United States v. Garza

Opinion

No. 99-50502 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50502 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

REYNALDO GARZA; J. GUADALUPE GUTIERREZ-SANCHEZ; JUAN GUTIERREZ-GUTIERREZ, also known as Carlos,

Defendants-Appellants.

-------------------- Appeals from the United States District Court for the Western District of Texas USDC No. A-98-CR-71-1-JN -------------------- April 12, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Reynaldo Garza and J. Guadalupe Gutierrez-Sanchez challenge

their convictions, and Juan Gutierrez-Gutierrez and Gutierrez-

Sanchez challenge the sentences imposed upon them after judgment

rendered pursuant to their jury-trial convictions for conspiracy to

possess with intent to distribute illegal narcotics and for the

substantive count of possession of cocaine with intent to

distribute.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-50502 -2-

Garza argues that the district court erred in denying his pre-

trial motion to suppress evidence of marijuana seized from his

residence in a search conducted pursuant to a warrant. Because

Garza challenges the sufficiency of the affidavit underlying the

warrant, and because the affidavit clearly contained sufficient

detail from which a reasonable officer could rely on it, Garza must

establish by a preponderance of the evidence that any

misrepresentations in the warrant were made “intentionally or with

reckless disregard for the truth.” United States v. Alvarez, 127

F.3d 372, 373 (5th Cir. 1997). Garza failed to produce evidence to

show bad faith by the affiants in securing the warrant, thus we

conclude that the district court did not err in denying Garza’s

pre-trial motion to suppress evidence seized pursuant to a search

warrant. See id.; see also United States v. Cherna, 184 F.3d 403,

407-08 (5th Cir.), petition for cert. filed, 68 USLW 3391 (Dec. 7,

1999).

Garza also argues that the district court abused its

discretion at trial by overruling objections, made pursuant to

FED. R. EVID. 403 and 404(b), to the admission of (1) testimony of

Government informant Mark Edward Korn that the witness and Garza

had previously been engaged in the drug business together; (2)

Korn’s testimony that Garza had been running drugs to Chicago; (3)

Korn’s testimony that Garza was working with a large drug cartel

located in Mexico; (4) tape recorded conversations in which Garza

stated that he had threatened a woman who stored drugs for him; (5)

tape recorded conversations in which Garza described transporting

large amounts of contraband; and (6) evidence that marijuana was No. 99-50502 -3-

seized from Garza’s residence after his arrest. The marijuana

found at Garza’s residence, testimony regarding the cartel with

which he worked, and tape-recorded conversations regarding

transportation of contraband and threats made against members of

his organization were all relevant and intrinsic to the charges for

which he was tried. See United States v. Cortinas, 142 F.3d 242,

248 (5th Cir. 1998); United States v. Maceo, 947 F.2d 1191, 1198-99

(5th Cir. 1991). Korn’s testimony that Garza dealt drugs with Korn

in the past, long before the events of the instant conspiracy, were

relevant to show his confidential relationship with Korn. See

United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992). To the

extent the testimony concerned an extrinsic crime, it was

nonetheless admissible as it was relevant to issues other than

Garza’s character, and its probative value outweighed its

prejudicial effect. See United States v. Misher, 99 F.3d 664, 670

(5th Cir. 1996); United States v. Beechum, 582 F.2d 898, 911 (5th

Cir. 1978) (en banc).

The evidence, with all credibility determinations and

reasonable inferences resolved in favor of the verdict, was

sufficient to convict Gutierrez-Sanchez of both conspiracy and the

substantive drug trafficking offense. See United States v.

Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). United States v.

Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).

Gutierrez-Sanchez and Gutierrez-Gutierrez argue that the

district court committed clear error in basing their sentences on

12 kilograms of cocaine instead of the two kilograms that the trial

testimony revealed that they delivered. The Government argues that No. 99-50502 -4-

the two men promised Garza that they would deliver an additional 10

kilograms of cocaine. Neither Gutierrez-Sanchez nor Gutierrez-

Gutierrez presented any evidence to contradict the evidence,

testified to by Korn at trial and adopted by the Presentencing

Report (PSR), that the two men promised to deliver additional

cocaine to Garza. See United States v. Angulo, 927 F.2d 202, 205

(5th Cir. 1991)(defendants have burden of showing that information

relied upon at sentencing is “materially untrue, inaccurate or

unreliable"). As the delivery was interrupted only by the arrest

of the defendants, Gutierrez-Sanchez and Gutierrez-Gutierrez were

responsible for any undelivered cocaine. See U.S.S.G. § 2D1.1,

comment. (n. 12). It was thus not clear error for the district

court to hold Gutierrez-Sanchez and Gutierrez-Gutierrez responsible

for more cocaine than that which they actually delivered.

We have not been able to find references in the transcript to

the specific figure of 10 kilograms of cocaine, nor does the PSR

explain how the 10 kilogram quantity was derived. The trial

testimony does, however, refer to Garza’s expectation that

Gutierrez-Gutierrez and Gutierrez-Sanchez were to have delivered

1,000 pounds of cocaine; the testimony also showed that Garza told

Korn that his contacts were to bring him the additional cocaine --

an amount considerably greater than 10 kilograms. Thus, the

district court did not err in attributing an additional 10

kilograms of cocaine to Gutierrez-Sanchez and Gutierrez-Gutierrez.

AFFIRMED.