     Case: 15-51184      Document: 00514015748         Page: 1    Date Filed: 06/01/2017




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

                                      No. 15-51184                                 FILED
                                                                                June 1, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                     Plaintiff - Appellee

v.

ELI TORRES; ALFREDO TAPIA, III, also known as Naco,
also known as Alfredo Tapia,

                     Defendants - Appellants



                  Appeals from the United States District Court
                        for the Western District of Texas
                           USDC No. 2:11-CR-1780-14


Before DAVIS, JONES, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       This appeal arises from the conviction of two defendants for participating
in drug distribution and firearms offenses as members and conspirators in a
prison gang, the Texas Syndicate. The defendants raise several challenges to
their sentences and convictions. We find no reversible error and 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51184
                                        BACKGROUND
       The FBI and other local law enforcement agencies began investigating a
prison gang, the Texas Syndicate (“TS”), in August 2009 for narcotics
distribution and murder carried out within and outside the Texas prison
system.     In August 2011, the district court granted the Government’s
application to authorize the FBI to intercept the wire and electronic
communications of Eli Torres, a leader in the TS, as well as other targeted
individuals.
      Alfredo Tapia, III, and fourteen codefendants were charged in the
original indictment with conspiracy to possess with intent to distribute 500
grams or more of cocaine (Count One) and with conspiracy to possess with
intent to distribute 100 kilograms or more of marijuana (Count Two). Torres
was charged in a superseding indictment with conspiracy to possess with
intent to distribute 500 grams or more of cocaine (Count One) and distribution
of 500 grams or more of cocaine within 1000 feet of a school (Count Two).
       The following TS members or associates pled guilty and testified against
Tapia and Torres. Mark Anthony Vela, a TS prospect, 1 was the main supplier
of the narcotics in Uvalde and surrounding Texas counties.                          Charles
Quintanilla, a TS associate, was a drug dealer who purchased marijuana and
cocaine from Vela for several years. Ervey Sanchez was a full TS member who
supplied cocaine to Torres for resale and also supplied Vela. Finally, Thomas
Cuellar, a former Sheriff’s Deputy and Vela’s brother-in-law, provided
information on law enforcement efforts to Vela, obtained cocaine from both
Vela and Tapia, and observed Tapia storing drugs for Vela.


       1TS operates under a specified hierarchy of leadership consisting of a chairman, a
lieutenant, and a sergeant. “Carnals” or “soldiers” are non-ranking members who carry out
many of the criminal activities, and “prospects” are individuals attempting to become carnals.
Prospects are typically used to conduct the most violent activities on behalf of the TS.

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                                  No. 15-51184
      Torres filed a motion to suppress the evidence obtained from the
electronic surveillance and for a Franks hearing to challenge the affidavit that
supported the Government’s wiretap application. The district court denied the
motion. Torres and Tapia were tried together before a jury and were convicted
as charged.
      The district court enhanced Tapia’s sentence for, among other things,
obstruction of justice, possession of a dangerous weapon, and use of violence.
With a total offense level of 40 and a criminal history category of I, the court
granted Tapia a downward variance from a guidelines range of imprisonment
of 292 to 365 months and sentenced him to 240 months of imprisonment on
each count, to be served concurrently. The court also imposed a $3,000 fine
and five-years of supervised release. The district court sentenced Torres to 300
months of imprisonment on each count, to be served concurrently, a $4,000
fine, and an eight-year term of supervised release. Torres and Tapia timely
appealed.
                                    DISCUSSION
      I.      Tapia
      Tapia challenges only the district court’s adoption of three enhancements
to his base offense level for sentencing. This court reviews the district court’s
application of the Sentencing Guidelines de novo and its findings of fact for
clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
      A. Obstruction of Justice
      Tapia challenges the two-level enhancement under U.S.S.G. § 3C1.1 for
obstruction of justice. He asserts that although his testimony contradicts the
testimony presented by the Government, and the jury ultimately found him
guilty, this is insufficient for a finding of perjury. Tapia points to testimony in
the record indicating that he was only a drug user and not a drug dealer. He
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also contends that because he filed a written objection to the enhancement, the
district court should have addressed each element of the perjury in a separate
and clear finding.
      Tapia objected to this enhancement in the trial court, but because he did
not argue that the district court failed to make the separate findings on each
claimed incident of perjury, this court’s review is for plain error. “To preserve
error, an objection must be sufficiently specific to alert the district court to the
nature of the alleged error and to provide an opportunity for correction.”
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); United States v.
Martinez, 547 F. App’x 559, 563 (5th Cir. 2013). To demonstrate plain error,
however, Tapia must show, inter alia, that the district court’s error is clear or
obvious and affects his substantial rights. Puckett v. United States, 556 U.S.
129, 135, 129 S. Ct. 1423, 1429 (2009).
      Section 3C1.1 provides for a two-level increase in the offense level if “the
defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction” and this conduct relates to “the
defendant’s offense of conviction.” U.S.S.G. § 3C1.1. The enhancement is
warranted if the defendant commits perjury. § 3C1.1, comment n.4(b).              A
defendant commits perjury if he gives “false testimony concerning a material
matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United States v. Dunnigan,
507 U.S. 87, 94, 113 S. Ct. 1111, 1116 (1993).
      Preferably, the district court should make a separate and clear finding
on each element of perjury, but a finding of obstruction “that encompasses all
of the factual predicates for a finding of perjury” is sufficient. Id. at 95, 1117.
“The sentencing court need not expressly find that the false testimony
concerned a material matter; it is enough that materiality is obvious.” United
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                                 No. 15-51184
States v. Perez-Solis, 709 F.3d 453, 470 (5th Cir. 2013) (internal quotation
marks omitted).      Nor must a district court’s finding in support of an
obstruction-of-justice enhancement include an explicit finding of willfulness.
United States v. Miller, 607 F.3d 144, 152 (5th Cir. 2010).
      In a proper use of its discretion, the district court adopted the legal and
factual findings of the PSR, which outlined testimony the probation officer
deemed contradictory to Tapia’s own testimony.        United States v. Smith,
804 F.3d 724, 737 (5th Cir. 2015); United States v. Edwards, 65 F.3d 430, 432
(5th Cir. 1995) (“[A] district court has wide discretion in determining which
evidence to consider and which testimony to credit” at sentencing). The court
drew attention to the PSR’s discussion of the intercepted wire and electronic
communications between Vela and Tapia, which concerned Tapia’s role in the
drug conspiracy, including his role in submitting receipts and collecting money
for Vela. The court also noted that pen register data demonstrated Tapia’s
regular contact with Vela over 20 months.        The court discussed the trial
testimony that Tapia had acted as a lookout at his residence while a man was
held at gunpoint by a coconspirator for an unpaid drug debt. The court’s
adopted findings conflict with Tapia’s testimony that he merely used drugs,
but was not involved in drug distribution. The court committed no clear error
in finding that Tapia’s material disclaimers were not worthy of credence given
the weight of the contradictory witness testimony, the intercepted wire and
electronic communications, and the jury’s verdict. United States v. Smith, 804
F.3d 724, 737 (5th Cir. 2015); United States v. Flores, 640 F.3d 638, 644 (5th
Cir. 2011). We conclude that the district court’s application of § 3C1.1 was not
erroneous.
      B. Possession of a Firearm
      Next, Tapia challenges the two-level enhancement for possession of a
firearm in furtherance of a conspiracy. He argues that the Government failed
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                                  No. 15-51184
to prove by a preponderance of the evidence that a weapon was possessed
because the uncorroborated testimony of others conflicted with his own
testimony.
      Section 2D1.1(b)(1) provides that the base offense level of a defendant
convicted of certain drug-related offenses should be increased by two-levels if
“a dangerous weapon (including a firearm) was possessed.”                U.S.S.G.
§ 2D1.1(b)(1). Because a defendant may be held responsible for all reasonably
foreseeable acts of the conspiracy, § 1B1.3(a)(1)(B), “a sentencing court may
often infer foreseeability from a coconspirator’s knowing possession of a
weapon.” United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010)
(internal quotation marks and citation omitted). Whether a dangerous weapon
was possessed for purposes of the enhancement is a fact question reviewed for
clear error, while the legal sufficiency of the facts found is a question reviewed
de novo. Id.
      The PSR relied on trial testimony describing how multiple firearms were
possessed in furtherance of the conspiracy. Vela told his cellmate Sanchez
following their arrests that he had asked Tapia to move firearms that Tapia
had hidden for him. Further, Quintanilla testified that Tapia acted as a
lookout at Tapia’s own residence while another TS conspirator held
Quintanilla’s nephew Javier Garcia, Jr. at gunpoint until he agreed to give
them a 55” TV to repay his TS drug debt. Moreover, TS carnals and an
associate used firearms in three murders, a TS member sold a stolen rifle, and
Sanchez sold a handgun.
      The district court’s finding that Tapia acted as a lookout while a debtor
was held at gunpoint was not clearly erroneous as it was supported by
Quintanilla’s testimony, which the court was entitled to credit. United States
v. Harris, 740 F.3d 956, 967 (5th Cir. 2014); Edwards, 65 F. 3d at 432. Tapia
had the burden of showing that it was clearly improbable that the weapons
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possessed by his coconspirators were connected with the offense. United States
v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010). In addition, Tapia failed to address
the PSR’s recitation that multiple firearms were possessed in furtherance of
the conspiracy; consequently, he has not demonstrated that the district court
erred in assessing the two-level firearms enhancement.
      C. Use or Credible Threat of Violence
      Tapia contends that the district court’s two-level enhancement for a
credible threat to use violence against Javier Garcia, Jr. was solely based on
Quintanilla’s uncorroborated testimony, which lacked sufficient indicia of
reliability.
      The district court may enhance a sentence two levels “[i]f the defendant
used violence, made a credible threat to use violence, or directed the use of
violence.” § 2D1.1(b)(2). Relevant conduct includes “in the case of a jointly
undertaken criminal activity . . . all acts and omissions of others that were . . .
reasonably     foreseeable   in   connection     with   that    criminal    activity.”
§ 1B1.3(a)(1)(B)(iii).
      The PSR recommended imposing this additional enhancement based on
the incident where a drug debtor was held at gunpoint and threatened in
Tapia’s backyard. Information in the PSR is “presumed reliable and may be
adopted by the district court without further inquiry if the defendant fails to
demonstrate by competent rebuttal evidence that the information is materially
untrue, inaccurate, or unreliable.” United States v. Sanchez, 850 F.3d 767, 769
(5th Cir. 2017) (internal citations and quotation marks omitted).               That
Quintanilla’s testimony about this incident was uncorroborated is not fatal,
especially given that he was subject to cross examination at trial. United
States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). The district court was
entitled to credit Quintanilla’s testimony, and was not required to accept


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Tapia’s “self-serving account of his role in the drug organization.” United
States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
      Tapia has not shown that the information the district court relied on is
materially untrue. United States v. Young, 981 F.2d 180, 185 (5th Cir. 1992).
The threat and use of violence was reasonably foreseeable to those associated
with the TS. Tapia interacted with several TS members over a long period of
time; he distributed, received, and stored drugs, and received drug money on
behalf of members. That at some point violence, committed by this gang for
whom violence and intimidation are a modus operandi, would occur in Tapia’s
presence was reasonably foreseeable. The district court did not err.
      D. Cautionary Instructions
      Tapia oddly contends that each enhancement was somehow improper
because the district court should have issued a jury instruction cautioning the
jury against relying on the testimony of Sanchez, Quintanilla, and Cuellar to
the extent it was uncorroborated. In fact, the district court told the jury that
the Government had called as witnesses alleged accomplices who had entered
into favorable plea agreements.     The court instructed the jury that such
testimony should be received “with caution and weighed with great care,” and
the jury should not convict a defendant based on the unsupported testimony of
an alleged accomplice unless it believed the testimony beyond a reasonable
doubt. See Tillery v. United States, 411 F.2d 644, 647 (5th Cir. 1969). More to
the point, however, the sufficiency of these cautionary instructions has nothing
to do with the court’s credibility assessments for sentencing purposes.
      II.   Torres
      A. Wiretap Order
      Torres argues that the district court erred when, in August 2011, it
granted the Government’s request and authorized the interception of wire and
electronic communications from his cell phone without a showing of the
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requisite necessity. He contends that the change in TS leadership that had
occurred in June 2011 did not meet the necessity requirement because the
identity of these officers had been previously known. He objects that the
wiretap was authorized in the last five weeks of a two-year investigation after
traditional techniques already exposed his involvement and the scope of the
conspiracy.
      This court reviews the district court’s issuance of a wiretap order for
clear error and reviews de novo whether the Government satisfied the
“necessity requirement” under 18 U.S.C. § 2518(1)(c). United States v. Kelley,
140 F.3d 596, 604 (5th Cir. 1998).
      An application seeking authorization for a wiretap must show probable
cause and must state “whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried
or to be too dangerous.” § 2518(3)(a), (1)(c). Consequently, a judge must find
that the Government has made the required showing of necessity. § 2518(3)(c).
This necessity requirement is not meant to “foreclose electronic surveillance
until every other imaginable method of investigation has been unsuccessfully
attempted.” United States v. Webster, 734 F.2d 1048, 1055 (5th Cir. 1984).
Rather, it requires a showing that “in the particular investigation normal
investigative techniques employing a normal amount of resources have failed
to make the case within a reasonable period of time.” Kelley, 140 F.3d at 605
(internal quotation marks and citation omitted). The Government therefore
does not have to show that it has exhausted every conceivable option before a
wiretap may be approved. Id.
      The Government applied to tap the cell phones of Torres, Sanchez, and
Vela, which it asserted were being used to contact numerous “interceptees.”
The Government supported its application with a 106-page affidavit of FBI


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Special Agent Katherine Gutierrez, who attested that Torres, Vela, and
Sanchez were engaged in narcotics activity.
      Agent Gutierrez stated in the affidavit that several investigative
techniques had been attempted yet failed, while other techniques appeared
unlikely to achieve the investigation’s goals and were too dangerous to employ.
A very brief summary of the affidavit includes that Gutierrez noted that the
FBI analyzed pen register and air time activity on Torres’s phone, which
showed that Torres was in contact with other known TS members and
associates, but Agent Gutierrez could not access the substance of the
conversations. Although the FBI had secured the cooperation of confidential
informants, the informants did not know all of the accomplices with whom the
interceptees associated, were unaware of all of the codes that conspiracy
members used to identify one another, and did not know many telephone
numbers used by the participants.          There was no guarantee that the
confidential informants referenced in the affidavit would continue to cooperate.
Physical surveillance and trash searches of the targeted individuals were also
of limited value because of the remoteness of Uvalde and Hondo and their
small populations—anyone from out-of-town was readily identifiable by the
targeted individuals. Nor was the use of undercover agents adequate. Due to
the secretive nature of the TS, it was dangerous for an undercover officer to
attempt to infiltrate the upper echelons of the organization. The danger was
compounded because Sherriff’s Deputy Cuellar had been leaking pending law
enforcement operations to Vela.
      This court has affirmed wiretap orders under similar circumstances
involving investigations into large criminal conspiracies.      United States v.
Krout, 66 F.3d 1420, 1425 (5th Cir. 1995) (upholding a wiretap order based on
affiant’s statement that undercover agents could not infiltrate the conspiracy);
Webster, 734 F.2d at 1054–55 (upholding a wiretap order based on affiant’s
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                                  No. 15-51184
statement that physical surveillance had not disclosed the target’s drug source,
continued surveillance carried a risk of detection, and infiltration was risky
and dangerous). Torres ignores Agent Gutierrez’s assertions that the new TS
leaders—including himself—were more violent than the previous leaders, that
informants did not know all of Torres’s accomplices, and that air time and pen
register activity did not provide the substance of communications.           Agent
Gutierrez’s affidavit therefore clearly satisfies the necessity requirement. See
Krout, 66 F.3d at 1425; Webster, 734 F.2d at 1055.
      B. Franks Hearing
      Torres argues that the district court erred when it denied his request for
a Franks hearing. Torres suggests that Agent Gutierrez’s misrepresented the
need for electronic surveillance because electronic surveillance was actually
only possible for 16 hours out of the day. Torres asserts that this “critical fact”
was omitted from her affidavit.
      Because Torres failed to put the district court on notice of his assertion
that Gutierrez omitted critical information about the availability of real time
information, this court reviews for plain error.       United States v. Bullock,
71 F.3d 171, 179 (5th Cir. 1995).
      Under Franks, a defendant is entitled to a hearing if he demonstrates
that a “false statement knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause.” Franks
v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978). “There must
be allegations of deliberate falsehood or of reckless disregard for the truth, and
those allegations must be accompanied by an offer of proof.” Id. at 171, 2684.
An omission may amount to improper government conduct only if the omission
is material and the defendant shows that the affiant excluded material


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information “with the intent to mislead the magistrate.” United States v.
Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995).
      The information in Agent Gutierrez’s affidavit supported a probable
cause finding that Torres used his cell phone to advance the distribution of
narcotics and to effectuate murder on behalf of the TS. See United States v.
Froman, 355 F.3d 882, 889 (5th Cir. 2004). Gutierrez’s failure to state that 24-
hour surveillance was authorized but could only operate 16 hours a day
because of the need for translation assistance is a small detail of the
Government’s operation, not a material omission in the affidavit, and does not
evince an intent to mislead. See Tomblin, 46 F.3d at 1377. The district court
properly denied the Franks hearing.
                                  CONCLUSION
      For the foregoing reasons, we find no reversible error of fact or law. The
convictions and sentences of appellants are AFFIRMED.




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