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

                                                                 FILED
                                                              September 16, 2008
                               No. 07-41247
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

RUDY GUTIERREZ, also known as Rudolpho Gutierrez

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 2:06-CR-380-4


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
     A jury found Rudy Gutierrez guilty of one count of conspiracy to possess
with intent to distribute more than 1,000 kilograms of marijuana and one count
of conspiracy to launder money. The court sentenced Gutierrez within the
applicable guidelines ranges to 360 months of imprisonment for his drug
conspiracy conviction and to a concurrent term of 240 months of imprisonment
for his money laundering conspiracy conviction, as well as concurrent terms of



     *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-41247

supervised release of 10 and three years, respectively. The court deviated below
the guidelines range when it imposed a single fine of $3,000 for both counts.
      Gutierrez contends that the evidence presented at trial was insufficient to
convict him on either conspiracy count. “[A]fter viewing the evidence in the light
most favorable to the prosecution,” we conclude that “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt”
and affirm accordingly. Jackson v. Virginia, 443 U.S. 307, 319 (1979). With
respect to the drug conspiracy, the trial evidence showing extensive and
coordinated shipments of illegal drugs through G Trucking proved the existence
of an agreement between two or more persons to violate the narcotics laws.
Testimony that Gutierrez participated in and even owned some of the shipments
established his knowledge of the agreement and his voluntary participation in
the conspiracy. See United States v. Gallardo-Trapero, 185 F.3d 307, 317 (5th
Cir. 1999). Several witnesses described specific shipments of marijuana that,
together, established that the conspiracy as a whole involved more than 1,000
kilograms of marijuana. See 18 U.S.C. §§ 841(b)(1)(A), 846; United States v.
Turner, 319 F.3d 716, 722-23 (5th Cir. 2003).
      With respect to the money laundering conspiracy under 18 U.S.C.
§ 1956(a)(1), (h), evidence and testimony regarding the shipments of cash from
the sale of drugs, the use of the cash to purchase trucking equipment and to
build Gutierrez’s brother’s house, and the laundering of the drug money through
G Trucking’s accounts established that there was an agreement between two or
more persons to commit money laundering. See United States v. Fuchs, 467 F.3d
889, 906 (5th Cir. 2006). The testimony that Gutierrez coordinated shipments
of drugs and money with his brother and sister-in-law, that Gutierrez traded
cars, property, and drugs with his brother as payment for coordinated shipments
of drugs, and that Gutierrez personally collected drug money established that
Gutierrez joined the agreement knowing its purpose and with the intent to
further the illegal purpose. See id.

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      Without citing any law, Gutierrez contends that there was no physical
evidence to corroborate the testimony of his co-conspirators, but we have held
that “[t]he uncorroborated testimony of an accomplice or co-conspirator will
support a conviction, provided that this testimony is not incredible or otherwise
insubstantial on its face.” United States v. Singer, 970 F.2d 1414, 1419 (5th Cir.
1992) (citations omitted). Gutierrez also argues that the witnesses against him
were compromised by their desire to obtain reduced sentences, and he points to
inconsistencies between their testimony. However, “in the light most favorable
to the jury verdict,” United States v. Resio-Trejo, 45 F.3d 907, 910, 910-11 (5th
Cir. 1995), the evidence was sufficient.
      Gutierrez contends that the testimony of Carlos Martinez was improperly
admitted because Martinez was represented by Amador Garcia, the same
attorney who initially represented Gutierrez for some 24 days when Gutierrez
was arraigned in this case. We review this evidentiary claim, which is distinct
from Gutierrez’s related claim that his Sixth Amendment rights were violated,
for plain error due to Gutierrez’s failure to object in the district court. See
United States v. Olano, 507 U.S. 725, 731-37 (1993). Martinez’s testimony
weighed against Gutierrez in that Martinez repeatedly stated that Gutierrez
was running drug shipments along with his brother and testified to specific drug
quantities. However, other evidence established the same facts, and there is no
reasonable probability that the jury would not have found Gutierrez guilty
without Martinez’s testimony. See United States v. Dominguez Benitez, 542 U.S.
74, 81 (2004).
      Gutierrez also challenges the procedural reasonableness of his sentence,
arguing that the district court erred when calculating his offense level under the
Guidelines. Gutierrez first contends that the district court erred when it
increased his base offense level by four levels under U.S.S.G. § 3B1.1(a) on the
basis that he was a leader or organizer in the drug and money laundering
conspiracies. Several witnesses testified at trial that Gutierrez had supervised

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others, personally owned some of the drugs that were shipped, and personally
hired Gregory Osewalt to transport a load of drugs. Additional support for the
district court’s finding appears in the PSR, which reported that Gutierrez hired
others to transport drugs and money. Gutierrez did not offer any rebuttal
evidence to the PSR before the district court, and although he now complains
that he was not able to cross-examine the confidential sources of the information
in the PSR, he never sought to do so in the district court. See United States v.
Carbajal, 290 F.3d 277, 287 (5th Cir. 2002). The district court’s finding that
Gutierrez was a leader or organizer was “plausible in light of the record as a
whole” and therefore was not clear error. United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008).
      Gutierrez also contends that the drug quantity attributed to him by the
district court in calculating Gutierrez’s guidelines range of imprisonment was
erroneous. In adopting the PSR’s drug quantity over Gutierrez’s objection, the
district court held Gutierrez accountable for 2,600.18 kilograms of marijuana,
including drugs seized in 2004. Gutierrez did not present any evidence to rebut
the PSR in the district court. Gutierrez argues that he should not be held
accountable for drug quantities shipped in 2004, which he contends was before
he joined the conspiracy. See § 1B1.3, comment. (n.2) (“A defendant’s relevant
conduct does not include the conduct of members of a conspiracy prior to the
defendant joining the conspiracy, even if the defendant knows of that conduct.”).
However, while some testimony indicated that Gutierrez was not engaged in
drug trafficking at that time, Gutierrez’s sister-in-law testified that Gutierrez
was involved in the conspiracy at that time. Thus, given Gutierrez’s failure to
present evidence rebutting the PSR, see Carbajal, 290 F.3d at 287, and in light
of the record as a whole, the district court’s finding that the shipments of
marijuana in 2004 were attributable to Gutierrez was plausible and did not
constitute clear error. See Cisneros-Gutierrez, 517 F.3d at 764.



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      Gutierrez also contends that the drug weights attributed to him on the
basis of Carlos Martinez’s testimony should have been excluded because
Martinez was represented by Gutierrez’s former attorney. Because Gutierrez
did not object to the drug quantity on this basis in the district court, we review
this claim for plain error only. See United States v. Peltier, 505 F.3d 389, 391
(5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).          Gutierrez cannot
demonstrate that the testimony of Carlos Martinez, whether tainted or not,
affected his substantial rights with respect to this finding of fact because
Gutierrez’s sister-in-law testified that the drugs at issue here were owned in
part by Gutierrez and in part by Gutierrez’s brother, and the district court could
plausibly have concluded in light of the record as a whole that this shipment was
in furtherance of a jointly undertaken criminal activity and was reasonably
foreseeable to Gutierrez. See § 1B1.3 comment. (n.2); Cisneros-Gutierrez, 517
F.3d at 764.
      Gutierrez also complains that the PSR overstated the amount of money
actually attributable to him with respect to the money laundering conspiracy.
This claims is frivolous because the drug quantity involved in the underlying
offense from which the drugs were derived—not the amount of money attributed
to Gutierrez—determined the offense level for the money laundering conspiracy
pursuant to U.S.S.G. § 2S1.1(a)(1).
      Gutierrez argues that his Sixth Amendment right to the effective
assistance of counsel was violated.       First, he contends that the attorney
appointed by the court to represent him during arraignment in this case,
Amador Garcia, violated Gutierrez’s Sixth Amendment right to the effective
assistance of counsel when, after Garcia was dismissed and new counsel
substituted, Garcia went on to represent a Government witness—Carlos
Martinez—who testified against Gutierrez at trial. Gutierrez also contends that
his trial counsel rendered ineffective assistance by failing to object to Martinez’s
testimony based on Garcia’s representation of Martinez. As a general rule, we

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decline to review claims of ineffective assistance of counsel that are raised for
the first time on direct appeal. United States v. Miller, 406 F.3d 323, 335-36 (5th
Cir. 2005); see also Massaro v. United States, 538 U.S. 500, 503-04 (2003)
(stating that a 28 U.S.C. § 2255 motion is the preferred method for raising a
claim of ineffective assistance of counsel). We have undertaken to resolve claims
of inadequate representation on direct appeal only in cases where the record is
adequate to allow the court to consider the claim’s merits. United States v.
Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). Gutierrez’s is not such a case.
      AFFIRMED.




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