United States v. Garza ( 2021 )

Case: 19-51184 Document: 00515753598 Page: 1 Date Filed: 02/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-51184 February 23, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Julian Rosas Garza,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-CR-391-16
Before Jolly, Southwick, and Costa, Circuit Judges.
Per Curiam:*
Julian Rosas Garza received a combined sentence of 480 months of
imprisonment on three different counts of conviction. On appeal, he argues
the sentence was substantively unreasonable. He also argues that several
procedural errors occurred, particularly that evidence of an uncharged
offense of murder was introduced at sentencing. We AFFIRM.
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-51184 Document: 00515753598 Page: 2 Date Filed: 02/23/2021
No. 19-51184
FACTUAL AND PROCEDURAL BACKGROUND
Garza and several codefendants were indicted for offenses related to
their activities as members of the Texas Mexican Mafia (“TMM”). Garza
was charged with: (1) conspiracy to interfere with commerce by extortion;
(2) conspiracy to distribute and possess with intent to distribute a controlled
substance; and (3) being a felon in possession of firearms in and affecting
commerce. 18 U.S.C. §§ 1951, 922; 21 U.S.C. §§ 841, 846. Garza pled guilty
to each of the three counts without the benefit of a plea agreement.
The latter two charges were grouped together as Count Group 1. We
detail the presentence report’s analysis of Count Group 1, as the issues before
us are centered around it. The probation officer assigned Garza a base
offense level of 38 on Count Group 1. Garza received two-level
enhancements for each of the following: (1) he used firearms while collecting
extortion payments; (2) he participated in or ordered multiple violent home
invasions; and (3) the TMM distributed controlled substances in Texas
Department of Criminal Justice and Bureau of Prisons facilities both during
the conspiracy and while this case was pending. He received a three-level
enhancement because he was a manager or supervisor in a criminal activity
that involved five or more participants or was otherwise extensive.
Importantly for one issue on appeal, information about Garza’s
involvement in the murder of a rival drug dealer, Cesar Frausto, was
contained in the presentence report. The Guideline calculation did not,
however, include a cross reference for the murder. Instead, it only included
the lesser enhancement for using violence or making threats of violence in
connection with the home invasion robberies. See U.S.S.G. § 2D1.1(b)(2).
Nonetheless, in addition to the information about the murder contained in
the presentence report, witnesses testified at sentencing regarding Garza’s
role in the murder. The probation officer calculated the range under the
2
Case: 19-51184 Document: 00515753598 Page: 3 Date Filed: 02/23/2021
No. 19-51184
Guidelines as 240 months on the first charge, life imprisonment on the
second, and 120 months on the third.
Garza filed several objections to the presentence report and requested
a variance below the Guideline range. The district court overruled those
objections following a hearing on them at sentencing. After resolving Garza’s
objections to the presentence report, the district court heard testimony and
received evidence related to Frausto’s murder.
The district court adopted the presentence report and sentenced
Garza to 240 months of imprisonment on the first charge, 480 months on the
second, and 120 months on the third, to run concurrently, for a total of 480
months of imprisonment. Garza objected “to the Court’s determination of
the [G]uidelines.” The district court noted and overruled any objections
Garza had to the Guideline calculations. Although Garza did not mention
the substantive reasonableness of the sentence, the district court noted and
overruled “any objection [Garza had] to the sentence as being
unreasonable.” Garza filed a timely notice of appeal.
DISCUSSION
Garza argues that his sentence is both procedurally and substantively
unreasonable. We “must first ensure that the district court committed no
significant procedural error, . . . [and,] [a]ssuming that the district court’s
sentencing decision is procedurally sound, [we] then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 51 (2007).
I. Procedural unreasonableness
Garza raises three issues relating to procedural unreasonableness. He
claims: (1) the district court did not provide his counsel with a meaningful
3
Case: 19-51184 Document: 00515753598 Page: 4 Date Filed: 02/23/2021
No. 19-51184
opportunity to speak at his sentencing; (2) the district court erred by allowing
Government witnesses to testify at sentencing to Garza’s involvement in a
murder; and (3) the district court erred by applying a three-level sentencing
enhancement based on Garza’s managerial role in the offense.
Of the procedural issues, Garza objected at sentencing only to the
admission of unreliable hearsay testimony regarding the murder and the
sentence enhancement. For issues for which an objection was made, the
court reviews the “district court’s interpretation and application of the
Guidelines de novo, and reviews findings of fact for clear error.” United States
v. Valdez, 726 F.3d 684, 692 (5th Cir. 2013); Fed R. Crim. P. 51(a). “A
factual finding is not clearly erroneous if it is plausible in light of the record
as a whole,” and this court “will find clear error only if a review of the record
results in a definite and firm conviction that a mistake has been committed.”
See United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (quotation
marks omitted).
For those issues to which Garza did not contemporaneously object,
we review for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009). Under plain-error review, we may grant relief when the district
court’s procedure erroneously diverged from a legal rule that is “clear or
obvious” and not “subject to reasonable dispute.” Id. We also must
determine that the error affected the defendant’s “substantial rights,”
meaning that it “affected the outcome of the district court proceedings.” Id.(quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Even then, the
court has discretion that “ought to be exercised only if the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Id. (alteration in original) (quotation marks omitted).
4
Case: 19-51184 Document: 00515753598 Page: 5 Date Filed: 02/23/2021
No. 19-51184
A. Counsel’s ability to comment on the presentence report
Garza argues that the district court prevented him from presenting to
the district court matters related to sentencing in violation of Federal Rule of
Criminal Procedure 32. He frames it as an allocution error, but it actually
occurred at the part of sentencing where Garza made objections to the
presentence report. Still, Rule 32 requires the court at sentencing to “allow
the parties’ attorneys to comment on the probation officer’s determinations
and other matters relating to an appropriate sentence.” Fed. R. Crim. P.
32(i)(1)(C).
The record reflects that the district court was especially familiar with
the arguments surrounding the drug-quantity calculation underlying the base
offense level for this conspiracy. The district court listened to and
considered Garza’s objections. In making his objection to the base offense
level, counsel stated:
I understand this Honorable Court has heard this so many
times that I’m probably not going to contribute anything new.
And in that vein, I would like to adopt any arguments
codefendants’ counsel have made in regard to drug quantity.
Lots of very experienced attorneys have argued this issue
before this Honorable Court, and so I wouldn’t want to pass up
an opportunity to adopt those arguments, if this Court would
allow that.
The district court agreed, allowing counsel to continue, but it did not agree
to allow a witness to testify about the drug-quantity calculation. Because the
district court had already heard these arguments “about 25 different times”
from defendants in the same case, we see no error in the district court’s
decision that it need not hear from a witness who would reiterate the basis for
the drug-quantity calculation. See United States v. Narvaez, 38 F.3d 162, 165
(5th Cir. 1994). Garza has not demonstrated that the district court
5
Case: 19-51184 Document: 00515753598 Page: 6 Date Filed: 02/23/2021
No. 19-51184
committed a clear or obvious violation of Rule 32(i)(1)(C) by refusing to
entertain repetitive witness testimony. See Puckett, 556 U.S. at 135.
B. Testimony regarding murder
Garza challenges the testimony at sentencing of three Government
witnesses regarding the murder of the rival drug dealer, Cesar Frausto. He
asserts: (1) the testimony was unreliable hearsay; (2) the recess in
proceedings did not provide the defense with enough time to prepare to
cross-examine the witnesses; and (3) the district court should have made a
Rule 32(i)(3)(B) 1 ruling on the murder.
Because Garza objected in district court to the reliability of hearsay
testimony related to the murder in determining the sentence, this court
reviews the district court’s interpretation and application of the Guidelines
de novo and reviews its findings of fact for clear error. See Valdez, 726 F.3d at
692. Garza correctly acknowledges that, in “making factual findings for
sentencing purposes, the district court may consider any evidence which
bears sufficient indicia of reliability to support its probable accuracy,
including hearsay evidence.” United States v. Nava, 624 F.3d 226, 230–31
(5th Cir. 2010) (quotations marks and citation omitted).
First, Garza argues that the witnesses were not credible. The district
court, however, explicitly found that the witness testimony regarding the
murder was credible. Credibility findings at sentencing “are peculiarly
within the province of the trier-of-fact.” United States v. Sotelo, 97 F.3d 782,
799 (5th Cir. 1996). Thus, we will defer to a district court’s credibility
determination. United States v. Goncalves, 613 F.3d 601, 609 (5th Cir. 2010).
Garza’s arguments before this court do not provide any basis for overturning
1
Garza’s brief cites to Rule 32(i)(3)(A), but this appears to be a mistake.
6
Case: 19-51184 Document: 00515753598 Page: 7 Date Filed: 02/23/2021
No. 19-51184
the district court’s credibility determination. See id. Consequently, we do
not do so here.
Second, Garza argues that he was given insufficient time to prepare
for the Government’s witnesses. The district court provided Garza with a
two-and-a-half-hour recess to prepare. Garza did not object in district court
to the length of the recess as insufficient to prepare; therefore, we review this
issue for plain error. See Puckett, 556 U.S. at 135. The record shows that
Garza’s counsel knew that the murder would be a contested issue at
sentencing and that he had “several lengthy visits” with the Government,
during which he was able to review certain relevant documents. Review of
the cross-examinations conducted by counsel does not indicate a lack of
preparedness; rather, counsel effectively challenged the witnesses’
credibility, their motives, and their lack of first-hand knowledge of the
murder. Garza has not demonstrated that the district court committed a clear
or obvious error regarding the length of the recess or that any such error
affected his substantial rights. See id. at 135.
Third, Garza argues that the district court erred by not making a Rule
32(i)(3)(B) ruling “stating [that the court] was not going to listen to the
murder witnesses.” As with the credibility challenge to the murder
testimony, Garza did not preserve his argument that the district court should
have made a Rule 32 ruling. We review for plain error. See Puckett, 556 U.S.
at 135. This rule requires that the district court “must — for any disputed
portion of the presentence report or other controverted matter — rule on the
dispute or determine that a ruling is unnecessary either because the matter
will not affect sentencing, or because the court will not consider the matter
in sentencing.” Fed. R. Crim. P. 32(i)(3)(B).
In none of our precedents have we examined the scope of Rule
32(i)(3)(B) or addressed whether the definition of “other controverted
7
Case: 19-51184 Document: 00515753598 Page: 8 Date Filed: 02/23/2021
No. 19-51184
matter” is expansive and includes any issue challenged at sentencing. Given
the lack of controlling authority supporting the application of Rule
32(i)(3)(B) to matters outside the presentence report, any error by the district
court in not making the requested ruling was not clear or obvious. See Puckett,
556 U.S. at 135. Furthermore, Garza has not demonstrated that the ruling
would have altered the outcome of the proceedings. See id. at 135.
Though the district court did not explicitly state it would not consider
the murder, the record does support that the district court did not rely on the
murder evidence in any meaningful way. For example, the district court
stated in response to the Government’s evidence of Frausto’s murder:
[F]rom a fairness standpoint, not only to the defendant, but
more importantly to the victim and the family, . . . [if] the state
wants to try a murder case, let them try the murder case, and
let’s have a full adjudication of the murder case, and if he can
be found guilty of the murder case beyond a reasonable doubt,
so be it. But, you know, you’re trying a murder case in this drug
conspiracy.
This demonstrates the district court’s reluctance to consider the murder in
sentencing Garza.
The district court’s sentence of 40 years’ imprisonment also supports
that it gave little consideration to the murder. The Guideline range for Count
2 was life, and the Government asked the district court to give 60 years’
imprisonment. Other defendants in the case had received sentences of 20–
40 years. The Government even argued that Garza’s culpability was “much
worse than” that of one defendant who had received 52 years. Garza has not
met his burden under plain-error review to show that any Rule 32 failure by
the district court prejudiced him.
8
Case: 19-51184 Document: 00515753598 Page: 9 Date Filed: 02/23/2021
No. 19-51184
C. Three-level enhancement
Garza preserved his argument that he should receive a two-level
enhancement based on his leadership role in the offense pursuant to Section
3B1.1(c) of the Guidelines instead of a three-level enhancement under
Section 3B1.1(b), so we review the district court’s factual finding for clear
error. See Zuniga, 720 F.3d at 590. The record supports that Garza exercised
control over at least one other member of the conspiracy. See United States
v. Delgado, 672 F.3d 320, 345 (5th Cir. 2012) (en banc); U.S.S.G. § 3B1.1(b)
cmt. n.2. Additionally, Garza managed drugs belonging to the conspirators
and directed the activities of other conspirators. See Delgado, 672 F.3d at 345.
Therefore, the district court did not clearly err by finding facts that justified
a three-level enhancement based on Garza’s role in the offense. See id.;
U.S.S.G. § 3B1.1(b) cmt. n.2.
II. Substantive unreasonableness
In his final argument, Garza challenges the substantive reasonableness
of his sentence. Because he argued in favor of a lower sentence in the district
court, this court reviews the sentence imposed under an abuse-of-discretion
standard and considers the totality of the circumstances. See Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020); Gall, 552 U.S. at
51. In reviewing substantive reasonableness, we presume that a sentence
within or below the applicable Guideline range is reasonable. See United
States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015).
Though Garza’s appellate brief sets forth the correct law regarding the
presumption of reasonableness and how a defendant might overcome that
presumption, he articulates no substantive challenge to the reasonableness of
the sentence. His challenge consequently fails. AFFIRMED.
9