                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2009

USA v. Daniel Luna
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3514




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 08-3514
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 DANIEL LUGO LUNA,

                                                 Appellant.
                                    _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                               (D.C. No. No. 06-cr-316-09)
                      District Judge: Honorable Gustave Diamond
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 20, 2009

            Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

                                  (Filed: May 28, 2009)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Daniel Lugo Luna appeals his conviction and sentence for distribution of, and

conspiracy to distribute, cocaine. For the following reasons, we will affirm.
I.       Background

         On September 13, 2006, a federal grand jury in the Western District of

Pennsylvania returned a 93-count drug-conspiracy indictment against ten defendants,

including Luna and his father, Juan Gutierrez, both of whom are Mexican nationals living

in the United States. The conspiracy involved a supplier from Chicago, Reyes Bautista,

selling cocaine to two Pittsburgh-based dealers, Val Byrd and Gregory Sayles, who were

then to distribute the cocaine to other local dealers. Count One charged Luna with

conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §

846, and Count Two charged him with distribution and possession with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B)(ii) and 18 U.S.C. § 2(a).

         Luna was tried before a jury beginning on May 6, 2008.1 During Luna’s trial, the

government proffered evidence that Luna had introduced various members of the

conspiracy to one another, attended meetings at which details of the drug transactions

were discussed, housed Bautista at his residence when Bautista came to meet Byrd and

Sales, permitted three kilograms of cocaine to be stashed in his home, went with Bautista

to a nearby Wal-mart to purchase grease, tape, and other materials that Bautista used to




     1
   He was tried with one other defendant. The other eight, including his father, pleaded
guilty.

                                              2
mask the scent of cocaine on the money he had received for the cocaine, and received

$500 from Bautista.

       The parties presented differing accounts of whether Luna was present for

Bautista’s only successful transaction with Sayles or Byrd, which occurred on October 17,

2005. Luna’s roommate, Melissa Schenker, testified for the defense that, sometime in

October 2005, she, Luna, Luna’s fiancée, and Luna’s father traveled from Pittsburgh to

McKeesport, Pennsylvania. According to Schenker, Luna spent approximately 30 to 45

minutes together with her and with his fiancée dining at an “Eat’n Park” restaurant while

Luna’s father went to the hospital, purportedly to visit a sick friend.

       Bautista testified for the government that, on October 17, he, Luna, Luna’s father,

Luna’s fiancée, and Schenker drove to McKeesport and parked in a lot across from the

McKeesport Hospital. The women, according to Bautista, walked to a nearby Eat’n Park.

The three men met Sayles at a bar next door to the hospital and, while Bautista, Luna’s

father, and Sayles conducted negotiations, Luna sat on a bench outside of the hospital to

keep an eye on the vehicle, which contained the cocaine. When Bautista, Luna’s father,

and Sayles returned, Luna began walking towards the Eat ‘n Park, and the other three men

drove to Sayles’s house to complete the transaction. Agent Andrew Toth of the

Pennsylvania State Attorney General’s Office, who was conducting surveillance of the

transaction, provided an account similar to Bautista’s, except he testified that Luna




                                              3
remained seated on the hospital bench even after Bautista, Luna’s father, and Sayles left

the vicinity and made their way to Sayles’s home, where the transaction was completed.

       In the midst of deliberations, the jury asked to see Schenker’s testimony, Bautista’s

testimony about the Eat ‘n Park, and any other testimony regarding the Eat ‘n Park. The

District Court agreed to provide the testimony but, over Luna’s objection, gave it to the

jury as the court reporter produced it, instead of all at once. The jury first received

Schenker’s testimony and then Bautista’s, but, before Toth’s testimony was available, it

reached a verdict: Luna was found guilty on both counts.2

       The U.S. Probation Office calculated Luna’s offense level as 30, which, coupled

with a criminal history category of I, yielded a Guidelines sentencing range of 97 to 121

months, narrowed to 120 to 121 months because of the mandatory minimum under 21

U.S.C. § 841(b)(1)(A)(ii). At Luna’s sentencing hearing, the government recommended

the application of 18 U.S.C. § 3553(f), which would allow the Court to sentence Luna

below the mandatory minimum, reduce his offense level to 28, and drop his sentencing

range to 78 to 97 months. Luna argued for a variance based on his subservience to his

father, who was a central player in the drug conspiracy. Luna’s argument centered on the

allegedly patriarchal nature of Mexican culture. The Court dismissed that argument as




  2
   The Court also submitted a special interrogatory concerning the amount of cocaine
that Luna conspired to distribute, which it was to answer only if it found Luna guilty of
the drug conspiracy charge. The jury found him responsible for conspiring to distribute
more than five kilograms of cocaine.

                                              4
unworthy of serious consideration, accepted the government’s sentencing

recommendation, and sentenced Luna to 65 months’ imprisonment on each count, the

terms to run concurrently. It entered a final judgment of conviction and sentence on

August 6, 2008, and Luna’s timely appeal followed.

II.    Discussion 3

       Luna argues that the evidence offered by the government was insufficient to

establish the charges against him or, alternatively, to prove that he was responsible for

more than three kilograms of cocaine. He further argues that the Court erred by failing to

give the jury all of the transcripts that it requested, and that, in sentencing him, the Court

committed procedural error by refusing to consider the patriarchal nature of Mexican

culture. All of those contentions lack merit.

       A.     Sufficiency of the Evidence

       “In reviewing a jury verdict for sufficiency of the evidence, ... we ‘must consider

the evidence in the light most favorable to the government and affirm the judgment if

there is substantial evidence from which any rational trier of fact could find guilt beyond

a reasonable doubt.’” United States v. Lore, 430 F.3d 190, 204 (3d Cir. 2005) (quoting

United States v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992)).




  3
   The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. We
have jurisdiction under 28 U.S.C. § 1291.

                                                5
       The essential elements of a drug conspiracy under 21 U.S.C. § 846 are “(1) a

shared ‘unity of purpose,’ (2) an intent to achieve a common goal, and (3) an agreement

to work together toward that goal.” United States v. Bobb, 471 F.3d 491, 494 (3d Cir.

2006) (internal citation omitted). Luna claims that the government failed to establish any

of those elements and, because the evidence is insufficient to prove that he had the intent

to achieve the “common goal” of cocaine distribution, the same evidence cannot be

sufficient to support his conviction for possession with intent to distribute.

       The record tells a different story. Confronted with uncontradicted evidence that

Luna facilitated and attended meetings where the details of the drug conspiracy were

discussed, accommodated the supplier and the supplier’s cocaine at his residence, helped

the supplier buy materials that would mask whatever cocaine residue lingered on the drug

money, and received payment from the supplier, a rational jury surely could determine

that, as we put it in United States v. Cartwright, 359 F.3d 281, 287 (3d Cir. 2004), there is

“a logical and convincing connection” between the established facts and the inference

that Luna actively participated in the conspiracy and the distribution.

       The record also adequately supports the jury’s attribution of more than five

kilograms of cocaine to Luna, even though he only participated in a transaction involving

three kilograms. Bautista provided uncontradicted testimony that the plan was to traffic

ten kilograms of cocaine from Chicago for distribution in Pittsburgh, but that the driver

“lost” seven kilograms en route. (App. at 258.) In addition, Sayles indicated that he was



                                              6
supposed to purchase at least five kilograms from Bautista, an account corroborated by

transcripts of intercepted phone calls between the two men. Luna cannot benefit from the

conspiracy’s failure to traffic the intended amount of cocaine, because the government

“need not prove that the amounts under negotiation were actually distributed.” United

States v. Gibbs, 190 F.3d 188, 219 (3d Cir. 1999). Sufficient evidence supports the jury’s

conclusion that Luna participated in the conspiracy to bring at least five kilograms of

cocaine into Pittsburgh for the purpose of distribution, regardless of how much cocaine

actually arrived.

       B.      Transcript Request

       According to Luna, the Court abused its discretion by not completely fulfilling the

jury’s request for testimony regarding the Eat’n Park.4 As Luna notes, a trial court may

decline a jury’s request for written transcripts of trial testimony only upon finding that

supplying the transcript will slow the trial or cause the jury to give undue weight to the

requested testimony. United States v. Bertoli, 40 F.3d 1384, 1400 (3d Cir. 1994).

Because the Court made neither finding, Luna argues, it was required to provide the jury

with all of the transcripts that it requested.

       Of course, as Luna must acknowledge, the Court did not decline the jury’s request.

Rather, it agreed to supply the transcripts; it provided the relevant testimony of Schenker



  4
   Luna is correct that we review for abuse of discretion a district court’s response to a
jury request to review testimony. See United States v. Bertoli, 40 F.3d 1384, 1400 (3d
Cir. 1994); United States v. Zarintash, 736 F.2d 66, 70 (3d Cir. 1984).

                                                 7
and Bautista; and it was about to send back the remaining relevant testimony – that of

Agent Toth – when the jury announced that it had a verdict. Luna claims, however, that

the Court’s decision to give the transcripts to the jury piecemeal, instead of all at once,

constitutes a de facto refusal of the jury’s request. Given the Court’s demonstrated effort

to provide the jury with what it asked for, we disagree.5

       At the root of Luna’s argument, it seems, is an implicit argument that the jury

should have considered all of the transcripts it requested before reaching its verdict. But

that is not a proper basis for an appeal. As the United States District Court for the District

of Massachusetts noted when presented with an argument similar to the one that Luna

makes here, once the jurors “retire for their deliberations, they are, functionally, in charge

of the pace and manner of future proceedings. When [they] have requested that a portion

of the trial transcript be provided to them, nothing prevents them on further consideration

from agreeing upon and returning a verdict before receiving it.” Tavares v. United States,

914 F.Supp. 732, 734 (D. Mass. 1996); see also United States v. Sanders, 893 F.2d 122,

138 (7th Cir. 1990) (trial court “did not commit error, let alone reversible error” by

responding to the jury’s request for recordings and transcripts of trial testimony by




  5
   Because Agent Toth essentially confirmed Bautista’s account of what transpired in
McKeesport on October 17, it is difficult to understand why Luna believes that he could
have benefitted from the jury’s review of Toth’s testimony. Even if the Court’s method
of distributing transcripts constituted an abuse of discretion, it would not require reversal
because it would not have “prejudiced [Luna’s] trial in any meaningful way.” United
States v. Tolliver, 330 F.3d 607, 617 (3d Cir. 2003).

                                              8
playing tapes first, even though the jury returned its verdict before it received the

transcripts).

         C.     Sentencing Procedure

         Luna’s final argument – that the Court committed procedural error at sentencing

by failing to consider the patriarchal nature of the Mexican family and its impact on his

role in the offense – is also unpersuasive. While a district court in setting a sentence

must consider the relevant factors listed under 18 U.S.C. § 3553(a), including the

characteristics of the defendant, United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006) (citation omitted), it need not reflect on sentencing arguments that are without

factual support or legal merit, see United States v. Ausburn, 502 F.3d 313, 329 (3d Cir.

2007).

         No legal authority suggests that cultural heritage is a proper ground for a

downward sentencing variance. To the contrary, the Sentencing Guidelines advise that a

defendant’s race and national origin are never relevant for sentencing purposes, U.S.S.G.

§§ 5H1.10, and at least three Circuit Courts have concluded that considering a

defendant’s culture runs afoul of the Guidelines. United States v. Dyck, 334 F.3d 736,

743 (8th Cir. 2003); United States v. Contreras, 180 F.3d 1204, 1212 n.4 (10th Cir.

1999); United States v. Sprei, 145 F.3d 528, 536 (2d Cir. 1998); see also United States v.

Guzman, 236 F.3d 830, 833 (7th Cir. 2001) (“lean[ing] to the view that [U.S.S.G

§ 5H1.10] does forbid consideration of ethnicity or ‘cultural heritage’ in the sentencing



                                               9
decision”). While the Guidelines were rendered advisory by United States v. Booker, 543

U.S. 220 (2005), it is significant that no court since has questioned the wisdom of

§ 5H1.10 or the courts endorsing it. We see no reason to be the first. The District Court

did not commit procedural error by refusing to consider Luna’s cultural heritage

argument.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence.6




  6
   In his reply brief, Luna accuses the government of violating Third Circuit LAR 28.1(c)
by making prohibited ad hominem attacks in its brief for the United States. Specifically,
Luna objects to the government’s attempt to denigrate Connie Acosta, the Federal Public
Defender’s investigator who reported on the influence that Luna’s cultural heritage had
on his role in the drug conspiracy, and to the government’s use of the defendant’s name –
ostensibly for humor value – in the following subsection heading: “Luna(cy): The Foiled
Attempt At A Shakedown.” While those objections have no bearing on our analysis, we
agree with Luna that neither the government’s characterization of Ms. Acosta nor its
wordplay reflect the seriousness of purpose warranted by this case.

                                            10
