U.S. v. Garcia-Hernandez

• Decision Date: 07 July 2008
• Docket Number: No. 07-2310.,No. 07-2541.,07-2310.,07-2541.
• Citation: 530 F.3d 657
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Julio GARCIA-HERNANDEZ, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

530 F.3d 657

UNITED STATES of America, Appellee/Cross-Appellant, v. Julio GARCIA-HERNANDEZ, Appellant/Cross-Appellee.

No. 07-2310.

No. 07-2541.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2008.

Filed: July 7, 2008.

Aaron D. Hamrock, argued, West Des Moines, IA, for Appellant.

Shawn Wehde, AUSA, argued, Sioux City, IA, for Appellee.

Before RILEY, GRUENDER and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

After a jury trial, Julio Garcia-Hernandez was convicted of conspiring to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court denied Garcia-Hernandez's motion for judgment of acquittal or, in the alternative, for a new trial and sentenced him to 240 months' imprisonment. Garcia-Hernandez appeals the district court's denial of his post-trial motion. The Government appeals the district court's refusal to impose at least a three-level aggravating role enhancement to its advisory United States Sentencing Guidelines determination and its decision to vary downward from the advisory guidelines range. For the reasons discussed below, we affirm Garcia-Hernandez's convictions but vacate his sentence and remand for resentencing.

I. BACKGROUND

In May 2006, Donald Steburg, Jr., provided information to members of the Webster County Sheriff's Department about his previous distribution and use of methamphetamine. Steburg said he purchased methamphetamine from Garcia-Hernandez. Steburg and Garcia-Hernandez communicated with each other by phone, and Steburg met with Garcia-Hernandez or his associates to get methamphetamine at different locations, including Garcia-Hernandez's trailer home and the Jo-Mart Motel. While Steburg normally would pay cash for the methamphetamine, Garcia-Hernandez sometimes fronted the methamphetamine to Steburg. At the time Steburg contacted the officers, Garcia-Hernandez had left two voice messages for Steburg about the $5,000 to $6,000 that Steburg owed him for past drug transactions.

Based on this information, law enforcement planned a controlled buy of methamphetamine by Steburg from Garcia-Hernandez. Steburg called Garcia-Hernandez to arrange the buy. Steburg asked Garcia-Hernandez if he had any "work" or "motorcycles," words they used to refer to drugs, and they set up a meeting for the next day. Iowa Division of Narcotics Enforcement Special Agent John Howard and Steburg drove to Garcia-Hernandez's trailer home for that meeting. Steburg was outfitted with a wire transmitter. Once Garcia-Hernandez and Steburg were in the trailer, Garcia-Hernandez told Steburg that he needed to pay his debts. Steburg responded that he needed some time to get the money. Garcia-Hernandez directed Steburg to meet him at the Jo-Mart Motel later that day with the money.

Special Agent Howard and Steburg later drove to the Jo-Mart Motel, and Steburg entered a motel room with Jose Alejandro DeLuna-Ponce, Garcia-Hernandez's cousin. Garcia-Hernandez was waiting in the room with Miguel Angel Rolon-Ramos. Steburg saw a gun next to Garcia-Hernandez and turned to leave the room. Garcia-Hernandez picked up the gun and instructed DeLuna-Ponce and Rolon-Ramos to lock the door and block Steburg from leaving. Garcia-Hernandez demanded money from Steburg, and Steburg said he would leave his cell phone with Garcia-Hernandez as an assurance that he would go to his vehicle to get the money and return to the motel room. After Garcia-Hernandez told Steburg he had "work" for him, he took Steburg's cell phone and let Steburg leave to get the money. Steburg returned to the vehicle and told Special Agent Howard that Garcia-Hernandez had a gun. They left the parking lot.

During the meeting at the Jo-Mart Motel, other members of law enforcement were conducting surveillance of the area. Special Agent Mark Minten of the Drug Enforcement Administration monitored the conversations through the wire transmitter that Steburg was wearing and observed from the tone of Steburg's voice that something had gone wrong when Steburg entered the room. After Steburg left the motel room, Special Agent Minten received a call on his cell phone from Steburg's cell phone. During that call, Garcia-Hernandez made arrangements to sell methamphetamine to Special Agent Minten. Sioux City Police Officer Mike Simons also conducted surveillance from outside of the Jo-Mart Motel. After Steburg left the motel room, Officer Simons observed Rolon-Ramos leave the motel room with his right elbow tucked into his right side as he glanced around the area and went around a corner of the motel. Rolon-Ramos then returned to the motel room. As Garcia-Hernandez, DeLuna-Ponce and Rolon-Ramos each left the motel room, they were arrested. The officers searched the motel room and seized a small amount of methamphetamine but did not find the firearm. They also did not find the firearm after a search of the area surrounding the motel.

At the jury trial, the Government presented evidence that Garcia-Hernandez conspired with various individuals to distribute 500 grams or more of methamphetamine (Count 1) and possessed a firearm in furtherance of a drug trafficking crime (Count 2). Steburg testified about his involvement with Garcia-Hernandez's methamphetamine trafficking operation and the events surrounding Garcia-Hernandez's arrest. Jason Boldon testified that he obtained more than fifteen pounds of methamphetamine from Garcia-Hernandez and his associates. Like Steburg, he testified that he usually paid cash for the methamphetamine, but Garcia-Hernandez sometimes fronted him the drugs. Both Steburg and Boldon testified that they would sell some of the methamphetamine they obtained from Garcia-Hernandez to other people. The jury returned a guilty verdict against Garcia-Hernandez on both counts.

At sentencing, the district court determined that Garcia-Hernandez's base offense level was 36 based on the quantity of methamphetamine involved in the conspiracy. The Government sought at least a three-level upward adjustment for an aggravating role pursuant to U.S.S.G. § 3B1.1, which Garcia-Hernandez opposed. The district court declined to impose a three- or four-level upward adjustment because it found that the conspiracy did not involve five or more participants and was not otherwise extensive. See U.S.S.G. § 3B1.1(a), (b). The district court instead imposed a two-level aggravating role adjustment because it found that Garcia-Hernandez managed or supervised at least one other participant in the crime, DeLuna-Ponce. See U.S.S.G. § 3B1.1(c). Garcia-Hernandez's advisory sentencing guidelines range for the conspiracy conviction, based on a total offense level of 38 and a criminal history category of I, was 235 to 293 months' imprisonment. Garcia-Hernandez requested a variance based, in part, on his inability to participate in an early release program due to his illegal alien status. The district court granted a downward variance and sentenced Garcia-Hernandez to 180 months' imprisonment on the conspiracy conviction and a mandatory, consecutive sentence of 60 months' imprisonment on the firearm conviction, for a total sentence of 240 months' imprisonment. Garcia-Hernandez appeals his convictions, and the Government appeals his sentence.

II. DISCUSSION

A. Post-Trial Motion

Garcia-Hernandez argues that there was insufficient evidence to support the verdicts and that the district court erred by denying his motion for judgment of acquittal or, in the alternative, for a new trial. We affirm Garcia-Hernandez's convictions.

1. Judgment of Acquittal

"We review de novo a district court's denial of a motion for judgment of acquittal." United States v. McAtee, 481 F.3d 1099, 1104 (8th Cir.2007). "We view the evidence in the light most favorable to the jury's verdict and we draw all reasonable inferences in the government's favor...." Id. "[W]e will uphold the verdict if there is any interpretation of the evidence that could lead a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt." United States v. Cole, 525 F.3d 656, 661 (8th Cir.2008) (quotation omitted). "Both direct and circumstantial evidence can be the basis of a conviction." United States v. Beckman, 222 F.3d 512, 522 (8th Cir.2000). Furthermore, we must not "weigh the evidence or assess the credibility of witnesses." United States v. Santana, 524 F.3d 851, 853 (8th Cir.2008).

a. Drug Distribution Conspiracy

After reviewing the evidence presented to the jury, we find that the district court did not err by denying Garcia-Hernandez's motion for judgment of acquittal with respect to his conspiracy conviction. "To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy." United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quotation omitted). "An agreement to join a conspiracy need not be explicit but may be inferred from the facts and circumstances of the case." United States v. Rodriguez-Mendez, 336 F.3d 692, 695 (8th Cir.2003) (internal quotation omitted). Furthermore, "evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of a conspiracy to distribute." United States v. Eneff, 79 F.3d 104, 105 (8th Cir.1996). Additionally, the length of time participants know each other and their "established methods of payment" may support the existence of a conspiracy. United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003).

Steburg testified that he purchased at least ten pounds of methamphetamine for further distribution from Garcia-Hernandez and his associates over several months. While DeLuna-Ponce...