U.S. v. Garcia, 94-3781

• Decision Date: 03 November 1995
• Docket Number: No. 94-3781,94-3781
• Citation: 69 F.3d 810
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfonso GARCIA, also known as Jose L. Garcia, also known as Quata, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 810

69 F.3d 810

UNITED STATES of America, Plaintiff-Appellee, v. Alfonso GARCIA, also known as Jose L. Garcia, also known as Quata, Defendant-Appellant.

No. 94-3781.

United States Court of Appeals Seventh Circuit.

Argued Sept. 20, 1995.

Decided Nov. 3, 1995.

Barry Rand Elden, Chief of Appeals, Colleen Coughlin (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Neil H. Cohen, Adam J. Brenner (argued), Chicago, IL, for Defendant-Appellant.

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Alfonso Garcia entered a guilty plea on one count of distribution of cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1). He now appeals two sentencing determinations. For the reasons set forth in the following opinion, we affirm the judgment of the district court. We also refer a professional disciplinary matter regarding Mr. Garcia's trial defense counsel to the district court for further investigation.

I BACKGROUND

A. Facts

On August 31, 1993, defendant Alfonso Garcia supplied two kilograms of cocaine base to Luis Orozco in Chicago, under the arrangement that Orozco would pay for those two kilos after he sold them to his customer. Later that day, Orozco was arrested when he made the delivery in Joliet to a person who was cooperating with the government. Orozco then agreed to cooperate with the government by contacting his source for the cocaine base. That same evening, he contacted Mr. Garcia, by pager and by telephone, to arrange for an additional supply of cocaine. During those tape-recorded telephone conversations, Orozco told Mr. Garcia that his customer was pleased with the two kilos of cocaine Orozco had just delivered, and wanted more. Mr. Garcia assured him that there was quite a bit more cocaine, but that he could not get it that night; however, Mr. Garcia also insisted that he needed payment first for the two kilograms he had already supplied to Orozco. They agreed to meet the next day so that Orozco could pay Mr. Garcia for the two fronted kilograms and pick up four more.

The next morning, after more paging and telephoning, Mr. Garcia informed Orozco that he had "it," and they met at Denny's Restaurant in Bolingbrook. Once Mr. Garcia arrived at the restaurant, however, he advised Orozco that he did not have "it" with him, but could get "it" after he was paid for the first two kilograms, and could deliver "it" within two hours. Undercover police officer Juan DeLeon, posing as Orozco's buyer and wearing a recording device, showed his anger that Mr. Garcia had not brought the cocaine. However, he reluctantly agreed to pay for the prior delivery of cocaine and to wait for the four kilograms promised by Mr. Garcia. Then Officer DeLeon and Mr. Garcia went out to the parking lot, where DeLeon handed Mr. Garcia a bag containing $45,000 for the two kilos. After he accepted the payment and began to walk away with the bag of money, Mr. Garcia was arrested. His car was then searched; hidden in one of the electronic trap compartments in the car, which Orozco knew how to open, was $2,500. Although the compartments were capable of transporting approximately twenty kilos of cocaine, none was discovered hidden at that time.

After his arrest on September 1, 1993, Alfonso Garcia identified himself to the police and pretrial services personnel as "Jose" Garcia and gave a false date of birth and social security number, those of his brother Jose, who had no criminal record. At the initial appearance before the magistrate judge that same day, Mr. Garcia's attorney answered the clerk's call identifying the case as "United States of America versus Jose Garcia" by introducing himself to the court as appearing "on behalf of Mr. Garcia." That attorney filed his formal appearance on behalf of "Jose" Garcia the next day, and remained Mr. Garcia's attorney in all district court proceedings through sentencing. ¹

The magistrate judge conducted a preliminary examination and detention hearing on September 7, 1993. The recommendation of the pretrial services officer, based on the clean record of "Jose" Garcia, was that the defendant be released on bond. ² Mr. Garcia's lawyer argued to the court that there was no risk of flight or danger to the community because "there's no indication from the report that this defendant has a previous criminal history. This appears from the report to be his first arrest." ³ R. 76 at 48-49. Despite these recommendations, the magistrate judge found that there was a risk of flight and possible danger to the community, and therefore detained "Jose" Garcia. Officers learned Mr. Garcia's actual identity one week later. ⁴

A grand jury returned a two-count indictment against Mr. Garcia on September 30, 1993. It charged him with distributing two kilograms of cocaine and with possessing with intent to distribute four kilograms of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). On May 27, 1994, Mr. Garcia pleaded guilty to count one of the indictment. In the plea agreement he admitted distributing two kilograms of cocaine on August 31, 1993, and supplying another kilogram of cocaine to Orozco on a previous date. However, Mr. Garcia and the government disagreed concerning Mr. Garcia's accountability for the distribution of the four kilograms of cocaine Mr. Garcia told undercover officer DeLeon he could deliver in two hours, and four additional kilograms that Orozco stated Mr. Garcia sold him over the course of approximately eighteen months. In addition, the government requested an enhancement of Mr. Garcia's offense level under United States Sentencing Guideline (U.S.S.G.) Sec. 3C1.1 because Mr. Garcia had provided false identifying information to arresting agents and to the magistrate judge. A felony conviction, an outstanding federal warrant and two state warrants existed for his arrest under his true identification. The parties reserved the right to argue at sentencing whether the false information merited a Sec. 3C1.1 obstruction of justice two-level enhancement, and whether Sec. 1B1.3 relevant conduct included eight additional kilograms of cocaine: the four supplied to Orozco earlier and the four promised but not delivered.

B. Sentencing Proceedings Before the District Court

At the sentencing hearing, the district court heard the testimony of Orozco and several other witnesses, reviewed the tape transcripts and photographs of Mr. Garcia's car, and considered the arguments of counsel. It then announced its decisions concerning the amount of relevant conduct to be included in Mr. Garcia's sentencing calculation. ⁵ It concluded that the transactions between Mr. Garcia and Orozco that had occurred over an eighteen-month period prior to August 31, 1993 did not qualify as relevant conduct. However, the court determined that the defendant fully intended to supply The court also determined that the false name and date of birth used by Mr. Garcia was materially false information, even if it did not result in a significant hindrance to the investigation or prosecution of this offense. It held that Mr. Garcia's provision of materially false information to the magistrate warranted a two-level enhancement for obstruction of justice under application note 3(f) of guideline Sec. 3C1.1. Nevertheless, the court also granted a three-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1, and, in the end, established that the adjusted offense level was 31, the criminal history category III, and the guideline range 135 months to 168 months. The court then accepted defense counsel's request and sentenced Mr. Garcia at the lowest end of the guideline range, at 135 months.

                the four kilograms for which Mr. Garcia negotiated with Orozco and undercover officer DeLeon on August 31.  The court pointed out specific portions of the tape transcripts reflecting Mr. Garcia's intent to carry out a planned four-kilo transaction as soon as payment was available, and stated that it found Orozco's testimony believable and supported by other evidence.  It reviewed the testimony of other government witnesses, all of whom the court found credible, and then concluded, "based on [Mr. Garcia's] statements, based on his prior actions, and based on the car, that he had the clear ability to provide the additional four kilograms within the context of the agreed transaction."   R. 77 at 205.  Therefore, the court held Mr. Garcia responsible for a total of seven kilograms of cocaine
                

II DISCUSSION

A. Obstruction of Justice: U.S.S.G. Sec. 3C1.1

The first issue raised on appeal is whether Mr. Garcia's misrepresentation of his identity to federal agents and to pretrial services merits a two-point enhancement of his sentence for obstruction of justice. ⁶ Because the sentencing court's determination that a defendant obstructed justice under Sec. 3C1.1 is a finding of fact, United States v. Brown, 944 F.2d 1377, 1383 (7th Cir.1991), we review that decision under the clearly erroneous standard. United States v. Dillard, 43 F.3d 299, 308 (7th Cir.1994); United States v. Wright, 37 F.3d 358, 361 (7th Cir.1994). However, we review the district court's interpretation of the sentencing guidelines de novo, giving due deference to its application of the guidelines to the facts. United States v. Harrison, 42 F.3d 427, 430 (7th Cir.1994).

We begin by considering the relevant guideline provision, Sec. 3C1.1:

If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.

Application note 3 to this guideline offers "a non-exhaustive list of examples of the types of conduct to which this enhancement applies." The examples pertinent to this case are:

(b) committing, suborning, or attempting to suborn perjury;

(f) providing materially false information to a judge or magistrate;

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