U.S. v. Garcia

• Citation: 242 F.3d 593
• Decision Date: 15 February 2001
• Docket Number: No. 99-51091,99-51091
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GILBERT GARCIA, JR., Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 593

242 F.3d 593 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GILBERT GARCIA, JR., Defendant-Appellant.

No. 99-51091

UNITED STATES COURT OF APPEALS, Fifth Circuit

February 15, 2001

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

Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT,^* District Judge.

KENT, District Judge:

Defendant Gilbert Garcia Jr. appeals his conviction and sentence for conspiracy to possess with intent to distribute a 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 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. 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 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 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 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 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 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...