United States v. Francisco E. Garcia, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10353
Non-Argument Calendar
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D.C. Docket No. 9:12-cr-80079-KAM-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO E. GARCIA, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 31, 2015)
Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Francisco E. Garcia, Jr., appeals from the district court’s determination,
following remand from this Court, that he was ineligible for safety-valve relief
because he possessed three guns “in connection with” the drug offenses to which
he pled guilty. See 18 U.S.C. § 3553(f). Government agents found the three guns
in his home following his arrest for the charges in this case. Because Garcia
conducted drug transactions on the property on which his home was located, the
district court, at Garcia’s original sentencing, applied a sentencing enhancement
for possessing a firearm under United States Sentencing Guidelines (“U.S.S.G.”)
§ 2D1.1(b)(1) and, for the same reasons, denied safety-valve relief. The district
court sentenced Garcia to the statutory mandatory minimum term of 120 months of
imprisonment, the lowest sentence Garcia could receive unless the safety valve
applied.
In Garcia’s first appeal, we upheld application of the § 2D1.1(b)(1)
enhancement but we reversed and remanded for resentencing with respect to
whether the safety valve was available to Garcia. United States v. Garcia,
590 F. App’x 915 (11th Cir. 2014). We explained that, pursuant to our decision in
United States v. Carillo-Ayala, 713 F.3d 82, 89-91 (11th Cir. 2013), the application
of § 2D1.1(b)(1) does not necessarily preclude a defendant from obtaining relief
via the safety valve, because conduct that meets § 2D1.1(b)(1) will not always
show a “connection” between the gun and the offense. Id. at 919-20. Because the
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district court conflated the analyses for § 2D1.1(b)(1) and the safety valve, we
remanded the matter to the district court to determine whether the safety valve was
available to Garcia despite his possession of the guns. On remand, the district
court held a hearing on the matter and heard testimony from Garcia and a
government agent. The district court determined that Garcia was ineligible for
safety-value relief because his possession of the guns was in connection with the
drug offenses. The court resentenced him to the same term of 120 months of
imprisonment. Garcia now brings this appeal from the district court’s
determination on remand.
In this appeal, Garcia again contends that the district court erroneously
found him ineligible for safety-valve relief. He argues that there was no evidence
of any meaningful nexus between the guns and the drug offenses, such as evidence
that he possessed a gun during his drug transactions, that he mentioned guns to his
co-conspirators, or that drugs or co-conspirators entered his house. He further
asserts that the guns did not promote or facilitate the drug offenses and that the
guns were lawfully purchased years before the drug conspiracy in order to protect
his livestock business. After careful review, we affirm the district court’s denial of
safety-valve relief.
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I.
We briefly review the relevant underlying facts. Garcia, who was a mid-
level distributor in a cocaine-trafficking conspiracy, received several deliveries of
cocaine at his farm from a co-conspirator between November 2011 and April 2012.
Garcia sold the cocaine to a buyer for around $30,000 a kilogram, for which he
earned a small cut of the proceeds. The co-conspirator or his girlfriend would
return to Garcia’s farm to collect the drug proceeds. Following his arrest, agents
searched Garcia’s home, which was located on the five-acre farm, and seized three
firearms: “(1) a 40-caliber Glock 22 semi-automatic pistol, with two magazines
and 6 rounds of ammunition, in an office; (2) a 5.7-mm by 28-mm semi-automatic
pistol with two magazines and 14 rounds of ammunition, in a night stand in the
master bedroom; and (3) a loaded 9-mm semi-automatic pistol with 11 rounds of
ammunition, behind a safe in the master bathroom.” Garcia, 590 F. App’x at 916.
It is undisputed that the guns were lawfully owned and that they were purchased
before the conspiracy began.
II.
We review a district court’s factual determinations for clear error. Carillo-
Ayala, 713 F.3d at 87-88. We likewise generally review the court’s application of
the safety-valve standard to a detailed fact pattern for clear error. Id. We will not
find clear error unless we are left with a definite and firm conviction that a mistake
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has been made. United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003).
Legal interpretations of the Sentencing Guidelines are reviewed de novo. Carillo-
Ayala, 713 F.3d at 87. We also generally defer to the district court’s credibility
determinations because the court, as the fact finder, “personally observes the
testimony and is thus in a better position than a reviewing court to assess the
credibility of witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002).
III.
Garcia pled guilty to, among other offenses, conspiring to possess with
intent to distribute over five kilograms of cocaine, which for Garcia carried a ten-
year statutory mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(ii)(II).
To escape the mandatory minimum, Garcia sought relief through the “safety
valve.”1 Congress passed the safety valve in 1994 to permit “a narrow class of
defendants, those who are the least culpable participants in such offenses,” to be
sentenced without regard to the statutory mandatory minimum. Carillo-Ayala, 713
F.3d at 88 (quotation omitted); see 18 U.S.C. § 3553(f).
1
Based on his offense level and criminal history, Garcia’s guideline range initially was
calculated at 108 to 135 months of imprisonment. Due to the mandatory minimum, his guideline
range became 120 to 135 months. See U.S.S.G. § 5G1.1 & cmt. With the safety valve, Garcia’s
offense level would have been reduced by two, U.S.S.G. § 2D1.1(b)(17) (2014), his resulting
guideline range would have been 87 to 108 months of imprisonment, and the district court could
have sentenced Garcia below the mandatory minimum.
5
To obtain relief under the safety valve, the defendant must show by a
preponderance of the evidence that he meets the five criteria set forth in § 3553(f).
Carillo-Ayala, 713 F.3d at 90; see 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a)
(incorporating the safety-valve criteria). These criteria, in broad terms, limit
safety-valve relief to defendants with negligible criminal records who have limited
roles in non-violent offenses and then fully cooperate with the government. See 18
U.S.C. § 3553(f)(1)–(5). Only one of the five criteria is at issue in this case:
whether Garcia “use[d] violence or credible threats of violence or possess[ed] a
firearm or other dangerous weapon . . . in connection with the offense.” 18 U.S.C.
§ 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). Garcia did not use violence or credible
threats of violence, so the only question is whether he possessed the three guns
found in his home “in connection with” the drug-trafficking conspiracy.
A defendant possesses a firearm in connection with a drug offense if the
firearm is in proximity to drugs or, if not in proximity, the firearm otherwise
facilitates or has the potential to facilitate the drug offense. Carillo-Ayala, 713
F.3d at 92-96 (“A firearm in proximity to drugs is connected with a drug offense
because it has the potential to be used as a weapon.”). “The scope of the phrase
‘potential to facilitate the offense’ is limited to circumstances showing the
firearm’s availability for use as a weapon or the attempt to use the firearm in a
manner that would facilitate the offense.” Id. at 96. Thus, evidence that a
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defendant used or could have used a firearm to protect his criminal activity is
sufficient to show a connection between the firearm and the offense. Id. at 92
(“While other facts, such as whether the firearm is loaded, or inside a locked
container, might be relevant to negate a connection, there is a strong presumption
that a defendant aware of the weapon’s presence will think of using it if his illegal
activities are threatened.”).
In Garcia’s first appeal, we upheld application of the firearm-possession
enhancement under § 2D1.1(b)(1), concluding that the district court did not err in
finding that Garcia failed to show that a connection between the guns and the
cocaine was “clearly improbable.” Id. at 919; see Carillo-Ayala, 713 F.3d at 90
(stating that, under § 2D1.1(b)(1), “the government benefits from a rebuttable
presumption that a firearm, if present—just present, not present in proximity to
drugs—is ‘connected with the offense.’ The defendant must disprove a connection
with the drug offense to the extent of showing it is ‘clearly improbable’ they were
symbiotic.”). While the application of § 2D1.1(b)(1) does not preclude Garcia
from obtaining safety-valve relief, he faces a difficult task of showing that, while
the connection between the firearm and the offense was not “clearly improbable,”
it nonetheless was “not probable.” See Carillo-Ayala, 713 F.3d at 91. We are not
persuaded that Garcia has threaded that narrow needle.
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First, to the extent Garcia contends that the government’s proof was
insufficient to establish any connection between the guns and the drug offenses, he
is mistaken. As our prior decision in Garcia’s case makes clear, the government’s
evidence was sufficient to show that “the guns were located at the site of the
offense conduct,” even if the guns did not leave the house and the drugs or drug
proceeds did not enter the house. Garcia, 590 F. App’x 918-19. And despite the
distinct locations, the guns had the potential to facilitate the offense because Garcia
“could have used the firearms in his house to protect the drugs or the drug money
on his property, regardless of whether they were also located inside the house.” Id.
at 919. Thus, the evidence sufficiently shows that Garcia possessed the guns in
connection with the drug offenses because the guns were available for use as a
weapon.2 See Carillo-Ayala, 713 F.3d at 95-96.
Garcia bore the burden on remand of establishing that such a connection,
though possible, was not probable. Id. at 91; id. at 96 (“[T]he safety valve is
unavailable unless the defendant negates the proof [of a connection] by a
preponderance of the evidence, or unless the government precludes relief by
proving the fact by a preponderance of the evidence.”). Garcia attempted to meet
this burden through his own testimony. He testified that there was no connection
2
Garcia’s assertion that he did not “possess” the firearms at issue was raised for the first
time in his reply brief, so it is not properly before us. See United States v. Britt, 437 F.3d 1103,
1104 (11th Cir. 2006). In any case, we previously held that Garcia did possess the guns at issue.
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between the firearms in his house and his drug-trafficking activities outside his
house. In particular, he explained that all of the drug transactions took place
outside of his house on the farm property, that he sold the drugs he received almost
immediately and then delivered the proceeds to his supplier shortly thereafter, that
any drugs or drugs proceeds—for the short length of time there were on his
property—were kept in his truck and did not enter his house, and that his co-
conspirators never entered his house.
However, the district court determined that Garcia’s testimony was not
credible. In particular, the court found it implausible that Garcia would protect
with guns the $23,000 in cash found in a safe inside his house, which Garcia
claimed was for his livestock business, but leave unprotected the drugs and
$30,000 in drug proceeds Garcia kept, however briefly, in his truck on the
property. Moreover, with respect to Garcia’s contention that he owned the guns to
lawfully protect his property and family, having been robbed previously in
connection with his livestock business, the district court concluded that that
defense was unavailing because Garcia failed to show why he would not also keep
the guns to protect the drugs or drug money on his property. See Garcia, 590 F.
App’x at 919; see Carillo-Ayala, 713 F.3d at 92 (“[A] defendant aware of the
weapon’s presence will think of using it if his illegal activities are threatened.”); cf.
United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (rejecting a
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defendant’s contention that the connection between his gun and the drug offense
was “clearly improbable” because he possessed the firearm for his job as a security
guard). In light of the district court’s credibility determination, which Garcia does
not contest, we cannot conclude that Garcia met his burden of showing that a
connection between the guns and the drug offenses was “not probable.” Carillo-
Ayala, 713 F.3d at 91; Ramirez-Chilel, 289 F.3d at 749.
To the extent that Garcia contends that the government failed to show that he
possessed the guns “in furtherance of” his drug-trafficking activities, his argument
is unavailing because “in furtherance of” is a higher evidentiary standard than “in
connection with.”3 Carillo-Ayala, 713 F.3d at 96. We drew the distinction
between the two standards as follows in Carillo-Ayala:
[T]he presence of a gun within the defendant’s dominion
and control during a drug trafficking offense is not
sufficient by itself to show possession in furtherance, that
is, to show the firearm was possessed to advance or
promote the commission of the underlying offense. But
the presence of a gun within a defendant’s dominion and
control during a drug trafficking offense ordinarily will
suffice to show possession during and in relation to the
offense and, therefore, that the defendant possessed the
firearm in connection with the offense.
3
Additionally, as previously stated, the government did not bear the burden of showing a
connection on remand. Rather, it was Garcia’s burden to show the lack of a connection by a
preponderance of the evidence. See Carillo-Ayala, 713 F.3d at 90.
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Id. (citations, footnote, and internal quotation marks omitted). Here, the evidence
was sufficient for the court to find that Garcia possessed the guns in connection
with the offenses, even if he did not possess the guns in furtherance of the offenses.
In light of the district court’s credibility determination and our prior decision
in this case, we are not left with a definite and firm conviction that the district court
erred in concluding on remand that Garcia had failed to show that he was eligible
for safety-valve relief. See Carillo-Ayala, 713 F.3d at 87-88; White, 335 F.3d at
1319. Therefore, we AFFIRM Garcia’s sentence.
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