United States v. Daniel Garcia-Barzaga

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14795 ELEVENTH CIRCUIT
JANUARY 19, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-20231-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL GARCIA-BARZAGA,
FREDDY CRESPO,
JORGE LUIS TORRES,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(January 19, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Daniel Garcia-Barzaga, Freddy Crespo, and Jorge Luis Torres appeal from
their convictions for: (1) conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, (“Count 1”); (2) attempt to possess
with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, (“Count
2”); (3) conspiracy to commit robbery by the use of force, 18 U.S.C. § 1951(a),
(“Count 3”); (4) attempt to commit robbery by the use of force, 18 U.S.C.
§§ 1951(a) and 2, (“Count 4”); (5) conspiracy to use and carry a firearm during and
in relation to a crime of violence and a drug trafficking crime, 18 U.S.C.
§§ 924(c)(1)(A) and 924(o), (“Count 5”); and (6) using and carrying a firearm
during and in relation to a crime of violence and a drug trafficking crime, 18
U.S.C. §§ 924(c)(1)(A) and 2. (“Count 6”).
On appeal, Torres and Crespo argue that the district court abused its
discretion in permitting the government to introduce evidence that they and other
co-conspirators had committed previous robberies together. Garcia-Barzaga and
Crespo argue that the district court abused its discretion by permitting a law
enforcement agent to testify as to his interpretations and impressions of what
certain words and phrases meant in the context of recorded conversations.
In addition, Torres and Crespo assert that the evidence was insufficient to
support their convictions as to all counts. Garcia-Barzaga contends that the
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evidence was insufficient to support his conviction as to Count 6. Finally, Crespo
argues that the district court imposed an unreasonable sentence, thereby abusing its
discretion. For the reasons set forth below, we affirm.
I.
In 2008, a federal grand jury indicted the defendants for the six counts set
forth above. Before proceeding to trial, the government filed a motion in limine,
requesting that the court permit it to introduce evidence of previous robberies
committed by the defendants and several of their co-conspirators. During pre-trial
hearings, the court and the parties discussed the government’s motion in limine.
Over the defendants’ objections, the court found that evidence of the defendants’
previous robberies was admissible as intrinsic evidence because it explained how
the defendants came to work together and rely on each other. The court also found
that this evidence was relevant to the defendants’ intent in the present case,
particularly since at least one defendant would likely present a defense that he was
merely present when his co-conspirators gathered to prepare for the armed robbery,
and was not fully aware of the conspiracy.
At trial, Erik Espinosa, an agent employed by the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”), testified that he acted as an
undercover agent in the investigation of the defendants. Espinosa explained that he
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had played the role of a “disgruntled drug courier working for a Colombian drug
organization” who transported between 25 to 30 kilograms of cocaine at a time
between a stash house and other locations. On March 3, 2008, Espinosa, a
confidential informant “CI”, Raul Zamora, Garcia-Barzaga, and Crespo met with
each other to discuss a narcotics robbery, and Espinosa recorded the meeting.
During this meeting, the parties agreed that Crespo and several armed associates
would follow Espinosa to a stash house, and then rob Espinosa in his truck after he
picked up the cocaine from a stash house. They noted that Espinosa would likely
be accompanied by an armed guard, who would not be privy to their scheme.
Crespo advised that he owned police gear, which he and his associates typically
wore when they conducted narcotics robberies.
The parties played the recording of the March 3 meeting in open court. Over
the defendants’ objections, the court permitted Espinosa to explain what he had
understood certain words or phrases uttered during the conversation to mean.
Espinosa explained that, during the meeting, they used various code words for
cocaine, such as “tubes,” “merchandise,” and “gadgets.” Also during the meeting,
Garcia-Barzaga had stated, “I don’t know if you understand me, the price. They’re
like four or five and we’re four on this side.” In addition, Espinosa and Garcia-
Barzaga had engaged in the following exchange:
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Garcia-Barzaga: [W]e’re the ones that are going to risk our necks if
there are weapons. Do you know if there are
weapons there?
Espinosa: I know already there’s going to be another guy
there already.
Garcia-Barzaga: Well, you see?
Espinosa: For sure there’s going to.
Garcia-Barzaga: I told them there’s going to be two or three people
and there are going to be weapons for sure. And if
there are two guys, there are two weapons.
Espinosa: Uh-huh.
Garcia-Barzaga: Because the one in there is going to shoot.
Espinosa explained that this exchange meant that the men conducting the
robbery risked violence if armed individuals were inside the stash house. Espinosa
further explained that Garcia-Barzaga had been informing Espinosa that he knew
how the drug business worked, and that it was likely that the cocaine would be
guarded by men with weapons. On March 3, Garcia-Barzaga had also stated, “look
here, in the house if there is a shooting, the police is going to come and something
could happen. This has to be fast.” Espinosa explained that Garcia-Barzaga meant
that they had to be careful because there could be a shoot-out, and this could attract
the police. When Garcia-Barzaga later stated, “if we have to shoot we’re going to
put everything,” he meant that, if the individuals committing the robbery were
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forced to shoot, no one guarding the stash house would come out alive.
During a subsequent meeting, Espinosa, Garcia-Barzaga, Zamora, and the CI
agreed that the robbery would take place on March 12, 2008. Privately, the
government agents had arranged that the CI would meet with the defendants on
March 12 and then lead the defendants to an undercover warehouse, where
Espinosa allegedly would be waiting for a telephone call from the Colombian drug
organization concerning the location of the stash house. The agents would arrest
the defendants when they arrived at the warehouse.
While conducting surveillance on March 12, Espinosa and other agents
observed that Crespo and his associates, Yanko Garcia, Pedro Gallego, Armando
Serrano, and Torres, met at a gas station, which was near a McDonald’s. The CI,
Zamora, Garcia-Barzaga, Crespo, and Serrano had a conversation at the gas station,
which was recorded by the CI. During this conversation, Garcia-Barzaga
instructed Crespo, Garcia, Gallego, and Serrano that, if any individual
accompanying Espinosa fired a gun, they should shoot back. The CI instructed the
co-conspirators that, before conducting the robbery, they should follow him to a
warehouse where Espinosa was waiting for his Colombian bosses to call him and
tell him the address of the stash house. While Crespo and Garcia-Barzaga
followed the CI to the warehouse, Torres, Garcia, Gallego, and Serrano stayed
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behind at the gas station. Crespo and Garcia-Barzaga were arrested when they
approached the warehouse, and Torres, Garcia, Gallego, and Serrano were arrested
at their meeting place near the gas station and McDonald’s.
On cross-examination, Espinosa testified that no actual cocaine was used in
this case, and there was no actual stash house. He conceded that he never told the
defendants the address of the stash house, and never met with the defendants on
March 12th so they could follow his truck to the stash house.
Mitch Jacobs, a detective employed by the Miami-Dade Police Department,
testified that he had conducted surveillance in this case on March 12, 2008. When
he observed the meeting at the gas station on March 12, he also observed that
Torres paced back and forth in the McDonald’s parking lot during the meeting at
the gas station. While Torres was pacing, he would intermittently watch the
meeting and look in other directions, apparently surveilling the area surrounding
the McDonald’s parking lot. Jacobs had also searched the Buick in which Garcia
and Gallego arrived at the gas station. Inside the Buick, Jacobs found two loaded
firearms and police paraphernalia such as badges, handcuffs, and t-shirts bearing
the SWAT (i.e. Special Weapons and Tactics) team logo.
Gallego, who had entered a guilty plea in this case, testified that he had
committed over 15 robberies since he moved to the United States from Cuba in
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2006, and that some of his robberies had involved marijuana grow-houses. He had
committed numerous robberies with Crespo, Torres, Garcia, and Serrano before he
participated in the robbery in the present case. During their crimes, they would use
an individual appointed to be a “look-out” to watch for the police. They carried
guns during the robberies for protection in case the homes or grow-houses they
targeted were guarded by other armed individuals. Gallego and Garcia “almost
always” were in charge of carrying the guns. All of the participants, however,
would carry guns during the robberies. Gallego identified a pistol that Jacobs had
found in the Buick as a gun owned by Torres, and stated that he (Gallego) had
carried this gun with him during previous robberies. During the previous
robberies, Gallego, Torres, Crespo, Garcia, and Serrano had usually dressed in
police uniforms.
Gallego further testified that, prior to March 12, he met with Crespo, who
informed him of the details for the planned robbery. Immediately before the
meeting at the gas station on March 12, he, Torres, Garcia, and Serrano had met at
the Cookie Dollar Store, where they discussed the details of the robbery. The
group waited at the store until they received a telephone call from Crespo and, after
receiving Crespo’s telephone call, they left to meet with the rest of their group.
During this trip, Torres called them to inform them of their next meeting place near
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McDonald’s. Once they all arrived at McDonald’s and a nearby gas station, Torres
called Gallego and informed him that Crespo, Zamora, and Serrano “were all
together with the people with whom the robbery was going to be done.” Finally,
just before they were arrested, Torres again called Gallego and told him that “this
thing was looking good,” and that they should leave McDonald’s.
Garcia, who had also entered a guilty plea in this case, testified that, at the
March 12 meeting at the Cookie Dollar Store, Serrano informed him that Crespo
did not want him (Garcia) to participate in the robbery. Torres offered to let Garcia
take over his role in the robbery and split Torres’s proceeds.
Julio Estopinan, a detective employed by the Miami-Dade Police
Department, testified that he assisted in the investigation of this case by conducting
surveillance. After Garcia-Barzaga was arrested on March 12, 2008, he made a
statement to the police. In his statement, Garcia-Barzaga averred that, while he did
not possess a firearm, he was aware that the individuals who were going to conduct
the robbery would be armed because they had to confront an armed body guard
who would accompany the drug courier.
After the government rested its case, Torres and Crespo moved for a
judgment of acquittal as to all counts of the indictment. Garcia-Barzaga moved for
a judgment of acquittal as to Count 6, among other counts. The district court
9
denied their motions, finding that the evidence was sufficient to permit the jury to
find that they were guilty of all counts charged in the indictment.
II.
According to Crespo’s presentence investigation report (“PSI”), he had
been convicted of numerous crimes of violence. These prior offenses included
convictions for battery, aggravated stalking, aggravated burglary, and tampering
with a witness, victim, or informant. Many of these convictions arose out of
domestic disputes between Crespo and his live-in girlfriend. In addition, Crespo
had been convicted of aggravated burglary with a deadly weapon. According to
the arrest report for this offense, Crespo and another individual had gained entry
into the victim’s home by asking for water, and then tied the victim up while they
took approximately $4,200 and other valuables out of the victim’s home.
The district court held a joint sentencing hearing for Crespo and Garcia-
Barzaga. At sentencing, the parties and the court agreed that, due to Crespo’s
status as a criminal offender, his total offense level was 37, and his criminal history
category was VI. The parties further agreed that Crespo’s guideline range was 360
months’ to life imprisonment. The court noted that Crespo was subject to a
statutory mandatory minimum sentence of 60 months’ imprisonment as to Count 6,
which was to run consecutively to any other term of imprisonment imposed. The
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court also noted that Crespo had been a “principal participant” in the present
offense.
After hearing argument from the parties, the court stated that it had
considered Crespo’s advisory guideline range, as well as the sentencing factors set
forth in 18 U.S.C. § 3553(a). The court sentenced Crespo to a total term of 420
months’ imprisonment and ordered him to pay a $10,000 fine.
III.
We review a district court’s decision regarding the admissibility of evidence
for abuse of discretion. United States v. Schlei, 122 F.3d 944, 990 (11th Cir.
1997).
Under Fed.R.Evid. 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request
by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial.
Fed.R.Evid. 404(b).
Only extrinsic evidence is subject to the requirements of Fed.R.Evid. 404(b).
Schlei, 122 F.3d at 990. “Evidence, not part of the crime charged but pertaining to
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the chain of events explaining the context, motive, and set-up of the crime, is
properly admitted if linked in time and circumstances with the charged crime, or
forms an integral and natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury.” United States v. Edouard, 485 F.3d
1324, 1344 (11th Cir. 2007) (quotation and alteration omitted). Such evidence “is
not extrinsic under Rule 404(b), and thus falls outside the scope of the Rule. Id.(quotation omitted); United States v. Richardson, 764 F.2d 1514, 1521 (11th Cir.
1985) (“[t]hese prior wrongs were not extrinsic to the charged crimes because the
evidence concerning prior crimes was inextricably intertwined with the evidence of
the charged crime”). We have held that evidence of a defendant’s previous drug
smuggling activities was intrinsic to the charged crime where this evidence:
(1) explained why another drug smuggler was willing to assist the defendant in the
crime with little or no advance notice; and (2) rebutted the defendant’s defense that
he had merely accompanied another individual who was engaged in drug
smuggling. United States v. Foster, 889 F.2d 1049, 1052-53 (11th Cir. 1989).
“[E]vidence of criminal activity other than the charged offense, whether
inside or outside the scope of Rule 404(b), must still satisfy the requirements of
Fed.R.Evid. 403.” Edouard, 485 F.3d at 1344. Rule 403 provides, in part, that
relevant evidence “may be excluded if its probative value is substantially
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outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Fed.R.Evid. 403. “In evaluating the district court’s ruling
under Rule 403, we view the evidence in the light most favorable to admission,
maximizing its probative value and minimizing its undue prejudicial impact.”
United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006). “The court’s
discretion to exclude evidence under Rule 403 is narrowly circumscribed . . . Rule
403 is an extraordinary remedy which should be used only sparingly since it
permits the trial court to exclude concededly probative evidence.” United States v.
Church, 955 F.2d 688, 700 (11th Cir. 1992) (quotation and alteration omitted).
Here, the district court did not abuse its discretion in admitting evidence of
the defendants’ previous robberies because this evidence was intrinsic to the
charged offenses. First, this evidence provided an explanation for why these
particular defendants joined together and agreed to rely on each other to commit an
armed narcotics robbery. In addition, this evidence also explained details such as
why Torres offered to share his proceeds of the offense with Garcia, how Garcia
and Gallego could identify Torres’s gun, and why the defendants had police
paraphernalia in the Buick on March 12. Importantly, this evidence served to
counter Torres’s and Crespo’s arguments that they were unaware of the object of
the conspiracy and merely associated with individuals who were planning an
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armed robbery. Finally, Gallego’s statement that they typically used a “look-out”
in previous crimes provided a possible explanation for Torres’s pacing and
apparent surveillance in the McDonald’s parking lot on March 12.
Moreover, the district court did not abuse its discretion in admitting this
evidence under Fed.R.Evid. 403. For the reasons above, this evidence had
substantial probative value. In addition, in light of the substantial evidence that
Crespo and Torres were involved in the present offense, they cannot demonstrate
that this evidence was so prejudicial that it warranted Rule 403’s “extraordinary
remedy” of excluding probative evidence.
IV.
As noted above, we review a district court’s decision regarding the
admissibility of evidence for abuse of discretion. Schlei, 122 F.3d at 990.
Testimony in the form of opinions or inferences of a witness who is not testifying
as an expert is:
limited to those opinions or inferences which are (a) rationally based
on the perception of the witness, (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of [Fed.R.Evid.] 702.
Fed.R.Evid. 701. A lay witness may, however, clarify conversations that are
“abbreviated, composed with unfinished sentences and punctuated with ambiguous
14
references to events that were clear only to the defendant and the witness.” United
States v. Awan, 966 F.2d 1415, 1430 (11th Cir. 1992) (quotation and alterations
omitted). We have held that such testimony is permissible where it assists the jury
in understanding words and phrases it otherwise would not understand, and is
provided by a witness who was a party to the conversation he interprets for the
jury. See id.Here, the district court did not abuse its discretion by permitting Espinosa to
testify as to his impressions and interpretations concerning recorded conversations
to which he was a party. Because Garcia-Barzaga, Crespo, Zamora, and Espinosa
used coded words and phrases referring to the drug trafficking business during the
March 3, 2008, meeting, it was reasonable for the court to permit Espinosa to
explain his interpretation of these phrases to the jury, particularly since he was a
party to the conversation.
V.
We “review the sufficiency of the evidence presented at trial de novo.”
United States v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). “The evidence is
viewed in the light most favorable to the government, with all inferences and
credibility choices drawn in the government’s favor.” Id. “It is not necessary that
the evidence exclude every reasonable hypothesis of innocence or be wholly
15
inconsistent with every conclusion except that of guilt, provided a reasonable trier
of fact could find that the evidence establishes guilt beyond a reasonable doubt.”
United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990).
The government may use circumstantial evidence in order to prove the
elements of conspiracy. Id. at 1426. “It is not necessary for the government to
prove that a defendant knew every detail or that he participated in every stage of
the conspiracy.” United States v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990).
Rather, the government need only prove that the defendant knew “of the essential
nature and scope of the enterprise and intend[ed] to participate.” United States v.
Calderon, 169 F.3d 718, 723 (11th Cir. 1999) (quotation omitted). A defendant’s
association with individuals engaged in a conspiracy, standing alone, does not
establish that the defendant participated in the conspiracy. United States v.
Arbane, 446 F.3d 1223, 1233 (11th Cir. 2006). While a defendant’s mere presence
at a crime scene is insufficient to sustain a conviction for conspiracy, this Court has
held that presence “is material, highly probative, and not to be discounted.” United
States v. Gamboa, 166 F.3d 1327, 1332 (11th Cir. 1999) (quotation omitted).
In order to establish that a defendant is guilty of attempt to commit an
offense, the government must show that the defendant: (1) had the specific intent to
commit the offense; and (2) took a substantial step toward committing the offense.
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United States v. Forbrich, 758 F.2d 555, 557 (11th Cir. 1985). “To find that a
substantial step was taken, the court must determine that the defendant’s objective
acts mark the defendant's conduct as criminal so that the defendant’s acts as a
whole strongly corroborate the required culpability.” Id.i. Torres’s and Crespo’s convictions as to Counts 1 and 2
In order to show that a defendant is guilty of conspiracy to possess with
intent to distribute cocaine, the government must show that (1) two or more
persons came to a mutual understanding to try to accomplish a common and
unlawful plan; (2) each defendant, knowing of the unlawful purpose of the plan,
joined in voluntarily; and (3) the object of the unlawful plan was to possess with
intent to distribute five or more kilograms of cocaine. 21 U.S.C. §§ 846,
841(b)(1)(A); United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005).
In order to demonstrate that a defendant is guilty of attempt to possess with
intent to distribute cocaine, the government must show that the defendant
“(1) acted with the kind of culpability required to possess cocaine knowingly and
willfully and with the intent to distribute it; and (2) engaged in conduct which
constitutes a substantial step toward the commission of the crime under
circumstances strongly corroborative of their criminal intent.” United States v.
McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).
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Here, the evidence was sufficient to establish that Crespo conspired to
possess with intent to distribute cocaine, and attempted to possess with intent to
distribute cocaine. Specifically, the evidence demonstrated that Crespo:
(1) attended the March 3 meeting with Garcia-Barzaga, Espinosa, the CI, and
Zamora, where he joined in the discussion concerning how to conduct the narcotics
robbery of over 25 kilograms of cocaine; (2) called Gallego, Garcia, Torres, and
Serrano while they were at the Cookie Dollar Store on March 12 and instructed
them to meet him near the McDonald’s; (3) arrived at the meeting spot near
McDonald’s, where he again discussed the robbery with his co-conspirators; and
(4) traveled to the warehouse where Espinosa was allegedly waiting to receive the
address of the stash house. Based on this evidence, the jury reasonably could have
found Crespo knowingly joined in a conspiracy to possess with intent to distribute
narcotics, and took a substantial step toward committing this crime by arriving at
the McDonald’s on March 12 and then traveling to Espinosa’s warehouse.
The evidence also showed that Torres: (1) discussed the narcotics robbery
with Gallego, Garcia, and Serrano at the Cookie Dollar Store; (2) traveled to the
McDonald’s on March 12, where he acted as a look-out for his co-conspirators;
(3) communicated with Gallego concerning the scheme during the trip to
McDonald’s; and (4) supplied a gun to be used during the robbery. Based on this
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evidence, the jury reasonably could have found that Torres knowingly joined in a
conspiracy to possess with intent to distribute cocaine, and took a substantial step
toward committing this offense by traveling to McDonald’s, acting as a look-out,
and supplying a gun to use during the robbery.
ii. Torres’s and Crespo’s convictions as to Counts 3 and 4
Under 18 U.S.C. § 1951(a) (i.e., the Hobbs Act), it is illegal for anyone to
attempt or conspire to obstruct, delay, or affect commerce or the movement of any
article or commodity in commerce. 18 U.S.C. § 1951(a); United States v. Taylor,
480 F.3d 1025, 1026-27 (11th Cir. 2007). “The two required elements for a
substantive Hobbs Act conviction are robbery and an effect on interstate
commerce.” Taylor, 480 F.3d at 1026-27 (quotation and alteration omitted). “The
interstate nexus for a Hobbs Act conspiracy can be proved by showing a potential
impact on interstate commerce.” Id. at 1027 (quotation and alteration omitted). In
Taylor, we held that the interstate nexus element was satisfied where the defendant
was involved in a reverse sting operation to commit an armed narcotics robbery.
Id. at 1026-27. We further held that “[t]he fact that the intended victims and
narcotics were fictional [was] irrelevant.” Id. at 1027.
Based on the facts set forth in the preceding section, the jury reasonably
could have found that both Torres and Crespo knowingly joined in a plan to rob
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Espinosa, and took a substantial step toward that crime by, among other things,
arriving at the McDonald’s to await further instructions. Although the co-
conspirators never learned of the exact time and place of the robbery, this fact is
irrelevant – there is no requirement that a defendant know every detail of how an
offense will be committed before he can be deemed to have conspired or attempted
to commit the offense. Furthermore, in light of our holding in Taylor, the Hobbs
Act’s interstate nexus requirement was satisfied here even though there was no
actual cocaine or stash house.
iii. Torres’s and Crespo’s convictions as to Counts 5 and 6, and Garcia-
Barzaga’s conviction as to Count 6
We have held that, in order “to sustain a conviction under [18 U.S.C.]
§ 924(c), the government must show that, during and in relation to their conspiracy
to rob cocaine, defendants used, carried, or possessed a firearm in furtherance of
that conspiracy.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). A
defendant may be liable for a co-conspirator’s possession of a gun where that
possession was reasonably foreseeable to the defendant. Id. In addition, a
defendant may be liable under § 924(c)(1)(A) if he aids, abets, counsels,
commands, induces or procures the use of a firearm during a crime of violence or
drug trafficking offense. 18 U.S.C. § 2; United States v. Thomas, 987 F.2d 697,
701-02 (11th Cir. 1993); Bazemore v, United States, 138 F.3d 947, 949 (11th Cir.
20
1998) (§ 2255 context). In order to prove that a defendant aided and abetted
another individual in violation § 924(c)(1)(A), the government must show “that a
substantive offense was committed, that the defendant associated himself with the
criminal venture, and that he committed some act which furthered the crime.”
United States v. Hamblin, 911 F.2d 551, 557 (11th Cir. 1990). In addition to the
requirement that a defendant have knowledge that a gun will be used, “there must
be some proof linking the defendant to the gun, because section 924(c) does not
permit guilt by association.” Thomas, 987 F.2d at 702; Bazemore, 138 F.3d at 949.
A defendant should not, however, knowingly benefit from the use of a gun and
then evade liability for its presence. Id. at 950.
We have held that a defendant could be convicted under § 924(c)(1)(A)
because he organized a narcotics robbery that involved guns, even though he did
not arrive at the scene of the intended robbery in the vehicle that contained the
guns. Gunn, 369 F.3d at 1235. We reasoned that “a rational jury could have
inferred that he, directly or through others, controlled-or at least had the power and
intention to control-the firearms.” Id.Here, there was ample evidence to support the jury’s determination that
Garcia-Barzaga aided or abetted his co-conspirators in possessing a gun in
furtherance of the narcotics robbery. At the March 3 meeting, Garcia-Barzaga
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constantly referred to the fact that the robbery would likely be violent, and that the
individuals conducting the robbery would probably need to shoot in order to
protect themselves. In his statement to the police, Garcia-Barzaga expressly
admitted that he knew that the men committing the robbery would carry guns.
Accordingly, Garcia-Barzaga clearly was aware that the narcotics robbery would
involve a gun. In addition, when Garcia-Barzaga met with the co-conspirators near
the McDonald’s on March 12, he instructed them to shoot if an individual
accompanying Espinosa shot at them. Thus, he counseled the use of a firearm
during a violent offense. Accordingly, it is reasonably clear that Garcia-Barzaga
aided or abetted his co-conspirators in using a firearm in furtherance of a violent
offense and a drug trafficking offense, and that there also was a link between him
and the firearms used in this case.
In addition, there was also substantial evidence to support the jury’s
determination that Torres was guilty of Counts 5 and 6. As noted above, Torres
participated in the Cookie Dollar Store meeting on March 12 to plan the robbery,
and one of the guns found in Gallego and Garcia’s car belonged to him.
Accordingly, the jury could have inferred that Torres knew that a gun was going to
be used in the narcotics robbery. Moreover, there was clearly a link between
Torres and the one of the guns used in the attempted robbery because he owned
22
one of these guns.
Finally, there was also substantial evidence to support the jury’s
determination that Crespo was guilty of Counts 5 and 6. Due to Crespo’s
participation in the March 3 meeting, at which the parties repeatedly discussed the
use of guns during the robbery, the jury could have found that Crespo was aware
that he was participating in an offense that involved the use of a gun. Moreover,
Crespo participated in planning the armed robbery and informed Gallego of the
details of the planned robbery. Gallego left the Cookie Dollar Store with the guns
only after receiving a telephone call from Crespo. Thus, the jury reasonably could
have inferred that Crespo was linked to the guns in this case because he helped
plan the armed robbery.
VI.
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), “a sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). We review a defendant’s sentence for reasonableness. Gall v. United
States, 552 U.S. 38, __, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007); United States
v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Review for reasonableness is
deferential. Talley, 431 F.3d at 788. The reasonableness of a sentence is reviewed
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under an abuse-of-discretion standard regardless of whether the sentence imposed
is inside or outside a defendant’s guideline range. United States v. Pugh, 515 F.3d
1179, 1189-90 (11th Cir. 2008) (citing Gall, 552 U.S. at __, 128 S.Ct. at 597).
Under the abuse-of-discretion standard, we will reverse only if the district court
made a clear error of judgement. Id. at 1191.
A sentence is procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the Guidelines, treated the Guidelines as
mandatory, failed to consider the factors set forth in 18 U.S.C. § 3553(a), selected
a sentence based on clearly erroneous facts, or failed to explain adequately the
chosen sentence. Gall, 552 U.S. at __, 128 S.Ct. at 597. Section 3553(a) provides
that district courts imposing a sentence must consider: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need to: (A) reflect the seriousness of the offense, promote respect for the
law, and provide just punishment for the offense, (B) deter future criminal activity,
(C) protect the public, and (D) provide the defendant with needed educational or
vocational training or medical care; (3) the kinds of sentences available; (4) the
Sentencing Guidelines range; (5) pertinent policy statements of the Sentencing
Commission; (6) the need to avoid unwanted sentencing disparities; and (7) the
need to provide restitution to victims. See18 U.S.C. § 3553(a). While the record
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should reflect that the district court adequately considered the § 3553(a) factors,
the court is not required “to recite a laundry list of the § 3553(a) factors,” or
discuss each of the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329-
30 (11th Cir. 2005).
“[A] sentence may be substantively unreasonable, regardless of the
procedure used.” Hunt, 459 F.3d at 1182 n.3. The party challenging the sentence
“bears the burden of establishing that the sentence is unreasonable in the light of
[the] record and the factors in section 3553(a).” Talley, 431 F.3d at 788. We have
recognized that “there is a range of reasonable sentences from which the district
court may choose.” Id. Where the court imposes a sentence that is within the
guidelines range, we ordinarily expect that sentence to be reasonable. Id.Here, Crespo’s sentence was procedurally reasonable because the district
court: (1) correctly calculated his guideline range, a conclusion that Crespo does
not dispute on appeal; (2) clearly stated that it had considered the § 3553(a)
factors; and (3) treated the Guidelines as advisory. Moreover, the record
demonstrates that the court gave sufficient consideration to the unique facts of
Crespo’s case, as it considered Crespo’s status as a “principal participant” in the
offense, as well as his history of violent crime and the need to protect the public
from future violent crimes. As a result, Crespo’s sentence was procedurally
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reasonable.
Crespo’s sentence also was substantively reasonable. As noted above, the
record demonstrates that Crespo had a history of violent crime. Moreover, as the
court noted, Crespo was a “principal participant” in the present offense, as he
participated in planning the offense and even volunteered that the robbery crew
could wear his police gear. In addition, Crespo knew that the offense would
involve guns, and that there was a significant probability that the guns would be
used during the robbery because the drug courier would likely be accompanied by
an armed individual. Accordingly, in light of the facts of this case and Crespo’s
violent history, Crespo has failed to meet his burden of demonstrating that his
sentence was substantively unreasonable.
Conclusion
Based on our review of the record and the parties’ briefs on appeal, we
affirm.
AFFIRMED.
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