     Case: 09-10815 Document: 00511438515 Page: 1 Date Filed: 04/07/2011




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

                                                 FILED
                                                                             April 7, 2011

                                       No. 09-10815                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

BLANCA MARIBEL VIRGEN

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CR-3-1


Before GARWOOD, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
       A jury convicted Defendant-Appellant Blanca Maribel Virgen of one count
of conspiracy to distribute fifty grams or more of methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and one count of maintaining a drug-
involved premise at her home, in violation of 21 U.S.C. § 856(a)(2). Virgen
appealed her conviction and sentence on several grounds. For the reasons
discussed within, we AFFIRM the judgment of the district court in all respects.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10815

                                              I
       In 2008, a grand jury indicted Virgen, her husband, Jaime “Jimmy”
Vazquez, and several other co-defendants with conspiracy to distribute fifty
grams or more of methamphetamine.1 After an initial jury trial resulted in a
mistrial, the government sought, and received, a superseding indictment, which
added the charges of maintaining a drug-involved premise at Virgen’s home, as
well as at an auto shop run by Virgen and Vazquez. In 2009, the second case
was tried before a jury, which convicted Virgen on the conspiracy count and the
maintaining a drug-involved premise at her home. The jury acquitted Virgen on
the charge of maintaining a drug-involved premise at the auto shop.                        At
sentencing, the district court downwardly departed from the imprisonment
range recommended by the United States Sentencing Guidelines (“Sentencing
Guidelines”), sentencing Virgen to a total of 360 months of imprisonment and a
five-year term of supervised release.
       Virgen appealed her conviction and sentence contending that the district
court erred by limiting the testimony of a witness, by denying her motion for
judgment of acquittal, and by issuing a sentence that was substantively
unreasonable. In addition, Virgen argued that we should reverse her conviction
because a substantial and significant portion of the trial had not been
transcribed. The record from Virgen’s second trial contained a written copy of
the jury charge, but the trial transcript did not include the district court’s
reading of the charge. Virgen argued that she could not perfect her appeal
because of this omission. We remanded the case to the district court for the
limited purpose of a hearing to determine whether the court reporter could
certify that the charge was read to the jury as written. United States v. Virgen,


       1
         Both parties’ briefs refer to Vazquez as Virgen’s husband. At trial, however, defense
counsel established that Vazquez and Virgen were not married. To eliminate confusion, we will
refer to Vazquez as Virgen’s husband because that is how the parties reference him.

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386 F. App’x 500, 501 (5th Cir. 2010). The trial court held a hearing in which
the court reporter testified and certified that the charge was read to the jury as
written. After these proceedings, we requested supplemental briefing on the
issue of the trial transcript omissions. The parties submitted briefs and Virgen
continued to assert that reversal is required due to the transcript omission.
                                        II
      Virgen argues that a substantial and significant portion of the record is
missing, which requires our reversal of her conviction. The Court Reporter Act
requires a verbatim transcript of all proceedings in open court in a criminal case.
28 U.S.C. § 753(b); United States v. Taylor, 607 F.2d 153, 154 (5th Cir. 1979).
“‘As we stated on many occasions, the rule ‘is mandatory . . . and is not to be
overridden by local practice.’” Taylor, 607 F.2d at 154 (quoting United States v.
Brumley, 560 F.2d 1268, 1280 (5th Cir. 1977)). We have not, however, “adopt[ed]
a per se rule requiring reversal for any and all omissions.” Taylor, 607 F.2d at
154. “Instead, we apply one of two standards, depending on whether or not the
defendant is represented on appeal by the same attorney that represented him
at trial.” Id. (citing United States v. Selva, 559 F.2d 1303, 1305–06 (5th Cir.
1977)). For appeals in which a defendant’s counsel differs for trial and appeal,
we will reverse a conviction only if the defendant shows that the omission is
truly substantial and significant. Taylor, 607 F.2d at 154. Our reversal of the
trial court is inappropriate when the omission is merely technical or when we
can determine “from the balance of the record whether an error has been made
during the untranscribed portion of the proceedings.” Selva, 559 F.2d at 1306
& n.5. And, in cases where a court reporter fails to transcribe a jury charge, we
have held that a written charge included in the record “that is certified by the
court reporter as a verbatim account of the judge’s oral charge satisfies the
requirements of the Act.”     Taylor, 607 F.2d at 155.      On appeal, Virgen is
represented by a different attorney than the one who represented her at trial.

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Thus, to warrant reversal, the transcript omission must be truly substantial and
significant. Id. at 154.
      Despite the court reporter’s certification that the jury charge was read to
the jury as written, Virgen argues that the omission is material because her
former counsel has “indicate[d]” to her appellate attorney that “there were errors
in the reading” of the jury charge. This unsubstantiated allegation does not
demonstrate that the missing portion of the transcript is substantial and
significant. More importantly, the written jury charge, which was included in
the record, was certified by the court reporter to be a verbatim account of the
district court’s oral charge. Under our precedent in Taylor, this means that the
transcript omission is merely technical, does not violate the Court Reporter Act,
and does not warrant reversal. Id. at 155; Selva, 559 F.2d at 1305 n.5.
      In her supplemental brief, Virgen argues that in addition to the jury
charge, additional portions of proceedings from the second day of trial were not
transcribed. Virgen made an identical argument in her opening brief, which we
rejected when we remanded the case to the district court. In our prior opinion,
we stated that the “transcript reflects that the entire second day of the trial was
transcribed, including the proceedings related to the juror note, the return of the
verdict, and the polling of the jurors.” Virgen, 386 F. App’x at 501. And, we
specifically noted that “the only omission at issue before this court is the
transcription of the jury charge.” Id. at 501. The record clearly refutes Virgen’s
allegation on this point and we will not reverse her conviction because of a minor
transcript omission.
                                        III
      Virgen’s second issue on appeal relates to the district court’s decision to
exclude testimony related to Vazquez’s drug dealing and sexual relations with
other women. Virgen agues the district court erred by excluding this testimony



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because it demonstrated her lack of knowledge about Vazquez’s drug-dealing
activities.
      We review a defendant’s challenge to the district court’s evidentiary
decisions under an abuse of discretion standard. United States v. Crawley, 533
F.3d 349, 353 (5th Cir. 2008). “A trial court abuses its discretion when its ruling
is based on an erroneous view of the law or a clearly erroneous assessment of the
evidence.” United States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008) (internal
quotation and citation marks omitted). “An abuse of discretion in excluding
evidence, however is subject to a harmless error review.” Id. Rule 403 of the
Federal Rules of Evidence permits the district court to exclude evidence if its
probative value is “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or” if the evidence would mislead the jury and waste
time. F ED. R. E VID. 403. The trial court’s discretion under this rule is broad.
United States v. Edelman, 873 F.2d 791, 795 (5th Cir. 1989). “The trial judge,
having heard the testimony, is in the best position to determine whether such
testimony would be confusing or misleading to the jury.” Id.
      At trial, Virgen sought to question an FBI agent about how Vazquez
delivered methamphetamine to women in motel rooms and consumed the drugs,
or had sex, with them. The trial court curtailed defense counsel’s questioning,
stating that such inquiry confused the issues, wasted time, and had little
probative value. Virgen objected at trial, which preserved the issue for appeal.
Virgen contends that the district court’s exclusion of the evidence prevented her
from demonstrating that she was unaware of her husband’s drug dealing and
infidelity. We disagree. The indictment did not discuss motel-room drug deals
by Vazquez or his sexual encounters with other women.            Thus, testimony
exploring this had no relevance to whether Virgen knew about, or participated
in, the conspiracy. Furthermore, evidence about Vazquez’s hotel-room drug
deals and trysts with women is not probative of any consequential fact because

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the testimony had no tendency to make Virgen’s knowledge about the numerous
sales of methamphetamine at the house or auto shop more or less probable.
Therefore, the district court did not abuse its discretion by excluding this
testimony.
                                         IV
      Virgen contends that the district court erred by denying her motion of
acquittal because the Government offered insufficient evidence of her knowledge
of, and willful participation in, the conspiracy. Virgen also contends that the
evidence was insufficient to prove that she managed or controlled the residence
from which methamphetamine was sold.
      We will affirm the jury’s verdict if “a reasonable trier of fact could find that
the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell,
678 F.2d 547, 549 (5th Cir. 1982) (en banc). On appeal, the evidence and all
reasonable inferences drawn from it are to be viewed in the light most favorable
to the government. Id. “In addition, all credibility determinations are made in
the light most favorable to the verdict.” United States v. Moreno, 185 F.3d 465,
471 (5th Cir. 1999). “The evidence need not exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of guilt,
and the jury is free to choose among reasonable constructions of the evidence. ”
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998) (internal
quotations and citations omitted). If the evidence, however, “gives equal or
nearly equal circumstantial support to a theory of guilt or innocence,” the court
should reverse because “under these circumstances a reasonable jury must
necessarily entertain a reasonable doubt.” United States v. Ramos-Garcia, 184
F.3d 463, 465 (5th Cir. 1999) (citations and internal quotation marks omitted).
      To prove Virgen conspired with another to distribute methamphetamine,
the Government had to show that two or more individuals agreed to commit the
crime of distribution of methamphetamine, that Virgen knew of the unlawful

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agreement and joined in it with the intent to further the unlawful purpose, and
that the conspiracy involved more than fifty grams of a substance containing
methamphetamine. 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. For a jury to
properly convict Virgen on the second count of the indictment, maintaining a
drug premise at her home, the Government had to prove that Virgen managed
or controlled the residence as an occupant, and that she knowingly and
intentionally made the residence available for use for the unlawful purpose of
storing, distributing, or using methamphetamine. 21 U.S.C. § 856.
      Virgen argues that the Government’s evidence was insufficient to prove
that Vazquez’s methamphetamine dealing was “done as a result of some
affirmative action on the part of” Virgen.      At most, Virgen contends, the
Government’s evidence proved she was “dutiful wife” who was unaware of her
husband’s drug dealing. But the record disproves these assertions. Among other
things, testimony from those who worked for the drug conspiracy showed that
Virgen had served as an accountant for the illicit operation and that she was
personally involved in resolving conflicts that arose from the drug business. In
addition, testimony from witnesses demonstrated that Virgen had repeatedly
delivered methamphetamine with Vazquez or to him at the auto shop. After
Virgen and Vazquez were arrested, police discovered drug paraphernalia in the
home the two shared together, including methamphetamine, digital scales, a
money counter, handguns, and six pounds of a cutting agent. In addition,
witnesses testified that Virgen took care of the house for the couple and that
Virgen had counted money from drug payments made in the home and that she
was present in home when Vazquez sold methamphetamine on two occasions.
Contrary to Virgen’s contention, this evidence does not paint a picture of an
innocent wife unaware of her husband’s illegal activities. Rather, the evidence
allows for the reasonable conclusion that Virgen knew the illegal purpose behind
the drug conspiracy, and that she knowingly and willfully agreed to join Vazquez

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and others in the distribution and sale of the methamphetamine. The discovery
of drug paraphernalia in Virgen’s home and the testimony about Virgen’s willing
participation in drug deals that occurred inside her residence allows for “a
reasonable trier of fact [to] find that the evidence establishes guilt beyond a
reasonable doubt.” Bell, 678 F.2d at 549. The district court, therefore, did not
err by denying Virgen’s motion for a judgment of acquittal.
                                        V
      Finally, Virgen argues that her sentence is substantively unreasonable in
light of the totality of the circumstances. Virgen also argues that the district
court erred in its consideration of the factors contained in 18 U.S.C. § 3553(a).
      We review a trial court’s sentencing ruling for an abuse of discretion.
United Sates v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, we
consider whether the district court committed a procedural error, then we review
the substantive reasonableness of the sentence. Id. at 764. Virgen failed to
preserve her argument as to reasonableness of her sentence or the court’s
consideration of the § 3553(a) factors. Therefore, we consider these arguments
for plain error alone. Id. Under this standard, if we hold that the district court
procedurally erred, we will not correct the sentence unless the trial court’s plain
error affects the defendant’s substantial rights. United States v. Duhon, 541
F.3d 391, 396 (5th Cir. 2008).
      At sentencing, Virgen objected to the presentence report’s finding that she
was a leader in the criminal conspiracy, which increased her offense level by four
levels.   The district court overruled the objection and adopted the report’s
findings. The court then concluded that Virgen’s total offense level was forty-
three and her criminal history category was I, which gave her an imprisonment
range of 720 months under the Sentencing Guidelines. Virgen asked the court
to “consider sentence disparity” and noted that the court had sentenced Vazquez
to thirty years in prison. Virgen stated: “I would ask the Court to consider a

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sentence of thirty years or less in this case.” The Court noted Virgen’s concern
and downwardly departed from the imprisonment term recommended by the
Sentencing Guidelines, sentencing Virgen to a term of 360 months imprisonment
(i.e. thirty years).
      Without deciding whether the district court procedurally erred, we hold
that it would be virtually impossible for the district court’s sentence to adversely
affect Virgen’s substantive rights. First, Virgen specifically asked the trial court
to sentence her to “thirty years or less,” and the court complied. Second, the
district court’s sentence constituted a substantial downward departure– by half–
from the imprisonment term recommended by the Sentencing Guidelines.
Virgen’s substantive rights can not be negatively affected by an imprisonment
term that is thirty years less than the imprisonment term permitted by the
Sentencing Guidelines.       Finally, we hold that Virgen’s sentence was
substantively reasonable because the record clearly demonstrates that she
played a critical role as a leader in the methamphetamine conspiracy and
knowingly maintained drug dealing operations from her home.              Thus, the
district court did not abuse its discretion by sentencing Virgen to an
imprisonment term of thirty years.
                                        VI
      Accordingly, we AFFIRM the district court’s judgment.




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