     Case: 14-40046   Document: 00513304873        Page: 1   Date Filed: 12/11/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-40046                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         December 11, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

MELVIN ANTONIO BENITEZ, also known as Loco, also known as Raul
Molina, also known as Carlos Martinez; URIEL RAYO NAVARRO, also
known as Balter Noriega,

             Defendants - Appellants

__________________________


Cons /w 14-40921

UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

SANTOS FLORES CASAS, also known as Angel,

             Defendant - Appellant




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


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
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                                 No. 14-40046
E. GRADY JOLLY, Circuit Judge:
      Three defendants appeal their convictions for conspiracy to manufacture
and distribute controlled substances and related charges. These defendants
were part of a group of thirty-seven people who were indicted for a drug
conspiracy after a multi-year FBI investigation that recorded over 77,000
telephone calls. Other than the three defendants here (and codefendants who
do not appeal), all indicted coconspirators pled guilty, and many testified
against these defendants.      Defendants challenge an evidentiary ruling
concerning a voice identification expert, the sufficiency of the evidence against
them, and the propriety of their sentences. For the reasons that follow, we
affirm the convictions and affirm all of the sentences other than Casas’. With
respect to Casas’ sentence, we hold that the district court incorrectly applied a
mandatory minimum sentence and remand for resentencing.
                                       I.
      The FBI investigation began when a single confidential informant
purchased drugs from the defendant Benitez; over a period of months, the
investigation grew to include multiple confidential informants, wiretaps, pen
registers, and police surveillance. Many of the recorded conversations took
place in Spanish; FBI linguist Maria Haynes-Spanier listened to every call and
reviewed every transcript. In combination with testimony from cooperating
witnesses, this evidence showed a pattern of drug activity loosely organized
into a decentralized conspiracy. After listening to all the calls admitted into
evidence, Special Agent Michael Hillmant calculated that 9.7 kilograms of
cocaine changed hands and that 21.89 kilograms were discussed. The relevant
portion of the conspiracy was largely led by the Valdezes (a brother and sister
who pled guilty). The following facts are relevant to these three defendants.




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                                 No. 14-40046
1. Navarro
      Victor Manuel Castaneda testified that he frequently delivered
distribution quantities of cocaine from Ms. Valdez to Navarro. Navarro was
also recorded discussing drug sales with Ms. Valdez, including a discussion of
buying cocaine on credit for resale. Navarro also directed the activities of
lower-level drug distributers. Both Castaneda and Agent Haynes-Spanier
testified that they recognized Navarro’s voice on these phone calls.
      Officers executed a legal search of a house titled in the name of Navarro’s
mother.    Despite its location in a low-crime area, the house was heavily
secured. The house contained a gun, ammunition, $6,000 in cash, and a forged
identification card with Navarro’s picture and the name Balter Noriega. At
least initially, the house also contained Navarro himself—until he ran out the
back door. He was quickly apprehended and initially identified himself as
“Balter Noriega,” but this ruse was soon discovered.
      At the house, officers found a set of keys to Apartment 2078. Navarro
admitted that he owned the apartment, showed officers how to get there, and
consented to a search of the unit. When the officers arrived, a lower-level drug
distributor to whom Navarro delivered drugs was present. Also present were
1.97 grams of cocaine and 22.7 grams of crack (spread among four hiding places
and two cars) as well as paraphernalia related to the manufacture of drugs.
The police also recovered a cell phone that matched a number Navarro had
provided as his and a water bill addressed to “Balter Noriega.”
2. Casas
      As with Navarro, Castaneda testified that he delivered cocaine from Ms.
Valdez to Casas. He testified that he delivered between half an ounce and an
ounce every other day. At times, Casas would direct him to deliver the cocaine
to an associate who lived in the same apartment complex. Multiple other


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                                 No. 14-40046
coconspirators testified that they regularly purchased cocaine from Casas.
Casas was also recorded on several calls setting up drug transactions.
3. Benitez
      Benitez was recorded selling drugs, guns or both on numerous occasions
to two different confidential informants. Altogether, Benitez sold over 630
grams of cocaine and 6 ounces of heroin along with multiple firearms (both
handguns and rifles) to confidential informants. One confidential informant
testified that Benitez used “teenagers” to distribute drugs.
      Two drug transactions are particularly relevant. In the first transaction,
Benitez sold two ounces of cocaine and a .40 caliber handgun to a confidential
informant. In the second transaction, which did not involve a confidential
informant, Benitez was taped discussing the transaction over the phone. In
one call, Benitez agreed to deliver a half ounce of cocaine and then addressed
a child. Benitez told the child that they were “gonna go make some money”;
the child replied, “I don’t want to go”; and Benitez responded, “Yeah. Get in
the car. I don’t give a[n] [expletive].” In an unrelated call, the child gave her
age as eight. In another recorded call, Benitez complained that he had more
“wholesale” customers than “retail” customers, which limited his profits.
      All three defendants went to trial. Navarro requested that the court
appoint an expert in voice identification; this request was denied. All three
defendants were convicted of conspiring to manufacture or distribute
controlled substances in violation of 21 U.S.C. § 846.         Benitez was also
convicted of knowingly carrying a firearm during or in relation to a drug crime
in violation of 18 U.S.C. § 924(c)(1). In a special interrogatory, the jury found
that the conspiracy involved five or more kilograms of cocaine.
      At sentencing, the court imposed multiple enhancements. Relevant to
this appeal, it enhanced Navarro’s sentence by three levels because he was a
“manager or supervisor” and by two levels because he maintained a premises
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                                 No. 14-40046
for the purpose of manufacturing or distributing a controlled substance.
U.S.S.G. § 3B1.1; § 2D1.1(b)(12). The court enhanced Benitez’s sentence by
four levels because he was an “organizer or leader” of the conspiracy, U.S.S.G.
§ 3B1.1, and by two levels for involving minors in a drug crime. U.S.S.G.
§2D1.1(b)(14)(B) (2013).    Considering these enhancements, Benitez and
Navarro were sentenced to within-guidelines sentences. Casas was subject to
a mandatory life sentence because he was convicted of a crime involving five
or more kilograms of cocaine after having previously been convicted of two or
more previous drug felonies. 21 U.S.C § 841(b).
                                      II.
      We first address the argument that the court erred in refusing expert
evidence. After concluding that it did not, we face the question of whether that
evidence was sufficient to convict the defendants; we hold that it was. Finally,
we address the defendant’s challenges to their sentences.
      Navarro requested that the court appoint an expert in voice
identification to assist in his defense.        Navarro had the burden of
“demonstrat[ing] with specificity[] the reasons why such services are required.”
United States v. Boyd, 773 F.3d 637, 642 (5th Cir. 2014). The district court
denied this request. Where, as here, the defendant raised the issue below, the
court reviews these denials for abuse of discretion. Id.
      Navarro argued that a voice-identification expert was necessary to rebut
the testimony of the government’s expert witness, Haynes-Spanier. Haynes-
Spanier, however, did not testify about voice identification in an expert
capacity (her expertise was limited to translating Spanish). The Federal Rules
of Evidence explicitly authorize lay testimony about voice identification by
anyone who had “hear[d] the voice at any time under circumstances that
connect it with the alleged speaker.” Fed. R. Evid. 901(b)(5). Thus, Navarro
did not require expert testimony to rebut Haynes-Spanier’s lay testimony and
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                                 No. 14-40046
was not precluded from offering lay testimony. The district court did not abuse
its discretion by denying the motion to appoint an expert witness.
      Each defendant challenges the sufficiency of the evidence for his
conspiracy conviction. When challenges to the sufficiency of the evidence are
preserved, they are reviewed de novo. United States v. Hale, 685 F.3d 522, 543
(5th Cir. 2012). When unpreserved, they are reviewed for plain error. United
States v. Delgado, 672 F.3d 320, 328-32 (5th Cir. 2012) (en banc).
      Under either standard of review, we find no merit in these challenges.
To prove a drug conspiracy, the government must show: “(1) the existence of
an agreement between two or more persons to violate narcotics laws; (2) the
defendant’s knowledge of the agreement; and (3) his voluntary participation in
the conspiracy.” United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir.
2008). All three defendants were recorded discussing drug transactions on the
phone; these calls satisfied all four elements, showing an intent to purchase
distribution quantities of drugs and the practice of distributing those drugs.
Their voices were matched to the recording by Ms. Haynes-Spanier. This
evidence alone would support a jury verdict; in each case, however, the
recordings were corroborated by physical evidence, eyewitness testimony, or
cooperating witnesses.
      Benitez raises two additional challenges to the sufficiency of the
evidence; both lack merit. First, he argues that the evidence was insufficient
to establish that he personally distributed over five kilograms of cocaine. This
argument misunderstands the law. “[T]he Government’s burden was to prove
the existence of a conspiracy, [the defendant’s] involvement in it, and the
requisite drug quantity . . . involved in the conspiracy beyond a reasonable
doubt.”   United States v. Turner, 319 F.3d 716, 722–23 (5th Cir. 2003)
(emphasis added).


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                                 No. 14-40046
      Benitez also argues that his simultaneous sale of a handgun and drugs
does not support a conviction for “carr[ying] a firearm” “during and in relation
to any . . . drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The Supreme
Court has held that “[t]he fact that a gun is treated momentarily as an item of
commerce does not render it inert or deprive it of destructive capacity. Rather,
as experience demonstrates, it can be converted instantaneously from currency
to cannon.” Smith v. United States, 508 U.S. 223, 240 (1993) (holding that the
exchange of a gun for drugs satisfies the “in relation” prong). As the Eleventh
Circuit recently persuasively held:
      If indeed the purpose of the statute is to combat the dangerous
      combination of drugs and guns, as Muscarello [v. United States,
      524 U.S. 125, 139 (1998)] held, and [the defendant] combined the
      drugs and gun in a . . . single transaction, as the jury found, it
      would flout the purpose of the statute to hold anything but that
      the gun was carried “during and in relation” to the drug offense.
United States v. Timmons, 283 F.3d 1246, 1251–52 (11th Cir. 2002). We agree
with the Eleventh Circuit and hold that the simultaneous sale of a gun and
drugs qualifies as carrying a gun in relation to a drug crime.
      Finally, we turn to the defendants’ challenges to their sentences. When
challenges to a district court’s interpretation or applications of sentencing
guidelines are preserved, they are reviewed de novo; when unpreserved, they
are reviewed for plain error. United States v. Huerta, 182 F.3d 361, 364 (5th
Cir. 1999). Plain error is reviewed under a four-prong approach:
      First, there must be an error or defect. . . . Second, the legal error
      must be clear or obvious, rather than subject to reasonable dispute.
      Third, the error must have affected the appellant’s substantial
      rights, which in the ordinary case means he must demonstrate
      that it “affected the outcome of the district court proceedings.”
      Fourth and finally, if the above three prongs are satisfied, the court
      of appeals has the discretion to remedy the error—discretion which
      ought to be exercised only if the error “seriously affect[s] the
      fairness, integrity or public reputation of judicial proceedings.”
      Meeting all four prongs is difficult, “as it should be.”
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                                  No. 14-40046
Delgado, 672 F.3d at 329. Similarly, factual findings supporting sentencing
determinations are reviewed for clear error. United States v. Cabrera, 288 F.3d
163, 173 (5th Cir. 2002). The different defendants challenge their sentences
on several grounds.
      Benitez argues that his sentence should not have been enhanced for
involving minors in a drug crime. U.S.S.G. § 2D1.1(b)(14)(B). Because he did
not raise this issue before the district court, it is subject to plain error review.
One witness testified that Benitez used “teenagers” to distribute drugs.
Further, Benitez was recorded telling an eight-year-old girl to get in the car to
go to a drug deal. It is plausible that Benitez brought the girl with him “to
avoid detection of or apprehension [for] the particular crime.” United States v.
Alarcon, 261 F.3d 416, 423 (5th Cir. 2001). Given this evidence, the trial court
did not plainly err by applying the enhancement.
      Benitez also argues that he should not have received a four-level
enhancement for being an organizer or leader of the conspiracy. U.S.S.G.
§ 3B1.1. The district court heard specific testimony that Benitez directed
numerous others in carrying out the conspiracy. Indeed, Benitez admits that
he supervised others but asserts that “there was not enough evidence to
support an enhancement higher than a manager or supervisor role under
U.S.S.G. § 3B1.1(b) or (c).” Benitez Br. at 15. This unsupported assertion is
not enough to show that the district court’s factual finding of his role as a
leader was clearly erroneous.
      Similarly, Navarro challenges his two-level enhancement for being a
manager or supervisor. U.S.S.G. § 3B1.1(b). The district court heard evidence
that Navarro directed an associate to distribute drugs and allowed that
associate to live in Navarro’s apartment in exchange for delivering drugs as
Navarro directed.     The district court did not clearly err in its factual
determination that Navarro was a supervisor.
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                                  No. 14-40046
      Navarro also argues that he should not have received a two-level
enhancement for “maintain[ing] a premises for the purpose of manufacturing
or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). Because he
did not raise this argument at sentencing, it is reviewed for plain error.
Huerta, 182 F.3d at 364.
      Navarro first argues that, under the commentary to § 2D1.1, the district
court should have looked at two “factors” to determine whether Navarro
“maintained” the apartment: “(A) whether the defendant held a possessory
interest in (e.g., owned or rented) the premises and (B) the extent to which the
defendant controlled access to, or activities at, the premises.”        Although
Navarro admits that he rented the apartment, he asserts that no evidence
shows he controlled access to or activities at the apartment. We find this
argument unavailing. Navarro kept a key to the apartment, described it as his
to the officers, and received water bills there addressed to him (under an alias);
Cervantes used the apartment rent-free on the condition that he “would help
[Navarro] with his drug distribution.” The district judge did not clearly err in
finding that Navarro controlled activities at the apartment.
      Navarro also cites the sentencing guidelines commentary in support of a
second argument:
      Manufacturing or distributing a controlled substance need not be
      the sole purpose for which the premises was maintained, but must
      be one of the defendant’s primary or principal uses for the
      premises, rather than one of the defendant's incidental or
      collateral uses for the premises.
U.S.S.G. § 2D1.1. Navarro argues that the evidence does not show that his
“primary purpose” for the premises was drug manufacture. The presentencing
report indicated, however, that Navarro did intend for the apartment to be
used primarily to sell drugs. Thus, Navarro bears the burden to rebut that
evidence by showing that it was “materially untrue, inaccurate or unreliable.”

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                                 No. 14-40046
United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). Navarro received
drug deliveries at the apartment, and the search of the apartment revealed an
air-breathing mask, a cutting agent, and a metal strainer (in addition to the
drugs themselves). Based on this evidence, the conclusion that Navarro used
the apartment “primarily” to distribute drugs was not clearly erroneous.
      Finally, all three defendants challenge their sentences in the light of this
court’s recent opinion in United States v. Haines, 803 F.3d 713 (5th Cir. 2015).
In Haines, we held that “for purposes of statutory minimums at sentencing[]
the relevant quantity is the quantity attributable to the individual defendant,”
and this individual quantity must be found by the jury. Id. at 742. Because
Haines was decided after these defendants were sentenced, the judge
determined the drug quantities attributable to each defendant, rather than
submitting that question to the jury. This mistake satisfies the first two
prongs of the plain error analysis, even though Haines was decided after the
sentencing. Henderson v. United States, 133 S. Ct. 1121 (2013).
      The third prong—whether the error affected the defendants’ substantial
rights—is not satisfied for Navarro and Benitez. Both were sentenced to terms
of imprisonment well above the mandatory minimum; no evidence suggests
that the court considered the mandatory minimum in determining their
sentences. Thus, their rights were unaffected.
      Casas, however, presents a different case. The district judge calculated
that Casas’ guideline range was 292–365 months. The court did not indicate
that it viewed that range as inappropriate or that it planned to exercise its
discretion to sentence Casas outside that range. The other defendants were
sentenced around the middle of their guideline ranges. The court, however,
erroneously viewed the statutory minimum sentence to be life, and sentenced
Casas accordingly. Thus, the mistaken belief about the mandatory minimum
likely “affected the outcome of the district court proceedings.” Delgado, 672
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                                  No. 14-40046
F.3d at 329. This error significantly increases Casas’ term of imprisonment
and thus risks “seriously affect[ing] the fairness, integrity or public reputation
of judicial proceedings.” Id. We therefore exercise our discretion to vacate
Casas’ sentence and remand for resentencing.
                                                   VACATED and REMANDED
                                                    in part; AFFIRMED in part.




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