United States v. Garcia ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-30596
v.  D.C. No.
MARTIN GARCIA, CR-04-00087-RFC
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-30214
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00087-RFC
RONALD E. SMITH,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
April 10, 2007—Seattle, Washington
Filed August 10, 2007
Before: Alex Kozinski, Raymond C. Fisher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Fisher
9681
9684 UNITED STATES v. GARCIA
COUNSEL
Wendy Holton, Helena, Montana, for defendant-appellant
Martin Garcia.
Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena,
Montana, for defendant-appellant Ronald Smith.
William W. Mercer, United States Attorney, Jessica T. Fehr
(argued) and James E. Seykora, Assistant United States Attor-
neys, Billings, Montana, for plaintiff-appellee.
UNITED STATES v. GARCIA 9685
OPINION
FISHER, Circuit Judge:
Martin Garcia, Ronald Smith and Robert Green were
among 13 defendants charged in a 25-count indictment with
participating in a conspiracy to distribute methamphetamine
obtained from various sources, both inside and outside Mon-
tana, and with related firearm offenses. In this opinion, we
address Garcia’s challenge to his conviction and sentence, and
Smith’s sentencing challenge, and we affirm in part, reverse
in part and remand in part. We affirm Green’s conviction in
a separate memorandum disposition, filed concurrently here-
with.
I. Background
Garcia and Green were tried together before a jury in
August 2005. Garcia was found guilty on 18 counts. The dis-
trict court rejected Garcia’s motion under Federal Rule of
Criminal Procedure 29 challenging the sufficiency of the evi-
dence to support a conviction on five of those counts (Counts
IV, V and VI; XXII and XXIII) under a Pinkerton theory of
liability. See Pinkerton v. United States, 328 U.S. 640, 646-48
(1946) (holding that each member of a conspiracy may be
charged with reasonably foreseeable substantive offenses
committed by a co-conspirator in furtherance of the conspir-
acy). Later, however, the district court granted Green’s simi-
lar Rule 29 motion with respect to two of those same counts
(Counts XXII and XXIII). The court reversed its earlier find-
ing when denying Garcia’s motion that the person named in
these counts was still a member of the conspiracy when com-
mitting the charged offenses, and found instead that he was no
longer part of the conspiracy by then.
Garcia was sentenced to a term of 1,284 months imprison-
ment in November 2005. The district court calculated Gar-
cia’s Guidelines-recommended sentence by departing upward
9686 UNITED STATES v. GARCIA
four levels under U.S.S.G. § 3B1.1(a) because it concluded
Garcia was an organizer or leader of the conspiracy, and
upward another two levels under U.S.S.G. § 3B1.4 because it
concluded he “directed, commanded, encouraged, intimi-
dated, counseled, trained, procured, recruited, or solicited
minors” in the commission of his crime.
Smith pled guilty to Count I in December 2005. The district
court sentenced him to 360 months in prison. The court con-
cluded that the Guidelines’ prohibition on a downward depar-
ture for drug addiction prevented it from considering Smith’s
addiction as a mitigating factor in any respect.
II. Analysis
A. Garcia’s Convictions on Counts IV, V and VI
Garcia challenges his convictions on Counts IV through VI
of the indictment, which charged Edwin Santiago in combina-
tion with various alleged co-conspirators (not Garcia) with
possession with intent to distribute over 50 grams of a mixture
containing methamphetamine in July 2003. Garcia timely
moved for acquittal on these counts, arguing there was insuf-
ficient evidence that he joined the conspiracy as early as July.
See Fed. R. Crim. P. 29(c); United States v. Tisor, 96 F.3d
370, 379 (9th Cir. 1996). We review a district court’s ruling
on a motion for acquittal de novo. See United States v. Neill,
166 F.3d 943, 948 (9th Cir. 1999). When a defendant argues
there was insufficient evidence to support a conviction, we
view the evidence in the light most favorable to the prosecu-
tion to determine whether “the jury reasonably could have
found the defendant guilty beyond a reasonable doubt.”
United States v. Lothian, 976 F.2d 1257, 1261 (9th Cir. 1992)
(internal quotation marks omitted).
[1] “[A] conspirator [is] criminally liable for the substan-
tive offenses committed by a co-conspirator when they are
reasonably foreseeable and committed in furtherance of the
UNITED STATES v. GARCIA 9687
conspiracy.” United States v. Long, 301 F.3d 1095, 1103 (9th
Cir. 2002) (per curiam) (citing Pinkerton, 328 U.S. at 645-
48). The government and Garcia agree that he cannot be held
responsible for crimes committed before he joined the con-
spiracy. See Lothian, 976 F.2d at 1262 (holding that “a defen-
dant cannot be held liable for substantive offenses committed
before joining or after withdrawing from a conspiracy”) (cit-
ing Levine v. United States, 383 U.S. 265, 266 (1966) (per
curiam)). We agree with Garcia that there was insufficient
evidence that he entered the conspiracy to distribute metham-
phetamine as of July 2003.
[2] The government argues that circumstantial evidence,
especially the testimony of one of Garcia’s admitted custom-
ers for cocaine, a young woman named Gwynne Black, sup-
ports the inference that Garcia was supplying her and Edwin
Santiago with methamphetamine as early as April 2003.
Black testified that in March or April 2003, she and Santiago
were selling cocaine supplied by Garcia. But these cocaine
sales do not establish that Garcia supplied Black, Santiago or
anyone else with methamphetamine, the specific drug charged
in Counts IV through VI. Nor does Black’s testimony that at
the “very beginning of June” 2003, she was getting “drugs”
from Garcia for her own use — and that he supplied “drugs”
to his girlfriend, who then shared them with Black — prove
that he was supplying them with methamphetamine. She did
not specify the kind of drugs supplied, and the quantities
appear to be consistent with only personal use, not amounts
approaching 50 grams as charged.
[3] The government contends, however, that the jury could
have inferred that Garcia was indeed supplying methamphet-
amine, and that he began doing so to Black as well as to San-
tiago by May 2003. There was testimony that a different
supplier stopped supplying Santiago at this time and yet San-
tiago still had — and was selling — methamphetamine. The
government links Garcia to this evidence by pointing to testi-
mony that he negotiated to sell one pound (a “notebook”) of
9688 UNITED STATES v. GARCIA
methamphetamine to Black and Santiago. However, Black’s
testimony clearly indicates that these negotiations occurred
sometime during or after August 2003. Thus, the govern-
ment’s argument notwithstanding, there is no evidence
directly or circumstantially establishing Garcia as the
methamphetamine supplier to Black, Santiago or any of the
other defendants before August 2003. Without any such evi-
dence, we conclude that no reasonable jury “could have found
the defendant guilty beyond a reasonable doubt” of conspiring
to distribute over 50 grams of methamphetamine in July 2003.
Lothian, 976 F.2d at 1261 (internal quotation marks omitted).1
1
We are troubled that it appears the prosecutor brought charges against
Garcia on Counts IV through VI — and the district court allowed those
charges to go to the jury — based on the prosecutor’s misstatement at trial
about the extent of conspirator liability. On appeal, the government con-
ceded that the prosecutor “persuaded the judge of an incorrect proposition
of law,” specifically that “under the general law of conspiracy, if you join
an ongoing conspiracy, you’re responsible for everything that went on
before it.” This proposition is correct only in the context of establishing
vicarious liability for acts establishing the crime of conspiracy itself rather
than vicarious liability for other substantive offenses committed in the
course of a conspiracy. Compare United States v. Saavedra, 684 F.2d
1293, 1301 (9th Cir. 1982) (“Further[,] a conspirator who joins a pre-
existing conspiracy is bound by all that has gone on before in the conspira-
cy.”), with Levine, 383 U.S. at 266 (reversing convictions in light of gov-
ernment’s concession that “an individual cannot be held criminally liable
for substantive offenses committed by members of the conspiracy before
that individual had joined or after he had withdrawn from the conspiracy”)
(emphasis added); see also Robert R. Arreola et al., Federal Criminal
Conspiracy, 34 Am. Crim. L. Rev. 617, 628-29 (1997) (“In establishing
liability for the conspiracy charge, the circuit courts generally find con-
spirator liability for acts committed by co-conspirators both prior to, as
well as during the defendant’s participation. However, a defendant cannot
be held criminally liable for substantive offenses committed by others
involved in the conspiracy before joining it or after ending participation
in the conspiracy.”) (emphasis added) (footnotes omitted).
It is thus unclear whether Garcia would have been charged with Counts
IV through VI if the prosecutor had not misunderstood conspiracy liabil-
ity, but in any event, we conclude that the government did not present suf-
ficient evidence that Garcia had joined the conspiracy in July 2003, and
we reverse Garcia’s conviction on that basis.
UNITED STATES v. GARCIA 9689
B. Garcia’s Convictions on Counts XXII and XXIII
Counts XXII and XXIII charged that a co-conspirator
named Isaac Kimber on December 9, 2003 possessed 4.2
grams of methamphetamine with the intent to distribute it.
Garcia timely moved for acquittal with respect to these
counts, so again we review the district court’s denial of his
motion de novo. See Neill, 166 F.3d at 948; Tisor, 96 F.3d at
379. Garcia argues that there was insufficient evidence that
Kimber, the only defendant named in these counts, was still
part of the conspiracy on December 9, 2003.
[4] The district court denied Garcia’s motion after the close
of evidence. However, after Garcia had already been sen-
tenced, the district court in addressing Garcia’s co-defendant
Green’s identical Rule 29 motion then reversed Green’s con-
viction for Counts XXII and XXIII, finding that:
the jury had no evidence suggesting Kimber’s
December 9, 2003 crimes (Counts XXII & XXIII)
were undertaken in furtherance of the conspiracy.
. . . Santiago and Black were arrested over two
months before Kimber was caught in the act [in
December 2003]. There was no evidence linking the
methamphetamine that Kimber possessed on Decem-
ber 9, 2003 to the conspiracy, and his conviction on
Count XXII must be reversed. . . . [I]t was unreason-
able for the jury to find that Kimber committed the
crime charged in Count XXIII in furtherance of the
conspiracy.
The district court specifically disclaimed its earlier reliance —
when denying Garcia’s motion — on “Exhibit 233, a letter
Santiago sent from jail . . . which listed Isaac Kimber as a per-
son who owed Santiago money.” “In hindsight, the fact that
Kimber owed Santiago money proves only that” and “does
not prove that Kimber was [a] member after Santiago was
arrested in October and certainly does not prove he was still
9690 UNITED STATES v. GARCIA
selling methamphetamine in furtherance of the conspiracy
two months later.” The government has not appealed the dis-
trict court’s reversal of Green’s convictions on these grounds,
so any objection to the court’s finding as to him has been
waived.
[5] In light of the district court’s ruling on Green’s motion,
we remand Garcia’s Rule 29 motion to the district court for
reconsideration. “It is ‘the most basic principle of jurispru-
dence that we must act alike in all cases of like nature.’ ”
Myers v. Ylst, 897 F.2d 417, 420 (9th Cir. 1990) (quoting
Henry J. Friendly, Indiscretion About Discretion, 31 Emory
L.J. 747, 758 (1982) (internal quotations omitted)). We
express no opinion on the merits of either of the district
court’s rulings regarding the sufficiency of the evidence of
Kimber’s continued involvement in the conspiracy.
C. Enhancements to Garcia’s Guidelines-Recommended
Sentence
In calculating Garcia’s Guidelines-recommended sentence,
the district court enhanced Garcia’s offense four levels for his
role as an organizer or leader and two levels for involving a
minor in the crime. We review the district court’s interpreta-
tion of the Sentencing Guidelines de novo. See United States
v. Hernandez, 476 F.3d 791, 802 (9th Cir. 2007). The district
court’s findings of fact are reviewed for clear error. See
United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.
2005). There is an intracircuit conflict regarding how we
review application of the Guidelines to the facts. Compare id.
(“This court reviews . . . the district court’s application of the
Sentencing Guidelines to the facts of this case for abuse of
discretion.”), with United States v. Williamson, 439 F.3d
1125, 1137 n.12 (9th Cir. 2006) (“We review the interpreta-
tion and application of the Guidelines de novo.”); see also
United States v. Staten, 466 F.3d 708, 713 n.3 (9th Cir. 2006)
(discussing the conflict). However, because our decision
would be the same under either standard of review, we do not
UNITED STATES v. GARCIA 9691
need to call this case en banc to resolve the conflict. We
affirm the imposition of both enhancements.
1. Organizer/leader (§ 3B1.1(a))
The district court enhanced Garcia’s offense level four
levels under U.S.S.G. § 3B1.1(a). Garcia contends that he
acted solely as a supplier, not as an organizer or leader, and
thus that he does not qualify for an enhancement under
§ 3B1.1(a); he further contends that because no evidence was
presented that he qualifies for an enhancement under
§ 3B1.1(b), we should remand for resentencing without any
enhancement encompassed by § 3B1.1. That section provides
for varying levels of enhancement depending upon a defen-
dant’s control over criminal activity and the number of people
involved:
(a) If the defendant was an organizer or leader of a
criminal activity that involved five or more partici-
pants or was otherwise extensive, increase by 4
levels.
(b) If the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise
extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, man-
ager, or supervisor in any criminal activity other than
described in (a) or (b), increase by 2 levels.
U.S.S.G. § 3B1.1. The application notes provide:
Factors the court should consider include the exer-
cise of decision making authority, the nature of par-
ticipation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
9692 UNITED STATES v. GARCIA
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over oth-
ers. There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal
association or conspiracy. This adjustment does not
apply to a defendant who merely suggests commit-
ting the offense.
U.S.S.G. § 3B1.1, cmt. 4.
[6] We have upheld upward adjustments under § 3B1.1(a)
in “cases involv[ing] defendants who, the evidence showed,
exercised some degree of control or organizational authority
over others.” United States v. Avila, 95 F.3d 887, 890 (9th
Cir. 1996) (citing cases). Such control or authority over others
is required to impose the four-level enhancement under
§ 3B1.1(a), for it is “precisely what distinguishes a leader or
an organizer [under § 3B1.1(a)] from a manager or supervi-
sor” under § 3B1.1(b). Id. at 890 n.6. A § 3B1.1(a) enhance-
ment is not justified if there is “no evidence that [the
defendant] coordinated or oversaw the procurement or distri-
bution of drugs” or “exercised any control or organizational
authority over others.” Id. at 890-91 (noting that the defendant
there “merely relayed the price of the cocaine, as set by his
supplier, to the buyer”); see also United States v. Lopez-
Sandoval, 146 F.3d 712, 717-18 (9th Cir. 1998) (reversing a
§ 3B1.1(a) enhancement where the defendant only relayed
information about drug transactions). An enhancement under
§§ 3B1.1(a) or (b) does not require control over all of the five
or more participants. See United States v. Barnes, 993 F.2d
680, 685 (9th Cir. 1993) (holding that “[t]he fact that [the
defendant] did not supervise more than one participant does
not preclude the enhancement [under § 3B1.1(b)] as a matter
of law”). The Eleventh Circuit has noted that “fronting” drugs
may be indicative that a defendant “exercised a managerial
role,” although it further held that mere “evidence of fronting,
without more, is insufficient to satisfy the management
UNITED STATES v. GARCIA 9693
requirement.” See United States v. Alred, 144 F.3d 1405, 1422
& n.18 (11th Cir. 1998) (emphasis in original) (drawing a dis-
tinction between cases in which the fronting was accompanied
by direct control by the creditor and those in which the credi-
tor was paid several weeks later after merely transporting the
drugs).
[7] Here, there is evidence that Garcia did more than relay
prices, but rather set the price and quantity for the metham-
phetamine he supplied to Black and Santiago. There is also
evidence that Garcia exercised control over at least Black by
fronting her methamphetamine while threatening to harm her
if she did not repay him for the drugs within three days. Black
testified that she “had like signed my life off” to Garcia
because “[i]f it wasn’t paid, then that was my ass,” and that
Garcia had told her as much. Black also testified that Garcia
“said that [she] was to keep track of the money and make sure
that Eddie didn’t . . . try to rip [her] off.” This evidence sup-
ports the district court’s findings that Garcia “had a high
degree of participation in the planning of the offenses” and
“provid[ed] instruction to others,” and its conclusion that Gar-
cia organized and exercised control over at least Black and
her participation in the methamphetamine distribution.
Whether applying a de novo or an abuse of discretion stan-
dard of review, we affirm the district court’s decision to
impose the four-level organizer/leader enhancement under
§ 3B1.1(a).
2. Involvement of a minor (§ 3B1.4)
[8] Based on Garcia’s interactions with Black — who was
then only 17 years old — the district court imposed a two-
level enhancement to Garcia’s offense level under U.S.S.G.
§ 3B1.4, which applies when “the defendant used or
attempted to use a person less than eighteen years of age to
commit the offense or assist in avoiding detection of, or
apprehension for, the offense.” “The evidence must show that
‘the defendant acted affirmatively to involve the minor’ in the
9694 UNITED STATES v. GARCIA
crime.” United States v. Jimenez, 300 F.3d 1166, 1169 (9th
Cir. 2002) (quoting United States v. Parker, 241 F.3d 1114,
1120 (9th Cir. 2001)). Section 3B1.4’s application notes spec-
ify that “ ‘[u]sed or attempted to use’ includes directing, com-
manding, encouraging, intimidating, counseling, training,
procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4 cmt.1.
In Parker, we held that simply “acting as [a minor’s] part-
ner” in a crime or as a minor’s co-conspirator does not suffice
as a basis for a § 3B1.4 enhancement. Parker, 241 F.3d at
1120-21. We noted that the district court there found that the
defendant and the minor “were merely co-conspirators.” Id.
(emphasis added). Our holding that the defendant did not
“ ‘use[ ] or attempt[ ] to use’ [his minor co-conspirator] under
the meaning of § 3B1.4” was specifically predicated on our
conclusion the “[d]efendant did not command, encourage,
intimidate, counsel, train, procure, recruit, solicit, or other-
wise actively involve” the minor. Id.
[9] Here, the district court stated its “belie[f] that [Garcia]
directed, commanded, encouraged, intimidated, counseled,
trained, procured, recruited, or solicited minors in the com-
mission of this crime.” There is sufficient evidence that Gar-
cia engaged in conduct involving Black that at least qualifies
as “training,” “intimidating” or “encouraging.” Black testified
that Garcia advised her to “keep track” of the proceeds of the
methamphetamine he fronted her and indicated that if she did
not repay him, “then that was [her] ass.” Black also testified
that although she initially asked Garcia to front her just an
ounce of methamphetamine to sell, Garcia would only agree
to sell her a pound and then, as discussed above, instructed
her regarding aspects of selling the pound. Unlike Parker,
there was much more than evidence of mere partnership or
co-conspirator status. We therefore affirm Garcia’s sentence
enhancement under § 3B1.4.2
2
Because we affirm the enhancement on the basis of Garcia’s interac-
tions with Black, we do not address whether evidence that Garcia’s minor
daughter accompanied him on a trip during which he transported metham-
phetamine could support an enhancement under § 3B1.4.
UNITED STATES v. GARCIA 9695
D. Smith’s Sentencing Challenge
[10] Smith challenges his sentence, arguing that the district
court erred by not considering drug addiction as a mitigating
factor under 18 U.S.C. § 3553(a)(1), which requires the sen-
tencing court to consider “the nature and circumstances of the
offense and the history and characteristics of the defendant.”
The district court concluded that it did not have the discretion
to consider Smith’s alleged diminished mental capacity due to
drug addiction, because voluntary drug addiction is precluded
as a basis for a downward departure under the Guidelines. See
U.S.S.G. §§ 5K2.13, 5H1.4.
[11] The district court, without the benefit of our more
recent case law, adopted too narrow a view of its discretion-
ary authority post-Booker. See United States v. Booker, 543
U.S. 220 (2005). The system of downward departures that still
guides the sentencing court’s determination of the Guidelines-
recommended range as required under § 3553(a)(4) does not
preclude the court’s discretion to consider other § 3553(a)
factors. As we stated in United States v. Mohamed, 459 F.3d
979 (9th Cir. 2006), “if a district court were to employ a post-
Booker ‘departure’ improperly, the sentencing judge still
would be free on remand to impose exactly the same sentence
by exercising his discretion under the now-advisory guide-
lines.” Id. at 987. Just because a consideration was improper
under the mandatory Guidelines regime does not mean that it
is necessarily improper under the advisory Guidelines regime.
Other circuits have refused to foreclose sentencing courts’
consideration of drug addiction entirely, although at least one
circuit has expressed skepticism that addiction is a proper rea-
son for sentencing below the Guidelines “absent extraordinary
circumstances.” United States v. Hodge, 469 F.3d 749, 757
(8th Cir. 2006) (noting the continuing relevance of § 5H1.4);
see also United States v. Matheny, 450 F.3d 633, 641 (6th Cir.
2006) (tacitly approving the sentencing court’s statement
“that it considered, pursuant to § 3553(a)(1), the fact that
Matheny had his drug addiction since childhood”).
9696 UNITED STATES v. GARCIA
[12] We agree with our sister circuits and hold that district
courts are not prohibited in all circumstances from consider-
ing a defendant’s drug addiction in choosing a reasonable sen-
tence. We express no opinion as to whether Smith’s alleged
drug addiction and diminished mental capacity would be an
appropriate consideration in this case. Rather, because we are
not certain that the district court would impose the same sen-
tence if it had full knowledge of its discretionary authority to
consider drug addiction during sentencing, we remand for the
district court to consider this question in the first instance. Cf.
United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.
2005) (en banc).
Accordingly, with respect to Garcia, we REVERSE and
VACATE his convictions on Counts IV, V and VI of the
indictment, we REMAND for resentencing in light of this
reversal and we REMAND for reconsideration of his convic-
tions on Counts XXII and XXIII. With respect to Smith, we
VACATE and REMAND for resentencing in light of our
holding that sentencing courts are not precluded from consid-
ering a defendant’s drug addiction under all circumstances.
United States v. Garcia, No. 05-30596 is REVERSED,
VACATED AND REMANDED.
United States v. Smith, No. 06-30214 is VACATED AND
REMANDED.