United States v. Garcia ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 23, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5012
(D.C. No. 4:17-CR-00021-GKF-1)
JUAN GARCIA, a/k/a Shorty, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
_________________________________
Following a jury trial, Juan Garcia was convicted of participating in a drug
conspiracy in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii). On appeal,
Garcia claims the district court erred by refusing to dismiss the indictment on the
ground that the government’s deportation of a witness before trial violated his Fifth
Amendment right to due process and his Sixth Amendment right to compulsory
process. He also appeals his 170-month within-guidelines prison sentence, claiming
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
it is substantively unreasonable because the district court over-emphasized the need
for deterrence and did not give sufficient weight to his mitigating evidence.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
Background
In connection with an investigation into Antonio Martinez, a drug dealer in
Oklahoma City, DEA officers learned that a vehicle carrying methamphetamine
would be traveling from Oklahoma City to Tulsa on January 26, 2017. While
surveilling the car by helicopter and on the ground, officers saw it stop at a gas
station parking lot. The driver exited the car, walked over to a truck parked in the
same lot, opened a passenger side door, then returned to the car carrying a box. The
car got back on the highway and headed toward Tulsa with the truck traveling in
tandem.
Officers conducted separate traffic stops of both vehicles. After a drug dog
alerted on the car, officers searched it and found a cardboard box containing nearly
three pounds of methamphetamine on the backseat. Gustavo Flores was driving the
car, with Joel Ulloa as a passenger. Officers arrested Flores and Ulloa, who both
made statements indicating that they had received the methamphetamine from the
truck and that the truck was traveling with them to ensure that the drug deal was
completed.
Officers at the car radioed these developments to the officers who had stopped
the truck. The same drug dog—trained to detect residual drug odors—also alerted on
the passenger door of the truck, where Garcia had been sitting. Officers at the truck
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arrested Garcia and Roberto Dominguez, the driver of the truck. Garcia told officers
he was riding to Tulsa with Dominguez because he planned to purchase a car there
with the approximately $20,000 in cash he was carrying. The officers were unable to
speak with Dominguez because he did not speak or understand English.
Dominguez, Garcia, Martinez, and Ulloa were charged with a federal drug
conspiracy; Flores, a minor, was not formally charged. Shortly thereafter, the
government moved to dismiss the indictment against Dominguez. After the court
granted the motion, Dominguez was transferred to the custody of Immigration and
Customs Enforcement (ICE) and was deported three weeks later after stipulating to
removal. Martinez and Ulloa entered into plea agreements, and Flores entered into a
pretrial diversion agreement. The government obtained a superseding indictment
against Garcia, charging him with a broader drug conspiracy between November
2016 and the January 26, 2017, traffic stop.
Garcia moved to dismiss the indictment based on the government’s deportation
of Dominguez. For reasons discussed more fully below, the district court denied the
motion, concluding that there was no evidence suggesting that the government had
acted in bad faith in deporting Dominguez or that his deportation prejudiced the
defense.
At trial, Flores and Martinez both identified Garcia, whom they knew as
“Shorty,” as the supplier of the methamphetamine they distributed between the dates
charged in the indictment. Flores testified that Martinez had arranged for Flores to
pick up methamphetamine from Garcia on numerous occasions and had given him
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Garcia’s phone number to facilitate the transactions. Martinez confirmed that Flores
had made multiple deliveries of methamphetamine for him and that Garcia was his
supplier.
With respect to the January 26, 2017, transaction, Flores explained that Garcia
told him to meet him at the gas station, where he would be waiting in a blue truck.
Flores and Garcia communicated by texts and calls during the drive. When he
arrived at the gas station, Flores parked the car and went to the back of the truck,
where he saw Garcia in the passenger seat and a man he had never seen before in the
driver’s seat. Pointing to the methamphetamine, Garcia told Flores “it was there” in
a box. R. Vol. I at 552. Flores took the box, returned to the car, and continued to
drive toward Tulsa, where he was to deliver the drugs. Video recorded by the
Oklahoma Highway Patrol helicopter corroborated Flores’s account of the events of
January 26, and agents and officers described the traffic stops and the seizure of the
methamphetamine, cash, and phones.
Phone records for the cell phones seized from the vehicles revealed ongoing
communications between Garcia, Flores, and Martinez between November 2016 and
January 2017. Flores and Martinez both identified calls and texts between them and
Garcia, including texts with a picture of methamphetamine. Martinez also identified
texts with the buyer and Garcia to arrange the January 26 transaction. Those texts
discussed the pick-up and drop-off points and indicated that Garcia was planning to
follow Flores while he delivered the drugs.
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Garcia admitted that he was known as “Shorty” but denied being involved in
drug trafficking. Consistent with his statements to police at the time of his arrest,
Garcia testified that he was riding with Dominguez to Tulsa to purchase a car and
that he had the cash, which he had saved through his cash-based construction
clean-up business, for that purpose.
During deliberations, the jury asked about the availability of video evidence,
indicating that it was “[l]ooking for credibility of witnesses.” Id. at 821; Vol. II
at 20. With the parties’ agreement, the court told the jury that it had the evidence
necessary to render a verdict. Id. Vol. I at 821; Vol. II at 20. After deliberating for
an additional ten minutes, the jury found Garcia guilty of the charged conspiracy.
The district court adopted the advisory sentencing guideline range proposed in
the Presentence Investigation Report (PSR), and after denying Garcia’s motion for a
downward variance, imposed a mid-range sentence of 170 months in prison.
Discussion
A. Denial of Motion to Dismiss
Garcia claims the government’s deportation of Dominguez violated his rights
to due process and compulsory process, and that the district court erred in denying
his motion to dismiss the indictment on that basis. We disagree.
We review the denial of a motion to dismiss an indictment for an abuse of
discretion. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1265 (10th Cir. 2006).
A district court abuses its discretion if its decision “is based upon an error of law or a
clearly erroneous finding of fact.” United States v. Lin Lyn Trading, Ltd., 149 F.3d
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1112, 1117 (10th Cir. 1998) (internal quotation marks omitted); see also United
States v. Barajas-Chavez, 358 F.3d 1263, 1267 (10th Cir. 2004) (explaining that an
appellate court will affirm the denial of a motion to dismiss “unless there is a distinct
showing it was based on a clearly erroneous finding of fact or an erroneous
conclusion of law or manifests a clear error of judgment” (internal quotation marks
omitted)).
To obtain dismissal of an indictment based on the government’s deportation of
a witness, the defendant must show both that the government acted in bad faith and
that the deportation prejudiced the defense by eliminating testimonial evidence that
would have been “material and favorable to the defense.” United States v.
Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997) (internal quotation marks omitted).
A court may deny a motion to dismiss based on the defendant’s failure to satisfy
either the bad faith or the prejudice prong. See United States v. Caballero, 277 F.3d
1235, 1242 (10th Cir. 2002) (concluding that the “failure to show the materiality of
[the deported witness’s] lost testimony absolves [the court] of examining the bad
faith prong”); see also Iribe-Perez, 129 F.3d at 1173-74 (affirming denial of motion
to dismiss based on defendant’s failure to prove lost testimony was material and
favorable, and not addressing whether the government acted in bad faith in allowing
witness’s voluntary departure).
With respect to bad faith, we note that this circuit has not yet decided what the
standard is for determining when the government’s deportation of a witness is in bad
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faith,1 and the parties disagree about both what that standard should be and whether
the district court erred in concluding that Garcia was required to show that the
government’s “motivation [for the deportation] was to tactically disadvantage the
defense.” R. Vol. I at 272. We conclude that we need not resolve these issues,
however, because the district court properly denied Garcia’s motion to dismiss based
on his failure to show that Dominguez’s testimony would have been material and
favorable to the defense. See Caballero, 277 F.3d at 1242.
To make that showing, Garcia did not have to provide a “detailed description”
of the disputed testimony, Iribe-Perez, 129 F.3d at 1173 (internal quotation marks
omitted), but he was required to make a “plausible showing that the testimony of the
deported witness[ ] would have been material and favorable to his defense, in ways
not merely cumulative to the testimony of available witnesses,” United States v.
Valenzuela-Bernal, 458 U.S. 858, 872 (1982). Evidence is material “only if there is a
reasonable likelihood that the testimony could have affected the judgment of the trier
of fact.” Id. at 874; see also Richmond v. Embry, 122 F.3d 866, 874 (10th Cir. 1997)
(explaining that to be constitutionally material, excluded evidence must have been
1
This court has held in an unpublished decision that the determination of bad
faith “‘must necessarily turn on the police’s knowledge of the exculpatory value of
the evidence at the time it was lost or destroyed.’ Negligence is not enough to
establish bad faith.” United States v. Gonzalez-Perez, 573 F. App’x 771, 776
(10th Cir. 2014) (quoting Arizona v. Youngblood, 488 U.S. 51, 56 (1988)). The court
thus concluded that to constitute bad faith, “[t]here must be (1) willful conduct
motivated by a desire to obtain a tactical advantage over the defense or (2) a
departure from the government’s normal deportation procedures.” Gonzalez-Perez,
573 F. App’x at 776.
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“of such an exculpatory nature that its exclusion affected the trial’s outcome”).
There is no such likelihood here.
First, there is no evidence about what Dominguez would have said if called to
testify and no indication that the government prevented Garcia from interviewing
Dominguez before he was deported or otherwise interfered with Garcia’s efforts to
obtain favorable evidence. See Iribe-Perez, 129 F.3d at 1173 (rejecting compulsory
process and due process challenge based on deportation of witness where defendant
had not “offered any credible reason to believe that [the deported witness] would in
fact provide exculpatory testimony,” explaining that to show constitutional
materiality, the defendant must show “more than the mere potential for favorable
testimony”); see also Barajas-Chavez, 358 F.3d at 1268 (concluding that defendant
failed to show that deported witnesses’ testimony would have been exculpatory,
noting that defense counsel “admitted at the pre-trial hearing that he had not
interviewed the witnesses and had no direct knowledge of their potential testimony”).
Moreover, the evidence that Garcia distributed methamphetamine was
overwhelming. Flores and Martinez both testified that Garcia (or “Shorty”) was the
supplier of the methamphetamine they distributed between November 2016 and the
January 26, 2017, traffic stop. They testified in detail about his involvement in the
conspiracy, including about his role in the January 26, 2017, transaction that led to
their arrests, their text exchanges with him about logistics, and the photograph of
drugs Flores texted to Garcia. Their testimony was corroborated by the evidence
found on their and Garcia’s phones, the officers’ testimony, video footage, and the
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drug dog’s alert to the area of the truck where Garcia had been sitting. In the face of
this evidence, we think it is highly unlikely that the jury would have rendered a
different verdict, even if Dominguez had supported Garcia’s claim that he knew
nothing about the drugs and was traveling to Tulsa to purchase a car. Accordingly,
the district court did not abuse its discretion in denying Garcia’s motion to dismiss
his indictment.
Contrary to Garcia’s contention, the jury’s question about the availability of
additional video footage to support the witnesses’ credibility does not undermine our
conclusion that he failed to show that Dominguez’s testimony was material. The jury
heard evidence about the government’s failure to interview and decision to deport
Dominguez, and its question did not ask about the availability of additional witnesses.2
The court’s response, which Garcia did not object to, indicated that the jury had all
the evidence it needed to reach a verdict, and the court’s instructions explained that
the jury was to make its “decision based only on the evidence [it] saw and heard”
during trial and that “[i]t will be up to you to decide what evidence to believe and
how much of any witness’s testimony to accept or reject” R. Vol. I at 328, 333; see
also id. at 335-36 (credibility instruction). We presume that the jury followed its
instructions, and that it understood the trial judge’s response to its question. See
2
In his opening brief, Garcia described the question as asking about the
availability, not the credibility, of witnesses. Aplt. Br. at 10. The printed form is
difficult to read, but the district court interpreted it as asking about credibility, not
availability. Either way, the jury’s question does not affect our conclusion that
Garcia failed to establish that he was prejudiced by Dominguez’s deportation.
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Weeks v. Angelone, 528 U.S. 225, 234 (2000). The jury reached a guilty verdict
within about ten minutes after the court responded to its question, and we will not
speculate about what the jury was thinking when it asked the question or give the
question more significance than the record suggests it had. Cf. Allen v. Minnstar,
Inc., 97 F.3d 1365, 1373 (10th Cir. 1996) (rejecting argument based on speculation
about the meaning of the jury’s question and its reaction to the court’s response,
explaining that such arguments could “be raised in any case in which a jury presents
questions to a trial court,” and that “a verdict will not be upset on the basis of
speculation about possible jury confusion” (internal quotation marks omitted)).
B. Reasonableness of Sentence Imposed
Garcia also claims his 170-month sentence is manifestly unreasonable because
the district court did not give sufficient weight to his lack of criminal and
incarceration history and the fact that his immigration status made him ineligible for
placement in lower-security or halfway-house facilities. Again, we disagree.
“Substantive reasonableness involves whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.
2007).3 We review the substantive reasonableness of a sentence under the deferential
abuse of discretion standard. United States v. Gordon, 710 F.3d 1124, 1160
3
Reasonableness also has a procedural component: “whether the district court
committed any error in calculating or explaining the sentence.” United States v.
Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). However, Garcia does not
challenge the procedural reasonableness of his sentence.
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(10th Cir. 2013). A within-guidelines sentence like Garcia’s is presumptively
reasonable, and we will “find an abuse of discretion only if the district court was
arbitrary, capricious, whimsical, or manifestly unreasonable when it weighed the
permissible § 3553(a) factors.” United States v. Sanchez-Leon, 764 F.3d 1248, 1267
(10th Cir. 2014) (internal quotation marks omitted).
The trial court is in a far better position than a reviewing court to make
credibility determinations, find facts, and “judge their import under § 3553(a).” Gall
v. United States, 552 U.S. 38, 51 (2007) (internal quotation marks omitted). Thus,
we defer to the sentencing court’s factual findings as well as “its determinations of
the weight to be afforded to such findings.” United States v. Smart, 518 F.3d 800,
808 (10th Cir. 2008); see also Sanchez-Leon, 764 F.3d at 1268 (explaining that the
sentencing court “need not afford equal weight to each of the [§ 3553] factors”).
Because the facts and law often “fairly support” a wide range of possible outcomes,
we defer to the district court if the sentence imposed “falls within the realm of [the]
rationally available choices.” United States v. McComb, 519 F.3d 1049, 1053
(10th Cir. 2007). “That we might reasonably have concluded a different sentence
was appropriate is insufficient to justify reversal of the district court.” United States
v. Friedman, 554 F.3d 1301, 1307-08 (10th Cir. 2009) (alterations and internal
quotation marks omitted).
Here, because of the quantity of drugs involved, Garcia’s conviction carried a
ten-year mandatory minimum. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846. The
PSR determined that Garcia’s offense level was 34, based primarily on a drug
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quantity of 1.58 kilograms of methamphetamine—the drugs seized on January 26,
2017, and two additional quarter-pound quantities Garcia supplied to Flores on
December 19, 2016, and January 3, 2017. The offense level was also supported by a
two-level enhancement for obstruction of justice based on Garcia’s false testimony at
trial. With his criminal history score of I, the PSR calculated Garcia’s guidelines
range as 151 to 188 months’ imprisonment.
Garcia objected to the inclusion of drug quantities from earlier transactions
and to the obstruction of justice enhancement. He also sought a downward variance
to 120 months, the statutory mandatory minimum, arguing that he had no criminal
record, that he would likely be deported and was ineligible for low-security and
community-based placements available to citizens, and that a shorter sentence would
reduce the disparity between his and his co-defendants’ sentences.
The court overruled both of Garcia’s objections to the calculation of his
offense level and rejected his request for a downward variance. The court found that
the obstruction of justice enhancement was appropriate because Garcia “committed
perjury when he testified under oath that he did not know about the drugs in” the car
the day of his arrest, R. Vol. III at 47. With respect to the inclusion of the additional
drug amounts in the total drug quantity, the court noted that the evidence established
that Flores had sent a photograph of the quarter-pound of methamphetamine he
picked up from Garcia on December 19, 2016, and that Garcia arranged the January
3, 2017, transaction with Flores through a text exchange that specifically referenced a
quarter-pound of methamphetamine. The court further noted that Garcia had “cited
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no examples where the testimony was conflicting, vague, or unreliable,” id. at 45,
and found Martinez’s and Flores’s testimony about those and other drug transactions
credible, id. at 46. Finally, the court rejected Garcia’s request for a downward
variance, explaining that it had considered “the totality of the circumstances of this
case, including [Garcia’s] lack of acceptance of responsibility, [his] perjury, and [his]
distribution of large quantities of methamphetamine into the community,” and had
concluded that a downward variance was not warranted because there were “no
factors present that separate this defendant from the mine run of similarly situated
defendants,” id. at 56.
The court then adopted the proposed offense level and guidelines range and
imposed a mid-range prison sentence of 170 months. We find no abuse of discretion
in the district court’s rulings or in the sentence imposed. The court considered the
relevant statutory factors, expressly acknowledging Garcia’s mitigating evidence,
including his positive criminal history score, the effect of his immigration status on
his placement options, and the fact that “his impending deportation will act as a form
of punishment.” Id. But the court concluded that a 170-month sentence was
nevertheless justified by Garcia’s having distributed significant quantities of
methamphetamine, his failure to accept responsibility for his role in the conspiracy,
and his perjury at trial. The court explained that the sentence was “appropriate
and reasonable” under the totality of Garcia’s circumstances and that it would
“serve as an adequate deterrent to this defendant, as well as others, promote respect
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for the law, provide just punishment for the offense, and provide protection for the
public.” Id. at 57.
The record supports the court’s findings, and we will not reweigh the evidence
on appeal. See Gall, 552 U.S. at 51-52 (emphasizing the importance of appellate
court deference to a district court’s sentencing determination, explaining that the trial
judge “has access to, and greater familiarity with, the individual case and the
individual defendant before him,” and that “[d]istrict courts have an institutional
advantage over appellate courts in making these sorts of determinations, especially
as they see so many more Guidelines cases than appellate courts do” (internal
quotation marks omitted)). When considered in context and on the record presented,
we conclude that the district court did not “exceed[ ] the bounds of permissible
choice,” McComb, 519 F.3d at 1053 (internal quotation marks omitted), in imposing
a 170-month sentence.
Conclusion
The judgment of the district court is affirmed.
Entered for the Court
Allison H. Eid
Circuit Judge
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