U.S. v. Garcia

• Decision Date: 26 November 1982
• Docket Number: No. 82-2237,82-2237
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reynaldo GARCIA, Defendant-Appellant. Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 412

693 F.2d 412

UNITED STATES of America, Plaintiff-Appellee, v. Reynaldo GARCIA, Defendant-Appellant.

No. 82-2237

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Nov. 26, 1982.

L. Aron Pena, Edinburg, Tex., for defendant-appellant.

John M. Potter, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, REAVLEY and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge.

I. INTRODUCTION

Appellant Reynaldo Garcia was indicted on five counts of conspiring to distribute and distributing a total of 119.1 grams of heroin between February 17, 1981, and March 23, 1981, in violation of 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2. On February 1, 1982, Garcia's plea of guilty to one count of distributing .4 grams of heroin was accepted, and on motion of the government the other four counts were dismissed. The district judge sentenced Garcia to a term of ten years with a special parole term of five years and refused Garcia's request for voluntary surrender. Garcia filed a timely motion for reduction in sentence under Fed.R.Crim.P. 35, and a hearing was held on April 23, 1982. After hearing the evidence and "[considering] the nature of the offense and Defendant's involvement as shown by the testimony of the witnesses at the hearing," the trial judge reduced Garcia's sentence to eight years. Garcia appeals from that order and requests this court to vacate the sentence and remand the case to a different presiding judge. Because we find that the sentence is within the statutory limits and that there is no showing that the sentence was imposed in an arbitrary or capricious manner, we affirm the district court's order.

II. FACTS

After pleading guilty to one count of distributing .4 grams of heroin, Reynaldo Garcia was given a hearing prior to sentencing. At that time the judge asked Garcia if there was anything he would like to say, and he answered that he had read the presentence investigation (PSI) report and disagreed with it because "I am not that kind of person." Garcia's counsel stated that Garcia did not have a criminal record, that he was only the middle-man in the transaction, and that the codefendant Efrain Lopez-Garcia who actually supplied the heroin had received a probated sentence the day before. Although the presentence report noted that his name had "come up in a number of transactions," Garcia stated that he had never been involved in any heroin transactions aside from the one to which he had pleaded guilty.

The court, stating that "I won't take into consideration these matters that you have taken issue with," then sentenced Garcia to the Attorney General's custody for ten years with a special parole term of five years. At that time Garcia's counsel told the judge that he thought that the court had been influenced by the PSI report which "we submit is false." The court responded that the nature of the crime (selling heroin) and the damage resulting from the offense were such that he was not very sympathetic and he did not consider such an offense a probation case except under the most extenuating circumstances "which I don't find here." As for the probated sentence of Garcia's codefendant, the judge stated that he did not know the facts and circumstances of the other case and that he could not base his own sentencing on what other defendants or other judges did. He then invited Garcia to file a motion to reduce at which time he would "look at it again."

Garcia's counsel accepted the judge's invitation, filed a motion to reduce Garcia's sentence, and a hearing was held on that motion on April 23, 1982.

At the hearing, the district judge stated that he was particularly concerned with statements in the PSI report which indicated 1) that Garcia had made statements to the agent in the purchase which demonstrated his expertise and the subtleties of the heroin trade; and 2) that Garcia's name "had frequently come up in independent and isolated ... drug transactions." At the outset the judge candidly explained that the aforementioned factors had probably affected him in assessing the ten-year sentence, and that he wanted to discover the source of the "conclusional remarks."

The government offered the testimony of a Drug Enforcement Administration (DEA) official which indicated that investigation of Garcia had begun as early as 1967. From 1967 through 1974 Garcia had been considered a major source of heroin for the Corpus Christi area. From 1975 until his arrest, at least nine different "sources" had contributed reports on Garcia's drug-related activities. Garcia had twice been indicted on the basis of witness reports, but the government had dismissed the cases because the witnesses "decided they no longer wished to testify." Subsequent to Garcia's arrest, moreover, several individuals apprehended in drug raids in Laredo and Corpus Christi had named Reynaldo Garcia as the source of their drugs.

A DEA special agent, Robert Benson, had made several "buys" from Garcia over the course of several months. Benson reported in the PSI report that Garcia had made quite a few remarks about how the heroin ought to be cut. Garcia admitted that he was "trying to show off" about how much he knew about heroin preparation. Although admitting the accuracy of Benson's report, Garcia denied ever having cut heroin.

The court was impressed by the fact that "this man's [Garcia's] name over a period of time was continually brought up in connection with heroin transactions." The court carefully pointed out, however, that Garcia was not being punished on the basis of his "past history" as it contrasts with his clean record of conviction:

The court: He is not receiving [this sentence] because of his past history. I haven't intended to leave that inference at all.

The only thing that I brought out, and I thought it was significant, was that this man had been dealing in the past in heroin, and I gathered that from his own admissions that he made to the agent. Apparently the agent didn't consider it an idle comment, and apparently it made sense. What this man said made sense to the agent as to how you go about cutting the heroin and what you cut it with.

So all of these things together led me to the inevitable conclusion that this man was experienced in the heroin business and the heroin trade and that this was not an isolated transaction, just based on everything I have heard, and I don't accept his explanation ....

The court further noted that he would hold the case under advisement so that he could look at everything again to be sure that he had not overlooked something or that he had not been unduly harsh with Garcia. The court permitted Garcia to make a voluntary surrender, granted Garcia's motion to reduce, and reduced the sentence to eight years.

III. ISSUES

On appeal Garcia contends 1) that in sentencing, the district court relied on inaccurate and challenged information contained in the PSI report; and 2) that he was denied equal protection of the law because he received a harsher sentence than his codefendant.

For Garcia to prevail on this challenge to his sentence, which is concededly within the statutorily permissible limits, he must show that the trial judge's action amounted to an arbitrary or capricious abuse of discretion. United States v. Cimino, 659 F.2d 535, 537 (5th Cir.1981); United States v. Small, 636 F.2d 126, 127 (5th Cir.1981).

In regard to his specific charge that the trial judge relied on inaccurate and challenged information in his PSI report in imposing sentencing, Garcia must show that the information was materially inaccurate and that the judge relied on that information. Merely alleging that the PSI report contained inaccurate or inappropriate information does not sufficiently call into question a violation of due process in sentencing. Cimino, 659 F.2d at 537.

Garcia relies on Shelton v. United States, 497 F.2d 156 (5th Cir.1974), and United States v. Espinoza, 481 F.2d 553 (5th Cir.1973), for the proposition that "[m]isinformation regarding facts relevant to sentencing renders the sentencing process invalid." Garcia misstates the holding in both cases. Rather they stand for the proposition that where a judge "explicitly relies on certain information in assessing a sentence," the defendant must be given some opportunity to rebut that information. Shelton, 497 F.2d at 159; Espinoza, 481 F.2d at 556.

Here, Garcia was given an...