United States v. Garcia-Lagunas, 090116 FED4, 14-4370

Docket Nº:14-4370
Opinion Judge:DIAZ, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes, Defendant-Appellant.
Attorney:Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Atto...
Judge Panel:Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. DAVIS, Senior Circuit Judge, dissenting:
Case Date:September 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes, Defendant-Appellant.

No. 14-4370

United States Court of Appeals, Fourth Circuit

September 1, 2016

          Argued: September 17, 2015

         Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:12-cr-00376-F-1)

         ARGUED:

          Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant.

          Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant.

          Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

          DIAZ, Circuit Judge:

         A jury convicted Alejandro "Alex" Garcia-Lagunas of conspiracy to distribute or possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a), 846. He was sentenced to 188 months' imprisonment. Garcia-Lagunas appealed and we affirmed his conviction, finding that the government committed nonconstitutional error by using ethnically charged evidence to rebut Garcia-Lagunas's assertion that he was too poor to have dealt in large quantities of drugs, but that such error was harmless. We also vacated his sentence, holding that the district court's miscalculation of Garcia-Lagunas's Guidelines range was plain error affecting his substantial rights, and remanded for resentencing.

         Garcia-Lagunas filed a petition for rehearing and rehearing en banc. We granted Garcia-Lagunas's petition for panel rehearing, thus vacating our prior opinion and mooting the petition for rehearing en banc. We directed briefing on whether the evidentiary error, if assumed to be of constitutional magnitude, was nonetheless harmless beyond a reasonable doubt. We now again affirm Garcia-Lagunas's conviction, vacate his sentence, and remand for resentencing.

         I.

         A.

         On March 27, 2012, Ronnie Reed was arrested in Fayetteville, North Carolina, on federal drug trafficking charges. Reed told the arresting officers that he had a "Mexican drug supplier" named "Alex" and led them to three trailers in Robeson County-at 33 Sonoma, 47 Sonoma, and 294 Maple Leaf-where he said he had purchased drugs from "Alex." Reed also gave the officers four telephone numbers that he had previously used to contact "Alex."

         The next day, the police executed search warrants on the three trailers. They found Garcia-Lagunas's parents at 33 Sonoma and ten one-kilogram wrappers, several with "white powdery residue" on them, buried in a lean-to shed behind the trailer at 47 Sonoma. J.A. 98. At 294 Maple Leaf, officers found an older male with a small user amount of cocaine. During earlier surveillance, officers had seen a car leave 294 Maple Leaf and go to a trailer at 353 Westcott. As the search of the three trailers had not turned up "Alex, " the officers decided to try 353 Westcott. When they arrived, Detective Kurt Stein observed Marco Hernandez exit the trailer from the back, and Detective Pedro Orellano and Sergeant Gregory Johnson approached him. Orellano confirmed with Hernandez that Hernandez lived at the trailer and obtained his consent to search it.

         The officers found Garcia-Lagunas and Brian Jacobs inside the trailer. Garcia-Lagunas had white powder under his nose and appeared impaired. Garcia-Lagunas identified himself to the officers as Alex. Both Garcia-Lagunas and Jacobs told the officers that they did not live in the trailer. After Sergeant Johnson asked him to empty his pockets, Garcia-Lagunas produced $600 cash and a cell phone, which had his photograph as its background image. When Detective Stein dialed one of the phone numbers Reed had given the police for "Alex, "[1] Garcia-Lagunas's phone rang.

         The officers then searched the trailer. In the kitchen, they found a handgun and several small baggies. In one bedroom, the officers found body armor; a large digital scale; a small digital scale; a black plastic bag containing a vacuum-sealed bag, which in turn contained about 800 grams of a white powdery substance; and a small baggie of crack cocaine. The white powder field-tested positive for cocaine, but later State Bureau of Investigation ("SBI") laboratory tests revealed that the powder contained no controlled substance.

         Analysis of Garcia-Lagunas's phone's records connected it to several known drug dealers, including Reed, Jacobs, Thomas Brewington, Shaun Beard, and Reginald Clark. The records showed that from February 9th to 23rd, 2012, there were 185 calls between Garcia-Lagunas and Beard; 60 between Garcia-Lagunas and Clark; 56 between Garcia-Lagunas and Jacobs; 56 between Garcia-Lagunas and Reed; and 160 between Garcia-Lagunas and various numbers with a 404 area code, which the government identified as Atlanta, a "drug hub city." J.A. 139. From February 13th to 21st, 2012, there were 37 calls between Garcia-Lagunas and the landline at 294 Maple Leaf. From February 22nd to February 23rd, 2012, there were five calls between Garcia-Lagunas and Brewington.

         B.

         A grand jury charged Garcia-Lagunas2 with conspiring to distribute or possess with the intent to distribute 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a), 846, and unlawfully reentering the United States after having previously been deported, in violation of 8 U.S.C. § 1326(a). He pleaded guilty to the unlawful reentry charge and proceeded to trial on the conspiracy charge.

         Before trial, the government gave notice of its intention to call Detective Shawn Collins as an expert witness, stating that he would "testify about drug trafficking investigations and methods utilized by drug traffickers to operate and protect their drug business." J.A. 32. Separately, the district court agreed to provide Garcia-Lagunas with a Spanish interpreter for the proceedings.

         Collins was the government's first witness, testifying both as an expert and as a fact witness with respect to the investigation and the searches. According to Collins, the white powder found in the trailer could have field-tested positive for cocaine and still have been found to contain no controlled substance in SBI's laboratory analysis if the cocaine had been mixed with a sufficient amount of cutting agent such that "when the lab sampled a small amount of that 800 grams of cocaine there . . . wasn't enough cocaine in it to even register with the SBI or the instruments they were using." J.A. 111.

         Collins also told the jury that Garcia-Lagunas was "an alien illegally in the United States." J.A. 150. After the prosecution asked Collins if he saw that Garcia-Lagunas was being assisted by an interpreter in court, Collins responded that his informants had not indicated that they had needed to use Spanish in their dealings with Garcia-Lagunas. Moreover, Collins testified that Garcia-Lagunas "appeared to be fluent in English." J.A. 151.

         Four drug dealers-Reed, Jacobs, Brewington, and Antonio Locklear-each testified pursuant to plea agreements to having purchased cocaine from Garcia-Lagunas. Reed bought four to nine ounces of cocaine from Garcia-Lagunas at the 47 Sonoma location two times a week from October 2011 until Reed's March 27, 2012 arrest, adding up to at least six kilograms, and separately bought nine to twenty ounces of cocaine from Garcia-Lagunas at the Maple Leaf location at least once a week from December 2011 until March 27, 2012, adding up to at least four additional kilograms. Reed resold the drugs that he bought from Garcia-Lagunas, and did not use them himself.

         Jacobs had been buying drugs from Garcia-Lagunas for about eight years, prior to which Jacobs had sold to Garcia-Lagunas. On the day of Garcia-Lagunas's arrest, Jacobs had given $600 to Garcia-Lagunas for three-quarters of an ounce of cocaine. Jacobs also testified that he had on over thirteen other occasions bought from a quarter of an ounce to three-quarters of an ounce of cocaine from Garcia-Lagunas.

         According to Brewington, he bought cocaine from Garcia-Lagunas only once, at 294 Maple Leaf, and he bought nine ounces on that occasion. He discussed the amount of cocaine he could resell with Garcia-Lagunas, in order to negotiate a better price. Brewington noted that when he tried to redistribute the cocaine, "one of [his] people that [he] gave it to was complaining that it wouldn't" cook properly. J.A. 363.

         Locklear began using Garcia-Lagunas as a source for drugs around June of 2010. From then until March 2011, he bought cocaine from Garcia-Lagunas about every other day, and he purchased the drugs to resell them...

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