Appendix — Guerra v. United States

2) Boprema Court, U.S

BPinrEeD

93-1 |

JUN 29 3993

NO. aniahines

price CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ELUID GONZALES GUERRA

Petitioner

VS.

THE UNITED STATES OF AMERICA,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

KENT A. SCHAFFER DAVID R. BIRES

Counsel of Record 600 Travis

600 Travis Suite 3000

Suite 3000 Houston, TX 77002

Houston, TX 77002 (713) 228-8500

(713) 228-8500

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APPENDIX TABLE OF CONTENTS

Page

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Opinion of The Fifth Circuit

COUrE OF ADDORLS..ccsccceses A-3

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-2382

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELUID GONZALES GUERRA

Defendant-Appellant.

Appeal from the United States

District Court for the

Southern District of Texas

(CR-H-90-412-1)

(March 31, 1993)

Before GARWOOD, JONES and EMILIO M. GARZA

Circuit Judges.

PER CURIAM: '

Defendant, Eluid Gonzales Guerra,

appeals his sentence for various offenses

involving his marijuana trafficking

scheme. Finding no error, we affirm.

I

Law enforcement agents seized two

pounds of marijuana and six narcotic

notebooks during the execution of a search

warrant at the residence of Efrain

Gonzales Guerra ("Efrain") and Elma Flores

Guerra ("Elma"), the defendant's brother

and sister-in-law. The notebooks

contained detailed records of the

transactions surrounding an BEE C.4 5% 2

' Lecal Rule 47.5.1 provides: "The

publication of opinions that have no

precedential value and merely decide

particular cases on the basis of well-

settled principles of law imposes needless

expense on the public and burdens on the

legal profession." Pursuant to that Rule,

the Court has determined that this opinion

should not be published.

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marijuana distribution ring. Between 1984

and 1987, this illegitimate business

distributed quantities of marijuana valued

at over two million dollars.

Guerra pled guilty to the following

offenses: filing a false income tax

return, in violation of 26 U.S.C. 7206(1)

(1988); reentering the United States as a

deported alien, in violation of 8 U.S.C.

1326 (1988), conspiring to possess with

intent to distribute in excess of 1,000

kilograms of marijuana, in violation of 21

U.S.C. §§ 841 (a)(1), (b)(1)(B), 846

(1988); distributing marijuana in excess

of 40 pounds, in violation of 21 U.S.C. §

841(a) (1), (b)(1)(C) (1988); and using a

communications facility in facilitating

the commission of a felony under the

Controlled Substance Act, in violation of

21 U.S.C. § 843(b) (1988).

The district court sentenced Guerra

to 384 months of confinement, followed by

three years of supervised release. Guerra

appeals his sentence, contending’ the

district court erred in: (1) assessing a

four-level increase in his base offense

level based upon his aggravating role in

the underlying drug trafficking

conspiracy; (2) refusing to grant a two-

level reduction to his base offense level

due to his failure to accept

responsibility for his criminal conduct;

and (3) finding the sum of $2,137,457

directly attributable to his understated

gross income. Guerra also claims that he

was denied his Sixth Amendment right to

effective counsel due to his attorney's

failure to file written objections to his

presentence report (*PSR*) before

sentencing.

It

A

Guerra argues that the district court

erred in assessing a four-level increase

in his base offense level based upon its

finding that Guerra was a leader or

organizer of the conspiracy to possess

with intent to distribute marijuana. See

Brief for Guerra at 7. Under the

sentencing guidelines, a defendant's base

offense level is increased by four levels

if the defendant is an organizer or leader

of a criminal activity that involved five

Or more participants or was otherwise

extensive. See United States Sentencing

Commission, Guidelines Manual, §3B1.1(a) (Nov.

1991). We review the district court's

application of the guidelines de novo, and

its factual findings for clear error.

United States v. Rodriguez, 897 F.2d 1324, 1325

(Sta Cir. 1996), cor Gee; Uses,

111 S.Ct. 158, 112 L.Ed.2d 124 (1990).

Recognizing that the guidelines apply

only to the offenses involving income tax

returns and illegal reentry,° Guerra first

contends that his marijuana trafficking

transactions constitute "collateral

conduct, " and therefore, cannot be

considered in assessing his aggravating

3

role. We disagree. The determination of

Guerra's base offense level is based upon

2 The other offenses occurred before

November 1, 1987, and therefore, are not

subject to the federal sentencing

guidelines.

3 Guerra does not dispute his status

as a leader oor organizer of the

conspiracy. See Brief for Guerra at 7-10.

He was the most culpable participant

involved int he conspiracy, and his

aggravating role was supported by evidence

demonstrating he was a leader of the drug

distribution network. See PSR at 13.

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all relevant conduct, * and "not solely on

the basis of elements and acts cited in

the count of conviction." U.S.S.G. Ch.3,

Pt.b, intro. comment. Moreover, an upward

adjustment under §3Bl.1(a) is “anchored to

the transaction leading to the

conviction." United States v. Barbontin, 907 F.2a

1494, 1498 (5th Cir. 1990). We have

previously held that "[i]t is not the

contours of the offense charged that

defines the outer limits of the

transaction; rather it is the contours of

the underlying scheme itself. All

participants firmly based in the

* “Relevant conduct" includes: all

acts and omissions committed or aided and

abetted by the defendant, or for which the

defendant would be otherwise accountable,

that occurred during the commission of the

offense of conviction, in preparation for

that offense, or in the course of

attempting to avoid detection or

responsibility for that offense, or that

otherwise were in furtherance of that

Offense. U.S.S.G. § 1Bl.3(a)(1).

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——

underlying transaction is ripe for

consideration in adjudging a leadership

role under section 3Bl.1." United States v.

Mir, 919 F.2d 940, 943-44 (Sth Cir. 1990).

thus, the district court, when determining

an adjustment under § 3Bl.1, may “consider

all f{relevant] conduct linked to the

transaction. .., even if it falls outside

the four corners of the conviction

itself." United States v. Rodriguez, 925 F.2d

107, 109-10 (5th Cir. 1991). Here, the

unreported amounts of income which are the

basis for Guerra's income tax offense were

"Clearly gross receipts from narcotic

transactions that were part of the same

common scheme and are clearly related."

PSR at 11. Consequently, Guerra's role in

the marijuana distribution conspiracy is

relevant conduct to his income tax

offense, and was therefore properly

considered by the district court in

determining his sentence.?

Guerra further maintains that the

government failed to identify at least

five participants mandated under

§3Bl.1(a). See Brief for Guerra at 9. We

disagree. Courts may infer the number of

participants when applying §3Bl.1(a). Mir,

919 F.2d at 944. Additionally, the

defendant may be counted when determining

the total number of participants. Barbontin,

907 F.2d at 1498. Using this approach,

the government identified more than five

‘ Similarly, Guerra's contention that

he was the only participant in the

offenses within the scope of the

guidelines is without merit. See United

States v. Manthet, 913 F.2d 1130, 1136 (5th

Cir. 1990) (holding that "participants"

under §3Bl.1 may include those not charged

in the offense).

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participants to the underlying conspiracy.°

Because the district court did not clearly

err in finding at least five participants

to the conspiracy, and properly considered

Guerra's trafficking transactions as

relevant conduct, the district court did

not err in assessing a four-level

increase.

B

Guerra also contends the district

court erred in not granting a two-level

reduction in his base offense level based

upon its finding that he failed to accept

responsibility for his criminal conduct.’

° The participants identified by the

government include Eluid and Nilda Guerra,

Efrain and Elma Guerra, Garza-Saenz, his

brothers Juan Manuel and Roberto, Maurio

Roberto Rameriz-Martinez, and Victor

Javier Farias. See PSR at 6, ll.

The guidelines provide for a two-

level reduction in the offense level"(i]f

the defendant clearly demonstrates a

recognition and affirmative acceptance of

personal responsibility for_his criminal

‘A-12

"Because of the district court's unique

position to assess the defendant's

acceptance of responsibility," its

findings in this matter are entitled to

greater deference on review than that

conferred under the clearly erroneous

standards. See United States v. Rodriguez, 942

P.2G4 899, 902-03 (Sth Cir. 1991), cer.

denied , U.S. » ana DBeoCes.. 990, 2azt

L.Ed.2d 151 (1992); see also U.S.S.G.

§3E1.1, comment. (n.5). The district

court's conclusion will stand unless the

defendant proves the court's determination

was "without foundation." United States v. Buss,

928 F.2d 150, 152 (Sth Cir. 1991).

Guerra's guilty plea does not

automatically entitle him to a sentencing

reduction for accepting criminal

canguct.* U.S.8.G. § 384.1(a).

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responsibility. See U.S.S.G. §3E1.1(c).

Moreover, before the defendant is entitled

to a reduction for acceptance of

responsibility he must first accept

responsibility for “all of his relevant

criminal conduct." United States v. Mourning,

914 F.2d 699, 705 (5th Cir. 1990). The

record shows that Guerra denied

involvement in any mari%~wana conspiracy,

denied participating in a double homicide

which occurred in Mexico and claimed his

income was earned from legitimate sources.°

Guerra also denied he had a leadership

role in the conspiracy. See United States v.

Shipley, 963 F.2d 56, 59 (5th Cir.), cert.

denied, U.S. , 113 S.Ct. 348, 121

§ Guerra insisted his income derived

from the legitimate sale of farm equipment

and tractor trailers, and that he reported

this income on his tax returns. See PSR

at 14-15.

.A-14

L.Ed.2d 263 (1992) (holding that "a

defendant who is found to have had a

leadership role in the offense does not

fully accept responsibility for purposes

of §3E1.1 if, despite his admission of all

elements of the offense of the conviction,

he nevertheless attempts to minimize his

leadership role"). Furthermore, Guerra

was evasive and refused to cooperate with

probation officials following the entry of

his guilty plea. See PSR at 14; United States

v. Singer, 970 F.2d 1414, 1420 (5th Cir.

1992) (finding defendant who refused to

discuss details of his offense with

probation officials not entitled to

reduction for acceptance of

responsibility). Accordingly, we find no

error in the district court's refusal to

grant a two-level reduction in Guerra's

base offense level.

&*i%5

Cc

Guerra further contends ~that' the

district court erred in finding that he

failed to report gross income of

Ga,a07, 487. See Brief for Guerra at 14-

15. The PSR established ownership of the

over $1,031,555 in unreported gross

narcotic receipts, $412,113 attributable

to Guerra and $619,422 attributable to

Efrain and Elma. See PSR at 10. An

additional $1,105,902 in gross narcotic

receipts was found in the narcotic

notebooks. See ida at 11. The PSR

established that these additional receipts

were from "narcotics transactions that

were part of the same common scheme and

are clearly related" to Guerra's narcotics

distribution business. /d@ The district

court calculated Guerra's base offense

level by considering the entire $2,137,457

A-16

ey |

involved in the narcotics conspiracy.’

We review the district court's

finding of fact for clear error. 18

U.S.C. §3742(e). When “determining the

total tax loss attributable to the offense

° all conduct violating the tax laws

should be considered as part of the same

course of conduct or common scheme or plan

unless the evidence demonstrates the

conduct is clearly unrelated." U.S.S.G.

§2T1.3, comment. (n.3) (giving as an

example, the "failure to report or an

understatement of . . . income from a

. The district court adopted the

probation department's conclusions which

reported: the defendant understated gross

income of $2,137,457. For the purpose of

this guideline computation, the tax loss

is 28 percent of amount by which the

greater of the gross income and taxable

income was understated. In this case, 28

percent of the understated gross income is

$598,487.96. The corresponding offense

level found in the tax table provide in

§2T4.1 is 16. PSR at 53.

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particular business activity").

Here, the amount of $2,137,457

represents the total income from the

particular business activity of drug

trafficking. All the income derived from

this business is considered part of the

same business activity and part of the

same scheme or plan. See id; see also

United States v. Kaufman, 800 F.Supp. 648, 651-

52 (N.D.Ind 1992) (interpreting

application note 3 of §2T1.1 to require

"the court to consider all unreported

income, regardless of whose packet into

which it went"). Therefore, the district

court's finding that Guerra failed to

report gross income of $2,137,457 was not

clearly erroneous.

D

Lastly, Guerra contends for the first

time on appeal that he was denied his

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Sixth Amendment right to effective

assistance of counsel because his attorney

failed to file written objections to the

PSR before sentencing. See Brief for

Guerra at 16-18. Generally, claims of

ineffective assistance of counsel not

raised below cannot be resolved on direct

appeal. See United States v. Ugalde, 861 F.2d

802, 804 (5th Cir. 1988), cert. denied, 490

U.S. 1097, 109 S.Ct. 2447, 104 L.Ed.2d 102

(1989). However,m because the record here

"is sufficiently complete to enable us to

fairly evaluate the merits of the clain,"

id, we resolve Guerra's claim on this

appeal. See, e.g., United States v. Phillips, 664

F.2d 971, 1040 (Sta Cir. 1981) (deciding

ineffective assistance of counsel claim on

direct appeal where record sufficiently

developed on claim), cert. denied, 457 U.S.

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1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354

(1982).

To establish ineffective assistance

of counsel, Guerra must prove that his

attorney's performance was both

objectively deficient and prejudicial to

his defense. Strickland v. Washington, 466 U.S.

668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d

674 (1984). Guerra asserts that trial

counsel's failure to file written

objections to the PSR constituted

deficient performance of counsel.” we

disagree.

Rule 32(a)(1) expressly provides for

oral objections to sentencing decisions.

See Fed. R. Crim. P. 32(a)(1) (providing

"the court shall afford the counsel for

7 The record shows that Guerra's

attorney made only verbal objections to

the PSR. See Record on Appeal, vol. 3, at

3-7.

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TY

the defendant. . . an opportunity to

comment upon the probation officer's

determination. . . read and discuss the

presentence investigation . . . speak on

behalf of the defendant") (emphasis

added). Moreover, we have previously

rejected any substantive distinction

between written and oral assertions in the

courtroom. See Stokes v. Procunier, 744 F.2d

475, 482 n.3 (Sth Cir. 1984) (refusing to

find ineffective assistance of counsel

where motion for continuance made orally,

rather than in writing). Because Guerra

cannot show that his attorney's

performance was deficient, his ineffective

assistance of counsel claim is without

merit. See Stnckland, 466 U.S. at 692, 104

S.Ct. at 2067.

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IiIt

For the foregoing reasons, we AFFIRM.

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