UNITED STATES of America, Plaintiff-Appellee v. Javier GUERRERO, also known as Javi, Defendant-Appellant
Nos. 13-50376, 13-50379
United States Court of Appeals, Fifth Circuit
Sept. 11, 2014
768 F.3d 351
Thus, the Donziger Waiver applies to documents created on or before October 20, 2010. Any issue of whether Donziger or any other relevant person has voluntarily produced post-October 20 materials that effected an additional waiver is not properly before us. We take no position on how the district court should resolve that issue should it arise in further proceedings.
D.
In addition to the Donziger Waiver, the magistrate judge and the district court found two other independent bases to permit discovery of the documents for which Page had asserted privileges from disclosure. The magistrate judge found that the crime-fraud exception applied because of Page‘s involvement in obtaining the allegedly fraudulent judgment in Ecuador. In addition, various voluntary disclosures—including disclosures to Cabrera—defeated the privileges that Page asserted by effecting a subject-matter waiver. Having already found a substantial and independent reason to affirm the district court‘s order in the
IV.
For the foregoing reasons, we dismiss appeal number 13-1382 and affirm the lower court‘s judgment in appeal number 13-2028.
No. 13-1382 DISMISSED
No. 13-2028 AFFIRMED
Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX, for Defendant-Appellant.
Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
This is a consolidated appeal of two cases brought against Javier Guerrero, an individual the government alleged was the leader of the Texas Mexican Mafia in Uvalde. The first case, which involved racketeering charges including the commission of two murders in aid of racketeering, resulted in guilty verdicts and the imposition of five life sentences. As might be expected in a case with such high stakes on both sides, the appeal raises issues that run the gamut of a criminal proceeding. Guerrero raises a Fourth
While Guerrero was awaiting sentencing in the first case, he assaulted a correctional officer. That gave rise to his second federal criminal case. Because Guerrero pleaded guilty to the assault charge, his appeal in the second case focuses solely on the 210-month sentence he received.
Finding no error in either case, we affirm for the reasons discussed below.
I. Background Facts and Proceedings Below1
The bonds that tie a violent criminal operation together can be deadly to the general public. But when things go wrong internally, and those bonds fracture, the members of the operation are vulnerable to the fallout. This case is a prime illustration.
In the early 1980s, a group of Texas inmates formed a hierarchical criminal enterprise that they named the Texas Mexican Mafia.2 San Antonio is its “capital,” but it operates throughout Texas. Operations are funded by extortion; small-bit drug dealers are forced to pay the Mexican Mafia a 10% “tax,” or “dime,” on all of their proceeds from illegal drug sales. In exchange, the Mexican Mafia guarantees the dealers protection and allows them to sell drugs in Mexican Mafia-dominated areas. The group itself also traffics in illegal drugs.
The Mexican Mafia takes its organizational structure and its rules very seriously. Following the omerta code of the original mafia, perhaps the most important rule is that members cannot cooperate with law enforcement. Often, enforcing this and other membership obligations means committing murder.
Javier Guerrero was born in Uvalde, Texas, on July 20, 1988. Three of his older brothers—Carlos, Miguel, and Orlando—were longstanding members of the Mexican Mafia. At sixteen, Guerrero began his affiliation with the Mexican Mafia, and he rose quickly through its ranks. By seventeen, he was a sergeant, in charge of all operations in Uvalde. In June 2006, just before he turned eighteen, he planned a brutal home invasion of Geraldo Gonzales, a local drug dealer who had refused to pay the “dime.”
One of the perpetrators of the Gonzales home invasion was Guerrero‘s friend, Chris Mendez. Mendez‘s girlfriend, whose brother is a detective, encouraged Mendez to turn himself over to authorities after the Gonzales incident. Guerrero and another Mexican Mafia member, Valdomero “Oso” Hernandez, found out about Mendez‘s apparent cooperation with authorities, and considered him a snitch. (Incidentally, this was wrong—Mendez was actually taking the fall for the home invasion.) They asked for and received permission from William Davalos, the lieutenant ranked above Guerrero, to kill Mendez. Part of the reason this responsibility fell on Oso is
The Mendez murder occurred on December 2, 2006. That morning was the last time Mendez‘s girlfriend saw him alive. When Mendez and Guerrero came up to the drive thru at the restaurant where she worked, she noticed that Mendez was sad and avoided her gaze, and that Guerrero appeared uncharacteristically nervous. Mendez and Guerrero ordered coffees and left. At around 4:15 or 4:30 p.m. that day, Luis David Garza found Mendez‘s body in the middle of a road leading to Garza‘s ranch in Concan, Texas. Mendez had two bullet wounds in his head. Oso later told Nicholas Alvarez, another member of the Mexican Mafia, that he was the one who shot Mendez at close range. He also told Alvarez that Guerrero was with him and it annoyed him that Guerrero started making calls immediately after Mendez was shot.
Guerrero told two Mexican Mafia members who were beneath him in the hierarchy about the Mendez murder. He showed Chris Ortiz the criminal indictment in this case and said he was involved in “two of them,” which Ortiz took to mean “murders.” And he told Eli Valdez, who reported to Guerrero, that Valdez would be killed—like Mendez was—if he ever snitched.
Other evidence implicating Guerrero in the Mendez murder was introduced at trial. Historical cell site information indicated that Guerrero made five phone calls between 2:20 and 4:14 p.m. on the afternoon of the murder. One of the towers from which Guerrero‘s phone received service when he placed those calls is located 12.8 miles from the murder site. The phone records indicate that between 4:30 and 5:00 p.m., Guerrero was moving east, and by 5:42, he was receiving service in the San Antonio area. This coincides with testimony from Guerrero‘s brother, Orlando, stating that he, Guerrero, and Oso met up at a Wal-Mart in San Antonio in the late afternoon that day. When they went back to Orlando‘s house, Guerrero and Oso threw out their shoes and Oso‘s shirt. Later that night, Orlando heard Oso weeping on the phone, telling his girlfriend, “Nah, babe, I can‘t believe I killed him. I can‘t believe—he‘s my road dog, carretera perro. We were so close together.”
After authorities discovered Mendez‘s body, they discovered another dead body on the same ranch in Concan: Jesse “Pos Pos” Rodriguez. According to testimony at trial, Pos Pos was killed roughly a week before Mendez was and for the same reason. Orlando testified that he received orders to take out Pos Pos because Pos Pos was suspected of being an informant. But Guerrero was the one who orchestrated the murder.3 Guerrero and three other Mexican Mafia members, including Orlando, stabbed Pos Pos until he bled profusely. Guerrero ran from the scene while the other three members shoved Pos Pos—still breathing—into a hole in the ground. They mixed up concrete and cement,
Soon after these murders, Guerrero was promoted to lieutenant. He had several jobs: collecting the dime from drug dealers; seizing taxes from individuals bringing undocumented aliens into the United States; and supplying the Mexican Mafia with cocaine. In this new lieutenant role, he formally called a meeting on July 13, 2008, in Sabinal to discuss a problem: several drug dealers, including a man named Buck, were not paying the dime. Guerrero ordered a hit on Buck, and if the Mexican Mafia could not kill Buck, he told them, “fuck it, kill his brother Damian” Garza instead. He also ordered the murder of Valentin Mendoza, because he was not paying the dime, and Mexican Mafia member Jesse Carlos, because he was acting up and stealing. Five days later, Damian Garza was shot and killed by two Mexican Mafia members in front of his teenage daughter. The other hits Guerrero had ordered were thwarted. The plan to murder Mendoza was called off after one of the Mexican Mafia members assigned that task decided not to go through with it and alerted his probation officer to the plan.
On July 14, 2009, a federal grand jury indicted Guerrero and eleven others for various crimes related to the Mexican Mafia. All but two of those indicted—Guerrero and Victor “Youngster” Esquivel—pleaded guilty before trial. Guerrero and Esquivel were tried together.4
The five counts alleged against Guerrero were:
- Count One: Conspiracy to Conduct the Affairs of an Enterprise through a Pattern of Racketeering that included:
- Murder of Christopher Mendez;
- Murder of Jose Damian Garza;
- Solicitation of Murder of Jesse Carlos;
- Solicitation of Murder of Valentin Mendoza;
- Conspiracy to Interfere with Commerce by Extortion; and
- Conspiracy to Distribute Narcotics
- Count Two: Murder of Christopher Mendez in Aid of Racketeering
- Count Three: Conspiracy to Murder Christopher Mendez in Aid of Racketeering
- Count Five: Murder of Jose Damian Garza in Aid of Racketeering
- Count Six: Conspiracy to Murder Jose Damian Garza in Aid of Racketeering
Counts Two and Five were capital charges, but the government declined to pursue the death penalty.
At trial, thirty-three witnesses testified against Guerrero, including William Davalos, Guerrero‘s brother Orlando, and five other Mexican Mafia members. Four witnesses the government designated as experts also testified. One, Robert Almonte, told the jury about a religious figure, known as the Santa Muerte, whom many drug traffickers along the United States-Mexico border keep close by because they believe she offers spiritual protection. Guerrero kept medallions and necklaces with an image of Santa Muerte at his home. Another expert, Victor Nguyen, interpreted the historical cell site informa
While awaiting sentencing in the racketeering case, Guerrero was housed in the Val Verde County Correctional Facility in Del Rio. On October 25, 2011, he and inmate Jorge Abel Ramirez, also a Mexican Mafia member, assaulted a corrections officer named Daniel Dominguez. Guerrero chased down Dominguez and then kicked, grabbed, and kneed him. Ramirez joined in, striking Dominguez repeatedly on the head. Dominguez suffered a laceration on his forehead and abrasions on his face, nose, and back. The impetus behind the assault was that several days earlier, Dominguez had unplugged a television set that Guerrero and Ramirez were watching. He had taken away their television privileges because they would not return the remote control as he had requested. Guerrero and Ramirez told Dominguez that it was disrespectful to warn them that they were not in charge.
On April 10, 2013, the district court sentenced Guerrero to life on all five counts in the racketeering case. The life sentences on Counts Two and Three (conspiracy to murder and murder of Chris Mendez) run concurrently, as do the life sentences on Counts Five and Six (conspiracy to murder and murder of Damian Garza). The life sentences on Count One (RICO conspiracy charge), Counts Two and Three, and Counts Five and Six run consecutively. Guerrero thus essentially received three consecutive life sentences.
The district court also handed down a sentence for the assault. It determined that Guerrero was not entitled to a reduction for acceptance of responsibility, even though he pleaded guilty, based on the following statement he made to probation about the assault:
I feel very bad about what happened. But you know, we‘re men, and when you disrespect another man, you have to understand there are consequences. I feel bad about the whole situation and how it happened. It happened in the heat of the moment, and I wish cooler heads could have prevailed. I understand it was wrong and there are consequences.
The court also found that Guerrero was a career offender under the Sentencing Guidelines because he had “at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
II. Racketeering Case
A. Historical Cell Site Location Data
Although Guerrero raises a number of issues concerning his racketeering case, we begin with the one that was the focus of his counsel at oral argument. Guerrero asserts that the district court should have suppressed the historical cell site location data that roughly indicated where he was, or at least where his cell phone was, on the afternoon that Mendez was killed.5 That
Guerrero‘s problem is that suppression is not a remedy for a violation of the Stored Communications Act. The Act has a narrow list of remedies, and—unlike the Wiretap Act, see
For Guerrero to suppress the cell site location data, he therefore must show that the cell site location data was obtained not just in violation of the Act, but also in violation of the Fourth Amendment. That constitutional question requires a separate inquiry, and it is one we recently addressed. In Historical Cell Site, we held that “Section 2703(d) orders to obtain historical cell site information for specified cell phones at the points at which the user places and terminates a call are not categorically unconstitutional.” Id. at 615. We emphasized that cell phone users voluntarily convey information to their service providers and reasoned that they “understand that their service providers record their location information when they use their phones at least to the same extent that the landline users in Smith [v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)] understood that the phone company recorded the numbers they dialed.” Id. at 613. Although our
Rather than attempting to distinguish Historical Cell Site (an effort that would be unavailing for the reasons discussed above), Guerrero argues that the even more recent Supreme Court decision in Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), is an intervening change in the law that requires us to depart from our prior holding. But “for a Supreme Court decision to change our Circuit‘s law, it ‘must be more than merely illuminating with respect to the case before [the court]’ and must ‘unequivocally’ overrule prior precedent.” Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir.2012) (quoting Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir.2001)).
Riley does not unequivocally overrule Historical Cell Site. In Riley, the question was whether the search-incident-to-arrest doctrine allows the government to search an arrestee‘s cell phone without a warrant. Based on modern cell phones’ immense storage capacity, and because they can reveal the “sum of an individual‘s private life,” the Court answered no. Riley, 134 S.Ct. at 2489, 2495.
Although the issues in Riley and in Historical Cell Site implicate a broader theme concerning the application of the Fourth Amendment to modern technology, they involve distinct doctrinal areas. Cf. id. at 2489 n.1 (“Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.“). The Riley defendant indisputably had an expectation of privacy in the contents of his personal cell phone; the issue was whether the search-incident-to-arrest exception overcame that privacy interest for the contents of an arrestee‘s cell phone like it did for the contents of an arrestee‘s cigarette pack. See United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (“Having in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it . . . .“); Riley, 134 S.Ct. at 2484-85 (declining to extend Robinson “to searches of data on cell phones” because a “search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson“). Historical Cell Site involves the different question of whether a cell phone owner has a reasonable expectation of privacy in information held by a “third party” service provider. The Supreme Court recognized in Riley that these are different issues when it distinguished the seminal “third party” doctrine decision in Smith:
The Government relies on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. There is no dispute here that the officers engaged in a search of Wurie‘s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual
might add, such as the label “my house” in Wurie‘s case.
Id. at 2492-93 (internal citations omitted).7
This is not to say that the Supreme Court may not reconsider the third party doctrine in the context of historical cell site data or some other new technology. Since Historical Cell Site was decided, the Eleventh Circuit has ruled the other way, although in a decision vacated pending en banc review. United States v. Davis, 754 F.3d 1205, 1217 (11th Cir.2014), rehearing en Banc granted, vacated and rehearing en banc granted, 573 Fed.Appx. 925, 2014 WL 4358411 (11th Cir. Sept. 4, 2014) (distinguishing Smith and Historical Cell Site and holding that “cell site location information is within the subscriber‘s reasonable expectation of privacy“); see also In re Application of the U.S. for an Order Directing a Provider of Elec. Commc‘n Serv. to Disclose Records to the Gov‘t, 620 F.3d 304, 317 (3d Cir.2010) (distinguishing Smith on the ground that a “cell phone customer has not ‘voluntarily shared’ his location information with a cellular provider in any meaningful way“). It may be that the “technology is different” rationale that led the Riley Court to treat an arrestee‘s cell phone differently from his wallet will one day lead the Court to treat historical cell site data in the possession of a cellphone provider differently from a pen register in the possession of a pay phone operator. See Riley, 134 S.Ct. at 2488 (“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” (citation omitted)). Indeed, at least one Justice has expressed skepticism that Smith should apply to modern technologies, United States v. Jones, 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.“), and Riley recognized those concerns, see id. at 2490 (“Historic location information is a standard feature on many smart phones and can reconstruct someone‘s specific movements down to the minute, not only around town but also within a particular building.” (citing Justice Sotomayor‘s concurrence in Jones)). And commentators have debated the effect Riley may have if a “third party” case involving modern technology were to end up at the Court. Compare, e.g., Daniel Solove, The U.S. Supreme Court‘s 4th Amendment and Cell Phone Case and Its Implications for the Third Party Doctrine, CONCURRING OPINIONS (June 25, 2014) (“Although the case involves searches incident to arrest and not other areas of the Fourth Amendment, the Court recognizes some key points about privacy and technology that might harbinger a change in some other Supreme Court doctrines [such as the third party doctrine].” (emphasis added)), with Barry Friedman, How the Supreme
The mere existence of that spirited academic debate, however, resolves our limited inquiry. In determining the effect of Supreme Court developments on our precedents, we do not read tea leaves to predict possible future Supreme Court rulings, but only decide whether an issued Supreme Court decision has “unequivocally” overruled our precedent. As discussed above and confirmed by the academic commentary, Riley did not overrule our decision in Historical Cell Site, or the Court‘s earlier Smith decision on which Historical Cell Site was based. See also Ford v. State, 444 S.W.3d 171, 190-91 (Tex.App.-San Antonio Aug. 20, 2014) (concluding that Riley “does not concern the third party doctrine espoused” in Smith and is “otherwise inapplicable to the present situation involving a court order to obtain . . . business records of [defendant‘s] use of its cell tower network“). The district court thus properly admitted the historical cell site location data at trial.9
B. Jurisdiction
Guerrero‘s next argument is also at odds with our precedent, and there is no intervening Supreme Court case that might even arguably call it into doubt. Guerrero contends that the district court lacked subject matter jurisdiction over Count One, the racketeering conspiracy charge, because the Juvenile Justice and Delinquency Prevention Act limits the government‘s power to try a juvenile—“a person who has not attained his eighteenth birthday“—in federal court.
At first glance, Guerrero might appear to be a “juvenile” under the Act: he was sixteen when his involvement in the Mexican Mafia conspiracy began, and only twenty when the indictment was returned. But in United States v. Tolliver, 61 F.3d 1189, 1200 (5th Cir.1995), judgment vacated on other grounds by Moore v. United States, 519 U.S. 802, 117 S.Ct. 40, 136 L.Ed.2d 4 (1996), we confronted, and rejected, the argument Guerrero makes now: that a defendant cannot be tried on a conspiracy charge in federal court if he entered into a conspiracy before he turned eighteen. Instead, we adopted the following rule: “after he turns 18, a defen
There was sufficient evidence for the jury to conclude that Guerrero ratified his involvement in the RICO conspiracy after he turned eighteen. See Tolliver, 61 F.3d at 1200. Indeed, four of the six alleged RICO predicate offenses—the murders of Christopher Mendez and Damian Garza, and the solicitations of murder of Jesse Carlos and Valentin Mendoza—occurred after Guerrero turned eighteen. The other two alleged predicate acts, extortion and narcotics distribution, were both supported with significant evidence of post-eighteen conduct. For instance, the murders Guerrero ordered at the July 2008 meeting in Sabinal were tied to the victims’ failure to pay the dime. Finally, an FBI agent testified that Guerrero attempted to sell him cocaine in November 2006, when Guerrero was over eighteen. In light of this considerable evidence of post-eighteen engagement in the RICO conspiracy, the district court had jurisdiction to try Guerrero on that charge.
C. Sufficiency of the Evidence
The next issue Guerrero raises is whether the jury could reasonably have found him guilty of Count Two, the murder of Chris Mendez in aid of racketeering. Guerrero notes that his DNA was not found at the murder scene and also argues that the cell site location data bolsters his case by placing him 45 miles away from the murder scene around the time Mendez was killed.
In conducting our de novo review of the sufficiency of the evidence, “we review all evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt.” Harris, 740 F.3d at 962 (quoting United States v. Shum, 496 F.3d 390, 391 (5th Cir.2007)). Viewing the evidence in the light most favorable to the verdict, the jury could have found the following:
- Guerrero thought that Mendez was a snitch;
- Guerrero asked his superior, William Davalos, for permission to carry out the murder;
- Guerrero killed Pos Pos, a Mexican Mafia member, approximately a week before Mendez was killed, and the body was found in almost the same place where Mendez‘s was;
- Guerrero was last seen with Mendez on the day of his murder;
- That day, Mendez‘s girlfriend noticed that Mendez looked sad and Guerrero, uncharacteristically, appeared nervous;
- Guerrero was with his brother Orlando in San Antonio late in the afternoon on the day of the murder, and Orlando saw Guerrero throw out clothes that were still wearable;
- Oso told a Mexican Mafia member that Guerrero was present when Oso shot Mendez;
- Orlando heard an anguished Oso talking on the phone to his girlfriend
about how hard it was for him to kill one of his best friends; and - In an effort to bolster his reputation in the group, Guerrero told two lower ranking Mexican Mafia members that he killed Mendez.
This evidence is more than sufficient to support the jury‘s verdict despite the lack of incriminating DNA. Furthermore, the disputed cell phone tracking data could have cut against Guerrero. The evidence showed that Guerrero‘s phone was receiving service from a cell tower within 12.8 miles of the murder location from 2:17 to 4:14 p.m. Evidence indicated that the murder occurred around or prior to 4:15. The jury could reasonably have concluded that Guerrero was near the murder site around 4:15 and then left the area to stay with his brother in San Antonio. Based on the totality of this evidence, “a reasonable trier of fact could have found the evidence proved the [crime] beyond a reasonable doubt.” Harris, 740 F.3d at 963.
D. Discovery Concerns
Next, Guerrero argues that the government failed to disclose impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). First, he contends that the government failed to disclose two matters regarding witness Davalos, Guerrero‘s superior in the Mexican Mafia: (1) that Davalos admitted to committing three murders10; and (2) that Davalos had an agreement with the state district attorney to testify against Guerrero in exchange for immunity. Guerrero also asserts that the government should have disclosed evidence that his brother Orlando was involved in a prison riot. After reviewing these claims de novo but affording deference to the district court‘s factual findings, see United States v. Brown, 650 F.3d 581, 589 (5th Cir.2011), we conclude that no Giglio violations occurred. The district court found that the government did disclose relevant information about Davalos, which is consistent with the codefendant‘s cross examination of Davalos which elicited this information. And the district court rejected Guerrero‘s concerns about Orlando‘s involvement in the prison riot because Guerrero was likely the one who instructed Orlando to instigate it. The court therefore determined that the prison riot evidence was inculpatory, rather than exculpatory. See United States v. Nixon, 881 F.2d 1305, 1308 (5th Cir.1989) (holding that “neutral or inculpatory evidence lies outside” Brady coverage). We see no ground to disturb the district court‘s thorough findings on these issues.
For the first time on appeal, Guerrero seeks production under the Jencks Act of certain witness statements that he alleges were not disclosed to him. The Jencks Act,
E. Remaining Trial Issues
Guerrero raises several issues relating to the introduction of evidence at trial. First, he contends that the government constructively amended the Indictment by introducing evidence of the Pos Pos murder and acts of extortion and drug trafficking that Guerrero committed when he was seventeen. Constructive amendment occurs when a defendant could be “convicted upon a factual basis that effectively modifies an essential element of the offense charged or permits the government to convict the defendant on a materially different theory or set of facts than that with which []he was charged.” United States v. McMillan, 600 F.3d 434, 451 (5th Cir.2010); see, e.g., Stirone v. United States, 361 U.S. 212, 217-18, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (holding in a seminal constructive amendment case that “when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another“); United States v. Young, 730 F.2d 221, 224 (5th Cir.1984) (citing United States v. Salinas, 654 F.2d 319 (5th Cir.1981), as an example of constructive amendment, in which the indictment stated that the defendant aided one officer in
Guerrero‘s argument is more properly classified as an evidentiary objection under
Guerrero also objects to the district court‘s admissions of Robert Almonte and Victor Nguyen as expert witnesses. The district court issued a cogent, detailed opinion explaining why it qualified Almonte and Nguyen as experts, and those decisions survive abuse of discretion review. See United States v. Norris, 217 F.3d 262, 268 (5th Cir.2000) (stating that Daubert decisions are subject to abuse of discretion review and are not disturbed unless “manifestly erroneous“).
III. Assault Case
That brings us to Guerrero‘s second case, in which he pleaded guilty to assaulting a correctional officer while detained pending sentencing in the racketeering case. Guerrero claims two errors in the district court‘s handling of the sentence in the assault case: first, that he should have received a two-point reduction in the guideline range for acceptance of responsibility; and second, that he should not have been classified as a career offender.
A district court‘s factual determination that a defendant has not accepted responsibility is subject to “great deference.” United States v. Vital, 68 F.3d 114, 121 (5th Cir.1995). Indeed, the “sentencing judge‘s factual determinations on acceptance of responsibility are entitled to even greater deference than that accorded under a clearly erroneous standard.” United States v. Maseratti, 1 F.3d 330, 341 (5th Cir.1993). In the statement he offered to demonstrate acceptance, Guerrero told probation that he felt the corrections officer disrespected him, and that men have to understand the consequences of disrespecting another man. Given that statement, the district court was well within its discretion to find that Guerrero did not accept responsibility. Cf. United States v. Brigman, 953 F.2d 906, 909 (5th Cir.1992) (“Grudgingly cooperating with authorities or merely going through the motions of contrition does not oblige a district court to grant an unrepentant criminal the two-step reduction.“); see also, e.g., United States v. Silva, 9 F.3d 103, 1993 WL 481588, at *2 (5th Cir. Nov. 3, 1993) (affirming district court‘s conclusion that the defendant “had not demonstrated an acceptance of responsibility because ‘he attempt[ed] to lay all or some of the blame on the shoulders of his other unnamed drug dealers who were allegedly threatening him‘” (alteration in original)).12
The term “two prior felony convictions” means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of
§ 4A1.1(a) , (b), or (c).
Guerrero‘s argument lacks support in the structure and text of the amended guidelines and the way our sister circuits have interpreted them. First, the career offender guideline itself provides that the “date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere.”
IV. Conclusion
Trials like Guerrero‘s racketeering case test the mission of the federal courts to provide a fair forum for adjudicating criminal charges. In this case, the district court handled that challenge in an exemplary manner. It devoted significant attention to the issues, often issuing detailed explanations for its decisions. The district court‘s dutiful and impartial application of the relevant law allowed the jury to reach a considered, untainted result. Guerrero presents no ground to disturb the result of the trial or the sentence in his assault case. We therefore AFFIRM the district court in both cases.