United States v. Garcia-Gil , 133 F. App'x 102 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 27, 2005
_______________________
Charles R. Fulbruge III
No. 03-41142 Clerk
_______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIME GARCIA-GIL,
Defendant - Appellant.
_______________________
Appeals from the United States District Court
for the Southern District of Texas
(03-CR-652)
_______________________
Before REAVLEY, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Jaime Garcia-Gil challenges both his conviction
for drug possession and his sentence. For the reasons that
follow, we reject his arguments and affirm the district court’s
judgment.
On April 23, 2003, Garcia-Gil pulled the pickup truck he was
driving into the Freer, Texas, Border Patrol checkpoint. When
Garcia-Gil stopped at the checkpoint, an agent’s dog alerted to
the driver’s-side door. The agent, Albert Martinez, took Garcia-
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
Gil’s border-crossing card1 and asked him some questions. In
response, Garcia-Gil indicated that he was driving to Houston to
pick up some satellite-television dishes along with some
appliances, specifically a washing machine and a dryer. He also
presented a bill of sale for the pickup and claimed he owned the
truck. During the questioning, Agent Martinez noticed that
Garcia-Gil seemed to be riding unusually high in his pickup, so
high that the steering wheel was at his thighs.
Martinez sent Garcia-Gil to the secondary inspection area.
Once there, Garcia-Gil exited his truck. Agent Martinez
inspected the driver’s seat area, confirming that the seat was
placed extremely high——perhaps eight to ten inches higher than
normal——and noticed that the seat was very hard, as if it had
little cushioning. He also observed that the bolts holding the
seat to the frame came off without any pressure and appeared to
have been pried off before. Another agent drilled into the area
underneath the seat, where he found some white powder that turned
out to be cocaine. Ultimately, the agent found twenty bundles of
cocaine with a total weight of around twenty kilograms. The
cocaine’s estimated value was over one million dollars.
The agents arrested Garcia-Gil. Once told that he was under
arrest, Garcia-Gil turned around and simply placed his hands
behind his back. He said nothing at that point. The agents
1
Garcia-Gil is a Mexican citizen.
2
handcuffed Garcia-Gil and read him his Miranda rights. One of
the agents, Agent Loa, later testified that after being warned,
Garcia-Gil repeatedly asked himself what he had done and told the
agents that he had children. According to Agent Martinez,
Garcia-Gil also said that he intended to drive back from Houston
in a different truck.
The agents then searched Garcia-Gil and his truck. They
found that Garcia-Gil was carrying a cell phone, along with $800
and some receipts. Inside the pickup, the agents found a gym bag
containing new clothes. Agent Martinez later testified that
Garcia-Gil told him that a friend had given him $500 and the cell
phone. Garcia-Gil also said that this same friend told him to
drive the truck to Houston.
Eventually, a DEA agent, Agent Nivar, arrived on the scene.
According to Agent Nivar, Garcia-Gil told him that a friend named
Buey had loaned him the truck in Monterrey to pick up appliances
in Houston, that Garcia-Gil had purchased insurance in Mexico,
and that the money was from his savings. Garcia-Gil made
additional statements (about where he had stopped, for example)
that were supported by the receipts in the pickup.
Garcia-Gil was later indicted on one count each of
conspiracy and possession with the intent to distribute more than
five kilograms of cocaine. Garcia-Gil pleaded not guilty to both
counts, and the case against him proceeded to trial.
3
At the beginning of trial, Garcia-Gil filed a motion in
limine, asking the court to exclude expert evidence about drug-
smuggling organizations, particularly “expert testimony that an
accused acted in a manner consistent with possession with intent
to distribute a controlled substance or any such statement whose
direct implication is that the accused had the requisite mental
state.” The Government responded that it had no intention of
offering that kind of testimony. Given this response, the
district court did not rule on Garcia-Gil’s motion, and Garcia-
Gil did not press for a ruling.
During trial, the Government introduced evidence about the
stop and the search. As part of that evidence, Agent Martinez,
when asked about the position of the driver’s seat, responded,
“We usually look for that, you know, they’ll modify seats and
stuff like that.” The Government later referred to this
testimony during its closing arguments.
Garcia-Gil’s brother and wife testified on his behalf. His
brother, Roberto Perales-Gil, testified that Garcia-Gil helped
him in his business, which involved buying electronic equipment,
such as satellite dishes, and then selling that equipment in
Mexico. Perales-Gil testified that Garcia-Gil would help him by
making trips to flea markets in Houston. Perales-Gil also told
the jury that on one of the Houston trips, Garcia-Gil arranged to
buy a washer and dryer but had to save some money before he could
purchase the appliances.
4
Garcia-Gil’s wife, Natalia, testified that on April 2, 2003,
she received a 7 a.m. phone call from someone informing her that
he had a pickup ready to be loaned to her husband. At the time,
Garcia-Gil was out working his regular job delivering tostadas;
he did not return until the next day. On the day he was
arrested, according to his wife, Garcia-Gil left the house around
8 a.m. and called her from Laredo at 1 p.m. Natalia also
testified that they were poor and that Garcia-Gil was a good
father, a peaceful person, and someone who respected the law.
The jury convicted Garcia-Gil on both counts. The district
court, however, dismissed the conspiracy charge for insufficient
evidence. After the conviction, but before sentencing, Garcia-
Gil spoke with Agent Nivar and gave him information about the
person who provided the pickup. Throughout this time, Garcia-Gil
continued to maintain his innocence. Over Garcia-Gil’s
objections based on the safety valve provision of the Sentencing
Guidelines and his minor role in the drug operation, the court
sentenced him to 151 months in prison with five years of
supervised release and imposed a $100 special assessment. This
appeal followed.
Drug Courier Profile Testimony
Garcia-Gil first argues that the Government improperly
introduced drug-courier-profile testimony at trial.
Specifically, he complains about Agent Martinez’s testimony
5
concerning the elevated seats: “We usually look for that, you
know, they’ll modify seats and stuff like that.”2 According to
Garcia-Gil, the Government compounded the problem by referring to
this testimony during closing argument. Garcia-Gil also raises
vague Daubert challenges under Federal Rule of Evidence 702.
Garcia-Gil failed to obtain a ruling on his limine motion
and failed to object to the testimony at trial.3 Thus, the
admission of this testimony is reviewed for plain error. See
FED. R. EVID. 103; United States v. Graves, 5 F.3d 1546, 1551—52
(5th Cir. 1993). Under this standard, we first ask whether there
is an error that “is plain and affects substantial rights.”
United States v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001). Yet
we do not correct such an error unless we conclude “that the
error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Id. (quoting United States
v. Thames, 214 F.3d 608, 612 (5th Cir. 2000)).
In general, “drug courier profiles ‘have long been
recognized as inherently prejudicial because of the potential
2
Agent Martinez’s full testimony about seat placement was
We usually look for that, you know, they’ll
modify the seats and stuff like thatAnd we
found people before hiding under the seats and
stuff like that. So we always take notice of,
you know, how they’re in the vehicle and
stuff.
3
Garcia-Gil also never filed a motion under Federal Rule of
Evidence 702.
6
they have for including innocent citizens as profiled drug
couriers,’ and therefore are not admissible as substantive
evidence of the defendant’s guilt.” United States v. Mendoza-
Medina, 346 F.3d 121, 128 (5th Cir. 2003) (quoting United States
v. Williams, 957 F.2d 1238, 1241—42 (5th Cir. 1992)). Garcia-Gil
contends that this kind of improper evidence was admitted in his
case.
Yet the testimony that Garcia-Gil challenges is of a
different nature than the testimony in other cases involving drug
courier profiles. In those cases, the testimony has often
directly addressed the defendant’s knowledge that he was
transporting drugs.4 For example, in United States v. Gutierrez-
Farias, 294 F.3d 657, 662–63 (5th Cir. 2002), the court held that
the district court abused its discretion when it admitted a DEA
agent’s testimony about drug organizations’ hiring processes.
Specifically, the agent testified that when looking for someone
to transport drugs, the organizations look for people with
“knowledge[] that they’re involved in this kind of business.”
Id. at 662.
In Mendoza-Medina, the testimony was similar. The agent in
that case testified that drug dealers have to trust their
4
Thus, the testimony in these cases also raises the problem
of expert testimony about a defendant’s mental state. See FED.
R. EVID. 704(b); Mendoza-Medina, 346 F.3d at 128. Garcia-Gil
does not contend that this issue is implicated here.
7
couriers, and that couriers sometimes bring their wives and
children along to hide their drug activities. Mendoza-Medina,
346 F.3d at 127. (The defendant’s wife and children had been
with him when he was arrested. Id. at 125.) The prosecutor
summed up in closing, “we also know that it's true, based on DEA
intelligence, that narcotics trafficking organizations don't just
stick marijuana on tractors of drivers that don't know where it's
going.” Id. at 128. Based on these statements and the
conclusion the Government wanted the jury to draw from them, the
Mendoza-Medina court determined that the district court had
abused its discretion in admitting the agent’s testimony. Id. at
129.
What Garcia-Gil complains about is not classic drug-courier-
profile testimony. Compared with the testimony in Gutierrez-
Farias and Mendoza-Medina, Agent Martinez’s testimony, explaining
why Garcia-Gil was sent to the secondary inspection area, is of
an entirely different nature. In addition, Garcia-Gil’s argument
that this was drug-courier-profile testimony ignores what
Martinez said immediately after “they’ll modify the seats and
stuff like that.” Martinez’s continued testimony sounds like
elevated seats were signs of smuggling people, not drugs: “And we
found people before hiding under the seats and stuff like that.
So we always take notice of, you know, how they’re in the vehicle
and stuff.” It is therefore not clear that this testimony was,
8
in fact, about drug couriers at all.
Moreover, the Government’s use of the testimony in its
closing argument solely focused on the irregular placement of the
seat: “[Agent Martinez] noticed something unusual. And it was
that the seat in that truck was lifted. Not the truck, itself.
But the seat in the truck was lifted.” This statement does not
refer to any of the types of improper expert testimony that
Garcia-Gil complains about.5 After all, Garcia-Gil’s motion in
limine addressed “expert testimony concerning the operations of
drug smuggling organizations.” But in closing, the Government
referred to the testimony in the context of Garcia-Gil’s truck
containing something obviously out of the ordinary, not in the
context of how drug smuggling organizations generally operate.
This testimony was not expert testimony about drug operations,
and so Garcia-Gil’s limine motion was not implicated. Garcia-Gil
has not shown error in admitting Agent Martinez’s testimony or in
referring to this testimony in closing argument.
Pre-Miranda Silence
Garcia-Gil next argues that the Government violated his
Fifth Amendment rights by using his postarrest, pre-Miranda-
warning silence as evidence of his guilt. Garcia-Gil admits that
he failed to object at trial to this testimony and concedes that
5
Garcia-Gil does not challenge Martinez’s knowledge of the
normal seat height for a pickup truck.
9
review is for plain error.
Garcia-Gil bases this challenge on Agent Martinez’s and
Agent Loa’s testimony about the arrest. Martinez testified that
after the agents told Garcia-Gil that he was under arrest, he
stood up, put his head down, and placed his hands behind his
back. According to Martinez, “[h]e didn’t ask us, you know, at
that point what he was under arrest for.”6 Loa likewise
testified that Garcia-Gil, upon being informed that he was under
arrest, “without asking why, turned around, placed his hands
behind his back.”
Use at trial of pre-Miranda silence is not necessarily
unconstitutional. “[T]he Constitution does not prohibit the use
for impeachment purposes of a defendant's silence prior to
arrest, . . . or after arrest if no Miranda warnings are given.
Such silence is probative and does not rest on any implied
assurance by law enforcement authorities that it will carry no
penalty.” Brecht v. Abrahamson, 507 U.S. 619, 628 (1993)
(citations omitted). “The admission of evidence that a defendant
remained silent on arrest and before a Miranda warning turns on
6
Martinez testified this way in response to the question
“And once you saw the white powder, what did you do next?”
Martinez’s full answer was,
We came around front where Mr. Garcia was sitting at, and
we told him that he was under arrest. Agent Loa
handcuffed him. When we told him he was under arrest, he
stood up, and he put his hands behind his back. Kind of
put his head down. He didn’t ask us, you know, at that
point, you know, what he was under arrest for.
10
fact specific weighing by the trial judge.” United States v.
Musquiz, 45 F.3d 927, 931 (5th Cir. 1995).
Garcia-Gil emphasizes that in this case, his silence was
used as part of the prosecution’s case-in-chief, not for
impeachment purposes. He argues that silence can only properly
be used as impeachment evidence. This court has held otherwise.
In United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.
1996), the court found no error in the prosecution’s use of the
defendant’s pre-arrest silence in its case-in-chief and in its
closing argument. The defense’s theory of the case was that
Zanabria had been forced to smuggle drugs because of threats
against his daughter. Id. at 592. In its case-in-chief, the
Government introduced testimony that, before arrest, Zanabria did
not mention any threats against his daughter. Id. at 593. The
court concluded,
The fifth amendment protects against compelled self-
incrimination but does not, as Zanabria suggests,
preclude the proper evidentiary use and prosecutorial
comment about every communication or lack thereof by the
defendant which may give rise to an incriminating
inference. We find no error in the use of this evidence
or in the prosecutor’s comments thereon.
Id. at 593. Thus, this circuit’s precedent prevents Garcia-Gil
from drawing a distinction based on whether the silence was used
as impeachment evidence or as substantive evidence of guilt.
Essentially, Garcia-Gil argues that all testimony about
postarrest silence violates the Fifth Amendment when introduced
11
as evidence of guilt. He does not distinguish his case from
Zanabria, in which this court concluded that evidence of the
defendant’s silence could be used in the Government’s case-in-
chief. Moreover, Garcia-Gil does not explain how this testimony
prejudiced him, except to comment that the evidence against him
was “slim,” a characterization not supported by the record. In
short, Garcia-Gil has not established error.
Sentencing Guidelines
Garcia-Gil also raises two issues about the application of
the federal sentencing guidelines to his case. He claims that he
was entitled to both a safety valve reduction and a reduction for
playing a minor role in the offense. Since the parties submitted
their briefs, the Supreme Court decided United States v. Booker,
125 S. Ct. 738 (2005). In Booker, the Court held that a sentence
based on judge-made fact findings under mandatory federal
sentencing guidelines violates a defendant’s Sixth Amendment
rights. 125 S. Ct. at 750, 756. As a remedy, the mandatory
aspects of the federal sentencing guidelines were severed from
the rest of the statute, as were the sections relating to
appellate review. Id. at 764.
In reviewing pre-Booker sentences, “when a district court
has imposed a sentence under the Guidelines, this court continues
after Booker to review the district court’s interpretation and
application of the Guidelines de novo.” United States v.
12
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). This court has also
concluded that factual issues relating to the guidelines and
decided before Booker continue to be reviewed for clear error.
United States v. Creech, —— F.3d ——, No. 04-40354, 2005 WL
1022435, at *6 (5th Cir. May 3, 2005).
Safety Valve
Garcia-Gil’s first sentencing argument is that the district
court erred by not granting him relief under the safety valve
provision, 18 U.S.C. § 3553(f) and U.S. SENTENCING GUIDELINES MANUAL
§§ 2D1.1(b)(6) & 5C1.2 (2004). Under this provision, a defendant
convicted of certain drug crimes is sentenced under the otherwise
applicable guideline range, rather than the statutory mandatory
minimum, if he establishes that he meets certain requirements.
These requirements are:
(1) [T]he defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines;
(2) [T]he defendant did not use violence or credible
threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to do so)
in connection with the offense;
(3) [T]he offense did not result in death or serious
bodily injury to any person;
(4) [T]he defendant was not an organizer, leader,
manager, or supervisor of others in the offense, as
determined under the sentencing guidelines and was not
engaged in a continuing criminal enterprise, as defined
in section 408 of the Controlled Substances Act; and
(5) [N]ot later than the time of the sentencing hearing,
the defendant has truthfully provided to the Government
13
all information and evidence the defendant has concerning
the offense or offenses that were part of the same course
of conduct or of a common scheme or plan, but the fact
that the defendant has no relevant or useful other
information to provide or that the Government is already
aware of the information shall not preclude a
determination by the court that the defendant has
complied with this requirement.
18 U.S.C. § 3553(f).
In this case, the district court determined that Garcia-Gil
did not qualify for a safety valve reduction because he did not
satisfy the fifth, “tell-all” requirement. The parties disagree
about the basis for this decision. The Government contends that
the district court based its decision on an implicit finding that
Garcia-Gil’s information was incomplete and not entirely
truthful. Garcia-Gil, on the other hand, contends that the
district court determined, as a matter of law, that a defendant
who provided all the information he had but still maintained his
innocence could never be entitled to a safety valve reduction.
Garcia-Gil provided information to Agent Novar but continued
to claim that he was innocent. The probation officer reasoned
that despite this information, Garica-Gil’s claim of innocence
prevented him from receiving the safety valve reduction. Garcia-
Gil objected to this assertion and argued that the safety valve
statute requires him to provide truthful information, but does
not necessarily require him to admit guilt. The district court
disagreed, stating, “It is contemplated that you provide
information to the government——you know, about your involvement.
14
And certainly you are going to admit your involvement, and most
certainly after a jury has found you guilty.”
On appeal, Garcia-Gil argues that the district court
improperly read a requirement that a defendant admit his guilt
into the requirement that he truthfully provide the Government
with all the information and evidence that he has. Garcia-Gil
contends that the two issues are separate and relies on United
States v. Sherpa, 110 F.3d 656 (9th Cir. 1996), to support this
distinction.
In Sherpa, the Ninth Circuit held that the district court
did not err in awarding a defendant a safety valve reduction even
though he continued to insist that he did not know that he was
transporting drugs. Id. at 663. The court concluded that the
judge could find that the defendant was being truthful and
complete in his disclosures despite his continued claims of
innocence. Id. at 660-61. Sherpa is based on the difference
between the judge’s factual findings and the jury’s. Id. at 660.
Thus, the Sherpa court indicated that “[t]he judge is privy to
far more information than the jury and is therefore in a much
different posture to assess the case and determine whether the
defendant complies with § 3553(f).” Id. at 660. The court
continued,
A judge, therefore, could logically find that reasonable
minds might differ on a given point so as to preclude a
judgment of acquittal, but conclude that he or she would
have voted differently had he or she been a juror. While
15
the judge's personal disagreement has no impact on the
jury’s finding of guilt, . . . such disagreement is
properly considered in the judge’s sentencing decision.
Id. at 661.
But Sherpa does not go as far as Garcia-Gil contends it
does. The Sherpa court stated that “[all information relevant to
the offense], of course, encompasses [the defendant’s] role in
the offense, including whether he knew that there were drugs
secreted in the suitcase——such knowledge being an element of the
offense charged.” Id. at 660. Therefore, even under Sherpa, the
issue is not whether a defendant can continue to falsely maintain
his innocence and still receive a safety valve reduction.7
Instead, the issue is whether, despite the jury verdict, the
district court can believe those protestations of innocence and
grant safety valve relief.
Furthermore, other circuits have reached different
conclusions than the Sherpa court did. See United States v.
Reynoso, 239 F.3d 143, 149-50 (2d Cir. 2000) (calling Sherpa
“wrongly decided” and declining to follow it); see also United
States v. Buenrostro-Flores, No. 03-2545, 2004 WL 1943218, at *6
(7th Cir. 2004) (“In light of a jury verdict against him and the
7
Thus, for Garcia-Gil to prevail under Sherpa, he would have
to show that the district court erred in finding that, contrary
to the jury verdict, he did not know the drugs were in the
pickup. Although Sherpa would allow the district court to reach
such a finding, it does not seem, given the facts of this case,
that Sherpa would require it.
16
evidence we found earlier to have been sufficient to support that
verdict, Buenrostro has not met the burden of proving his
eligibility for the safety valve reduction.”).
Nevertheless, the Government does not argue in favor of a
per se rule that a guilty verdict precludes safety valve relief.
Instead, the Government argues that the district court implicitly
found that Garcia-Gil had not been truthful or that his continued
claim of innocence prevented him from disclosing all his
information, such as the drugs’ source or destination. We agree.
In the end, Garcia-Gil has not established that he is
entitled to safety valve relief. The district court did not err
when it concluded that Garcia-Gil failed to fulfill the “tell-
all” requirement. Although it is possible, if the court follows
Sherpa, for the district court to believe a defendant’s
protestations of innocence and find that he has told the
prosecution all he knows, such a finding is certainly not
required. Instead, we easily accept the district court’s finding
that Garcia-Gil was not being truthful and that this lack of
candor disqualified him from safety valve eligibility. We do not
need to adopt or reject the Ninth’s Circuit’s reasoning in
Sherpa.
Mitigating Role
Garcia-Gil also claims that he was entitled to a reduction
for playing a minor role in the offense. The guidelines provide
17
for a four-level reduction “[i]f the defendant was a minimal
participant in any criminal activity” and a two-level reduction
“[i]f the defendant was a minor participant in any criminal
activity.” U.S. SENTENCING GUIDELINES MANUAL § 3B1.2(a)&(b)(2004).
To be a minor participant, the defendant generally must be
“substantially less culpable” than the average participant in the
criminal activity. United States v. Brown, 54 F.3d 234, 241 (5th
Cir. 1995).
Garcia-Gil contends that he was entitled to a mitigating
role reduction because he was merely a courier. Citing
application note 3(A) to § 3B1.2, he argues that couriers are not
necessarily excluded from a mitigating role reduction. The
application note provides,
A defendant who is accountable under 1.3 (Relevant
Conduct) only for the conduct in which the defendant
personally was involved and who performs a limited
function in concerted criminal activity is not precluded
from consideration for an adjustment under this
guideline. For example, a defendant who is convicted of
a drug trafficking offense, whose role in that offense
was limited to transporting or storing drugs and who is
accountable under 1.3 only for the quantity of drugs the
defendant personally transported or stored is not
precluded from consideration for an adjustment under this
guideline.
U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 application note 3(A)(2004).
Yet not being automatically precluded is not the same thing as
being entitled to a reduction.
Garcia-Gil also contends that the Government essentially
conceded his minor role during its closing argument by impliedly
18
agreeing that he owned neither the pickup nor the cocaine. He
finds this concession in the Government’s argument that the owner
of the cocaine would not have let him drive the pickup if he did
not know he was transporting cocaine. He also argues that the
Government essentially conceded his limited role when it argued
that his poverty was a motive for transporting the drugs.
According to Garcia-Gil, this argument implied that he could not
have organized a large drug-trafficking scheme. We do not agree
that the Government conceded Garcia-Gil’s minor role.
On the whole, Garcia-Gil has not presented a persuasive
argument that he is entitled to a reduction for a mitigating
role. The district court’s conclusion was not clearly erroneous.
Booker
Garcia-Gil also argues, citing Booker, that the mandatory
nature of the federal sentencing guidelines at the time of his
sentencing violated his Sixth Amendment rights. He raises this
issue for the first time on appeal; therefore our review is for
plain error. United States v. Mares, 402 F.3d 511, 520(5th Cir.
2005). Thus, we cannot reverse the district court “unless there
is ‘(1) error, (2) that is plain, and (3) that affects
substantial rights. . . . If all three conditions are met an
appellate court may then exercise its discretion to notice a
forfeited error but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
19
proceedings.’” Id.(quoting United States v. Cotton, 535 U.S. 625,
631,(2002)). The Government concedes that under Booker, the
error in this case (sentencing under a mandatory guideline
regime) was plain and that the first two prongs are therefore
satisfied.
At issue, then, is the third prong——whether the error
affected substantial rights. Under this prong, “the pertinent
question is whether [the defendant] demonstrated that the
sentencing judge——sentencing under an advisory scheme rather than
a mandatory one——would have reached a significantly different
result.” Id. at 521. Garcia-Gil argues that he can present
evidence that the district court would have sentenced him
differently. Specifically, Garcia-Gil argues that unlike in
United States v. Mares, the district court in his case gave him a
sentence at the bottom of the guideline range. He contends that
based on this sentence, we should presume prejudice.
Nevertheless, a sentence at the bottom of the guidelines,
standing alone, is not enough to satisfy the plain error
standard. In United States v. Hernandez-Gonzalez, the court
concluded on a petition for rehearing that the defendant had not
satisfied his burden when he showed that “(1) the judge imposed
the minimum sentence under the Guidelines; (2) he suffered from
an alcohol abuse problem that was responsible for much of his
criminal history; and (3) he had returned illegally to the United
20
States to earn money for his family in Honduras.” —— F.3d ——,
No. 04-40923, 2005 WL 724636, at *1 (5th Cir. March 30, 2005).
The Hernandez-Gonzalez court explained,
[The defendant] points to no remarks made by the
sentencing judge that raise a reasonable probability that
the judge would have imposed a different sentence under
an advisory scheme. Hence, even if [the defendant] had
made this argument before the decision issued on this
direct appeal, it would have failed under the plain-error
test.
Id. Therefore, merely showing a sentence at the bottom of the
applicable guidelines range, as Garcia-Gil does, is insufficient
to show plain error in his sentence.
Apprendi Challenge
In his brief, Garcia-Gil also argues that the drug quantity
and type provisions of 21 U.S.C. § 841 (a) and (b) are facially
unconstitutional under the principles articulated in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Garcia-Gil admits that his
argument is foreclosed by United States v. Slaughter, 238 F.3d
580, 582 (5th Cir. 2000). Nothing interferes with Slaughter’s
application here, and thus we overrule Garcia-Gil’s Apprendi
objection.
Conclusion
For these reasons, we affirm the judgment of the district
court.
AFFIRMED.
21