Unpublished Disposition, 927 F.2d 611 (9th Cir. 1990)

MEMORANDUM^** 

STATEMENT OF THE CASE

Appellant Antonio Guel was arrested for his role in a drug transaction involving approximately one kilogram of cocaine. Following a trial by jury, Guel was convicted of one count of conspiracy to distribute more than five hundred kilograms of cocaine in violation of 21 U.S.C. § 846 and one count of knowingly and intentionally distributing cocaine in violation of 21 U.S.C. § 841(a) (1). Guel was subsequently sentenced to five years imprisonment on each count and four years of supervised release, the sentences to run concurrently.

Counsel for Guel now files an Anders brief discussing three issues he examined but found to be of no merit and asking this court to examine the record for any other potential errors. We affirm.

STANDARD OF REVIEW

Under Anders v. California, 386 U.S. 738, 744-45 (1967), we are required to make an independent review of the record. Anders, 386 U.S. at 745; United States v. Simmons, 812 F.2d 561, 562 n. 1 (9th Cir. 1987).

FACTS

In November 1986, FBI agent Eladio Torres-Moreno, working undercover, met Ricardo Lovato in San Jose, California. Lovato indicated that he could obtain cocaine for Agent Torres and the two agreed to fly to Los Angeles on November 17, 1990 to buy approximately one kilogram of cocaine.

On November 17, 1986, Agent Torres, Lovato, and a man named Carlos Morales met at Lovato's residence in San Jose. They stopped on the way to San Jose Airport and Lovato placed a phone call to someone named "Tony," informing him that the group was on its way to Los Angeles. The three men then continued on to the airport, boarded a flight, and flew to Los Angeles International Airport. Upon arrival, the three took a taxi to the Tru Value Inn on Treats Avenue, near Commerce Boulevard.

Mr. Lovato checked into the motel using a false name. The motel room was divided into a sitting area, a bathroom and a bedroom. Lovato then placed another call to "Tony."

Approximately ninety minutes later, appellant Antonio Guel and a companion, Saul Barbossa, arrived at the motel. When the two men entered the motel room, Agent Torres and Carlos Morales were waiting in the rear bedroom of the suite. Agent Torres was able to identify Guel in the sitting room because the door to the bedroom was only partially closed. Agent Torres saw Guel hand Lovato a small piece of folded tinfoil paper. Mr. Lovato brought the tinfoil pouch into the room in which Torres and Morales were seated. Lovato tasted the white powdery substance and stated it was "good quality ... good stuff." Guel then left the motel suite after Torres and Lovato agreed that Torres would buy one kilogram of cocaine for $28,000.

Twenty to twenty-five minutes later, Guel reentered the suite carrying a medium-sized, brown paper bag. Guel gave the bag to Lovato and Lovato entered the rear bedroom and gave the package to Torres. Agent Torres then gave Lovato $28,000 in one-hundred dollar bills. Guel and Lovato counted the money while Agent Torres carefully observed Guel. Guel then left with the cash and Agent Torres left with the cocaine.

Approximately six hours later Agent Torres was shown a driver's license photograph of Guel and identified him as the man who delivered the package. The package itself was determined to contain 996 grams of cocaine, 86% pure. Guel was subsequently arrested.

Guel was tried before a jury. The central issue at trial was whether or not Guel was the man who delivered the cocaine. Agent Torres identified Guel in court and also testified that he identified Guel by photograph six hours after the drug sale. Guel was also identified by Lovato who testified against Guel as part of a plea agreement he reached with the government. Lovato also testified that he had known Guel for over a year, during which time they had engaged in a number of drug sales. Lovato also identified Guel as the person in the same driver's license photograph shown to Agent Torres.

Guel denied ever having seen or met Agent Torres or Lovato. Guel stated that on the day of the drug transaction he was at home working on a friend's car, though at some point he went to an auto supply store. Guel also denied being known as "Tony." Guel presented no other witnesses on his behalf.

Guel was subsequently convicted on both Counts I and II of the indictment, in violation of 21 U.S.C. §§ 846 and 841(a) (1) respectively. Guel was sentenced to five years imprisonment and four years of supervised relief on each count, the sentences to run concurrently.

After the trial was concluded, the government prosecutor discovered for the first time that a fingerprint analysis had been conducted on the brown paper bag used to carry the cocaine. Prior to trial, the government had informed the defense that no such test had been done. The district court determined that this was an honest mistake due to the fact that three different prosecutors had handled the case. The bag was not offered into evidence by either side at trial. The fingerprint report, discovered after trial, indicated that Guel's fingerprints were on the package as well as several unidentified prints.

Counsel for Guel now files an Anders brief mentioning three potential errors which he determined to be of no merit: (1) the government's use of a peremptory challenge against an Hispanic juror (Guel is himself Hispanic); (2) the late production of the fingerprint analysis of the brown paper bag; and (3) unidentified "sentencing errors." Counsel also asks this court to examine the record for any other potential errors.

DISCUSSION

Guel asserts that the use of a peremptory challenge to excuse an Hispanic juror, Annie Trujillo, was a potential violation of Batson v. Kentucky, 476 U.S. 79 (1986). Even assuming that the use of a peremptory challenge to excuse one Hispanic juror constitutes a prima facie case under Batson, the government is still allowed to present a neutral explanation for challenging the juror. Batson, 476 U.S. at 97-98.¹ 

In this case, the government presented a compelling reason for excusing Ms. Trujillo: she had a number of relatives who were serving or had in the past served time in prison and some of these relatives were in prison because of their involvement with drugs--the same type of charge pending against Guel. Accordingly, we find no Batson violation here.

Guel next asserts that the discovery of the fingerprint report after the conclusion of the trial violated the Brady doctrine and/or prejudiced his defense. This argument is without merit.

To prevail on appeal, Guel must show that the failure to produce the bag affected the outcome of his trial. United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). The incriminating nature of the fingerprint evidence, however, precludes any finding that its late discovery prejudiced Guel's defense. Likewise, the incriminating nature of the fingerprint evidence also indicates that it was not exculpatory under Brady v. Maryland, 373 U.S. 83, 87-88 (1963). Furthermore, Brady violations themselves require reversal only if the evidence might have affected the outcome of the trial. United States v. Bagley, 473 U.S. 667, 674-75 (1985). Again, the incriminating nature of the evidence prevents such a finding here.

Guel's final argument is that certain unidentified "sentencing errors" may have occurred. Our review of the record, however, has uncovered none. Guel was sentenced to the statutory minimum on both counts of the indictment.²  Guel's only potential claim, therefore, must lie with the statutory mandate of the sentences rather than any aspect of the district court's discretion.

Guel could argue that his two five-year sentences, which are to run concurrently, are disproportionate to his crime and therefore constitute "cruel and unusual punishment." However, we have already held that "a sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual." United States v. Washington, 578 F.2d 256, 258 (9th Cir. 1978). Here, both of these elements mitigate against Guel. First, Guel was sentenced to the statutory minimum under 21 U.S.C. §§ 846, 841(a) (1). Second, we have previously upheld the minimum five-year sentence for trafficking in narcotics. United States v. Klein, 860 F.2d 1489, 1495-8 (9th Cir. 1988). Accordingly, no sentencing errors occurred.³ 

Our independent review of the record under Anders does not indicate any error, reversible or otherwise. Accordingly, we affirm.

AFFIRMED.