United States v. Garza ( 2023 )

Case: 21-40759 Document: 00516678273 Page: 1 Date Filed: 03/15/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-40759 FILED
Summary Calendar March 15, 2023
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eric Richard Garza,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-5-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Eric Richard Garza was charged with one count of Hobbs Act robbery
and one count of discharging a firearm during the commission of a crime of
violence. Garza was convicted after a jury trial. Garza asserts four errors on
appeal. We AFFIRM in part and VACATE and REMAND for resentencing.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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FACTUAL AND PROCEDURAL BACKGROUND
In December 2018, Eric Richard Garza was arrested for attempted
armed robbery of Central Watch and Clock Repair in Corpus Christi, Texas.
A few days prior to his arrest, Garza and his friend, co-defendant Christopher
Rangel-Musial, drove to this store to sell a Rolex watch. The two negotiated
the sale with the store owner, Ambrose Denvir, who bought the watch for
$600. With that money, Rangel-Musial paid for a hotel room for himself and
his girlfriend, Belizia Pineda. He also paid Garza for driving him.
On the day of the robbery, Garza picked up Rangel-Musial and Pineda
from the hotel. Rangel-Musial told Garza he did not have the money to pay
for a new hotel room. According to Rangel-Musial, Garza suggested they
could rob the watch store, and Rangel-Musial agreed. Garza drove the three
of them to the store. Garza and Rangel-Musial went inside while Pineda
stayed in the vehicle.
The store owner, Ambrose Denvir, later testified that when the two
entered his store, he heard the motion detector alarm and saw “two men
were already around [his] counter and standing in the doorway to [his]
workshop pointing a gun at” him. He also testified that the two men “looked
like the same two men who sold [him] the Rolex watch a week earlier.”
Denvir turned to obtain a gun from his vault. Rangel-Musial then shot Denvir
twice, once in the abdomen and once in the back. Despite being shot twice,
Denvir still managed to retrieve his gun and returned fire on the men,
shooting Rangel-Musial twice. Garza and Rangel-Musial fled, and Denvir
called the police.
Garza drove Rangel-Musial and Pineda to the hospital so Rangel-
Musial could receive treatment for his injuries. Garza left the hospital.
Subsequently, police arrived at the hospital and arrested Rangel-Musial and
Pineda. After viewing surveillance footage from the watch store, the police
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obtained the make, model, and license plate number of Garza’s vehicle. Later
that evening, police stopped Garza’s vehicle and performed a “high-risk
vehicle stop” with multiple police units. They arrested Garza, then
inspected his vehicle and found a “significant amount of blood.”
In February 2019, a grand jury for the United States District Court for
the Southern District of Texas indicted Garza for attempted Hobbs Act
robbery in violation of 18 U.S.C. § 1951 and § 2 (count one), and discharge of
a firearm during a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A)(iii) and § 2 (count two). Garza’s jury trial began in June 2021.
During voir dire, the district court asked prospective jurors whether they had
ever been a victim of a crime and whether they, or their family, had ever
worked in prosecution or law enforcement. For those who responded
affirmatively, the judge asked additional questions. Counsel then conducted
their own questioning. Relevant here, Garza’s counsel asked some of the
prospective jurors whether they, or their family or friends, had been crime
victims, whether there should be greater gun control laws, and whether they
believed the criminal justice system was too lenient. Defense counsel did not
object to the seating of any of the 12 jurors who were selected.
At the close of trial, the district court instructed jurors that, in order
to convict Garza of discharging a firearm during a crime of violence, they
needed to find Garza committed the offense of attempted Hobbs Act robbery
as charged in count one. The district court further instructed jurors that
Hobbs Act robbery qualified as a crime of violence. The jury found Garza
guilty on both counts.
The district court sentenced Garza to 78 months of imprisonment for
count one and 120 months of imprisonment for count two, served
consecutively, and a total of five years of supervised release. Garza filed a
timely notice of appeal.
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DISCUSSION
In his initial brief, Garza argues (1) the district court abused its
discretion in conducting voir dire, (2) his trial counsel rendered ineffective
assistance, and (3) the evidence was insufficient to support his convictions.
Garza later filed an unopposed motion for leave to file a supplemental brief,
which this court granted. In his supplemental brief, Garza argues his Section
924(c) conviction is invalid because attempted Hobbs Act robbery is not a
crime of violence according to the Supreme Court’s recent decision in United
States v. Taylor, 142 S. Ct. 2015 (2022), decided after Garza’s trial and after
his initial brief was filed.
We first discuss whether the Section 924(c) attempted Hobbs Act
robbery conviction is a crime of violence. Because Garza did not raise this
issue in the district court or in his initial briefing, the issue was forfeited. See
United States v. Vasquez, 899 F.3d 363, 372 (5th Cir. 2018). Our review is
therefore limited to plain error. Id. at 372–73. To establish plain error, “a
defendant must show (1) error, (2) that is clear or obvious, and (3) that
affected the defendant’s substantial rights.” United States v. Hinojosa, 749
F.3d 407, 411 (5th Cir. 2014). Even if those three elements are satisfied, we
have discretion to “remedy the error only if it (4) ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)).
Section 924(c)(1) sets forth the penalties for anyone who possesses a
firearm in furtherance of a crime of violence or uses or carries a firearm
“during and in relation to” a crime of violence, with heightened penalties
when, as here, the firearm was discharged. 18 U.S.C. § 924(c)(1)(A). A
crime of violence under Section 924(c) is a felony offense that “has as an
element the use, attempted use, or threatened use of physical force against
the person or property of another.” § 924(c)(3)(A). Subpart (B) of that
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subsection, which refers to “a substantial risk that physical force” will be
used, was declared to be unconstitutionally vague. United States v. Davis, 139
S. Ct. 2319, 2324 (2019); see also United States v. Smith, 957 F.3d 590, 592–93
(5th Cir. 2020) (defining a crime of violence in light of Davis).
Robbery under the Hobbs Act is
the unlawful taking or obtaining of personal property from the
person or in the presence of another, against his will, by means
of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property. . . .
18 U.S.C. § 1951(b)(1). In Taylor, the Supreme Court held that a conviction
for attempted Hobbs Act robbery requires the Government to prove “(1)
[t]he defendant intended to unlawfully take or obtain personal property by
means of actual or threatened force, and (2) he completed a ‘substantial step’
toward that end.” 142 S. Ct. at 2020. Attempted Hobbs Act robbery,
though, does not necessarily involve the use, attempted use, or threatened
use of force and, thus, does not constitute a Section 924(c) crime of violence.
Id. Accordingly, Garza’s attempted Hobbs Act robbery conviction is not a
crime of violence to support his Section 924(c) conviction, which rested
entirely upon attempted Hobbs Act robbery as the predicate crime of
violence. This error was plain. It also affected Garza’s substantial rights by
subjecting him to a greater sentence. We exercise our discretion and vacate
Garza’s sentence on count two and remand for resentencing.
Garza presents three other issues on appeal. First, Garza asserts the
district court abused its discretion during voir dire because his jury was
composed of victims of crimes similar to the one here. Garza claims the
district court abused its discretion by impaneling these jurors, which affected
his substantial right to a fair trial and impartial jury guaranteed by the Sixth
and Fourteenth Amendments.
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“A district court has broad discretion in assessing a potential juror’s
impartiality during voir dire, a decision we will not overturn absent a clear
abuse of discretion.” United States v. Dejean, 988 F.3d 813, 816 (5th Cir.
2021) (quotation marks and citations omitted). “In reviewing claims of this
type, the deference due to district courts is at its pinnacle.” Id. (quotation
marks and citation omitted). Here, the record confirms that the district
court’s questioning of the prospective jurors “was thorough and was
designed to elicit the information required for the informed exercise of
peremptory challenges by counsel and for the court to rule on the issue of
challenges for cause.” United States v. Garza, 574 F.2d 298, 303 (5th Cir.
1978). The court asked appropriate questions and followed up when
necessary to determine whether a potential juror could be impartial and fair.
Garza’s counsel had ample opportunity to question the prospective jurors,
which they did. Further, Garza did not challenge for cause any of the
prospective jurors he now challenges on appeal. No objections were made
during voir dire regarding the impaneled jury. There was no abuse of
discretion.
Second, Garza argues his trial counsel was ineffective for failure to
challenge these prospective jurors during voir dire. This claim was not raised
before the district court. “[A] claim of ineffective assistance of counsel
cannot be resolved on direct appeal when the claim has not been raised before
the district court since no opportunity existed to develop the record on the
merits of the allegations.” United States v. Gulley, 526 F.3d 809, 821 (5th Cir.
2008) (quotation marks and citation omitted). We review claims of
ineffective assistance on direct appeal “[o]nly in those rare occasions where
the record is sufficiently developed,” and the claim can be fairly evaluated
from the record. Id. That is not the case here because “the district court did
not hold a hearing and the record does not provide sufficient detail about trial
counsel’s conduct and motivations to allow this court to make a fair
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evaluation of the merits of the defendant’s claim.” Id. (quotation marks,
alterations, and citation omitted). Accordingly, we deny Garza’s appeal on
this issue without prejudice to collateral review.
Third, Garza argues there was insufficient evidence to establish the
burden of proof for Hobbs Act robbery. We review a sufficiency of the
evidence challenge de novo, but review “is highly deferential to the verdict.”
United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013) (quotation marks and
citation omitted). Overwhelming evidence supports Garza’s convictions —
two witnesses (Rangel-Musial and Pineda) testified against him and
described his involvement in the crime, and the victim of the crime testified
about the encounter. Garza challenges Rangel-Musial’s and Pineda’s
credibility on appeal because they “both have been convicted of moral
turpitude crimes.” This challenge fails, though, because “[t]he credibility of
the witnesses and the weight of the evidence is the exclusive province of the
jury.” United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993). We
conclude a rational jury could find beyond a reasonable doubt that Garza
participated in the attempted Hobbs Act robbery.
We AFFIRM other than as to the sentence on count two. We
VACATE that sentence and REMAND for resentencing.
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