     Case: 08-41134 Document: 00511319767 Page: 1 Date Filed: 12/13/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 13, 2010
                                       No. 08-41134
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA

                                                   Plaintiff–Appellee

v.

RENE ZAVALA; JOSE ZAVALA

                                                   Defendants–Appellants


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:06-CR-27-4


Before WIENER, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
       Simon Balderas, Jr. was convicted of three counts of possessing a firearm
during and in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c). Defendants–Appellants Rene Zavala and Jose Zavala, two of Balderas’s
co-conspirators, were convicted of the same three substantive counts under the
Pinkerton doctrine that holds co-conspirators liable for the foreseeable acts of
other members of the conspiracy. The Zavalas’ lengthy sentences, which are
based on several drug trafficking violations, include an additional 55-year



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 08-41134

mandatory minimum term of confinement for the three § 924(c) counts. This
appeal requires us to determine whether the Zavalas’ 55-year prison terms,
based solely on Pinkerton liability for a co-conspirator’s foreseeable conduct,
violate the Eighth Amendment. We hold that they do not.
                                        I
      Rene Zavala and his brother, Jose, were among nineteen co-conspirators
charged for their roles in a drug trafficking ring spanning Texas, Louisiana, and
Florida. In 2006, a jury convicted the Zavalas and Simon Balderas, Jr. of, among
other things, conspiracy to distribute methamphetamine, fourteen counts of
possession with intent to distribute methamphetamine, and three counts
(Counts 9, 11, and 13) of possessing a firearm during and in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c). Section 924(c) mandates
a five-year minimum sentence for a first offense and a 25-year minimum
sentence for a second or subsequent offense, to run consecutively to each other
and to any other sentence.     § 924(c)(1)(A)(i), (C)(i), (D)(ii).   The “second or
subsequent” convictions can occur in the same proceeding. See Deal v. United
States, 508 U.S. 129, 134–36 (1993). Thus, the Zavalas’ convictions on the three
§ 924(c) counts required a 55-year mandatory minimum term of confinement, to
run consecutively to the sentences imposed for their other drug trafficking
convictions.
      In July 2008, this court set aside the Zavalas’ convictions on three
unrelated counts and remanded their cases for resentencing. See United States
v. Zavala, 286 F. App’x 170 (5th Cir. 2008), cert. denied, 129 S. Ct. 611 and 619
(2008). Before doing so, the court considered the sufficiency of the evidence on
Counts 9, 11, and 13, and found that Balderas’s possession of a firearm in
furtherance of the drug trafficking conspiracy was reasonably foreseeable to
Rene and Jose. Zavala, 286 F. App’x at 174–75. The court affirmed the Zavalas’
three § 924(c) convictions based on Pinkerton v. United States, 328 U.S. 640

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(1946), accordingly. Id. Because the court remanded for resentencing, it did not
address the Zavalas’ Eighth Amendment challenges to their lengthy prison
sentences, which were based largely on Pinkerton liability for Balderas’s conduct
as a co-conspirator. Id. at 178.
       On remand, the district court resentenced Rene to 895 months’
imprisonment, among other measures. Counts 9, 11, and 13 account for 660
months, or 55 years, of this total sentence. The court resentenced Jose to 922
months in prison, with 660 months (55 years) likewise being attributable to the
three § 924(c) convictions.2
       The Zavalas timely appealed and now argue that: (i) the evidence was
insufficient to support a finding of foreseeability as to Balderas’s conduct; and
(ii) their 55-year sentences, based on Pinkerton liability for Balderas’s
unforeseeable conduct, violate the Eighth Amendment.
                                             II
       In this second appeal, we are bound by the law of the case doctrine and
may not reconsider issues previously adjudicated unless one of the exceptions to
the doctrine applies. See United States v. Hollis, 506 F.3d 415, 421 (5th Cir.
2007).     This court reviews de novo an Eighth Amendment challenge to a
sentence. See Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003). Questions
of statutory interpretation are also reviewed de novo. See United States v.
Clayton, 613 F.3d 592, 595 (5th Cir. 2010).
                                             A
       Rene Zavala argues that the consecutive sentences on Counts 9, 11, and
13, mandating 55 years in prison, violate the Eighth Amendment because there
was no finding that Balderas’s possession of a firearm during his drug dealings
was foreseeable to Rene. Jose Zavala similarly argues that his 55 year sentence

       2
          Jose Zavala had also been convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). His longer sentence is due to this additional conviction.

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for the three § 924(c) counts is cruel and unusual because it is based on conduct
that was neither foreseeable or attributable to him personally, but rather is
based on his criminal association with Balderas.
       To the extent that the Zavalas argue that the evidence was insufficient to
support their § 924(c) convictions, and specifically, that Balderas’s conduct was
not reasonably foreseeable to them, review of that issue is foreclosed by the law
of the case doctrine. Under this doctrine, “an issue of fact or law decided on
appeal may not be reexamined either by the district court on remand or by the
appellate court on subsequent appeal.” United States v. Lee, 358 F.3d 315, 320
(5th Cir. 2004) (internal quotation marks and citation omitted). The proscription
covers issues that this court has decided expressly or by necessary implication,
“reflecting the sound policy that when an issue is once litigated and decided, that
should be the end of the matter.” Id. (internal quotation marks and citation
omitted).3
       On direct appeal from the original judgment, the Zavalas challenged their
convictions on Counts 9, 11, and 13, arguing that the evidence was insufficient
to show that Balderas’s possession of a firearm during and in furtherance of the
drug trafficking conspiracy was foreseeable to them. See generally Zavala, 286
F. App’x at 175 (“Jose and Rene insist that they cannot be held accountable for
Balderas’s possession of the firearm because such possession was not reasonably
foreseeable.”).     The court’s July 2008 decision rejected that argument,
recognizing that “[w]e have consistently held that, under Pinkerton, it is

       3
          There are three exceptions to the law of the case doctrine that permit an appellate
court to depart from a ruling made in a prior appeal in the same case. See Lee, 358 F.3d at 320
n.3. These include cases where: (1) the evidence at a subsequent trial is substantially
different; (2) there has been an intervening change of law by a controlling authority; and (3)
the earlier decision is clearly erroneous and would work a manifest injustice. Id. (citing
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). Our review of the record
convinces us that the court’s July 2008 foreseeability determination was not clearly erroneous.
Thus, none of these exceptions apply. The Zavalas have not argued, in the district court on
remand or here, that their case falls within an exception to the law of the case doctrine.

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foreseeable that a drug defendant’s co-conspirator will carry a firearm during a
drug transaction when a substantial quantity of drugs is involved.” Id. (citing
United States v. Dean, 59 F.3d 1479, 1490 n.20 (5th Cir. 1994)). Given the large
quantities of methamphetamine involved here, the court found that it was
“foreseeable that Balderas would conduct the sale of drugs with a firearm.” Id.
Thus, the court found sufficient evidence to support the jury’s guilty findings on
Counts 9, 11, and 13, and affirmed Rene and Jose’s convictions accordingly. Id.
      The court’s July 2008 finding that Balderas’s conduct was foreseeable to
Rene and Jose Zavala is the law of the case and binding on this appeal.
                                        B
      The Zavalas contend that their consecutive sentences for the three § 924(c)
convictions—effectively life-sentences—are based on Balderas’s unforeseeable
conduct, and thus, violate the Eighth Amendment’s proportionality principle.
In light of our previous foreseeability finding, however, we reject this framing of
the issue.   Rather, the question before us is whether the Zavalas’ 55-year
sentence enhancements, which are based entirely on Pinkerton liability for a co-
conspirator’s foreseeable conduct, pass constitutional muster.
      The    Eighth   Amendment      prohibits   a   sentence    that   is   grossly
disproportionate to the crime for which it is imposed. See United States v.
Gonzales, 121 F.3d 928, 942 (5th Cir. 1997).         When evaluating an Eighth
Amendment proportionality challenge, this court makes a threshold comparison
between the gravity of the charged offense and the severity of the sentence. See
McGruder v. Puckett, 954 F.2d 313, 315–16 (5th Cir. 1992). Only if the sentence
is grossly disproportionate to the offense do we go on to compare the sentence at
issue with (1) sentences imposed for similar crimes in the same jurisdiction, and
(2) sentences imposed for the same crime in other jurisdictions. Id. at 316. If
this court concludes that the sentence is not grossly disproportionate, our
inquiry is at an end. Gonzales, 121 F.3d at 942. It is “exceedingly rare” for a

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non-capital sentence to violate the Eighth Amendment. Rummel v. Estelle, 445
U.S. 263, 272 (1980).
      We have previously considered sentences imposed under § 924(c) similar
in duration to those presented here and have found that such sentences do not
violate the Eighth Amendment. See United States v. Looney, 532 F.3d 392,
396–97 (5th Cir. 2008) (finding 30-year sentence enhancement under § 924(c)
constitutional); Gonzales, 121 F.3d at 942–44 (same). Our sister circuits have
found likewise on similar facts. See, e.g., United States v. Robinson, 617 F.3d
984, 990–91 (8th Cir. 2010); United States v. Angelos, 433 F.3d 738, 750–53 (10th
Cir. 2006). We adopt the reasoning employed in these cases and find, as a
threshold matter, that the Zavalas’ 55-year sentences are not grossly
disproportionate to the gravity of their offenses.
      The Zavalas argue that their cases are distinguishable because, unlike
ordinary § 924(c) convictions and sentences that hold the defendant accountable
for his own criminal conduct, here, the Zavalas are being punished for the
conduct of another (i.e., Balderas). This distinction is intriguing, as it implicitly
asks us to consider the outer bounds of accomplice liability under Pinkerton as
both Eighth Amendment and due process matters.               See United States v.
Castaneda, 9 F.3d 761, 766 (9th Cir. 1993) (“due process constrains the
application of Pinkerton where the relationship between the defendant and the
substantive offense is slight.”). We need not define the outer boundaries of
Pinkerton liability today, however, given the central roles that Rene and Jose
Zavala held in the drug trafficking conspiracy prosecuted. There is no lingering
due process question after our finding that Balderas’s firearm possession was
foreseeable. See Zavala, 286 F. App’x at 174–75; see also Castaneda, 9 F.3d at
766 (“The foreseeability concept underlying Pinkerton is also the main concern
underlying a possible due process violation.”) (quotation omitted).



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      Nor do we find an Eighth Amendment violation. W e have observed
repeatedly that “firearms are the tools of the trade of those engaged in illegal
drug activity.” Dean, 59 F.3d at 1490 n.20. Congress has addressed this threat
in § 924(c), the “basic purpose” of which is “to combat the dangerous combination
of drugs and guns.” Muscarello v. United States, 524 U.S. 125, 132 (1998)
(citation and internal quotation marks omitted). The statute’s harsh sentencing
terms for using or carrying a firearm in connection with drug trafficking activity
are entitled to substantial deference, given Congress’s “broad authority . . . in
determining the types and limits of punishments for crimes.” Solem v. Helm,
463 U.S. 277, 290 (1983).
      In light of the severity of the harm to society posed by criminals who
possess guns in furtherance of drug trafficking crimes, see Angelos, 433 F.3d at
752, and the foreseeability of just such an offense in the conspiracy at issue here,
we do not find this to be the type of “extraordinary” case in which the sentences
at issue are grossly disproportionate to the predicate offenses for which they
were imposed. See Lockyer v. Andrade, 538 U.S. 63, 77 (2003).
      The Zavalas alternatively argue that their 55-year sentence enhancements
pose an Eighth Amendment problem because these terms effectively constitute
life sentences. We disagree. While there is no question that Rene and Jose
Zavala’s sentences are lengthy, they are not grossly disproportionate.          See
Looney, 532 F.3d at 396 (“while a life sentence for a crime involving no actual
violence might be considered disproportionate punishment, it is not ‘grossly
disproportionate’ as that term is understood under current law”); see also United
States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003) (“Lengthy prison sentences, even
those that exceed any conceivable life expectancy of a convicted defendant, do
not violate the Eighth Amendment’s prohibition against cruel and unusual
punishment when based on a proper application of . . . statutorily mandated
consecutive terms.”). We find no constitutional error in the Zavalas’ sentences.

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                              III
 The district court’s judgments are AFFIRMED.




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