     Case: 12-50702       Document: 00512369904         Page: 1     Date Filed: 09/11/2013




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

                                                                            FILED
                                                                        September 11, 2013

                                       No. 12-50702                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JAVIER HORACIO MARTINEZ-HERRERA,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-3201-1


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Javier Horacio Martinez-Herrera was convicted by a jury of conspiracy to
possess cocaine with intent to distribute, possession of cocaine with intent to
distribute, conspiracy to commit murder in a foreign country, and illegal re-
entry. On appeal, Martinez challenges the sufficiency of the evidence supporting
his conspiracy to commit murder conviction, introduction of prior bad acts
evidence and photographs of the murder victim, drug quantity attributed to him
at sentencing, and the explanation for the sentence imposed. We AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50702

      Martinez was indicted and tried in the El Paso Division of the United
States District Court for the Western District of Texas. The drug conspiracy
involved the use of vehicles containing secret compartments. Different drivers
used the vehicles to transport drugs across the Mexican border to cities including
Memphis and Kansas City.
      The conspiracy to murder charge stemmed from an incident in which
Martinez’s wife was apprehended at an El Paso border entry point for possession
of cocaine. Based on information from his wife’s lawyer, specifically a tape
recording of an anonymous phone call, Martinez believed that Marta Ramirez-
Gutierrez had “snitched” on his wife, such that border officials were waiting for
her at the border with drug dogs. Marta’s murder was orchestrated by Martinez,
his mother Yolanda Herrera de Martinez (“Yolanda”), Ellen Nallely Espinoza-
Reyes (“Nallely”), and “Chucky.” Chucky hired unnamed hitmen in Juarez,
Mexico where Marta lived, and Martinez agreed to pay the hitmen $1000.
                                 DISCUSSION
I.    Sufficiency of the Evidence
      Martinez argues there was insufficient evidence to establish he conspired
to murder Marta. When a defendant preserves a challenge to the sufficiency of
evidence as Martinez did, we review the denial of a motion for a judgment of
acquittal de novo. United States v. Curtis, 635 F.3d 704, 717 (5th Cir. 2011). We
consider the evidence in the light most favorable to the jury verdict to determine
whether a rational jury could have found guilt beyond a reasonable doubt. Id.
at 717-18.
      To support conviction for conspiracy to murder under 18 U.S.C. § 956(a)(1)
the government must prove: (1) an agreement by the defendant with at least one
person to commit murder; (2) “the defendant willfully joined the agreement with
the intent to further its purpose;” (3) one of the conspirators committed an overt
act in furtherance of the conspiracy; and (4) one of the conspirators was within

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United States jurisdiction at the time of the agreement. United States v.
Wharton, 320 F.3d 526, 537-38 (5th Cir. 2003).
       The government presented recordings of several phone calls variously
involving Martinez, Yolanda, Nallely, and Chucky. Written English translations
of these primarily Spanish conversations were shown to the jury, and an FBI
agent testified to explain the recorded conversations. The recordings revealed
Martinez labeling Marta “a snitch,” saying “we need to have her disappear,” and
discussing sending a $1000 payment once the killing was confirmed. Martinez
also discussed how to locate Marta and the method of killing. On the day of the
shooting, Nallely told Martinez to watch a particular news program on which he
saw a report on Marta’s shooting. Shortly after watching that report, Martinez
said, “what I asked to be done just came out. They already resolved it for me.”
At trial, Martinez presented alternative explanations for his recorded
statements. He did not object, though, to any specific translation or present
alternative translations.
       Affording the jury verdict “the benefit of all reasonable inferences and
credibility choices,” we conclude that the evidence was sufficient to support a
conviction for conspiracy to murder. Curtis, 635 F.3d at 718.
II.    Admission of Prior Bad Acts
       On appeal, Martinez challenges the admission of evidence as to five sets
of prior bad acts, namely conversations regarding: (1) Marta’s murder; (2)
Martinez’s cartel involvement and contacts; (3) the forcible collection of money
from a third party, “Saul;” (4) a currency seizure from Rubi Nallely Ortega-
Herrera; and (5) an invitation to purchase AK-47s. Because he failed to object
at trial, Martinez properly concedes that admission of the foregoing evidence is
reviewed for plain error. Plain error review requires a defendant to demonstrate
error, which was plain or obvious, that affected the defendant’s substantial
rights. United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012). If such

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error is demonstrated, we have discretion to correct the error if it “affects the
fairness, integrity, or public reputation of judicial proceedings or in order to
prevent a manifest miscarriage of justice.” Id. (quotations omitted).
      Evidence intrinsic to the crimes charged is generally admissible. United
States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007). Evidence is intrinsic when
it is “inextricably intertwined” with or “a necessary preliminary to the crime
charged,” or when it is “part of a single criminal episode” with the charged act.
Id. Only if an act is extrinsic do we consider whether that act meets the
requirements of Federal Rule of Evidence 404(b). Id. at 690.
      The conversations regarding Marta’s murder describe the crime of
conspiracy to murder: an agreement between the conspirators, Martinez’s
voluntary participation, and overt acts coordinating the actual murder. See 18
U.S.C. § 956(a)(1). These conversations are “inextricably intertwined” with the
charged offense as they offer direct proof of the elements of conspiracy to
murder. Sumlin, 489 F.3d at 689. So too the drug conspiracy charge permitted
proof of acts of the conspirators occurring during the life of the conspiracy.
United States v. Watkins, 591 F.3d 780, 785 (5th Cir. 2009). Those acts included
the collection of drug money from Saul and the currency seizure. Evidence of the
structure of the conspiracy, including Martinez’s question about and references
to the cartels for which he worked, was also intrinsic proof of the conspiracy. Id.
This evidence was properly admitted as intrinsic to the crimes charged.
      The evidence as to the AK-47s included a phone call in which Martinez’s
brother asked whether he wanted to purchase cheap AK-47s. Martinez declined.
An FBI agent testified that guns are often used to commit drug crimes. We see
no need to decide whether the evidence as to these weapons was admissible
under Rule 404(b). Even if it was not, we conclude that under plain error review
the admission did not affect Martinez’s substantial rights or raise “a reasonable
possibility that this improperly admitted evidence contributed to the conviction.”

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Sumlin, 489 F.3d at 691. The testimony about the AK-47s was brief; in fact,
Martinez rejected the invitation to make a purchase. Additionally, the other
evidence against Martinez was overwhelming. See United States v. Williams,
957 F.2d 1238, 1243 (5th Cir. 1992). Therefore, admission of evidence as to the
AK-47s was not reversible plain error.
III.    Photographs of the Murder Victim
        At trial, the government introduced into evidence seven photographs of the
murder victim. Five photographs showed Marta alive, lying in a hospital bed,
bandaged, with medical tubes attached to her. Martinez objected that the
photographs should be excluded as substantially more prejudicial than probative
under Federal Rule of Evidence 403. “This court reviews a district court’s
evidentiary rulings for an abuse of discretion.” United States v. Caldwell, 586
F.3d 338, 341 (5th Cir. 2009).
        The photographs are not “gruesome” or “shocking” so as to cause undue
prejudice. United States v. Fields, 483 F.3d 313, 355 (5th Cir. 2007). The
admission of “photographs of the victim’s [dead] body in a murder case ordinarily
does not rise to an abuse of discretion where those photos have nontrivial
probative value.” Id. The photographs possessed probative value in proving
overt acts committed in furtherance of the conspiracy. The prejudice of the
photographs did not “substantially outweigh the probative value of the
evidence,” and the district court did not abuse its discretion in admitting the
photographs. See id. at 354.
IV.     Attribution of Cocaine
        At sentencing the district court determined Martinez was responsible for
292.6 kilograms of cocaine. The district court must find facts relevant to the
Sentencing Guidelines by a preponderance of the evidence. United States v.
Greenough, 669 F.3d 567, 576 (5th Cir. 2012). Because Martinez objected to this
attribution at sentencing, we review this factual determination for clear error.

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See id. “There is no clear error if the district court’s finding is plausible in light
of the record as a whole.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).
      The Presentence Investigation Report (“PSR”) reflected quantities of 292.6
and 12 kilograms seized. The PSR also revealed Martinez’s admission in a
recorded phone call to 5 kilograms and in a post-arrest interview to participating
in 30 to 40 transactions with an average cocaine weight of 6 kilograms. These
admissions by themselves constitute evidence of between 185 to 245 kilograms.
In making its factual findings, the district court “may consider any evidence
which bears sufficient indicia of reliability to support its probable accuracy.”
United States v. Nava, 624 F.3d 226, 230-31 (5th Cir. 2010) (internal quotation
omitted). Sufficient indicia of reliability are generally found in PSRs. Id. at 231.
A defendant bears the burden of showing that this evidence is “materially
untrue, inaccurate or unreliable.” Id. Further, trial testimony of various FBI
agents supported the drug quantities enumerated above, and the trial record
reflected numerous other quantities of cocaine that were part of the same
conspiracy.
      The quantity of drugs attributed to a defendant at sentencing need not be
limited to drugs actually seized and can be based on estimates. United States
v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). Considering the record as a
whole, the district court did not clearly err in attributing 292.6 kilograms of
cocaine to Martinez as relevant conduct.
V.    Sentence
      The district court sentenced Martinez to consecutive life sentences on four
of the five charges of conviction and to 24 months on the illegal re-entry count.
On appeal, Martinez argues the district court committed error by failing to
adequately explain the reasons for imposing the sentence under the factors set
out in 18 U.S.C. § 3553.

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      Our review is for plain error because Martinez did not object to the
explanation of the sentences before the district court.        United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      The district court stated that it had read the PSR and overruled
Martinez’s objections.    The court also spoke to the defendant in Spanish
immediately after sentencing him, suggesting his comments were among the
court’s reasons:
            What you didn’t do for that lady that you had killed is
      something that I am going to do for you. Yes, specifically, in terms
      of you being guilty of all the charges that were brought against you,
      I’m going to appoint a lawyer so that you can appeal. That way, you
      have no doubt regarding the innocence that you are claiming.

            You said you didn’t do it, and you acted like you didn’t do it,
      but it’s all recorded in all of the conversations that we have as
      evidence. And, that way, a higher court, a court that’s over me, can
      confirm the verdict that was actually rendered.
      We conclude that there was no reversible plain error in the manner in
which the court explained the sentence. The court gave some explanation
implicitly referring to the seriousness of the crime, which also suggests relevant
focus on deterrence and protecting the public. See 18 U.S.C. § 3553(a)(2).
Martinez does not argue the sentence is outside the correctly calculated
Guidelines range. Any failure to make a detailed explanation for a sentence “is
diminished when the sentence is within the Guidelines range.” Mondragon-
Santiago, 564 F.3d at 365. Martinez has not shown that a fuller explanation
would have affected his sentence, and accordingly the failure to explain the
sentence more fully did not affect Martinez’s substantial rights.
      AFFIRMED.




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