     Case: 09-51101 Document: 00511339413 Page: 1 Date Filed: 01/04/2011




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

                                                 FILED
                                                                           January 4, 2011
                                     No. 09-51101
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

RAQUEL ESQUIVEL,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:07-CR-1065-7


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Raquel Esquivel contests her jury-trial conviction and 180-month sentence
for participating in a conspiracy to possess, with intent to distribute, more than
1000 kilograms of marijuana. Esquivel contends: the district court abused its
discretion by admitting extrinsic evidence showing she had previously been in
possession of a large amount of marijuana; it plainly erred at sentencing in
finding the drug quantity attributable to her; and, on two bases, her sentence is
unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-51101

      Esquivel, as a United States Border Patrol Agent, conspired with Diego
Esquivel (no relation to appellant) and Ramon Patuel, in their illegal
transportation of marijuana into the United States. Esquivel’s involvement
initially stemmed from her intimate relationship with Diego Esquivel. Diego
Esquivel testified at trial:   Esquivel provided him with information (e.g.,
highways and roads to use or avoid, locations of sensors, and areas and times
patrols and local authorities would be working) he used to smuggle marijuana
across the border; and he shared this information with his bosses in Mexico.
Patuel testified similarly. Diego Esquivel and Patuel were arrested by the
Border Patrol, their cell phones were seized, and their communications with
Esquivel were discovered.
      At trial, the Government moved to introduce testimony from Alonso
Garcia, a convicted drug-trafficker and acquaintance of Esquivel, regarding her
possession of a large amount of marijuana, prior to her joining the conspiracy,
to rebut her assertion that she was pursued by the drug traffickers and naively
provided them with information. The district court conducted a Federal Rule of
Evidence 404(b) analysis and ruled: the evidence was probative of Esquivel’s
state of mind and knowledge concerning the drug conspiracy; and its probative
value outweighed its prejudicial effect on the defense. Esquivel objected to the
evidence’s admission and maintains the district court abused its discretion by
admitting it. See United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008), cert.
denied, 129 S. Ct. 2018 (2009). For the reasons that follow, there was no abuse
of discretion.
      “Evidence of other crimes, wrongs, or acts” may be admissible to prove
intent or knowledge. F ED. R. E VID. 404(b).      When “other acts” evidence is
extrinsic to the charged offense, we apply the two-tier test outlined in United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). First, the
evidence must be relevant to an issue other than defendant’s character, such as



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state of mind.   Id.   Second, it “must possess probative value that is not
substantially outweighed by its undue prejudice . . . .” Id.
      By pleading “not guilty”, Esquivel placed at issue her knowledge of the
drug conspiracy and her intent to aid its undertaking. See United States v.
Duffaut, 314 F.3d 203, 209 (5th Cir. 2002). When defendant’s knowledge is at
issue, “[t]he extrinsic offense need merely be of such a nature that its
commission involved the same knowledge required for the offense charged”.
Beechum, 582 F.2d at 912, n.15. The evidence at issue was relevant to Esquivel’s
state of mind because it reflected her voluntary and knowing participation in
other drug-related activity. The evidence was also relevant in rebutting the
inference raised by Esquivel that she unwittingly disclosed the law-enforcement
information to her co-conspirators because of Diego Esquivel’s persuasive ways.
See Duffaut, 314 F.3d at 209.
      The prejudicial impact of the evidence was mitigated by the district court’s
instructions to the jury that: the evidence was to be considered only for the
limited purpose of determining Esquivel’s state of mind; and it was to be
cautious in weighing the testimony of the Government’s witnesses who were
testifying pursuant to plea agreements. See United States v. Sanders, 343 F.3d
511, 518 (5th Cir. 2003) (a court’s mitigating instructions minimize the threat
of undue prejudice); see also Duffaut, 314 F.3d at 209-10.
      Esquivel next contends the district court plainly erred at sentencing by
attributing to her over 1000 kilograms of marijuana. The district court found:
Diego Esquivel and Patuel used information Esquivel provided them to transport
approximately 816 kilograms (1800 pounds) of marijuana; co-conspirator
Shannon Pierce used the same information to transport approximately 1089
kilograms (2400 pounds) of marijuana.          In total, 1905 kilograms were
transferred into the United States using information provided by Esquivel. She
contends she should not have been held accountable for the 1089 kilograms of
marijuana transferred by Pierce because she was not aware of his participation

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in the conspiracy and it was not reasonably foreseeable to her that Patuel would
pass on Esquivel’s information to him. As Esquivel concedes, and because she
did not object in district court to this finding, we review this issue only for plain
error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      The court-adopted presentence investigation report (PSR) and trial
testimony reflect Esquivel’s knowledge of the ongoing conspiracy and her
awareness that the information she provided was a valuable tool in its continued
success. Esquivel failed to object to the PSR findings that Pierce was also a
member of the conspiracy. A participant in a drug conspiracy is responsible for
the quantity of drugs attributed to the conspiracy that was “reasonably
foreseeable” to the participant. See United States v. Castillo, 77 F.3d 1480, 1494
(5th Cir. 1996); see also U.S.S.G. § 1B1.3 cmt. n.2 (for jointly undertaken
controlled substance offenses, defendant is accountable for all “reasonably
foreseeable quantities of contraband that were within the scope of the criminal
activity”). There was a sufficient evidentiary basis for the district court to find
the amount at issue was reasonably foreseeable to Esquivel. (In this regard,
Esquivel commented to Agents that she knew Diego Esquivel and Patuel were
not the “big dogs” in the drug activity). See United States v. Ollison, 555 F.3d
152, 164 (5th Cir. 2009). Needless to say, there was no plain error.
      Esquivel further maintains her sentence is unreasonable because: the
applicable advisory Guidelines sentencing range was greater than necessary to
achieve the goals of 18 U.S.C. § 3553(a); and it was based on an advisory
Guideline that lacks empirical support. Esquivel concedes she failed to object
in district court to the unreasonableness of her sentence. Accordingly, our
review is again only for plain error. United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007).
      The base-offense level for a drug-related conspirator is determined by the
quantity of drugs involved as related to defendant’s relevant conduct. United
States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994); see U.S.S.G. § 2D1.1(a)(3).

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Esquivel’s base-offense level was 32 and she received a two-level upward
adjustment for her abuse of a position of trust, resulting in a total offense level
of 34. She was placed in criminal history category I, with her resulting advisory
sentencing range being 151-188 months. She was sentenced to 180 months’
imprisonment.
         A presumption of reasonableness attaches to a within-Guidelines sentence.
See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). In imposing
Esquivel’s sentence, the district court considered: counsel’s arguments; the
advisory Guidelines; and the sentencing factors provided in 18 U.S.C. § 3553(a).
The court was not persuaded that Esquivel should receive the statutory
minimum 10-year sentence because of her claimed limited role in the conspiracy.
It pointed out that Esquivel abused her position of trust and endangered other
law enforcement agents by providing information to her co-conspirators.
Esquivel’s challenge to the manner in which the court considered the evidence
and sentencing factors does not rebut the presumption of reasonableness we
apply to her within-Guidelines sentence. See United States v. Gomez-Herrera,
523 F.3d 554, 564 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). In short, there
was no plain error.
         Regarding Esquivel’s position that the applicable Guideline was not based
on empirical data, the district court may consider the presence or absence of
such data, but it does not affect the presumption of reasonableness attached to
a within-Guidelines sentence. United States v. Mondragon-Santiago, 564 F.3d
357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Again, there was no plain
error.
         AFFIRMED.




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