United States v. Lopez-Garcia

FILED
United States Court of Appeals
Tenth Circuit
November 14, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3174
(D.C. No. 2:14-CR-20071-JAR-7)
JUAN MANUEL LOPEZ-GARCIA, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BACHARACH, McKAY, and MURPHY, Circuit Judges.
Defendant Juan Manuel Lopez-Garcia appeals the sentence entered in this
criminal case.
Defendant was convicted by a jury of conspiring to distribute and to
possess with the intent to distribute more than fifty grams of methamphetamine
and of possessing firearms as an illegal alien. Based on the large amount of drugs
involved, Defendant’s leadership role in the drug-trafficking operation, his
maintenance of a residence which was used to facilitate drug-trafficking, his
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
This case was ordered submitted on the briefs on September 28, 2017.
firearm possession, and his involvement in importing the drugs through the
Sinaloa cartel in Mexico, where his brother is a high-ranking cartel leader, the
Presentence Investigation Report calculated a total offense level of 48. The
government argued that his offense level should be increased an additional two
levels under U.S.S.G. § 3C1.1 for the obstruction of justice. After hearing
testimony from two trial witnesses and an FBI agent about the threats several
witnesses received prior to Defendant’s trial, the sentencing court held that the
obstruction enhancement was “well justified” and adjusted the offense level up to
50. (Appellant’s App. Vol. III at 169.) This increase was mainly academic,
however: under the Sentencing Guidelines, in the “rare case[]” where the
Guidelines calculate a total offense level of more than 43, the higher offense level
is “treated as an offense level of 43,” which results in an advisory sentence of life
imprisonment across the board, regardless of a defendant’s prior criminal history.
U.S.S.G. ch. 5, pt. A, cmt. n.2. The court held that the advisory Guidelines
sentence of life imprisonment was appropriate under all of the circumstances of
this case, and in particular because Defendant was the leader of “a huge drug
trafficking organization” that introduced “substantial amounts of
methamphetamine . . . into the lives of undoubtedly thousands of people who are
suffering and who will continue to suffer because of the product sold by this
defendant and those that worked for him.” (Appellant’s App. Vol. III at 173.) On
appeal, Defendant challenges both the procedural and the substantive
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reasonableness of his sentence.
“In reviewing the district court’s sentence for procedural reasonableness,
we review the district court’s legal conclusions de novo and its factual findings
for clear error.” United States v. Shuck, 713 F.3d 563, 570 (10th Cir. 2013). For
a factual finding to constitute clear error, “we must be convinced that the
sentencing court’s finding is simply not plausible or permissible in light of the
entire record on appeal, remembering that we are not free to substitute our
judgment for that of the district judge.” United States v. Torres, 53 F.3d 1129,
1144 (10th Cir. 1995).
Defendant argues that the district court’s sentence was not procedurally
reasonable because the court should not have imposed the two-level enhancement
for the obstruction of justice, both because this enhancement was primarily based
on unreliable hearsay testimony and because there was no evidence that directly
linked Defendant to the threats made against the witnesses and potential
witnesses. We are not persuaded by either of these arguments.
“[W]e have consistently held that hearsay statements may be considered at
sentencing if they bear some minimal indicia of reliability,” United States v.
Damato, 672 F.3d 832, 847 (10th Cir. 2012) (internal quotation marks omitted),
and we conclude that the evidence in this case was sufficient to “clear[] this low
hurdle,” id. An FBI agent testified that one of Defendant’s testifying co-
defendants reported “receiv[ing] threats in regards to testifying against
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[Defendant]” while he was incarcerated before the trial. (Appellant’s App. Vol.
III at 63.) The FBI agent testified that two other co-defendants cooperated with
the government from the time they were arrested until shortly after the witness
lists for Defendant’s trial were released, at which point they refused to testify or
cooperate any further based on threats they had received from Defendant. The
court noted that this hearsay testimony was consistent with the representations
that the co-defendants’ respective attorneys had made to the court shortly before a
change-of-plea hearing and at the co-defendants’ sentencing hearings. The court
also stated that this hearsay testimony was consistent with the testimony of two
witnesses at the sentencing hearing that they had received threats regarding their
trial testimony and with the court’s observations of Defendant’s sister’s
intimidating behavior towards the trial witnesses. The court also received
evidence about the ways incarcerated defendants can convey threats and other
messages to people both inside and outside of the penal system. Finally, the court
found that there was strong circumstantial evidence that the threats were made “at
the behest and direction of the defendant,” based on his high-ranking position in
this large-scale drug-trafficking hierarchy and the fact that, as the sole defendant
who went to trial, he had by far the strongest incentive to deter the witnesses from
testifying. (Id. at 169.) Given the corroborating evidence and other indications
of reliability in this case, including the district court’s own observations at the
trial and the change-of-plea hearing, we are persuaded that the district court did
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not clearly err in relying on the hearsay testimony about threats received by the
witnesses and cooperating co-defendants in this case.
We also see no clear error in the district court’s factual finding that the
threats were made at Defendant’s behest and direction. As the district court
noted, the circumstantial evidence strongly suggested that the threats were made
at Defendant’s direction, given his leadership role in the organization and the fact
that he was the only defendant who went to trial. Moreover, the FBI agent
testified that Defendant’s co-defendants believed Defendant had sent the threats,
and he explained how messages can be transmitted from an incarcerated defendant
to other inmates even if they are not in direct contact. Finally, we note that
threats against witnesses do not have to be made directly by a defendant in order
to qualify for an obstruction-of-justice sentencing enhancement; it is sufficient if
the defendant conveys such threats indirectly, as the district court found to have
occurred in this case. See U.S.S.G. § 3C1.1 n.4(A). The district court’s finding
that the threats came from Defendant was permissible and plausible in light of all
of the evidence in the record on appeal, and we therefore affirm this
determination.
Defendant also appears to argue that his sentence was procedurally
unreasonable because the district court failed to consider the sentencing goal of
rehabilitation when it imposed a life sentence upon someone with no prior
criminal record. There is no legal merit to this argument. We have expressly
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held that 18 U.S.C. § 3582(a) “prohibits consideration of rehabilitation in setting
one aspect of th[e] sentence, the term of imprisonment.” United States v.
Cordery, 656 F.3d 1103, 1106 (10th Cir. 2011). “Thus, while a court can pursue
the goal of rehabilitation in sentencing, for example, in setting the terms of
supervised release, it cannot do so in either determining whether to impose a term
of incarceration, or in determining the length of that term.” Id. Defendant has
accordingly shown no procedural error in the determination of his sentence.
Finally, Defendant challenges the substantive reasonableness of his
sentence. The government argues that Defendant did not raise this issue below
and thus our review should be only for plain error, while Defendant argues that
we should review under our usual abuse-of-discretion standard. We need not
resolve this dispute because we would affirm the district court’s ruling under
either standard.
In reviewing the substantive reasonableness of a sentence for an abuse of
discretion, we will reverse “only if the court exceeded the bounds of permissible
choice, given the facts and the applicable law in the case at hand.” United States
v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (internal quotation marks
omitted).
This is to say, we recognize that in many cases there will be a range
of possible outcomes the facts and law at issue can fairly support;
rather than pick and choose among them ourselves, we will defer to
the district court’s judgment so long as it falls within the realm of
these rationally available choices. And there are perhaps few arenas
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where the range of rationally permissible choices is as large as it is
in sentencing, a task calling on a district court’s unique familiarity
with the facts and circumstances of a case and its judgment in
balancing a host of incommensurate and disparate considerations,
ranging from the degree of the defendant’s cooperation and remorse
to the need for deterring potential future offenders. Nonetheless, we
will not hesitate to find abuse where a decision is either based on a
clearly erroneous finding of fact or an erroneous conclusion of law or
manifests a clear error of judgment.
Id. at 1053–54 (internal quotation marks and citations omitted). “Further, we
presume a sentence is reasonable if it is within the properly calculated guideline
range.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013).
Defendant contends that the district court abused its discretion in imposing
a life sentence upon him in this case because (1) two of his co-defendants—who
pled guilty and were lower in the cartel’s hierarchy than Defendant—each
received only thirty-year sentences; (2) Defendant had no criminal record, and a
life sentence for a first-time drug offense is not just and does not promote respect
for the court; (3) a life sentence removes all hope for rehabilitation or redemption,
which is one of the primary purposes of sentencing; (4) empirical research has
shown that lengthening sentences has no impact on general deterrence, so the goal
of deterrence is not served by this life sentence; and (5) the public would be
protected just as well by a thirty-year sentence as by the life sentence imposed in
this case.
The district court could perhaps have exercised its discretion to impose a
below-Guidelines sentence of less than life imprisonment based on some or all of
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these arguments. However, we are not persuaded that the district court’s decision
to impose the advisory Guidelines sentence of life imprisonment exceeded the
bounds of rationally permissible choices available to the court at sentencing. The
seriousness of Defendant’s conduct is reflected in his total offense level of
50—seven levels higher than needed to trigger an advisory life sentence under the
Guidelines—and we cannot say that the district court abused its discretion in
concluding that a sentence of life imprisonment would be appropriate given
Defendant’s leadership role in a large-scale drug-trafficking organization that
obtained significant quantities of drugs from the Sinaloa cartel in Mexico for
distribution in Kansas.
We accordingly AFFIRM the district court’s sentencing decision.
Entered for the Court
Monroe G. McKay
Circuit Judge
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