* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41247

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RUDY GUTIERREZ, also known as Rudolpho Gutierrez

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:06-CR-380-4

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

A jury found Rudy Gutierrez guilty of one count of conspiracy to possess

with intent to distribute more than 1,000 kilograms of marijuana and one count

of conspiracy to launder money. The court sentenced Gutierrez within the

applicable guidelines ranges to 360 months of imprisonment for his drug

conspiracy conviction and to a concurrent term of 240 months of imprisonment

for his money laundering conspiracy conviction, as well as concurrent terms of

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-41247

2

supervised release of 10 and three years, respectively. The court deviated below

the guidelines range when it imposed a single fine of $3,000 for both counts.

Gutierrez contends thatthe evidence presented attrial was insufficient to

convict him on either conspiracy count. “[A]fter viewing the evidence in the light

most favorable to the prosecution,” we conclude that “any rational trier of fact

could have found the essential elements ofthe crime beyond a reasonable doubt”

and affirm accordingly. Jackson v. Virginia, 443 U.S. 307, 319 (1979). With

respect to the drug conspiracy, the trial evidence showing extensive and

coordinated shipments of illegal drugs through G Trucking proved the existence

of an agreement between two or more persons to violate the narcotics laws.

Testimony that Gutierrez participated in and even owned some ofthe shipments

established his knowledge of the agreement and his voluntary participation in

the conspiracy. See United States v. Gallardo-Trapero, 185 F.3d 307, 317 (5th

Cir. 1999). Several witnesses described specific shipments of marijuana that,

together, established that the conspiracy as a whole involved more than 1,000

kilograms of marijuana. See 18 U.S.C. §§ 841(b)(1)(A), 846; United States v.

Turner, 319 F.3d 716, 722-23 (5th Cir. 2003).

With respect to the money laundering conspiracy under 18 U.S.C.

§ 1956(a)(1), (h), evidence and testimony regarding the shipments of cash from

the sale of drugs, the use of the cash to purchase trucking equipment and to

build Gutierrez’s brother’s house, and the laundering ofthe drug money through

G Trucking’s accounts established that there was an agreement between two or

more persons to commit money laundering. See United States v. Fuchs, 467 F.3d

889, 906 (5th Cir. 2006). The testimony that Gutierrez coordinated shipments

of drugs and money with his brother and sister-in-law, that Gutierrez traded

cars, property, and drugs with his brother as paymentfor coordinated shipments

of drugs, and that Gutierrez personally collected drug money established that

Gutierrez joined the agreement knowing its purpose and with the intent to

further the illegal purpose. See id.
No. 07-41247

3

Without citing any law, Gutierrez contends that there was no physical

evidence to corroborate the testimony of his co-conspirators, but we have held

that “[t]he uncorroborated testimony of an accomplice or co-conspirator will

support a conviction, provided that this testimony is not incredible or otherwise

insubstantial on its face.” United States v. Singer, 970 F.2d 1414, 1419 (5th Cir.

1992) (citations omitted). Gutierrez also argues that the witnesses against him

were compromised by their desire to obtain reduced sentences, and he points to

inconsistencies between their testimony. However, “in the light most favorable

to the jury verdict,” United States v. Resio-Trejo, 45 F.3d 907, 910, 910-11 (5th

Cir. 1995), the evidence was sufficient.

Gutierrez contends that the testimony of Carlos Martinez was improperly

admitted because Martinez was represented by Amador Garcia, the same

attorney who initially represented Gutierrez for some 24 days when Gutierrez

was arraigned in this case. We review this evidentiary claim, which is distinct

from Gutierrez’s related claim that his Sixth Amendment rights were violated,

for plain error due to Gutierrez’s failure to object in the district court. See

United States v. Olano, 507 U.S. 725, 731-37 (1993). Martinez’s testimony

weighed against Gutierrez in that Martinez repeatedly stated that Gutierrez

was running drug shipments along with his brother and testified to specific drug

quantities. However, other evidence established the same facts, and there is no

reasonable probability that the jury would not have found Gutierrez guilty

without Martinez’s testimony. See UnitedStates v. Dominguez Benitez, 542 U.S.

74, 81 (2004). 

Gutierrez also challenges the procedural reasonableness of his sentence,

arguing thatthe district court erred when calculating his offense level under the

Guidelines. Gutierrez first contends that the district court erred when it

increased his base offense level by four levels under U.S.S.G. § 3B1.1(a) on the

basis that he was a leader or organizer in the drug and money laundering

conspiracies. Several witnesses testified at trial that Gutierrez had supervised
No. 07-41247

4

others, personally owned some of the drugs that were shipped, and personally

hired Gregory Osewalt to transport a load of drugs. Additional support for the

district court’s finding appears in the PSR, which reported that Gutierrez hired

others to transport drugs and money. Gutierrez did not offer any rebuttal

evidence to the PSR before the district court, and although he now complains

that he was not able to cross-examine the confidential sources ofthe information

in the PSR, he never sought to do so in the district court. See United States v.

Carbajal, 290 F.3d 277, 287 (5th Cir. 2002). The district court’s finding that

Gutierrez was a leader or organizer was “plausible in light of the record as a

whole” and therefore was not clear error. United States v. Cisneros-Gutierrez,

517 F.3d 751, 764 (5th Cir. 2008).

Gutierrez also contends that the drug quantity attributed to him by the

district court in calculating Gutierrez’s guidelines range of imprisonment was

erroneous. In adopting the PSR’s drug quantity over Gutierrez’s objection, the

district court held Gutierrez accountable for 2,600.18 kilograms of marijuana,

including drugs seized in 2004. Gutierrez did not present any evidence to rebut

the PSR in the district court. Gutierrez argues that he should not be held

accountable for drug quantities shipped in 2004, which he contends was before

he joined the conspiracy. See § 1B1.3, comment. (n.2) (“A defendant’s relevant

conduct does not include the conduct of members of a conspiracy prior to the

defendant joining the conspiracy, even ifthe defendant knows ofthat conduct.”).

However, while some testimony indicated that Gutierrez was not engaged in

drug trafficking at that time, Gutierrez’s sister-in-law testified that Gutierrez

was involved in the conspiracy at that time. Thus, given Gutierrez’s failure to

present evidence rebutting the PSR, see Carbajal, 290 F.3d at 287, and in light

of the record as a whole, the district court’s finding that the shipments of

marijuana in 2004 were attributable to Gutierrez was plausible and did not

constitute clear error. See Cisneros-Gutierrez, 517 F.3d at 764.
No. 07-41247

5

Gutierrez also contends that the drug weights attributed to him on the

basis of Carlos Martinez’s testimony should have been excluded because

Martinez was represented by Gutierrez’s former attorney. Because Gutierrez

did not object to the drug quantity on this basis in the district court, we review

this claim for plain error only. See United States v. Peltier, 505 F.3d 389, 391

(5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). Gutierrez cannot

demonstrate that the testimony of Carlos Martinez, whether tainted or not,

affected his substantial rights with respect to this finding of fact because

Gutierrez’s sister-in-law testified that the drugs at issue here were owned in

part by Gutierrez and in part by Gutierrez’s brother, and the district court could

plausibly have concluded in light ofthe record as a whole thatthis shipment was

in furtherance of a jointly undertaken criminal activity and was reasonably

foreseeable to Gutierrez. See § 1B1.3 comment. (n.2); Cisneros-Gutierrez, 517

F.3d at 764.

Gutierrez also complains that the PSR overstated the amount of money

actually attributable to him with respect to the money laundering conspiracy.

This claims is frivolous because the drug quantity involved in the underlying

offense from which the drugs were derived—notthe amount of money attributed

to Gutierrez—determined the offense level for the money laundering conspiracy

pursuant to U.S.S.G. § 2S1.1(a)(1).

Gutierrez argues that his Sixth Amendment right to the effective

assistance of counsel was violated. First, he contends that the attorney

appointed by the court to represent him during arraignment in this case,

Amador Garcia, violated Gutierrez’s Sixth Amendment right to the effective

assistance of counsel when, after Garcia was dismissed and new counsel

substituted, Garcia went on to represent a Government witness—Carlos

Martinez—who testified against Gutierrez attrial. Gutierrez also contends that

his trial counsel rendered ineffective assistance by failing to object to Martinez’s

testimony based on Garcia’s representation of Martinez. As a general rule, we
No. 07-41247

6

decline to review claims of ineffective assistance of counsel that are raised for

the firsttime on direct appeal. United States v. Miller, 406 F.3d 323, 335-36 (5th

Cir. 2005); see also Massaro v. United States, 538 U.S. 500, 503-04 (2003)

(stating that a 28 U.S.C. § 2255 motion is the preferred method for raising a

claim of ineffective assistance of counsel). We have undertaken to resolve claims

of inadequate representation on direct appeal only in cases where the record is

adequate to allow the court to consider the claim’s merits. United States v.

Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). Gutierrez’s is not such a case.

AFFIRMED.