United States v. Garcia

• Decision Date: 14 August 2015
• Docket Number: No. 14–40520.,14–40520.
• Citation: 797 F.3d 320
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rene GARCIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

797 F.3d 320

UNITED STATES of America, Plaintiff–Appellee

v.Rene GARCIA, Defendant–Appellant.

No. 14–40520.

United States Court of Appeals, Fifth Circuit.

Aug. 14, 2015.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Victoria Guerra, Attorney, Law Office of Victoria Guerra, McAllen, TX, for Defendant–Appellant.

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

Before REAVLEY, PRADO, and COSTA, Circuit Judges.

Opinion

EDWARD C. PRADO, Circuit Judge:

Defendant–Appellant Rene Garcia appeals from a two-level sentencing enhancement for possession of a dangerous weapon in connection with a drug offense under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(b)(1). Garcia argues that the district judge unfairly relied on testimony that the district judge had heard in a separate criminal proceeding of another person—without prior notice to Garcia—in violation of Federal Rule of Criminal Procedure 32 and U.S.S.G. § 6A1.3. We agree, and we vacate Garcia's sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Garcia pleaded guilty to conspiracy to possess more than 100 kilograms of marijuana with intent to distribute in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, pursuant to a plea agreement. The probation officer prepared a presentence investigation report (PSR) and recommended a sentencing range of 188 to 235 months, subject to a motion by the Government for an acceptance-of-responsibility decrease.

The recommended Guidelines range included a two-level sentencing enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). The probation officer based her recommendation on evidence that Garcia conspired to perpetrate a marijuana robbery. According to the PSR, Garcia's neighbor, Pedro Alvarado, was an alleged drug trafficker. Garcia contacted Alvarado to warn him about a suspicious vehicle parked near his property. Alvarado told Garcia that he would go and check out the vehicle. Then, Garcia drove a car, accompanied by Miguel Romo and David Olivarez, that followed a car driven by Alvarado in a high-speed chase of the suspicious vehicle. According to the PSR, one of the passengers in Alvarado's car opened fire on the suspicious vehicle. It turns out that the occupant of the suspicious vehicle was Homeland Security Investigations Special Agent Kelton Harrison, who sustained a gunshot wound

during the incident. In describing the offense conduct—separate from the § 2D1.1(b)(1) enhancement discussion—the PSR also mentions that “Arnoldo Alvarado claimed he observed a rifle and a night-vision scope in Rene Garcia's vehicle before he departed their residence.”

Garcia filed written objections to the PSR in which he objected to the § 2D1.1(b)(1) two-level enhancement and argued that he never himself possessed a firearm. The probation officer adhered to her recommendation. In her response, she relied on § 2D1.1 application note 11(A)¹ and explained that it did not matter whether Garcia himself possessed the firearm: “[T]he enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected to the offense....” She reasoned that the enhancement for possession of a weapon “reflects the increased danger of violence when drug traffickers possess weapons.”

At the sentencing hearing, the district judge relied on his recollection of Alvarado's criminal trial—over which the sentencing judge presided and in which Garcia did not participate.² Defense counsel objected to the § 2D1.1(b)(1) sentencing enhancement. He argued that the “gun is attributed to the Alvarados,” referring to the lead car driven by Alvarado in the pursuit of the suspicious vehicle—not the car driven by Garcia. The district judge responded: “[S]ince there was a complete trial in the Alvarado case, I'm very familiar with ... the situation there.” Although the district court initially expressed skepticism about awarding the § 2D1.1(b)(1) enhancement, (“I wasn't going to assess any kind of use of weapon by Mr. Garcia.”), the district judge was ultimately persuaded by the Government's argument that trial testimony indicated that at least one witness “testified that he saw a gun—at least one firearm in Mr. Garcia's vehicle after the shooting.” Ultimately, the district court credited the Government's recollection of Olivarez's testimony that there was a rifle in Garcia's car.

As for the PSR's mentioning that Arnoldo Alvarado “claimed he observed a rifle ... in Rene Garcia's vehicle before he departed their residence,” the district court specifically decided to “discount the self-serving testimony of Arnoldo Alvarado on that issue.” The court reasoned that Alvarado's testimony on this point, placing the rifle in Garcia's car instead of Alvarado's car, “was designed to shift the blame from his own conduct to others.”

Defense counsel objected to the use of Olivarez's testimony from Alvarado's trial to enhance Garcia's sentence—testimony that was not contained in the PSR: “Judge, ... if you look at the ... PSR, [the rifle in Garcia's car] is not mentioned. What's mentioned is the weapon that the Alvarados ha[d].” Indeed, as noted above, the PSR reflects this and states that “the vehicle driven by Pedro Alvarado, and occupied by Arnold Alvarado and 16–year–old M.A. ... [,] opened fire on the suspicious vehicle.” Defense counsel continued: “[W]e plead to marijuana and all of a sudden we're ... dealing with other issues that we weren't prepared to deal with.” The court rejoined: “Well, you should have anticipated a weapon issue if there was weapons there.” Defense counsel replied: “I want to make sure I don't waive the objection. I'm just saying that ... we didn't have notice of that [from] the PSR.”

Ultimately, the district court calculated the Guidelines range at 78 to 97 months and sentenced Garcia within the Guidelines to 78 months in prison. Garcia timely appeals.

II. JURISDICTION AND STANDARD OF REVIEW

This is a direct appeal of a federal criminal sentence. The district court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because Garcia objected in the district court to the lack of notice at his sentencing hearing,³ we review this question de novo. See United States v. Knight, 76 F.3d 86, 87 (5th Cir.1996) (per curiam); accord United States v. Pennington, 606 Fed.Appx. 216, 219 (5th Cir.2015) (unpublished).

III. DISCUSSION

The principal issue in this appeal is whether the district court erred by using testimony from a separate criminal trial that was not contained in the PSR to enhance Garcia's sentence without prior notice. Garcia contends, inter alia, that the district court relied on information that was “not contained within the PSR” and of which “Garcia did not receive notice that the Court was going to utilize ... in assessing a [two-level] enhancement,” in violation of Federal Rule of Criminal Procedure 32 and U.S.S.G. § 6A1.3.⁴ The Government counters that the PSR provided Garcia with adequate notice of the enhancement. The Government also argues that the district court properly “relied on its recollection of the sworn testimony of David Olivarez that one of the occupants of Garcia's truck carried a firearm” in applying the two-level enhancement.

Section 6A1.3(a) of the U.S. Sentencing Guidelines requires that the parties “be given an adequate opportunity to present information” to address “any factor important to the sentencing determination [that] is reasonably in dispute.” Federal Rule of Criminal Procedure 32(i)(1)(C) provides, “[a]t sentencing, the court ... must allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence.”

We have noted that “[t]he touchstone of [R]ule 32 is reasonable notice to allow counsel adequately to prepare a meaningful response and engage in adversary testing at sentencing.” United States v. Angeles–Mendoza, 407 F.3d 742, 749 n. 12 (5th Cir.2005) (citation and internal quotation marks omitted); see also Irizarry v. United States, 553 U.S. 708, 715, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008) (“Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues.”); 3 Charles A. Wright et al., Federal Practice & Procedure: Criminal § 529 (4th ed. 2015) (“Factual matters not included in the presentence report should also be disclosed in advance of sentencing so that the government and the defendant are able to contest inaccuracies.”). In assessing the reasonableness of notice, we have considered “the abilities of the average defense counsel” and the need of sentencing judges for “sufficient flexibility to deal with factors not covered in the PSR or arising after its writing.” Knight, 76 F.3d at 88–89.

“[I]f the defendant has actual knowledge of the facts on which the district court bases an enhancement or a denial of a reduction, the Sentencing Guidelines themselves provide notice of the grounds relevant to the proceeding sufficient to satisfy the requirements of Rule 32 and U.S.S.G. § 6A1.3.” Id. at 88. For instance, we have held that a defendant's untruthful letter to the sentencing judge could be used to enhance his sentence for obstruction of justice and to deny a reduction for acceptance of responsibility without prior notice, reasoning that the defendant “knew of the letter he authored.”

Id. at 87–89. We have also held that a defendant's knowledge of his own perjurious testimony at trial was itself “adequate notice of the court's intent to enhance his sentence for obstruction of justice,” United States v. Marmolejo, 89 F.3d 1185, 1201 (5th Cir.1996), aff'd on other grounds sub nom., Salinas...