United States v. Jose Ceballos-Amaya

470 F. App'x 254
Court of Appeals for the Fifth Circuit·Decided April 17, 2012·No. 10-50940·Unpublished·Cited by 12 cases

Opinions

PER CURIAM: *

Jose Luis Ceballos-Amaya (Ceballos) and Misael Peralta-Longoria (Peralta) [256] were indicted for one count of aiding and abetting the possession with intent to distribute 100-1000 kilograms of marijuana and one count of aiding and abetting the possession with intent to distribute 50-100 kilograms of marijuana. A jury found them guilty as charged. Ceballos appeals, challenging the sufficiency of the evidence to support his convictions. Ceballos also challenges his sentence, arguing that the district court erred in applying an enhancement for obstruction of justice and an enhancement based on his leadership role in the offense. Peralta appeals only his sentence, arguing that the district court erred in applying an enhancement for obstruction of justice. We find the evidence sufficient to sustain Ceballos’s convictions and AFFIRM his convictions. Finding no reversible error, we AFFIRM Ceballos’s sentence. Concluding that the district court clearly erred in applying an enhancement for obstruction of justice, we VACATE and REMAND Peralta’s sentences for re-sentencing.

I. FACTUAL AND PROCEDURAL HISTORY

On April 9, 2009, Border Patrol Agent Jason Denman (Agent Denman) was traveling down Highway 170 and observed a black Tahoe and a white Ford pickup truck traveling in tandem. Subsequently, Agent Denman conducted a stop of the Ford, while Border Patrol Agent Steve Randall (Agent Randall) conducted a stop of the Tahoe.

The driver of the Ford, identified as Gilbert Vasquez, was the only occupant of the vehicle. The vehicle was taken to the Presidio, Texas station to be searched, and marijuana was discovered hidden in the fuel tank. Agent Randall testified that he ran a license plate check on the Tahoe and discovered that the vehicle was registered to Cesar Pinedo. The vehicle and the driver, Bruce McGraw (McGraw), were likewise taken to the Presidio station. Marijuana was found in the vehicle. The amount of marijuana found in both vehicles totaled 89.6 kilograms.

At the trial in the instant case, Vasquez testified that he met Cesar Pinedo (Pine-do) and an individual identified only as Abraham, when they worked at F & W Coating. Subsequently, Abraham called Vasquez to offer him work. Abraham arrived at Vasquez’s house with two other men to discuss the offer. In court, Vasquez identified Ceballos, previously known to him only as “Loco,” as one of the two men with Abraham. Vasquez also identified Peralta as the other man accompanying Abraham. Abraham told Vasquez that he would give him a white Ford pickup truck and money in exchange for Vasquez coming to Ojinaga, Chihuahua, Mexico, and hauling loads of marijuana across the border. Ceballos was “involved” and “participat[ed] in” this conversation.

Subsequently, Abraham and Peralta brought the truck to Vasquez. Vasquez and McGraw then traveled to Ojinaga. After they crossed the border, Vasquez called Abraham. Abraham arrived in the black Tahoe with Pinedo and Ceballos and took Vasquez and McGraw to a motel outside of Ojinaga. Vasquez testified that Ceballos, Abraham, and Pinedo stayed in the same motel.

On April 8, 2009, Peralta arrived and picked up the truck. Abraham instructed Vasquez and McGraw to remain in the motel because Peralta did not want them to leave “because of the soldiers that were running around there in Ojinaga.” Vasquez also testified that Ceballos and the other men were “keeping an eye on” him while they were staying at the motel, waiting for the truck that was to be used to drive a load of marijuana. Further, Ceballos was with Abraham at the motel when [257] -Abraham told Vasquez “to calm down, that they would have the truck ready.”

On April 9, 2009, at approximately noon, Peralta arrived at the motel and traveled with Vasquez in the Tahoe over the border. Peralta instructed Vasquez to meet him, Ceballos, Abraham, and Cesar in Odessa, where Vasquez would be paid. Pinedo traveled in the Ford with McGraw and another individual identified only as Mingo. Peralta, Pinedo, and Mingo then left the vehicles and returned to Mexico. Vasquez and McGraw separately drove away in the two vehicles but did not travel far before they encountered Border Patrol and were arrested as set forth above.

With respect to the second offense, on the afternoon of January 29, 2010, Border Patrol Agent Alexander Medina testified that he was working at the primary checkpoint in Marfa, when he encountered a suspicious white GMC tractor-trailer. Billy Wayne King (King) was identified as the driver and sole occupant of the truck. During a subsequent search, the vehicle was found to contain marijuana weighing 280.45 kilograms. Border Patrol Agent Ismael Fernandez (Agent Fernandez) of the DEA Task Force asked King whether he would be willing to cooperate in a controlled delivery operation. King agreed, and his phone calls were recorded. As instructed by the agents, King explained his travel delay to the intended recipients of the marijuana, who were later identified as Ceballos and Peralta, by stating that the vehicle had mechanical problems. Ceballos then wired $100 to King so that he could have the vehicle repaired.

Ceballos instructed King to meet them at an Odessa convenience store called Stripes. King and law enforcement authorities separately arrived at Stripes. Ceballos then instructed King to move the delivery to Church’s Chicken Restaurant. After King moved to Church’s Chicken, Ceballos asked him to move the truck again but was instructed by agents to say that the truck was inoperable. Shortly thereafter, Ceballos and Peralta met King at Church’s Chicken. Ceballos opened the hood of King’s vehicle and looked at the engine. After a minute or two, King started the truck. Ceballos entered King’s truck, and Peralta returned to his truck.

At that point, the authorities decided to end the operation and activated lights and sirens. Peralta took off at a high rate of speed but was soon stopped. Ceballos and King were blocked from attempting to escape. After he was arrested, Peralta provided a statement in which he admitted that he knew the truck contained drugs but denied knowledge as to the type of drug. Ceballos denied any knowledge of the drugs.

The recorded phone conversations were presented to the jury. Agent Fernandez explained that the voices were identifiable once he heard Peralta and Ceballos speak. In one phone call, Ceballos identified himself as the individual who would be receiving the truck. In another call, the wire transfer from Ceballos was discussed. In a subsequent call, Ceballos instructed King to go to Stripes. Sergeant Sean Roach of the Brewster County Sheriffs Office testified that he reviewed King’s cell phone and the phone that Ceballos was using. The two phones showed calls to each other. At the close of the Government’s case, both defendants moved for judgments of acquittal, and the court denied the motions.

Ceballos presented the testimony of his wife, Lilliana Ceballos-Amaya.1 She stated that her mother lives in Ojinaga, and her sister is married to Peralta. On the [258] day of Ceballos’s arrest, Lilliana testified that she and Ceballos had previously been at a birthday party at a Mr. Gatti’s in Odessa for Peralta’s daughter. Lilliana testified that at the time of his arrest Ceballos was working two jobs.

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