                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               MAR 27 1998
                        UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                            PATRICK FISHER
                                                                                     Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 96-6364
                                                       (D.C. No. CR-96-30-T)
 JOSE HERNANDEZ,                                    (Western District of Oklahoma)

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Submitted on the Briefs:


Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.




      Jose Hernandez appeals his conviction of conspiracy to distribute

methamphetamine; possession with intent to distribute and distribution of

methamphetamine; and maintaining a place for the purpose of manufacturing



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
methamphetamine. Mr. Hernandez was sentenced to twenty-nine years in prison to be

followed by five years of supervised release. He raises three issues here. First, he

contends he was deprived of a fair trial when a co-defendant, whose counsel participated

in jury selection and exercised several peremptory challenges, pled guilty and testified for

the government. He next argues the trial court failed to make sufficient findings to justify

a four-level enhancement of his sentence based on his role in the offense. Finally,

because the guideline range of punishment exceeded twenty-four months, he posits the

court erred under 18 U.S.C. § 3553(c)(1) by not articulating the reason for his sentence.

The government concedes the third issue, agreeing remand is appropriate. We affirm on

the remaining issues.1

       Just before trial commenced, the district court permitted co-defendant William

Smith’s retained attorney, Ray Gene Smith, to withdraw and appointed substitute counsel.

Ray Gene Smith, however, had already participated in jury selection. William Smith then

changed his plea to guilty and agreed to testify for the government.

       Prior to opening statements, defendant Hernandez objected to the composition of

the entire jury panel. In a rather obscure objection, counsel claimed the withdrawal of

Mr. Ray Gene Smith following his participation in jury selection “may somehow, some




       The facts of this matter are set forth in the court’s opinion on the appeal of co-
       1

defendant Santiago Cruz Camacho. United States v. Camacho, ___ F.3d ___, No. 96-
6361, 1998 WL 88159, at *1 (10th Cir. Okla. Mar. 3, 1998). We need not repeat them
here.

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way, have affected the makeup of this jury.” Counsel did not elucidate. The court briefly

described why Mr. Smith was permitted to withdraw, pointing out the genesis of the act

was Mr. Smith’s uncertain qualification to practice because of confusion over his Texas

CLE credits. In any event, said the court, “there’s not a thing in the world that could

possibly affect this trial or taint this trial or prejudice either of these defendants.”

       On appeal, Mr. Hernandez complains he was placed in an untenable position. He

argues: “The selection of that jury was therefore tainted by Smith’s ulterior motive to

have that jury believe his testimony and ultimately gain favor for his own predicament.”

Nothing in the record supports this bit of hyperbole. Indeed, from counsel’s own

statement to the district court, counsel was “more or less making this objection on the

record so that there may be no future assertion -- assertions that we did not properly

represent our clients.”

       From this precautionary gesture, counsel has tailored his argument to a more

engaging fit in this court, claiming his client’s right to jury selection was adversely

affected because his interests and those of his co-defendant were diverse. The conflict of

interest he constructs is hypothetical because he cites no support for it in the record.

Nonetheless, he posits through a “contrivance” William Smith’s attorney helped select a

jury for a man who then testified for the government. That is, he explains, one with no

authority to practice law “meddled” with one who did. “The unauthorized practice of law




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cannot be condoned nor perceived as harmless conduct when it influences the defendant’s

jury in criminal litigation,” he urges.

       Notwithstanding this alleged contrivance, counsel did not move for a mistrial. He

did not complain co-defendant Smith used too many of his peremptory challenges or

knew of the defense’s jury selection strategy. He does not seem to argue the denial or

impairment of the use of a peremptory challenge is reversible error without a showing of

prejudice. Indeed, he quantifies no prejudice emanating from the conduct about which he

complains. Instead, his only contention is over an assumed conflict of interest arising

from an attorney’s participation in the selection process when that attorney was arguably

unqualified to practice law because he had not amassed enough CLE hours. We, like the

district court, find this argument sophistic.

       “The peremptory challenge is a right to exclude potentially prejudiced jurors, not

to select favorable ones, and in multiple defendant trials a co-defendant must use his

peremptory challenges in conjunction with the other defendants even if it means losing a

favorable juror or having to use a challenge in a way other than he would like.” United

States v. Philips, 874 F.2d 123, 131 (3d Cir. 1989). In that case, defendants in a RICO

prosecution complained a co-defendant’s participation in jury selection of the last three

alternates only to plead on the eve of trial was cause for a mistrial. The court held the

remaining defendants failed to show how their peremptory challenges were in any way




                                                -4-
impaired or how the presence of the co-defendant who later pled guilty altered the

composition of the jury.

       The Sixth Amendment requires an impartial jury, and the district court has the

responsibility to guarantee the jury is fair and impartial. United States v. Gillis, 942 F.2d

707, 709 (10th Cir. 1991). Because the voir dire procedures are committed to the court’s

discretion and counsel cannot articulate how the court here abused that discretion, we

reject his claim.

       Mr. Hernandez next contends the district court failed to make proper findings of

his leadership role in the offense to justify an enhancement under U.S.S.G. § 3B1.1(a).

Instead, he argues, the court made a legal conclusion from its observations of the record.

However, he insists, “It is uncontested that five or more people were participants in the

criminal activity involved in this case. What is contested is the lack of specific factual

findings from the evidence in this case to support the factors enumerated in [United

States v.] Lacey, [86 F.3d 956 (10th Cir. 1996)] to justify a leadership enhancement.”

Without that specificity, Mr. Hernandez complains this court must engage in speculation

and appellate fact-finding.

       At the conclusion of the sentencing hearing, the district court made specific

findings of the sentencing factors. In part, the court stated:

       Finally, with regard to the leadership role, that is an easy one. Mr.
       Hernandez was the top person in this conspiracy, he controlled others, he
       controlled the trafficking of the drugs, he was the supplier of Camacho, he
       was the head of this conspiratorial group, he was the primary source of the

                                             -5-
       drugs, he was the leader and organizer. That is consistent with the
       overwhelming evidence in the trial and in the hearings that we’ve had in
       connection with this case. Mr. Hernandez was, indeed, the leader, and
       qualifies in every way for the leadership role ....

In its written findings on sentencing, the court stated:

       The evidence presented at the sentencing hearing established that in excess
       of five individuals were involved including, Jeff Manning, Carie Bolen,
       Mauro Cruz Barragan, a/k/a Mario Salado, William Smith, Santiago Cruz
       Camacho, Nicky Jarnagin, Lillian Bean, Priscilla Gonzales, Ladita
       Meadors, Tracy Oxley, Todd Furra, and others. Additionally, the defendant
       controlled the activity of others, particularly Mauro Cruz Barragan, a/k/a
       Mario Salado, who he recruited. Hernandez was clearly the leader of this
       conspiracy. This was supported by the evidence presented at the sentencing
       hearing and at the jury trial.

Although these findings are not extensive, they meet the minimal test prescribed by

United States v. Wacker, 72 F.3d 1453, 1476 (10th Cir. 1995). The district court found

defendant participated in a conspiracy of more than five persons and that he controlled

Mario Salado. That is sufficient to justify the enhancement. United States v. Rodriquez,

112 F.3d 374, 377 (8th Cir. 1997); United States v. Camacho, ___ F.3d ___, No. 96-

6361, 1998 WL 88159, at *2-3 (10th Cir. Okla. Mar. 3, 1998).

       Finally, the government concedes the court failed to comply with 18 U.S.C.

§ 3553(c)(1). That section provides:

       The court, at the time of sentencing, shall state in open court the reasons for
       its imposition of the particular sentence, and, if the sentence --

       (1) is of the kind, and within the range, described in subsection (a)(4) and
       that range exceeds 24 months, the reason for imposing a sentence at a
       particular point within the range ....


                                             -6-
We have read this provision to permit limited appellate review of the substance of the

reasons provided by the district court, United States v. Elliott, 915 F.2d 1455, 1458 (10th

Cir. 1990), but the district court must provide a sufficient reason for the sentence

imposed. Id. We must remand for those findings.

       The judgment of the district court is AFFIRMED, but the case is REMANDED

for findings in accordance with this order and judgment.


                                           ENTERED FOR THE COURT



                                           John C. Porfilio
                                           Circuit Judge




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