United States v. Jose Alfredo Villegas, Jairo Rendon, Rodrigo Rendon, United States of America v. Jose Villegas

appellants that the could not be awarded showing

compensatory relief without America, UNITED STATES of intentional discrimination. See Guardians Plaintiff-Appellee, Association, 606-07, at 103 S.Ct. (White,J., announcing judgment at 3234-35 J.); Court, joined by Rehnquist, of the id. VILLEGAS, Rendon, Jose Alfredo (Powell, J., 610-11, at 103 S.Ct. at 3236-37 Rodrigo Rendon, C.J.,

concurring, joined by Burger, Defendants-Appellants. J.); Rehnquist, at 3239 id. J., (O’Connor, concurring). This was the America, UNITED STATES of resulting in judgment narrowest conclusion Plaintiff-Appellee, from and is therefore the rule be drawn suggestions many the case. The other by made the various concurrences and dis- VILLEGAS, Defendant-Appellant. Jose regarding sents the kinds of remedies proof Title need- available under VI and 88-5385, Nos. 88-5804. those remedies must be con- ed to achieve opinions sidered dicta. The of Justices Appeals, United States Court of specifically put aside White and O’Connor Eleventh Circuit. question of whether under Title VI Sept. 1990. damages may suffering be awarded those opinions intentional discrimination. The

Justices Marshall and Stevens indicate preference compensatory re-

their to award

lief of discrimination under Title to victims or not those victims can show

VI whether discrimination,

purposeful but their state- intervening an rule

ments do constitute precedent overrules the of our

of law which Supreme Until the Court or an en

Circuit. says other-

banc court of our own Circuit

wise, binding precedent Drayden is and we Machado, it.

must follow (11th Cir.1986)(stating sitting court “[ojnly a decision Supreme

en banc or panel decision”). prior can overrule a

Court specially

I I concur because believe dispositive of this case.

Drayden alone necessary therefore to address the

It is not IX of whether Titles VI and are

issues

grounded solely Spending Clause or analysis apply Title VII should

whether Title or Title IX.

an action under VI 35(b) Sakowitz, pursuant Federal De- to Rule Fed.R.Crim.P. Al- Theodore J. Public record, Kessler, though his letter is not the re- fender, Asst. Federal Bruce J. Defender, Miami, Fla., quest denied. for Jairo and filed substan- Public tially appeal, the same brief his second Rodrigo Rendon. docketed No. 88-5804 as he did at No. Miami, (Court DeMaria, Fla. Richard M. sepa- 88-5385. We have considered these Villegas. for Appointed), Villegas’ appeals rate as consolidated. Lehtinen, Lynne Atty., Dexter W. proper jurisdiction The district court had Hertz, Mayra R. Lamprecht, Linda C. W. jurisdiction court and this has under Miami, Fla., Lichter, for Attys., Asst. U.S. Appeal timely 1291. filed U.S.C. § plaintiff-appellee. 4(b). under Fed.R.Crim.P. Marianna, Fla., pro Villegas, se. Jose

I. 28, 1987, August On around 2:00 or 2:30 KRAVITCH, Judge, Circuit Before professional cocaine dealer turned p.m., a ALDISERT**, Senior RONEY* and informant, Prieto, to the Humberto went Judges. Circuit Sergio Etayo Betancourt and Juan office of Lauderdale, po- with undercover Ft. Florida ALDISERT, Judge: Circuit detective, Tiderington, posing as lice Tom Villegas, Rodri- Alfredo Appellants Jose alleged buyer, proposed an to discuss indicted go and Jairo Rendon were Rendon involving kilograms of cocaine. deal grand jury in the by a federal Southern $16,000 price agreed upon The was set at conspiring possess District of Florida per kilogram. Several minutes into cocaine in violation intent to distribute with discussion, arrived, Villegas Jose I) (Count posses- and for of 21 U.S.C. 846 § the initiative of the planned, and took over to distribute and distribu- sion with intent group agreed that when conversation. The cocaine, in kilograms of tion of at least five Villegas money offered saw the 841(a)(1)(Counts II of 18 U.S.C. violation § for the cocaine. buyers, he would send III). Rodrigo was After a trial and dispersed. group then guilty all counts and sentenced. found on Tiderington returned to Prieto and When Jairo, brother, and sen- was convicted His Etayo Be- p.m., the office around 6:00 only. count Ville- on the tenced ar- present. Villegas then tancourt were plea and was there- gas guilty entered a Duque. participants rived with Juan after sentenced. following plan: Detective agreed must decide In 88-5385 we case No. supply a vehicle to Ville- Tiderington would evidence to there was sufficient whether Villegas then send someone gas; would appellants Rodri- support the convictions the cocaine into the it would load with who In case No. 88-5804 go and Jairo Rendon. location; park it in an undisclosed car and the district court must decide whether we go to his Tiderington would then Detective denying correctly its discretion exercised examining purpose of the co- car for the Villegas’ request for reduction of appellant caine; money remain would meanwhile 35(b) Fed.R.Crim.P. under Rule sentence Tiderington’s friend at or near with judg- appealed from the final Villegas first satisfied, Betancourt/Etayo office. When pro and filed a commitment order ment and partner telephone his Tiderington would at No. 88- which was docketed se brief money released. and the would be Villegas wrote appealing, also 5385. After scenario, planned Tider- acting out the sentencing judge to the which a letter park- to the ington left the office went of sentence treated as a modification judge ** * Aldisert, Ruggero U.S. Cir- 34-2(b), J. Senior Honorable Rules of the U.S. Court of Rule See Appeals Judge for the U.S. Court of cuit for the Appeals Eleventh Circuit. for the Circuit, designation. sitting by Third telephone mall to Anderson sta- car toward the make the Detective ing lot where money. Tiderington money. then re- in order to release the call tioned with $300,000 in cash. room with turned to the Rodrigo standing Rendon and Jairo separate office into a then went parking lot near the mall and money. Sat- Tiderington to count Tidering- Duque and Detective watched as available, money there isfied that the Toyota. looked into the trunk of the tan ton Duque to drive Detec- Villegas dispatched Duque toward Tiderington As walked Toyota pur- for the Tiderington’s tan tive building, Ren- the mall pose loading the cocaine. Pontiac which had don walked black detectives followed Fort Lauderdale away parked spaces from the been few real estate office until Toyota tan from the Pontiac was Toyota. tan The hood of the Rodrigo home of Rendon. its arrival at the Rodrigo and Jairo and watched raised both by Villegas to obtain Duque was instructed Duque building. Tiderington and enter the put Rodrigo Rendon and the cocaine from opinion, the Rendons Agent McManus’ Tiderington’s car. Arriv- init the trunk of counter-surveilling the area. house, spotted Jairo Ren- ing Duque at the Duque then arrested inside the Officers had standing the house. Jairo don outside near the building and arrested the Rendons open and Pontiac the hood of his black arrest, At the time of his black Pontiac. drinking whiskey while bent over some keys Pontiac. had the black Jairo working on the car. engine, ostensibly open portable telephone police that a said Rendon. Ro- Duque nothing to Jairo said Agent McManus found this car. drigo opened garage door and Rendon keys and started the Pontiac’s took the garage, car into the Duque brought difficulty. After re- engine any without According to garage door. and closed call, telephone special ceiving Tiderington’s brought then Duque, Rodrigo Rendon real agent Anderson went into the estate bag. Duque in a blue cocaine to agents arrested other who office with Rodrigo agreed Rendon that Duque and Villegas. Etayo appellant and Toyo- Duque in a red Rodrigo follow would Rodrigo then belonging Villegas. ta van II. Jairo, brother, him in to follow asked his Mall, Hollywood to the Jairo’s Pontiac Rodrigo and Rendon took the Both Jairo and Duque take the van where would testified in their own defense. Jairo stand pick up his brother. Rendon would bought from Rodrigo had a house that Tiderington’s Toyota, tan Ville- three Villegas August on 27 and he and Alfredo cars— van, Pon- gas’ Toyota red and Jairo’s black purchase that Rodrigo had celebrated its Hollywood Mall. drove to the tiac—then Villegas house with and evening at the new that came to his Duque. He said lot, parking Du- Upon at the mall arrival Duque in a in a red van and arrived house Toyota tan and then went que parked the one, they had left the two vans but blue Duque red saw Rodri- to look for the van. they they there when went home because go walking in the lot towards Rendon too much to drink. Jairo said that had Duque not see Jairo building, but did mall morning Rodrigo he and used the red next the red Duque then returned van Rendon. house and that van to move to the new office. to the real estate back day; Ro- they together the whole had been Duque sent back to the Villegas then gone to the real estate drigo had never Tiderington so that Hollywood Mall with office. Tiderington could view the cocaine as p.m. that at about 6:00 They at the mall a short Jairo testified agreed. arrived August tuning he had his broth- Toyota. been time later and walked over Duque into trunk, Tiderington er’s Pontiac when drove Duque opened the black yard. Duque had packages. Tiderington He stated yellow observed yard car into a slot in the be- they satisfied and backed his Duque he was told vans, trunk, opened the away from the tween the two closed the trunk and walked appeared moving something, years given to be but Jai- and he was special $150 could not what it was. ro see Jairo stated assessment. Jairo Rendon was convicted Duque had not his car into the taken conspiracy charge of the contained in garage. going He also denied to the street indictment, I acquitted Count of the but looking ways as the both charges all the contained in II Counts alleged at trial. Jairo further testified that years III. He was sentenced to 12 impris- Rodrigo him had asked to follow him to the pay onment and ordered to assess- $50 Mall, Hollywood he denied that had ment. following Duque Duque’s been or that leav- anything ing leaving. had to do with Jairo Both and Jairo Rendon brother,

Jairo further testified that his Ro- contend that there was insufficient evi drigo, having problems had been with the support dence to their convictions. The they car and that black when had arrived standard of sufficiency review as to the mall, overheated, they at the it had so evidence, the evidence is whether the when lifted the hood and left the car in the considered in light most favorable to parking forty lot to cool off for about min- government, proved appellant doing utes. Jairo denied that he had been guilty beyond a reasonable doubt. United any counter-surveillance at the mall or that Sanchez, States v. any drug in deal he had been involved with (11th Cir.), Duque Villegas. and Jairo also said (1984). 81 L.Ed.2d 353 For the portable telephone he had never seen the government satisfy proof to its burden of Agent in the McManus had found black trial, required it knowing was to show Pontiac, and that he and his did not brother participation by Rodrigo and Jairo. portable telephone in the car. have Rodrigo having Rendon also denied ever A. having dealt with cocaine or driven with Villegas in red to the real estate his van govern We are satisfied that the Hollywood. having office in He denied Rodrigo’s knowing par ment demonstrated Duque been with and at all on the ticipation beyond in the cocaine transaction Jairo, day Rodrigo of his arrest. Like testi- The evidence reasonable doubt. showed having problems fied that he had been with agreed supply Villegas that he to the with overheating. Rodrigo his black car admit- kilograms by Villegas cocaine needed of ted, Jairo, contrary to that he had been for his transaction with Betancourt following Duque he the red when drove Etayo. Rodrigo Villegas’ borrowed red van to the mall. He said that he had asked help van to effectuate the cocaine transfer. having to him. He denied left Jairo follow Villegas’ messenger Duque He waited keys Duque, in to the red van it for pick up to at his house to the co arrive he he said did not know where mall caine, kilograms transfer of and the Duque parked Toyota. His tan actually ga occurred in the closed cocaine testimony sight that he had lost rage Rodrigo’s attached to house. mall, Duque when he drove into the him foot at the entrance to the mall met on addition, Rodrigo Duque In followed to him keys and had handed to the red van Villegas’ Duque the mall red van so that there. Hollywood could leave the cocaine Toyota, inMall the trunk of a tan while he

III. pick up buyer took the red van back to bring inspect him the cocaine. back to trial, jury Rodrigo After a Rendon was This evidence is more than sufficient for a charges convicted of all the indict- Rodrigo to for his reasonable convict years imprison- ment and sentenced to 18 role in the and for the substan- count, concurrently. ment on each to run possession intent supervised A II tive crimes of with release term for Counts imposed and III also for a term of five cocaine. distribute tal must amount to a reasonable inference

B. guilt. of the ultimate fact of defendant’s against Jairo is less The evidence Thus, the ultimate issue a civil case government elicit solid. The evidence is the on circumstantial evidence abil- based rela hinged upon Jairo Rendon’s ed at trial inference, and not ity to draw a reasonable tionship his brother Rendon liability. speculation, a criminal near the transactions. and Jairo’s case, govern- on the the ultimate burden against Jairo can The case scenario worst ability to draw a reasonable ment is the follows: He was seen be described as inference, speculation, guilt. and not Rodrigo’s his Duque in front of brother home; surveillance officers who ob [Moreover, especially several court’s role is t]he the house and look here, out of when, [government’s] served Jairo walk crucial right and to his offered case, to his left [guilt] defendant’s is and therefore constituted counter-sur opinion that solely circumstantial evidence. based on the Pontiac and fol Jairo drove veillance. illegal action must be inferred from Duque Holly lowed his brother factu- the facts shown at trial. Inferred car, Mall, put up parked his wood where al conclusions based circumstantial hood, inside the mall build and walked when, permitted only are and to evidence for 40-45 minutes ing where he remained that, experience indi- the extent human claims that until he arrested. probability that certain conse- cates raised it the hood of the car was because quences can and do follow from the basic re was overheated. facts. circumstantial sponds the car started with that because grants When a trial court a directed ver- story implausible. difficulty, out Jairo’s case, dict in a circumstantial evidence According government, the most legal determination that court makes a against Jairo is the damaging evidence the narrative or historical matters in evi- charge engaged that he counter-sur- was permissible dence no inference of allow a activity, that this demonstrated veillance urged by opposing the ultimate fact conspiracy knowing participation per- party. It decides that no reasonable and, therefore, proven beyond rea- was suggested conclusion son could reach disagree. We sonable doubt. hard on the basis of the evidence without conjecture. resorting guesswork to or persuaded that the evi We are permit jury to an inference of To draw personal involvement dence establishes ultimate fact under these circum- of Rendon in knowing participation or experience stances is to substitute of beginning point is the conspiracy. Our logical probability for what the courts States, teaching of v. United 315 Glasser speculation.” as “mere describe 457, 469, 60, 80, 86 L.Ed. 680 62 S.Ct. omitted): (1942)(citations “The verdict of a Sons, Inc., Sweeney & v. Texa Edward J. if there is substan jury must be sustained co, Inc., 105, (3d Cir.1980), 637 F.2d 116 evidence, taking the view most favor tial 911, 1981, 101 451 U.S. Government, support to it.... able to the (1981); 68 L.Ed.2d 300 see also definition of Participation conspiracy in a criminal need “inference,” Aldisert, Logic R. Law for evidence; proved by direct a com not be yers: Legal Thinking A to Clear Guide may purpose plan be inferred mon (Clark 1989). 28-33 Boardman We have ‘development and a collocation of from a recently reiterated what was said United ” government Where the circumstances.’ 547, (5th Bell, v. 678 F.2d 549 Cir. States proof its of on the seeks to meet burden 1982) (en banc), BUnit on other aff'd however, evidence, basis of circumstantial 356, 103 S.Ct. grounds, rely it must on reasonable inferences (1983): L.Ed.2d 638 prima to facie case. order establish ex- necessary It is not that the evidence every hypothesis of in- case, although clude reasonable

In a criminal certain wholly inconsistent portions may to nocence or be of evidence be introduced inferences, guilt, pro- present every except to- conclusion that of permissible the sum lot five minutes. trier of fact could for about Martos and vided that reasonable guilt evidence establishes Martinez went to the blue van and one of find that the jury bag A is them removed a small from the beyond a reasonable doubt. van. among choose reasonable con- two then went into the Sheraton free to lounge. Agent evidence. Osleber testified that he structions Latin-looking all arrested males Hardy, 895 F.2d lounge, including Sheraton Martos. (11th Cir.1990). arrested, When Martos he was with Hearkening precepts, to these Martinez, carrying who a small a line of that court has established cases handbag which found to contain a government’s emphasizes the threshold ob pistol. that contends requirements ligation meet basic to this direct evidence must be considered in drug conspiracy pres cases: Mere proof in the context of Ruzzano statements knowing to insufficient establish ence is conspirators going that the conspiracy, in a participation to Sheraton lot meet ‘Orlando’s drivers’ Sullivan, (11th 763 F.2d Cir. marijuana. who were to distribute the 1985), conspira mere association with as is Sullivan, F.2d at 1219. tors, Correa-Arroyave, States evidence, Evaluating the this court stat- (11th Cir.1983). 796-797 ed: question is The difficult is to decide what totally This evidence was insufficient to presence more than mere at the required support the Martos. There conviction of activity in fur- of an overt conducted scene no that Martos evidence knew of conspiracy or mere associa- therance of the existence of the or that he conspirators. have tion with one of the We transport knew the van was to be used to painted bright perimeter line never marijuana. Nor was there evidence culpable distinction between stake out the pistol of the existence of the know conduct, non-culpable guidance could find had been re- resort, paraphrase Lord can in a we by Mar- moved from the blue van driven experience “the cumulative Diplock, to tinez. His conviction seems be based analogize to those judiciary.” We will totally on his at the scene of the this court has found evi- cases where parking He was not ob- Sheraton lot. conspiracy con- lacking dence to sustain a doing anything for a served which drug in nection cases. inference that he was could have drawn Thus, Hardy following in evidence conspiracy. a member of the insufficient: The defendant was deemed at 1219. Id. drug parties by hosted attended regularly In the recent case United States suppliers, frequently consumed users and Cir.1990) (11th Hernandez, F.2d 513 896 cocaine, helped conspirator purchase a a (No. 90-5033) (July filed, petition cert. joint personal one-eighth ounce for their 2, 1990), following held that the was use, we amount of cocaine to gave a small Hector insufficient evidence to convict Gir F.2d at 1334-1335. guest. a house 895 drug conspiracy: very to one al of considered a similar case We Sullivan, 763 us in before government’s case Essentially, Cir.1985). Sullivan, (11th In 1215 F.2d presence against Giral consists of Giral’s Martos contended that there was defendant the trunk when Aquino’s in car and at evidence to him of con- Garcia, insufficient convict package Aquino delivered the spiracy. We summarized the evidence: walking away catching Gar- Giral’s after talking phone, eye, to a dead agents Martos in the Sheraton cia’s Giral’s

DEA saw prior conviction of cocaine near a red van. Martinez and Giral’s parking lot possession_ Yet mere associa- and walked over to Giral’s in a blue van arrived Aquino presence or Martos and Martinez walked tion with Martos. Maldonado, that he a prove transaction does not Perez and Antonio over to conjunc- in parking part conspiracy. of the Even four walked around the and all 630 “flight” Burger King approval.” distinguished his

tion with demnation or He support presence “logically Giral’s cannot a con- empiri- between determinable or spiracy conviction. cally judg- observable facts” and “value practical ments which are derived from 896 F.2d at 519. standards, ethical standards or ... views.” Pintado, In Weber, Judgments “Value in Sci- Social (11th Cir.1983), held as insufficient 1501 we ence,” Selections, (W. in 69 Runci- Weber hid evidence that the defendant was found man, 1987). ed. closet, shirt, pants ing in a clothed in and a off-loading in a bedroom of a house where Deciding is or what is sufficient evi- marijuana taking place. The court always dence a it difficult chore and DeSimone, analogized to United States v. becomes even more so when the factual 1981), (5th Cir., B 660 F.2d 532 Unit cert. backdrop reprehensible consists of a traffic denied, 455 U.S. S.Ct. pernicious presump- in But narcotics. (1982), following L.Ed.2d 149 where the constant, tion of innocence remains irre- evidence was held to be insufficient: spective of the heinous nature of con- appellant and several co- DeSimone activity, requirement demned as does the vicinity defendants were arrested in the government prove beyond that the its case airplane of an which had landed at a doubt, notwithstanding a reasonable early morning airport secluded in the presence suspicion speculation. mere marijuana. The defen- hours laden with Although recognize reasonably- we dant identified as one who had been judges disagree drawing minded can of several other defen- line between sufficient and insufficient evi- preceding pre- dants the afternoon. The dence, by thoughtful dis- witnessed ceding week some of the eodefendants senting opinion Judge Roney, con- we trucks, trailer, van, rented sever- two clude that the same rule of law should conveyors, al skate and two automobiles. Sullivan, apply here as in Hardy, Hernan- registered of the Several defendants dez, Pintado and DeSimone. motel; Inn group Quality as a all paid rooms for in cash one of the hinges count on Jairo’s registered defendants and in the name of relationship Rodrigo. with his brother development company. a fictitious land Knowing participation conspiracy, in a how officers, agents police Customs af- ever, proved solely by family cannot be receiving tip, airplane ter corralled the relationship types or other of close associa marijuana, loaded arrested a code- White, tion. F.2d See United States v. fendant a tractor-trailer and another (5th Cir.), truck, plane, a fuel both near the (1978); 58 L.Ed.2d 149 apprehended DeSimone and other defen- Gutierrez, (5th States v. 559 F.2d 1278 vicinity dants the of one of the rented Cir.1977); Oliva, v. 497 F.2d cars which had been ditched on the road (5th Cir.1974). 130 leaving airport. Pintado, 715 F.2d at 1504 n. 3. C. experience, From this cumulative we ac- quire guidance. experience This question prem- informs We are constrained to us as to where to draw the line dissenting opinion: between ise that anchors insufficiency sufficiency of evidence. long ago rejected “This Circuit had sure, staking out presence To be the line’s contours mere defense when the evidence precise a science a value drug cannot be because would indicate that dealers would not Weber, judgment From Max is involved. have being present tolerated the defendant theorist, European legal important we were he not involved.” Instead we believe judgment learn that a value refers to the that properly this court has treated phenomenon practical problem of a which a evaluation that specific turns on the facts being “worthy capable of of either con- of each case.

631 Thus, age size of the vessel. under upon by and the relied Thus, m of the cases each Freeman, it clear that whatever con- dissent, additional evidence seems there was In by United the owner of presence. spiracy mere had been concocted augmenting 154, (11th Quintero, F.2d 156 captain 848 v. and the whichever States the vessel Quintero Cir.1988), noted “that (not to) may this court testified of the crew others large quantity of a possession govern- sole the entire deal the have been on boxes,” giving in the contained of cocaine prima a facie case of ment has established drugs that defendant over the him control Freeman, In import.” conspiracy to case, In Jairo, did not have. present in the pres- that mere “[ajppellants contended] Cruz-Valdez, 773 F.2d States United insufficient to ence and association [was] Cir.1985), 1541, (11th cert. de 1546-1547 conspiracy.” court them of This convict 1272, 1049, 89 nied, 106 S.Ct. 475 U.S. “simple response to this countered that (1986), that this court wrote 580 L.Ed.2d voyage a argument day is that a ten on large a that the evidence establishes “[i]f 41,000pounds bulging that was with vessel or plain view quantity of contraband was much more than marijuana constitutes of place in a where a or was could be smelled or ‘mere association’ as presence’ ‘mere ordinarily dis would person on a vessel used this court.” those terms have been infer it, may reasonably a jury cover knowledge in the person found vessel D. case, the ves In that of the contraband.” its shrimp trawler but flagless sel was Considering us in the the case before inoperative and it was equipment was government, light most favorable There for use as such. clearly unfit prove that the evidence is insufficient where an unlatched hold single cabin and of the existence of the Jairo Rendon knew marijuana, of worth pounds of thousands knowledge, joined with dollars, stowed. This of millions participant drug Etayo, major it. totality of the evidence that the court held deal, pleaded guilty and admitted his who support the defen clearly sufficient involvement, stated that he had never met dant’s conviction. Duque the Rendons until was arrested. spoken to that he had never Munoz, 116, stated 692 F.2d States United proved The evidence noth- denied, Rendon at all. (11th Cir.1982), cert. 459 118-19 relationship to a ing a mere more than 1221, 1229, 75 463 103 S.Ct. L.Ed.2d a mere at the conspirator and (1983), upon relied this court 1030, (5th to sustain Freeman, This was insufficient F.2d 1036 Cir. scene. 1981), denied, 823, that the district court 459 U.S. conviction. We hold B cert. Unit (1982) Ren- (quoting granting L.Ed.2d in not defendant Jairo erred S.Ct. Weese, Acquittal. Judgment De States v. don’s Motion Cir.1980), (5th (1981)), 878, 102 70 L.Ed.2d 188 IV. “ length probable ‘the and reasoned appel- We turn to the contentions now large quantity marijuana voyage, Villegas. Villegas pleaded guilty on lant board, necessarily close relation and the February I of the indict- 1988 to Count captain ship and his crew were between conspiring charging ment him with from could reason factors which August August others 25 until from guilt beyond a ably find reasonable ” possess intent 1987 to with to distribute analogized previous to This court doubt.’ Villegas’ kilograms least of cocaine. five cases, “[h]ere, again, noting that we have agree- plea pursuant plea was entered to a (10 lengthy voyage days) as to (1) the same (13 government, ment in which- the with the appellants days and as to the two of (2) agreed II other); large quantity of to dismiss Counts the same mari (46,000 (3) pounds); and III of at the time of juana- and the same the indictment relationship captain sentencing. Villegas, pursuant close between and to length voy- agreement, inferable from the of the and crew stated that he understood Appeal prison. Villegas him to in filed a Notice of agreed the court could sentence imprisonment April of life and He con- a maximum term to this court on 1988. fine. R. at 74. deny- four million dollar in a tends that the district court erred ing request for reduction of sentence his plea, Villegas time he entered the At the 35(b) and also claims under Fed.R.Crim.P. twenty-six years old. stated that he was sentencing that it error for the court He Villegas placed then under oath. at the rely, part, to in on evidence adduced plead guilty he to to stated that wished determining the Rendons in his trial of intentionally conspiring knowingly and sentence. Rendon, Etayo and with and Jairo intent to distribute Duque, possess of review for relief The standard Villegas cocaine. also stated quantity a 35(b)is pursuant to Fed.R.Crim.P. whether the court could understood that that he the district court committed an abuse imprisonment and fine him to life sentence Campbell, discretion. million dollars. up him to four (11th Cir.1983). The it proffered the facts standard of review on the second issue is to trial. prove Villegas’ if case went would rely error in whether the court committed facts, proffered Villegas agreed that the presented at the ing, part, on evidence Government, essentially cor- by the were sentencing. trial of another in significance little rect. It is of no proved also at the these same facts were challenges the accura Villegas first Rendons’ trial. cy presentence in his of four statements (PSI): (1) description investigation report a any if he had sentencing, At when asked money of himself as the and co-leader presentence investigation objections to the man (2) description of stated, organization; of the a “We have report, Villegas’ counsel cocaine; (3) have,” the source of the differences we himself as corrected whatever description a difference transaction as a noting that there had been of the cocaine since, although regarding Villegas’ age, sophisticated one due to the amount of years Villegas twenty-six old on fact that counter-surveil cocaine and the offense, twenty- he had turned (4) date of the present; age. his He lance was and seven as of the date of sentence. pe also seeks to characterize his role as challenges ripheral. These are his before Villegas and for the After counsel for court, us, reviewing neither arguments, government presented their singled any of nor his counsel out these the factors it would consider court recited inaccuracies, age, alleged except for his Villegas, it imposing sentence. As to sentencing hearing. during Villegas’ Ville- age, that he had explicitly considered his no hardly the district court gas can criticize conviction, prior that he entered ruling challenges they on certain if for not illegally and that was involved States presented to it. Failure to assert were very large sophisticated cocaine scale objections sentencing court is kilograms. these involving seventeen transaction asserting to a fatal to these issues review stated, are deter- judge then “You ing court. by United States At- mined the Assistant torney judge’s this review of the Moreover, to which the statements Ville- facts, presided I over trial as to tardy gas lodges objection now defendants, as one of the most some of the supported by strong factual basis. The noted, however, that culpable.” The court sentencing judge, who heard the evi- expressed pled remorse and Villegas had regarding Villegas’ during dence activities trial,” guilty, on the eve of and had “albeit trial, determined that the Rendons’ Ville- himself while in- apparently tried to better culpable gas partici- was one of the most carcerated. large-scale sophisticated pants co- caine transaction. The evidence at trial taking

After these factors into considera- tion, 29, 1985, charge in Villegas showed that had been of on March the court deter- years handling money part of the cocaine appellant mined that should serve 18

633 sellers; therefore hold that the district court for the he was We transaction in properly denying exercised its discretion cocaine for Betancourt and source of the appellant Villegas’ mitigation motion for of in- transaction Etayo; cocaine sentence, 35(b) pursuant to Fed.R.Crim.P. large both a amount of cocaine volved and Fed.R.Crim.P. 32. activities. counter-surveillance The statements in the PSI to which V. essentially are conclusions Villegas objects judgment of district court as to opinions which characterize his role and or Rendon is AF- culpability; he does not chal his level of FIRMED. The conviction of Jairo Rendon un lenge accuracy of the actual facts is REVERSED. such, derlying As such characterizations. cognizable under objections his are not RONEY, Judge, Senior Circuit Accordingly, Villegas presented Rule 32. concurring part: in part, dissenting mitigation his sen no valid reason for Judge opin I concur in all Aldisert’s 35(b). pursuant to Rule tence ion, except the of the conviction of reversal Villegas that agree do we Nor prove Jairo Rendon. To a circumstantial error for the sentenc it was fundamental Circuit, not evidence case it is neces rely, part, on evidence ad ing court to sary every hypothe to exclude reasonable determining trial duced at the Rendon Bell, v. United States of innocence. sis United upon his sentence. He relies (en 547, (5th 1982) B 678 F.2d 549 Cir. Unit Castellanos, 882 F.2d 474 (11th v. States banc), grounds, on other 462 U.S. aff'd Castellanos, Cir.1989). we held that it 356, 2398, (1983). L.Ed.2d 103 S.Ct. 76 638 sentencing for a was fundamental error enough of these cases to We have had rely testimony adduced at court to drug dealers use look-outs. The know that disputed fact trial of another to resolve Assuming Jairo to be a jury knew this. hearing record sentencing when the at look-out, it not clear he would have what prop made the indicates that the defendant do, not or what more done that he did sentencing objection at the er and detailed This might expect. one Circuit evidence hearing. long ago rejected the mere has indicate however, defense when the evidence would opinion, was The Castellanos drug not have tolerated dealers would United superseded by recently vacated and being present were he not Castellanos, 904 F.2d 1490 (11th the defendant v. States Quintero, 848 v. involved. United States Cir.1990). held Upon reconsideration we 154, (11th Cir.1988); F.2d 156 presented at the trial of an- that evidence Cruz-Valdez, 1541, 1547 States sentencing may other be considered for nom. Ari Cir.1985), cert. denied sub (11th an if the defendant is afforded purposes States, 475 U.S. v. United za-Fuentas on its opportunity to rebut or cast doubt (1986); 1049, 1272, 89 L.Ed.2d 580 106 S.Ct. case, only reliability. present In the Munoz, 116, F.2d 692 opportunity to Villegas afforded an was denied, (11th Cir.1982), cert. 118-19 upon reliability rebut or cast doubt 1229, 75 L.Ed.2d 463 103 S.Ct. before, evidence, as noted Freeman, (1983); sentencing hearing, Villegas agreed that 1981), (5th B Cir. Unit F.2d essentially correct. That these facts were 103 S.Ct. in the Ren- these facts were also recorded (1982). I there was think L.Ed.2d No simply coincidental. dons’ trial support deci enough evidence to sentencing testimony adduced at guilty the offense sion that Jairo instead, simply hearing; the facts were convicted. for which he was and were postulated by Villegas. That identical agreed to

unchallenged facts also appeared

separate the Rendons did not infect trial of sentencing proceeding.

Villegas’

Case Details

Case Name: United States v. Jose Alfredo Villegas, Jairo Rendon, Rodrigo Rendon, United States of America v. Jose Villegas

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 12, 1990

Citation: 911 F.2d 623

Docket Number: 88-5385, 88-5804

Court Abbreviation: 11th Cir.