U.S. v. Garcia, s. 95-4068

• Citation: 89 F.3d 362
• Decision Date: 10 July 1996
• Docket Number: 96-1041,Nos. 95-4068,s. 95-4068
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel N. GARCIA and Carl J. McAfee, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 362

89 F.3d 362

UNITED STATES of America, Plaintiff-Appellee, v. Miguel N. GARCIA and Carl J. McAfee, Defendants-Appellants.

Nos. 95-4068, 96-1041.

United States Court of Appeals, Seventh Circuit.

Argued May 16, 1996.

Decided July 10, 1996.

Rodney Cubbie, Pamela Pepper (argued), Office of the United States Attorney, Milwaukee, WI, for the United States.

Catherine M. Canright (argued), Milwaukee, WI, for Miguel N. Garcia.

Martin E. Kohler (argued), John C. Thomure, Jr., Kohler & Hart, Milwaukee, WI, for Carl J. McAfee.

Before POSNER, Chief Judge, ESCHBACH, and ROVNER, Circuit Judges.

ESCHBACH, Circuit Judge.

Carl McAfee pleaded guilty to conspiracy to possess with the intent to distribute more than five kilograms of cocaine. Miguel Garcia, McAfee's co-conspirator, proceeded to trial where he was convicted of the offense to which McAfee pleaded guilty and knowingly and intentionally attempting to possess with the intent to distribute cocaine. McAfee appeals only his sentence. Garcia appeals his convictions and his sentence. Our court consolidated their appeals for disposition. We AFFIRM.

I.

On March 8, 1995, Vivian Betancourt (hereinafter "Betancourt") was arrested on a marijuana charge. Betancourt agreed to cooperate with the government in exchange for leniency. She promised that she would deliver to the government a cocaine dealer.

On March 14, in cooperation with the government, Betancourt phoned Miguel Garcia. Garcia said that he wanted to buy eight kilograms of cocaine. On June 20, Betancourt called Garcia and told him that her associates had ten kilograms of cocaine available for purchase. Garcia agreed to buy all ten. Later that day, Betancourt phoned again, saying that she could deliver fifteen kilograms. Garcia said that he only wanted ten, and that he had the money on hand. The next day Betancourt and Garcia met with undercover detectives, posing as drug dealers, in a motel room in Milwaukee, Wisconsin. Garcia told the detectives that he wanted to purchase ten kilograms. Garcia said that he needed to speak with his buyers, ¹ and that he would return within the hour to purchase the drugs. Betancourt and Garcia returned to Garcia's home where they met Carl McAfee. Garcia relayed to McAfee what had transpired at the motel. McAfee expressed reservations about transacting business at a motel. Based on McAfee's concern, Garcia stopped the deal.

On July 28, 1995, Garcia contacted Betancourt to reorganize the transaction. Garcia went to Betancourt's apartment and again said that he wanted to purchase ten kilograms of cocaine. Betancourt told Garcia that her supplier would be in town on August 1. Garcia reassured Betancourt that he would have the money to buy ten kilograms. On August 1, 1995, Garcia returned to Betancourt's apartment. Betancourt informed Garcia that he had to produce the requisite funds before he would be allowed access to the cocaine. Garcia left, and returned with McAfee. McAfee said that they would purchase four kilograms first, and then three more only after his associates had inspected the first four. Initially Betancourt resisted, renewing her claim that her suppliers wanted her to sell fifteen kilograms. However, Garcia and McAfee held firm at seven. After Betancourt agreed, McAfee delivered to Betancourt money for three kilograms, then left to pick up money for the fourth kilogram.

Police entered Betancourt's apartment after McAfee left, where they found Betancourt, Garcia, over $60,000 in cash, and hand-written calculations of the profit margin on seven kilograms of cocaine. Law enforcement agents then surveilled Betancourt's apartment and awaited McAfee's return. Officers stopped McAfee in his car near Betancourt's apartment. In McAfee's car the officers found, among other things, money to purchase a fourth kilogram.

On August 8, 1995, McAfee and Garcia were indicted. Count One charged both men with conspiracy to possess with the intent to distribute more than five kilograms of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846. Count Two charged McAfee with knowingly and intentionally possessing with the intent to distribute cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Count Three charged both Garcia and McAfee with knowingly and intentionally attempting to possess with the intent to distribute cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846. McAfee pleaded guilty to Count One, but reserved the right to challenge the amount of cocaine attributable to him as relevant conduct at sentencing. Garcia proceeded to a jury trial where he was convicted on Counts One and Three.

On December 15, 1995, the district court held a sentencing hearing where it determined that the relevant conduct as to both McAfee and Garcia involved seven kilograms of cocaine, and that Garcia was a career criminal. McAfee was sentenced to 166 months. Garcia received 360 months for Count One and 240 months for Count Three, to run concurrent. McAfee and Garcia now bring these timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

A. The sufficiency of the evidence.

First, Garcia contends that the evidence introduced at trial was insufficient to convict him of Count One, conspiracy to possess with the intent to distribute cocaine. When reviewing a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the government to determine whether any rational fact-finder could have returned a guilty verdict. United States v. Williams, 61 F.3d 534, 535 (7th Cir.1995). Viewing these facts through the government's lens, we disagree with Garcia.

Garcia argues that the evidence at trial proves that at most he was a "buyer/seller," not McAfee's co-conspirator. Garcia rests his sufficiency argument on our holding in United States v. Lechuga, 994 F.2d 346 (7th Cir.), cert. denied, 510 U.S. 982, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993). In Lechuga, a government agent sought to buy cocaine from a man named Pinto. Id. at 346. To acquire the cocaine, Pinto turned to Pagan. Id. Pagan then contacted Lechuga. Id. Lechuga arranged to sell the drugs to Pagan in an apartment building; Pinto and the government agent attended the sale. Id. at 346-47. Lechuga was arrested, tried, and convicted for, among other things, conspiring with Pinto to distribute the cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Id. at 346.

On appeal, Lechuga argued that the only evidence that he conspired with Pinto was that he sold to Pinto a quantity of drugs too large for Pinto's personal use. Id. at 347. That evidence, Lechuga contended, was insufficient to prove that Pinto and Lechuga actually conspired to commit a crime--there was no evidence that Lechuga and Pinto agreed to commit any crime beyond Lechuga's sale of the drugs to Pinto. Our court, sitting en banc, agreed, holding that "[w]hat is necessary ... is proof of an agreement to commit a crime other than the crime that consists of the sale itself." Id. We reasoned that:

When the sale of some commodity, such as illegal drugs, is the substantive crime, the sale agreement itself cannot be the conspiracy, for its has no separate criminal object. What is required for conspiracy in such a case is an agreement to commit some other crime beyond the crime constituted by the agreement itself.

Id. at 349. In other words, we held that a sale agreement cannot constitute a conspiracy when the sale itself is the conspiracy's substantive crime.

Garcia argues that Betancourt was the "seller," McAfee was the "buyer," and that Garcia was only the broker between the two. Garcia maintains that because he only bought drugs from Betancourt to sell to McAfee, his collaboration with McAfee cannot constitute a conspiracy. Garcia simply misreads Lechuga. On the facts of this case, Lechuga stands only for the proposition that Garcia's attempted purchase from Betancourt in and of itself cannot constitute a conspiracy between Betancourt and Garcia. Cf. United States v. Baskin-Bey, 45 F.3d 200 (7th Cir.) (holding that Lechuga is inapplicable when the alleged coconspirators are on the same side of the transaction), cert. denied, --- U.S. ----, 115 S.Ct. 1809, 131 L.Ed.2d 734 (1995). Garcia's agreement with McAfee to purchase drugs from Betancourt for distribution by McAfee does constitute a conspiracy under Lechuga. Id.

Count One, in relevant part, charged Garcia and McAfee with conspiracy to possess with the intent to distribute cocaine. The facts of this case make clear that Garcia collaborated and cooperated with McAfee to purchase cocaine from Betancourt. There is also ample evidence that the duo attempted to acquire the drugs with the intent that McAfee would resell them. For example, Garcia's conduct throughout his negotiations with Betancourt suggests that he was McAfee's agent, not an independent buyer. Garcia represented himself to Betancourt and government investigators as an agent for other buyers. Garcia regularly consulted with McAfee, and followed McAfee's advice to abandon the purchase at the motel. Garcia accompanied McAfee when McAfee told Betancourt that they would only purchase four kilograms first, so that McAfee's "associates" could inspect the drugs. Garcia helped McAfee to coordinate the delivery of over $90,000 in cash to purchase the cocaine. McAfee even concedes in his appellate brief that "[d]uring the course of the negotiations at the informant's house ... the parties discussed amounts that would be purchased by Garcia and McAfee on behalf of the undisclosed buyers." This case satisfies the very definition of conspiracy that we outlined in Lechuga: "an agreement to commit some other crime beyond the crime constituted by the agreement itself." Id. at 349.

The record demonstrates that Garcia, in conjunction with and on behalf of McAfee, repeatedly attempted to purchase cocaine from Betancourt. There is substantial evidence from which a rational...