IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 91-8218

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ALBERTO ROJAS-MARTINEZ and

OLAVO MICHEL, JR.,

Defendants-Appellants.

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No. 91-8298

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE CARRILLO-RUIZ, MARTIN CASAS-ACEVEDO,

EFRAIN GONZALEZ-TORRES, ROBERTO HERRERA,

MIGUEL HERRERA, and ALFREDO REYES-MARENTES,

Defendants-Appellants,

_________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________

(July 29, 1992)

Before WISDOM, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:
 

1 Jose Carrillo-Ruiz (Carrillo), Martin Casas-Acevedo (Casas), Efrain

Gonzalez-Torres (Gonzalez), Roberto Herrera (R. Herrera), Miguel Herrera (M.

Herrera), and Alfredo Reyes-Martinez (Reyes).

 

2 Alberto Rojas-Martinez (Rojas) and Olavo Michel, Jr. (Michel).

2

I.

The six defendants in No. 91-82981 and the two defendants in

No. 91-82182 were arrested after they were discovered illegally

crossing the United States-Mexico border. After placing the

defendants in custody, border patrol agents returned to the area

where they had seen the defendants and traced the defendants' path

to bags containing over 300 pounds of marihuana. The defendants in

No. 91-8298 confessed to border patrol agents that they had been

hired by the defendants in No. 91-8218 to transport the marihuana

across the border; the six then repeated their confessions to

special customs agents.

II.

The two groups were tried separately. All eight defendants

were convicted of (1) conspiracy to import more than 100 kilograms

of marihuana, in violation of 21 U.S.C. § 963; (2) importation of

more than 100 kilograms of marihuana, in violation of id. § 952(a);

(3) conspiracy to possess with intent to distribute more than 100

kilograms of marihuana, in violation of id. § 846; and

(4) possession with intent to distribute more than 100 kilograms of

marihuana, in violation of id. § 841(a)(1). Various defendants in

No. 91-8298 appeal the admission of their confessions, the failure

to sever Carrillo, and the constitutionality of sentencing. The
 

3 Casas, Gonzalez, R. Herrera, M. Herrera, and Reyes moved to suppress; 

Carrillo did not move to suppress and does not participate in this issue on

appeal.

3

defendants in No. 91-8218 challenge the sufficiency of the evidence

and the increase in their sentence for their role as organizers.

We affirm. 

III. No. 91-8298.

A. Voluntariness of Confessions

The defendants3 attempted to suppress the confessions made on

the night of their arrest, arguing four factors as demonstrating

that the confessions were involuntary and coerced: (1) the

physical conditions of their confinement; (2) the deception and

psychological coercion used by the questioners; (3) the failure to

advise them of their rights; and (4) the delay in presenting them

to a magistrate after detention. The government has the burden of

proving by a preponderance of the evidence that each defendant

voluntarily waived his rights and that the statements he made were

voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69 (1986). 

Voluntariness depends upon the totality of the circumstances

and must be evaluated on a case-by-case basis. Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973). Under Connelly, a confession

is voluntary in the absence of official overreaching, in the form

either of direct coercion or subtle forms of psychological

persuasion. United States v. Raymer, 876 F.2d 383, 386-87 (5th

Cir.), cert. denied, 493 U.S. 870 (1989). We treat the district

court's findings of fact as valid unless clearly erroneous but make
4

an independent review of the legal conclusion of voluntariness.

Raymer, id. at 386.

Defendants complain that they were wet, cold, and fatigued at

the time of the interrogation. They argue that they were misled by

the sympathetic plain-clothes officer and frightened by the

uniformed officer. These circumstances do not demonstrate official

coercion. The defendants were apprehended after 10:30 p.m. and

arrived at the border patrol station at approximately 11:30 p.m.

When a suspect is apprehended in a criminal act late at night, the

government is not required to wait until morning to perform police

processing and investigation. 

Expressions of sympathy by an officer are not coercive. See

Hawkins v. Lynaugh, 844 F.2d 1132, 1139 (5th Cir.) (distinguishing

between permissible expressions of sympathy and impermissible

promises of leniency), cert. denied, 488 U.S. 900 (1988). An

officer does not overreach by conducting an interview in full

uniform, including a service revolver, unless he threatens the

defendant. The district court found that the defendants were not

threatened, and we uphold this finding as not clearly erroneous. 

Defendants also allege that the officers implicitly promised

that they could return to Mexico if they confessed. The district

court found that no promises were made, and this conclusion is not

clearly erroneous in light of the evidence. After bringing them

in, the agents had each defendant sign an I-274 form, a voluntary

release for return to Mexico. The agents followed this procedure

for all undocumented aliens. 
5

Moreover, at that time, the government had found no drugs, and

it was likely that the defendants would be sent back to Mexico.

The officers made no statements to the defendants that could be

construed as a promise, and the fact that the defendants who had

already been questioned were taken to a location different from

that to which the ones who had not been questioned were taken does

not give rise to an inference that the officers were trying to make

the defendants believe they would be released if they confessed.

Finally, defendants allege that the length of time between

detention and arraignment indicates that their confessions were

involuntary. Because defendants first confessed within six hours

of the arrest, the delay in arraignment does not render the

confessions automatically invalid. See 18 U.S.C. § 3501(c). "Once

a defendant has been tried and convicted, delay in bringing him

before a magistrate is not reason to set aside the conviction

unless the defendant can show that he was prejudiced by the delay."

United States v. Bustamante-Saenz, 894 F.2d 114, 120 (5th Cir.

1990). Since the delay in this case occurred after the

confessions, it could not have affected the voluntariness thereof.

The overall circumstances of the interrogations were not

coercive. The defendants were held in a cell, and later in a

heated vehicle, together. The agents testified that the defendants

would have been allowed cigarettes or water during the
 

4 The agents asked one defendant whether he was cold and offered him a

cigarette and gave water to another who requested it. 

 

5 Miranda v. Arizona, 384 U.S. 436 (1966).

 

6 Although defendants assert that they were not advised of their rights,

the district court found that they were advised, understood their rights, and

voluntarily waived them:

In the instant case, each of the five Movants

signed two separate acknowledgements that he had been

informed of his constitutional rights and that he

waived them and agreed to speak with the agents. 

Furthermore, the Court finds from the evidence that

the statements made by each man were voluntary, and

that they were not induced by improper promises or

threats. Although one of the Movants, Miguel Herrera,

took the witness stand at the hearing on his motion to

suppress and testified to the contrary, it is the

Court's task to evaluate the testimony and to judge

their credibility. After hearing all the evidence,

the Court has found the facts adversely to the

Movants.

These findings are not clearly erroneous.

6

interrogation.4 Defendants were advised of their Miranda5 rights

in Spanish and voluntarily waived them.6 Each interrogation lasted

less than thirty-five minutes, and each defendant confessed within

that time. The fact that the agents ceased to question the

defendants in No. 91-8218 after they invoked their Miranda rights

supports the court's finding that there was no coercion. 

Defendants' challenge to admission of the second set of

confessions depends upon a finding that the first set was

involuntary. Since we conclude that the original confessions were

voluntary, we also affirm the admission of the second set of

confessions.

B. Severance.

Defendants appeal the court's denial of their motion to sever
 

7 Casas, Gonzalez, R. Herrera, and M. Herrera moved for severance; 

Reyes and Carrillo did not move to sever and do not participate in this issue

on appeal.

7

their trial from Carrillo's.7 Codefendants are entitled to

severance when they demonstrate defenses that are antagonistic.

United States v. Hernandez, 842 F.2d 82, 86 (5th Cir. 1988).

Defenses are antagonistic if they are mutually exclusive or

irreconcilable, that is, if the core of one defendant's defense is

contradicted by that of a codefendant. United States v. Rocha, 916

F.2d 219, 231 (5th Cir. 1990), cert. denied, 111 S. Ct. 2057

(1991). We review the denial of a motion to sever for abuse of

discretion. Id. at 227.

Carrillo's defense did not contradict that of the other

defendants. All the defendants argued that the evidence against

them was insufficient to convince the jury beyond a reasonable

doubt. During closing argument, Carrillo's lawyer argued that the

government had not proved beyond a reasonable doubt that Carrillo

had committed the crimes charged. He then argued, in the

alternative, that if the jury found that Carrillo had transported

the marihuana, he should be held responsible only for the amount he

carried individually. Carrillo did not testify, and the jury was

not instructed on lesser included offenses. 

A statement that Carrillo was not guilty and, if guilty at

all, not guilty of the crime as charged, does not exclude the other

defendants' claims that they were innocent. The court did not

abuse its discretion.
 

8 Like his codefendants, Carrillo was sentenced to 60 months'

imprisonment, four years' supervised release, and a special assessment of

$200. Only Carrillo challenges his sentence on appeal.

8

C. Sentencing.

Carrillo received the minimum mandatory sentence under 21

U.S.C. § 841(1)(B)(vii).8 He argues that he has been denied his

constitutional guarantees of due process and equal protection by

the court's inability to depart downward from his minimum mandatory

sentence. We find no constitutional violation. 

Carrillo argues that while Congress's stated goal is to punish

major traffickers more severely than minor ones, the interaction of

the sentencing guidelines and mandatory minimums produces the

opposite result. The Anti-Drug Abuse Act of 1986 requires a

minimum sentence of five years without parole for any conviction

involving 100 kilograms or more of marihuana. Carrillo points out

that the only basis for departure below the mandatory minimum is

substantial assistance to the government. See 18 U.S.C. § 3553(e).

Since couriers like Carrillo do not have access to information, he

argues that this system of departures provides kingpins, but not

couriers, with a means of avoiding the mandatory minimums.

Carrillo's due process and equal protection claims are without

merit. 

[A] person who has been . . . convicted is eligible for,

and the court may impose, whatever punishment is

authorized by statute for his offense, so long as that

penalty is not cruel and unusual, and so long as the

penalty is not based on an arbitrary distinction that

would violate the Due Process Clause of the Fifth

Amendment. In this context, an argument based on equal

protection essentially duplicates an argument based on

due process.
 

9 See Chapman, 111 S. Ct. 1927-28; United States v. Klein, 860 F.2d

1489, 1500-01 (9th Cir. 1988); United States v. Holmes, 838 F.2d 1175, 1177-

78 (11th Cir.), cert. denied, 486 U.S. 1058 (1988).

 

10 See United States v. Musser, 856 F.2d 1484, 1486-87 (11th Cir. 1988),

cert. denied, 489 U.S. 1022 (1989); United States v. Broxton, 926 F.2d 1180,

1183-84 (D.C. Cir. 1991) (per curiam). 

9

Chapman v. United States, 111 S. Ct. 1919, 1927 (1991) (citations

omitted); see also Nebbia v. New York, 291 U.S. 502, 537 (1934)

(due process not violated where statute bears a "reasonable

relation to a proper legislative purpose" and is "neither arbitrary

nor discriminatory").

The statutory scheme of mandatory minimum sentences obviously

does not discriminate on the basis of a suspect classification.

Imposition of mandatory minimum sentences for offenses involving

large quantities of illegal drugs bears a rational relationship to

the legitimate purpose of enforcing federal drug laws and is not

arbitrary.9 

Two circuits have rejected the contention that section 3553(e)

denies equal protection to minor participants in drug offenses.10

We agree that section 3553(e) is rationally related to the

legitimate purpose of obtaining valuable information from drug

criminals. It does not discriminate against a suspect class, nor

is it arbitrary. Congress has created mandatory minimum sentences

and downward departures to achieve different goals, and the means

it has chosen bear a rational relationship to those goals. We

therefore affirm Carrillo's sentence.
 

11 Defendants argue that Bell is not binding precedent because it was

decided by Unit B of the Fifth Circuit, en banc. Consistently, however, we

have treated Unit B cases as precedential. See, e.g., United States v. Shaid,

937 F.2d 228, 230-31 (5th Cir. 1991) (en banc) (citing United States v.

Adamson, 700 F.2d 953 (5th Cir. Unit B) (en banc), cert. denied, 464 U.S. 833

(1983)), cert. denied, 112 S. Ct. 978 (1992)); United States v. Hall, 845

F.2d 1281, 1283 (5th Cir.) (citing Bell), cert. denied, 488 U.S. 860 (1988). 

We now squarely hold that all Unit B cases are precedent in the Fifth Circuit.

10

IV. No. 91-8218.

A. Sufficiency of the Evidence.

Michel and Rojas challenge the sufficiency of the evidence.

We review a claim of insufficiency to determine whether a rational

trier of fact could have found each of the substantial elements

beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60,

80 (1942). We view all facts and credibility choices in the light

most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307,

319 (1979); United States v. Bell, 678 F.2d 547, 549 (5th Cir.

Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356

(1983).11 Although the evidence against the defendants is

circumstantial, a rational jury could have found them guilty beyond

a reasonable doubt.

Defendants were found guilty of possession of marihuana with

intent to distribute, importation of marihuana, and conspiracy to

commit these two offenses. Possession with intent to distribute

requires proof that the defendant had knowing possession of

marihuana with the intent to distribute it. E.g., United States v.

Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir. 1989). Importation

additionally requires proof that the defendants played a role in

bringing the marihuana from a foreign country. United States v.

Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988). 
 

12 Agent Holland testified that there was only one group of people in

the vicinity. There was very little foot traffic in this area, and

investigation revealed that there was only one set of sneaker tracks in the

area. The agents' tracks could be distinguished because they wore boots. 

Since the area was muddy, footprints were easily observed. 

11

In the instant case, after a sensor indicated an illegal

border crossing, border patrol agents began a search. A group of

eight or ten people was spotted, and they appeared to be carrying

something. Several pieces of evidence indicated that this was the

only group of people crossing the border near this location on that

night.12 Shortly after the agents saw the group, they began to run.

The agents pursued the defendants, who were apprehended. The

defendants had red marks on their upper bodies, as if they had been

carrying something. 

After observing the sneaker treads of defendants' shoes, the

agents searched the field in which the defendants were apprehended.

Tracing the sneaker prints, the agents discovered over 300 pounds

of marihuana in eleven bags, some of which had straps. An

additional bundle of matching shoulder straps was found the next

day. The agents also traced the tracks to the place where the

group originally was spotted. From this evidence, a rational jury

could have concluded that defendants knowingly possessed the

marihuana and carried it across the border. Defendants' arguments

to the contrary all contest the credibility or weight of the

evidence, which we construe in the light most favorable to the

verdict. 

Rojas specifically contends that the evidence was insufficient

for the jury to conclude that he realized he was carrying
12

marihuana. A reasonable jury could have concluded that a man

traveling on foot from Mexico, on a rainy night, carrying heavy

bags containing a uniquely odorous substance, traveling with other

persons also carrying smelly luggage, who abandoned his bag near

the bags of the other travelers and then attempted to evade border

patrol agents, knew that he was carrying marihuana. 

The defendants also argue that there was insufficient evidence

to convict them of conspiracy. The government must prove the

existence of a conspiracy and that the defendants knowingly and

voluntarily joined it. E.g., United States v. Garcia, 917 F.2d

1370, 1376 (5th Cir. 1990). The government need not prove the

existence of a formal agreement but must prove beyond a reasonable

doubt that "two or more persons in some way or manner, positively

or tacitly, came to a mutual understanding to try to accomplish a

common and unlawful plan." United States v. Williams-Hendricks,

805 F.2d 496, 502 (5th Cir. 1986) (citation omitted). The elements

of conspiracy may be proved by circumstantial evidence alone.

United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.

1988). 

A conspiratorial agreement may be inferred from concert of

action, id., which the evidence in this case demonstrates. The

agents found only one group of tracks, and the eight people fled at

the same time and were apprehended in close proximity to each

other. The jury could conclude they were traveling together. From

the evidence relating to the footprints and strap marks, the jury

also could conclude that all crossed the border carrying marihuana.
 

13 Defendants complain that the court did not make specific factfindings in support of its conclusion that defendants acted as "managers and

organizers . . . [and] supervisors." A court is not required to make

particularized findings under U.S.S.G. § 3B1.1, where the defendant has not

supplied specific rebuttal evidence. United States v. Rodriguez, 897 F.2d

1324, 1327-28 (5th Cir.), cert. denied, 111 S. Ct. 158 (1990).

13

The bags containing marihuana were found close together, indicating

that the eight men disposed of the bags together. A reasonable

jury could have concluded from these facts that the defendants

conspired to possess and import the marihuana.

B. Sentencing Enhancement.

At sentencing the district court decided that Rojas and Michel

should be punished for their leadership role in the conspiracy and

assigned a two-level upward adjustment under U.S.S.G. § 3B1.1(c).

The court based its finding of a leadership role13 on the

confessions of the defendants in No. 91-8298. These confessions

were inadmissible in the trial of Rojas and Michel under Bruton v.

United States, 391 U.S. 123 (1968). The defendants argue that the

confessions similarly were inadmissible at the sentencing hearing

or, alternatively, that they were not reliable evidence. 

Evidence that is inadmissible at trial may be considered in a

sentencing hearing. United States v. Singleton, 946 F.2d 23 (5th

Cir. 1991), cert. denied, 112 S. Ct. 1231 (1992). A court may rely

upon uncorroborated hearsay at sentencing, Rodriguez, 897 F.2d at

1328, but the court in this case did not need to rely upon a single

piece of uncorroborated hearsay. The confessions of the six

defendants in No. 91-9298 corroborated each other. Additionally,

Rojas and Michel rested separately from the other group of
14

defendants in the holding cell, dressed differently from the other

group, and responded differently to police questioning. The

court's reliance upon the confessions was not an abuse of

discretion, and its finding that Rojas and Michel were organizers

was not clearly erroneous in light of all the evidence presented at

the two trials. 

AFFIRMED.