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United States v. Torres-Magana

United States Court of Appeals, Fifth Circuit

September 10, 2019


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

          Before SMITH, DENNIS, and HAYNES, Circuit Judges.


         Jose Torres-Magana pleaded guilty of conspiracy to possess with intent to distribute five kilograms or more of cocaine. He appeals, contending that the district court clearly erred in enhancing his sentence under U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(15)(A) (U.S. Sentencing Comm'n 2016).[1] Finding no clear error, we affirm.


         Torres-Magana led a drug-trafficking organization that delivered cocaine across the country. He and his wife, Patricia Torres, met with a man in October of 2016 to arrange cocaine deliveries. That man was an undercover federal agent.

         Almost two months later, Torres-Magana called his stepson, Alfonso Govea, Jr. (hereinafter "Govea"), and asked Govea to meet with him and Mrs. Torres, Govea's mother. When they met, Mrs. Torres demanded that Govea meet with the agent. But Govea refused because "he knew it was something illegal" and wanted nothing to do with it. Displeased, Torres-Magana and Mrs. Torres argued with Govea.

         Just a few days later, Torres-Magana again tried to solicit Govea. He called Govea and told him that he had "an emergency" and needed to take Mrs. Torres to a cancer treatment appointment. He asked Govea to deliver a box of cocaine that he had left outside Govea's house. He implored Govea, stating that he had "never asked anything" from him and that he and Mrs. Torres would otherwise have delivered the box themselves. Again, Govea refused, driving to Torres-Magana's house and arguing further with the couple about their attempts to involve Govea in the illegal delivery. But at long last, the stepson agreed to deliver the box of cocaine.

         Though Govea was reluctant to participate in the drug delivery, he was involved in other ways with the drug organization. Indeed, he and Mrs. Torres co-owned businesses that laundered the drug proceeds.

         Torres-Magana was arrested and pleaded guilty of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 846 & 841(a)(1). Among other enhancements, the revised presentence investigation report ("PSR") recommended a two-level enhancement under § 2D1.1(b)(15)(A), because Torres-Magana had "used fear, impulse, friendship, affection, or some combination thereof" to involve Govea in the controlled-substance offense. The PSR pointed out that Torres-Magana had argued with Govea "on several occasions while trying to convince him to participate in one of [his] drug-trafficking ventures." What's more, Torres-Magana had pressured Govea to participate by telling him that Torres-Magana needed to take Mrs. Torres (Govea's mother) to a cancer treatment appointment instead of delivering the box of cocaine himself. And "there [wa]s no indication Govea[] received compensation for his participation, nor that he had knowledge of the scope and structure of the enterprise."

         Torres-Magana objected to an enhancement under § 2D1.1(b)(15)(A). He averred that the evidence did not suggest that Govea had only minimal knowledge of the drug enterprise's scope and structure-even if Govea concededly had "minimal involvement" with it. Instead, the evidence supported the inference that Govea "was, at best, willfully blind" to the details of the drug enterprise. Surely Govea would not have been entrusted to deliver a box of a large amount of cocaine alone and unsupervised if Govea lacked "substantial knowledge" of the underlying enterprise. Torres-Magana also vaguely referenced Govea's co-ownership of a business with Govea's mother, Mrs. Torres. And Torres-Magana asserted that an enhancement was unwarranted because "no one received remuneration from this particular shipment."

         The district court overruled Torres-Magana's objection and applied the enhancement. The court noted that it could rely on the PSR in deciding whether the enhancement applied and that Torres-Magana had refused to put on any evidence outside of what was already in the record.

         Based on an offense level of 35 and a criminal-history category of I, the guidelines recommended 168 to 210 months' imprisonment. After considering Torres-Magana's presentation, the guidelines, and the 18 U.S.C. § 3553(a) factors, the court sentenced Torres-Magana to 172 months.[2] Torres-Magana objected to "each of the defense objections that the [c]ourt overruled" and "to the overall sentence in light of [18 U.S.C. ยง] ...

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