United States v. Mireles

471 F.3d 551, 2006 U.S. App. LEXIS 29375, 2006 WL 3423383
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 29, 2006
Docket05-40936
StatusPublished
Cited by120 cases

This text of 471 F.3d 551 (United States v. Mireles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Mireles, 471 F.3d 551, 2006 U.S. App. LEXIS 29375, 2006 WL 3423383 (5th Cir. 2006).

Opinion

EMILIO M. GARZA, Circuit Judge:

Arnold Anthony Mireles (“Mireles”), federal prisoner #41294-179, appeals his conviction and sentence on two counts of possession with intent to distribute more than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). Mireles argues that: (1) there was insufficient evidence to support his conviction; (2) the provisions of 21 U.S.C. §§ 841(a) and (b) are facially unconstitutional under the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (3) the special condition of his supervised release in the district court’s written judgment impermissibly conflicts with the condition contained in the oral pronouncement of his sentence.

I.

In 2004, Mireles lived in Falfurrias, Texas and drove a tow truck for his father’s business, Arnold’s Wrecker Service (“Arnold’s”). Brooks County is in close proximity to the United States Border Patrol Checkpoint on Highway 281 near Falfurri-as (“Falfurrias Checkpoint”). The Brooks County Sheriffs Office (BCSO) is responsible for responding to calls for assistance from the local community. If a caller needs a wrecker service, a BCSO dispatcher will dispatch a county-contracted wrecker services, of which Arnold’s is one. The primary wrecker service rotated every week to spread the work among the contracted services. Mireles frequently retrieved abandoned or seized vehicles along Highway 281, often passing through the Falfurrias Checkpoint. Mireles was also friends with BCSO Deputy Sheriff Homer Morales, Jr. and often rode on patrol with Morales.

On August 28, 2004, at 3:22 p.m., Mireles called BCSO and informed Cavazos that “a guy” would soon call and report a broken-down vehicle. Mireles testified that a man had called him to tow a pickup truck located at Delicia’s Restaurant, south of the Falfurrias Checkpoint. Mireles told Cava-zos that he had already spoken to this person and instructed him to call BCSO before Mireles would agree to pick up the vehicle. Mireles testified that he often routed private calls through the BCSO to ensure that the call was legitimate. Cava-zos testified that the call was unusual but that wreckers sometimes routed their private calls through the BCSO. Mireles instructed Cavazos to call Mireles back when “the guy” called.

Several minutes later, Cavazos received a telephone call from a person requesting a wrecker. The person said that he had already called Mireles and had been instructed to call BCSO first. The caller specifically wanted Arnold’s and provided Cavazos with Mireles’s correct cellular telephone number. The caller did not provide Cavazos with a name, telephone number, or any identifying information, nor did he tell Cavazos the make or location of the *554 vehicle. Cavazos then called Mireles back and told him “[tjhat guy called me.”

Because Mireles had his arm in a sling from an automobile accident, he had his friend, Juan Ochoa, go with him to help pick up the vehicle. Mireles testified that when they arrived at Delicia’s Restaurant, the only vehicle there was a red extended Chevrolet pickup truck parked by the side of the road. Mireles did not inquire from anyone whether the red truck was the vehicle to be towed. Mireles testified that the keys to the vehicle were inside it. Ochoa hooked the pickup to the tow truck and the two headed back north to Falfurri-as.

Border Patrol Agent Beatriz Alaniz-Hi-nojosa was working the primary inspection lane at the Falfurrias Checkpoint when Mireles arrived, driving the tow truck and towing the red pickup. Agent Alaniz-Hi-nojosa testified that Mireles told her that he had retrieved the vehicle from Delicia’s Restaurant and was transporting it north of the Checkpoint. Agent Alaniz-Hinojosa testified that Mireles told her that Cavazos had called him and dispatched him to get the broken-down pickup. Agent John Harmon was present at the time and his trained canine alerted to the towed pickup. When asked for the keys to the pickup truck, Mireles gave them to Agent Harmon.

Upon searching the pickup truck, Agent Harmon discovered 49 bundles of marijuana, weighing 112 pounds, wrapped in duct tape. The bundles of marijuana were concealed inside and behind the seats and interior side panels of the truck and were not readily visible to someone looking inside the vehicle. Mireles and Ochoa did not display any of the usual indicators of nervousness that border patrol agents look for in assessing suspicious behavior.

Neither Mireles or Ochoa were arrested at that time because, according to Agent Diaz, there was no evidence or suspicion that either of them had any knowledge that the marijuana was in the truck. After Mireles and Ochoa were released, Agent Diaz contacted BCSO to verify Mireles’s explanation. At that time, he learned that Mireles had not actually been officially dispatched to tow a broken-down vehicle. Agent Diaz also discovered that the pickup truck was not actually broken down.

On October 8, 2004, an unknown person called BCSO and told Cavazos that his white Grand Marquis car was broken down at the Shell Station in Encino, Texas and needed to be towed. Encino is south of the Falfurrias Checkpoint. As Arnold’s was on rotation at the time, Cavazos dispatched Mireles to pick up the vehicle. A video tape from the Shell Station in Encino shows that Mireles was already at or near the Shell Station at the time the initial call for a wrecker was received by Cavazos.

Mireles arrived at the Falfurrias Checkpoint driving the Arnold’s wrecker and towing a 1989 white Grand Marquis. Border Patrol Agent Oscar De La Garza was working the primary inspection lane. Agent De La Garza testified that Mireles told him that the Grand Marquis was from a “bail out”, 1 that someone from BCSO had called him to pick it up, and that he was taking it to BCSO to drop it off. This was suspicious because border patrol agents usually hear about bail outs immediately and Agent De La Garza was unaware of one. Agent Harmon was also present and his canine alerted to the rear part of the towed vehicle. The trunk was locked and Mireles claimed to not have the keys. The *555 agents asked Míreles if they could open the trunk with a crowbar and Míreles simply stated that he did not want to be responsible for any damage to the vehicle. As the agents attempted to open the trunk, Agent Harmon noticed that Míreles had started to pace nervously. Míreles then stated that he had another call to go on and offered to leave the Grand Marquis and return for it later.

Once the trunk was opened, the agents found wrapped bundles of marijuana, weighing 152 pounds, hidden in a spare tire and empty speaker box. At that time, Míreles was escorted inside the checkpoint station to Agent Diaz. After reading him his Miranda rights, Agent Diaz informed Míreles that his August 28th story had not checked out. Míreles became visibly nervous. At that time, Míreles changed his story and told Agent Diaz that the Grand Marquis was a broken-down vehicle, rather than a bail out, and that he was taking the vehicle to his own lot, rather than the BCSO impound lot.

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Cite This Page — Counsel Stack

Bluebook (online)
471 F.3d 551, 2006 U.S. App. LEXIS 29375, 2006 WL 3423383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mireles-ca5-2006.