     Case: 12-41194   Document: 00512755577       Page: 1   Date Filed: 09/03/2014




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

                                No. 12-41194                             FILED
                                                                  September 3, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                             Plaintiff-Appellee

v.

FRANCISCO VASQUEZ, also known as Francisco Vazquez; JUAN
ECHEVERRIA,

                                             Defendants-Appellants



                Appeals from the United States District Court
                      for the Eastern District of Texas


Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      This is a direct criminal appeal by two co-defendants, Francisco Vasquez
and Juan Echeverria, challenging their convictions and sentences for
conspiracy to possess methamphetamine with intent to distribute under 21
U.S.C. § 841(a) and § 846. We affirm.
                                        I.
      Perez-Duarte, Echeverria, and Vasquez were arrested in Plano, Texas,
on March 31, 2011, shortly after Perez-Duarte attempted to sell five kilograms
of methamphetamine to a police informant named Mendoza at a pre-arranged
meeting in a parking lot. Perez-Duarte had driven Vasquez’s red truck to the
meeting with Mendoza. The methamphetamine was discovered in the bed of
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                               No. 12-41194
Vasquez’s truck. Earlier that day, Echeverria had driven Perez-Duarte in a
different vehicle to a preliminary meeting with Mendoza at the same parking
lot. After Perez-Duarte’s arrest, a hotel keycard from a nearby hotel was
discovered in Perez-Duarte’s pocket. Later that day, police officers discovered
Echeverria at the hotel. Upon seeing the uniformed police officers, Echeverria
hurried inside his room and slammed the door shut for two minutes while the
police knocked on the door and identified themselves as law enforcement. After
the door was finally opened, the police officers found Echeverria and Vasquez
inside. Both were then arrested.
      The three co-defendants were charged with a single count of conspiracy
to possess methamphetamine with intent to distribute under 21 U.S.C. § 841(a)
and § 846. Perez-Duarte pleaded guilty, and Echeverria and Vasquez were
tried jointly. Both Echeverria and Vasquez testified during their first trial,
and were therefore subject to cross-examination.
      At the first joint trial in November 2011, the following evidence was
presented regarding Echeverria’s knowing participation in the conspiracy: (1)
Echeverria drove Perez-Duarte to meet Mendoza at their preliminary meeting
on March 31, 2011, in the parking lot, (2) Perez-Duarte told Mendoza that
Echeverria was his “partner” within Echeverria’s hearing, (3) Echeverria ran
from police when he saw them at the hotel and slammed his hotel door shut for
two minutes while Vasquez flushed his ID card, the data card from a mobile
telephone, and potentially other unidentified items down the toilet, (4)
Echeverria claimed to have met Vasquez on the day of their arrest in the hotel
room, even though there had been more than 500 phone calls during March
2011 between Echeverria’s phone and a phone associated with a receipt found
in Vasquez’s pocket, (5) a note was found in Echeverria’s pocket, on which was
written a license plate number that appeared to be taken from Mendoza’s
license plate (although two letters were switched), and (6) the key to Perez-

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                               No. 12-41194
Duarte’s car was found hidden in a hole punched into the wall of Echeverria’s
room in the hotel, even though Perez-Duarte had his own room at a second
hotel.
         At the same joint trial in November 2011, the following evidence was
presented regarding Vasquez’s knowing participation in the conspiracy: (1)
Perez-Duarte drove Vasquez’s red truck to make the sale of methamphetamine
to Mendoza, even though Perez-Duarte had another vehicle in Plano, (2)
Vasquez initially told police that his truck must have been stolen, then later
testified that he had lent Perez-Duarte his truck, (3) Vasquez claimed to have
met Echeverria on the day of their arrest in the hotel room, even though there
had been more than 500 phone calls during March 2011 between Echeverria’s
phone and a phone associated with a receipt found in Vasquez’s pocket, (4)
Vasquez removed the data card from one of his two mobile telephones and
flushed it down the toilet just prior to his arrest in the Plano hotel room, (5)
Vasquez also attempted to flush his ID card down the toilet, and (6) the key to
Perez-Duarte’s car was discovered in a hole punched into the wall of the hotel
room where Vasquez was arrested.
         After hearing this evidence, the jury became deadlocked and the district
court declared a mistrial. A second joint trial took place in January 2012. At
this second trial, neither Echeverria nor Vasquez testified, and therefore
neither was subject to cross-examination. The jury was permitted to listen,
however, to a reading of transcripts of both co-defendants’ testimony from the
first trial, at which both had been subject to cross-examination.
         Two significant items of evidence were presented for the first time during
the second trial.      First, an inmate named Sanchez-Alvarez testified that
Echeverria had confessed to him that both he and Vasquez had participated in
the conspiracy with Perez-Duarte to sell methamphetamine to Mendoza.
Sanchez-Alvarez was then cross-examined.           However, because Echeverria

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                                 No. 12-41194
elected not to testify during the second trial, Echeverria was never subjected
to cross-examination regarding the content of this jailhouse confession.
       Second, a California police officer testified regarding Vasquez’s 1998
conviction for heroin possession. The California police officer himself had made
the 1998 arrest. As the California police officer stated, Vasquez “look[ed] just
like the pictures” from the arrestee’s file.
       After the conclusion of the second trial in January 2012, the jury
returned guilty verdicts for both Echeverria and Vasquez. Both Echeverria
and Vasquez received sentences within their respective guideline ranges.
                                             II.
       Echeverria raises two issues on appeal. First, Echeverria argues that
the evidence is insufficient to show that he was a knowing participant in the
conspiracy as charged. Because Echeverria failed to renew his motion for
judgment of acquittal at the close of trial, we can reverse his conviction for
insufficient evidence only if his conviction constitutes “a manifest miscarriage
of justice.” 1 A manifest miscarriage of justice occurs only where “the record is
devoid of evidence pointing to guilt or contains evidence on a key element of
the offense that is so tenuous that a conviction would be shocking.” 2
Echeverria argues that such a manifest miscarriage of justice is present in this
case because, in his view, the record contains no evidence that Echeverria
knowingly participated in Perez-Duarte’s scheme to sell methamphetamine.
       As the record demonstrates, however, there is considerable evidence to
show that Echeverria knowingly agreed and voluntarily participated in the
conspiracy. As observed by this court in United States v. Mann, 161 F.3d 840,



       1 United States v. Burton, 324 F.3d 768, 770 (5th Cir. 2003); United States v. Galvan,
949 F.2d 777, 783 (5th Cir. 1991).
       2 United States v. Dowl, 619 F.3d 494, 500 (5th Cir. 2010); United States v. McIntosh,

280 F.3d 479, 483 (5th Cir. 2002).
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847 (5th Cir. 1998) (quoting United States v. Cardenas, 9 F.3d 1139, 1157 (5th
Cir. 1993)), “[a]n agreement may be inferred from a ‘concert of action.’” Such
a concert of action was shown in this case. Echeverria brought Perez-Duarte
to the first meeting with Mendoza, allowed himself to be called Perez-Duarte’s
“partner” during this meeting, was evidently in close coordination with
Vasquez throughout the preceding month, lied to the police about his
acquaintance with Vasquez, and refused to allow law enforcement to enter the
hotel room while Vasquez flushed his ID card, the mobile phone’s data card,
and potentially other items down the toilet.
      Moreover, the jury also heard Sanchez-Alvarez’s testimony regarding
Echeverria’s jailhouse confession to knowing participation in the conspiracy.
As to Echeverria, this confession is a non-hearsay party admission under Rule
801(d)(2)(A) of the Federal Rules of Evidence. The confession was therefore
admissible as to Echeverria. 3 This confession, in addition to the other evidence
outlined above, undoubtedly provides sufficient proof as to knowledge to
support the verdict under any standard. Echeverria’s conviction therefore does
not constitute a manifest miscarriage of justice. 4
      Second, Echeverria challenges the substantive reasonableness of his
sentence.    As Echeverria concedes, however, his sentence was within the
guideline range. Echeverria has not identified any procedural error committed
by the district court in assessing the guideline range.                    Accordingly,
Echeverria’s sentence “‘is presumptively reasonable’” under United States v.



      3  See United States v. Shoemaker, 746 F.3d 614, 624-25 n.11 (5th Cir. 2014); United
States v. Dixon, 132 F.3d 192, 198 (5th Cir. 1997). As for Vasquez’s challenge to Sanchez-
Alvarez’s testimony under Bruton v. United States, 391 U.S. 123, 127-28 (1968), we address
that argument below. Echeverria cannot himself invoke Bruton because “[t]he rule
enunciated in Bruton stems from the right to confrontation and is designed to protect the
non-testifying confessor’s codefendant, not the confessor himself.” See United States v.
Morales, 477 F.2d 1309, 1316 (5th Cir. 1973).
       4 See Burton, 324 F.3d at 770.

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                                No. 12-41194
Jenkins, 712 F.3d 209, 214 (5th Cir. 2013) (quoting United States v. Campos–
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)). Echeverria suggests that he
should have received a downward departure, but this suggestion is not
supported by any authority. A district court’s refusal to grant a downward
departure is not reviewable “unless it was based on a misinterpretation of the
Sentencing Guidelines.” 5        Because Echeverria does not identify any such
misinterpretation, we affirm his sentence.
                                            III.
       We next consider Vasquez’s arguments. Vasquez argues first that his
conviction is contrary to Bruton v. United States, 391 U.S. 123, 126-28 (1968).
According to Vasquez, his conviction violates the Confrontation Clause because
Echeverria’s “confession naming him as a participant in the crime was
introduced at their joint trial” through a third-party witness, Sanchez-Alvarez,
without any opportunity to cross-examine the actual declarant, Echeverria. 6
Because Vasquez raises his Bruton challenge for the first time on appeal, 7 he
must show that there was plain error affecting his substantial rights. 8
       Under the plain error standard, Vasquez’s argument must be rejected.
Many circuit courts have held that Bruton applies only to statements by co-
defendants that are testimonial under Crawford v. Washington, 541 U.S. 36,
51 (2004).     As these courts have observed, the Supreme Court described
“statements from one prisoner to another” as “clearly nontestimonial” for the
purposes of the Crawford analysis in Davis v. Washington, 547 U.S. 813, 825
(2006) (analyzing the facts of Dutton v. Evans, 400 U.S. 74, 87-89 (1970)



       5 United States v. McClatchy, 249 F.3d 348, 360 (5th Cir. 2001).
       6 See United States v. Nutall, 180 F.3d 182, 188 (5th Cir. 1999).
       7 See United States v. Barrandey, 481 F. App’x 221, 224 (5th Cir. 2012); United States

v. Martinez, 172 F.3d 866, at *1 (5th Cir. 1999) (per curiam); United States v. Gauthier, 248
F.3d 1138, at *1 (5th Cir. 2001) (per curiam).
       8 See United States v. Alaniz, 726 F.3d 586, 615 (5th Cir. 2013).

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(plurality opinion)). Based on this dicta, the Fourth Circuit held in United
States v. Dargan, 738 F.3d 643, 650-51 (4th Cir. 2013), that the rule of Bruton
was “simply irrelevant in the context of nontestimonial statements” made “to
a cellmate in an informal setting.” The Third Circuit likewise held in United
States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012), that Bruton is no longer
applicable to a non-testimonial “prison yard conversation” because “Bruton is
no more than a by-product of the Confrontation Clause.” The First, 9 Second, 10
Sixth, 11 Eighth, 12 Ninth, 13 and Tenth 14 Circuits have also limited Bruton to
testimonial statements only. 15
       Vasquez has never disputed the government’s characterization of
Echeverria’s jailhouse confession as non-testimonial. Accordingly, the district
court’s decision to admit Sanchez-Alvarez’s testimony regarding Echeverria’s
non-testimonial confession was entirely in accordance with most of the circuit
authorities interpreting the relationship between Bruton and Crawford. 16 The
district court therefore did not commit plain error, and Vasquez’s Bruton
challenge must be rejected.




       9 United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010).
       10 United States v. Pike, 292 F. App’x 108, 112 (2d Cir. 2008).
       11 United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009).
       12 United States v. Dale, 614 F.3d 942, 958-59 (8th Cir. 2010).
       13 Smith v. Chavez, 11-55211, 2014 WL 1229918, at *1 (9th Cir. Mar. 26, 2014).
       14 United States v. Clark, 717 F.3d 790, 816 (10th Cir. 2013).
       15 We applied a similar analysis in our unpublished decision in United States v.

Surtain, 519 F. App’x 266, 288 (5th Cir. 2013). By contrast, because the defendant “was tried
alone,” we did not address the issue at all in Fratta v. Quarterman, 536 F.3d 485, 496, 502
(5th Cir. 2008) (“[I]t was unreasonable . . . to extend the rule of Bruton, which applies in the
context of joint or multi-defendant trials, to the context of a single-defendant trial . . . .”).
       16 The Seventh Circuit has arguably applied Bruton to non-testimonial statements,

although without explicitly acknowledging the resulting split of authority. See Jones v.
Basinger, 635 F.3d 1030, 1037, 1050-52 (7th Cir. 2011) (“Lewis claimed that his brother
James Parks had confessed to Lewis that he, Aaron, and Jones had committed the four
murders . . . . Bruton makes clear that Jones’ right to confront Lewis and Parks about that
confession was violated by Lewis’ and Parks’ failure to testify at trial and to subject their
testimony to the ‘crucible of cross-examination.’”).
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                                      IV.
      Vasquez’s remaining arguments also fail to identify any reversible error.
In particular, his claim for ineffective assistance of counsel was never
presented to the district court. Since the record does not permit us to “‘fairly
evaluate the merits of the claim,’” this challenge is premature on direct appeal
under United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007) (quoting
United States v. Partida, 385 F.3d 546, 568 (5th Cir. 2004)).
      The district court also did not err in admitting evidence of Vasquez’s
prior conviction for possession of heroin under Rule 404(b) of the Federal Rules
of Evidence. As explained in United States v. Cooks, 589 F.3d 173, 182 (5th
Cir. 2009) (quoting United States v. Crawley, 533 F.3d 349, 354 (5th Cir. 2008)
(alteration omitted)), “‘the government need only provide some evidence that
the defendant committed the prior bad act.’” Here, the California police officer
who made the 1998 arrest testified that Vasquez “look[ed] just like the
pictures” of the individual convicted in California. That individual also had
the same name as Vasquez. The prior conviction was therefore admissible.
      We also reject Vasquez’s argument under Rule 403 regarding the
admissibility of the photograph of the AK-47 rifle found on Vasquez’s phone.
Although Vasquez objected to the photo during the first trial, his objection was
never renewed during the second trial. Accordingly, under United States v.
Palmer, 122 F.3d 215, 221 (5th Cir. 1997), any “objections made at the aborted
trial have no bearing on the retrial, as the two are entirely separate affairs.”
Under the plain error standard, therefore, Vasquez’s challenge must be
rejected. Admission of the photograph was neither a plain error nor, given the
substantial other evidence against him, a source of prejudice to Vasquez’s
substantial rights in the present case.
      Additionally, in light of Vasquez’s failure to renew his motion for
judgment of acquittal, we also conclude that his conviction under 21 U.S.C. §

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                               No. 12-41194
841(a) and § 846 did not constitute a manifest miscarriage of justice due to
insufficiency of the evidence. 17 The record contains sufficient evidence to show
Vasquez’s knowing participation in the drug conspiracy. As described above,
Vasquez participated in a “concert of action” with Echeverria, which
demonstrates knowledge of a conspiracy under Mann, 161 F.3d at 847, and
Cardenas, 9 F.3d at 1157.            Echeverria’s jailhouse confession to Sanchez-
Alvarez also directly implicated Vasquez’s involvement in the conspiracy. We
therefore find no manifest miscarriage of justice.
       Finally, the district court did not err in sentencing Vasquez based on a
mandatory minimum without a special jury verdict as to the fact of Vasquez’s
previous drug conviction. Vasquez’s argument to the contrary is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 246-47 (1998). 18
                                     CONCLUSION
       For the reasons stated above, we AFFIRM the convictions and sentences
as to both Echeverria and Vasquez.
       AFFIRMED.




       17See Burton, 324 F.3d at 770.
       18See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013); United States v. Posey,
13-50570, 2014 WL 1724499, at *3 (5th Cir. May 2, 2014); United States v. Salazar, 548 F.
App’x 289, 289-90 (5th Cir. 2013); United States v. Fuentes-Ulloa, 550 F. App’x 251, 252 (5th
Cir. 2013); see also United States v. King, 751 F.3d 1268, 1280 (11th Cir. 2014); United States
v. Mack, 729 F.3d 594, 609 (6th Cir. 2013).
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