United States v. Garcia , 433 F. App'x 741 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 6, 2011
No. 10-13237 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:09-cr-60245-WPD-5
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
RENE FERNANDEZ GARCIA,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 6, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Rene Fernandez Garcia appeals his conviction and sentence for being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1). On appeal, Garcia argues
that the district court erred in denying his motion to suppress evidence seized
during a warrantless search of his vehicle. He also contends that the district court
clearly erred by denying his request for a minor-role reduction under U.S.S.G.
§ 3B1.2(b). For the reasons stated below, we affirm.
I.
A grand jury returned an indictment charging Garcia with: (1) conspiracy to
obstruct interstate commerce by means of robbery, in violation of 18 U.S.C.
§ 1951(a); (2) conspiracy to possess with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 846; (3) attempt to possess with
intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C.
§ 846; (4) conspiracy to use and carry firearms during and in relation to a crime of
violence and drug trafficking crime, in violation of 18 U.S.C. § 924(o); (5) using
and carrying firearms during and in relation to a crime of violence and drug
trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; and (6) being a
felon in possession of a firearm, in violation of 18 U.S.C.§§ 922(g)(1) and 2
(Count Six). Amaury Hernandez, Lazaro Riveras, Jose Veitia, Pablo
Arrechavaleta, Jorge Herrera, and Garcia’s brother, Rafael Fernandez Garcia, also
were charged in the superseding indictment.
Garcia moved to suppress evidence seized during a warrantless search of his
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Hummer H2 vehicle. At the suppression hearing, Special Agent James VanVliet
of the Bureau of Alcohol, Tobacco, and Firearms testified that Hernandez and
Riveras met with an undercover officer. The officer was posing as a disgruntled
drug courier who was seeking to have his employer’s stash house robbed.
Hernandez and Riveras indicated that their robbery crew would enter the stash
house dressed as law enforcement officers and armed with guns.
On September 10, 2009, the date on which the robbery was to occur,
Herandez met with the government’s confidential informant (“CI”) in Miami
Lakes. He entered the CI’s vehicle, and the two men started driving westbound on
the Miramar Pakway. They pulled over on the shoulder of the road to wait for the
other conspirators. Eventually, three other vehicles arrived at the scene: a white
Chevrolet Impala, a red Hummer H2, and a white Ford F350 pickup truck. A
detective conducting surveillance observed Garcia driving the Hummer. All four
vehicles proceeded northbound on I-75 to the Sawgrass Expressway and then
exited onto Commercial Boulevard.
The CI’s vehicle and the Impala pulled into a Mobil gas station where the
conspirators were supposed to meet with the CI, while the Hummer and the Ford
F350 parked across from the Mobil station in a CVS parking lot. Aerial
surveillance showed two men standing outside the Hummer. Eventually, those
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men got into the Ford F350 and traveled a quarter of a mile down the street to a
Sunoco gas station. The CI’s vehicle and the Impala followed the undercover
detective to a warehouse. Hernandez, the CI, and the undercover detective entered
the warehouse, while Riveras, Veitia, and Arrechavaleta remained outside in the
Impala. Hernandez called Garcia and told him, “So the Hummer can park over
there with those things, you copy me?” The agents interpreted this to be a
reference to the firearms and the tools that were to be used in the robbery.
Hernandez, Arrechavaleta, Riveras and Veitia were arrested at the warehouse, and
Garcia, his brother Rafael Garcia, and Herrera were arrested inside the Ford F350
that was parked at the Sunoco gas station. Agents did not discover any firearms
on the defendants’ persons or inside the Chevrolet Impala or the Ford F350, but
they did find the keys to the Hummer in the Ford F350. The agents then searched
the Hummer and discovered a Beretta pistol, a shotgun, and police paraphernalia.
The district court determined that the search of the Hummer was lawful
under the automobile exception to the Fourth Amendment’s warrant requirement
because the agents had probable cause to believe that the weapons for the robbery
would be found in that vehicle. Accordingly, the district court denied Garcia’s
motion to suppress.
At trial, Hernandez testified regarding Garcia’s role in the conspiracy. He
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explained that Rafael Garcia, Arrechavaleta, and Herrera were to enter the stash
house first dressed as law enforcement officers. Riveras would then enter the
house armed with the shotgun, accompanied by Veitia, who would be carrying the
Beretta pistol. Garcia’s job was to supply the Beretta pistol and to transport the
firearms and various police items to the staging area for the robbery. The other
conspirators wanted Garcia to take the weapons to avoid any connection to them
in the event that police stopped them. During the robbery Garcia was to wait
outside the stash house in the Hummer in case he was needed. Garcia would not
receive an equal share of the cocaine because he was not going to actively
participate in the robbery. Instead, he would receive some money or cocaine from
each of the other conspirators. The jury convicted Garcia with respect to Count
Six, the felon in possession charge, but acquitted him of the other charges against
him.
At sentencing, Garcia requested a minor-role reduction under U.S.S.G.
§ 3B1.2(b). He observed that his role in the robbery was limited to transporting
some of the firearms and equipment that would be used to commit the crime. He
also noted that he was going to be paid less than any of his co-conspirators.
The district court denied Garcia’s request for a minor-role reduction. The
court observed that Garcia transported the guns to be used in the robbery, used a
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walkie-talkie, and also planned to conduct surveillance during the robbery. The
district court concluded that these were “instrumental aspects” of the planned drug
robbery. The court determined that Garcia had an offense level of 26 and a
guideline range of 70 to 87 months’ imprisonment. The district court sentenced
Garcia to the upper end of that range, 87 months’ imprisonment.
II.
A district court’s denial of a motion to suppress presents a mixed question
of law and fact. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).
We review the district court’s legal rulings de novo and its findings of fact for
clear error. Id. Under the automobile exception, police may conduct a
warrantless search of a vehicle if: “(1) the vehicle is readily mobile; and (2) the
police have probable cause for the search.” Id. at 1293. The mobility requirement
is satisfied whenever the vehicle to be searched is operational. United States v.
Watts, 329 F.3d 1282, 1286 (11th Cir. 2003). A functioning vehicle is considered
to be “mobile” even if it already has been secured by the police. See Michigan v.
Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080-81, 73 L.Ed.2d 750 (1982)
(explaining that officers may conduct a warrantless search of an automobile even
after the vehicle is impounded and in police custody); United States v. Birdsong,
982 F.2d 481, 483 (11th Cir. 1993) (holding that automobile exception applied
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even though the defendant already had been taken into custody and the police
were in possession of his car keys). Police have probable cause to search a vehicle
“‘when under the totality of the circumstances, there is a fair probability that
contraband or evidence of a crime will be found in the vehicle.’” Lindsey, 482
F.3d at 1293 (quoting United States v. Tamari, 454 F.3d 1259, 1264 (11th Cir.
2006)).
In this case, the district court correctly concluded that the Hummer was
readily mobile. The Hummer plainly was operational because law enforcement
officers observed Garcia driving it shortly before his arrest. Garcia observes that
the officers had already arrested him and had taken possession of the keys to the
Hummer, but those facts do not show that the vehicle was not operational. The
mobility requirement focuses on whether the vehicle is capable of functioning, not
whether it is likely to move in the near future. See Thomas, 458 U.S. at 261, 102
S.Ct. at 3080-81; Birdsong, 982 F.2d at 483.
The agents also had probable cause to search the Hummer. Hernandez told
the undercover officer that the robbery crew would enter the stash house dressed
as police and armed with guns. On the day planned for the robbery, law
enforcement officers observed Garcia following Hernandez’s vehicle in the
Hummer. Later, Hernandez called Garcia and made a reference to “those things”
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in the Hummer. When the conspirators were placed under arrest, the agents did
not find any weapons on their persons or in the other vehicles associated with the
conspiracy. Thus, the officers had probable cause to believe that the weapons for
the robbery would be found in the Hummer. See Lindsey, 482 F.3d at 1293. We
conclude that the district court properly denied Garcia’s motion to suppress.
III.
A district court’s determination of a defendant’s role in the offense is
reviewed for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). The party seeking the adjustment bears the burden of
establishing its applicability by a preponderance of the evidence. Id. at 939.
Under the Sentencing Guidelines, a defendant’s offense level is to be reduced by
two levels if the defendant was only a “minor participant” in the criminal activity.
U.S.S.G. § 3B1.2(b). A minor participant is one “who is less culpable than most
other participants, but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2, comment. (n.5). In determining whether to award a minor-role
adjustment, the district court should consider two principles: “first, the defendant’s
role in the relevant conduct for which [he] has been held accountable at
sentencing, and, second, [his] role as compared to that of other participants in [his]
relevant conduct.” De Varon, 175 F.3d at 940.
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Here, Garcia did not play a minor role in the robbery conspiracy. Although
Garcia was not to enter the stash house himself, he supplied the Beretta pistol that
was to be used to commit the robbery. He also transported the Beretta and the
shotgun to a staging area for the robbery, along with police paraphernalia that his
co-conspirators were to wear during the robbery. Given these facts, the district
court appropriately concluded that Garcia was involved in “instrumental aspects”
of the conspiracy.
Under the second prong of De Varon, it appears that Garcia’s role in the
offense was somewhat less serious than that of his co-conspirators, as he was not
to enter the stash house himself and was to be paid less than the other conspirators.
Nevertheless, Garcia still played an integral role in the conspiracy because he
supplied one firearm and transported the shotgun and other tools that were to be
used in the robbery. In light of the evidence presented at trial, the district court
did not clearly err by denying Garcia’s request for a minor-role reduction.
Accordingly, we affirm.
AFFIRMED.
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