United States v. Mier-Garces

• Citation: 967 F.3d 1003
• Decision Date: 28 July 2020
• Docket Number: No. 18-1085,18-1085
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgar Rene MIER-GARCES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

967 F.3d 1003

UNITED STATES of America, Plaintiff-Appellee,

v.Edgar Rene MIER-GARCES, Defendant-Appellant.

No. 18-1085

United States Court of Appeals, Tenth Circuit.

FILED July 28, 2020

Robert T. Fishman, Ridley, McGreevy & Winocur, PC, Denver, Colorado, for Defendant-Appellant.

Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the briefs), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

HOLMES, Circuit Judge.

Edgar Rene Mier-Garces was separately charged with conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846, in both the Western District of Texas and the District of Colorado. After pleading guilty in the Western District of Texas, Mr. Mier-Garces argued that the District of Colorado indictment violated his rights under the Fifth Amendment's Double Jeopardy Clause. The district court denied his motion to dismiss. Mr. Mier-Garces was subsequently convicted and sentenced to 178 months’ imprisonment. On appeal, he challenges the district court's Double Jeopardy Clause ruling and argues that the district court erroneously calculated his advisory United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") range by applying an enhancement under § 2D1.1(b)(12). Exercising jurisdiction under 28 U.S.C. § 1291, we conclude the court did not err in either ruling and affirm its judgment.

I

A

Mr. Mier-Garces worked on the Mexican-American border as a "gatekeeper" for a Mexican drug trafficker known as "El Muñeco." R., Vol. II, at 71 (Report of Investigation, dated Nov. 30, 2015). Generally, in his gatekeeper role, Mr. Mier-Garces assisted in smuggling narcotics into the United States from Ciudad Juarez, Mexico and then smuggling bulk currency back into Mexico from the United States. Mr. Mier-Garces's role focused on receiving and loading vehicles for couriers. Mr. Mier-Garces would retrieve these vehicles from public locations in the El Paso, Texas metro area and take them back to his residence in Chaparral, New Mexico where he would load narcotics into hidden, after-market compartments that had been built into the vehicles. He would return the drug-laden vehicles to the couriers, who in turn would distribute the narcotics to destinations throughout the United States—including, as relevant here, Albuquerque, New Mexico, and Denver, Colorado. The couriers would then return the cash proceeds, secreted in the vehicles, to El Paso, where Mr. Mier-Garces would retrieve the vehicles, unload the cash, and ensure that the cash was transported back to El Muñeco in Mexico. Approximately once every two weeks, Mr. Mier-Garces loaded vehicles with narcotics. Mr. Mier-Garces stored any excess currency and drugs in a safe at his Chaparral residence.

As a result of Mr. Mier-Garces's gatekeeper activities, he was indicted for participating in drug-trafficking conspiracies in the District of Colorado and the Western District of Texas. Below, we summarize the factual circumstances relating to those indictments and the particulars of those indictments.

In addition to Mr. Mier-Garces, there were six other named conspirators in the conspiracy charged in the District of Colorado ("Colorado conspiracy"), including Lucio Lozano and Martha Mota. Although not charged by name along with Mr. Mier-Garces, the following individuals were also participants in the Colorado conspiracy: Franz Neufeld-Reimer, Helena Wieler de Neufeld, and Jack Lucero.

On August 15, 2014, Mr. Lucero was stopped by police while driving an SUV in New Mexico. The trooper found multiple bricks of cocaine in his car. A subsequent search of his car revealed hotel receipts connecting Mr. Lucero to an individual named Mr. Lozano, who was based in the Denver, Colorado area. Investigators began surveillance of Mr. Lozano's residence in the Denver area. Surveillance of this house, in turn, led investigators to other individuals who were either distributing cocaine in the Denver area or who were also trafficking narcotics and currency between El Paso and Denver. One of these couriers, Ms. Mota, was arrested on February 5, 2015, while she was returning from Denver to El Paso with bulk currency. Two other couriers, Mr. Neufeld-Reimer and Ms. Wieler de Neufeld, were seen twice in March 2015 transporting narcotics between El Paso and Denver. Like other couriers, they would drop off their vehicle in public locations in the El Paso area, where an individual would take their vehicle for several hours and then return the vehicle to them for the drive. Mr. Mier-Garces admitted loading narcotics on at least two occasions into the vehicles of Ms. Mota, Mr. Neufeld-Reimer (with Ms. Wieler de Neufeld present for the loading), and Mr. Lucero.

Mr. Mier-Garces was indicted on September 3, 2015 in the District of Colorado. A superseding indictment was issued on May 2, 2016. This indictment charged the offenses at issue here. Namely, the superseding indictment charged Mr. Mier-Garces and "others both known and unknown," including Mr. Lozano and Ms. Mota, with "knowingly and intentionally conspir[ing] to distribute, and possess[ing] with the intent to distribute, 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine" in violation of 21 U.S.C. § 846. Id. , Vol. I, at 70–71 (Superseding Indictment, filed May 2, 2016). The conspiracy was alleged to have run from December 8, 2013 until March 22, 2016.

Mr. Mier-Garces also was indicted for participating in a drug-trafficking conspiracy in the Western District of Texas ("Texas conspiracy"). Specifically, while the transportation of drugs to Denver was occurring, on March 8, 2015, Mr. Mier-Garces asked a confidential informant to transport cocaine from El Paso to Albuquerque. Mr. Mier-Garces took a vehicle from that confidential informant, loaded it with 10.6 kilograms of cocaine at his Chaparral residence, and returned it to the informant believing that the informant would drive the vehicle to Albuquerque. The confidential informant, however, coordinated with federal agents who later conducted a controlled delivery of the vehicle in Albuquerque to individuals who believed the vehicle contained drugs; they were subsequently arrested.

As a result of his participation in this El Paso-to-Albuquerque movement of cocaine, Mr. Mier-Garces was indicted on September 2, 2015 in the Western District of Texas. A superseding indictment was issued on November 10, 2015. The superseding indictment charged Mr. Mier-Garces with conspiring "with others to the Grand Jury known and unknown" to possess with intent to distribute "5 kilograms or more of a mixture or substance containing a detectable amount of cocaine" in violation of 21 U.S.C. § 846. Id. , Vol. II, at 66–67 (Superseding Indictment, filed Nov. 10, 2015). The period of the charged conspiracy was only one day, March 8, 2015. In this superseding indictment, Mr. Mier-Garces also was separately charged with participating in a conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(a)(2)(B)(ii), (h). Besides Mr. Mier-Garces, no other co-conspirators were named in the Texas indictment.

B

As Mr. Mier-Garces was seeking to reenter the United States from Mexico on November 18, 2015, he was arrested on a warrant that had been issued based on the Texas indictment. At a post-arrest interview with agents from both the Western District of Texas and the District of Colorado, Mr. Mier-Garces explained his role in the drug-trafficking operation, as summarized above. He also agreed to allow agents to search his home. The search of his home did not result in the discovery of any drugs but did reveal various pieces of evidence consistent with his description of his role, e.g., a safe used to store narcotics and bulk currency. While an agent involved with the District of Colorado indictment was present during this interview (alongside the agents from the Western District of Texas), Mr. Mier-Garces was not informed about the Colorado indictment. On December 8, 2015, Mr. Mier-Garces participated in another debriefing where he again discussed his role in the drug-trafficking operation. The agent involved in the Colorado case was not present for that debriefing, but did receive a report about it later. Though the agents from Texas and Colorado coordinated, they purportedly worked to "de-conflict" so as to "keep [their] cases separate" throughout the investigation. Id. , Vol. III, at 191 (Tr. of Mots. Hr'g, dated May 26, 2017).

Mr. Mier-Garces subsequently pleaded guilty to the charges in the Texas indictment, including the drug-conspiracy charge, and was sentenced to fifty-seven months’ imprisonment. Notably, the only drug quantity attributed to Mr. Mier-Garces at sentencing was the 10.6 kilograms; that is, there was no finding that additional drugs were involved in the conspiracy charged in the Texas indictment.

After he pleaded guilty to the Texas charges, Mr. Mier-Garces filed a motion to dismiss the Colorado indictment on the ground that it violated his rights under the Double Jeopardy Clause. The district court held an evidentiary hearing on the motion, largely establishing the information that we have summarized above. The government additionally presented evidence that none of the anonymous co-conspirators from the Texas indictment were members of the conspiracy charged in the Colorado indictment, and that the Colorado grand jury did not hear any evidence concerning loads of narcotics going anywhere other than Colorado; more specifically, the grand jury received no evidence regarding the 10.6-kilogram load that went to Albuquerque.

At the hearing, the court listened to testimony from a prosecutor and an agent from the Western District of Texas, an agent from Colorado, and an investigator from the Federal Public Defender's Office in the Western District of Texas. Both defense counsel and the government offered oral argument.

The...