United States v. Cristobal Cervantes

Case: 11-41385 Document: 00512130277 Page: 1 Date Filed: 01/30/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 30, 2013

Nos. 11-41385 & Lyle W. Cayce

11-41407 Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

CRISTOBAL CERVANTES; LUIS EDUARDO ALVAREZ;

and MARK ANTHONY MILAN,

Defendants–Appellants

Appeals from the United States District Court

for the Southern District of Texas

Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.

PRADO, Circuit Judge:

Appellants Mark Anthony Milan, Cristobal Cervantes, and Luis Eduardo

Alvarez were convicted on charges stemming from a sting operation conducted

by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Appellants, along

with a fourth defendant who did not appeal, worked with an undercover agent

to plan an armed home invasion with the aim of stealing a large quantity of

drugs. The home invasion was a sham. Appellants were arrested on the day the

invasion was set to happen and subsequently indicted on six counts. After a jury

trial, Appellants were convicted on all six counts. They now appeal their

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convictions and sentences on a number of grounds.1 As explained below, the

district court’s only error occurred when it applied a sentencing enhancement

that should not have been applied. Appellants’ other arguments lack merit.

Therefore, we AFFIRM the convictions of Cervantes, Alvarez, and Milan;

VACATE the sentences of Cervantes and Alvarez; and REMAND for

resentencing.

I. Factual Background

In January 2011, an agent with the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (“ATF”), received information that Mark Anthony Milan

(“Milan”) was interested in purchasing firearms. During recorded conversations,

Milan told the ATF agent that he was interested in getting as many weapons as

the agent could supply. In fact, Milan even attempted to negotiate a bulk

discount. The deal was eventually called off, however, when Milan was unable

to procure the purchase money quickly enough. Nevertheless, during the course

of this attempted sting operation, a second ATF agent saw a picture of Milan

and immediately recognized him from an earlier investigation involving an

attempted home invasion. Based on the second agent’s identification of Milan,

taken together with other information received from a confidential source, the

ATF elected to continue its investigation of Milan in hopes of eventually

arresting him.

After the firearm sale fell through, an undercover ATF agent arranged a

meeting with Milan through a confidential informant to discuss the armed

1

In his brief, Milan briefly mentions a challenge to the evidentiary sufficiency of his

convictions in his summary of argument section. That specific contention does not appear

anywhere else in his brief, however. Having failed to present substantive argumentation on

point, it is deemed waived. Fed. R. App. P. 28(a)(9).

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invasion of a non-existent stash house. Through a series of

meetings—recordings of which were presented at trial—Milan and Cervantes2

were told about a drug stash house from which they could steal some twenty-five

kilograms of cocaine. Specifically, the undercover agent claimed to have been

cheated by his cartel employer, and he wanted Milan to steal cocaine from the

cartel’s stash house to settle the score. According to the ATF agent, the stash

house would have at least twenty-five kilograms of cocaine within, and Milan’s

team could keep all cocaine recovered beyond the first five kilograms, which the

ATF agent claimed he was owed.3 At the time, twenty-five kilograms of cocaine

in Laredo was worth over $400,000. The ATF agent also told Milan that the

house would be guarded by at least two people, one of whom would be armed and

intimidating. Milan and Cervantes agreed to rob the stash house, reassuring the

ATF agent that “they had cars, they had guns.” The ATF agent “was instructed

at that time just to get them to the house, and they would do the rest.” Milan

and Cervantes repeatedly reassured the ATF agent that their crew would consist

of professionals.

As planned, on March 9, 2011, the ATF agent informed Milan that the

target shipment of drugs had arrived at the stash house. Milan and Cervantes

met the agent at a pre-determined location, with two additional crew members

in the car with them, and traveled together to a second location where the arrest

2

While it appears that the ATF only intended to arrange a meeting with Milan,

Cervantes and Milan arrived together at the first meeting on February 10, 2011.

3

Importantly, the undercover agent repeatedly emphasized that cocaine was the only

possible spoil of this particular invasion. That is, the agent made clear that the only item of

value in the stash house would be cocaine. As the agent said during trial, “I wanted to be very

clear that—I’m being very clear that there’s no money in the house. It’s not marijuana. It’s

not jewelry.”

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was scheduled to happen. After discussing the plan with Cervantes, the agent

expressed a desire to review the plan with Milan and Cervantes’ two associates,

both of whom were still seated in Milan’s vehicle. The agent’s true desire was

to identify the associates and ensure that they knew the nature of the group’s

plan. As the agent put it, he wanted to make sure that they “knew exactly why

[they] were there.” When Cervantes rolled down the window, the ATF agent was

able to see Alvarez and Porras, both of whom he identified at trial.

The undercover agent then reviewed parts of the plan with all four

individuals, but not before asking Alvarez and Porras if they understood

English; both nodded in response. The agent reminded the group that the house

would be guarded and that it contained at least twenty-five kilograms of cocaine.

Cervantes showed the agent a pistol that Cervantes then tucked into his

waistband and Porras held up a duffle bag containing two rifles. After he

expressed nervousness regarding the risk entailed by the operation, Alvarez

reassured the agent by telling him that the group did not consist of “rookies.”

Alvarez even went so far as to tell the undercover agent that he would go into

the house first. At no point did Milan, Cervantes, Alvarez, or Porras express any

doubt, uncertainty, or unwillingness to proceed.

Satisfied that the four men understood the plan, the undercover agent

stepped away from the car and gave the arrest signal. The four men were then

arrested without incident. The defendants were dressed in all black, and within

the automobile the police recovered black hats bearing police labeling. Further,

Alvarez and Porras were wearing bulletproof vests. At trial, Appellants were

convicted on all six counts charged, whereas Porras, the fourth defendant, was

convicted of only a single count.

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II. Jurisdiction

The district court had jurisdiction under 18 U.S.C. § 3231. After judgment

was entered, Appellants filed timely notices of appeal. As such, this Court has

jurisdiction under 28 U.S.C. § 1291.

III. Discussion

Appellants present a number of issues on appeal, some that are Appellant-

specific and others that overlap. Distinct legal issues are dealt with

individually, but where Appellants have raised identical challenges, those issues

are dealt with collectively under a single heading.

A. Whether the Magistrate Judge erred in limiting the number

of Appellants’ relatives present for voir dire.

Criminal defendants are guaranteed a public trial by the Sixth

Amendment. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). The right

to a public trial helps ensure, inter alia, the fairness of the proceedings. Id.

(citing Waller v. Georgia, 467 U.S. 39, 46 (1984)). However, the right is not

absolute. Id. (citing Waller, 467 U.S. at 45). Whereas the Supreme Court has

enumerated a four-part test for determining whether closed proceedings are

warranted, the requisite analysis varies when, as here, the challenged closure

was partial rather than complete. Id. (citing Aaron v. Capps, 507 F.2d 685, 688

(5th Cir. 1975)).

When a criminal proceeding is only partially closed, the court must “look

to the particular circumstances of the case to see if the defendant will still

receive the safeguards of the public trial guarantee.” Osborne, 68 F.3d at 98.

This is because “the partial closing of court proceedings does not raise the same

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constitutional concerns as a total closure because an audience remains to ensure

the fairness of the proceedings.” Id. Partial closure of a courtroom during a

criminal proceeding is a constitutional question reviewed de novo, and the Court

will affirm so long as the lower court had a “substantial reason” for partially

closing a proceeding. Id. at 98–99.

Both Alvarez and Cervantes claim that the magistrate judge committed

reversible error when he partially closed voir dire.4 Before jury selection began,

the magistrate judge determined that each defendant could have only three

relatives present in the courtroom during voir dire. The magistrate judge so

decided in response to a request from Cervantes to allow six of his family

members to observe the proceeding. The decision was made in light of a number

of considerations, including the limited space available within the courtroom, the

nature of the proceedings, and the desire to minimize disruptions. The judge

was also concerned about Cervantes’s close proximity to panel members without

shackles given an earlier violent outburst at his detention facility. Alvarez and

Cervantes claim that the partial closure of voir dire violated their Sixth

Amendment right to a public trial.5 As discussed below, the magistrate judge

4

Additionally, Cervantes cursorily claims his Sixth Amendment right to a public trial

was violated when two of his relatives were removed from the courtroom during trial after

their child fell asleep multiple times. This argument completely lacks merit, however, since

Cervantes offers no meaningful argumentation on point and only superficially cites Presley v.

Georgia, 558 U.S. 209 (2010), an inapposite case concerning the complete closure of

proceedings from the public.

5

Alvarez arguably waived his objection to the partial closure of voir dire for two

reasons. First, Alvarez did not request to have more than three family members present at

voir dire such that the magistrate judge’s determination completely satisfied Alvarez’s request.

Second, Alvarez did not object when voir dire was partially closed.

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gave multiple substantial reasons for partially closing voir dire, and we will

affirm.

In Osborne, a case involving sexual assault against a minor, the district

court excluded an observer from the courtroom during the victim’s testimony

because the observer was both the sister of the defendant and the aunt of the

victim. 68 F.3d at 99. Partial closure during the victim’s testimony was

intended to facilitate her testimony by removing from the courtroom an

individual whose “presence may have traumatized the witness,” even though

other relatives of the defendant were allowed to stay. Id. This Court upheld the

district court’s partial closure because substantial reasons were

present—protecting the victim and facilitating her testimony—and because the

balance of individuals remaining in the courtroom protected the defendant’s

interest in a fair trial subject to observation by the public. Id. The district court

was admonished, however, for failing to develop a detailed record of the issues

and findings on point. Id.

Here, the magistrate judge presented multiple substantial reasons for

partially closing voir dire and detailed those reasons on the record. As explained

to the parties, the magistrate judge was concerned about available space within

the courtroom, even though the courtroom was technically capable of fitting

extra observers. And while other larger courtrooms were available, the

proceedings had already encountered numerous delays, and the magistrate judge

wished to avoid further delay. The court also had serious concerns about the

panel members’ comfort and safety given the nature of the case. Since this case

involved narcotics and firearms in a border town where violent, drug-related

disputes are common, the judge was concerned that the close proximity of the

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defendants’ families might chill jurors’ responses during voir dire. Further, if

jurors did not feel comfortable enough to fully and honestly answer the court’s

questions, then the court would be unable to empanel an impartial jury. Cf.

United States v. Edwards, 303 F.3d 606, 617 (5th Cir. 2002) (protecting the

defendants’ right to a fair trial constitutes a substantial interest for Sixth

Amendment purposes).

In addition to stating multiple reasons for excluding some of Cervantes’s

family from voir dire, the magistrate judge allowed the defendants to each have

three family members present. This allowance, combined with the general

public’s access to voir dire, protected Appellants’ interest in a public trial,

thereby satisfying the Sixth Amendment. See Osborne, 68 F.3d at 98. Given the

circumstances of this case, the magistrate judge presented more than one

substantial reason justifying a partial closure of voir dire; and the partial closure

did not jeopardize the defendants’ right to a fair, public trial. Id. Therefore, we

affirm the magistrate judge’s decision to partially close voir dire.

B. Whether the Magistrate Judge abused his discretion when

he declined to question potential jurors regarding

entrapment.

Refusal to ask a specific question during jury selection is reviewed for

abuse of discretion. United States v. Harper, 527 F.3d 396, 409 (5th Cir. 2008).

“The trial court has broad discretion to determine who will question potential

jurors and what questions will be asked.” United States v. Rasco, 123 F.3d 222,

231 (5th Cir. 1997). Accordingly, unless abuse of discretion and prejudice are

shown, this Court will not disturb “the scope and content of voir dire . . . on

appeal.” United States v. Okoronkwo, 46 F.3d 426, 433 (5th Cir. 1995). In the

Fifth Circuit, “it is not an abuse of discretion to refuse to allow inquiries of jurors

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as to whether they can accept certain propositions of law.” United States v.

Ledee, 549 F.2d 990, 992 (5th Cir. 1977); accord United States v. Rodriguez, 993

F.2d 1170, 1176 (5th Cir. 1993). Rather, an abuse of discretion is present when

“there is insufficient questioning to produce some basis for defense counsel to

exercise a reasonably knowledgeable right of challenge.” Rodriguez, 993 F.2d at

1176. As explained below, the magistrate judge did not abuse his discretion.

On appeal, Cervantes challenges the magistrate judge’s refusal to question

potential jurors about the law of entrapment, a defense which Cervantes

intended to rely on at trial. Cervantes requested that the magistrate judge read

a proposed entrapment instruction and ask jurors whether they could follow that

law, a request that the magistrate judge declined. Denial of the request

notwithstanding, the magistrate judge told the potential jurors that they would

be obligated to evaluate the evidence impartially, follow the law, and obey the

trial judge’s instructions. The magistrate judge also inquired into other topics

that would indicate potential prejudice, including relationships with law

enforcement officers, prior jury service, experience with the criminal justice

system, and possible connections to any of the individuals involved in the

defendants’ case. Cervantes now claims that the failure to question potential

jurors regarding their knowledge of and willingness to apply the law of

entrapment prevented him from properly evaluating potential jurors. However,

Cervantes has failed to show an abuse of discretion.

In his brief, Cervantes claims that the entrapment inquiry was reasonably

necessary for him to exercise his peremptory challenges. However, he fails to

demonstrate what a specific entrapment inquiry would have yielded beyond the

answers elicited when the magistrate judge asked the jury panel whether they

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would be able and willing to follow the law as laid out by the trial judge. Such

an inquiry occurred at multiple points during voir dire and addressed

Cervantes’s concerns in general terms. Questioning jurors specifically about the

law of entrapment would not have significantly contributed to Cervantes’s

ability to exercise his peremptory challenges or the voir dire generally. Rather,

the magistrate judge meaningfully inquired into potential jurors’ ability and

willingness to follow the legal principles set forth at trial, and the decision to

exclude questions specifically pertaining to entrapment was well within the

discretion of the court. The magistrate judge was not required to inquire

regarding entrapment at counsel’s behest, and it was within the magistrate

judge’s discretion to refuse counsel’s request. The substantively similar, if more

general, questions asked by the magistrate judge covered much of what

Cervantes sought and enabled Cervantes “to exercise a reasonably

knowledgeable right of challenge.” Rodriguez, 993 F.2d at 1176. The magistrate

judge therefore did not abuse his discretion, and we affirm.

C. Whether Milan or Cervantes suffered prejudice when

Alvarez’s attorney asked an improper question.

It is a well established rule that a defendant’s decision not to testify at

trial may not be commented on during the course of the trial. Doyle v. Ohio, 426

U.S. 610, 617–18 (1976); United States v. Davis, 609 F.3d 663, 685 (5th Cir.

2010). However, not all comments touching on a defendant’s decision to remain

silent run afoul of the Fifth Amendment. A comment violates the Fifth

Amendment if the language used “was manifestly intended or was of such

character that the jury would naturally and necessarily take it to be a comment

on the failure of the accused to testify.” United States v. Rocha, 916 F.2d 219,

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232 (5th Cir. 1990) (quoting Davis v. United States, 357 F.2d 438, 441 (5th Cir.

1966)). The comment must have a clear effect on the jury to warrant reversal,

and the doctrine of harmless error applies: an otherwise impermissible comment

will not require reversal if it did not contribute to the jury’s verdict beyond a

reasonable doubt. United States v. Moreno, 185 F.3d 465, 475 (5th Cir. 1999).

Here, Milan and Cervantes object to a single question posed by Alvarez’s

attorney while cross-examining their co-defendant, Porras. At the outset of

questioning, counsel asked Porras whether he was the third of four defendants,

which Porras answered affirmatively. He then asked, “And the first two have

already been asked if they wanted to take the stand and they have declined?”

Counsel for Milan and Cervantes immediately objected, and the trial judge

moved quickly to admonish Alvarez’s attorney, going so far as to suggest that his

question “borders on sanctionable conduct.” After chiding counsel, the trial court

quickly mitigated the situation by reminding the jury to completely disregard

the question and to not allow it a role in deliberations. And, at the close of trial,

none of the defendants requested a jury instruction on the Fifth Amendment.

The question posed by Alvarez’s attorney did not contribute to the jury’s

verdict. Before the trial even began, the magistrate judge spoke at length

regarding the defendants’ right to remain silent and the fact that jurors may not

hold the exercise of that right against the defendants during deliberations.

Moreover, as soon as Alvarez’s attorney made an indirect reference to Milan and

Cervantes’s decision not to testify, the trial court quickly admonished counsel

and instructed the jury to disregard the question entirely. These instructions

alone provided ample protection against any prejudicial impact counsel’s lone

question may have had on the jury’s deliberation. Furthermore, it is important

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to note that none of the parties requested jury instructions on the right to

remain silent, either at the time of counsel’s question or at the end of the trial.

While it is not even clear that counsel’s question “was manifestly intended or

was of such character that the jury would naturally and necessarily take it to be

a comment on the failure of the accused to testify,” Rocha, 916 F.2d at 232, the

question posed did not influence the jury’s deliberations, Moreno, 185 F.3d at

475. The trial court repeatedly reminded the jury that defendants had the right

to remain silent and acted swiftly when counsel asked the question at issue.

Therefore, we affirm.

D. Whether the district court erred in admitting evidence of a

prior attempted home invasion.

Evidence of prior bad acts may not be used to prove a person’s character

or conduct in accordance with their character. Fed. R. Evid. 404(b)(1); United

States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978) (en banc). However, under

Rule 404(b)(2), evidence of other acts is admissible to prove, inter alia, “motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident.” Fed. R. Evid. 404(b)(2). This Circuit has further held that

evidence of prior acts intended to rebut an entrapment defense falls within the

ambit of Rule 404(b). United States v. Hooker, 997 F.2d 67, 76 (5th Cir. 1993).

But any such evidence must still pass muster under Rule 403: its probative

value may not be substantially outweighed by any unfair prejudice against the

defendant. See Beechum, 582 F.2d at 911 (“What the rule calls for is essentially

a two-step test. First, it must be determined that the extrinsic offense evidence

is relevant to an issue other than the defendant’s character. Second, the

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evidence must possess probative value that is not substantially outweighed by

its undue prejudice and must meet the other requirements of [R]ule 403.”).

At trial, the government introduced into evidence footage from a security

camera showing an attempted armed home invasion committed by Milan and

others in December 2007. Additionally, the government produced testimony

from two individuals who were in that home during the attempted invasion, as

well as the officer who arrested Milan at the scene of the crime. The government

sought to introduce this evidence in order to rebut Milan’s claim of entrapment

by showing his predisposition, and objections were raised. While the trial court

acknowledged that the evidence had the potential to produce some undue

prejudice against the co-defendants, the court nevertheless deemed it highly

relevant. Moreover, to mitigate possible prejudice against the defendants, the

court agreed to give a limiting instruction stating that the evidence was limited

to Milan’s predisposition. Indeed, the district court made both points clear

before allowing the government to proceed and again at the close of trial.

Appellants claim that the district court erred in admitting this evidence. They

argue that the evidence was unduly prejudicial and that it suggested guilt by

association to the jury since Appellants were members of the same gang as

Milan.

If a defendant preserves his challenge to the introduction of Rule 404(b)

evidence, the district court’s decision is reviewed for abuse of discretion, subject

to harmless error analysis. United States v. Girod, 646 F.3d 304, 318 (5th Cir.

2011). “If the defendant does not object, then plain error review applies.” United

States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010). Plain error is present if a

defendant can show that (1) there was error; (2) it was plain; and (3) it affected

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his substantial rights. Id. An error generally only affects a defendant’s

substantial rights if it was prejudicial; that is, if there is a reasonable probability

that the proceedings would have produced a different result but for the error.

Id. Having reviewed the record and Appellants’ briefs, only Milan and

Cervantes objected to this evidence at trial. Indeed, Alvarez concedes that he

did not object. As such, Alvarez’s objection will be reviewed for plain error,

Morin, 627 F.3d at 994; the objections of Milan and Cervantes will be reviewed

for abuse of discretion, Girod, 646 F.3d at 318.

The arguments put forth by Milan and Cervantes are unpersuasive and

do not show an abuse of discretion. First, contrary to their claims, the prior act

evidence admitted here certainly had probative value as to Milan’s

predisposition. Milan was charged with involvement in a conspiracy to commit

an armed home invasion. Based on the evidence adduced at trial, the four

defendants were prepared to attack a house using firearms and black clothing

bearing police insignia. The prior home invasion attempt showed many

similarities to the charged act: a group of well-armed men attempted to launch

a swift, organized assault on a residential property. Since Milan claimed

entrapment, it became the government’s burden to show predisposition; and

“demonstrated experience in the criminal endeavor” qualifies as evidence of

predisposition. United States v. Theagene, 565 F.3d 911, 919 (5th Cir. 2009).

This evidence showed experience in armed home invasions and was thus highly

relevant to Milan’s predisposition.

Second, the probative value of this evidence was not substantially

outweighed by undue prejudice. The evidence presented was not inflammatory

or heinous; the government did not seek to admit graphic, explicit, or otherwise

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evocative evidence. Cf. Beechum, 582 F.2d at 917 (affirming predisposition

evidence that was not “of a heinous nature” or likely to “incite the jury to

irrational decision by its force on human emotion”). The government presented

a surveillance video showing an armed individual trying to gain access through

the front door of a house and testimony from people within the house at the time

of the incident, as well as from the arresting officer. Nothing presented was of

a sort that would incite the jury to an irrational decision. Furthermore, the

district court gave specific limiting instructions both when the evidence was

admitted and at the close of trial. Accordingly, it was not an abuse of discretion

to admit evidence of Milan’s prior attempted home invasion.

Alvarez’s argument also fails because the district court committed no

error. Under Rule 404(b), the evidence of Milan’s prior attempted home invasion

was clearly relevant to his predisposition since it demonstrated Milan’s

experience with this sort of criminal endeavor. Moreover, the evidence itself was

not heinous, provocative, or otherwise prejudicial. The evidence did not pertain

to Alvarez’s predisposition, and the district court was mindful to give specific,

detailed limiting instructions to the jury to that effect. The court instructed the

jury that the evidence bore on the predisposition of a single defendant when the

evidence was introduced and again at the close of trial. The trial court’s

instructions mitigated the possibility that the evidence would produce guilt by

association, as Alvarez fears. Therefore, we affirm.

E. Whether there was sufficient evidence to support two of

Alvarez’s convictions.

This Court reviews motions for acquittal de novo. United States v.

Clayton, 506 F.3d 405, 412 (5th Cir. 2007) (per curiam). “In reviewing the

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sufficiency of the evidence, we view the evidence and the inferences drawn

therefrom in the light most favorable to the verdict, and we determine whether

a rational jury could have found the defendant guilty beyond a reasonable

doubt.” Id. The evidence itself need not refute every defense hypothesis; “the

jury is free to choose among reasonable constructions of the evidence.” Id.

(quoting United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999)).

Alvarez contends here that there was insufficient evidence to convict him

of conspiracy to possess a controlled substance with intent to distribute and

aiding and abetting the possession of a firearm in furtherance of a drug

trafficking crime. He argues that there was no evidence that he knew about the

drugs involved in the armed home invasion, and he claims that the government

did not prove that he shared his co-conspirators’ criminal intent for the aiding

and abetting charge since the undercover agent initially only met with Milan

and Cervantes to plan the home invasion. As explained below, these arguments

are unpersuasive. The government presented sufficient evidence, viewed in the

light most favorable to the verdict, showing that Alvarez conspired to possess a

controlled substance with intent to distribute and that he aided and abetted the

possession of a firearm in furtherance of a drug trafficking crime.

The elements of Alvarez’s drug conspiracy charge are (1) an agreement

with another person; (2) knowledge of the agreement; and (3) voluntary

participation in the conspiracy. United States v. Percel, 553 F.3d 903, 910 (5th

Cir. 2008). “Absent direct evidence of an agreement, the jury can infer the

existence of an agreement from circumstantial evidence.” Id. Viewed in the

light most favorable to the verdict, the government presented sufficient evidence

to justify Alvarez’s conspiracy conviction. The government presented

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uncontradicted testimony identifying Alvarez at the site of the arrest and as the

individual, prior to arrest, who stated that he was “going in first” and that the

armed men were “not rookies.” These statements were recorded and presented

at trial. Further, after verifying that Alvarez spoke English, the agent explained

the nature of the invasion in detail to the four defendants. Specifically, the

agent reiterated that the house would be guarded by at least two individuals,

one of whom had a firearm, and that there would be at least twenty-five

kilograms of cocaine for the men to steal. The circumstances surrounding the

arrest show that the four defendants were clearly engaged in a joint criminal

enterprise, and the jury was entitled to credit the evidence and testimony

presented. The jury thus had more than sufficient evidence to conclude that the

elements of a drug conspiracy were met.

To be convicted of aiding and abetting possession of a firearm in

furtherance of a drug trafficking crime, the government must show (1) that the

offense occurred and (2) that Alvarez associated with the venture, participated

in it as something he wished to bring about, and sought to make it succeed.

Percel, 553 F.3d at 911. Alvarez must also have shared the group’s criminal

intent. Id. In his brief, Alvarez contends that there was insufficient proof that

he shared his partners’ criminal intent or that he knew the crime involved drugs.

Here again, the government presented sufficient evidence, viewed in the light

most favorable to the verdict, to convict Alvarez.

As explained above, Alvarez clearly knew that the group’s plan involved

drugs. The undercover agent asked Alvarez if he spoke English and then

reiterated that they were to rob a drug stash house containing at least twenty-

five kilograms of cocaine. Alvarez contends that he was present for an

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insufficient amount of time for a proper criminal scheme to form, but the test

does not include a temporal element. At no time did Alvarez express

disagreement with the plan or attempt to disassociate himself. Likewise,

Alvarez shared his partners’ criminal intent. Alvarez told the undercover agent

that he would go in first and specifically reiterated that the group did not consist

of rookies. He knew that the group was armed, he was prepared to participate,

and he wanted the invasion to succeed. Given this evidence, a rational jury

could certainly have found Alvarez guilty beyond a reasonable doubt. Therefore,

we affirm.

F. Whether there was sufficient evidence of predisposition.

“When a jury, which was fully charged on entrapment, rejects the

defendant’s entrapment defense, the applicable standard of review is the same

as that which applies to sufficiency of the evidence.” United States v. Rodriguez,

43 F.3d 117, 126 (5th Cir. 1995). As with the arguments discussed immediately

above, this Court reviews the sufficiency of the evidence regarding predisposition

de novo. United States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007).

The entrapment defense operates using a burden-shifting regime. United

States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009). If a defendant makes a

prima facie showing of entrapment,6 then the government must prove beyond a

reasonable doubt that the defendant was already predisposed to commit the

alleged offense when the government approached him. Id. There is no formulaic

way to prove predisposition. See United States v. Chavez, 119 F.3d 342, 346 (5th

6

“This requires the defendant to make a prima facie showing of (1) his lack of

predisposition to commit the offense and (2) some governmental involvement and inducement

more substantial than simply providing an opportunity or facilities to commit the offense.”

Theagene, 565 F.3d at 918.

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Nos. 11-41385 & 11-41407

Cir. 1997) (per curiam) (“Many factors may indicate a defendant’s

predisposition . . . .”). In fact, “a defendant’s ready and willing participation in

government-solicited criminal activity, standing alone, is sufficient to prove

predisposition.” United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001). Other

possible factors include “desire for profit; demonstrated knowledge or experience

with the criminal activity under investigation; the character of the defendant,

including past criminal history; whether the government first suggested criminal

activity; and the nature of the inducement offered by the government.” Id.

Here, the government presented sufficient evidence, viewed in a light most

favorable to the verdict, to support the jury’s rejection of Appellants’ entrapment

defenses.7 Cervantes demonstrated his eagerness to participate in the ATF’s

proposed home invasion on a number of occasions. He met with the undercover

agent three separate times and, on the day of his arrest, showed the agent the

pistol he intended to use as he tucked it in his waistband. Likewise, Alvarez

volunteered to the agent that he would “go in first,” a clear indication of

eagerness. The two men also clearly had a profit motive since the cocaine they

were going to steal was worth nearly half a million dollars. On no occasion did

either Cervantes or Alvarez express hesitation or doubt concerning the group’s

plan. There was thus sufficient evidence to demonstrate that Cervantes and

Alvarez were predisposed to commit this crime. Therefore, we affirm.

G. Whether cumulative error occurred.

The cumulative error doctrine provides for reversal when an aggregation

of non-reversible errors, i.e., plain and harmless errors that do not individually

7

Milan does not present any entrapment issues on appeal. Only Cervantes and Alvarez

have challenged the sufficiency of the government’s predisposition evidence.

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warrant reversal, cumulatively deny a defendant’s constitutional right to a fair

trial. United States v. Delgado, 672 F.3d 320, 343–44 (5th Cir. 2012) (en banc).

However, the cumulative error doctrine is only to be used in “rare instances.”

Id. at 344. Reversal is justified “only when errors ‘so fatally infect the trial that

they violated the trial’s fundamental fairness.’” Id. at 344 (quoting United States

v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)). As an illustration of how high the

cumulative error standard is, this Circuit reversed a conviction on cumulative

error grounds in United States v. Riddle, 103 F.3d 423 (5th Cir. 1997), when the

trial court “improperly admitted two and a half days of expert prosecution

testimony, erroneously prevented the defense expert from testifying, admitted

six documents containing hearsay, and allowed testimony about other crimes for

which the defendant was not on trial.” Delgado, 672 F.3d at 344 n.31.

Allegations of non-errors do not play a role in cumulative error analysis since

there is nothing to accumulate. Id. at 344.

In support of his cumulative error claim, Cervantes cites the admission of

prior act evidence in violation of Rules 403 and 404(b), the failure to question

potential jurors on the law of entrapment, the exclusion of some family members

from voir dire, and a comment made by Alvarez’s attorney regarding the co-

defendants’ exercise of their Fifth Amendment rights. Of the errors cited, only

the last allegation potentially constitutes an error. As this opinion has

discussed, Cervantes’s other claims did not amount to error and thus have no

impact on cumulative error analysis. Even assuming the single question posed

by Alvarez’s attorney was improper, it is clearly insufficient to justify reversal

for cumulative error as it did not deny Cervantes a fair trial. Therefore, we

affirm.

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Alvarez also argues that a cumulation of errors prevented him from

receiving a fair trial. However, his cumulative error argument is identical to his

ineffective assistance of counsel claim. That is, Alvarez’s cumulative error

argument is based exclusively on the same considerations used to claim

ineffective assistance of counsel. As explained below, Alvarez’s ineffective

assistance of counsel claim is not yet ripe for review because the issue was not

raised in the district court. See Part III.J, infra. Since Alvarez’s ineffective

assistance of counsel claim is not ripe for review, the Court cannot determine

whether there are in fact errors to accumulate for purposes of cumulative error

review.

H. Whether applying a sentencing enhancement for firearm

possession was erroneous.

If an objection is not preserved below, this Court applies plain error

review. Morin, 627 F.3d at 994. Plain error is present if a defendant can show

that (1) there was error; (2) it was plain; and (3) it affected his substantial rights.

Id. An error generally only affects a defendant’s substantial rights if it was

prejudicial; that is, if there is a reasonable probability that the proceedings

would have produced a different result but for the error. Id. Neither Cervantes

nor Alvarez objected to the application of a firearm enhancement at sentencing.8

Cervantes and Alvarez were convicted of, among other charges, conspiracy

to possess a controlled substance with intent to distribute under 21 U.S.C. § 846

and possessing a firearm in furtherance of a drug trafficking crime under 18

8

Milan has not challenged his sentence, likely because the firearm enhancement error

discussed here would have been harmless as to him. In Milan’s case, removing the two-level

enhancement would not affect the applicable mandatory minimum because his prior drug

conviction raised the applicable mandatory minimum sentence anyway.

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U.S.C. § 924(c)(1)(A)(I). Because the drug conspiracy charge involved firearms,

the Pre-Sentencing Reports for both defendants recommended a two-level

enhancement pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) (2011) (“If a dangerous weapon

(including a firearm) was possessed, increase by 2 levels.”). However, Appellants

contend—and the government concedes—that this enhancement constitutes

inappropriate double punishment since Alvarez and Cervantes were also

separately sentenced for possession of a firearm in furtherance of a drug

trafficking crime. This Court has held that the enhancement contained in

§ 2D1.1(b)(1) impermissibly punishes a defendant twice for the same conduct if

it is levied in conjunction with a sentence for violating 18 U.S.C. § 924(c). United

States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997). This comports with the

approach advocated by the Sentencing Guidelines:

Do not apply any weapon enhancement in the guideline for the

underlying offense, for example, if (A) a co-defendant, as part of the

jointly undertaken criminal activity, possessed a firearm different

from the one for which the defendant was convicted under 18 U.S.C.

§ 924(c); or (B) in an ongoing drug trafficking offense, the defendant

possessed a firearm other than the one for which the defendant was

convicted under 18 U.S.C. § 924(c).

U.S. Sentencing Guidelines Manual § 2K2.4 cmt. n.4. Therefore, the district

court clearly erred in applying a two-level enhancement to the drug conspiracy

charge. We therefore vacate Cervantes and Alvarez’s sentences and remand for

re-sentencing.

I. Whether applying a sentencing enhancement for body armor

possession was erroneous.

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If an objection is not preserved below, this Court applies plain error

review. Morin, 627 F.3d at 994. Plain error is present if a defendant can show

that (1) there was error; (2) it was plain; and (3) it affected his substantial rights.

Id. An error generally only affects a defendant’s substantial rights if it was

prejudicial; that is, if there is a reasonable probability that the proceedings

would have produced a different result but for the error. Id. At sentencing, the

government need only prove by a preponderance of the evidence those facts

necessary to calculate a sentence. United States v. Ollison, 555 F.3d 152, 164

(5th Cir. 2009). “[T]he district court is entitled to rely upon the information in

the [Presentence Report (“PSR”)] as long as the information bears some indicia

of reliability. The defendant bears the burden of presenting rebuttal evidence

to demonstrate that the information in the PSR is inaccurate or materially

untrue.” United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010) (citations

omitted); see also United States v. Sampson, No. 02-20195, 2002 WL 31689255,

at *1 (5th Cir. Oct. 30, 2002) (unpublished) (“In the absence of any evidence that

the information in the PSR was materially untrue, the district court did not err

in finding the PSR reliable and adopting the factual findings therein for

sentencing purposes.”).

Alvarez received a four-level enhancement at sentencing for the use of a

bulletproof vest in preparation for the armed home invasion the defendants had

planned. See U.S. Sentencing Guidelines Manual § 3B1.5. At trial, the

government presented testimony concerning the body armor some of the

defendants were wearing, and introduced pictures of Alvarez wearing a

bulletproof vest upon arrest and pictures of the vest itself. At no point during

trial or sentencing did Alvarez contest that he was in fact wearing body armor

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Nos. 11-41385 & 11-41407

as defined in § 3B1.5. Only now, on appeal, does Alvarez challenge the

government’s failure to prove that his bulletproof vest qualified as such.

Despite his protestation, Alvarez has given no reason to suggest that the

PSR, which stated that Alvarez was wearing bulletproof body armor, was

inaccurate or materially untrue. The PSR comports with the evidence presented

at trial, which suggested Alvarez was wearing a commercially-available vest

stolen from a police vehicle; and there appears to be no error. Accordingly,

Alvarez’s PSR bears the requisite indicia of reliability and the district court was

entitled to rely on it. Because Alvarez failed to identify evidence or present

argument suggesting that the PSR was materially untrue, we affirm.

J. Whether Alvarez received ineffective assistance of counsel.

The general rule in the Fifth Circuit is that Sixth Amendment ineffective

assistance of counsel claims are not reviewed on direct appeal unless they were

“adequately raised in the trial court.” United States v. Stevens, 487 F.3d 232,

245 (5th Cir. 2007). In order to provide competent review of such claims, the

appellant must develop the record at the trial court. Id.; United States v. Pierce,

959 F.2d 1297, 1301 (5th Cir. 1992). Only in those “rare cases” where the record

is sufficiently developed will this Court review Sixth Amendment ineffective

assistance of counsel claims on direct appeal. United States v. Palmer, 122 F.3d

215, 221 (5th Cir. 1997).

Here, Alvarez claims a litany of shortcomings that allegedly amount to

ineffective assistance of counsel. However, this direct appeal is the first time

that Alvarez has claimed ineffective assistance of counsel. Having not raised

this issue below, the record is insufficiently developed to enable review of

Alvarez’s claim. Stevens, 487 F.3d at 245. Accordingly, we deny Alvarez’s

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ineffective assistance of counsel claim without prejudice to his right to pursue

the claim in collateral review.

IV. Conclusion

For the foregoing reasons, the sentences of Alvarez and Cervantes are

VACATED and REMANDED for resentencing. We AFFIRM Appellants’

convictions and sentences on all other grounds, and DENY WITHOUT

PREJUDICE Alvarez’s ineffective assistance of counsel claim.

25