     Case: 16-51368       Document: 00514534115         Page: 1     Date Filed: 06/28/2018




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

                                       No. 16-51368                               FILED
                                                                              June 28, 2018
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

               Plaintiff - Appellee

v.

LUIS FELIPE RODRIGUEZ, also known as Vaquero,

               Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas


Before HIGGINBOTHAM and HIGGINSON, Circuit Judges.*
PATRICK E. HIGGINBOTHAM, Circuit Judge:
       Luis Felipe Rodriguez was convicted by a jury for, among other things,
conspiracy to possess with intent to distribute cocaine. Due to Rodriguez’s prior
convictions, the Government sought and the district court imposed a life
sentence. Finding no reversible error, we affirm.
                                               I.
       From January 2011 to December 2012, Defendant Luis Felipe Rodriguez,
also known as Vaquero, engaged in drug trafficking as well as money
laundering and bulk cash smuggling activities. Specifically, Rodriguez worked



       *Judge Edward Prado, a member of the original panel in this case, retired from the
Court on April 2, 2018, and therefore did not participate in this decision. This case is being
decided by a quorum. 28 U.S.C. § 46(d).
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with Drug Trafficking Organizations out of Piedras Negras, Coahuila, Mexico
to supply and transport marijuana, cocaine, and methamphetamine to
multiple cities in Texas. To do so, Rodriguez hired couriers to coordinate the
transportation of drugs, which were typically wrapped in black tape and
hidden in compartments of vehicles to avoid detection at border checkpoints. 1
In total, Rodriguez transported over 25 kilograms of cocaine, over 45 kilograms
of marijuana, and 366 grams of methamphetamine, and laundered
approximately $1,168,300 in drug proceeds to Mexico.
       In February 2014, the Government charged Rodriguez in an Initial
Indictment with a single count of conspiracy to possess with intent to distribute
5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846, (“Count One”). On April 10, 2014, the Government filed a Notice of
Enhanced Penalty pursuant to 21 U.S.C. § 851, notifying Rodriguez of the
Government’s intention to enhance his sentence to mandatory life
imprisonment based on two prior drug convictions. Six days later, the
Government filed a Superseding Indictment, charging Rodriguez with the
same Count One and adding two charges of conspiracy to smuggle bulk cash
and conspiracy to launder money. 2 On May 8, 2014, Rodriguez objected to the
Government’s Notice of Enhanced Penalty.
       On February 17, 2015, the court granted Rodriguez’s attorney’s oral
motion to withdraw, and appointed new counsel. The Government then filed a


       1  Multiple co-conspirators testified to their roles in Rodriguez’s scheme. Co-
conspirator Rod Christopher Porras testified about hidden compartments in vehicles. Co-
conspirator Reynaldo Zamora testified that money was stashed in hidden compartments in
his vehicle. And co-conspirator Jaime Crail testified that he conducted several runs for
Rodriguez, driving a total of six loads of cocaine, as well as marijuana, methamphetamine,
and ammunition, from Piedras Negras to cities in Texas, and $275,000 to Rodriguez’s boss in
Piedras Negras.
       2 Rodriguez filed a motion to dismiss the added charges of conspiracy to smuggle bulk

cash and launder money for speedy trial violations, which the district court denied. Rodriguez
does not appeal the district court’s denial of his motion to dismiss.
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Second Superseding Indictment on March 4, 2015, adding a charge of
conspiracy to possess with intent to distribute methamphetamine. 3 Rodriguez
pleaded not guilty to the Second Superseding Indictment, and a jury convicted
him on Count One, conspiracy to smuggle bulk cash, and conspiracy to launder
money. The jury acquitted Rodriguez of the methamphetamine charge.
       The Presentence Report (“PSR”) set Rodriguez’s offense level at 40 and
his criminal history category at VI based on two prior drug trafficking offenses.
The district court, overruling Rodriguez’s objections, sentenced him to life in
prison for Count One, 60 months for conspiracy to smuggle bulk cash, and 240
months for conspiracy to launder money, to run concurrently. Rodriguez
appeals his mandatory life sentence, arguing that the Government should have
refiled a new § 851 information on the Second Superseding Indictment and
that the district court erred by treating Rodriguez’s prior drug convictions as
separate convictions for purposes of applying the sentencing enhancement
pursuant to 21 U.S.C. § 841(b)(1)(A). 4
                                               II.
       A defendant’s sentence may not be enhanced based on a prior conviction
unless the Government complies with the requirements of 21 U.S.C. § 851,
which states:



       3   At trial, co-conspirator Crail testified that in February 2012, he drove
methamphetamine from Piedras Negras to San Antonio; that he delivered the
methamphetamine to Rodriguez but later realized that a package containing approximately
400 grams of methamphetamine was left in the truck; that he called Rodriguez who offered
to pick up the package; that Crail declined the offer, stating that he would sell it to one of his
“buddies;” and that Rodriguez insisted again but Crail, having found a buyer, declined. While
Crail was en route to the buyer’s house, San Antonio police officers apprehended him, seizing
the methamphetamine and a loaded semi-automatic handgun.
        4 Rodriguez additionally appeals the PSR’s classification of Rodriguez as a career

offender, inclusion of the methamphetamine seized from Crail as relevant conduct, and
addition of 2 levels to Rodriguez’s base offense level for Crail’s possession of a handgun. We
find no error in the district court’s interpretation and application of the U.S. Sentencing
Guidelines.
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       No person who stands convicted of an offense under this part shall
       be sentenced to increased punishment by reason of one or more
       prior convictions, unless before trial, or before entry of a plea of
       guilty, the United States attorney files an information with the
       court (and serves a copy of such information on the person or
       counsel for the person) stating in writing the previous convictions
       to be relied upon. 5
We review the Government’s compliance with Section 851 de novo. 6
       This case presents the following question: whether the Government must
refile a Section 851(a) information after filing a Second Superseding
Indictment. We have not addressed that question explicitly, but we have
alluded to its answer in Blevins. 7 In that case, we ruled that the Government
must refile a Section 851(a) information when an indictment is dismissed but
specified that our ruling did not “reject the caselaw from other circuits . . .
which allow[] one Section 851(a) notice to suffice for successive trials on the
same indictment after a mistrial or a reversal on appeal, or for a trial on a
superseding indictment.” 8 Now that the issue is presented head on, we join
other circuits to conclude that one Section 851(a) information suffices for a trial
on a superseding indictment. 9


       5 21 U.S.C. § 851(a)(1).
       6 United States v. Rios-Espinoza, 591 F.3d 758, 760 (5th Cir. 2009).
       7 United States v. Blevins, 755 F.3d 312 (5th Cir. 2014).
       8 Id. at 323.
       9 See, e.g., United States v. Dickerson, 514 F.3d 60, 64 n.3 (1st Cir. 2008) (“We . . . join

other circuits in holding that the prosecution need not have filed a second § 851(a) notice
after the second superseding indictment for the notice to be effective.”);United States v.
Cooper, 461 F.3d 850, 854 (7th Cir. 2006) (“[W]here the Government files a timely Section
851 notice, it is not required to file a second notice after an intervening event, such as a trial
or a superseding indictment, in the same case.”); United States v. Mayfield, 418 F.3d 1017,
1020 (9th Cir. 2005) (“[F]iling the information and giving the section 851(a) notice before [the
defendant’s] first trial obviated the need to refile the information and regive that notice before
his second trial.”); United States v. Kamerud, 326 F.3d 1008, 1014 (8th Cir. 2003) (“[T]he
government is not required to refile a notice of enhanced sentence under 21 U.S.C. § 851 after
the return of the superseding indictment.”) (citing United States v. Wright, 932 F.2d 868, 882
(10th Cir. 1991)); United States v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995) (holding that
the government is not required to refile a Section 851 information for multiple trials in same
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       Rodriguez acknowledges that other circuits agree that the Government
need not refile a Section 851(a) information following a superseding
indictment; however, he claims that his case differs because he obtained a new
attorney after the Government filed its Section 851(a) information but before
the Government filed its Second Superseding Indictment. 10 Though this
argument is not without merit, we conclude that a change in counsel, without
more, does not render the Government’s Section 851(a) information ineffective
for a trial on a superseding indictment.
       Rodriguez relies on Williams and Cooper to support his argument. In
Williams, the defendants proceeded through three trials: the first ended in
reversal due to an evidentiary issue; the second concluded as a result of juror
misconduct; and the third trial led to a jury finding both defendants guilty. 11
When the Government sought an enhancement based on one defendant’s prior
conviction, the district court denied the request because the Government had
not refiled a Section 851(a) information prior to the third trial—the trial for
which the defendant was being sentenced. 12
       The Eleventh Circuit reversed, holding that “once the information was
filed, it was not necessary that it be refiled for each consecutive trial in the
same court.” 13 In so holding, the court reviewed the two purposes of Section
851: “The first is to allow the defendant to contest the accuracy of the
information;” and “[t]he second is to allow the defendant to have ample time to
determine whether to enter a plea or go to trial and plan his trial strategy with



case); see also, e.g., United States v. Bunch, 395 F. App’x 996, 998 (4th Cir. 2010); Vadas v.
United States, 527 F.3d 16, 23–24 (2d Cir. 2007).
        10 Rodriguez additionally argues that the district court was not aware of the

enhancement and that the Second Superseding Indictment differed greatly from the original
indictment. Neither argument is of legal consequence.
        11 59 F.3d at 1182.
        12 Id. at 1185.
        13 Id.

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full knowledge of the consequences of a potential guilty verdict.” 14 The
Eleventh Circuit found those purposes to be met, observing that “[t]he same
attorney represented [the defendant] at all three trials, knew that the
information had been filed, knew about the prior conviction, which was
admitted, and had addressed that prior conviction at the sentencing in the first
trial.” 15
        The Seventh Circuit relied on similar reasoning in Cooper when the
defendant argued that “the superseding indictment, intervening indictment,
and trial required the Government to file a second information before he could
be subjected to a second enhanced sentence.” 16 Rejecting that argument, the
court, among other things, applied the purposes of Section 851(a), finding that
the defendant had an opportunity to contest the accuracy of the prior conviction
when the Government filed the first information and that the defendant was
aware that he could receive an enhanced sentence if found guilty. 17 To support
the latter finding, the Seventh Circuit, citing Williams, reasoned that the
defendant “was represented by the same attorney at the first and second
sentencing.” 18
        To be sure, these cases support a finding of adequate notice when a
defendant is represented by the same attorney throughout the proceedings.
But that is all. Williams and Cooper do not stand for the proposition that a
change in counsel renders a Section 851(a) information ineffective. The heart
of Rodriguez’s claim is that he lacked notice of the enhanced penalty. We find




        14Id. (emphasis in original); see also United States v. Arnold, 467 F.3d 880, 887 (5th
Cir. 2006) (explaining that Williams “has stated the guiding purposes of § 851”).
       15 Williams, 59 F.3d at 1185.
       16 461 F.3d at 853.
       17 Id. at 854–55.
       18 Id. at 855.

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                                       No. 16-51368
no support for that claim when we juxtapose the record with the two purposes
of Section 851.
      As mentioned, the first purpose of Section 851 is “to allow the defendant
to contest the accuracy of the information.” 19 The first purpose is met here. To
begin, Rodriguez’s first counsel filed an Objection to the Government’s Notice
of Enhanced Penalty on May 8, 2014, arguing that Rodriguez’s prior
convictions “should not be used as a basis to enhance [Rodriguez’s] punishment
to a mandatory life sentence.” Rodriguez’s Objection specified that “the
convictions occurred on the same date and presumably at the same time;” that
“the court ordered the sentences to run concurrently;” and that “the two prior
convictions that form the basis [of the] enhancement were part of a single act
of criminality and thus should be treated as a single conviction under section
841(b)(1)(A).”
      In addition, during Rodriguez’s first sentencing hearing, his new counsel
objected to the enhancement, stating “the PSR does not mention the
enhancement.” The district court then read 21 U.S.C. § 851 aloud, highlighting
the “procedure for the denial” of an enhancement, which states:
      If a person denies any allegation of the information of prior
      conviction or claims that any conviction alleged is invalid, he shall
      file a written response to the information. A copy of the response
      shall be served upon the United States attorney. The Court shall
      hold a hearing to determine any issues raised by the response
      which would except the person from the increased punishment. 20
Thereafter, the district court asked Rodriguez’s counsel to confer with
Rodriguez to “decide whether [he] need[ed] a hearing or not on the – on the
information.” Rodriguez’s counsel then requested a hearing, which the district
court set. Around four months later, at Rodriguez’s second sentencing hearing,



      19   Arnold, 467 F.3d at 887 (internal quotation marks omitted).
      20   21 U.S.C. § 851(c)(1).
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                                            No. 16-51368
the court heard argument from Rodriguez’s counsel on why the enhancement
should not apply. Though the district court was not persuaded, it cannot be
said, at least on this record, that Rodriguez was not allowed to contest the
accuracy of the information.
          The second aim of Section 851 is to ensure that the defendant has “ample
time to determine whether to enter a plea or go to trial and plan his trial
strategy with full knowledge of the consequences.” 21 We also find that purpose
met. As an initial matter, we note that Rodriguez’s first counsel remained in
the case for more than ten months after receiving the Government’s Notice of
Enhanced Penalty. And when his new counsel took over in February 2015, both
the Government’s Notice and Rodriguez’s Objection to that Notice were
present on the docket. Rodriguez’s new counsel then had over six months to
review the record in this case and develop a strategy to plea or proceed to trial.
That plainly constitutes sufficient notice. As we explained when we rejected
the converse proposition that the Government must refile a Section 851(a)
information after the prosecuting attorney changes: “Key is that the
information is filed and served before the defendant moves to resolve the
merits of criminal indictment. Nothing in the statutory language supports the
notion that new information documents must be filed when the prosecuting
attorney changes [or, as we now hold, when the defense attorney changes].
Rather, the statute contemplates a single information to put the defendant on
notice of the government’s intent to seek an enhancement and the grounds for
it.” 22
          In addition, Rodriguez’s counsel’s statements at sentencing are not those
of a counsel who lacked “ample time” to develop a litigation strategy. For



          21   Arnold, 467 F.3d at 887 (internal quotation marks omitted).
          22   United States v. Valdez, 548 F. App’x 995, 1005 (5th Cir. 2013).
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example, Rodriguez’s counsel first objected to the enhancement because “the
PSR did not mention the enhancement” and later stated that he had “earlier
attempted to get the discovery brought in the underlying offenses” to
determine whether there was “factual connectivity” between the two
convictions. Furthermore, Rodriguez’s counsel acknowledged that “the
enhancement was filed before [he] came on board.” And at the second
sentencing hearing, after the district court rejected Rodriguez’s challenge to
the enhancement, Rodriguez’s counsel lodged a final objection, stating “we
were not provided proper notice of -- of the enhancements due to the
mischaracterization of the offense of conviction.” These statements indicate
that Rodriguez’s new counsel was aware of the enhancement and its
underlying basis.
      In light of the record before us, we find that the Government complied
with the notice requirements of Section 851(a).
                                              III.
      Rodriguez next argues that the district court erred by treating his prior
drug convictions as separate convictions for purposes of applying the
sentencing enhancement under 21 U.S.C. § 841(b)(1)(A). This Court reviews
the application of sentencing provisions de novo and facts supporting those
applications for clear error. 23
      Section 841(b)(1)(A) provides, in pertinent part, that “after two or more
prior convictions for a felony drug offense have become final, such person shall
be sentenced to a mandatory term of life imprisonment.” 24 In Barr, this Court
addressed the issue of “when, if ever, we should treat two separate convictions
as a ‘single act of criminality’ for purposes of [21] U.S.C. § 841(b)(1)(A)” and



      23   United States v. Green, 293 F.3d 886, 894 (5th Cir. 2002).
      24   21 U.S.C. § 841(b)(1)(A).
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“determined that separate convictions constitute one offense when the
violations occur simultaneously as opposed to sequentially.” 25 This Court has
“consistently treated two separate transactions, even when committed in quick
succession, as different criminal episodes.” 26
       On June 17, 2004, Rodriguez was arrested for possessing 39.8 kilograms
of marijuana in his vehicle while attempting to enter the United States at the
Port of Entry in Eagle Pass, Texas. While out on bond for that offense,
Rodriguez committed his second offense five months later. On November 30,
2005, he was arrested for offering $20,000 to a confidential source to transport
a load of marijuana to San Antonio and $5,000 to continue the transport to
Dallas. On that day, authorities seized 404.3 kilograms of marijuana from
Rodriguez. On January 30, 2007, the district court sentenced Rodriguez for the
two offenses, imposing 60 months imprisonment for the possession offense and
72 months for the conspiracy offense to run concurrently.
       Rodriguez claims that his two prior convictions were consolidated and
thus should be treated as one conviction for purposes of the enhancement. In
support of this assertion, Rodriguez proffers the following evidence of
consolidation: (1) The district court judge reassigned both cases to a visiting
judge; (2) The same magistrate judge presided over rearraignment for both
cases on the same day; (3) On August 30, 2006, the district court signed an
order resetting sentencing for both cases, consolidating the two cases into one
document; (4) The two cases shared the same PSR; and (5) Rodriguez was
sentenced on the same day for both cases based on the consolidated PSR.



       25United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997) (finding defendant’s sale of
crack cocaine on two successive days to the same buyer constituted separate offenses).
       26 United States v. Smith, 228 F. App’x 383, 390 (5th Cir. 2007) (holding that

defendant’s sales of crack cocaine on consecutive days to the same undercover agent
constituted separate predicate drug offenses) (citing United States v. Washington, 898 F.2d
439 (5th Cir. 1990)).
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                                      No. 16-51368
       Applying Barr, we find that Rodriguez’s two prior convictions do not
constitute a “single act of criminality” because Rodriguez committed these
offenses “sequentially, not simultaneously.” 27 Rodriguez points to Orr for the
proposition that this Court “may consider cases which have been consolidated
to count as one conviction for purposes of the sentencing enhancement.” 28 Orr,
however, rejected the defendant’s argument that receiving a sentence for two
prior convictions on the same day required this Court to treat those convictions
as one. 29 The remaining cases that Rodriguez relies on examine whether a
defendant’s prior convictions were consolidated within the meaning of Section
4A1.2 of the U.S. Sentencing Guidelines. 30 Rodriguez provides no authority,
and we find none, to support his argument that his prior convictions should be
consolidated for purposes of Section 841.
                                            IV.
       We affirm the district court’s sentencing of Defendant Luis Felipe
Rodriguez.




       27 130 F.3d at 712.
       28 United States v. Orr, 136 F. App’x 632, 641 (5th Cir. 2005).
       29 Id.
       30 See, e.g., United States v. Haynes, 532 F.3d 349, 353–55 (5th Cir. 2008) (remanding

defendant’s ineffective assistance of counsel claim for counsel’s failure to reasonably
investigate application of the career-offender enhancement when, among other things, the
offenses were not separated by an intervening arrest); United States v. Kates, 174 F.3d 580,
584 (5th Cir. 1999) (holding that defendant’s prior convictions were not consolidated under
the sentencing guidelines simply because the defendant received concurrent sentences);
United States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998) (finding that defendant’s prior
state convictions were de facto “consolidated” under the sentencing guidelines because the
charges “appeared in the same criminal information under the same docket number”).
                                             11
