United States v. Cruz

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-50100

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

PATRICIO CRUZ, also known as Ticho,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (EP-99-CR-0972) July 18, 2001 Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Patricio Cruz pleaded guilty to one count of possession with

intent to distribute more than 100 kilograms of marijuana and to

one count of conspiracy to possess with intent to distribute more

than 100 kilograms of marijuana. Cruz was sentenced to two 108-

month prison terms, to be served concurrently, a five-year term of

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 supervised release, and a special assessment of $200. He timely

appealed his sentence. Finding that the amount of marijuana

attributed to him under the sentencing guidelines was based in part

on a confidential informant’s uncorroborated report, we vacate his

sentence and remand for resentencing.

I.

According to the factual basis provided by the government at

Cruz’s rearraignment, on February 2, 1999, the FBI received

information from a confidential source of information (SOI) that

Patricio Cruz and a person whose first name was “Angel” were

involved in a plan to ship a load of marijuana in a tractor-trailer

bearing a specific logo, which was parked in a K-Mart parking lot

in El Paso, Texas. The FBI confirmed that the specified vehicle

was at the K-Mart, and early in the morning of February 3, 1999,

after the vehicle left the parking lot, El Paso County sheriff’s

deputies stopped the vehicle upon observing it drifting onto the

shoulder of the road. As the officers approached the cab, they

noticed a strong marijuana odor emanating from the trailer. The

driver and a passenger gave consent to a search of the vehicle.

The officers found approximately 300 pounds of marijuana in large

bags under the sleeper mattress in the cab and more than 1,000

pounds of marijuana wrapped in cellophane and packaged in boxes

underneath wooden pallets in the trailer portion of the vehicle.

2 The total weight of marijuana seized by the officers on February 3

was 1,392 pounds (631.41 kilograms). The driver told the officers

that he was hired by Angel Tafoya, who was supposed to be following

the tractor-trailer in another vehicle accompanied by Cruz.

Tafoya was arrested on June 1, 1999, and admitted to the

officers that he hired the driver and passenger involved in the

February 3 seizure of marijuana. Tafoya also stated that Cruz was

involved in the conspiracy to transport the marijuana, and that he

was hired by Cruz to find the drivers and to accompany the load of

marijuana to Dallas. According to the government’s factual basis,

the passenger in the tractor-trailer was prepared to testify that

Cruz’s job was to coordinate the transportation of the marijuana,

i.e., locating a truck and drivers, arranging for lodging, and

providing return-transportation for all involved.

In response to the government’s proffered factual basis, Cruz

asserted that he thought that the only marijuana being transported

was the 300 pounds of marijuana found in the cab of the truck,

which he had helped load. Cruz argued that the different types of

packaging of the marijuana in the cab and the marijuana in the

trailer should support his assertion. After offering this

clarification to the factual basis, Cruz pleaded guilty to

possession with the intent to distribute more than 100 kilograms of

marijuana and conspiracy to possess with intent to distribute more

than 100 kilograms of marijuana.

The presentence report (PSR) issued after Cruz’s rearraignment

3 detailed the February 3 incident, including the full 1,392 pounds

seized from the trailer and cab of the tractor-trailer as relevant

conduct. The PSR also included in the amount of marijuana Cruz

should be responsible for as relevant conduct approximately 10,000

pounds (4,430.31 kilograms) of marijuana seized by the FBI at an El

Paso warehouse on April 13, 1999. According to the PSR, a

confidential SOI reported that Cruz made two trips to Mexico to

pick up $120,000 for transporting 10,000 pounds of marijuana to El

Paso. The PSR detailed no other evidence corroborating the SOI’s

report connecting Cruz to the 10,000 pounds seized on April 13.

The total marijuana attributed to Cruz in the PSR was 5,061

kilograms, for an offense level of 34 under the sentencing

guidelines. The PSR recommended a three-level reduction for

acceptance of responsibility; the resulting offense level of 31

carried a guideline range of imprisonment from 108 to 135 months.

Cruz objected to the PSR on the grounds that the marijuana

seized on April 13 should not be attributed to him, because the

allegation that he was involved with the transportation of the

10,000 pounds was based only on the uncorroborated and unreliable

report of an SOI who was not available for cross-examination, and

that he should be held accountable only for the 1,392 pounds seized

on February 3 for which he had been charged. Cruz also objected

that the PSR should have recommended a downward adjustment in his

offense level for his minor role in the offense because he “did

nothing more than help load 300 lbs. of marijuana and he found some

4 drivers for Tafoya.”

The government responded to the objection regarding the April

13 marijuana seizure by revealing more details of the SOI’s report:

that the SOI informed the FBI that Cruz and another member of the

conspiracy, after retrieving the money for the transportation of

the 10,000 pounds and after learning that the marijuana had been

subsequently seized, hid the $120,000 they had received. The

government did not, however, indicate that any details of the SOI’s

report linking Cruz to the 10,000 pounds of marijuana could be

corroborated by other evidence. Regarding the failure to recommend

a two-level downward departure for minor participation, the

government argued that Cruz’s own admission described his role as

more than a mere mule in the transportation of the marijuana. The

government pointed out that Cruz admitted that he coordinated the

transportation, hiring the truck and drivers and helping to load

300 pounds of the seized marijuana, which was a sufficiently large

role to make him as culpable as other defendants in transporting

the marijuana.

At the sentencing hearing, Cruz’s counsel again argued that,

because Cruz only helped load the 300 pounds found in the cab of

the tractor-trailer, his role was a minor one. He expressly

limited his objection regarding the 300 pounds of marijuana,

however, to the question of whether Cruz played a minor role in the

transportation of the marijuana: “[J]ust for the record, I’m not

objecting that he was only responsible for 300. We understand he’s

5 responsible for the entire amount. . . . As far as [Cruz’s]

knowledge and involvement with what was happening, and I was just

offering that to show that perhaps there is something to what he is

saying that he is a minor role.”

The district court overruled Cruz’s objections and sentenced

Cruz to the minimum imprisonment under the guideline range, 108

months, followed by 5 years’ supervised release, and a $200 special

assessment. Cruz timely appealed. On appeal, he argues that (1)

the 10,000 pounds of marijuana seized on April 13 should not be

included in the amount of drugs used for sentencing because its

inclusion was based on a confidential informant’s report that was

uncorroborated and had no other indicia of reliability; (2) he

should be held responsible only for the 300 pounds of marijuana

found in the cab of the tractor-trailer because he had no knowledge

of the 1,092 pounds of marijuana found in the trailer and could not

have reasonably anticipated that more marijuana was involved in the

smuggling conspiracy; and (3) the district court should have

applied the two-level downward departure to Cruz for having had a

minor role in the offense.

II.

A.

The district court’s sentencing determinations of drug

6 quantities and relevant conduct are factual determinations that we

review for clear error. United States v. Kelley, 140 F.3d 596, 609

(5th Cir. 1998) (citing United States v. Reyna, 130 F.3d 104, 112

(5th Cir. 1997); United States v. Wilson, 116 F.3d 1066 (5th Cir.

1997); United States v. Leal, 74 F.3d 600, 607 (5th Cir. 1996)).

“There must be an acceptable evidentiary basis for the court’s

factfindings at the sentencing hearing. The district court’s

findings are not clearly erroneous if they are plausible in light

of the record reviewed in its entirety.” Id. (citing United States

v. Narvaez, 38 F.3d 162, 166 (5th Cir. 1994)).

For purposes of sentencing, the district court may rely on any

relevant evidence “without regard to its admissibility under the

rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its

probable accuracy.” U.S.S.G. § 6A1.3; see also United States v.

Young, 981 F.2d 180, 185 (5th Cir. 1993). While the burden is on

the defendant to “demonstrat[e] that information the district court

relied on in sentencing is materially untrue,” Young, 981 F.2d at

185 (internal quotations omitted), when the defendant successfully

argues that the information relied on by the sentencing court is

not “reasonably reliable,” we cannot uphold the sentence. United

States v. Shacklett, 921 F.2d 580, 584-85 (5th Cir. 1991); see also

United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990)

(“[A]s [the defendant] presented no rebuttal evidence, the district

court had discretion to adopt the PSI’s facts without more specific

7 inquiry or explanation, provided that those facts had an adequate

evidentiary basis.”) (emphasis added).

A PSR generally bears sufficient indicia of reliability to be

considered as evidence by a sentencing judge when making factual

determinations, but unsupported and uncorroborated statements “do

not acquire the patina of reliability by mere inclusion in the

PSR.” United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir.

1998). The out-of-court declaration of a confidential informant

may be relied upon by the sentencing court when “there is good

cause for the nondisclosure of his identity and there is sufficient

corroboration by other means.” United States v. Rogers, 1 F.3d

341, 343 (5th Cir. 1993) (citing U.S.S.G. § 6A1.3).

In the present case, Cruz argues that the PSR indicates no

other evidence corroborating the SOI’s report that Cruz was

involved in a conspiracy to possess the 10,000 pounds of marijuana

seized on April 13. We agree. Throughout the sentencing

proceedings and on appeal, the government has indicated no further

evidence tending to corroborate the details of the SOI’s report.

Our review of the record reveals nothing that corroborates the

report of the SOI that Cruz received $120,000 for the

transportation of the marijuana seized on April 13 or that he

subsequently hid these proceeds. Unlike the evidence relating to

the marijuana seized on February 3, there is no evidence that the

SOI’s report was corroborated by further investigation or by

statements of witnesses or co-conspirators. Accordingly, we must

8 find that the district court clearly erred when it relied on the

PSR to include the 10,000 pounds of marijuana seized on April 13 in

its sentencing determination. See Narviz-Guerra, 148 F.3d at 537;

Shacklett, 921 F.2d at 584; United States v. Michael, 894 F.2d

1457, 1459-60 & 1459 n.1 (5th Cir. 1990).

This error was not harmless. See Narviz-Guerra, 148 F.3d at

537-38 (examining whether the sentencing error resulting from the

district court’s reliance on an insufficiently reliable PSR was

harmless by evaluating whether the error led to an increased

sentence); see also United States v. Misher, 99 F.3d 664, 671 (5th

Cir. 1996). The inclusion of the 10,000 pounds of marijuana seized

on April 13 increased Cruz’s base offense level to 34. If the

district court had limited the relevant conduct to the 1,392 pounds

of marijuana seized on February 3, Cruz’s offense level would have

been 28. U.S.S.G. § 2D1.1(c). After applying the three-level

reduction for acceptance of responsibility, the maximum

imprisonment Cruz could have been sentenced to under the lower

offense level would have been 71 months, significantly less time

than the 108 months he received.

B.

Cruz did not object before the sentencing court to the

inclusion of the full 1,392 pounds of marijuana seized on February

3 as relevant conduct. Cruz’s counsel expressly informed the

9 court that he was emphasizing his role in loading 300 pounds of

marijuana into the cab of the truck not as an objection to being

held responsible for the marijuana in the trailer, but strictly to

support his objection that he played a minor role in the

conspiracy. Because Cruz’s counsel expressly assented to being

held responsible for the full 1,392 pounds, he waived any objection

to the inclusion of the 1,092 pounds of marijuana found in the

trailer as relevant conduct, and we are precluded from reviewing

his argument on appeal that he should be held responsible only for

the 300 pounds seized from the cab of the tractor-trailer. United

States v. Olano, 507 U.S. 725, 732-33 (1993) (“The first limitation

on appellate authority under Rule 52(b) is that there indeed be an

‘error.’ Deviation from a legal rule is ‘error’ unless the rule

has been waived. . . . [W]aiver is the ‘intentional relinquishment

or abandonment of a known right.’”) (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938)).

C.

Cruz’s final argument on appeal is that the court erred in not

applying a two-level reduction to his offense level pursuant to

section 3B1.2 of the sentencing guidelines for minor participation.

A minor participant is defined as “any participant who is less

culpable than most other participants.” U.S.S.G. § 3B1.2,

Application Note 3. “Culpability is a determination requiring

10 sensitivity to a variety of factors.” United States v. Buenrostro,

868 F.2d 135, 138 (5th Cir. 1989). The defendant “bears the burden

of proving his minor role in the offense by a preponderance of the

evidence.” United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995)

(citing United States v. Zuniga, 18 F.3d 1254 (5th Cir. 1994)). The

minor participant downward adjustment is intended to be applied

infrequently “because most offenses are committed by participants

of roughly equal culpability.” Id. (citing United States v.

Allibhai, 939 F.2d 244, 254 (5th Cir. 1991)). Accordingly, the

sentencing court’s application of the minor participant sentencing

guideline is a “sophisticated factual determination” that we review

under the clear error standard. Buenrostro, 868 F.2d at 137.

Cruz argues that he was a minor participant because he was

neither the chief organizer of the drug smuggling operation nor the

owner of the marijuana. However, “[i]t is improper for a court to

award a minor participation adjustment simply because a defendant

does less than the other participants. Rather, the defendant must

do enough less so that he at best was peripheral to the advancement

of the illicit activity.” United States v. Thomas, 932 F.2d 1085,

1092 (5th Cir. 1991). Cruz admitted to hiring the drivers for the

tractor-trailer, personally helping to load the 300 pounds of

marijuana found in the cab of the tractor-trailer, and planning to

escort the load from El Paso to Dallas. Additionally, the

government presented statements by Tafoya and the passenger in the

tractor-trailer that Cruz was the coordinator of the transportation

11 of the marijuana, responsible for hiring Tafoya and the truck,

arranging for lodging for the drivers and the people in the escort

vehicle, and for the return transportation of the others involved

upon delivery of the marijuana to Dallas. His participation was

beyond that of a mere courier and was integral to advancement of

the illicit activity. See id.; see also Brown, 54 F.3d at 241;

United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir. 1989).

In light of Cruz’s admissions and the government’s evidence, the

sentencing court’s refusal to apply a reduction for minor

participation by Cruz was not clearly erroneous.

Conclusion

For the foregoing reasons, we VACATE the sentence of the

district court, and REMAND for resentencing. The district court

may hold a new sentencing hearing at which the government and the

defendant may introduce evidence relevant to Cruz’s involvement

with the marijuana seized on April 13, 1999.