U.S.A. v. Garcia

• Decision Date: 07 March 2001
• Docket Number: No. 99-2202,99-2202
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Henry Garcia, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 838

252 F.3d 838 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Henry Garcia, Defendant-Appellant.

No. 99-2202

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 7, 2001

Decided and Filed: June 7, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 98-81108, Robert H. Cleland, District Judge.

David J. Debold, ASSISTANT UNITED STATES ATTORNEY, Kathleen Moro Nesi, Asst. U.S. Attorney, Detroit, Michigan, for Appellee.

David B. Herrington, Bad Axe, Michigan, Henry Garcia, pr se, Beaumont, TX, for Appellant.

Before: KRUPANSKY, BOGGS, and BATCHELDER, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Appellant Henry Garcia appeals his sentence from the district court's order denying him a reduction for acceptance of responsibility. Appellant also claims that the district court improperly increased his sentence by making findings of fact regarding the amount of drugs transported in violation of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Because we hold that the district court did not clearly err in denying Garcia credit for acceptance of responsibility and that Apprendi does not affect the sentencing in this case, we affirm the order of the district court.

I. Background

On February 8, 1998, Appellant Henry Garcia was charged with knowingly and intentionally conspiring to possess with intent to distribute marijuana in violation of 21 U.S.C. §§841 (a) (1) and 846. Garcia was arraigned on April 16, 1998, and stood mute. The court entered a plea of not guilty. On January 14, 1999, Garcia changed his plea to guilty, pursuant to a Rule 11 Plea Agreement. The Court sentenced him to 135 months imprisonment on September 30, 1999.

During the course of a DEA investigation of a drug ring distributing marijuana between Texas and Michigan, a confidential informant provided information to DEA Special Agent Cary Freeman regarding Garcia's involvement in the ring. The investigators learned that Garcia had been hired by Ronald Carboni, a co-conspirator and owner of a used car dealership, to transport cars to locations throughout the country. Carboni and Garcia hid marijuana, wrapped in greased packages to frustrate detection efforts, in some of the cars to be transported. The cars were then loaded onto a car hauler, which transported them to the intended destination. Garcia would meet the car hauler there, pay the driver, and see that the cars got to their intended buyers. The marijuana deliveries were cloaked as legitimate transactions between car dealerships and car buyers. A person wishing to purchase marijuana in bulk from Carboni would purchase one of his used cars at a mark-up; the hidden marijuana was included in the price of the car. After the delivery of the cars was completed, Garcia would fly back to Houston, and the recipients of the cars would remove and distribute the marijuana. Using this scheme, Garcia and Carboni transported large amounts of marijuana from Houston, Texas, to Michigan, North Carolina, Florida, Minnesota and Alabama.

The presentence report, based largely on admissions Garcia made to the DEA after he was indicted and before he entered his guilty plea, calculated the quantity of marijuana attributable to Garcia as approximately 1,380 pounds (625 kg.). However, in a statement Garcia typed up after he had entered his guilty plea, he admitted to more drug delivery trips, but estimated the amount transported to be significantly less than 1,380 pounds. The probation department recommended that, consistent with his statements, Garcia be held responsible for the 625 kg. quantity. Under the Sentencing Guidelines, 400 to 700 kg. of marijuana results in a base offense level of 28; 21 U.S.C. § 841(b)(1)(B) provides that the maximum penalty for trafficking in that amount of marijuana is 40 year in prison.

The government objected to the presentence report's calculation of quantity, and submitted a summary of an interview with Carboni in which Carboni claimed that the amount of marijuana transported was at least 1,000 kilograms, which corresponds to a base sentencing level of 32 under the Guidelines. This amount was consistent with the quantities alleged by the government in the worksheets attached to the plea agreement that Garcia had executed. Garcia filed a response to the government's objections, specifically agreeing to the quantity recommended in the presentence report. The district court held an evidentiary hearing to determine the appropriate quantity of marijuana for sentencing purposes.

At the hearing, Carboni testified that Garcia had been involved in at least ten intrastate shipments of marijuana in Texas in 1995, and that Garcia moved about 3,200 pounds of marijuana in 1996, and an additional 2,300 pounds of marijuana in subsequent years. Carboni estimated that Garcia had participated in transporting approximately 4,500 pounds (roughly 2,040 kg.) ¹ of marijuana.

Garcia also testified at the evidentiary hearing; he claimed that he was involved in only nine trips, that all but one of those trips were in 1995, the last one was at the beginning of 1996, and that the amounts carried on each trip were less than 200 pounds (90 kg.). He denied many of Carboni's claims regarding transporting large bulk amounts of marijuana, and only reluctantly admitted to picking up the proceeds from marijuana sales. He also denied making certain statements to the DEA regarding the extent of his involvement with the conspiracy to distribute marijuana.

Following the hearing, Judge Cleland issued findings of fact, in which he credited Carboni's version of the amounts shipped, and concluded that Garcia had been involved in the shipment of 2,499 kilograms of marijuana. The court also found that Garcia's equivocation regarding the amounts he carried disqualified him from receiving an "acceptance of responsibility" adjustment under USSG § 3E1.1(a). At least 1,000 but less than 3,000 kg. of marijuana requires a base offense level of 32 under the Sentencing Guidelines; under 21 U.S.C. § 841(b)(1)(A), the maximum penalty for more than 1,000 kg. is life in prison. The court sentenced Garcia using the base offense level of 32, and a criminal history category of II. The resulting sentence was 135 months, which occupies the bottom rung of the applicable range.

Garcia has appealed through counsel the denial of the acceptance of responsibility and has raised pro se the validity of the sentence in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

II. Acceptance of Responsibility

We will not disturb a district court's factual findings as to whether a defendant has accepted responsibility for his criminal conduct unless those findings are clearly erroneous. United States v. Wilson, 197 F.3d 782, 785 (6th Cir. 1999) (citing United States v. Bradshaw, 102 F.3d 204, 214 (6th Cir. 1996)). A finding is clearly erroneous when the "reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

Reviewing the transcript, we find no clear error in the district court's decision to believe Carboni rather than Garcia. Carboni's story of massive marijuana deliveries was consistent throughout cross-examination. He explained at length why his version of the amounts shipped is credible and Garcia's is not, using specific quantities and prices to illustrate that, as a businessman, albeit an illegitimate one, he simply could not make a profit on the drug transactions unless he shipped bulk amounts of at least 500 pounds. When asked why Luis Garcia, another co-conspirator, might provide a different account of the amounts of marijuana transported, Carboni answered: "To keep his sentencing guidelines down which would be typical of all these guys to do." Carboni also suggested that Henry Garcia's memory of events might be unreliable, stating, "Henry really couldn't think out there because he was smoking large amounts of crack cocaine."

Garcia, in contrast, changed his story numerous times. His answers were frequently evasive. The trial judge summarized his reluctance to believe Garcia stating:

The phrase I used in my bench notes is this is like pulling teeth to get him to answer a question straight. It did. It took two or three questions to persuade Mr. Garcia to admit that the purpose of that second trip to Florida was indeed related to marijuana. He said no it wasn't marijuana, it wasn't this. It was - as though to imply it was an innocent business trip or pleasure trip or something. But come to find out it was to pick up some money. What was the money for, Parker [the prosecutor] said. Garcia answered, well, I gave it to Luis, which of course doesn't answer the question. But what was the money for, she said. Well, it was for paying for marijuana. So the trip was related to marijuana, then wasn't it? Well, yes he says. Well, that is not the kind of profile one would expect in a forthcoming, sincere, credible witness . . . ." J.A. 230.

Given Garcia's equivocation on the stand and the differing accounts he supplied to the probation department, the district court did not clearly err in finding Carboni's internally consistent testimony more credible than Garcia's, and in refusing to give Garcia credit for acceptance of responsibility.

III. The Apprendi Issue

Next, we examine whether the district court sentenced Garcia inappropriately in light of the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). In Apprendi, the U.S. Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty beyond the statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt." Id., S. Ct at 2362-63. Apprendi involved the application...