     Case: 11-50477   Document: 00511895559   Page: 1   Date Filed: 06/21/2012




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

                                                                  FILED
                                                                June 21, 2012
                                  No. 11-50477
                                                                Lyle W. Cayce
                                                                     Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee
v.

JOSE MARQUEZ,

                                           Defendant-Appellant.


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



Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
        Jose Marquez pleaded guilty to a two-count indictment charging him with
participation in drug and money laundering conspiracies. After conducting a
hearing, the district court sentenced Marquez to life in prison on count one and
to 240 months on count two. In imposing its sentence, the district court applied
firearm and leadership enhancements. Additionally, a subsequently entered
written judgment of conviction ordered Marquez to forfeit $2,000,000. On
appeal, Marquez challenges the sentencing enhancements and the forfeiture
order. For the following reasons, we affirm the district court’s judgment.
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                                   No. 11-50477

                                        I.
                                       A.
      On October 25, 2007, the Dallas Police Department was notified that Jose
Marquez had been kidnapped from a local bakery he owned with his wife, Alma
Rosa Marquez, and was being held captive for a $1,000,000 ransom. The FBI
was notified of the kidnapping and began an investigation. The following day,
the FBI executed a search warrant at a Duncanville, Texas, residence believed
to be owned or rented by Marquez. While at this residence, agents discovered
evidence of Marquez’s kidnapping, along with an operational methamphetamine
laboratory in a detached garage.        Agents then seized the evidence and
dismantled the lab. Three associates of Marquez were eventually convicted of
crimes related to the kidnapping.
      During their investigation, agents learned that beginning as early as 2005
and   continuing    into   2010,    Marquez       obtained     large   amounts        of
methamphetamine and cocaine from various suppliers, including sources in
Mexico, and distributed the narcotics in Texas, Georgia, and Illinois. This
investigation revealed that Marquez’s son, Blas Marquez, assisted in the
distribution of the narcotics and the collection of the money while Marquez’s wife
assisted in the laundering of the drug proceeds.         During the time of the
conspiracy, Marquez distributed in excess of 750 kilograms of cocaine, 556
pounds of methamphetamine, and laundered more than $24,064,000 in drug
proceeds.
      In the course of investigating Marquez’s drug trafficking, case agents
spoke with a number of cooperating individuals. Several of their statements to
case agents warrant brief mention.
      One cooperating individual informed case agents that Marquez had
directed him to dismantle car batteries containing methamphetamine, taught
him how to turn powdered methamphetamine into a rock form known as “ice,”

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                                 No. 11-50477

and told him where to deliver drugs and collect money. Another cooperator
stated that Marquez asked him to find buyers for the methamphetamine and
cocaine Marquez was distributing. According to this individual, Marquez also
recruited him for a job collecting money. A third cooperating individual stated
that he made drug deliveries for Marquez, collected money from the drug sales,
and delivered the funds to Marquez. Finally, a fourth person who cooperated
with agents remarked that Marquez had him retrieve money in Atlanta and
directed him to deliver it to Marquez’s wife in Texas.
                                      B.
      In October 2010, Marquez was charged with conspiracy to distribute at
least 500 grams of methamphetamine and conspiracy to distribute at least five
kilograms of cocaine (count one) and conspiracy to commit money laundering
(count two). The indictment also contained notice of the government’s forfeiture
demand and request for a $2,000,000 money judgment that, according to the
government, represented the proceeds of Marquez’s criminal activity.
      On March 17, 2011, Marquez pleaded guilty to both substantive counts of
his indictment. At his rearraignment, the district court explained the nature of
the charges against Marquez, the possible punishments related to the charges,
and the rights he was waiving, but did not mention the government’s forfeiture
demand. The sole reference to forfeiture made during the rearraignment was
made by the prosecutor who, after reading the charges brought against Marquez,
mentioned that there was “also a forfeiture count that has been summarized at
the back of the indictment.” Notably, the record does not indicate that the
district court made a presentencing forfeiture determination, nor does it show
that a preliminary order of forfeiture was entered.
      Prior to Marquez’s sentencing hearing, the probation office prepared a
Presentence Investigation Report that, among other things, recommended that
Marquez receive a four-level upward adjustment for being an organizer or

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                                  No. 11-50477

leader. The government objected to the PSR because it did not include an
upward enhancement for the possession of a firearm in connection with the
underlying drug offense. Marquez filed a written objection to the application of
both enhancements.
      Along with addressing potential sentencing adjustments, the PSR also
mentioned forfeiture on two occasions. First, the PSR referenced the notice of
forfeiture contained in the indictment, which, as stated above, requested a
$2,000,000 money judgment. Second, it included two paragraphs setting forth
the statutory basis for forfeiture in Marquez’s case.
                                        C.
      On May 16, 2011, the government filed a “motion for entry of a money
judgment of forfeiture.” In its motion, the government contended that as part
of their guilty pleas, Marquez and his coconspirators agreed to voluntarily forfeit
$2,000,000.    The government also asserted that it had “proven, by a
preponderance of the evidence,” based on Marquez’s and his coconspirator’s
guilty pleas and factual bases, that the $2,000,000 represented the amount of
proceeds derived from the underlying criminal violations. The government
requested that, at the time of sentencing, the money judgment be included in the
judgments of Marquez and his coconspirators. Marquez did not file a response
or object to the government’s motion.
      Marquez’s sentencing hearing was held two days later. Before hearing
from the government’s witnesses, the district court asked Marquez if there were
any matters related to the PSR that he needed to present. Aside from referring
to his written objection to the application of the firearm and leadership
enhancements, Marquez did not object to the PSR.




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                                  No. 11-50477

                                          1.
      To support the application of the firearm and leadership enhancements,
the government presented the testimony of three case agents. The testimony of
two of these agents is relevant for the issues raised on appeal.
      Marcella St. John, a detective with the Dallas Police Department, was the
government’s first witness. In his testimony, he stated that, in October 2007, he
became involved in the drug investigation relating to Marquez. As part of the
investigation, he stated that he spoke with confidential informants regarding
“Marquez and his possession of a firearm.” At the hearing, St. John testified
that “a worker for Mr. Marquez stated that it was common knowledge that Mr.
Marquez was strapped, meaning he carried a firearm.” St. John related that he
was also told that, after the kidnapping incident, Marquez always carried a
firearm because he feared for his life.
      Additionally, St. John testified that another cooperator told him that, after
the kidnapping, Marquez was always armed. The cooperator informed him that
Marquez carried a semiautomatic handgun “in his waistband or in his pouch.”
St. John also stated that no firearms were found during a search of Marquez’s
home. This search did, however, reveal magazines for a Glock semiautomatic
handgun and a bulletproof vest.
      Along with his testimony regarding Marquez’s alleged use of firearms, St.
John also provided testimony relevant to the leadership enhancement.
According to St. John, Marquez “was the head of an organization that
distributed narcotics all over the United States including five different states.”
St. John testified that, based on his interviews with various individuals involved
in the drug organization, Marquez was the leader of a particular cell. He also
stated that Marquez was in charge of “making sure that drugs got to areas like
Atlanta and Chicago and Virginia.” St. John also related that he had learned
that Marquez directed six other individuals in the drug organization.

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                                 No. 11-50477

      On cross-examination, St. John stated that Marquez’s role in the drug
organization was ‘to distribute the narcotics to people underneath him and to
return the money to the source of [the drug] supply in Mexico.” When asked by
defense counsel if Marquez was “just a normal participant in this cell,” St. John
responded with the following: “No sir. He wasn’t just a normal participant. He
was the leader of this cell.” St. John also noted that he had evidence, including
wiretaps and interviews, showing that Marquez exercised leadership over the
cell. When asked whether Marquez received a larger percentage of the drug
proceeds, St. John could not provide a definitive answer. St. John did, however,
know that Marquez profited from his drug activities.
      After St. John finished his testimony, the government called Alex Zurfas,
a DEA task force officer who was also involved in the investigation. Like St.
John, Zurfas was used by the government to support the application of both
enhancements. As relevant to the firearm enhancement, Zurfas testified that,
through wiretaps, he learned that Marquez was “trying to purchase a .380 pistol
and what sounded like an AR-15 assault rifle.” Because he did not intercept any
further conversations about these weapons, Zurfas surmised that Marquez must
have successfully purchased the weapons. More specifically, Zurfas testified
that “[i]t appeared they had set a time to meet later on in that evening and it
appeared that the transaction actually happened.” Zurfas further stated that
“[m]any of the cooperators [had said that] Marquez would carry a weapon during
deals, during transactions, [and] that it was not uncommon for him to have a
gun with him while he was making contact with a customer.”
      As germane to the leadership enhancement, Zurfas stated that wiretaps
revealed that Marquez “was in direct contact with the [drug] source in Mexico.”
He also testified that Marquez “gave directions to people in the United States on
how to carry out their task of distributing drugs.” In fulfilling his role in the
conspiracy, Zurfas stated that Marquez would not stay “in one particular area,”

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                                   No. 11-50477

and that Marquez “would travel between Virginia, Florida, Atlanta, Texas and
Mexico.” Zurfas testified that “in those different areas,” Marquez “would have
people that maintained stash houses or locations to facilitate the importation as
well as the sale of the controlled substances and the return of bulk currency.”
According to Zurfas, Marquez received all the money from the drug sales. If
Marquez was not available to receive the money, Zurfas testified that Marquez
instructed his workers to deliver the money to his wife. Zurfas stated that, in
his estimation, Marquez was directing six or seven other participants in the
conspiracy.
      Relatedly, Zurfas testified that he intercepted a conversation between
Marquez and Blas during which Marquez asked Blas “if he was ready to take the
helm of the ship, meaning the distribution network that he’d established in
Dallas.” According to Zurfas, Blas responded in the affirmative. Zurfas further
testified that Blas confirmed that “he was being groomed to take over as the
leader of this cell.”
      On cross-examination, Zurfas was asked whether Marquez participated
“in all the same activities” as the other members of the cell. In response, Zurfas
stated that “Marquez had the luxury of controlling the price for which the dope
was sold,” which was something that “nobody else in the organization could do.”
He explained that the “leader can control the price that [the drugs were] sold
for.” When asked whether Marquez “profited more than any other participant,”
Zurfas stated that because Marquez controlled “the price that the product was
sold for,” he “profited more than anybody else did in the organization.” Marquez
did not present any evidence after the government concluded its presentation.
                                        2.
      Based on the information before it, the district court concluded that
although the “ultimate supplier was obviously someone in Mexico,” the evidence
showed that Marquez “was an organizer or leader of the group or cell of which

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                                  No. 11-50477

he was a member.” The court also found that the evidence showed that, on at
least one occasion, Marquez possessed a handgun in the furtherance of a drug
trafficking crime. With the application of the two-level firearm enhancement,
Marquez’s guideline range of imprisonment on count one became life in prison.
      Before the district court imposed a sentence, the government reminded the
court “that the forfeiture provision [was] part of the indictment to which
[Marquez] pled guilty as [was] the money judgment.” Immediately after this
reminder, the district court asked Marquez if he knew “of any legal reason why
sentence should not be imposed.” Marquez responded in the negative.
      After this response, the district court sentenced Marquez to life in prison
on count one, to run concurrently with a 240-month sentence on count two. He
was ordered to serve a total of five years of supervised release and to pay a total
of $5,000 in fines. At sentencing, the district court did not orally pronounce
forfeiture as part of Marquez’s sentence. Marquez did not object to the district
court’s omission.
      Marquez filed a notice of appeal on May 23, 2011. Two days later, the
district court signed Marquez’s criminal judgment that ordered Marquez to
forfeit $2,000,000. On June 7, 2011, the district court belatedly granted the
government’s presentencing motion and ordered that a $2,000,000 money
judgment be included in the criminal judgments of Marquez and his
coconspirators.
                                        II.
      On appeal, Marquez challenges the application of the firearm and
leadership enhancements. In addition, he contends that the $2,000,000 money
judgment should be vacated because it was imposed in a procedurally improper
manner. We consider each set of issues in turn.




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                                  No. 11-50477

                                        A.
                                        1.
      The Sentencing Guidelines provide for a “two-level increase in the offense
level for a drug trafficking offense ‘[i]f a dangerous weapon (including a firearm)
was possessed.’” United States v. Jacquinot, 258 F.3d 423, 430 (5th Cir. 2001).
For this enhancement to apply, the government must prove, by a preponderance
of the evidence, that the defendant possessed the weapon. Id. There are two
approaches the government can take in proving the applicability of this
enhancement. “First, the government can prove that the defendant personally
possessed the weapon by showing that a temporal and spatial relation existed
between the weapon, the drug trafficking activity, and the defendant.” United
States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991). Second, “when another
individual involved in the commission of an offense possessed the weapon, the
government must show that the defendant could have reasonably foreseen that
possession.” Id.
       A district court’s decision to apply this enhancement “is essentially a
factual determination reviewable under the clearly erroneous standard.” United
States v. Rodriguez, 62 F.3d 723, 724 (5th Cir. 1995). A finding is “clearly
erroneous if, on the entire evidence, we are left with a ‘definite and firm
conviction’ that a mistake has been committed.” United States v. Brown, 650
F.3d 581, 589 (5th Cir. 2011) (citation omitted). Because the district court
considered this enhancement under the first approach, we limit our analysis to
determining whether the district court clearly erred in concluding that Marquez
personally possessed a firearm during the drug conspiracy.
      Generally, under the first approach, “the government must provide
evidence that the weapon was found in the same location where drugs or drug
paraphernalia are stored or where part of the transaction occurred.” Hooten, 942
F.2d at 882. The government’s burden under this first approach can also be

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                                   No. 11-50477

satisfied if it can establish, by a preponderance of the evidence, that the
“defendant possessed a firearm during conduct associated with the offense of
conviction.” United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).
      Here, the district court heard testimony from St. John indicating that it
was common knowledge that Marquez carried a firearm. In addition, the district
court was presented with testimony from Zurfas suggesting that Marquez would
carry a weapon during transactions and that it was not uncommon for him to
have a gun while he was making contact with a customer. This testimony from
St. John and Zurfas, combined with the discovery of Glock magazines and a
bulletproof vest at Marquez’s residence, provide support for the application of a
firearm enhancement. Given this evidence, we are not left with a definite and
firm conviction that the district court erred. As such, the district court’s decision
to apply this sentencing enhancement is not clearly erroneous.
                                         2.
      A defendant’s offense level should be increased four levels “[i]f the
defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S. SENTENCING GUIDELINES
MANUAL § 3B1.1(a). “In determining whether a defendant is a leader, a court
should consider the following factors: ‘the exercise of decision making authority,
the nature of participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the crime, the
degree of participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority exercised
over others.”’ United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001) (quoting
U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. n.4). The district court’s
determination that the role Marquez played was that of a leader or organizer of
the conspiracy is a finding of fact that we review for clear error. United States
v. Curtis, 635 F.3d 704, 720 (5th Cir. 2011).

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                                    No. 11-50477

      In this case, the district court’s decision to apply this enhancement is
firmly supported by the testimony presented at sentencing. As recounted above,
St. John testified that Marquez was the leader of a drug distribution cell.
Additionally, he also stated that Marquez directed six other individuals. In
further support of this enhancement, Zurfas testified that he intercepted a
conversation between Marquez and Blas during which Marquez asked Blas if he
was ready to take the helm of the distribution network that Marquez had
established. Like St. John, Zurfas also stated that Marquez directed six to seven
other individuals. This testimony, combined with the information contained in
Marquez’s PSR, establishes the plausibility of the district court’s decision to
apply this enhancement. Because it is plausible in light of the record as a whole,
the district court’s decision is not clearly erroneous. See United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citation omitted) (“There
is no clear error if the district court’s finding is plausible in light of the record as
a whole.”).
                                          B.
      As stated earlier, Marquez is also challenging the $2,000,000 money
judgment entered against him. According to Marquez, the money judgment
order was improperly issued because the district court failed to comply with the
procedural requirements set forth in Federal Rule of Criminal Procedure 32.2.
      Rule 32.2 sets forth three general preliminary steps that must be followed
in criminal forfeiture proceedings. First, it provides that a “court must not enter
a judgment of forfeiture in a criminal proceeding unless the indictment or
information contains notice to the defendant that the government will seek
forfeiture of property as part of any sentence in accordance with the applicable
statute.” Fed. R. Crim. P. 32.2(a). In providing this notice, the indictment need
not “specify the amount of any forfeiture money judgment that the government
seeks.” Id. Second, as relevant here, Rule 32.2 states that as soon as practical

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                                  No. 11-50477

after a guilty plea is accepted, “on any count in an indictment or information
regarding which criminal forfeiture is sought, the court must determine what
property is subject to forfeiture under the applicable statute.” Fed. R. Crim. P.
32.2(b)(1)(A). This determination “may be based on evidence already in the
record, including any written plea agreement, and on any additional evidence or
information submitted by the parties and accepted by the court as relevant and
reliable.” Fed. R. Crim. P. 32.2(b)(1)(B). If the government is seeking a personal
money judgment, “the court must determine the amount of money that the
defendant will be ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A). Third, “[i]f the
court finds that property is subject to forfeiture, it must promptly enter a
preliminary order of forfeiture setting forth the amount of any money judgment.”
Fed. R. Crim. P. 32.2(b)(2)(A). “Unless doing so is impractical, the court must
enter the preliminary order sufficiently in advance of sentencing to allow the
parties to suggest revisions or modifications before the order becomes final.”
Fed. R. Crim. P. 32.2(b)(2)(B).
      A preliminary order becomes final as to the defendant at sentencing or “at
any time before sentencing if the defendant consents.”          Fed. R. Crim. P.
32.2(b)(4)(A). When orally announcing the sentence, the court must include the
forfeiture “or must otherwise ensure that the defendant knows of the forfeiture
at sentencing.” Fed. R. Crim. P. 32.2(b)(4)(B). “The court must also include the
forfeiture order, directly or by reference, in the judgment, but the court’s failure
to do so may be corrected at any time under Rule 36.” Id.
      These procedures are not empty formalities. Rather, they serve a vital
function in ensuring that a defendant has notice of a criminal forfeiture and an
opportunity to challenge any forfeiture sought by the government. In addition,
these procedures also ensure that the statutory requirements for criminal
forfeiture have been satisfied. Given their importance, it is unsurprising that
these procedures are mandatory.

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                                        No. 11-50477

       Here, the district court did not abide by Rule 32.2’s requirements. The
record before us does not indicate that the district court made a forfeiture
determination as soon as practicable after Marquez’s guilty plea was accepted.
Nor does it show the entry of a preliminary order of forfeiture setting forth the
amount of the money judgment. Despite being on notice of the forfeiture and
having the opportunity to object, Marquez did not object to the district court’s
failure to adhere to Rule 32.2’s requirements.1 Our review of this issue is
therefore limited to plain error.
       On plain error review, Marquez “bears the burden of proving (1) error, (2)
that is plain, and (3) that affects his substantial rights.” United States v. Mason,
668 F.3d 203, 208 (5th Cir. 2012) (citations omitted). “If [he] satisfies the first
three prongs of the plain error analysis, we proceed to the fourth prong, which
affords us ‘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.’” Id. (quoting Puckett v. United States, 556
U.S. 129, 135 (2009)).
       Marquez has satisfied his burden with respect to the first two prongs of
the plain error analysis. Given the clarity of Rule 32.2’s general instructions,
the aforementioned deficiencies in the district court’s handling of the forfeiture
are plainly erroneous. Despite this conclusion, Marquez is not entitled to relief.
Under the third prong of the plain error analysis, Marquez has the burden of
showing that these procedural defects affected his substantial rights. “As a
general rule, an error affects a defendant’s substantial rights only if the error

       1
         Forfeiture was mentioned in the indictment and at rearraignment. In addition,
forfeiture was raised in the government’s presentencing forfeiture motion and in Marquez’s
PSR. Finally, this issue was also raised during sentencing. Despite these repeated reminders
of the government’s request for a forfeiture, Marquez did not invoke his right to challenge the
forfeiture. See Fed. R. Crim. P. 32.2(b)(1)(B) (“If the forfeiture is contested, on either party’s
request the court must conduct a hearing after the verdict or finding of guilty.”). Nor did he
lodge any objection to the forfeiture.

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was prejudicial.” United States v. Gonzalez-Rodriguez, 621 F.3d 354, 364 (5th
Cir. 2010) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “Error is
prejudicial if there is a reasonable probability that the result of the proceedings
would have been different but for the error.” Id. (citation omitted). “The
probability of a different result must be sufficient to undermine confidence in the
outcome of the proceedings.” Id. (citation omitted).
      Marquez has not satisfied his burden of demonstrating that the district
court’s failure to abide by Rule 32.2 affected his substantial rights. Put simply,
he has failed to show that there is a reasonable probability the result of his
proceedings would have been any different had the district court followed the
appropriate procedures. Conceivably, Marquez could have satisfied his burden
by showing that, had the district court complied with Rule 32.2, there was a
reasonable probability that any forfeiture imposed would have been less than
$2,000,000. But rather than attempting to satisfy this burden, Marquez simply
focuses on the district court’s errors independent of any prejudice they may have
caused. His failure to satisfy this burden prevents him from obtaining relief on
appeal. Because he has not demonstrated that his substantial rights were
affected by the district court’s errors, Marquez is not entitled to relief.
                                        III.
      For these reasons, we AFFIRM the district court’s judgment.




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