Filed: Jun. 27, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 27, 2005 Charles R. Fulbruge III Clerk No. 04-20037 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE DE JESUS GARCIA-FLORES; ORLANDO ACOSTA-GARCIA, Defendants-Appellants. - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-257-1 - Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges. PER CURIAM:* Jose D
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 27, 2005 Charles R. Fulbruge III Clerk No. 04-20037 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE DE JESUS GARCIA-FLORES; ORLANDO ACOSTA-GARCIA, Defendants-Appellants. - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-257-1 - Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges. PER CURIAM:* Jose De..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-20037
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DE JESUS GARCIA-FLORES;
ORLANDO ACOSTA-GARCIA,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-257-1
--------------------
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Jose De Jesus Garcia-Flores (Garcia) and Orlando Acosta-Garcia
(Acosta) appeal their convictions and sentences imposed for
conspiracy to harbor and transport undocumented aliens and five
counts of aiding and abetting the harboring of undocumented aliens
for financial gain. Garcia and Acosta were each sentenced to a
term of imprisonment of 27 months on each count to be followed by
three-year terms of supervised release, all terms to run
concurrently.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-20037
-2-
Acosta argues that the Government failed to prove that he was
involved in the smuggling conspiracy. Viewed in the light most
favorable to the verdict, the evidence was sufficient for a
rational jury to find beyond a reasonable doubt that Acosta aided
or abetted or agreed to participate in a conspiracy among smugglers
to transport illegal aliens into the United States for financial
gain and that Acosta concealed, harbored and shielded the aliens
from detection after they arrived in the country. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); 8 U.S.C.
§ 1324(a)(1)(A)(ii), (v)(I),(II), (B)(ii).
The evidence that Acosta assisted the aliens in bypassing the
Border Patrol checkpoint reflected Acosta’s knowledge that he was
harboring aliens who were illegally in this country. The evidence
further showed that Acosta gave the aliens directions about how not
to be detected and provided the aliens with food, water, and
medication. The evidence showed that the aliens had to provide
payment for the smuggling assistance. The testimony concerning
Acosta’s involvement in the scheme provided by Alfredo Gordillo-
Gonzalez, who voluntarily returned to the United States to testify,
was corroborated by Dilican Yadira Moncada-Cornejo’s and Jose
Trinidad Ramos’ versions of the events. The evidence was
sufficient for a reasonable jury to determine beyond a reasonable
doubt that Acosta conspired and aided and abetted in the harboring
of undocumented aliens.
No. 04-20037
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Garcia argues that the evidence was insufficient to support
his conviction for count six, harboring an undocumented alien,
Sonia Maricela Lopez-Cortez, because the Government failed to prove
beyond a reasonable doubt that Lopez-Cortez was an undocumented
illegal alien. Under the concurrent sentencing doctrine, “an
appellate court may decline to hear a substantive challenge to a
conviction when the sentence on the challenged conviction is being
served concurrently with an equal or longer sentence on a valid
conviction.” United States v. Ware, 282 F.3d 902, 906 (5th Cir.
2002) (internal quotations and citation omitted). Garcia received
concurrent 27-month sentences on all counts. Because the
assessments imposed pursuant to 18 U.S.C.
§ 3013(a)(2)(A) were remitted, this court need not address Garcia’s
argument that the evidence was insufficient to support his
conviction under count six, aiding and abetting in the harboring
and concealing of Lopez-Cortez.
Id.
Garcia argues that the district court committed reversible
error in admitting testimony over objection that a caller who
identified himself as “Chuy,” Garcia’s nickname, asked Lopez-
Cortez’s aunt for money to obtain her niece’s release. He argues
that the district court erroneously admitted the caller’s statement
as a coconspirator’s statement pursuant to FED. R. EVID.
801(d)(2)(E) because the Government failed show who the caller was
and that he was a coconspirator.
No. 04-20037
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Statements made by a coconspirator of a party during the
course of and in furtherance of the conspiracy are not hearsay.
FED. R. EVID. 801(d)(2)(E). It can be inferred that the telephone
call was made by someone involved in the smuggling conspiracy in
furtherance of the goal to obtain payment for providing the
service. However, the Government did not provide any direct
evidence that the caller was Garcia or any other specific person
involved in the conspiracy. Thus, the district court abused its
discretion in admitting the testimony. See United States v.
McConnell, 988 F.2d 530, 533-34 (5th Cir. 1993). However, the
error was harmless because there was overwhelming evidence of
Garcia’s guilt and, thus, the jury decision was not substantially
affected by the admission of the evidence of the telephone
conversation. See United States v. Williams,
957 F.2d 1238, 1243
(5th Cir. 1992).
The district court did not abuse its discretion in admitting
the testimony of Lopez-Cortez’s aunt that Lopez-Cortez was from El
Salvador and was not a United States citizen because one’s
reputation among one’s family concerning personal or family history
is an exception to the hearsay rule. FED. R. EVID. 803(19); United
States v. Jean-Baptiste, 166 F.3d 102, 110 (5th Cir. 1999).
Further, there was other credible evidence presented that Lopez-
Cortez was an undocumented alien and, thus, any error in the
admission was harmless.
No. 04-20037
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Garcia argues that the district court committed reversible
error in dismissing two alternate jurors at random in the absence
of and without notice to the defendants. He argues that FED. R.
CRIM. P. 24 requires the court to replace jurors with alternate
jurors in the same sequence in which the alternates were selected.
He contends that counsel exercised his peremptory challenges and
made his closing argument based on the assumption that the
individuals toward the end of the venire were not likely to serve
on the jury. Garcia further argues that the dismissal of the
jurors in the absence of the parties violated his right under FED.
R. CRIM. P. 43 to be present at every trial stage, including jury
impanelment. Acosta adopts by reference this argument as presented
by Garcia pursuant to FED. R. APP. P. 28(i).
FED. R. CRIM. P. 24(c)(2)(B) provides that “Alternate jurors
replace jurors in the same sequence in which the alternates were
selected.” Although this court has not addressed this specific
issue, other circuits have determined that the random selection of
alternate jurors is a violation of Rule 24 but that a harmless
error analysis should be conducted if a violation occurs. See
United States v. Sogomonian, 247 F.3d 348, 352 (2d Cir. 2001);
United States v. Delgado,
350 F.3d 520, 523 (6th Cir. 2003); United
States v. Brewer,
199 F.3d 1283, 1286 (11th Cir. 2000). FED. R.
CRIM. P. 43 guarantees a defendant the right to be present during
all stages of the trial, including jury impanelment. However, if
a violation of Rule 43 occurs because the defendant and counsel are
No. 04-20037
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not present and have no opportunity to object, the defendant must
show that he suffered actual prejudice in order to obtain a
reversal. See United States v. Bieganowski, 313 F.3d 264, 293-94
(5th Cir. 2002), cert. denied,
538 U.S. 1014 (2003).
Even if violations of FED. R. CRIM. P. 24(c)(2)(B) and FED. R.
CRIM. P. 43 occurred, Garcia and Acosta have failed to show that
they suffered any actual prejudice as a result of the errors.
Garcia and Acosta were afforded the opportunity to meaningfully
exercise their peremptory strikes and have not shown what different
action their counsel would have taken if they had been aware that
the alternate jurors would be randomly selected. The random
selection of the alternate jurors is not reversible error.
Garcia argues that the district court plainly erred in
prohibiting his use of any recreational drugs, alcohol, or tobacco
products as a condition of supervised release because the
conditions have no relationship to his smuggling offense and there
was no indication that he had abused drugs, alcohol, or tobacco.
Acosta adopts this argument pursuant to FED. R. APP. P. 28(i).
The special conditions of supervised release were not
reasonably related to the alien smuggling offenses. The general
conditions of supervised release contained in the judgments
prohibit the excessive use of alcohol and the possession, use, or
distribution of unprescribed controlled substances. The district
court plainly erred in adding the special conditions precluding any
No. 04-20037
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use of alcohol and tobacco by Garcia and Acosta. See United States
v. Ferguson, 369 F.3d 847, 852-54 (5th Cir. 2004). Those
conditions of supervised release are vacated and the case remanded
for resentencing with respect to those conditions of supervised
release.
Acosta argues that the district court plainly erred in
sentencing him over the statutory maximum in violation of United
States v. Blakely, 124 S. Ct. 2531 (2004). He contends that his
offense level was increased by six levels above the statutory
maximum based on information in the presentence report that he had
transported twenty-seven illegal aliens when he had been charged
with smuggling only five aliens into the United States.
Because Acosta did not raise this issue in the district court,
this court reviews the argument for plain error. See United States
v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.
filed, No. 04-9517 (U.S. Mar. 31, 2005).
In United States v. Booker,
125 S. Ct. 738, 756 (2005), the Supreme
Court held that “[a]ny fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker applies to this direct appeal. 125 S.
Ct at 769.
In Mares, this court applied the plain error standard to a
Booker claim and held that under the third prong of the test, an
No. 04-20037
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error that affects substantial rights, “the proponent of error must
demonstrate a probability sufficient to undermine confidence in the
outcome.” 402 F.3d at 521 (internal quotation marks and citation
omitted). Acosta does not argue that the district court would have
imposed a lesser sentence if it had known that the guidelines were
advisory. Although it did impose a sentence at the bottom of the
guideline range, the district court did not give any indication
that it would have imposed a lesser sentence if it had known that
the guidelines were not mandatory. Acosta has not shown that the
district court would have imposed a different sentence if it had
known that the guideline were advisory, and, thus, has failed to
show that the sentence imposed was plain error.
Id.
CONVICTIONS AFFIRMED; SENTENCES VACATED IN PART; CASE REMANDED
FOR RESENTENCING.
