18, 2002, Jorge Farias drove an associate named
Nadim Safdar and two other men to Lewisville, Texas to collect a
drug debt. While Safdar tried to collect from the customer inside
the customer’s house, Jorge and the other men, waiting outside in
the car, blew the horn and yelled. When Safdar returned to the
car, Lewisville police officers arrived, responding to a call that
people were hollering in the street. Noticing that the car was
parked the wrong way and the smell of burning marijuana, the
officers asked the men to exit the car while they searched it.
The officers saw, on the floorboard of the driver’s side,
where Jorge had been sitting, a pair of brown gloves with the open
ends back-to-back. Picking up the gloves, they found a semi-
automatic pistol hidden inside. They arrested Jorge for unlawfully
carrying the gun and, while searching the car incident to that
arrest, found drug distribution paraphernalia and about 100 grams
of methamphetamine.1
While Jorge was in Denton County Jail, a jail officer called
the INS and reported Jorge’s arrest. The INS investigated and, on
December 11, 2002, a federal grand jury in the Eastern District of
Texas indicted Jorge for illegal reentry after removal. On January
29, 2003, Jorge plead guilty pursuant to a plea agreement
containing the following clauses:
4. [Jorge agrees to]: “fully, completely and honestly
cooperate with the United States in its ongoing
investigation by giving interviews to [the INS] and
testimony before the grand jury and during the trial of
this or any related investigation.”
1
Jorge eventually plead guilty in state court, in July 2003, to a
possession with intent to distribute charge stemming from this incident and was
sentenced to two years imprisonment.
2
9. [The Government agrees not to:] “charge [Jorge] with
any other criminal violations concerning activities
committed prior to the date of this agreement which the
Defendant makes known to the United States and which do
not involve crimes of violence or Title 26 offenses.
11. [Both parties agree that:] “this agreement
contemplates the full and honest cooperation of [Jorge]
at all times....”
13. [Both parties agree that:] “each party will be bound
by the agreement only if all conditions set forth herein
are met.”
Meanwhile, Jorge’s brother Adrian was also dealing drugs.
Denton, Texas police officers arrested him on March 16, 2000 during
a sting, after which he was found with 897.67 grams of
methamphetamine mixture, and Dallas police officers arrested him on
November 18, 2003 for public intoxication, after which he was found
with heroin, in a pill bottle similar to that used by other family
members dealing drugs.
Throughout this time, and through several stings from 1999 to
2003, the Government was piecing together an extensive drug
distribution conspiracy involving defendants and various spouses,
girlfriends, and other relatives and headed by older brother Jesus
(“Chuy”). On October 14, 2004, a federal grand jury in the Eastern
District of Texas indicted Jorge, Adrian, and several other co-
defendants for conspiracy with intent to manufacture and distribute
amphetamine, methamphetamine, heroin, cocaine, and marijuana from
1999 through October 14, 2004. Citing the September 28, 2002
incident, it also indicted Jorge under 18 U.S.C. § 924(c)(1) for
using or carrying a firearm during a drug trafficking crime.
3
Jorge moved to dismiss the conspiracy count, arguing that his
earlier plea agreement precluded it. The district court denied the
motion. A jury found both defendants guilty of conspiracy but
acquitted Jorge of the gun charge. The court sentenced Adrian to
120 months and Jorge to 121 months after denying Jorge’s request
for an adjustment for acceptance of responsibility and finding that
he possessed a gun during the underlying conspiracy offense.
II
Jorge notes that the Government must have known of the
September 18 drug arrest at the time of his plea agreement because
that arrest led to the INS investigation, immigration indictment,
and eventual plea. Therefore, he contends, the Government knew at
that time of the “offenses subsequently charged against [him]” in
this case, hence paragraph nine of the agreement precludes his
prosecution for conspiracy. He also vaguely asserts that double
jeopardy precludes that prosecution.2
We review de novo whether the Government breached a plea
agreement, accepting the district court’s factual findings unless
clearly erroneous.3 We construe the agreement like a contract,
seeking to determine the defendant’s “reasonable understanding” of
2
He does not develop this claim. In any event, double jeopardy has no
application here — the Government did not prosecute Jorge for the same crime
twice.
3
See United States v. Davis, 393 F.3d 540, 546 (5th Cir. 2004). We also
review de novo the denial of a motion to dismiss an indictment, see United States
v. Wilson, 249 F.3d 366, 371 (5th Cir. 2001), the vehicle for the plea agreement
claim here.
4
the agreement and construing ambiguity against the Government.4
Jorge’s argument fails because the plea agreement precludes
prosecution only for crimes “ma[d]e known” by Jorge, and Jorge did
not “make known” the conspiracy. The Government discovered it
through independent investigation. And some of the individual acts
proving the conspiracy relied on by the Government at trial
occurred after the plea agreement. Of course the Government can
grant transactional immunity,5 it did not do so here. We find no
ambiguity: Jorge’s plea agreement did not preclude his later
indictment for conspiracy.
III
Jorge and Adrian both argue here the sufficiency of the
evidence and at trial moved for judgment of acquittal at the close
4
Plea agreements are contractual. See, e.g., Hentz v. Hargett, 71 F.3d
1169, 1173 (5th Cir. 1996). The Government must fulfill its end of the bargain,
see, e.g., Santobello v. New York, 404 U.S. 257, 262 (1971), even if the
sentencing judge expressly disclaims reliance on any promise by the Government,
see, e.g., United States v. Grandinetti, 564 F.2d 723, 727 (5th Cir. 1977), the
Government actor breaching the agreement is unaware of the agreement, see, e.g.,
United States v. Saling, 205 F.3d 764, 768 (5th Cir. 2000), or the breach is
otherwise inadvertent, see, e.g., United States v. Ewing, 480 F.2d 1141, 1143
(5th Cir. 1973). When construing an agreement, courts should look to the nature
of the agreement and the defendant’s “reasonable understanding” of it, see, e.g.,
United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993), and any ambiguity
must be resolved against the Government, see, e.g., United States v. Somner, 127
F.3d 405, 408 (5th Cir. 1997). If the Government breaches an agreement, an
appellate court can vacate the conviction, remand for resentencing, or remand for
specific performance of the plea. See Petition of Geisser, 554 F.2d 698, 706
(5th Cir. 1977).
Jorge cites some interesting applications of the above rules, see, e.g.,
United States v. Randolph, 230 F.3d 243 (6th Cir. 2000) (where federal
prosecutors in Texas limited plea agreement to their district and then informed
their Tennessee counterparts of defendant’s actions, enforcing plea agreement in
Tennessee), these peculiar cases are irrelevant here.
5
See United States v. Castaneda, 162 F.3d 832, 839 (5th Cir. 1998).
5
of all evidence. Hence we “view[] the evidence in the light most
favorable to the prosecution,” asking whether “any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt.”6
To prove conspiracy, the evidence must show: 1) an agreement
between the defendant and one or more people to violate the drug
laws; 2) that the defendant knew of the conspiracy and intended to
join it; and 3) that the defendant voluntarily participated in the
conspiracy.7 “An express agreement is not required; a tacit,
mutual agreement with common purpose, design, and understanding
will suffice.”8 Because secrecy is the norm, each element may be
established by circumstantial evidence.9
Jorge summarily attacks the proof on each element, arguing
that the Government showed only “mere association” with the alleged
co-conspirators and “mere presence” around drug activity, not an
agreement, no knowledge of a conspiracy or its objective, and no
voluntary participation. He does not mention the Government’s
evidence, aside from stating that “[t]he [G]overnment’s main
witness indicated that she did not know [Jorge].” He focuses the
rest of his argument on “interdependence,” citing various Tenth
6
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
7
See United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005).
8
See id.
9
See id.
6
Circuit cases requiring that a co-conspirator rely on the conduct
of others and facilitate the endeavors of other co-conspirators or
the venture as a whole. Essentially, he argues that a bunch of
drug dealers with the same desire operating in the same area are
not, without more, co-conspirators, even if they sell to or buy
from the same people — in the vernacular, it is a rimless
conspiracy.
Sufficient evidence supported the verdict. In addition to
damning testimony by several of Jorge’s acquaintances, describing,
for example, how Jorge supplied drugs to Miguel Nava after Adrian
stopped doing so and how Chuy helped collect Safdar’s debt to Jorge
after Jorge was jailed, the Government introduced jailhouse tapes
revealing that Jorge, Adrian, Chuy and others discussed drug-debt
collection attempts, territory, strategies to avoid police, price
per ounce for methamphetamine, how to cut methamphetamine with
cheaper substances, and a specific drug deal involving Adrian and
Chuy. Furthermore, although we do not explicitly require
“interdependence” in this circuit, there was plenty of evidence of
“interdependence” here. In sum, a jury could easily find that
Jorge was more than just a lone dealer operating in the same area
as other dealers.
Adrian fares no better. Most of his argument parallels
Jorge’s and fails for the same reason. There is one wrinkle. The
conspiracy spanned his eighteenth birthday, and the Government must
show that the alleged conspirator ratified his involvement in the
7
conspiracy after that birthday.10 Adrian argues that his
conviction, like his eventual sentence, rests solely on his March
16, 2000 arrest, which occurred four days before his eighteenth
birthday. Although that arrest was the focus of the case against
Adrian, the Government presented much evidence that Adrian
conspired after that arrest, including testimony that Adrian
discussed drug sales on the telephone in Chuy’s house in 2003, sold
drugs as part of the conspiracy in 2003, discussed sales and debt
collection with Chuy while Chuy was in jail in 2002 and 2003, and
was arrested with heroin, in pill bottles similar to that used by
co-conspirators, in 2003. Adrian attacks the weight and
credibility of much of this evidence, but such attacks are improper
on sufficiency review.11 In short, the evidence shows that Adrian,
like his brother, participated in an extensive conspiracy through
at least 2003.
IV
Both defendants objected to their PSRs and sentences, renewing
those objections here. We review de novo the district court’s
interpretation of the Guidelines, although we review attending
factual determinations for clear error and the court’s refusal to
find acceptance of responsibility even more deferentially,
10
See United States v. Tolliver, 61 F.3d 1189, 1200 (5th Cir. 1995).
11
See, e.g., United States v. Harris, 420 F.3d 467, 473 (5th Cir. 2005).
8
disturbing it only if it is “without foundation.”12 Post-Booker,
we ultimately review the sentences for reasonableness, although a
sentence within a properly calculated Guidelines range is
presumptively reasonable.13
A
Jorge attacks his sentence on two fronts. He contends first
that the district court erred in enhancing his sentence under
U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon during a
drug offense, for which it cited the gun found in Jorge’s car
during his September 18, 2002 arrest. Jorge contends that the
court erred in using the preponderance of the evidence standard
instead of the beyond a reasonable doubt standard because the jury
acquitted him of using or carrying the gun during that arrest.
Acknowledging that the Supreme Court, in the pre-Booker case United
States v. Watts, allowed district courts to find by a preponderance
of the evidence facts contradicting jury findings,14 he argues that
Booker implicitly overruled Watts, citing a few district courts
which have so held or hinted.15 In any event, Jorge argues, there
12
United States v. Chavez, 119 F.3d 342, 348 (5th Cir. 1997); United
States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995).
13
See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
14
519 U.S. 148, 157 (1997).
15
See United States v. Pimental, 367 F. Supp. 2d 143, 145 (D. Mass. 2005);
United States v. Coleman, 370 F. Supp. 2d 661, 668 (S.D. Ohio 2005); United
States v. Gray, 362 F. Supp. 2d 714, 720 (S.D.W. Va. 2005); United States v.
Huerta-Rodriguez, 355 F. Supp. 2d 1019, 1027 (D. Neb. 2005).
9
is insufficient evidence under either standard because there is
nothing tying him to the gun other than its presence on the floor
of the car where he had been sitting, which is insufficient to show
the requisite temporal and spatial proximity between him, the gun,
and the crime.16
Watts survives Booker, and district courts must still
determine sentencing facts by a preponderance of the evidence, even
facts contradicting jury findings.17 Applying that standard, the
district court did not clearly err because we have held that the
enhancement should apply if “the weapon was found in the same
location where the drugs or drug paraphernalia [were] stored or
where part of the transaction occurred”18 unless “the defendant
establishes that it was clearly improbable that the weapon was
connected with the offense.”19 Here, the gun was found underneath
the seat where Jorge had been sitting, near methamphetamine in the
trunk, on the way to what one of Jorge’s passengers later testified
was a drug debt collection, and Jorge offered no evidence to rebut
16
See United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001).
17
See United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006); United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005) (“The sentencing judge is
entitled to find by a preponderance of the evidence all facts relevant to the
determination of a Guideline sentencing range and all facts relevant to the
determination of a non-Guideline sentence.”)
18
United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001).
19
United States v. Jacquinot, 258 F.3d 423, 430-31 (5th Cir. 2001) (citing
U.S.S.G. § 2D1.1, cmt. 3).
10
the resulting inference.20
Jorge argues second that the district court erred in refusing
to adjust his sentence downward for acceptance of responsibility
after noting that he contested guilt by going to trial. Quoting a
note to the Guidelines, Jorge urges that going to trial does not
automatically preclude the adjustment because there are “rare
situations” where a defendant, by going to trial not to contest
factual guilt, but to argue an unrelated issue, “may clearly
demonstrate an acceptance of responsibility...even though he [goes
to trial.]”21 His case presents such a situation, he argues,
because he went to trial only to preserve his claim that his prior
plea agreement precluded prosecution here. Indeed, he contends, he
effectively admitted factual guilt by pleading guilty in state
court, before he was even indicted here, to a possession with
intent to distribute count stemming from the September 18 incident.
Jorge’s case is not one of those “rare situations” because
Jorge never admitted factual guilt of the charged crime, unlike the
defendants in the cases he cites who went to trial only to pursue
an entrapment defense, challenge venue, or test the Government’s
ability to prove its case after the defendant entered an Alford
20
Jorge suggests that the Government bears the burden of establishing that
a connection between the gun and the offense was not clearly improbable, but
Jacquinot clearly places the burden on Jorge. See id. He also argues, citing
United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir. 1994), that the Government
failed to prove his knowledge of the gun. We do not require such proof.
21
U.S.S.G. § 3E1.1, cmt. 2.
11
plea.22 In such cases the defendants did not go to trial on factual
guilt; Jorge did. Moreover, Jorge did not effectively admit guilt
by pleading guilty in the state case because the state charge, more
easily proven, had significantly different elements than the
conspiracy charge here. Finally, Jorge did not go to trial to
preserve his plea agreement argument — after the court ruled on
that issue, he could have asked for a conditional plea allowing him
to appeal that ruling, a request he never made.23 The court’s
refusal to find acceptance of responsibility was not without
foundation.
B
The jury found Adrian responsible for 897.67 grams of
methamphetamine mixture. This, combined with his criminal history,
resulted in a Guidelines range of 121 to 151 months. In addition,
his general statute of conviction, 21 U.S.C. § 841, provided
mandatory minimums: 10 years for 50 or more grams of
methamphetamine or 500 or more grams of methamphetamine mixture (§
22
See United States v. Fleener, 900 F.2d 914, 918 (6th Cir. 1990)
(entrapment); United States v. Fells, 78 F.3d 168, 172 (5th Cir. 1990) (venue);
United States v. Tucker, 925 F.2d 990, 992-93 (6th Cir. 1991) (Alford plea).
23
See United States v. Washington, 340 F.3d 222, 230 (5th Cir. 2003) (“In
the absence of a conditional plea, the defendant would have to choose between
trying to suppress the evidence and receiving credit for acceptance of
responsibility.” (emphasis added)); United States v. Solis, 299 F.3d 420, 458
(5th Cir. 2002) (affirming denial of adjustment where defendant argued that he
had been willing to plead guilty, but wanted to challenge pretrial motions, had
plead guilty in other proceedings to several similar charges, and had admitted
essential elements of crime, yet went to trial); United States v. Williams, 74
F.3d 654, 657 (5th Cir. 1996) (adjustment might have been proper if defendant had
informed the government that he would be pleading guilty if suppression motion
was denied, rather than plead guilty on the day of trial).
12
841(b)(1)(A)), and 5 years for 5 to 50 grams of methamphetamine or
50 to 500 grams of methamphetamine mixture (§ 841(b)(1)(B)). The
court sentenced Adrian to 120 months, below the Guidelines range,
citing the 18 U.S.C. § 3553 reasonableness factors. It did not
specifically mention a mandatory minimum. Adrian appeals, arguing
that the court improperly thought itself restricted by the 10-year
minimum and would have sentenced him lower if it knew it had the
discretion to do so.24
Adrian argues that the mixture, because it was 5% pure,
contained only 44 grams of actual methamphetamine; under §
841(b)(1)(B), this actual amount yields only a 5-year minimum.
Conceding that a note to the Guidelines directs courts to use the
greater offense level resulting from either the actual or mixture
amounts when calculating the Guidelines sentence,25 he argues that
the post-Booker advisory Guidelines now allow a court to choose
either mandatory minimum, since the statute itself provides no
direction and the Guidelines are advisory. In sum, Adrian argues,
the court failed to realize it had discretion to choose between the
5-year and 10-year minimums; given the discretion, it would have
chosen the former and sentenced him somewhere between 5 and 10
years.
24
He concedes that the court never pinned its 120-month sentence on its
belief in the applicability of the 10-year mandatory minimum, but he argues that
the implication is clear. We agree, since otherwise the one month departure
(from 121 to 120 months) seems peculiar.
25
U.S.S.G. § 2D1.1, cmt. B.
13
Adrian does not argue that a judge has discretion under Booker
to sentence below a mandatory minimum, a proposition this and other
courts have rejected;26 rather, he argues that which mandatory
minimum applies is unclear, since § 841 itself does not specify
which measure to use — actual amount or mixture amount — when more
than one apply, and only the Guidelines, now advisory, provide
direction. Yet which minimum applies is not in dispute — the
indictment charged, and the jury found Adrian guilty of, §
841(b)(1)(A), not § 841 in general, triggering the ten-year
minimum. Adrian’s Booker argument confuses the mandatory minimums
with the Guidelines — while a sentencing judge has no discretion to
choose which minimum applies when a defendant is convicted of a
certain § 841 offense, he does have “discretion”27 to predicate the
Guidelines base offense level for that conviction on either of two
different measures of drugs, pure or mixture, regardless of which
§ 841 offense the defendant was convicted or what measure the
Government proved to get that conviction. But whatever result the
Guidelines yield, the sentence cannot be less than the mandatory
minimum. Because Adrian received the mandatory minimum, he has no
26
See United States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005);
United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005); United States v.
Vieth, 397 F.3d 615, 620 (8th Cir. 2005); United States v. Sepulveda-Rodriguez,
157 Fed. Appx. 765, 766 (5th Cir. 2005).
27
Of course, under the Guidelines, the sentencing judge has “discretion”
only to use the measure resulting in the higher offense level. And Booker does
not change that, since judges must still calculate the Guidelines range as they
always have; Booker simply imparts additional discretion afterwards. See Mares,
402 F.3d at 519.
14
argument on appeal.
AFFIRMED.
15