United States v. Jesus M. Lopez-Gil

965 F.2d 1124, 1992 WL 764
CourtCourt of Appeals for the First Circuit
DecidedMay 12, 1992
Docket90-2059
StatusPublished
Cited by80 cases

This text of 965 F.2d 1124 (United States v. Jesus M. Lopez-Gil) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jesus M. Lopez-Gil, 965 F.2d 1124, 1992 WL 764 (1st Cir. 1992).

Opinions

BOWNES, Senior Circuit Judge.

Appellant Jesus M. López-Gil was convicted by a jury of knowing and intentional possession, with intent to distribute, approximately 18 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1); of knowing and intentional importation of cocaine into the United States, in violation of 21 U.S.C. § 952(a); and of possession of cocaine on board an aircraft without the cocaine being entered on the cargo manifest or the official supply list, in violation of 21 U.S.C. § 955.1 López-Gil appeals his conviction on the ground that there was insufficient evidence at trial to support a conviction for importation of cocaine. He appeals his sentence on two grounds: that the court erred in its determination of the type and quantity of the cocaine in calculating his base offense level under the sentencing guidelines; and that the court erred in failing to make a downward adjustment for his role as a courier of the cocaine.

We affirm the conviction but remand for resentencing.

BACKGROUND

On November 2, 1989, López-Gil, a Colombian national, arrived at the Luis Munoz Marin International Airport in San Juan, Puerto Rico aboard Iberia Flight Number 924. He was en route to Madrid, Spain from Quito, Ecuador. The flight made two stops, one in Bogotá, Columbia and another in San Juan. Upon routine inspection and interview of the flight’s passengers in the in-transit lounge,2 Customs Contraband Enforcement Team (CET) officials detained López-Gil because he appeared nervous and was perspiring when questioned.

During their inspection of the cargo, CET officials opened one of two black fiberglass suitcases and upon ripping the lining, discovered glue marks and bulges. CET field tested both suitcases and they reacted positive for cocaine. López-Gil’s name and address were on each suitcase. Claim tags attached to his plane ticket matched those on the suitcases.

A Drug Enforcement Administration (DEA) chemist, Ivette Maria Vallejo, tested the suitcases under laboratory conditions and found cocaine secreted within the fiberglass. She weighed the suitcases without the metal trimming or metal parts and determined a net weight of approximately 14 kilograms. Vallejo extracted the controlled substance from the fiberglass and the resin with chloroform, and then ran methanol and ether through the controlled substance to clean it for testing. She conducted infrared and mass spectrometer tests on the controlled substance which tested positive for cocaine. She determined the net weight of the cocaine to be approximately 2.6 kilograms.

Pursuant to the United States Sentencing Commission, Guidelines Manual § 2D1.1 (November 1990) (“Sentencing [1126]*1126Guidelines”) the district court assigned Ló-pez-Gil a base offense level of 40. The court based its calculation on its determination that the controlled substance was cocaine base and by using the net weight of the two suitcases and the cocaine substance. The court found that because Ló-pez-Gil “acted as a courier and apparently had no proprietary interest in the cocaine as such, a sentence in the lower end of the guideline range is warranted.” Sent. Tr. p. 14. The court refused to grant him a two-level reduction for minor involvement. The court sentenced López-Gil to a term of imprisonment of 292 months and to a term of supervised release of 5 years, as to each count, to be served concurrently. He now appeals from that judgment and sentence.

IMPORTATION OF COCAINE

López-Gil asserts that the evidence was insufficient for the jury to convict him of importing cocaine into the United States, in violation of 21 U.S.C. § 952(a). He contends that because he was in-transit when arrested in San Juan, with his destination being Spain and not the United States, he cannot be convicted of a crime requiring the elements of knowledge of and intention to import cocaine into the United States. Our duty is to determine whether a reasonable jury could, after hearing all the evidence, conclude that the defendant was guilty of the specific crime charged beyond a reasonable doubt. United States v. Piedrahita-Santiago, 931 F.2d 127 (1st Cir.1991). We find that it could.

López-Gil acknowledges that this circuit interprets the crime of importation to mean that the defendant’s intended final destination for the controlled substance does not have to be the United States. In United States v. Mejia-Lozano, 829 F.2d 268 (1st Cir.1987), we sustained a conviction for importation of cocaine, in violation of 21 U.S.C. § 952(a). The defendant, who was en route to Switzerland, had disembarked into an in-transit holding area in San Juan. We found that 21 U.S.C. § 952(a) does not require that the accused form the specific intent to bring drugs into the country — or even that she be aware that her international flight would stop in the United States. We held that “the offense was complete the moment defendant, knowingly in possession of cocaine, landed in this country with the contraband, regardless of her knowledge of the aircraft’s itinerary or the planned terminus of her journey.” Id. at 272. In order to convict the defendant of importing drugs, “[i]t is sufficient that the defendant knowingly possessed the contraband, and brought it into the jurisdiction of the United States.” Id. at 271. Accord United States v. Ortiz-Alarcon, 917 F.2d 651, 652 (1st Cir.1990); United States v. Franchi-Forlando, 838 F.2d 585 (1st Cir.1988); United States v. McKenzie, 818 F.2d 115 (1st Cir.1987). The holding in Mejia-Lozano controls. We affirm López-Gil’s conviction for importing cocaine into the United States.

SENTENCING

1. Weight

López-Gil argues that the district court erred in its determination of the weight of the controlled substance (14 kilograms) for sentencing purposes. The court included the net weight of the suitcases in its calculation of the defendant’s base offense level of 40. López-Gil contends that the correct weight for calculation purposes should have been the net weight of the cocaine mixture only (2.6 kilograms). The difference in terms of sentencing between the two calculations is substantial. Had the court used the 2.6 kilogram weight in calculating the base offense level under the Sentencing Guidelines, López-Gil would have received a base offense level of 28, assuming that the substance is cocaine and not cocaine base as we will discuss next. Sentencing Guidelines § 2D1.1(b)(8).

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Bluebook (online)
965 F.2d 1124, 1992 WL 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jesus-m-lopez-gil-ca1-1992.