United States v. Santos Casas

Case: 14-40046 Document: 00513304873 Page: 1 Date Filed: 12/11/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40046 United States Court of Appeals

Fifth Circuit

FILED

UNITED STATES OF AMERICA, December 11, 2015

Lyle W. Cayce

Plaintiff - Appellee Clerk

v.

MELVIN ANTONIO BENITEZ, also known as Loco, also known as Raul

Molina, also known as Carlos Martinez; URIEL RAYO NAVARRO, also

known as Balter Noriega,

Defendants - Appellants

__________________________

Cons /w 14-40921

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

SANTOS FLORES CASAS, also known as Angel,

Defendant - Appellant

Appeals from the United States District Court

for the Eastern District of Texas

Before JOLLY, HAYNES, and COSTA, Circuit Judges.

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E. GRADY JOLLY, Circuit Judge:

Three defendants appeal their convictions for conspiracy to manufacture

and distribute controlled substances and related charges. These defendants

were part of a group of thirty-seven people who were indicted for a drug

conspiracy after a multi-year FBI investigation that recorded over 77,000

telephone calls. Other than the three defendants here (and codefendants who

do not appeal), all indicted coconspirators pled guilty, and many testified

against these defendants. Defendants challenge an evidentiary ruling

concerning a voice identification expert, the sufficiency of the evidence against

them, and the propriety of their sentences. For the reasons that follow, we

affirm the convictions and affirm all of the sentences other than Casas’. With

respect to Casas’ sentence, we hold that the district court incorrectly applied a

mandatory minimum sentence and remand for resentencing.

I.

The FBI investigation began when a single confidential informant

purchased drugs from the defendant Benitez; over a period of months, the

investigation grew to include multiple confidential informants, wiretaps, pen

registers, and police surveillance. Many of the recorded conversations took

place in Spanish; FBI linguist Maria Haynes-Spanier listened to every call and

reviewed every transcript. In combination with testimony from cooperating

witnesses, this evidence showed a pattern of drug activity loosely organized

into a decentralized conspiracy. After listening to all the calls admitted into

evidence, Special Agent Michael Hillmant calculated that 9.7 kilograms of

cocaine changed hands and that 21.89 kilograms were discussed. The relevant

portion of the conspiracy was largely led by the Valdezes (a brother and sister

who pled guilty). The following facts are relevant to these three defendants.

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1. Navarro

Victor Manuel Castaneda testified that he frequently delivered

distribution quantities of cocaine from Ms. Valdez to Navarro. Navarro was

also recorded discussing drug sales with Ms. Valdez, including a discussion of

buying cocaine on credit for resale. Navarro also directed the activities of

lower-level drug distributers. Both Castaneda and Agent Haynes-Spanier

testified that they recognized Navarro’s voice on these phone calls.

Officers executed a legal search of a house titled in the name of Navarro’s

mother. Despite its location in a low-crime area, the house was heavily

secured. The house contained a gun, ammunition, $6,000 in cash, and a forged

identification card with Navarro’s picture and the name Balter Noriega. At

least initially, the house also contained Navarro himself—until he ran out the

back door. He was quickly apprehended and initially identified himself as

“Balter Noriega,” but this ruse was soon discovered.

At the house, officers found a set of keys to Apartment 2078. Navarro

admitted that he owned the apartment, showed officers how to get there, and

consented to a search of the unit. When the officers arrived, a lower-level drug

distributor to whom Navarro delivered drugs was present. Also present were

1.97 grams of cocaine and 22.7 grams of crack (spread among four hiding places

and two cars) as well as paraphernalia related to the manufacture of drugs.

The police also recovered a cell phone that matched a number Navarro had

provided as his and a water bill addressed to “Balter Noriega.”

2. Casas

As with Navarro, Castaneda testified that he delivered cocaine from Ms.

Valdez to Casas. He testified that he delivered between half an ounce and an

ounce every other day. At times, Casas would direct him to deliver the cocaine

to an associate who lived in the same apartment complex. Multiple other

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coconspirators testified that they regularly purchased cocaine from Casas.

Casas was also recorded on several calls setting up drug transactions.

3. Benitez

Benitez was recorded selling drugs, guns or both on numerous occasions

to two different confidential informants. Altogether, Benitez sold over 630

grams of cocaine and 6 ounces of heroin along with multiple firearms (both

handguns and rifles) to confidential informants. One confidential informant

testified that Benitez used “teenagers” to distribute drugs.

Two drug transactions are particularly relevant. In the first transaction,

Benitez sold two ounces of cocaine and a .40 caliber handgun to a confidential

informant. In the second transaction, which did not involve a confidential

informant, Benitez was taped discussing the transaction over the phone. In

one call, Benitez agreed to deliver a half ounce of cocaine and then addressed

a child. Benitez told the child that they were “gonna go make some money”;

the child replied, “I don’t want to go”; and Benitez responded, “Yeah. Get in

the car. I don’t give a[n] [expletive].” In an unrelated call, the child gave her

age as eight. In another recorded call, Benitez complained that he had more

“wholesale” customers than “retail” customers, which limited his profits.

All three defendants went to trial. Navarro requested that the court

appoint an expert in voice identification; this request was denied. All three

defendants were convicted of conspiring to manufacture or distribute

controlled substances in violation of 21 U.S.C. § 846. Benitez was also

convicted of knowingly carrying a firearm during or in relation to a drug crime

in violation of 18 U.S.C. § 924(c)(1). In a special interrogatory, the jury found

that the conspiracy involved five or more kilograms of cocaine.

At sentencing, the court imposed multiple enhancements. Relevant to

this appeal, it enhanced Navarro’s sentence by three levels because he was a

“manager or supervisor” and by two levels because he maintained a premises

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for the purpose of manufacturing or distributing a controlled substance.

U.S.S.G. § 3B1.1; § 2D1.1(b)(12). The court enhanced Benitez’s sentence by

four levels because he was an “organizer or leader” of the conspiracy, U.S.S.G.

§ 3B1.1, and by two levels for involving minors in a drug crime. U.S.S.G.

§2D1.1(b)(14)(B) (2013). Considering these enhancements, Benitez and

Navarro were sentenced to within-guidelines sentences. Casas was subject to

a mandatory life sentence because he was convicted of a crime involving five

or more kilograms of cocaine after having previously been convicted of two or

more previous drug felonies. 21 U.S.C § 841(b).

II.

We first address the argument that the court erred in refusing expert

evidence. After concluding that it did not, we face the question of whether that

evidence was sufficient to convict the defendants; we hold that it was. Finally,

we address the defendant’s challenges to their sentences.

Navarro requested that the court appoint an expert in voice

identification to assist in his defense. Navarro had the burden of

“demonstrat[ing] with specificity[] the reasons why such services are required.”

United States v. Boyd, 773 F.3d 637, 642 (5th Cir. 2014). The district court

denied this request. Where, as here, the defendant raised the issue below, the

court reviews these denials for abuse of discretion. Id.

Navarro argued that a voice-identification expert was necessary to rebut

the testimony of the government’s expert witness, Haynes-Spanier. Haynes-

Spanier, however, did not testify about voice identification in an expert

capacity (her expertise was limited to translating Spanish). The Federal Rules

of Evidence explicitly authorize lay testimony about voice identification by

anyone who had “hear[d] the voice at any time under circumstances that

connect it with the alleged speaker.” Fed. R. Evid. 901(b)(5). Thus, Navarro

did not require expert testimony to rebut Haynes-Spanier’s lay testimony and

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was not precluded from offering lay testimony. The district court did not abuse

its discretion by denying the motion to appoint an expert witness.

Each defendant challenges the sufficiency of the evidence for his

conspiracy conviction. When challenges to the sufficiency of the evidence are

preserved, they are reviewed de novo. United States v. Hale, 685 F.3d 522, 543

(5th Cir. 2012). When unpreserved, they are reviewed for plain error. United

States v. Delgado, 672 F.3d 320, 328-32 (5th Cir. 2012) (en banc).

Under either standard of review, we find no merit in these challenges.

To prove a drug conspiracy, the government must show: “(1) the existence of

an agreement between two or more persons to violate narcotics laws; (2) the

defendant’s knowledge of the agreement; and (3) his voluntary participation in

the conspiracy.” United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir.

2008). All three defendants were recorded discussing drug transactions on the

phone; these calls satisfied all four elements, showing an intent to purchase

distribution quantities of drugs and the practice of distributing those drugs.

Their voices were matched to the recording by Ms. Haynes-Spanier. This

evidence alone would support a jury verdict; in each case, however, the

recordings were corroborated by physical evidence, eyewitness testimony, or

cooperating witnesses.

Benitez raises two additional challenges to the sufficiency of the

evidence; both lack merit. First, he argues that the evidence was insufficient

to establish that he personally distributed over five kilograms of cocaine. This

argument misunderstands the law. “[T]he Government’s burden was to prove

the existence of a conspiracy, [the defendant’s] involvement in it, and the

requisite drug quantity . . . involved in the conspiracy beyond a reasonable

doubt.” United States v. Turner, 319 F.3d 716, 722–23 (5th Cir. 2003)

(emphasis added).

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Benitez also argues that his simultaneous sale of a handgun and drugs

does not support a conviction for “carr[ying] a firearm” “during and in relation

to any . . . drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The Supreme

Court has held that “[t]he fact that a gun is treated momentarily as an item of

commerce does not render it inert or deprive it of destructive capacity. Rather,

as experience demonstrates, it can be converted instantaneously from currency

to cannon.” Smith v. United States, 508 U.S. 223, 240 (1993) (holding that the

exchange of a gun for drugs satisfies the “in relation” prong). As the Eleventh

Circuit recently persuasively held:

If indeed the purpose of the statute is to combat the dangerous

combination of drugs and guns, as Muscarello [v. United States,

524 U.S. 125, 139 (1998)] held, and [the defendant] combined the

drugs and gun in a . . . single transaction, as the jury found, it

would flout the purpose of the statute to hold anything but that

the gun was carried “during and in relation” to the drug offense.

United States v. Timmons, 283 F.3d 1246, 1251–52 (11th Cir. 2002). We agree

with the Eleventh Circuit and hold that the simultaneous sale of a gun and

drugs qualifies as carrying a gun in relation to a drug crime.

Finally, we turn to the defendants’ challenges to their sentences. When

challenges to a district court’s interpretation or applications of sentencing

guidelines are preserved, they are reviewed de novo; when unpreserved, they

are reviewed for plain error. United States v. Huerta, 182 F.3d 361, 364 (5th

Cir. 1999). Plain error is reviewed under a four-prong approach:

First, there must be an error or defect. . . . Second, the legal error

must be clear or obvious, rather than subject to reasonable dispute.

Third, the error must have affected the appellant’s substantial

rights, which in the ordinary case means he must demonstrate

that it “affected the outcome of the district court proceedings.”

Fourth and finally, if the above three prongs are satisfied, the court

of appeals has the discretion to remedy the error—discretion which

ought to be exercised only if the error “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

Meeting all four prongs is difficult, “as it should be.”

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Delgado, 672 F.3d at 329. Similarly, factual findings supporting sentencing

determinations are reviewed for clear error. United States v. Cabrera, 288 F.3d

163, 173 (5th Cir. 2002). The different defendants challenge their sentences

on several grounds.

Benitez argues that his sentence should not have been enhanced for

involving minors in a drug crime. U.S.S.G. § 2D1.1(b)(14)(B). Because he did

not raise this issue before the district court, it is subject to plain error review.

One witness testified that Benitez used “teenagers” to distribute drugs.

Further, Benitez was recorded telling an eight-year-old girl to get in the car to

go to a drug deal. It is plausible that Benitez brought the girl with him “to

avoid detection of or apprehension [for] the particular crime.” United States v.

Alarcon, 261 F.3d 416, 423 (5th Cir. 2001). Given this evidence, the trial court

did not plainly err by applying the enhancement.

Benitez also argues that he should not have received a four-level

enhancement for being an organizer or leader of the conspiracy. U.S.S.G.

§ 3B1.1. The district court heard specific testimony that Benitez directed

numerous others in carrying out the conspiracy. Indeed, Benitez admits that

he supervised others but asserts that “there was not enough evidence to

support an enhancement higher than a manager or supervisor role under

U.S.S.G. § 3B1.1(b) or (c).” Benitez Br. at 15. This unsupported assertion is

not enough to show that the district court’s factual finding of his role as a

leader was clearly erroneous.

Similarly, Navarro challenges his two-level enhancement for being a

manager or supervisor. U.S.S.G. § 3B1.1(b). The district court heard evidence

that Navarro directed an associate to distribute drugs and allowed that

associate to live in Navarro’s apartment in exchange for delivering drugs as

Navarro directed. The district court did not clearly err in its factual

determination that Navarro was a supervisor.

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Navarro also argues that he should not have received a two-level

enhancement for “maintain[ing] a premises for the purpose of manufacturing

or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). Because he

did not raise this argument at sentencing, it is reviewed for plain error.

Huerta, 182 F.3d at 364.

Navarro first argues that, under the commentary to § 2D1.1, the district

court should have looked at two “factors” to determine whether Navarro

“maintained” the apartment: “(A) whether the defendant held a possessory

interest in (e.g., owned or rented) the premises and (B) the extent to which the

defendant controlled access to, or activities at, the premises.” Although

Navarro admits that he rented the apartment, he asserts that no evidence

shows he controlled access to or activities at the apartment. We find this

argument unavailing. Navarro kept a key to the apartment, described it as his

to the officers, and received water bills there addressed to him (under an alias);

Cervantes used the apartment rent-free on the condition that he “would help

[Navarro] with his drug distribution.” The district judge did not clearly err in

finding that Navarro controlled activities at the apartment.

Navarro also cites the sentencing guidelines commentary in support of a

second argument:

Manufacturing or distributing a controlled substance need not be

the sole purpose for which the premises was maintained, but must

be one of the defendant’s primary or principal uses for the

premises, rather than one of the defendant's incidental or

collateral uses for the premises.

U.S.S.G. § 2D1.1. Navarro argues that the evidence does not show that his

“primary purpose” for the premises was drug manufacture. The presentencing

report indicated, however, that Navarro did intend for the apartment to be

used primarily to sell drugs. Thus, Navarro bears the burden to rebut that

evidence by showing that it was “materially untrue, inaccurate or unreliable.”

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United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). Navarro received

drug deliveries at the apartment, and the search of the apartment revealed an

air-breathing mask, a cutting agent, and a metal strainer (in addition to the

drugs themselves). Based on this evidence, the conclusion that Navarro used

the apartment “primarily” to distribute drugs was not clearly erroneous.

Finally, all three defendants challenge their sentences in the light of this

court’s recent opinion in United States v. Haines, 803 F.3d 713 (5th Cir. 2015).

In Haines, we held that “for purposes of statutory minimums at sentencing[]

the relevant quantity is the quantity attributable to the individual defendant,”

and this individual quantity must be found by the jury. Id. at 742. Because

Haines was decided after these defendants were sentenced, the judge

determined the drug quantities attributable to each defendant, rather than

submitting that question to the jury. This mistake satisfies the first two

prongs of the plain error analysis, even though Haines was decided after the

sentencing. Henderson v. United States, 133 S. Ct. 1121 (2013).

The third prong—whether the error affected the defendants’ substantial

rights—is not satisfied for Navarro and Benitez. Both were sentenced to terms

of imprisonment well above the mandatory minimum; no evidence suggests

that the court considered the mandatory minimum in determining their

sentences. Thus, their rights were unaffected.

Casas, however, presents a different case. The district judge calculated

that Casas’ guideline range was 292–365 months. The court did not indicate

that it viewed that range as inappropriate or that it planned to exercise its

discretion to sentence Casas outside that range. The other defendants were

sentenced around the middle of their guideline ranges. The court, however,

erroneously viewed the statutory minimum sentence to be life, and sentenced

Casas accordingly. Thus, the mistaken belief about the mandatory minimum

likely “affected the outcome of the district court proceedings.” Delgado, 672

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F.3d at 329. This error significantly increases Casas’ term of imprisonment

and thus risks “seriously affect[ing] the fairness, integrity or public reputation

of judicial proceedings.” Id. We therefore exercise our discretion to vacate

Casas’ sentence and remand for resentencing.

VACATED and REMANDED

in part; AFFIRMED in part.

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