U.S. v. Garcia

• Decision Date: 03 December 1991
• Docket Number: No. 91-1708,91-1708
• Citation: 954 F.2d 12
• Parties: UNITED STATES of America, Appellee, v. Hector GARCIA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 12

954 F.2d 12

UNITED STATES of America, Appellee, v. Hector GARCIA, Defendant, Appellant.

No. 91-1708.

United States Court of Appeals First Circuit.

Heard Dec. 3, 1991.

Decided Jan. 16, 1992.

Edward J. Romano, with whom Paul J. DiMaio, Providence, R.I., was on brief, for defendant, appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Kenneth P. Madden, Asst. U.S. Atty., Providence, R.I., were on brief, for U.S.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

Defendant-appellant Hector Garcia pled guilty to multiple counts of distributing, and conspiring to distribute, cocaine. He was thereupon sentenced. In this appeal, Garcia contests his sentence on two grounds, both related to the district court's calculation of the guideline sentencing range (GSR), viz., (1) the court's inclusion of certain quantities of cocaine distributed by a coconspirator as relevant conduct; and (2) the court's refusal to characterize Garcia's role in the offense more leniently or, alternatively, to hold an evidentiary hearing anent Garcia's role. Discerning no error, we affirm.

I. BACKGROUND

Because appellant's conviction resulted from a guilty plea, we draw the facts from the Presentence Investigation Report (PSI Report) and the transcript of the sentencing hearing. See United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

The appellant was a part owner of the Sportsman's Bar in Central Falls, Rhode Island. On June 29, 1990, an undercover agent, Richard Vega, came to the bar. ¹ Vega told Garcia that he was looking for a fresh source of cocaine, whereupon Garcia introduced him to Rafael Zuleta. Zuleta took Vega outside and sold him 55.38 grams of cocaine. When Vega inquired about the availability of a larger batch at a cheaper price, Zuleta said that he would discuss the possibility with Garcia.

On July 7, Vega asked Garcia to contact Zuleta about a price reduction. Shortly thereafter, Garcia was seen conferring with Zuleta. On July 10, Vega and Zuleta forgathered at the bar. They proceeded to a private residence in Central Falls. Once there, Zuleta said that his "boss" had agreed to lower the price; in turn, Vega purchased 125.72 grams of cocaine. Discovering, later, that he had inadvertently shortchanged his purveyor, Vega repaired to the Sportsman's Bar. He gave Garcia $1000 (the full amount of the underpayment), and explained the situation. Zuleta subsequently acknowledged that he had received the funds. On August 2, Vega again arranged a visit to the bar. Garcia greeted him, indicating an awareness that a rendezvous with Zuleta was in the offing. When Zuleta arrived, he and Vega journeyed to the same private residence where, this time, Vega bought 127.4 grams of cocaine.

In due course, three more transactions occurred. On August 28 and September 26, Vega and Elvin Laboy, a federal agent posing as Vega's brother-in-law, purchased a total of 629.1 grams of cocaine from Zuleta. On November 28, Zuleta delivered an additional 123.9 grams to Laboy. None of these transactions originated at the Sportsman's Bar or involved Garcia in any overt manner.

Zuleta and Garcia were soon indicted by a federal grand jury. The first count of the indictment charged them with conspiracy to distribute cocaine "from a time unknown up to and including on or about November 28, 1990," in violation of 21 U.S.C. § 846. The remaining six counts charged drug distribution in violation of 21 U.S.C. § 841(a)(1). Counts 2, 3, and 4 charged both defendants with complicity in the June 29, July 10, and August 2 deliveries. Counts 5, 6, and 7 charged Zuleta (but not Garcia) with perpetrating the August 28, September 26, and November 28 deliveries.

After some preliminary skirmishing, Garcia agreed to plead guilty to the four counts in which he was named. A written plea agreement (the Agreement) was executed in pursuance of Fed.R.Crim.P. 11(e)(1)(B) (covering plea agreements in which the prosecution agrees, inter alia, to make a sentencing recommendation "with the understanding that such recommendation ... shall not be binding upon the court"). As part of the Agreement, the government pledged that it would seek to amend the indictment to reflect that, insofar as Garcia was concerned, the charged conspiracy ended "on or about August 2, 1990." The government further agreed to "recommend the minimum sentence under the appropriate guideline range." The Agreement did not represent the effect, if any, that amending the indictment might have on the GSR, nor did it hint what GSR would be applicable to the grouped counts of conviction. The Agreement warned that the district court could freely ignore the government's sentencing recommendation.

At an ensuing Rule 11 hearing, the court below permitted the change of plea and granted the government's motion to amend the indictment. On July 12, 1991, sentence was imposed. This appeal followed.

II. RELEVANT CONDUCT--DRUG QUANTITY

The principal challenge to the sentence involves the district court's quantification of the appellant's relevant conduct, expressed in grams of cocaine. Garcia argues that, because the district court's computation of the GSR rested upon its unsupportable finding that his criminal activity involved 1061.5 grams of cocaine--a finding that produced a base offense level of 26, see U.S.S.G. 2D1.1(c)(9) (Drug Quantity Table)--the sentence was awry. ² We are unconvinced.

A.

In a drug distribution case to which the guidelines apply, "a key datum in constructing defendant's sentence is the quantity of narcotics attributable to him for sentencing purposes, a datum bounded by the sum of the charged conduct to which the defendant pleads plus his 'relevant' uncharged conduct." United States v. Bradley, 917 F.2d 601, 604 (1st Cir.1990); see also United States v. Blanco, 888 F.2d 907, 908-11 (1st Cir.1989) (explicating operation of principle). The drug quantity is to be derived from all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2); see generally United States v. Sklar, 920 F.2d 107, 110 (1st Cir.1990); Blanco, 888 F.2d at 910.

This court has repeatedly upheld the inclusion as relevant conduct of acts either not charged or charged but dropped. See, e.g., United States v. Estrada-Molina, 931 F.2d 964, 965 (1st Cir.1991); United States v. Mak, 926 F.2d 112, 113 (1st Cir.1991); Sklar, 920 F.2d at 111-12; United States v. Mocciola, 891 F.2d 13, 16 (1st Cir.1989); Blanco, 888 F.2d at 909-11. In the context of a conspiracy, the proper inquiry in determining whether such additional acts should be included as relevant conduct is whether those acts were reasonably foreseeable by the defendant and committed in furtherance of the conspiracy. See United States v. Edwards, 945 F.2d 1387, 1392 (7th Cir.1991) (use of standard conspiracy principles is consistent with application of relevant conduct provisions of sentencing guidelines); United States v. LaFraugh, 893 F.2d 314, 317 (11th Cir.) (similar), cert. denied, --- U.S. ----, 110 S.Ct. 2601, 110 L.Ed.2d 281 (1990); see also Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946) (a defendant is responsible for coconspirator's acts that are reasonably foreseeable and committed in furtherance of the conspiracy).

B.

Here, then, the district court was plainly entitled to begin its compilation of relevant conduct by aggregating the quantities of cocaine involved in the counts of conviction: 308.5 grams, spread over three transactions (June 29, July 10, and August 2). The court went on to add, under the rubric of relevant uncharged conduct, the 753 grams of cocaine sold by Zuleta in the course of the next three transactions (August 28, September 26, and November 28). In doing so, the court referred initially to a guideline provision instructing the sentencing court to examine

all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.

U.S.S.G. § 1B1.3(a)(1). An application note to this guideline states: "In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant 'would be otherwise accountable' also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant." U.S.S.G. § 1B1.3, comment. (n. 1); see also id., comment. (backg'd) ("in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction"). Following these signposts, the district court found that the three sales postdating August 2 arose out of the joint undertaking upon which Zuleta and Garcia had earlier embarked; and that the sales, though unassisted by Garcia, were reasonably foreseeable by him, all things considered. On this premise, the court held Garcia accountable for the incremental quantities.

C.

The appellant objects to inclusion of the 753 grams. We approach the objection mindful that, on appeal, a sentencing court's determination that drug transactions did, or did not, form part of the same course of conduct as the counts of conviction is a predominantly factual finding that will be disturbed only if clearly erroneous. See Sklar, 920 F.2d at 110; Bradley, 917 F.2d at 605.

In advancing his position, Garcia relies heavily upon United States v. Wood, 924 F.2d 399 (1st Cir.1991). In Wood, we ruled...