United States v. Robert Garcia , 703 F.3d 471 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3788
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Robert Garcia
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: October 18, 2012
Filed: January 16, 2013
____________
Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
____________
BYE, Circuit Judge.
A jury convicted Robert Garcia of conspiracy to distribute and possession with
intent to distribute methamphetamine and Oxycodone in violation of 21 U.S.C. §§
841(a), 841(b)(1)(A), and 846, and aiding and abetting possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A) and
18 U.S.C. § 2. The district court1 sentenced Garcia to 240 months of imprisonment.
Garcia appeals his sentence on the grounds the district court clearly erred in finding
he was an organizer or leader of a criminal activity that involved five or more
participants pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) §
3B1.1(a) and possessed a firearm in connection with a drug offense pursuant to
U.S.S.G. § 2D1.1(b)(1). We affirm.
I
The Bureau of Alcohol, Tobacco, and Firearms (ATF) began investigating
Garcia's drug trafficking activities in 2007. Garcia lived in Garrison, Minnesota,
where he ran an auto body shop called D.J.'s Auto. Garcia allowed Randy Lee
Motzko, who later pleaded guilty and testified for the government, to live at D.J.'s
Auto in exchange for running errands for Garcia's drug trafficking operation. Motzko
testified Garcia directed him to drive to the Minneapolis-St. Paul area on at least four
occasions to pick up a pound of methamphetamine from Epifanio Manzanares and
transport the methamphetamine back to Garrison.
On June 24, 2010, Garcia provided Motzko a pickup truck and instructed him
to meet Manzanares in the Twin Cities to pick up methamphetamine. Authorities
learned of the meeting. Crow Wing County Deputy Patrick Pickar pulled over
Motzko's truck as Motzko returned from the transaction. After Pickar learned the
truck was uninsured, he impounded the vehicle. Officers later searched the truck and
discovered the methamphetamine inside a box of Tide laundry detergent. The
officers replaced the Tide box with a similar box to try to further the investigation and
identify additional co-conspirators. Their plan worked. John Hildreth retrieved the
truck from the impound lot. Officers followed him as he drove the truck to a boat
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
-2-
launch on Mille Lacs Lake. Garcia and Shawn Fultz arrived on a pontoon boat.
Officers watched while the three men searched for the methamphetamine located
inside the box of detergent.
Thomas Cisar and Emily Blahnik also testified for the government. Cisar did
odd jobs at D.J.'s Auto and received methamphetamine as compensation for his work.
Blahnik was the girlfriend of Karl Pentz, who was indicted with Garcia and pleaded
guilty to conspiracy and firearm charges. Blahnik took over Pentz's drug dealing
operation after Pentz was arrested. Blahnik testified she received an ounce of
methamphetamine from Garcia for resale at least four times before Blahnik was
arrested on July 30, 2008 for selling one half-ounce of methamphetamine.
Finally, the government presented the testimony of two confidential
informants, Anthony Kemper and Renee Kelm. Kemper made nine controlled
methamphetamine buys from Garcia between the summer of 2009 and the fall of
2010. Kelm made five controlled methamphetamine buys from Pentz between
February 2010 and May 2010.
The jury returned a guilty verdict. Before sentencing, the district court
examined a presentence investigation report (PSR), which recommended increasing
Garcia's offense level by two for possession of a dangerous weapon in connection
with a drug crime pursuant to U.S.S.G. § 2D1.1(b)(1) and by an additional four levels
for being an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive pursuant to U.S.S.G. § 3B1.1(a). Garcia
objected to the recommended enhancements.
The district court held an evidentiary hearing regarding the disputed sentencing
issues on December 13, 2011. ATF Agent Jayme Syverson, who had been with the
investigation since it began, testified at the hearing. He stated the majority of Garcia's
drug sales took place in Garcia's home or business. Garcia's role was to coordinate
-3-
all aspects of these transactions. Syverson recounted one particular transaction on
May 20, 2010, in which police officers followed Pentz from his residence to Garcia's
home on Mille Lacs Lake. Pentz picked up methamphetamine at Garcia's home and
thereafter drove to a McDonald's parking lot, where Pentz sold methamphetamine to
Kelm. Syverson also detailed the October 14, 2010 execution of a search warrant at
Garcia's home. Inside Garcia's bedroom, agents found a small amount of psilocybin
mushrooms and marijuana, four Ecstasy tablets, a rifle magazine loaded with eight
.22 caliber rounds, and ten loose .270 caliber rounds. Inside Garcia's laundry room,
agents found five guns: three 12-gauge shotguns and two rifles. Agents found
additional ammunition in a downstairs bedroom and an outside shed.
After considering the testimony at the sentencing hearing and the evidence at
trial, the district court overruled Garcia's objections to the PSR and imposed the two
enhancements. The court calculated Garcia's Guidelines range at 360 months to life,
but varied downward and sentenced Garcia to 240 months of imprisonment. Garcia
then filed this appeal.
II
Garcia asks us to reverse the district court's sentence and remand for
resentencing for two reasons: (1) the district court erred in applying the four-level
leadership enhancement; and (2) the district court improperly applied the two-level
dangerous weapon enhancement.
We review the district court's application of the Sentencing Guidelines de novo
and its factual findings for clear error. United States v. Anderson, 618 F.3d 873, 879
(8th Cir. 2010). Because the number of members of a conspiracy and a defendant's
possession of a gun within the meaning of U.S.S.G. § 2D1.1(b)(1) are matters of fact,
this court reviews the district court's conclusions for clear error. United States v.
Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008) (leadership enhancement); United
-4-
States v. Perez-Guerrero, 334 F.3d 778, 783 (8th Cir. 2003) (dangerous weapon
enhancement).
A. Leadership Enhancement
Section 3B1.1(a) mandates a four-level enhancement "[i]f the defendant was
an organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive." A "participant" is "a person who was criminally
responsible for the commission of the offense, but need not have been convicted."
U.S.S.G. § 3B1.1, cmt. n.1. "The government bears the burden of proving by a
preponderance of the evidence that the aggravating role enhancement is warranted."
United States v. Gaines, 639 F.3d 423, 427 (8th Cir. 2011).
Garcia does not dispute he was a leader or organizer. Instead, he argues the
criminal conspiracy he led did not have five or more participants. Garcia concedes
he, cooperating co-defendant Motzko, and co-defendant Pentz were participants.
Appellant's Br. 21. He claims, however, the district court clearly erred when it found
co-defendant Manzanares participated in the conspiracy because the government did
not present evidence of Manzanares's participation in its memorandum detailing the
government's sentencing position. We disagree. Manzanares pleaded guilty to
participating in the conspiracy Garcia led. Moreover, Agent Syverson's testimony at
the sentencing hearing regarding the June 24, 2010 transaction between Motzko and
Manzanares was sufficient to establish Manzanares was a participant. Motzko's trial
testimony about the multiple drug transactions he conducted with Manzanares
provided further evidence. A sentencing court may rely on evidence introduced at
trial when making Guidelines determinations. United States v. Bledsoe, 445 F.3d
1069, 1073 (8th Cir. 2006) ("Having presided over the trial, the district court was
entitled to rely on this evidence at sentencing . . . ."). The government has adduced
more than sufficient evidence to prove Manzanares was a participant in the
conspiracy Garcia led.
-5-
Garcia also contends the district court clearly erred with respect to the other
participants because (1) Blahnik and Cisar had only a transient, buyer-seller
relationship with Garcia; and (2) the evidence regarding the remaining participants
is vague and inconclusive. Again, we disagree. We have acknowledged "the mere
agreement of one person to buy what another agrees to sell, standing alone, does not
support a conspiracy conviction." United States v. Prieskorn, 658 F.2d 631, 634 (8th
Cir. 1981) (quotation and citation omitted). A buyer-seller relationship, however,
involves "a single transient sales agreement and small amounts of drugs consistent
with personal use." Id. (quotation and citation omitted); see also United States v.
Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011), cert. denied, 132 S. Ct. 1583 (2012).
Here, after Pentz was arrested, Blahnik obtained an ounce of methamphetamine from
Garcia for resale at least four times. Blahnik was arrested on July 30, 2008 for selling
one half-ounce of methamphetamine Garcia had provided her. The evidence, in short,
established an ongoing relationship in which Garcia was Blahnik's supplier.2 We
therefore have little difficulty concluding Blahnik participated in the conspiracy
Garcia led.
Because we conclude Manzanares and Blahnik were participants and Garcia
has conceded he, Motzko, and Pentz participated, the conspiracy had five or more
participants. We need not address Garcia's arguments with respect to the other
participants. The district court did not clearly err when it imposed the enhancement.
B. Dangerous Weapon Enhancement
Section 2D1.1(b)(1) provides, "[i]f a dangerous weapon (including a firearm)
was possessed, increase by 2 levels." For § 2D1.1(b)(1) to apply, the government
2
The fact Blahnik was not indicted for this conduct makes no difference. See
United States v. Mendoza, 341 F.3d 687, 693 (8th Cir. 2003) (concluding persons
who are not indicted still may be "participants" for purposes of U.S.S.G. § 3B1.1).
-6-
must prove (1) the weapon was possessed; and (2) it was not clearly improbable that
the weapon was connected to the drug offense.3 Anderson, 618 F.3d at 880. "The
government can prove that the weapon was connected with the offense by showing
that a temporal and spatial relation existed between the weapon, the drug trafficking
activity, and the defendant." United States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996)
(quotation and citation omitted). Although the mere presence of a weapon is not
enough, United States v. Savage, 414 F.3d 964, 966 (8th Cir. 2005), the government
need not show the defendant used or even touched a weapon to find a connection.
United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (per curiam). The
enhancement poses "a very low bar for the government to hurdle." Anderson, 618
F.3d at 882.
Garcia does not dispute he possessed the weapons. Rather, he argues it was
"clearly improbable" the weapons ATF agents found were connected to the
methamphetamine conspiracy he led. Appellant's Br. 27. The district court found
that on at least one occasion, Garcia dealt drugs to Pentz at Garcia's residence.
Statement of Reasons 10. Garcia contends the government did not prove by a
preponderance of the evidence this transaction took place in Garcia's house, as
opposed to some other location on his property. Therefore, Garcia argues, the district
court erred when it found a spatial nexus between the guns, the methamphetamine
conspiracy, and him. Garcia also claims there was no temporal nexus. The
indictment stated the conspiracy ended on or about September 29, 2010. The alleged
3
Until relatively recently, there was some intra-circuit inconsistency regarding
this requirement. Some courts employed the "not clearly improbable" formulation
described above, while others required the government to show it was "at least
probable that the weapon was connected to the offense." United States v. Hays, 15
F.3d 125, 127 (8th Cir. 1994). Judge Arnold resolved this inconsistency in plenary
fashion in United States v. Peroceski, 520 F.3d 886 (8th Cir. 2008). It is now settled
the government must show it is "not clearly improbable" the weapon was connected
to the drug offense for the enhancement to apply.
-7-
drug deal between Garcia and Pentz occurred on May 20, 2010. According to Garcia,
these events are too remote from the October 14, 2010 seizure of the guns to
constitute a temporal nexus. Because these connections are lacking, Garcia argues
the government did not prove a required element of the enhancement.
Garcia's arguments are without merit. We have held the government
demonstrates the required connection between the weapon and the drug activity when
the weapon "was found in the same location where drugs or drug paraphernalia were
located or where part of the conspiracy took place." United States v. Young, 689
F.3d 941, 946 (8th Cir. 2012) (quotation and citation omitted). The guns were found
inside Garcia's laundry room. Part of the conspiracy unquestionably took place in
Garcia's home. ATF Agent Syverson testified many of Garcia's drug sales took place
inside his home. See United States v. Martinez, 557 F.3d 597, 600 (8th Cir. 2009)
(concluding witness testimony may provide a sufficient basis for a district court to
apply the § 2D1.1(b)(1) enhancement). Garcia offers no evidence the May 20, 2010
drug sale between him and Pentz took place elsewhere. Even if the transaction did
take place elsewhere on the property, we have not required both the weapon and drug
activity to be located within the home to find the two are connected. United States
v. Betz, 82 F.3d 205, 211 (8th Cir. 1996) (holding the district court did not clearly err
in applying the enhancement where guns were found on the same premises from
which the defendant trafficked drugs and were "readily accessible" to the defendant).
Indeed, we have found a nexus where the connection between the guns and the drugs
is more remote than in Garcia's case. See Peroceski, 520 F.3d at 889-90 (concluding
the district court did not err in applying the enhancement where the drugs were found
inside a locked safe in the defendant's girlfriend's garage and guns were found inside
a camper-trailer on the property where the defendant sometimes lived).
Moreover, although Garcia correctly notes the guns were not seized until after
the termination of the conspiracy, we do not indulge the far-fetched conclusion
Garcia acquired five guns in the two-week period between the end of the conspiracy
-8-
and the execution of the search warrant. Garcia ran a drug operation for many years.
Given the long-standing duration of Garcia's conduct, the district court did not clearly
err in finding Garcia possessed the guns while the conspiracy took place. Because
the guns were found inside Garcia's home and part of the conspiracy took place in
that same location, it is not clearly improbable the weapons were connected to
Garcia's drug trafficking activity. The district court properly applied the
enhancement.
III
The judgment of the district court is affirmed.
______________________________
-9-