     Case: 13-50376   Document: 00512765113    Page: 1   Date Filed: 09/11/2014




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

                                                                      FILED
                                                                 September 11, 2014
                                No. 13-50376
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,


                                         Plaintiff – Appellee
v.

JAVIER GUERRERO, also known as Javi,


                                         Defendant – Appellant

Cons. w/ No. 13-50379

UNITED STATES OF AMERICA,


                                         Plaintiff – Appellee
v.

JAVIER GUERRERO,


                                         Defendant – Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
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                                     No. 13-50376
Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      This is a consolidated appeal of two cases brought against Javier
Guerrero, an individual the government alleged was the leader of the Texas
Mexican Mafia in Uvalde.           The first case, which involved racketeering
charges including the commission of two murders in aid of racketeering,
resulted in guilty verdicts and the imposition of five life sentences. As might
be expected in a case with such high stakes on both sides, the appeal raises
issues that run the gamut of a criminal proceeding. Guerrero raises a Fourth
Amendment objection to cell tower records obtained during the investigation;
challenges jurisdiction on the basis of his age; contends that the government
engaged in discovery violations and constructively amended the indictment
through the evidence it introduced at trial; objects to expert witnesses the
government called at trial; and disputes that the evidence was sufficient to
sustain one of the convictions.
      While Guerrero was awaiting sentencing in the first case, he assaulted
a correctional officer.    That gave rise to his second federal criminal case.
Because Guerrero pleaded guilty to the assault charge, his appeal in the
second case focuses solely on the 210-month sentence he received.
      Finding no error in either case, we affirm for the reasons discussed
below.
             I.     Background Facts and Proceedings Below 1
      The bonds that tie a violent criminal operation together can be deadly
to the general public. But when things go wrong internally, and those bonds
fracture, the members of the operation are vulnerable to the fallout. This
case is a prime illustration.

      1 Because the jury found Guerrero guilty on all counts, these facts are based on the
testimony at trial viewed in favor of the government.
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                                      No. 13-50376
       In the early 1980s, a group of Texas inmates formed a hierarchical
criminal enterprise that they named the Texas Mexican Mafia. 2 San Antonio
is its “capital,” but it operates throughout Texas. Operations are funded by
extortion; small-bit drug dealers are forced to pay the Mexican Mafia a 10%
“tax,” or “dime,” on all of their proceeds from illegal drug sales. In exchange,
the Mexican Mafia guarantees the dealers protection and allows them to sell
drugs in Mexican Mafia–dominated areas. The group itself also traffics in
illegal drugs.
       The Mexican Mafia takes its organizational structure and its rules very
seriously. Following the omertà code of the original mafia, perhaps the most
important rule is that members cannot cooperate with law enforcement.
Often, enforcing this and other membership obligations means committing
murder.
       Javier Guerrero was born in Uvalde, Texas, on July 20, 1988. Three of
his older brothers—Carlos, Miguel, and Orlando—were longstanding
members of the Mexican Mafia. At sixteen, Guerrero began his affiliation
with the Mexican Mafia, and he rose quickly through its ranks.                           By
seventeen, he was a sergeant, in charge of all operations in Uvalde. In June
2006, just before he turned eighteen, he planned a brutal home invasion of
Geraldo Gonzales, a local drug dealer who had refused to pay the “dime.”
       One of the perpetrators of the Gonzales home invasion was Guerrero’s
friend, Chris Mendez.         Mendez’s girlfriend, whose brother is a detective,
encouraged Mendez to turn himself over to authorities after the Gonzales
incident. Guerrero and another Mexican Mafia member, Valdomero “Oso”
Hernandez, found out about Mendez’s apparent cooperation with authorities,


       2The Texas Mexican Mafia is distinct from the Mexican Mafia, a criminal enterprise
founded in a California prison in the late 1950s. But for simplicity’s sake, the remainder of
the opinion will refer to the Texas Mexican Mafia as the Mexican Mafia.
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                                No. 13-50376
and considered him a snitch. (Incidentally, this was wrong—Mendez was
actually taking the fall for the home invasion.) They asked for and received
permission from William Davalos, the lieutenant ranked above Guerrero, to
kill Mendez. Part of the reason this responsibility fell on Oso is that Oso was
Mendez’s sponsor, and according to Mexican Mafia policy, sponsors are
required to kill their charges when such an act becomes necessary. Davalos
was reluctant, but ultimately told them to “do what you need to do.”
      The Mendez murder occurred on December 2, 2006. That morning was
the last time Mendez’s girlfriend saw him alive. When Mendez and Guerrero
came up to the drive thru at the restaurant where she worked, she noticed
that Mendez was sad and avoided her gaze, and that Guerrero appeared
uncharacteristically nervous. Mendez and Guerrero ordered coffees and left.
At around 4:15 or 4:30 p.m. that day, Luis David Garza found Mendez’s body
in the middle of a road leading to Garza’s ranch in Concan, Texas. Mendez
had two bullet wounds in his head. Oso later told Nicholas Alvarez, another
member of the Mexican Mafia, that he was the one who shot Mendez at close
range. He also told Alvarez that Guerrero was with him and it annoyed him
that Guerrero started making calls immediately after Mendez was shot.
      Guerrero told two Mexican Mafia members who were beneath him in
the hierarchy about the Mendez murder. He showed Chris Ortiz the criminal
indictment in this case and said he was involved in “two of them,” which
Ortiz took to mean “murders.”      And he told Eli Valdez, who reported to
Guerrero, that Valdez would be killed—like Mendez was—if he ever snitched.
      Other evidence implicating Guerrero in the Mendez murder was
introduced at trial. Historical cell site information indicated that Guerrero
made five phone calls between 2:20 and 4:14 p.m. on the afternoon of the
murder. One of the towers from which Guerrero’s phone received service
when he placed those calls is located 12.8 miles from the murder site. The
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                                    No. 13-50376
phone records indicate that between 4:30 and 5:00 p.m., Guerrero was
moving east, and by 5:42, he was receiving service in the San Antonio area.
This coincides with testimony from Guerrero’s brother, Orlando, stating that
he, Guerrero, and Oso met up at a Wal-Mart in San Antonio in the late
afternoon that day. When they went back to Orlando’s house, Guerrero and
Oso threw out their shoes and Oso’s shirt. Later that night, Orlando heard
Oso weeping on the phone, telling his girlfriend, “Nah, babe, I can’t believe I
killed him. I can’t believe – he’s my road dog, carretera perro. We were so
close together.”
      After authorities discovered Mendez’s body, they discovered another
dead body on the same ranch in Concan: Jesse “Pos Pos” Rodriguez.
According to testimony at trial, Pos Pos was killed roughly a week before
Mendez was and for the same reason. Orlando testified that he received
orders to take out Pos Pos because Pos Pos was suspected of being an
informant.     But Guerrero was the one who orchestrated the murder. 3
Guerrero and three other Mexican Mafia members, including Orlando,
stabbed Pos Pos until he bled profusely. Guerrero ran from the scene while
the other three members shoved Pos Pos—still breathing—into a hole in the
ground. They mixed up concrete and cement, poured it over Pos Pos’s head,
and buried him alive.
      Soon after these murders, Guerrero was promoted to lieutenant. He
had several jobs: collecting the dime from drug dealers; seizing taxes from
individuals bringing undocumented aliens into the United States; and


      3 Guerrero and Orlando appear to have made separate plans to kill Pos Pos, and the
one that went through was Guerrero’s. It began when he ordered Orlando to drive towards
Concan. On the way there, Orlando became convinced that Guerrero—his own brother—
was going to kill him. His fears were not unfounded. When they arrived at the ranch,
Guerrero pointed a gun at Orlando’s back and shot. It apparently misfired, and that is
when Pos Pos, who had arrived separately and had already suspected that he might be
executed, started to run. The group chased him down and killed him.
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                                       No. 13-50376
supplying the Mexican Mafia with cocaine. In this new lieutenant role, he
formally called a meeting on July 13, 2008, in Sabinal to discuss a problem:
several drug dealers, including a man named Buck, were not paying the
dime. Guerrero ordered a hit on Buck, and if the Mexican Mafia could not
kill Buck, he told them, “fuck it, kill his brother Damian” Garza instead. He
also ordered the murder of Valentin Mendoza, because he was not paying the
dime, and Mexican Mafia member Jesse Carlos, because he was acting up
and stealing. Five days later, Damian Garza was shot and killed by two
Mexican Mafia members in front of his teenage daughter. The other hits
Guerrero had ordered were thwarted.                The plan to murder Mendoza was
called off after one of the Mexican Mafia members assigned that task decided
not to go through with it and alerted his probation officer to the plan.
       On July 14, 2009, a federal grand jury indicted Guerrero and eleven
others for various crimes related to the Mexican Mafia. All but two of those
indicted—Guerrero and Victor “Youngster” Esquivel—pleaded guilty before
trial. Guerrero and Esquivel were tried together. 4
       The five counts alleged against Guerrero were:
           • Count One: Conspiracy to Conduct the Affairs of an Enterprise
             through a Pattern of Racketeering that included:
                o Murder of Christopher Mendez;
                o Murder of Jose Damian Garza;
                o Solicitation of Murder of Jesse Carlos;
                o Solicitation of Murder of Valentin Mendoza;
                o Conspiracy to Interfere with Commerce by Extortion; and
                o Conspiracy to Distribute Narcotics
           • Count Two: Murder of Christopher Mendez in Aid of
             Racketeering


       4 Esquivel was also convicted. He appealed on the narrow issue whether evidence
from an interview he gave to police should have been suppressed. A different panel of this
court affirmed the district court, concluding that the officers had a valid reason to initiate a
Terry stop and that the resulting interview was not an unlawful custodial interrogation.
United States v. Esquivel, -- F. App’x --, 2014 WL 3362144, at *1–2 (5th Cir. July 10, 2014).
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                                 No. 13-50376
        • Count Three: Conspiracy to Murder Christopher Mendez in Aid of
          Racketeering
        • Count Five: Murder of Jose Damian Garza in Aid of Racketeering
        • Count Six: Conspiracy to Murder Jose Damian Garza in Aid of
          Racketeering

Counts Two and Five were capital charges, but the government declined to
pursue the death penalty.
     At trial, thirty-three witnesses testified against Guerrero, including
William Davalos, Guerrero’s brother Orlando, and five other Mexican Mafia
members.    Four witnesses the government designated as experts also
testified. One, Robert Almonte, told the jury about a religious figure, known
as the Santa Muerte, whom many drug traffickers along the United States-
Mexico border keep close by because they believe she offers spiritual
protection. Guerrero kept medallions and necklaces with an image of Santa
Muerte at his home.         Another expert, Victor Nguyen, interpreted the
historical cell site information that indicated where Guerrero was when he
placed calls on the afternoon that Chris Mendez was murdered. The jury
found Guerrero guilty on all counts. He made two motions for new trial, both
of which were denied.
     While awaiting sentencing in the racketeering case, Guerrero was
housed in the Val Verde County Correctional Facility in Del Rio. On October
25, 2011, he and inmate Jorge Abel Ramirez, also a Mexican Mafia member,
assaulted a corrections officer named Daniel Dominguez. Guerrero chased
down Dominguez and then kicked, grabbed, and kneed him. Ramirez joined
in, striking Dominguez repeatedly on the head.            Dominguez suffered a
laceration on his forehead and abrasions on his face, nose, and back. The
impetus behind the assault was that several days earlier, Dominguez had
unplugged a television set that Guerrero and Ramirez were watching. He
had taken away their television privileges because they would not return the
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                                No. 13-50376
remote control as he had requested. Guerrero and Ramirez told Dominguez
that it was disrespectful to warn them that they were not in charge.
      On April 10, 2013, the district court sentenced Guerrero to life on all
five counts in the racketeering case. The life sentences on Counts Two and
Three (conspiracy to murder and murder of Chris Mendez) run concurrently,
as do the life sentences on Counts Five and Six (conspiracy to murder and
murder of Damian Garza).         The life sentences on Count One (RICO
conspiracy charge), Counts Two and Three, and Counts Five and Six run
consecutively.   Guerrero thus essentially received three consecutive life
sentences.
      The district court also handed down a sentence for the assault.         It
determined that Guerrero was not entitled to a reduction for acceptance of
responsibility, even though he pleaded guilty, based on the following
statement he made to probation about the assault:
      I feel very bad about what happened. But you know, we’re men,
      and when you disrespect another man, you have to understand
      there are consequences. I feel bad about the whole situation and
      how it happened. It happened in the heat of the moment, and I
      wish cooler heads could have prevailed. I understand it was
      wrong and there are consequences.

      The court also found that Guerrero was a career offender under the
Sentencing Guidelines because he had “at least two prior felony convictions of
either a crime of violence or a controlled substance offense.”         U.S.S.G.
§ 4B1.1(a). Those prior felony convictions were: (1) the racketeering offenses
(counted together as one conviction); and (2) possession of cocaine with intent
to distribute (a separate federal conviction from 2009).        The resulting
guideline range was 210 to 240 months, and the court imposed a 210-month
sentence. These timely appeals followed.



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                                        No. 13-50376
                               II.     Racketeering Case
                         A. Historical Cell Site Location Data
       Although Guerrero raises a number of issues concerning his
racketeering case, we begin with the one that was the focus of his counsel at
oral argument.          Guerrero asserts that the district court should have
suppressed the historical cell site location data that roughly indicated where
he was, or at least where his cell phone was, on the afternoon that Mendez
was killed. 5 That data revealing “the antenna tower and sector to which the
cell phone sends its signal” was only available from third party
communications providers. See In re Application of the U.S. for Historical
Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013). Congress has mandated a
specific procedure that the government must follow to obtain that data. The
Stored Communications Act requires that when the government seeks such
records from a service provider, it must obtain a court order after submitting
an application identifying “specific and articulable facts showing that there
are reasonable grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are relevant and
material to an ongoing criminal investigation.”                       18 U.S.C. § 2703(d).
Guerrero contends, and the government concedes, that this procedure was
not followed; the government obtained the data from state officials who
themselves had used a subpoena, not a Section 2703(d) order, to receive the
information. The violation of the Act is clear.
       Guerrero’s problem is that suppression is not a remedy for a violation of
the Stored Communications Act.               The Act has a narrow list of remedies,



       5 Guerrero filed a written motion to suppress on which he contends the district court
never ruled. But he acknowledges that when the cell tower evidence was offered into
evidence, he did not reurge his suppression motion. Based on our review of the record, it is
clear that the district court denied the motion, even if it did not do so in a full written order.
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                                   No. 13-50376
and—unlike the Wiretap Act, see 18 U.S.C. § 2515—suppression is not among
them. See 18 U.S.C. § 2707(b) (listing “appropriate relief” as “equitable or
declaratory relief,” “damages,” and “reasonable attorney’s fee and other
litigation costs reasonably incurred”); 18 U.S.C. § 2708 (providing that the
“remedies and sanctions described in this chapter are the only judicial
remedies and sanctions for nonconstitutional violations of this chapter”); see
also United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (concluding
that suppression is not available under the Act); United States v. Jones, 908
F. Supp. 2d 203, 209 (D.D.C. 2012) (same). There is no basis for judicial
imposition of the exclusionary rule for a statutory violation when Congress
has not provided that remedy. 6 See United States v. Clenney, 631 F.3d 658,
667 (4th Cir. 2011) (“[T]here is no exclusionary rule generally applicable to
statutory violations.” (quoting United States v. Abdi, 463 F.3d 547, 556 (6th
Cir. 2006))); cf. Davis v. United States, 131 S. Ct. 2419, 2426 (2011)
(explaining that the exclusionary rule “is a ‘prudential’ doctrine created by
this Court to ‘compel respect for the constitutional guaranty,’” and is aimed
at “deter[ring] future Fourth Amendment violations”).
      For Guerrero to suppress the cell site location data, he therefore must
show that the cell site location data was obtained not just in violation of the
Act, but also in violation of the Fourth Amendment.             That constitutional
question requires a separate inquiry, and it is one we recently addressed. In
Historical Cell Site, we held that “Section 2703(d) orders to obtain historical
cell site information for specified cell phones at the points at which the user
places and terminates a call are not categorically unconstitutional.” 724 F.3d
at 615. We emphasized that cell phone users voluntarily convey information
to their service providers and reasoned that they “understand that their

      6Indeed, Guerrero conceded at oral argument that suppression is not an available
remedy under the Act.
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                                 No. 13-50376
service providers record their location information when they use their
phones at least to the same extent that the landline users in Smith [v.
Maryland, 442 U.S. 735 (1979)] understood that the phone company recorded
the numbers they dialed.” Id. at 613. Although our holding in Historical Cell
Site was decided only in the context of reviewing the denial of applications for
Section 2703(d) orders, it nonetheless encompasses the exact issue before us
now: whether historical cell site information—that is, a record that the
“provider has already created”—is subject to a reasonable expectation of
privacy that implicates the Fourth Amendment. Id. at 612; see id. at 615.
      Rather than attempting to distinguish Historical Cell Site (an effort
that would be unavailing for the reasons discussed above), Guerrero argues
that the even more recent Supreme Court decision in Riley v. California, 134
S. Ct. 2473 (2014), is an intervening change in the law that requires us to
depart from our prior holding. But “for a Supreme Court decision to change
our Circuit’s law, it ‘must be more than merely illuminating with respect to
the case before [the court]’ and must ‘unequivocally’ overrule prior
precedent.” Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp.,
673 F.3d 399, 405 (5th Cir. 2012) (quoting Martin v. Medtronic, Inc., 254 F.3d
573, 577 (5th Cir. 2001)).
      Riley does not unequivocally overrule Historical Cell Site. In Riley, the
question was whether the search-incident-to-arrest doctrine allows the
government to search an arrestee’s cell phone without a warrant. Based on
modern cell phones’ immense storage capacity, and because they can reveal
the “sum of an individual’s private life,” the Court answered no. Riley, 134 S.
Ct. at 2489, 2495.
      Although the issues in Riley and in Historical Cell Site implicate a
broader theme concerning the application of the Fourth Amendment to
modern technology, they involve distinct doctrinal areas. Cf. id. at 2489 n.1
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                                   No. 13-50376
(“Because the United States and California agree that these cases involve
searches incident to arrest, these cases do not implicate the question whether
the collection or inspection of aggregated digital information amounts to a
search under other circumstances.”). The Riley defendant indisputably had
an expectation of privacy in the contents of his personal cell phone; the issue
was whether the search-incident-to-arrest exception overcame that privacy
interest for the contents of an arrestee’s cell phone like it did for the contents
of an arrestee’s cigarette pack. See United States v. Robinson, 414 U.S. 218,
236 (1973) (“Having in the course of a lawful search come upon the crumpled
package of cigarettes, [the officer] was entitled to inspect it . . . .”); Riley, 134
S. Ct. at 2484–85 (declining to extend Robinson “to searches of data on cell
phones” because a “search of the information on a cell phone bears little
resemblance to the type of brief physical search considered in Robinson”).
Historical Cell Site involves the different question of whether a cell phone
owner has a reasonable expectation of privacy in information held by a “third
party” service provider. The Supreme Court recognized in Riley that these
are different issues when it distinguished the seminal “third party” doctrine
decision in Smith:
      The Government relies on Smith v. Maryland, 442 U.S. 735
      (1979), which held that no warrant was required to use a pen
      register at telephone company premises to identify numbers
      dialed by a particular caller. The Court in that case, however,
      concluded that the use of a pen register was not a “search” at all
      under the Fourth Amendment. There is no dispute here that the
      officers engaged in a search of Wurie’s cell phone. Moreover, call
      logs typically contain more than just phone numbers; they
      include any identifying information that an individual might add,
      such as the label “my house” in Wurie’s case.




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                                      No. 13-50376
Id. at 2492–93 (internal citations omitted). 7
       This is not to say that the Supreme Court may not reconsider the third
party doctrine in the context of historical cell site data or some other new
technology. Since Historical Cell Site was decided, the Eleventh Circuit has
ruled the other way, although in a decision vacated pending en banc review.
United States v. Davis, 754 F.3d 1205, 1217 (11th Cir. 2014), rehearing en
Banc granted, vacated and rehearing en banc granted, -- F. App’x --, 2014 WL
4358411 (11th Cir. Sept. 4, 2014) (distinguishing Smith and Historical Cell
Site and holding that “cell site location information is within the subscriber’s
reasonable expectation of privacy”); see also In re Application of the U.S. for
an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to
the Gov’t, 620 F.3d 304, 317 (3d Cir. 2010) (distinguishing Smith on the
ground that a “cell phone customer has not ‘voluntarily’ shared his location
information with a cellular provider in any meaningful way”). It may be that
the “technology is different” rationale that led the Riley Court to treat an
arrestee’s cell phone differently from his wallet will one day lead the Court to
treat historical cell site data in the possession of a cellphone provider
differently from a pen register in the possession of a pay phone operator. See
Riley, 134 S. Ct. at 2488 (“The United States asserts that a search of all data
stored on a cell phone is ‘materially indistinguishable’ from searches of these
sorts of physical items. That is like saying a ride on horseback is materially

       7 The Court also raised the practical issue of cloud computing, or “the capacity of
Internet-connected devices to display data stored on remote servers rather than on the
device itself.” Id. at 2491. The Court feared that allowing the government to look through
a cell phone that contains information stored on the cloud would mean authorizing searches
extending “well beyond the papers and effects in the physical proximity of an arrestee.” Id.
That broad of a search, the Court reasoned, “would be like finding a key in a suspect’s
pocket and arguing that it allowed law enforcement to unlock and search a house.” Id. The
Court’s concerns were thus cabined to the unique circumstances of the search-incident-to-
arrest doctrine, and did not overrule the separate line of cases, including Smith, dealing
with information already in the possession of an identifiable third party.

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                                   No. 13-50376
indistinguishable from a flight to the moon.” (citation omitted)). Indeed, at
least one Justice has expressed skepticism that Smith should apply to
modern technologies, United States v. Jones, 132 S. Ct. 945, 957 (2012)
(Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise
that an individual has no reasonable expectation of privacy in information
voluntarily disclosed to third parties.”), and Riley recognized those concerns,
see 134 S. Ct. at 2490 (“Historic location information is a standard feature on
many smart phones and can reconstruct someone’s specific movements down
to the minute, not only around town but also within a particular building.”
(citing Justice Sotomayor’s concurrence in Jones)). And commentators have
debated the effect Riley may have if a “third party” case involving modern
technology were to end up at the Court. Compare, e.g., Daniel Solove, The
U.S. Supreme Court’s 4th Amendment and Cell Phone Case and Its
Implications for the Third Party Doctrine, CONCURRING OPINIONS (June 25,
2014) (“Although the case involves searches incident to arrest and not other
areas of the Fourth Amendment, the Court recognizes some key points about
privacy and technology that might harbinger a change in some other
Supreme Court doctrines [such as the third party doctrine].” (emphasis
added)), with Barry Friedman, How the Supreme Court Changed America
This Year, POLITICO MAGAZINE, at 3 (July 1, 2014) (“First, the Riley majority
didn’t touch the issue that’s really on everyone’s digital mind, the ‘third
party’ doctrine. . . . That’s where the real digital action is, but a footnote in
Riley said the court was not going near the question. Those who believe the
justices will leap from Riley to overturning the third party doctrine are
dreaming.”). 8


      8   These articles are available at http://www.concurringopinions.com/ and
http://www.politico.com/magazine/story/2014/07/how-the-supreme-court-changed-america-
this-year-108497.html.
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                                    No. 13-50376
       The mere existence of that spirited academic debate, however, resolves
our limited inquiry.         In determining the effect of Supreme Court
developments on our precedents, we do not read tea leaves to predict possible
future Supreme Court rulings, but only decide whether an issued Supreme
Court decision has “unequivocally” overruled our precedent. As discussed
above and confirmed by the academic commentary, Riley did not overrule our
decision in Historical Cell Site, or the Court’s earlier Smith decision on which
Historical Cell Site was based. See also Ford v. State, --- S.W. 3d ----, 2014
WL 4099731, at *15 (Tex. App.—San Antonio Aug. 20, 2014) (concluding that
Riley “does not concern the third party doctrine espoused” in Smith and is
“otherwise inapplicable to the present situation involving a court order to
obtain . . . business records of [defendant’s] use of its cell tower network”).
The district court thus properly admitted the historical cell site location data
at trial. 9
                                   B. Jurisdiction
       Guerrero’s next argument is also at odds with our precedent, and there
is no intervening Supreme Court case that might even arguably call it into
doubt.        Guerrero contends that the district court lacked subject matter
jurisdiction over Count One, the racketeering conspiracy charge, because the
Juvenile Justice and Delinquency Prevention Act limits the government’s
power to try a juvenile—“a person who has not attained his eighteenth
birthday”—in federal court. 18 U.S.C. § 5031. The Act’s protections apply to
defendants who have committed an offense prior to their eighteenth birthday
unless they are over twenty-one when the indictment is returned.                   Id.



       9 Guerrero makes one additional suppression argument: that statements he made to
police officers regarding his possession of a cell phone on the day Mendez was murdered
should have been suppressed. That argument is waived because he raises it for the first
time on appeal. See United States v. Pope, 467 F.3d 912, 918 (5th Cir. 2006).
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                                 No. 13-50376
Defendants below these age thresholds can only be tried in federal court if
certain procedural preconditions are met; most prominently, the Attorney
General must certify that a substantial federal interest exists in the case. 18
U.S.C. § 5032. The government concedes that it did not obtain certification in
this case.
      At first glance, Guerrero might appear to be a “juvenile” under the Act:
he was sixteen when his involvement in the Mexican Mafia conspiracy began,
and only twenty when the indictment was returned. But in United States v.
Tolliver, we confronted, and rejected, the argument Guerrero makes now:
that a defendant cannot be tried on a conspiracy charge in federal court if he
entered into a conspiracy before he turned eighteen. 61 F.3d 1189, 1200 (5th
Cir. 1995), judgment vacated on other grounds by Moore v. United States, 519
U.S. 802 (1996). Instead, we adopted the following rule: “after he turns 18, a
defendant may be tried for a conspiracy which temporally overlaps his
eighteenth birthday—if the government can show that the defendant ratified
his involvement in the conspiracy after reaching majority.” Id. Ratification
in this context simply means that a defendant “continu[es] to participate in
an ongoing conspiracy after his 18th birthday.” United States v. Peters, 283
F.3d 300, 309 (5th Cir. 2002). We recently reiterated Tolliver’s rule that post-
eighteen conduct is sufficient to support a jury’s verdict against a defendant
charged with conspiracy. See United States v. Harris, 740 F.3d 956, 966 (5th
Cir. 2014) (affirming conviction of defendant for conspiracy to possess
firearms in furtherance of a drug-trafficking crime).
      There was sufficient evidence for the jury to conclude that Guerrero
ratified his involvement in the RICO conspiracy after he turned eighteen.
See Tolliver, 61 F.3d at 1200. Indeed, four of the six alleged RICO predicate
offenses—the murders of Christopher Mendez and Damian Garza, and the
solicitations of murder of Jesse Carlos and Valentin Mendoza—occurred after
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                                 No. 13-50376
Guerrero turned eighteen. The other two alleged predicate acts, extortion
and narcotics distribution, were both supported with significant evidence of
post-eighteen conduct. For instance, the murders Guerrero ordered at the
July 2008 meeting in Sabinal were tied to the victims’ failure to pay the dime.
Finally, an FBI agent testified that Guerrero attempted to sell him cocaine in
November 2006, when Guerrero was over eighteen.               In light of this
considerable evidence of post-eighteen engagement in the RICO conspiracy,
the district court had jurisdiction to try Guerrero on that charge.
                        C. Sufficiency of the Evidence
      The next issue Guerrero raises is whether the jury could reasonably
have found him guilty of Count Two, the murder of Chris Mendez in aid of
racketeering. Guerrero notes that his DNA was not found at the murder
scene and also argues that the cell site location data bolsters his case by
placing him 45 miles away from the murder scene around the time Mendez
was killed.
      In conducting our de novo review of the sufficiency of the evidence, “we
review all evidence in the light most favorable to the verdict to determine
whether a rational trier of fact could have found that the evidence
established the essential elements of the offense beyond a reasonable doubt.”
Harris, 740 F.3d at 962 (quoting United States v. Shum, 496 F.3d 390, 391
(5th Cir. 2007)).   Viewing the evidence in the light most favorable to the
verdict, the jury could have found the following:
         • Guerrero thought that Mendez was a snitch;
         • Guerrero asked his superior, William Davalos, for permission to
           carry out the murder;
         • Guerrero killed Pos Pos, a Mexican Mafia member,
           approximately a week before Mendez was killed, and the body
           was found in almost the same place where Mendez’s was;
         • Guerrero was last seen with Mendez on the day of his murder;


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                                No. 13-50376
         • That day, Mendez’s girlfriend noticed that Mendez looked sad
           and Guerrero, uncharacteristically, appeared nervous;
         • Guerrero was with his brother Orlando in San Antonio late in the
           afternoon on the day of the murder, and Orlando saw Guerrero
           throw out clothes that were still wearable;
         • Oso told a Mexican Mafia member that Guerrero was present
           when Oso shot Mendez;
         • Orlando heard an anguished Oso talking on the phone to his
           girlfriend about how hard it was for him to kill one of his best
           friends; and
         • In an effort to bolster his reputation in the group, Guerrero told
           two lower ranking Mexican Mafia members that he killed
           Mendez.

      This evidence is more than sufficient to support the jury’s verdict
despite the lack of incriminating DNA. Furthermore, the disputed cell phone
tracking data could have cut against Guerrero. The evidence showed that
Guerrero’s phone was receiving service from a cell tower within 12.8 miles of
the murder location from 2:17 to 4:14 p.m.       Evidence indicated that the
murder occurred around or prior to 4:15. The jury could reasonably have
concluded that Guerrero was near the murder site around 4:15 and then left
the area to stay with his brother in San Antonio. Based on the totality of this
evidence, “a reasonable trier of fact could have found the evidence proved the
[crime] beyond a reasonable doubt.” Harris, 740 F.3d at 963.
                           D. Discovery Concerns
      Next, Guerrero argues that the government failed to disclose
impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
and Giglio v. United States, 405 U.S. 150 (1972). First, he contends that the
government failed to disclose two matters regarding witness Davalos,
Guerrero’s superior in the Mexican Mafia: (1) that Davalos admitted to




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                                    No. 13-50376
committing three murders 10; and (2) that Davalos had an agreement with the
state district attorney to testify against Guerrero in exchange for immunity.
Guerrero also asserts that the government should have disclosed evidence
that his brother Orlando was involved in a prison riot. After reviewing these
claims de novo but affording deference to the district court’s factual findings,
see United States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011), we conclude
that no Giglio violations occurred.            The district court found that the
government did disclose relevant information about Davalos, which is
consistent with the codefendant’s cross examination of Davalos which elicited
this information. And the district court rejected Guerrero’s concerns about
Orlando’s involvement in the prison riot because Guerrero was likely the one
who instructed Orlando to instigate it. The court therefore determined that
the prison riot evidence was inculpatory, rather than exculpatory. See United
States v. Nixon, 881 F.2d 1305, 1308 (5th Cir. 1989) (holding that “neutral or
inculpatory evidence lies outside” Brady coverage).            We see no ground to
disturb the district court’s thorough findings on these issues.
      For the first time on appeal, Guerrero seeks production under the
Jencks Act of certain witness statements that he alleges were not disclosed to
him. The Jencks Act, 18 U.S.C. § 3500, “requires the government to release
to the defendant, after a witness’s direct examination, any statement of the
witness in the government’s possession which relates to the subject matter of
the witness’s testimony.” United States v. Merida, 765 F.2d 1205, 1215 (5th
Cir. 1985).    Guerrero identifies three categories of statements that he
contends the government should have disclosed: (1) recorded jail calls made


      10 There is some confusion over the three murders to which Guerrero is referring.
The government did disclose that Davalos had murdered a man nicknamed Smiley, and had
agreed to murder Pos Pos and Chris Mendez. The district court found that the government
did not know of any additional murders beyond those listed above, and that finding is
supported by the evidence.
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                                No. 13-50376
by Orlando; (2) statements by Eli Valdez to a probation officer and a
Department of Public Safety Officer; and (3) statements made by William
Davalos. There is a preliminary question of whether any of these statements,
especially ones made to a probation officer or that rest in the hands of the
Bureau of Prisons, qualify as “statements” in the possession of the
prosecution team under the Jencks Act. See United States v. Brown, 303 F.3d
582, 591–92 (5th Cir. 2002) (“A ‘statement’ includes a ‘written statement
made by said witness and signed or otherwise adopted or approved by him.’”
(quoting 18 U.S.C. § 3500(e)(1))); United States v. Trevino, 556 F.2d 1265,
1271 (5th Cir. 1977) (concluding that a statement in the sole possession of the
probation officer was not in the possession of the prosecution). But we need
not address those concerns. Guerrero failed to seek production of these items
during trial. That failure deprived the district court of an opportunity to
“take whatever steps were necessary to determine if [statements were] in the
government’s possession” and means there is no record for us to review.
United States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985); see also United
States v. Hodgkiss, 116 F.3d 116, 119 (5th Cir. 1997) (“A defendant who fails
to alert the trial judge that he believes the government has failed to produce
a statement covered by the Jencks Act waives his rights to such production.”),
vacated and remanded on other grounds, 522 U.S. 1012 (1997); see generally
United States v. Knapp, 25 F.3d 451, 461 (7th Cir. 1994) (citing cases holding
that Jencks Act claims are waived when not properly preserved at trial). For
example, when Valdez testified that he spoke to probation, Guerrero’s counsel
never requested any such statements from the government.           The district
court therefore had no opportunity to determine whether any written
statements to probation existed and whether they were in the possession of




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                                      No. 13-50376
the prosecution team. For these reasons, Guerrero has waived the Jencks
Act issue. 11
                              E. Remaining Trial Issues
       Guerrero raises several issues relating to the introduction of evidence
at trial. First, he contends that the government constructively amended the
Indictment by introducing evidence of the Pos Pos murder and acts of
extortion and drug trafficking that Guerrero committed when he was
seventeen.      Constructive amendment occurs when a defendant could be
“convicted upon a factual basis that effectively modifies an essential element
of the offense charged or permits the government to convict the defendant on
a materially different theory or set of facts than that with which []he was
charged.” United States v. McMillan, 600 F.3d 434, 451 (5th Cir. 2010); see,
e.g., Stirone v. United States, 361 U.S. 212, 217–18 (1960) (holding in a
seminal constructive amendment case that “when only one particular kind of
commerce is charged to have been burdened a conviction must rest on that
charge and not another”); United States v. Young, 730 F.2d 221, 224 (5th Cir.
1984) (citing United States v. Salinas, 654 F.2d 319 (5th Cir. 1981), as an
example of constructive amendment, in which the indictment stated that the
defendant aided one officer in misapplying bank funds, when the evidence
showed that a different officer had approved the improper loan at issue).
That did not occur here. The jury charge was very clear; it set out in specific
terms what crimes and predicate acts Guerrero was charged with
committing.


       11Guerrero also raised alleged violations of Federal Rule of Criminal Procedure 16,
which requires the government to disclose evidence during discovery, for the first time on
appeal in his Reply Brief. In addition to being forfeited, these arguments are unavailing for
two reasons: (1) Rule 16(a)(1)(C), on which Guerrero relies, only pertains to organizational
defendants; and (2) Guerrero provides no evidence that he made a request for evidence
under Rule 16 that the government did not follow.

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                                     No. 13-50376
      Guerrero’s argument is more properly classified as an evidentiary
objection under Rule 404(b) that the evidence was used to show his bad
character. But our precedent is clear that the “government is not limited in
its proof of a conspiracy or racketeering enterprise to the overt or
racketeering acts alleged in the indictment.” United States v. Krout, 66 F.3d
1420, 1425 (5th Cir. 1995).     Moreover, evidence “of an uncharged offense
arising out of the same transactions as the offense charged in the indictment
is not extrinsic evidence within the meaning of Rule 404(b).” Id. (quoting
United States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991)). Admission of
the challenged evidence thus was not improper nor resulted in a constructive
amendment of the charges.
      Guerrero also objects to the district court’s admissions of Robert
Almonte and Victor Nguyen as expert witnesses. The district court issued a
cogent, detailed opinion explaining why it qualified Almonte and Nguyen as
experts, and those decisions survive abuse of discretion review. See United
States v. Norris, 217 F.3d 262, 268 (5th Cir. 2000) (stating that Daubert
decisions are subject to abuse of discretion review and are not disturbed
unless “manifestly erroneous”).
                              III.     Assault Case
      That brings us to Guerrero’s second case, in which he pleaded guilty to
assaulting a correctional officer while detained pending sentencing in the
racketeering case. Guerrero claims two errors in the district court’s handling
of the sentence in the assault case: first, that he should have received a two-
point reduction in the guideline range for acceptance of responsibility; and
second, that he should not have been classified as a career offender.
      A district court’s factual determination that a defendant has not
accepted responsibility is subject to “great deference.” United States v. Vital,
68 F.3d 114, 121 (5th Cir. 1995).        Indeed, the “sentencing judge’s factual
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                                    No. 13-50376
determinations on acceptance of responsibility are entitled to even greater
deference than that accorded under a clearly erroneous standard.” United
States v. Maseratti, 1 F.3d 330, 341 (5th Cir. 1993). In the statement he
offered to demonstrate acceptance, Guerrero told probation that he felt the
corrections officer disrespected him, and that men have to understand the
consequences of disrespecting another man.              Given that statement, the
district court was well within its discretion to find that Guerrero did not
accept responsibility. Cf. United States v. Brigman, 953 F.2d 906, 909 (5th
Cir. 1992) (per curiam) (“Grudgingly cooperating with authorities or merely
going through the motions of contrition does not oblige a district court to
grant an unrepentant criminal the two-step reduction.”); see also, e.g., United
States v. Silva, 1993 WL 481588, at *2 (5th Cir. Nov. 3, 1993) (unpub.)
(affirming   district   court’s   conclusion     that   the    defendant    “had    not
demonstrated an acceptance of responsibility because ‘he attempt[ed] to lay
all or some of the blame on the shoulders of his other unnamed drug dealers
who were allegedly threatening him’” (alteration in original)). 12
      Guerrero’s guideline range was significantly increased because the
district court classified him as a career offender—a defendant who has “at
least two prior felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). As that guideline explains,
      The term “two prior felony convictions” means (1) the defendant
      committed the instant offense of conviction subsequent to
      sustaining at least two felony convictions of either a crime of
      violence or a controlled substance offense (i.e., two felony
      convictions of a crime of violence, two felony convictions of a
      controlled substance offense, or one felony conviction of a crime of
      violence and one felony conviction of a controlled substance
      offense), and (2) the sentences for at least two of the


      12  Our unpublished opinions issued prior to January 1, 1996 are precedential. See
5th Circ. Rule 47.5.
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                                    No. 13-50376
      aforementioned felony convictions are counted separately under
      the provisions of § 4A1.1(a), (b), or (c).

U.S.S.G. § 4B1.2(c). “[P]rior sentences are counted separately unless (A) the
sentences resulted from offenses contained in the same charging instrument;
or (B) the sentences were imposed on the same day.” U.S.S.G. § 4A1.2(a)(2);
see U.S.S.G. § 4B1.2 n.3 (“The provisions of § 4A1.2 (Definitions and
Instructions for Computing Criminal History) are applicable to the counting
of convictions under § 4B1.1.”). The government concedes that Guerrero’s
convictions in the racketeering case must be counted together because the
“sentences     resulted    from   offenses    contained   in   the   same   charging
instrument.”     But that is not Guerrero’s only conviction; he was also
convicted of possessing cocaine with intent to distribute in 2009, and
sentenced for that offense in September 2012. The issue is whether those
convictions—one for the racketeering case cumulatively, and one for the
cocaine possession—are “two prior felony convictions” even though Guerrero
had not been sentenced for either one when he assaulted the correctional
officer in 2011.    Guerrero argues that the language in section 4B1.2(c),
referring to sentences, rather than convictions, indicates that they do not
count for career criminal enhancement purposes.
     Guerrero’s argument lacks support in the structure and text of the
amended guidelines and the way our sister circuits have interpreted them.
First, the career offender guideline itself provides that the “date that a
defendant sustained a conviction shall be the date that the guilt of the
defendant has been established, whether by guilty plea, trial, or plea of nolo
contendere.”    U.S.S.G. § 4B1.2(c).     Moreover, the general criminal history
guidelines are clear that when “a defendant has been convicted of an offense,
but not yet sentenced, such conviction shall be counted as if it constituted a
prior sentence under § 4A1.1(c) if a sentence resulting from that conviction
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                                 No. 13-50376
otherwise would be countable.” U.S.S.G. § 4A1.2(a)(4). Three of our sister
courts in published opinions, and one in an unpublished opinion, have
analyzed this guideline language and held that prior convictions for which a
defendant has not yet been sentenced still count as “convictions” in
determining career offender status. See United States v. French, 312 F.3d
1286, 1287 (9th Cir. 2002) (per curiam) (“By its plain language, § 4B1.2(c)
requires that a conviction be considered a qualifying predicate offense
effective from the date that a guilty plea is entered, regardless of whether a
sentence has been imposed.”); United States v. Gonzales, 220 F.3d 922, 926
(8th Cir. 2000) (“We believe, therefore, that an unsentenced guilty plea is a
‘prior conviction’ for purposes of § 4B1.1.”); United States v. Pierce, 60 F.3d
886, 892 (1st Cir. 1995) (holding that nolo contendere plea and subsequent
withheld adjudication was “conviction” because “[a]lthough there is surface
appeal to the argument that there can be no ‘conviction’ unless and until a
final adjudicatory judgment is entered, the sentencing guidelines clearly
construe the term differently”); see also United States v. Riley, 1998 WL
669935, at *1 (6th Cir. Sept. 17, 1998) (“The date that a defendant sustained
a prior felony conviction shall be the date that the guilt of the defendant was
established, whether by guilty plea, trial, or a nolo contendere plea.”). What
matters for career criminal enhancement purposes is thus the conviction, and
not the sentence that follows.      Accordingly, the district court correctly
classified Guerrero as a career criminal and there is no error in the sentence.
                              IV.   Conclusion
      Trials like Guerrero’s racketeering case test the mission of the federal
courts to provide a fair forum for adjudicating criminal charges. In this case,
the district court handled that challenge in an exemplary manner. It devoted
significant attention to the issues, often issuing detailed explanations for its
decisions.   The district court’s dutiful and impartial application of the
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                                No. 13-50376
relevant law allowed the jury to reach a considered, untainted result.
Guerrero presents no ground to disturb the result of the trial or the sentence
in his assault case. We therefore AFFIRM the district court in both cases.




                                     26
