United States v. Garcia

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 99-51091

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GILBERT GARCIA, JR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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February 15, 2001

Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT,* District

Judge.

SAMUEL B. KENT, District Judge:

Defendant Gilbert Garcia Jr. appeals his conviction and

sentence for conspiracy to possess with intent to distribute a

*

District Judge of the Southern District of Texas, sitting

by designation.

quantity of marijuana and aiding and abetting the possession with

the intent to distribute a quantity of marijuana. He argues: (1)

that the evidence was insufficient to sustain his conviction for

aiding and abetting, (2) that the District Court erred in denying

his requested downward adjustment for minor participation in the

offense, and (3) that under the recent decision of the United

States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the issue of drug quantity

should have been included in the indictment and charged to the

jury. For the reasons stated below, we affirm his conviction, but

vacate his sentence and remand for resentencing.

I. BACKGROUND

Defendant Gilbert Garcia Jr. was indicted for conspiracy to

possess with an intent to distribute marijuana in violation of 21

U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (Count One) and aiding and

abetting the possession of marijuana with an intent to distribute

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts

Three and Six). The Government filed notice that it sought a

penalty enhancement under 21 U.S.C. § 841(b)(1)(A) for offenses

involving more than 1000 kilograms of marijuana.

The evidence at trial showed that Defendant allowed his truck

maintenance facility to be used to store marijuana for a Mexican

drug distribution operation headed by Omar Rubio. The organization

smuggled marijuana from Mexico to San Antonio, Texas where it was

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stored pending further distribution. Tractor-trailers loaded with

marijuana were stored at Garcia’s facility on at least five

occasions. Although Garcia was present at the first delivery, he

was not present at subsequent deliveries. Garcia gave a key to the

property to one of the members of the drug distribution operation,

Rene Montes-Salinas, with instructions that he be notified of

further deliveries. Count One of the indictment concerns the first

delivery, which took place on September 24, 1998. Count Three of

the indictment concerns an October 4, 1998 delivery, and Count Six

concerns deliveries on November 5, 1998 and November 6, 1998.

Garcia was paid between $3,000 and $5,000 for each shipment. The

five shipments allegedly totaled more than 5,600 pounds of

marijuana.

A jury found the Defendant guilty on all three counts of the

indictment. Because the presentence report (“PSR”) indicated that

Garcia’s offenses involved more than 1,000 but less than 3,000

kilograms of marijuana, Garcia was assigned a base level of 32. See

U.S.S.G. § 2D1.1(c)(4). The PSR recommended that Garcia receive a

two-level downward adjustment in his offense level because he met

the requirements of § 2D1.1(b)(6).1 The total offense level of 30

combined with Garcia’s criminal history category of I, resulted in

a Sentencing Guideline range of 97-121 months imprisonment.

1

This provision gives a defendant a two-level reduction if

he meets the requirements of § 5C1.2, the “safety valve”

provision discussed infra note 2.

3

Because the offenses involved more than 1,000 kilograms of

marijuana, Garcia was subject to a mandatory minimum sentence of

ten years imprisonment followed by five years supervised release.

See 21 U.S.C. § 841(b)(1)(A). Because Garcia qualified under the

“safety valve” provision of § 5C1.2,2 however, the PSR recommended

that Garcia be sentenced without regard to the mandatory minimum.

Garcia objected to the PSR on the grounds that, among other

things: (1) he was entitled to a two-level downward adjustment in

his offense pursuant to § 3B1.2(b) because he played a minor role

in the offense of which he was convicted, (2) the PSR incorrectly

determined the quantity of drugs involved in his offense, and (3)

the drug quantity determination should have been submitted to a

jury.

At sentencing, the District Judge determined that Garcia

qualified under the “safety valve” provision of § 5C1.2 to be

sentenced without regard to the statutory minimum sentence set

forth in § 841(b)(1)(A). Garcia was thus sentenced to 97 months

imprisonment followed by five years supervised release for each of

the counts of which he was convicted, to run concurrently. He was

2

The “safety valve” allows a defendant to avoid a mandatory

minimum if he meets certain conditions, which stated loosely are:

(1) not having more than 1 criminal history point, (2) not using

violence or the credible threats of violence or possessing a

dangerous weapon in connection with the offense, (3) not causing

death or serious bodily injury, (4) not being an organizer,

leader, or supervisor and not engaging in a continuing criminal

enterprise, and (5) cooperating fully with the Government.

4

also required to pay a $300 special assessment. The District Judge

overruled the remaining objections. Defendant timely appealed.

II. ANALYSIS

A. Sufficiency of the Evidence

Defendant argues that his aiding and abetting conviction

concerning the incident on or about October 4, 1998 (Count Three)

is unsupported by the evidence. He contends that the Government

failed to prove: (1) that he committed an overt act designed to aid

in the success of the venture, (2) that the substance alleged to

have been distributed was in fact marijuana, or (3) how much

marijuana, if any, was involved. Garcia filed a motion for a

judgment of acquittal challenging the sufficiency of the

Government’s evidence at the close of the Government’s case-in-

chief and at the end of all evidence. The District Judge denied

both motions.

We review the denial of a motion for a judgment of acquittal

de novo. See United States v. Greer, 137 F.3d 247, 249 (5th Cir),

cert denied, 524 U.S. 920 (1998). In doing so, we must consider

whether “a rational trier of fact could have found that the

evidence established the essential elements of the crime beyond a

reasonable doubt.” United States v. Davis, 226 F.3d 346, 354 (5th

Cir. 2000). The Court considers “the evidence, all reasonable

inferences drawn therefrom, and all credibility determinations in

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the light most favorable to the prosecution.” United States v.

Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Our role does not extend

to weighing the evidence or assessing the credibility of witnesses.

See id.

To convict a defendant for possession of marijuana with intent

to distribute, the Government must prove that the defendant (1)

knowingly; (2) possessed marijuana; (3) with the intent to

distribute. See id. To prove that a defendant aided and abetted

in the possession of marijuana with intent to distribute, the

Government must prove that the elements of the substantive offense

occurred and that the defendant associated with the criminal

venture, purposefully participated in the criminal activity, and

sought by his actions to make the venture succeed. See 18 U.S.C.

§ 2; United States v. Delagarza-Villarreal, 141 F.3d 133, 140 (5th

Cir. 1997). “Associate” means that the defendant shares in the

principal’s criminal intent. United States v. Jaramillo, 42 F.3d

920, 923 (5th Cir. 1995). “Participate” means that the defendant

engages in some affirmative conduct designed to aid the venture or

assists the perpetrator of the crime. Id. A Defendant “need not

have actual or constructive possession of the drugs to be guilty of

aiding and abetting possession with intent to distribute.” United

States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993).

Defendant’s first argument is that as to the October 4, 1998

offense, the record does not contain evidence that he actively

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participated in furthering the criminal activity. The evidence at

trial established that Defendant: (1) was informed of the delivery

to his property and suggested that it be done at night, (2) was

also informed when the truck arrived, and (3) was informed the next

day when the drivers left his lot.

Defendant claims that the only evidence of affirmative conduct

on this occasion was his suggestion that the unloading take place

at night.3 This evidence, standing alone, Defendant argues, is

insufficient to support his aiding and abetting conviction.

Defendant also argues that his previous act of giving the key to

his property cannot be considered as evidence here because such

only aided a general scheme of possession of marijuana, not the

specific offense on October 4, 1998. See United States v. Lombardi,

138 F.3d 559, 561 (5th Cir. 1998)(holding that the Government must

show that Defendant aided and abetted the specific crime, not just

the overall scheme).

We conclude, however, that Defendant’s assent on this occasion

3

A party to a continuing conspiracy may be criminally

liable for a substantive offense committed by a co-conspirator in

furtherance of the conspiracy, even though the party does not

participate in the substantive offense, or have any knowledge of

it. See Pinkerton v. United States, 328 U.S. 640, 647, 66 S. Ct.

1180, 1183, 90 L. Ed. 1489 (1946); United States v. Acosta, 763

F.2d 671, 681 (5th Cir. 1985). However, a jury must be given an

instruction under this theory, a so-called Pinkerton instruction,

to be so convicted. See United States v. Pierce, 893 F.2d. 669,

676 (5th Cir. 1990); United States v. Basey, 816 F.2d 980, 999

(5th Cir. 1987). As Defendant points out, the jury was not given

this Pinkerton instruction. Thus, his aiding and abetting

conviction cannot rest on a conspiracy theory.

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to the use of his property for the storage of marijuana constitutes

the requisite affirmative conduct to support his aiding and

abetting conviction. Defendant did not have to physically appear

on his property to be guilty of the offense. Just as the mere

presence at the scene of the crime is not sufficient, by itself, to

support aiding and abetting liability,4 mere absence from the scene

does not, by itself, negate such liability. See Collins v. United

States, 65 F.2d 545, 547 (5th Cir. 1933).

Defendant’s second argument is that the Government’s evidence

did not establish that the substance stored on his property on

October 4, 1998 was in fact marijuana. Defendant notes that no

witness testified that they saw marijuana. The Government’s

witness was not at the property on the day in question, and the

surveillance officers did not see the contents of the shipment.

The Government responds, however, that there is substantial

evidence that the shipment was marijuana. This evidence includes

testimony that: (1) the other participants were seeking a place

“where marijuana could be unloaded,” (2) Defendant agreed to use

his property specifically for the unloading of marijuana, (3) on a

previous occasion, Defendant was present at the time of delivery to

verify that the substance was marijuana, (4) Defendant would have

been paid considerably more to store a harder drug, such as

4

See United States v. Williams, 341 U.S. 58, 64 n.4, 71 S.

Ct. 595, 599, 95 L. Ed. 747 (1951); Williams, 485 F.2d at 753.

8

cocaine. From this testimony, a jury could reasonably have

inferred that the substance unloaded on October 4, 1998, for which

Defendant was paid thousands of dollars to store, was in fact

marijuana, and not Tootsie Rolls.

Defendant’s final argument is that the Government failed to

prove the quantity of marijuana. The Government was not required,

however, to prove drug quantity to sustain a conviction under §

841. See 21 U.S.C. § 841(a). Drug quantity is relevant only to

Defendant’s Apprendi argument, discussed infra.

Because the evidence was sufficient to convict Defendant of

aiding and abetting the possession of marijuana with the intent to

distribute, we affirm his conviction and sentence for the October

4, 1998 offense.

B. Adjustment for Minor Participation

Defendant argues that he should have received a two-level

downward adjustment under the Sentencing Guidelines for being a

minor participant in criminal activity. See U.S.S.G § 3B1.2(b).

The Guidelines’ commentary defines “minor participant” as “any

participant who is less culpable than most other participants but

whose role could not be described as minimal.” U.S.S.G. § 3B1.2,

cmt. n.3. The commentary also indicates that to qualify, the

Defendant must be “substantially less culpable.” See U.S.S.G. §

3B1.2, cmt. background. A defendant has the burden of showing that

9

he is entitled to the downward adjustment. See United States v.

Marmolejo, 106 F.3d 1213, 1217 (5th Cir. 1997). Minor participation

is a “sophisticated factual determination,” to be made by the

sentencing judge. United States v. Gallegos, 868 F.2d 711, 713 (5th

Cir. 1989). The determination is to be made in light of all

relevant conduct (“all conduct within the scope of § 1B1.3

(Relevant Conduct)”), “not solely on the basis of elements and acts

cited in the count of conviction.” See U.S.S.G. ch.3, pt. B,

introductory comment. The sentencing judge must “articulate the

factual basis for the finding that [defendant] was an average

participant.” See United States v. Melton, 930 F.2d 1096, 1099 (5th

Cir. 1991). But see Gallegos, 868 F.2d at 713 (“[A] simple

statement that Defendant was not a ‘minor participant’ will

suffice”). We review a judge’s finding in this regard under a

clearly erroneous standard. See United States v. Morrow, 177 F.3d

272, 304-5 (5th Cir.), cert. denied, 528 U.S. 932 (1999).

Initially, Defendant disputes that he must be “substantially

less culpable” to qualify as a minor participant. He argues that

the commentary defines “minor participant” simply as “less

culpable” and that the commentary is binding on the sentencing

court. See United States v. Stinson, 508 U.S. 36, 38, 113 S. Ct.

1913, 1915, 123 L. Ed. 2d 598 (1993)(“[C]ommentary in the

Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading

10

of, that guideline.”). The Guidelines’ commentary, however, uses

the phrase “substantially less culpable.” See U.S.S.G § 3B1.2.

cmt. background. Moreover, our decisions, both before and after

the Supreme Court clarified in Stinson that the commentary is

binding, have held that a defendant must be “substantially less

culpable than the average participant” to qualify as a minor

participant. United States v. Brown, 54 F.3d 234, 241 (5th Cir.

1995); see also United States v. Thomas, 963 F.2d 63, 65 (5th Cir.

1992); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.

1988).

Defendant argues that he was simply a small cog in a large

wheel. The organization for which he provided services, Defendant

notes, was a far-flung drug operation based in Mexico with

approximately one hundred participants, operating since the late

1980s in several states including Texas, Arkansas, and Florida, and

reputed to smuggle a ton of marijuana and cocaine across the Texas

border per week. In comparison to the scope of the operation,

Defendant argues, his role was minor. Defendant objected on these

grounds to the PSR which recommended against the downward

adjustment. The sentencing Judge overruled the objection, stating

that Defendant “supplied a place for these drugs to be housed and

stored when they were brought from Mexico, unloaded and transported

to other destinations.”

Section 3B1.2 does not contemplate that the participation

level is to be evaluated in reference to the entire criminal

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enterprise of which Defendant is a part. See United States v.

Burnett, 66 F.3d 137, 140 (7th Cir. 1995)(“3B1.2 does not ask

whether the defendant was minor in relation to the organization .

. . it asks . . . whether he was minor . . . in relation to the

conduct for which he was has been held accountable.”). Instead,

section 3B1.2 asks whether a defendant’s involvement is comparable

to that of an “average participant.” Buenrostro, 868 F.2d at 138.

Defendant allowed his property to be used as a stash house. He was

present for the first delivery and was kept abreast of subsequent

deliveries. One of the Government’s witnesses testified that the

organization could not function without Defendant’s “shop.”

Furthermore, Defendant was paid for each delivery. Most

importantly, however, Defendant was not held responsible for the

entire criminal history of the drug organization. Rather, his

sentence was based on conduct in which he was directly involved,

namely drug storage on his property. As such, his role was not

minor, but actually coextensive with the conduct for which he was

held accountable. See Marmolejo, 106 F.3d at 1217 (holding that

because only the drugs defendant actually transported were

attributed to him in calculating his sentence, he was not a minor

participant in relation to the offense); United States v. Atanda,

60 F.3d 196, 199 (5th Cir. 1995)(“[W]hen a sentence is based on an

activity in which a defendant was actually involved, § 3B1.2 does

not require a reduction in the base offense level even though the

defendant’s activity in a larger conspiracy may have been minor or

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minimal.”). We conclude, therefore, that the District Judge’s

finding that Defendant was not a minor participant was not clearly

erroneous.

C. Drug Quantity and Apprendi

At oral argument, the parties were in agreement as to the

effect of the recent decision of the United States Supreme Court in

Apprendi on this case: Defendant’s term of supervised release

should be reduced from five years to three years. We agree, but

hold that under the facts of this case Apprendi also requires that

Defendant’s term of imprisonment be reduced from 97 months to no

more than 60 months.5

Under Apprendi, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. at —, 120 S. Ct. at

2362-3. We recently held in United States v. Doggett, that when

5

Defendant did not challenge his prison sentence in his

Apprendi argument either in his brief or at oral argument.

Although an argument not raised on appeal is ordinarily deemed

abandoned or waived, the Court may consider it on its own accord

when manifest injustice would otherwise occur. United States v.

Quiroz, 22 F.3d 489, 490-91 (2nd Cir. 1994); cf. United States

v. Winn, 948 F.2d 145, 157 (5th Cir. 1991)(holding that in the

absence of manifest injustice, the Court will not consider

arguments raised for the first time in appellant’s reply brief).

It would be manifestly unjust under the circumstances to ignore

the clear-cut, mechanical application of Apprendi to Defendant’s

prison sentence simply because Defendant did not ask for all the

relief to which he was entitled.

13

the Government seeks enhanced penalties based on the amount of

drugs under either § 841(b)(1)(A) or (B), drug quantity is an

element of the offense that must be submitted to a jury under

Apprendi. See United States v. Doggett, 230 F.3d 160, 164-65 (5th

Cir. 2000). Doggett clarifies, however, that when a defendant’s

sentence does not exceed the statutory maximum authorized by the

jury’s findings, Apprendi does not affect the sentence. See id. at

165; United States v. Meshack, 225 F.3d 556, 575-76 (5th Cir. 2000),

cert. denied, 121 S. Ct. 834 (2001).

In the case before us, drug quantity was neither stated in the

indictment nor charged to the jury. Defendant challenged his

sentence on these grounds at the sentencing hearing. Thus, he has

adequately preserved error, and the issue is before us on de novo

review. See Doggett, 230 F.3d at 165. Although Defendant was

sentenced without regard to the penalty enhancement that the

Government sought under 21 U.S.C. § 841(b)(1)(A), his sentence

nevertheless exceeded the statutory maximum authorized by the

jury’s findings. Without a jury determination of drug quantity,

the default sentencing provision for a marijuana conviction is

provided by § 841(b)(1)(D).5 See United States v. Salazar-Flores,

5

§ 841(b)(1)(D) governs convictions involving less than 50

kilograms of marijuana. Sentencing Defendant beyond the maximum

provided by § 841(b)(1)(D) necessarily attributes 50 kilograms or

more of marijuana to Defendant and hence runs afoul of Apprendi.

Doggett employed § 841(b)(1)(C) as the default, but the case

involved methamphetamine to which § 841(b)(1)(D) does not apply.

See Doggett, 230 F.3d at 162.

14

2001 WL 25691, * 2 (5th Cir. Jan. 25, 2001); United States v.

Nicholson, 231 F.3d 445, 454 (8th Cir. 2000); United States v.

Rogers, 228 F.3d 1318, 1327 n.15 (11th Cir. 2000); United States v.

Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). Under § 841(b)(1)(D),

the maximum prison sentence for a person without a prior conviction

for a felony drug offense is five years (60 months). Defendant’s

prison sentence of 97 months exceeds this maximum, and accordingly

must be reduced to no more than 60 months.

Defendant’s term of supervised release must likewise be

reduced, as discussed in oral argument. Section 841(b)(1)(D) does

not itself provide a maximum for the term of supervised release.

See 21 U.S.C. § 841(b)(1)(D) (stating that the term of supervised

release should be at least two years). Nonetheless, unless §

841(b)(1)(A) or (B) applies, the maximum term of supervised release

for a marijuana offense under § 841 is three years for persons

without a prior felony drug conviction. See 18 U.S.C. § 3583(b)(2)

(providing that “except as otherwise provided” the maximum term of

supervised release for a Class C or D felony is three years);

U.S.S.G. § 5D1.2(a)(2); United States v. Kelly, 974 F.2d 22, 24 (5th

Cir. 1992)(noting that the proper term of supervised release under

§ 841(b)(1)(D) is two to three years). Although § 841(b)(1)(A)

mandates a minimum term of five years supervised release, the

safety valve provision should have prevented this mandatory minimum

from being imposed. See U.S.S.G. §5D1.2, cmt. n.1; United States

v. Hendricks, 171 F.3d 1184, 1186 (8th Cir. 1999). In addition,

15

because § 841(b)(1)(A) imposes, on the basis of drug quantity, a

term of supervised release greater than the statutory maximum of

three years, under Apprendi the issue of drug quantity would have

to have been determined by the jury for this enhancement to be

applied. See Doggett, 230 F.3d at 165 n.2 (modifying a term of

supervised release because it exceeded the statutory maximum of

three years). Accordingly, Defendant’s term of supervised release

must be reduced from five years to no more than three years.

III. CONCLUSION

For the reasons stated above, we AFFIRM Defendant’s

conviction, but VACATE his sentence and REMAND the case to the

District Court for resentencing consistent with this opinion.

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