1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-3272

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

 v. * District Court for the

* Eastern District of Missouri.

Horacio Cruz-Zuniga, *

* 

Appellant. *

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Submitted: April 15, 2009

Filed: July 1, 2009

___________

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.

___________

RILEY, Circuit Judge.

A jury convicted Horacio Cruz-Zuniga (Cruz-Zuniga) of one count of conspiracy

to distribute 500 grams or more of a mixture or substance containing

methamphetamine. The district court1

 sentenced Cruz-Zuniga to 480 months

imprisonment and a lifetime term of supervised release. Cruz-Zuniga appeals, arguing

the district court erred by (1) refusing to give Cruz-Zuniga’s proposed jury instruction

regarding co-defendants’ testimony; (2) giving the Eighth Circuit’s model instruction
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on reasonable doubt with the “mere possibility of innocence” language; (3) sentencing

Cruz-Zuniga based on an amount of drugs that was not charged in the indictment or

found beyond a reasonable doubt by the jury; (4) refusing to grant a downward

sentencing variance equivalent to a two-level reduction for acceptance of

responsibility; and (5) failing to consider all the factors in 18 U.S.C. § 3553(a) and

adequately explain the court’s reasoning, improperly comparing Cruz-Zuniga to a

defendant in a previous case, and imposing an unreasonable sentence. We affirm.

I. BACKGROUND

A law enforcement investigation led to Cruz-Zuniga’s indictment on one count

of conspiracy to distribute 500 grams or more of a mixture or substance containing

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Cruz-Zuniga pled

not guilty.

Three of the participants in the methamphetamine conspiracy agreed to

cooperate with the government by testifying at Cruz-Zuniga’s trial. Cruz-Zuniga

offered a jury instruction on the credibility of cooperating witnesses. The district court

denied Cruz-Zuniga’s instruction and used Eighth Circuit Model Instruction 4.05 to

instruct the jury on the credibility of cooperating witnesses. The district court also

refused Cruz-Zuniga’s proposed instruction on reasonable doubt, instead instructing

the jury on reasonable doubt as defined in Eighth Circuit Model Instruction 3.11. The

jury found Cruz-Zuniga guilty. 

The Probation Office prepared a presentence investigation report, which

determined the drug quantity attributable to Cruz-Zuniga was more than fifteen

kilograms of methamphetamine. After hearing argument at Cruz-Zuniga’s sentencing

hearing, the district court agreed more than fifteen kilograms of methamphetamine

were attributable to Cruz-Zuniga. 
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At sentencing, Cruz-Zuniga argued he should receive the equivalent of a twolevel decrease in his offense level for acceptance of responsibility, even though CruzZuniga did not accept responsibility. Cruz-Zuniga contended the denial of a two-level

decrease would punish Cruz-Zuniga for exercising his right to stand trial. The district

court rejected this argument.

The district court calculated an offense level of 43 and a criminal history

category of I, resulting in an advisory United States Sentencing Guidelines (Guidelines

or U.S.S.G.) range of life imprisonment. In explaining Cruz-Zuniga’s sentence, the

district court specifically discussed a number of the sentencing factors in 18 U.S.C. §

3553(a). The district court then imposed a below-Guidelines sentence of 480 months

imprisonment and a lifetime term of supervised release. This appeal followed.

II. DISCUSSION

A. Jury Instructions

“A defendant is entitled to a specific jury instruction ‘that conveys the substance

of his request if his request is timely, it is supported by evidence in the case, and is a

correct statement of the law.’” United States v. Whitehead, 176 F.3d 1030, 1037 (8th

Cir. 1999) (citing United States v. Tucker, 137 F.3d 1016, 1036 (8th Cir. 1998)).

However, a defendant “‘is not entitled to a particularly-worded instruction when the

instructions actually given by the trial court adequately and correctly cover the

substance of the requested instruction.’” United States v. Long, 977 F.2d 1264, 1272

(8th Cir. 1992) (quoting United States v. Lewis, 718 F.2d 883, 885 (8th Cir. 1983)).

“‘The district court has wide discretion in formulating appropriate jury instructions.’”

Id. (quoting United States v. McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) (per

curiam)). We review the district court’s denial of a proposed jury instruction for abuse

of discretion, reversing “only if the district court’s alleged erroneous failure to give a

particular instruction was prejudicial.” Whitehead, 176 F.3d at 1037 (citation omitted).
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1. Co-Defendants’ Testimony

Cruz-Zuniga contends he was prejudiced by the district court’s use of Eighth

Circuit Model Jury Instruction 4.05A (Instruction 4.05A), entitled

“Credibility–Cooperating Witness,” and the district court abused its discretion by

refusing Cruz-Zuniga’s proposed non-pattern instruction on credibility of cooperating

witnesses. Cruz-Zuniga specifically objects to the district court instructing the jury as

follows: “You have heard evidence that Ruben Rocha, Javiel Menchaca, and Nestor

Menchaca hope to receive a reduced sentence on criminal charges pending against

them in return for their cooperation with the Government in this case.” (emphasis

added). Cruz-Zuniga claims Instruction 4.05A did not fully explain the benefits the codefendants would receive, and asserts the jury should have been instructed: “The

agreement in this case may provide [the cooperating witness] with the expectation that

he could receive a less severe sentence.” (emphasis added). Put another way, CruzZuniga claims “the word ‘expectation’ more accurately describes the mindset” of the

cooperating witnesses than the word “hope.”

Although the words “hope” and “expectation” may carry distinctive meanings

in other contexts, there is no meaningful difference between a cooperating witness who

has the “hope” of receiving a reduced sentence and one who has the “expectation” of

receiving a reduced sentence. Indeed, “hope” and “expectation” are generally

recognized as synonyms. See William C. Burton, Burton’s Legal Thesaurus 221 (John

Drukker, ed., Mc-Graw-Hill 1998 (1980) (listing “hope” as a synonym for

“expectation”). Regardless of whether the word “hope” or “expectation” was used to

describe the subjective mindset of cooperating witnesses, Instruction 4.05A adequately

and correctly conveyed the substance of Cruz-Zuniga’s request that the jury be

informed a cooperating witness’s testimony may be influenced by the possibility of

receiving a reduced sentence. 
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Consistent with Instruction 4.05A, the district court instructed the jury, “[y]ou

may give the testimony of these witnesses such weight as you think they deserve.

Whether or not testimony of a witness may have been influenced by his hope of

receiving a reduced sentence is for you to decide.” Furthermore, Cruz-Zuniga’s

counsel had the opportunity to cross-examine each cooperating witness, inquire into

his motives for cooperating with the government, and attempt to discredit his

testimony. During closing argument, Cruz-Zuniga’s counsel had sufficient opportunity

to persuade the jury the witnesses were not credible based upon this “hope” or

“expectation.” Cruz-Zuniga fails to establish he was prejudiced in any way by the

instruction’s use of the word “hope” instead of “expectation.” The district court did

not abuse its discretion by using Instruction 4.05A to instruct the jury on the credibility

of cooperating witnesses.

 

2. Reasonable Doubt

Cruz-Zuniga next contends the district court abused its discretion by giving

Eighth Circuit Model Instruction 3.11 (Instruction 3.11), which discusses and defines

reasonable doubt. Cruz-Zuniga argues the statement, “[a] reasonable doubt is a doubt

based upon reason and common sense, and not the mere possibility of innocence,” is

prejudicial because it impermissibly shifts the burden of proof to the defendant.

This circuit has repeatedly upheld the use of Instruction 3.11, specifically

upholding the “mere possibility of innocence” language challenged by Cruz-Zuniga.

See United States v. Foster, 344 F.3d 799, 802 (8th Cir. 2003) (citing United States v.

Rosso, 179 F.3d 1102, 1104-05 (8th Cir. 1999)); United States v. Gibson, 105 F.3d

1229, 1233-34 (8th Cir. 1997); see also United States v. Harris, 974 F.2d 84, 85 (8th

Cir. 1992). “These cases have established the law of the circuit on this point.” Foster,

344 F.3d at 802. Only the court en banc could overturn this circuit’s precedent. Id.

We therefore conclude the district court did not abuse its discretion by instructing the

jury on the definition of reasonable doubt set forth in Instruction 3.11. 
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B. Drug Quantity

Cruz-Zuniga claims the district court erred by applying a two-level sentencing

enhancement based on a quantity of drugs (more than fifteen kilograms) that was not

charged in the indictment or found by a grand jury. Cruz-Zuniga maintains the district

court’s finding the drug quantity by a preponderance of the evidence violates his Fifth

and Sixth Amendment rights.

We review de novo constitutional challenges, United States v. Bates, 77 F.3d

1101, 1104 (8th Cir. 1996), and the district court’s interpretation and application of the

advisory Guidelines, United States v. Whiting, 522 F.3d 845, 849 (8th Cir. 2008). After

United States v. Booker, 543 U.S. 220 (2005), “judicial factfinding is permissible at

sentencing so long as the district court understands that the sentencing guidelines are

advisory only.” United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006).

Under an advisory sentencing regime, “the district court is entitled to determine

sentences based upon judge-found facts and uncharged conduct” where the defendant

is “not sentenced in excess of the statutory maximum.” United States v. Garcia-Gonon,

433 F.3d 587, 593 (8th Cir. 2006) (citing United States v. Red Elk, 426 F.3d 948, 951

(8th Cir. 2005)); see also United States v. Okai, 454 F.3d 848, 851 (8th Cir. 2006)

(explaining, “after Booker, facts underlying sentencing enhancements that are not used

to increase the defendant’s sentence above the congressionally authorized maximum

need not be alleged in the indictment to pass constitutional muster” (citations omitted)).

“[S]entencing judges are only required to find sentence-enhancing facts by a

preponderance of the evidence.” Garcia-Gonon, 433 F.3d at 593 (citing United States

v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc)). The district court

understood the Guidelines were advisory and did not sentence Cruz-Zuniga above the

statutory maximum. We conclude the district court did not err by engaging in judicial

factfinding and applying a preponderance of the evidence standard to determine the

drug quantity attributable to Cruz-Zuniga.
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Cruz-Zuniga also asserts the district court erred by failing to address his

acceptance-of-responsibility argument. On the contrary, after Cruz-Zuniga’s counsel

argued this point extensively at sentencing, the district judge discussed the argument

with Cruz-Zuniga’s counsel, made several comments, and indicated he understood the

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C. Acceptance of Responsibility

Cruz-Zuniga next contends the district court erred by refusing to grant a

downward variance equivalent to a two-level Guidelines reduction for acceptance of

responsibility. Cruz-Zuniga argues denying an acceptance of responsibility credit to a

defendant who stands trial (and who does not accept responsibility) punishes the

defendant for exercising his constitutional right to stand trial. We reject this argument.

It is generally permissible to grant leniency to defendants who plead guilty, and

to withhold leniency from defendants who go to trial. See Corbitt v. New Jersey, 439

U.S. 212, 223 (1978) (explaining courts are entitled to “recognize[] the fact that there

ha[s] been a plea and that in sentencing it is constitutionally permissible to take that fact

into account . . . it is not forbidden to extend a proper degree of leniency in return for

guilty pleas.”). Addressing a defendant’s request for a two-level Guidelines reduction

for acceptance of responsibility, this court has specifically “held that [U.S.S.G. §] 3E1.1

does not punish a defendant for exercising his constitutional right to a jury trial.”

United States v. Smith, 40 F.3d 933, 935 (8th Cir. 1994) (citing United States v. Young,

875 F.2d 1357, 1360-61 (8th Cir. 1989)). “Under [§] 3E1.1, an acceptance-ofresponsibility reduction is simply ‘not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying factual elements of guilt.’” Id. at

935-36 (quoting U.S.S.G. § 3E1.1 cmt. n.2). Although it is possible in certain

circumstances for a defendant to stand trial and still get a reduction for acceptance of

responsibility, see U.S.S.G. § 3E1.1, application n.2, no such circumstances existed in

Cruz-Zuniga’s case. The district court’s refusal to grant Cruz-Zuniga a downward

variance equivalent to a two-level Guidelines reduction for acceptance of responsibility

did not wrongfully punish Cruz-Zuniga for exercising his constitutional right to stand

trial.2
argument. This is more than adequate to satisfy us that the district court fully

considered Cruz-Zuniga’s argument. See United States v. Gray, 533 F.3d 942, 944

(8th Cir. 2008) (explaining, “not every reasonable argument advanced by a defendant

requires a specific rejoinder by the judge”); see also Rita v. United States, 551 U.S.

338, 127 S. Ct. 2456, 2468-69 (2007). 

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D. Cruz-Zuniga’s Sentence

Finally, Cruz-Zuniga asserts the district court did not specifically apply all of the

18 U.S.C. § 3553(a) sentencing factors to Cruz-Zuniga, did not adequately explain the

rationale for the sentence, and improperly likened Cruz-Zuniga’s case to that of another

drug trafficker the court previously sentenced. Cruz-Zuniga also argues his sentence

is substantively unreasonable.

 In reviewing a sentence, this court “must first ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, . . . failing to consider the § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). If the

sentence is procedurally sound, we “then consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard.” Id.

Gall sets forth the sentencing procedure the district court should follow. After

correctly calculating the Guidelines range and “giving both parties an opportunity to

argue for whatever sentence they deem appropriate, the district judge should then

consider all of the § 3553(a) factors to determine whether they support the sentence

requested by a party.” Id. at 596. The district court “must make an individualized

assessment based on the facts presented, . . . [and] must adequately explain the chosen

sentence to allow for meaningful appellate review.” Id. at 597. “In explaining the

chosen sentence and analyzing the relevant § 3553(a) factors, ‘a district court is not

required to provide “a full opinion in every case,” but must “set forth enough to satisfy

the appellate court that he has considered the parties’ arguments and has a reasoned
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basis for exercising his own legal decisionmaking authority.”’” United States v. Hill,

552 F.3d 686, 691 (8th Cir. 2009) (quoting United States v. Robinson, 516 F.3d 716,

718 (8th Cir. 2008) (in turn quoting Rita, 127 S. Ct. at 2468)). The “sentencing court

need not ‘categorically rehearse each of the [§] 3553(a) factors on the record when it

imposes a sentence as long as it is clear that they were considered.’” United States v.

Jones, 509 F.3d 911, 915 (8th Cir. 2007), cert. denied, 128 S. Ct. 2891 (2008) (mem)

(quoting United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006)); see also Rita, 127

S. Ct. at 2468-69. 

At sentencing, the district court expressly considered a number of the relevant §

3553(a) factors and explained how each factor weighed for or against Cruz-Zuniga.

Addressing the “nature and circumstances of the offense” under § 3553(a)(1), the

district court discussed the “scourge that methamphetamine has on our community” and

the fact Cruz-Zuniga “imported kilograms of methamphetamine into our community.”

The district court also explained, “[t]he history and characteristics of the defendant are

highly unusual in that he has no prior criminal history, but that’s not the determining

factor here.” In order “[t]o protect the public,” the district court declared Cruz-Zuniga

would receive “a substantial sentence, but if he ever gets out we know that he will be

deported from this country.” The district court’s explanation for the sentence imposed

and express consideration of several of the § 3553(a) factors in no way constitutes

significant procedural error. 

Cruz-Zuniga takes issue with the district court’s statement it was imposing a

sentence of 480 months imprisonment, a downward variance from Cruz-Zuniga’s

Guidelines range of life imprisonment, because the district court likened Cruz-Zuniga

to “a substantial heroin dealer” the court previously sentenced to 420 months

imprisonment. Cruz-Zuniga does not assert the district court erred by comparing CruzZuniga to a previous defendant, but merely complains the district court should have

given Cruz-Zuniga an even more dramatic downward variance because the heroin

dealer was involved with weapons and violence, and Cruz-Zuniga was not. The district
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court was entitled to consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct[.]” 18 U.S.C. § 3553(a)(6). We see no basis to conclude the district court’s

comparison was in any way improper or an abuse of discretion. 

Further, “giv[ing] due deference to the district court’s decision that the § 3553(a)

factors, on a whole,” justify Cruz-Zuniga’s sentence, Gall, 128 S. Ct. at 597, our review

of Cruz-Zuniga’s sentence reveals no basis for concluding Cruz-Zuniga’s belowGuidelines sentence is substantively unreasonable. 

III. CONCLUSION

We affirm the sentence and judgment of the district court.

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