# Appendix — Guerra v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 913

## Text

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
Ges 6 6.506565 S 6S 8 ORS eee ke A-1
See GE CORONER. 00 «cents asan A-2
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should not be published.

A-4

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.

-A-8

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).

A-9

——

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).

A-11

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).

A-13

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.

A~-17

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

A-18

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.

A-19

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.

A-20

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.

A-21

IiIt

For the foregoing reasons, we AFFIRM.

A-22

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