      Case: 14-40635          Document: 00513267889              Page: 1      Date Filed: 11/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                            No. 14-40635                              United States Court of Appeals
                                                                                               Fifth Circuit

                                                                                              FILED
UNITED STATES OF AMERICA,                                                            November 12, 2015
                                                                                        Lyle W. Cayce
                 Plaintiff - Appellee                                                        Clerk

v.

PEDRO ALVARADO,

                  Defendant - Appellant
-------------------------------------------------------------------------------------------
cons/w 14-40641

UNITED STATES OF AMERICA,

                    Plaintiff - Appellee
v.

ARNOLDO ALVARADO,

                     Defendant - Appellant




                      Appeals from the United States District Court
                           for the Southern District of Texas
                                  USDC 7:12-CR-1136


Before KING, DENNIS, and OWEN, Circuit Judges.
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                                      No. 14-40635
PER CURIAM:*
       This direct criminal appeal arises from the conviction following jury trial
of Appellants Pedro Alvarado (Pedro) and Arnoldo Alvarado (Arnoldo) for
aggravated assault of a federal agent with a deadly weapon, 18 U.S.C.
§§ 111(a)(1) and (b) and 18 U.S.C. § 2, and unlawful use of a firearm during
and in relation to a crime of violence, 18 U.S.C. §§ 924(c)(1) and (c)(1)(A)(iii)
and 18 U.S.C. § 2. For the following reasons, we affirm the judgment of the
district court.
                                             I.
       Around 3:00 am on July 3, 2012, Rene Garcia—who was allegedly casing
the area in preparation for a drug heist—contacted Pedro and informed him
that a suspicious vehicle was parked under a tree on the Alvarado family’s
property. 1 Pedro told Arnoldo, then 18 years old, and his other son Marques,
then 16 years old, to join him to investigate. Arnoldo and Marques each
retrieved a gun and the three got into Pedro’s pickup truck and drove down the
road towards the suspicious vehicle. The suspicious vehicle was actually the
unmarked Jeep of Special Agent Kelton Harrison, who was parked with his
engine on and his lights off conducting an undercover stakeout as part of an
ongoing Homeland Security investigation. Agent Harrison testified that, upon
seeing Pedro’s pickup truck slowly approaching, he attempted to leave the
property, but he soon heard shots ring out and felt the impact of bullets on both
sides of his vehicle. As he accelerated in an attempt to escape, another truck,


       * 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.
       1 More specifically, Pedro was informed that a suspicious vehicle was parked under a
tree near Arnoldo and Marques’s aunt’s house, at the intersection of 11th Street (Cemetary
Road) and Route 493 in Hargill, TX, which is approximately a quarter mile from the
Alvarados’ home. Marques testified that the aunt had moved away and left the house in his
family’s care.
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                                  No. 14-40635
later discovered to be driven by Garcia and his coconspirators, blocked his Jeep
from leaving. Agent Harrison was able to get around Garcia’s truck and drive
off the property and onto Route 493, but the Alvarados and Garcia continued
to pursue Agent Harrison for about three miles. It is undisputed that Arnoldo
and Marques continued to shoot their firearms, but there is conflicting
testimony about whether the Alvarados fired at Harrison’s Jeep once they left
their family’s property: Arnoldo testified that after Harrison pulled onto Route
493 he only shot into the air in an attempt to scare the driver away.
Ultimately, Agent Harrison’s truck was struck by approximately 12 bullets,
one of which struck the agent in the back. Agent Harrison continued north on
493 until he came to a T-intersection, where his vehicle hit a fence and crashed
into a field. Agent Harrison ran from his vehicle and hid in a brush of trees for
a short period, then crawled back to his vehicle and called for help. Agent
Harrison survived and testified at trial to these events.
      Pedro and Arnoldo were charged by superseding indictment with
attempted murder of a federal officer (Count One); assault of a federal officer
by means of a deadly and dangerous weapon (Count Two); and use of a firearm
during and in relation to a crime of violence (Count Three). The central facts
were uncontested at trial. At the close of the evidence, Arnoldo and Pedro
urged the district court to instruct the jury regarding self-defense. The district
court denied the request, reasoning that a rational jury could not conclude that
either Pedro or Arnoldo was in fear for his life or was reasonable in his use of
force during the three-mile pursuit of Agent Harrison.
      The jury convicted Pedro and Arnoldo of Counts Two and Three, but
could not reach a verdict on Count One, the attempted murder charge. Pedro
was sentenced to a non-Guideline sentence of 120 months’ imprisonment on
Count Two and 120 months’ imprisonment on Count Three, to be served
consecutively for a total of 240 months. Arnoldo was sentenced to 72 months’
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                                   No. 14-40635
imprisonment on Count Two and 120 months’ imprisonment on Count Three,
to run consecutively. Pedro and Arnoldo separately appealed, and this court
sua sponte consolidated their cases.
                                         II.
      Pedro and Arnoldo both contend that the district court erred by declining
to charge the jury with a self-defense instruction. “We review de novo a district
court’s refusal to offer an instruction for a criminal defense that, if credited,
would preclude a guilty verdict.” United States v. Theagene, 565 F.3d 911, 917
(5th Cir. 2009); see also United States v. Bradfield, 113 F.3d 515, 521 (5th Cir.
1997); United States v. Gentry, 839 F.2d 1065, 1071 (5th Cir. 1988). The
requested charge is such an instruction.
      As the Supreme Court held in Mathews v. United States, 485 U.S. 58, 63
(1998), “a defendant is entitled to an instruction as to any recognized defense
for which there exists evidence sufficient for a reasonable jury to find in his
favor.”   Evidence is “sufficient” where it “raise[s] a factual question for a
reasonable jury.” United States v. Branch, 91 F.3d 699, 712 (5th Cir. 1996).
Although “[a] district court cannot refuse to give an instruction for which there
is sufficient evidence in the record for a reasonable juror to harbor a reasonable
doubt that the defendant did not act in self defense, . . . the district court is not
required ‘to put the case to the jury on a basis that essentially indulges and
even encourages speculations.’” Id. (quoting United Sates v. Collins, 690 F.2d
431 (5th Cir. 1982)). Rather, all evidence must be considered in the context of
the entire record. See id.
      In United States v. Feola, 420 U.S. 671, 684 (1975), the Supreme Court
held that a conviction for assault of a federal officer under 18 U.S.C. § 111
requires “an intent to assault, not an intent to assault a federal officer.”
However, the Court made clear that there could be some situations in which
ignorance of the officer’s status would negate criminal intent:
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                                  No. 14-40635
      For example, where an officer fails to identify himself or his
      purpose, his conduct in certain circumstances might reasonably be
      interpreted as the unlawful use of force directed either at the
      defendant or his property. In a situation of that kind, one might be
      justified in exerting an element of resistance, and an honest
      mistake of fact would not be consistent with criminal intent.
Id. In order to warrant an acquittal under a theory of self-defense, a defendant
charged under § 111 must produce evidence demonstrating that he was
unaware of the federal officer’s identity and reasonably believed that the officer
intended to damage his home or injure his family. United States v. Ochoa, 526
F.2d 1278, 1281 (5th Cir. 1976). In other words, the ultimate question is
“whether [the defendant] believed that he needed to defend himself against an
assault by a private citizen.” United States v. Kleinebreil, 966 F.2d 945, 951
(5th Cir. 1992).
      Appellants liken their case to United States v. Young, 464 F.2d 160, 163
(5th Cir. 1972), where this court held the jury should have been instructed that
it could not find the defendant guilty under § 111 if it believed that he acted
out of a reasonable belief that the federal agents were strangers who intended
to inflict harm on him. But Young both applies an outdated legal standard and
is factually distinguishable from the case at hand.           The Young court
determined that there was “any foundation in the evidence” to support a
finding that Young believed that the federal officers “intended to inflict harm
upon [him].”   Id. at 163-164.    A rule that entitled a defendant to a jury
instruction if it was supported by “any evidence” was expressly rejected by this
court in Branch. 91 F.3d at 713 (“[I]t is not enough that an item of evidence
viewed alone and unweighed against all the evidence supports an inference
that a defendant acted in self defense.”). Furthermore, unlike in Young, where
evidence showed that the agents’ car “abruptly pulled in front of Young’s” and
Young “thought he was being harassed by local rowdies,” 464 F.2d at 161, 163,


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                                 No. 14-40635
no evidence was presented to suggest that, when Agent Harrison was shot, the
Appellants reasonably believed that he intended to inflict harm upon them.
      The only evidence that even suggested that Arnoldo and Pedro acted out
of fear for their safety—Arnoldo’s testimony that he and his father thought
that Agent Harrison was a stranger intruding on their property, that his family
was recently the victim of an armed intruder, and that he heard shots fired
before he or his brother fired their weapons—was insufficient to show that they
reasonably acted in self defense when they pursued and fired upon Agent
Harrison’s fleeing vehicle. See Branch, 91 F.3d at 712. Agent Harrison did
nothing aggressive but began his attempt to escape as soon as Pedro drove
towards his vehicle. It was not contested that Pedro and his sons sought out
Agent Harrison’s vehicle, that Arnoldo and his brother fired upon Agent
Harrison’s vehicle as it attempted to leave the Alvarados’ property, or that
Pedro pursued Agent Harrison, at high speeds, for over three miles. Arnoldo
and his brother did not testify that they saw muzzle flashes coming from Agent
Harrison’s vehicle or that that they definitely believed that the gunshots they
heard came from the Jeep. Nor was evidence presented to contradict Agent
Harrison’s testimony that he felt the impact of a bullet on his back when he
was already over a mile away from the Alvarados’ property. Considering the
record as a whole, the evidence was insufficient for a reasonable jury to find in
Appellants’ favor. The district court therefore did not err when it denied the
self-defense jury instruction.
                                      III.
      Pedro contends that the non-Guideline sentence of 120 months imposed
by the district court for Count Two was substantively unreasonable and that
the upward variance was impermissibly based on conduct for which he was
acquitted, namely the attempted murder of Agent Harrison.            This court
reviews a sentence for reasonableness using a two-step process: first, the court
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                                 No. 14-40635
must ensure that the district court did not commit any significant procedural
error; then, the court must consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard, taking into account
the totality of the circumstances. Gall v. United States, 552 U.S. 38, 51 (2007).
When reviewing a non-Guideline sentence—that is, a sentence either higher
or lower than the relevant Guideline range—this court may not apply a
presumption of unreasonableness. Id. The reviewing court “may consider the
extent of the deviation, but must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Id. The sentencing court’s factual findings are reviewed for clear
error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(quoting United States v. Juarez Duarte, 513 F.3d 204, 2008 WL 54791, at *3
(5th Cir. 2008)).
      A district court may impose a non-Guideline sentence if it first calculates
the Guideline range and considers it advisory, using the appropriate Guideline
range as a “frame of reference.” United States v. Smith, 440 F.3d 704, 707 (5th
Cir. 2006). The district court must “more thoroughly articulate its reasons
when it imposes a non-Guideline sentence than when it imposes a sentence
under authority of the Sentencing Guidelines” and ensure that its reasons are
consistent with the factors enumerated in 18 U.S.C. § 3553(a). Id. These
factors include the nature and circumstances of the offense and the history and
characteristics of the defendant and the need for the sentence imposed to
reflect the seriousness of the offense. In United States v. Watts, 519 U.S. 148,
157 (1997), the Supreme Court held a sentencing court may consider conduct
underlying a charge for which the defendant was acquitted “so long as that
conduct has been proved by a preponderance of the evidence.” See also United
States v. Vaughn, 430 F.3d 518, 526-17 (5th Cir. 2005) (stating that Watts
remained valid after United States v. Booker, 543 U.S. 220 (2005)); United
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States v. Partida, 385 F.3d 546, 565 (5th Cir. 2004) (explaining that because
the standard of proof at sentencing is lower than the proof necessary to convict
at trial, the scope of a sentencing court’s fact finding is not limited to
considering only the conduct of which the defendant was formally charged or
convicted); United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001) (citing
Watts and rejecting defendant’s argument that district court was precluded
from sentencing him on conduct for which the jury was unable to reach a
verdict).
      Pedro does not contend that his sentence was procedurally unreasonable,
and there is no evidence of procedural error. Pedro argues that his sentence
was substantively unreasonable because it was based on the attempted murder
charge, the one charge on which the jury could not agree. He asserts that the
fact that the jury could not reach a verdict precludes a finding that the
underlying conduct was proven by a preponderance of the evidence. However,
as the Supreme Court noted in Watts, “an acquittal is not a finding of any fact.
An acquittal can only be an acknowledgment that the government failed to
prove an essential element of the offense beyond a reasonable doubt.” 519 U.S.
148, 155 (1997) (quoting United States v. Putra, 78 F.3d 1386, 1394 (9th
Cir.1996) (Wallace, J., dissenting)). As this court has repeatedly stated, “a
finding of fact is clearly erroneous only if a review of all the evidence leaves
[the reviewing court] with the definite and firm conviction that a mistake has
been committed.” United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011)
(quoting United States v. Castillo, 430 F.3d 230, 238 (5th Cir.2005)) (internal
quotation marks omitted). The trial testimony indicated that Pedro involved
his children, one of whom was a minor, in a high-speed chase that left the
Agent Harrison’s vehicle riddled with bullets and the agent himself in the ICU.
The PSR set forth that Arnoldo told officials that he fired over 15 rounds of
ammunition and his brother fired at least six rounds as Pedro pursued Agent
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                                  No. 14-40635
Harrison for several miles. In light of the record, the district court’s finding
that Pedro’s conduct was egregious, consisting of the “relentless pursuit of [a]
fleeing human being in an attempt to murder the person, in an attempt to kill
the person,” was not clearly erroneous. As a result, the district court’s reliance
on that finding in deviating from the guidelines—consistent with the factors
enumerated in § 3553(a)—did not render Pedro’s sentence substantively
unreasonable.
                                       IV.
      Arnoldo contends that the district court violated his Sixth Amendment
right of confrontation when it refused to allow cross-examination of Agent
Harrison on the issue of the federal agents’ “bungled operation.” Whether the
Confrontation Clause issue was properly raised at trial determines the
appropriate standard of review: This court reviews any Confrontation Clause
issues that were not contemporaneously raised at trial for plain error only,
while Confrontation Clause issues that were properly raised at trial are
reviewed de novo, subject to harmless error analysis. United States v. Octave,
575 F. App’x 533, 537 (5th Cir. 2014) (citing United States v. Acosta, 475 F.3d
677, 680 (5th Cir.2007)). Where there has been no constitutional violation, this
court reviews a district court’s limitations on cross-examination for an abuse
of discretion, “which requires a showing that the limitations were clearly
prejudicial.” United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008) (citing
United States v. Jimenez, 464 F.3d 464, 558-59).
      A defendant’s constitutional right to cross-examine witnesses against
him is secured by the Confrontation Clause of the Sixth Amendment. United
States v. Mayer, 556 F.2d 245, 248 (5th Cir.1977). Cross-examination “is the
principal means by which the believability of a witness and the truth of his
testimony are tested.” Id. at 559. “The Confrontation Clause is satisfied where
defense counsel has been allowed to expose the jury to facts from which the
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                                  No. 14-40635
jury could appropriately draw inferences relating to the reliability of the
witness.” Heard, 709 F.3d at 432. This court has recognized that a district
court has “wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on . . . cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.”
United States v. Heard, 709 F.3d 413, 432 (5th Cir. 2013) (internal quotation
marks and citation omitted). However, “a judge’s discretionary authority to
limit the scope of cross-examination comes into play only after the defendant
has been permitted, as a matter of right, sufficient cross-examination to satisfy
the Sixth Amendment.” United States v. Davis, 393 F.3d 540, 548 (5th Cir.
2004).
      Arnoldo objected to the restrictions on cross-examination, but not on
Confrontation Clause grounds. We need not determine whether his objection
properly raised the issue, however, because his constitutional claim lacks
merit.   Decisions of the Supreme Court and of this court recognize that
restrictions on the scope of cross-examination can violate the Confrontation
Clause. E.g. Davis v. Alaska, 415 U.S. 308, 318 (1974); United States v. Morris,
485 F.2d 1385, 1387 (5th Cir. 1973). However, these cases make clear that the
concern with such restrictions is that they might undermine the purpose of
cross-examination by denying defense counsel the opportunity “to delve into
the witness’ story to test the witness’ perceptions and memory, [and also] . . .
to impeach, i.e., discredit, the witness.” Davis, 415 U.S. at 316. Therefore, to
establish a violation of the right to confrontation, a defendant must establish
that “a reasonable jury might have received a significantly different impression
of the witness’s credibility had defense counsel been permitted to pursue his
proposed line of cross-examination.” Skelton, 514 F.3d at 439-40 (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (internal alterations
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                                 No. 14-40635
omitted). Here, Arnoldo does not allege that his inability to cross-examine
Agent Harrison about the nature of the operation prevented him from exposing
the witness’s biases or motives.    Instead, he contends that the restriction
denied him the opportunity to elicit testimony that was “at the very core of the
Appellant’s self-defense claim,” testimony that might establish that Agent
Reneau knew that there might be counter-surveillance the night that Agent
Harrison was shot and that his injury might have been prevented if Reneau
had informed him and his team of that fact. Not only did the restriction on
cross-examination not change the jury’s perception of Agent Harrison’s
credibility, but defense counsel did in fact elicit testimony from Agents Jean-
Paul Reneau and Harrison about the poor planning of the Homeland Security
operation: before the Government objected, Agent Harrison conceded that he
was concerned about the lack of a formal plan, and Agent Reneau admitted
that he deviated from normal operating procedure by obtaining only verbal
approval for the surveillance conducted on the night of the shooting.
      The restriction on cross-examination did not change the jury’s perception
of Agent Harrison’s credibility; it excluded only cumulative evidence testimony
regarding Agent Harrison’s frustration with Agent Reneau’s handling of the
surveillance operation. Such a restriction neither violates the dictates of the
Sixth Amendment nor is so prejudicial as to constitute an abuse of discretion.
See, e.g., United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (no
constitutional violation and no abuse of discretion where, despite a restriction
on cross-examination, the jury could have inferred that the witness was
biased); United States v. Vasilios, 598 F.2d 387, 390 (5th Cir. 1979) (defendant
was not prejudiced by the restrictions placed on his counsel’s cross-
examination of key government witness where “[t]he jury was sufficiently
apprised of other bases on which [the defendant’s] credibility was vulnerable
to attack”).
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                                       V.
      Arnoldo argues that the district court erred when it overruled his
objection to the instruction in the jury charge that he need not have known he
was assaulting a federal agent. Supreme Court case law is clear that to be
convicted of assault on a federal officer, the defendant need not have the
specific intent to assault a federal officer—rather, the intent to assault is
sufficient. See Feola, 420 U.S. at 684. The defendant’s ignorance of the victim’s
official status may negate criminal intent where the circumstances otherwise
justify the use of force, see id; however, the defendant’s knowledge of his
victim’s identity is not an element of the offense. The district court therefore
properly denied Arnoldo’s objection to the jury instruction on this ground.
                                      VI.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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