*1
dаy
of his shift that
and corroborated
tions
ning
add to the
reasonableness
report.
agent
agent’s
the lookout
suspicion. Viewed in
light
in considering
district court were correct
government,
most
stop
favorable
this fact relevant. This court need not
justified.
was
consider whether
the lookout alone was
The district court correctly con
sufficient, however,
Hampton
because
also
cluded that under the totality of the cir
in appraising
considered other
factors
cumstances, Agent Hampton had reason
suspicion.
whether
there was reasonable
suspicion
able
to stop Ceniceros. The
Hampton testified that
the Lumi- Lumina
traveling
wаs
from the direction
respond
na’s shocks were slow to
from
border,
did not have
park
a
sticker
road,
bumps
even subtle
and that
on its windshield and
not recognized
was
something
this indicated
that
was
by Hampton. Most important,
the vehi
agent’s
vehicle’s trunk. The
observations
cle,
driver,
its
and the car’s route fit the
suspicion
served to further
his
support
description of a
Hampton
BOLO
received
Lumina,
that
which fit the BOLO’s
day.
car,
that
When he followed the
he
description,
engaged
drug
was
traffick
observed that
the car drifted within its
ing.
heavily-laden appearance
A vehicle’s
appeared heavily-laden
lane and
in the
may support
finding
suspi
of reasonable
trunk. All
providеd
these factors
articu-
cion and corroborate an
tip.
informant’s
lable facts that
illegal activity
indicated
Lopez-Gonzalez,
See United States v.
facts,
might be afoot. Under these
we
Cir.1990);
F.2d
see also
say
cannot
suspicion
reasonable
was
Morales,
(agent’s
other relevant in the consideration reason- Hampton
ableness determination. had
been the Border Patrol for slightly more
than year. one He testified that he had in ten
participated resulting seizures stops along Highways from vеhicle 118 and America, UNITED STATES of experience 385. While this level of does Plaintiff-Appellee, Hampton veteran, not make a seasoned it If judgment. any- does not dimmish his thing, his familiarity drug activity with OCANA, Flora Alicia Defendant- ability the area bolsters his to make infer- Appellant. ences from other his observations. No. 98-41133. Likewise, agent’s observations that the driver of the vehicle seemed to be United of Appeals, States Court drifting within his lane due to his aware- Fifth Circuit. trailing patrol car and ness the car’s registration non-Hispanic Female Feb. 2000. not, more, might Dallas reasonably without Rehearing Denied March suspicion activity.
warrant criminal But other, when viewed with agent’s more
particularized suspicions about the vehicle driver,
and its the more subtle observa- *2 AND
FACTUAL PROCEDURAL
BACKGROUND April On Flоra Alicia Ocana (“Ocana”) was arrested after a traffic stop *3 possession and found to be in of 90 kilo- grams 1997, In May marihuana. Ocana and her co-defendant Keenan Stroud Ben- net were indicted on one count of conspira- cy possess to marihuana with intent distribute, a second count posses- sion of marihuana with intent to distribute. 25, July On plead 1997 Ocana guilty first count of the indictment. Ocana also agreed provide truthful a rendition of probation facts for the department exchange government’s for the agreement to dismiss count two of the indictment and recommend a sentence at the low end of Timothy (argued), G. Hammer Paula applicable guideline range. The initial Offenhauser, Atty., Camille Asst. U.S. (“PSR”) presentence report was submitted Houston, TX, Kathlyn Snyder, Giannaula 26, September 1997 and determined that for Plaintiff-Appellee. total offense level was which was Kuhn, Robert J. Kuhn (argued), Doyle based on an offense of 24 posses- level for Kuhn, Austin, TX, Defendant-Appel- & kilograms sion of 90 of marihuana and a lant. acceptance three-level decrease for of re-
sponsibility. This initial eq- determination guideline range ualed a of 37-46 months imprisonment.
In patrol November agents border KING, Judge, stopped (“Flores”), Before Chief Ricardo Flores Norma STEWART, (“Cervantes”), Salina Judges. POLITZ and Circuit Cervantes and Cer- patrol
vantes’s three sons. The border kilograms discovered of marihuana. STEWART, CARL E. Judge: Circuit immediately Cervantes informed the bor- appeals Flora Alicia Ocana the sentence patrol der and FBI that drugs be- pleading guilty she received after con- Ocana, longed to who had hired them to spiracy possess with intent to distribute (“November transport the marihuana marihuana, approximately 90 kilograms conduct”).1 “post-conviction offense” or 846, 841(a)(1), §§ in violation of 21 U.S.C. government On June provided 841(b)(1)(c). challenges Ocana the dis- parte ex notice to the court concerning trict court’s enhancement her sentence alleged misconduct of the dеfendant. post-conviction on based conduct. This Based on the information the No- about post-conviction conduct to an led increase probation vember 1997 offense the officer (“second in Ocana’s base level and a sen- filed an addendum to the PSR addendum”) tence enhancement for role recommending offense. that Ocana be We affirm. sentenced based on total offense level of any 1. Ocana was indicted June 1998 for her the indictment was that sentence ren- part activity. in this The Government later dered for the November 1997 offense would dropped charges. argument At oral have run concurrent received sеntence prosecutor dropped stated that the reason he in the case. reduction for rejection a base of the three-level total offense level included 28. This figure acceptance responsibility. that included sentenc- level of ing guideline range for a total offense level kilograms of marihuana. the additional 48 also of 28 is 78 to 97 months. court sen- addendum the PSR the second adjust- to a month term of im- upward tenced Ocana recommended a two-level year and a three term of su- prisonment role in the offense and recom- ment for pervised decrease release. denying the three-level mended acceptance responsibility. DISCUSSION objections to the attorney filed ar- addendum to the PSR. Ocana second appeal. on Ocana raises three issues offense was gued that the November 1997 First, that the district court argues Ocana *4 sentencing, to her and she not relevant increasing her base offense level erred ownership responsibility or for also denied conduct that occurred after she based on found the the marihuana was bor- Second, challenges Ocana was convicted. patrol. probation officer filed der finding the district court’s of a two-level in response third addendum to the PSR enhancement for role the offense bаsed objections. The third addendum Ocana’s upon alleged post-con- evidence Ocana’s pursuant to the PSR stated that Finally, conduct. Ocana contends viction lB1.3(a)(2) was the November 1997 offense in relying that the district court erred on part course of conduct as the of the same alleged co-conspirators testimony her be- plead guilty, for which and offense Ocana it have a indicia of cause did not sufficient required therefore was to be considered reliability. determining Ocana’s sentence. sentencing hearing Agent At the FBI A. of Review Standard Flores, Andrews”), (“Agent Rob Andrews normally This court reviews the testify. and Cervantes were called to On оf the application district court’s Sentenc morning hearing of the Flores and and ing Guidelines de novo its factual find Andrews, Agent Cervantes informed and A will ings for clear error. sentence testified that Ocana had recruited them to upheld imposed unless it was in violation of transport marihuana to on at least Florida law, application was an incorrect of the they ap- two other occasions before were sentencing guidelines, or is outside the prehended by patrol in Novem- border range applicable sentencing guide of the 1997. Cervantes and Flores testified ber line. United States v. Hernandez-Gue van, that Ocana told them to rent a and (5th Cir.1998). vara, it trip take their kids on the to make look object Failure to to either the or the PSR family They like a vacation. claimed that district court’s sentence results in review trips they on all of these drove the van to Ruiz, error. plain See United States Garden, Florida, hotel, Winter found a (5th Cir.1995). fly then contacted who would Ocana case, They Florida meet them the hotel. Govern urges stated that the van ment to review pick up Ocana would this court complete from them at the hotel and application sentencing guide court’s delivery drugs. hearing plain final lines error did not After because Ocana objections testimony this the court raise the same in the district overruled Ocana’s objections in this adopted findings appeal. court that she raises We objec second The court find that did make written addendum PSR. Ocana accepted kilograms the inclusion of the 48 tions The thud addendum to to the PSR. objections acknowledges cocaine in the Ocana’s determination base PSR level, offense enhancement to the second addendum to the PSR re two-level for Ocana’s garding role in the and the the increase her base offense adjustment for her role in the appeals, level which she now and we will review objection offense. Oeana’s to the second her claims under the normal standard of addendum’s recommendation on her base review for Sentencing Guideline issues. level as follows: offense
“The defendant asserts that
B. Base
the infor-
Offense Level
mation
the Second Addendum to the
argues
Ocana
the district court
Report
Presentence
is not
relevant
erred in considering the November 1997
impacting
her sentence of con- offense in the calculation of her base of-
viction. The defendant denies the own-
fense level because this conduct occurred
ership
any responsibility
or
for the
after her conviction. The PSR stated that
marihuana that Norma Cervantes and Ocana’s base level offense was increased
caught
Ricardo Flores were
transport-
pursuant
§
to USSG 1B1.3. Under
1B1.3
ing.”
district
permitted
courts are
to consider
objection
to the PSR’s recommen-
unadjudicated offenses which occur after
upward adjustment
dation of an
in the
role
the offense of conviction for sentencing
offense was “that
not
she did
have a role
purposes
unadjudicated
if the
offense is
the instant
concerning
Norma Cer-
“relevant conduct”.
In order for an unad-
vantes and Ricardo Flores.”
judicated offense to be “relevant conduct”
*5
purpose
requiring
defendants to
part
it must be
of the same course of
timely objections
make
to the PSR and conduct, common
plan
scheme or
as the
actual
is
upon
sentence
“founded
consider
offense of conviction. United
States
ations of fairness to the court and to the Vital,
(5th Cir.1995).
68 F.3d
and
parties
public
bring
of the
interest in
district court found that
the November
ing litigation
an end
opportu
after fair
part
1997 offense
was
the same course
nity
present
has been afforded to
all issues
April
of conduct as the
1997 incident for
Ruiz,
of law and fact.”
While she did not
cite
plan is a
subject
factual determination
USSG section which
applied,
the PSR
she
review
clearly
this court under the
er
general objection
did make a
that notified
Vital,
roneous standard. See
disagreement
the court of her
with the use
Therefore,
in
order for
Ocana
of the November
in
1997 offense
her sen
demonstrate that the district court incor
tencing,
gave
and
the district court the
rectly applied
sentencing guidelines
opportunity to address the relevance of the
§
under
1B1.3 she must show that
unadjudicated
objections
conduct. Ocana’s
finding
district court’s
that
the offenses
in writing,
to the PSR were
and there was
invоlving
part
Cervantes and
were
Flores
response by
probation
a written
officer
April
the same course of conduct
as
1B1.3(a)(2).
§
that referenced
The district
clearly
1997 offense was a
erroneous find
court
clearly
grounds
notified of the
ing.
upon
objections
which
being
Ocana’s
were
(a
Krout,
made.2 See
Id. July transporting drugs for Ocana case, there is not a In the they trips two other and made similarity significant degree of between and Therefore September November. April post-convic only place offenses took three these involving Cervantes tion conduct months after offense of conviction. major similarity The one is Flores. only time there was no appears It that the transporting mari the offenses all involved drug activity was the time between Oca- than huana to Florida.3 the com Other guilty plea April na’s arrest and her delivery April mon location the testimony July. Even if we discount the significantly from 1997 offense is dissimilar incidents Cervantes and Flores about the involving the offenses Cervantes day until the that were not disclosed First, is no evidence of simi Flores. there only the sentencing hearing4, and consider source, suppli lar or accomplices, common only at the most November Wall, er. States v. See United of- elapsed seven months between Ocana’s (5th Cir.1999) (common source, 641, 646 November fense of сonviction and this *6 supplier operandi and modus considered 1997 offense. by similarity in of of determining court It is well settled this circuit that fenses). In April 1997 offense Ocana year of offenses which occur within one transporting drugs claimed to be at the may considered offense conviction Bennet, of Keenan and informed behest sentencing. for See relevant through the FBI that she had met Bennet Bethley, United States v. 973 F.2d In lawyer named Bob Meier. the Cer (5th Cir.1992) (finding drug 400-01 trans- they claim that vantes and Flores offenses prior actions that occurred six months transport drugs them to Ocana recruited the offense of conviction to be relevant person and involved in the that the other Moore, conduct); v. United States transaction was a car wash owner named (5th Cir.1991) (drugs F.2d seized operandi Aaron Munoz. The modus for prior five months to conviction could be April In the offenses is also different. conduct). considered relevant In two re- drove a van and met Bennet Ocana court that cent cases this has found airport. In the and an Cervantes too time interval between offenses is re- they Flores drove a rented van to offenses met them at mote to consider the extraneous offense a hotel and Ocana flew and those the hotel in Florida. Based on all of these be relevant conduct. both of day hearing dispute Florida 4. On the of the Cervantes and 3. There is some as to whether April for the they transported was the intended destination Flores testified that also in that 1997 offense. Ocana's co-defendant drugs July September. for Ocana in and Bennet, case, claimed that he and Ocana patrol They previously had told the border originally supposed complete were that the 1997 offense and the FBI November However, in Atlanta. Ocana in transaction transporting drugs their first time drug cooperation de- with the FBI made Ocana. livery to Bennet in Florida. Andrews, place Agent Cervantes, cases the offense of conviction took and Flores year more than a in time аnd concluded alleged from the offense that Ocana’s partic- Miller, ipation in question. drug transactions involving See United States Cer- (5th Cir.1999) vantes and part Flores were 966 n. 10 same course of conduct as the that a convic- (finding drug offense that occurred tion. After a careful review of the record prior 21 months convic- offense of we conclude that the district court’s find- tion was too remote in time to be consid- ing clearly Thus, was not erroneous. positive ered a factor for same course of based on the finding post that the convic- Wall, conduct); 645-46 tion conduct was relevant conduct under Cir.1999) (finding sepa- offenses § 1B1.3 the properly district court applied years tempo- rated four and five lacked guidelines adjusted Ocana’s base conviction). proximity ral to the offense of upward offense level to include the mari- case, In the because the offense of huana possession found of Cervantes conviction and the November 1997 offense and Flores in November 1997. took within place seven months of each other there is temporal proximi- sufficient C. Role in the Offense ty to find that part the offenses were The district court adopted also the same course of conduct. PSR’s recommendation that Ocana receive Finally, the third regularity factor of upward adjustment two-level for role in present. the offenses is also Cervantes original offense. The PSR contained and Flores testified that Ocana recruited adjustment no for role the offense. The them trips July, September probation officer added this recommenda- Therefore, partici- November. Ocana was tion for a two level enhancement based pating in drug bimonthly. transactions solely on post-conviction conduct. Based temporal proximity on the close appellant argues regularity of the offenses the district court court in determining erred her role clearly did not in finding April err that the solely offense based on the fаcts of the 1997 offense and the involving offenses November 1997 post-con- offense which as Cervantes part and Flores were viction conduct had no connection to the same course conduct. offense for which she was convicted. Ocana relies on our decision in United Sentencing guideline 3B1.1 al *7 Lara, 1120, States v. 975 F.2d 1128 lows for a sentence enhancement based on Cir.1992), proposition for the that a sen- the role in defendant’s the criminal activi tencing post-conviction enhancement ty. Contrary appellant’s argument, conduct should applied to the crime post-conviction may conduct be considered committed while on release and not the determining in in defendant’s role the original crime for which the defendant is offense, if post-conviction conduct is However, currently being sentenced. in determined to be relevant conduct under Lara the sentence enhancements were sentencing guidelines. the The introducto by made the district court pursuant to 18 ry commentary for section 3B1.1 instructs 2J1.7, § § U.S.C. 3147 and USSG not un- that “the determination of a defendant’s § der adjust- USSG 1B1.3 which allows for role the offense is to be made on the ment of post base offense level for convic- basis of all scope conduct within the of tion conduct under certain circumstances.5 (Relevant Conduct) 1B 1.3 ... аnd not sole sentencing hearing At the the district ly on the basis of elements and acts cited weighed testimony court heard and the of the count of conviction.” U.S.S.G. However, appellant 5. The post also cites United States v. on conviction offenses. inas Pace, (5th Cir.1992) interpreted 955 F.2d 277 as Lara the Pace decision a sentence authority argument § the pursuant that district enhancement 18 U.S.C. 1.3(a)(2). court’s should not enhance sentences based not 1B Also, prop- the district court as a matter of law introductory commentary. § 3B1.1 conduct post-conviction the erly considered that conduct which is court has held this in the determining Ocana’s role of- when adjustmеnt made upward the basis for an fense. be “an to section 3B1.1 must pursuant transaction, we will however chored to fact- the district court’s We review just view of what the
take a common-sense
in the offense for
finding regarding role
is. It is not the
of that transaction
outline
States v. Rodri
clear error. See United
charged that de
contours of the offense
(5th Cir.1990),
1324, 1325
guez, 897 F.2d
transaction;
fines the outer limit of
denied,
857, 111
cert.
498 U.S.
S.Ct.
underlying
it
contours of the
rather
is the
(1990).
and
112 L.Ed.2d
Cervantes
participation firmly
All
scheme itself.
that Ocana recruited
Flores both testified
ripe
is
underlying
based in that
transaction
marihuana to Florida.
transport
them to
leadership
adjudging
for consideration
providеd
They further testified that Ocana
Mir,
F.2d
v.
role.” United States
van,
money
paid
them
them
to rent a
(5th Cir.1990).
points
Mir
out
participation in the transactions.
for their
commentary
section
introductory
independent corrobo
there was no
While
that section 3B1.1 is “intend
3B1.1 shows
any
allegations
made
ration for
guideline sections
comport
with other
ed
Flores,
district court
Cervantes and
beyond
sentencing judge
to look
allowing
testimony
light
reliable.7 In
found their
to con
the narrow confines of the offense
introductory commentary
to section
945;
all
conduct.”6 Id.
sider
relevant
court
3B1.1 which allows the district
also,
Montoya-Ortiz,
see
United States
relevant
in its deter
consider all
cоnduct
(5th Cir.1993).
1171, 1181
offense,
in the
mination
role
testimony
and Flores which
of Cervantes
Therefore,
determining
Ocana’s role
leader,
re
clearly implicates Ocana as
properly
court
in the offense the district
cruiter,
manager
of their
trans
considered all transactions that
it deter-
that the
court
actions we conclude
district
under the
mined to be relevant conduct
upward adjustment
not err in its
did
The district court
sentencing guidelines.
for role in the offense.
Ocana’s sentence
made a determination that
the relevant
case included
Co-Conspirator testimony
D.
involving
and Flores.
offenses
Cervantes
B,
sentencing hearing
district court’s
At the
Part
we affirmed thе
Thus,
testimony from
ruling regarding relevant conduct.
court heard
Cervantes
organization
pies
the work of Mir’s
and his
6. Other circuits have also held that the intro
commentary
ductory
3B1.1 in
section
first hand observations of Mir's involvement.
Mir,
structs district courts to consider all relevant
See
proving guilt beyond a reasonable doubt. Only may then one constitutionally pun- CONCLUSION ished for that Today’s criminal offense. We affirm the decision, district court’s consider- and others it appear like post-conviction ation of adjust conduct be part number, of an ever increasing pursuant base offense level erode that basic tenet to point that we *9 § USSG 1B1.3. must, We also affirm candor, in all concede that today upward adjustment court’s punishment Ocana’s sen- for criminal conduct is not lim- offense, tence for role in the аnd the dis- ited to the criminal conduct for which one na, Conspiracy possess 846, 1. 841(a)(1), to with intent to distrib- §§ in violation of 21 U.S.C. approximately kilograms 841(b)(1)(C). ute 90 of marihua- 594 in a that mandated far below proof level of been estab- or which has pled guilty
has
Indeed,
sug-
I
to
presume
a reasonable doubt.
criminal trial.
by proof beyond
lished
by a
than a few occasions
gest, on more
process clause
judgment, the due
my
carry
not
the
which would
proof
level of
this erosion. Some
permit
does not
civil case.
in a contested
day
shortcuts,
criminal
simplifications of
these
violate
suggest,
would
as some
procedure,
if
important,
an
conduct” is
“Relevant
impоses a
clause which
process
the due
critical,
sentencing
part of the
not
indeed
every
prove
government
the
burden on
re-
sentencing guidelines
formula.
be-
criminal offense
charged
of a
element
relevant
prove
quire
government
the
doubt,2
requirement
a
a reasonable
yond
preponderance
by a mere
conduct
a nation.3
early years
our
as
dating from
considered at sen-
Information
evidence.6
proof
the
requiring
reason is
obvious—
indicia of
have a “sufficient
tencing must
reduces
beyond a reasonable doubt
guilt
courts are accord-
reliability,” and district
pun-
and resultant
of convictions
the risk
reli-
considering
thе
discretion
ed broad
Recog-
error.4
resting on factual
ishment
relevant
supporting
information
ability of
doubt
vital role the reasonable
nizing the
conduct.7
justice sche-
in our criminal
plays
standard
“a
ma,
noted that
Supreme Court has
the
embodying
instant case as
perceive
I
a crime ... would be
accused of
person
merging of the reasonable
unacceptable
an
disadvantage
a
disadvantage,
a severe
preponderance
into the
standard
doubt
fundamental fair-
amounting to a lack of
standard,
By accepting
and less.
evidence
ness,
adjudged guilty and
if he could be
subsequent
proof of the
government’s
strength of
years
оn the
imprisoned
which, my
by
opinion,
evidence
in a
would suffice
same evidence as
trial,
in a criminal
not have sufficed
would
civil case.”5
been found
probably
indeed
would have
could under-
assume that one
One would
trial,
mark-
thereby
wanting in a civil
by
Supreme Court
teaching
stand this
exposure under
edly increasing Ocana’s
things essential
meaning that those
as
con-
sentencing guidelines, neuters the
of a criminal
question
guilt
of one’s
that one shall not be
assurance
stitutional
offense,
things that factor criti-
and those
liberty and freedom based
deprived of
therefor, must
cally
punishment
into the
a
anything
proof beyond
than
upon
less
beyond a reason-
by proof
be еstablished
doubt.
reasonable
time, however,
point
At this
able doubt.
that one’s
My majority colleagues opine
in time
point
At this
such is not
case.
proven beyond
must be
guilt
reasonable
guilt
charged
proof
punishment
one receives for
doubt but
beyond a reasonable doubt but
must be
facts
may be based on
transgression
the sentence is
upon
of “facts”
which
proof
of reliabili-
uncertain level
based,
proven
some
punishment
non of
qua
the sine
only
prevail
ty, including
sufficient
only
need
that criminal
(5th
Williams,
Lampton,
F.3d 251
6.
States v.
158
v.
consider what has this defen- process unjust. I sentencing
dant respectfully
must dissent.
Edgar Tanzy J. Borrego, Borrego, El & Paso, TX, for Appellants. RAMIREZ;
In the Matter of: Salomon Ramirez,
Maria A. Debtors. BARKSDALE,
Before BENAVIDES Ramirez; STEWART, Salomon Maria A. Judges. Circuit Ramirez, Appellants,
PER CURIAM: This appeal bankruptcy is from court’s order denying proposed confirmation of a Phyllis Bracher, Chapter Chapter reorganization. 13 plan of We Appellee. Trustee, affirm. No. 99-50597. I. FACTUAL AND PROCEDURAL Appeals,
United States Court HISTORY Fifth Circuit. appeal The facts of this are not in dis- Feb. pute. debtors, and Maria A. Salomon
Ramirez, petition filed a for relief under Chapter 13 Title 11 United States Code. Pursuant 11 U.S.C. seсtion a proposed bankruptcy debtors filed plan. subtracting monthly After expenses income, from their net the debtors were disposable left with income each $185 month. plan proposed that the debt- ors would pay the trustee each month $125 for a period sixty months. plan
More specifically, separated all unsecured classes and proposed debts into repayment different level of for each comprised entirely class. “Class One” was Mervyns of a debt the amount $844 co-signed by Credit that had Maria been plan proposed Ramirez’s sister. The pay the of this co-signed entire amount percent consumer twelve inter- plus debt paying est. After off the entire debt