     Case: 14-40948      Document: 00513382235         Page: 1    Date Filed: 02/16/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-40948                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 16, 2016
                                                                           Lyle W. Cayce
              Plaintiff–Appellee,                                               Clerk

v.

FABIAN GONZALEZ-LOYA,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-126-2


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Fabian Gonzalez-Loya was convicted of one count
of conspiracy to possess with intent to distribute “500 grams or more of a
mixture or substance containing a detectable amount of methamphetamine or
50 grams or more of methamphetamine (actual)” in violation of 21 U.S.C.
§§ 841(a)(1) and 846. He was subsequently sentenced to 120 months
imprisonment. Gonzalez-Loya now appeals both his conviction and sentence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40948
For the reasons stated below, we affirm in part, vacate in part, and remand to
the district court for resentencing consistent with this opinion.
                               I. DISCUSSION
      Gonzalez-Loya first argues that the evidence presented at trial was
insufficient to sustain his conspiracy conviction. At trial, Gonzalez-Loya moved
for judgment of acquittal at the close of the Government’s case and rested
without introducing any evidence, properly preserving his sufficiency
argument for our review. See United States v. Resio-Trejo, 45 F.3d 907, 910 n.6
(5th Cir. 1995). Our task, then, is to determine whether, viewing the evidence
in the light most favorable to the verdict, “a rational jury could have found the
essential elements of the offense[] beyond a reasonable doubt.” United States
v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006) (quoting United States v. Pruneda-
Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992)). To prove a drug conspiracy, the
Government must prove three elements beyond a reasonable doubt: “(1) the
existence of an agreement between two or more persons to violate narcotics
laws; (2) the defendant’s knowledge of the agreement; and (3) his voluntary
participation in the conspiracy.” Id. at 256–57. Gonzalez-Loya contends that
the evidence at trial failed to establish the second and third elements of the
offense: knowledge and voluntary participation.
      We have held that “[d]irect evidence of a conspiracy is unnecessary” and
“each element may be inferred from circumstantial evidence.” United States v.
Mitchell, 484 F.3d 762, 768–69 (5th Cir. 2007) (quoting United States v.
Casilla, 20 F.3d 600, 603 (5th Cir. 1994)). In addition, co-conspirator
testimony, even from a witness who has chosen to cooperate with the
Government in exchange for leniency, can be “constitutionally sufficient
evidence to convict,” so long as the testimony “is not factually insubstantial or
incredible.” United States v. Nieto, 721 F.3d 357, 367 (5th Cir. 2013) (quoting
United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003)). As a matter of law,
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testimony is incredible only if it describes “facts that the witness could not
possibly have observed” or events that “could not have occurred under the laws
of nature.” Valdez, 453 F.3d at 257 (quoting United States v. Bermea, 30 F.3d
1539, 1552 (5th Cir. 1994)).
      Here, the evidence at trial included, among other things, testimony from
Gonzalez-Loya’s co-defendant, Steven Mark Chavez, who plead guilty in
exchange for his cooperation and testimony. Chavez testified that he first met
Gonzalez-Loya and another co-defendant, Javier Escalera, in October 2011.
According to Chavez, Gonzalez-Loya and Escalera asked Chavez if he wanted
to sell methamphetamine for them. Chavez testified that, over the next few
months, he bought methamphetamine from Gonzalez-Loya and Escalera
approximately once every two weeks—by his estimate, approximately sixteen
times in total. According to Chavez, Gonzalez-Loya was present at most of the
transactions and often counted the money. This testimony alone was sufficient
to sustain Gonzalez-Loya’s conviction, and Gonzalez-Loya does not attempt to
show that it was incredible as a matter of law. See Nieto, 721 at 367; Valdez,
453 F.3d at 257. Therefore, Gonzalez-Loya’s sufficiency challenge fails.
      Gonzalez-Loya next argues that the district court erred in denying him
a mitigating role reduction under U.S.S.G. § 3B1.2. The district court’s denial
of a mitigating role reduction is a factual finding that we review for clear error.
See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). A factual
finding is not clearly erroneous if it is plausible in light of the entire record. Id.
For a defendant to qualify as a minor participant, his or her actions must have
been “peripheral to the advancement of the illicit activity.” Id. at 204 (quoting
United States v. Miranda, 248 F.3d 434, 446–47 (5th Cir. 2001)). Here, Chavez
identified Gonzalez-Loya and Escalera as his methamphetamine suppliers and
testified that they not only recruited him to sell narcotics for them but that he
went on to purchase methamphetamine from them approximately sixteen
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times. In light of this evidence, and the record as a whole, it is plausible that
Gonzalez-Loya was not a minor or minimal participant in the criminal activity.
Hence, the district court did not clearly err by denying him a mitigating role
reduction.
      Gonzalez-Loya next argues that the district court erred when it denied
him safety-valve relief under U.S.S.G. § 5C1.2. When safety-value relief is
granted, a district court sentences a defendant “in accordance with the
application guidelines” but “without regard to any statutory minimum
sentence.” U.S.S.G. § 5C1.2(a). We review a district court’s denial of safety-
valve relief for clear error. United States v. Flanagan, 80 F.3d 143, 145 (5th
Cir. 1996). Gonzalez-Loya bears the burden of proving his eligibility for safety-
valve relief. Id. at 146–47. He contends that the district court based its denial
on the mistaken legal premise that only defendants who plead guilty and
qualify for an acceptance-of-responsibility adjustment are eligible for safety-
valve relief. But, at the sentencing hearing, the district court explained that it
was denying Gonzalez-Loya’s request not because Gonzalez-Loya had gone to
trial but because Gonzalez-Loya had not fully debriefed with the Government
before sentencing, which is a necessary prerequisite to qualify for safety-valve
relief. See 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5).
      Gonzalez-Loya further argues that he reached out to the Government in
an attempt to debrief. “The defendant has the burden of ensuring that he has
provided all the information and evidence regarding the offense to the
Government.” Flanagan, 80 F.3d at 146–47. But, Gonzalez-Loya does not point
to anything in the record that adequately supports this argument, let alone
any evidence that demonstrates he actually disclosed his knowledge of the
methamphetamine scheme to the Government. Hence, the district court
correctly denied his request for safety-valve relief. See United States v. Ortiz,
136 F.3d 882, 884 (2d Cir. 1997) (per curiam) (affirming the district court’s
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                                 No. 14-40948
denial of safety-valve relief when the defendant had “done no more than
express his willingness to the district court to provide the information”).
      Gonzalez-Loya next brings an ineffective assistance of counsel claim,
arguing that his counsel was ineffective at sentencing. We generally do not
review claims of ineffective assistance of counsel on direct appeal. See United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). We make an exception only
when the record is adequately developed to allow us to fairly evaluate the
merits of the claim. Id. Here, the district court did not hear sworn testimony
from trial counsel, and it did not make any factual findings as to whether she
rendered ineffective assistance of counsel. Accordingly, the record is not
sufficiently developed to permit direct review of Gonzalez-Loya’s ineffective
assistance claim. See United States v. Kizzee, 150 F.3d 497, 502–03 (5th Cir.
1998). Thus, we decline to consider Gonzalez-Loya’s ineffective assistance
claim without prejudice to his right to raise it again on collateral review under
28 U.S.C. § 2255. See Isgar, 739 F.3d at 841.
      Finally, the Government detected an error in the district court’s
application of a statutory minimum sentence under 21 U.S.C. § 841(b)(1)(A)
that was neither objected to at sentencing nor raised by Gonzalez-Loya on
appeal. The record reflects that the district court sentenced Gonzalez-Loya to
an enhanced mandatory minimum sentence of 10 years imprisonment based
on a drug quantity that, although found by the jury beyond a reasonable doubt,
was not alleged in the indictment.
      The indictment charging Gonzalez-Loya alleged that he conspired to
distribute “50 grams or more of a mixture or substance containing a detectable
amount of methamphetamine and/or 5 grams or more of methamphetamine
(actual), a violation of 21 U.S.C. § 841(a)(1).” This charge carries a statutory
minimum sentence of 60 months imprisonment. 21 U.S.C. § 841(b)(1)(B). But,
the jury found Gonzalez-Loya guilty of conspiring with intent to distribute “500
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grams or more of a mixture or substance containing a detectable amount of
methamphetamine or 50 grams or more of methamphetamine (actual),” which
carries a statutory minimum sentence of 120 months imprisonment. 21 U.S.C.
§ 841(b)(1)(A). The Presentence Investigation Report (“PSR”) found that
Gonzalez-Loya’s offense level was 32 with a sentencing guidelines range of 121
to 151 months imprisonment. The PSR also noted that he was subject to a 10
year statutory minimum sentence under 21 U.S.C. § 841(b)(1)(A). At
sentencing, the district court granted Gonzalez-Loya a two-point offense-level
variance based on an upcoming guidelines amendment. With an offense level
of 30, the district court stated that Gonzalez-Loya was subject to a guidelines
range of 97 to 121 months imprisonment. But, because of the 10 year statutory
minimum, his sentencing range was actually only 120 to 121 months.
ROA.1003. The district court sentenced Gonzalez-Loya to 120 months
imprisonment and 5 years supervised release. The Government concedes that
application of a statutory minimum sentence under 21 U.S.C. § 841(b)(1)(A)
was in error and does not oppose remand for resentencing.
      In “very rare instances,” we will apply plain error review to issues
“neither preserved below nor argued on appeal.” United States v. Delgado, 672
F.3d 320, 329 (5th Cir. 2012) (en banc). Under plain error review, there must
be an error that is clear or obvious and that affects the defendant’s substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If such a showing
is made, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      “Elements of a crime must be charged in an indictment and proved to a
jury beyond a reasonable doubt.” United States v. O’Brien, 560 U.S. 218, 224
(2010). In Alleyne v. United States, the Supreme Court held that any fact that
increases the mandatory minimum sentence applicable to a defendant is an
element of the crime and must be submitted to the jury for proof beyond a
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reasonable doubt. 133 S. Ct. 2151, 2155 (2013). In this case, because
application of 21 U.S.C. § 841(b)(1)(A) increased the mandatory minimum
sentence applicable to Gonzalez-Loya, the Government was required to include
the enhanced statutory penalty in its indictment. See United States v. Daniels,
723 F.3d 562, 570 (5th Cir. 2013) (“[I]f the government seeks enhanced
penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B),
the [drug] quantity must be stated in the indictment and submitted to the [fact
finder] for a finding of proof beyond a reasonable doubt” (quoting United States
v. Doggett, 230 F.3d 160, 164–65 (5th Cir. 2000)))
      In light of the Supreme Court’s holding in Alleyne and this Court’s
precedent, the district court’s application of a 10 year statutory minimum
sentence under 21 U.S.C. § 841(b)(1)(A) was clear error. The Government
concedes that Gonzalez-Loya meets the standard for plain error and does not
oppose remand for resentencing. Cf. United States v. Hinojosa, 749 F.3d 407,
413 (5th Cir. 2014) (“On occasions when the PSR or district court mistakenly
applies a higher statutory minimum sentence, resentencing often occurs as a
matter of course because the Government concedes the error.”). We agree. See,
e.g., United States v. John, 597 F.3d 263, 284–289 (5th Cir. 2010); United States
v. Price, 516 F.3d 285, 288–90 (5th Cir. 2008). Accordingly, Gonzalez-Loya’s
sentence is vacated, and the case is remanded for resentencing consistent with
this opinion.
                              II. CONCLUSION
      For the foregoing reasons, we AFFIRM IN PART, VACATE IN PART,
and REMAND for resentencing consistent with this opinion.




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