United States v. Garcia ( 2015 )

  •                                                                                     FILED
                                                                            United States Court of Appeals
                           UNITED STATES COURT OF APPEALS                           Tenth Circuit
                                 FOR THE TENTH CIRCUIT                           December 23, 2015
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
          Plaintiff - Appellee,
    v.                                                             No. 13-8066
                                                         (D.C. No. 2:13-CR-00004-ABJ-1)
    JACQUELINE M. GARCIA, a/k/a                                      (D. Wyo.)
    Jacqueline Marie Garcia, a/k/a Jacqueline
          Defendant - Appellant.
    Before MATHESON, EBEL, and McHUGH, Circuit Judges.
           This matter is before the court sua sponte to make clerical corrections to the Order
    and Judgment, originally issued on August 27, 2014. A modified version of the Order and
    Judgment is attached to this order. The Clerk is directed to substitute the amended
    version nunc pro tunc to the original filing date.
                                                  Entered for the Court
                                                  ELISABETH A. SHUMAKER, Clerk
                                                  by: Lindy Lucero Schaible
                                                      Counsel to the Clerk
                                                                            United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                            Tenth Circuit
                                         TENTH CIRCUIT                            August 27, 2014
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
                                                                    No. 13-8066
            v.                                                       (D. Wyo.)
                                                           (D.C. No. 2:13-CR-004-ABJ-1)
     Jacqueline Maria Garcia, a/k/a Jacqueline
                                 ORDER AND JUDGMENT*
           Before MATHESON, EBEL, and McHUGH, Circuit Judges.
                  Garcia was found guilty of conspiracy to possess with intent to distribute
    and distribution of 500 grams or more of a mixture or substance with a detectable amount
    of methamphetamine, 21 U.S.C. §§ 846(a)(1)(A) and 841(a)(1) and (b)(1)(A) (Count 1),
    and of possession of a firearm in furtherance of a drug felony,18 U.S.C. § 924(c)(1)(A)
    (Count 2). The district court sentenced Garcia to 120 months and then sixty consecutive
           *This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    months for Counts 1 and 2, respectively. Garcia appealed, contending that there was
    insufficient evidence to convict on either count. We affirm the jury’s verdict.
                  The sufficiency of the evidence to support a jury’s verdict is a legal issue
    that is reviewed de novo. United States v. Lewis, 
    240 F.3d 866
    , 870 (10th Cir. 2001). On
    appeal, this court asks “whether taking the evidence—both direct and circumstantial,
    together with the reasonable inferences to be drawn therefrom—in the light most
    favorable to the government, a reasonable jury could find the defendant guilty beyond a
    reasonable doubt.” United States v. Jameson, 
    478 F.3d 1204
    , 1208 (10th Cir. 2007). “The
    jury, as fact finder, has discretion to resolve all conflicting testimony, weigh the
    evidence, and draw inferences from the basic facts to the ultimate facts.” United States v.
    189 F.3d 1201
    , 1205 (10th Cir. 1999). “Nonetheless, we may not uphold a
    conviction obtained by piling inference upon inference. . . . The evidence supporting the
    conviction must be substantial and do more than raise a suspicion of guilt.” United States
    v. Caldwell, 
    589 F.3d 1323
    , 1329 (10th Cir. 2009) (alteration in original) (internal
    quotation marks omitted).
                   II. Count One – Conspiracy to Distribute and Distribution
                  The government presented sufficient evidence from which a reasonable jury
    could have concluded that Garcia conspired with the intent to distribute and distribution
    of 500 grams or more of a mixture or substance with a detectable amount of
    methamphetamine. Garcia’s appeal on this issue focuses solely on the insufficiency of the
    evidence showing that the amount that Garcia distributed or intended to distribute was
    500 grams or more. But, Kyle Carothers, one of Garcia’s customers, testified that he
    bought around an ounce of meth per day from Garcia and her husband, Sigifredo Molina,
    from September 2011 through January 2012 and from March 2012 through May 23,
    2012, which, standing alone, is sufficient. Even were Garcia only responsible for one half
    an ounce per day and only from the period of October through December 2011 (i.e. not
    counting any of September 2011 and January of 2012), it would yield a total amount sold
    of 644 grams—sufficient without considering the March-May 2012 period.1
                  Garcia points to the testimony of another witness, contending that
    Carothers did not deal primarily with Garcia. That witness testified that “[Carothers]
    would go somewhere else in [their] house with [Molina] and they would make an
    exchange,” and that witness “believed” that Garcia was not present during those
    exchanges. R. Vol. III at 685. However, a reasonable jury could have: 1) decided that
    this evidence was not definite enough to preclude Garcia from having been present and
    involved at the drug distribution such that at least half the meth could be attributed to
    Garcia; 2) disbelieved that witness; or 3) believed that Molina and Garcia were still
    conspiring together even if one was often not in the room actually handling the meth.
    Under any of these scenarios, Carothers’ testimony alone was sufficient for a reasonable
    jury to convict.
            To add to the already sufficient evidence, another witness and customer of
    Garcia, Heidi Blankenship, testified that she bought meth a few times a week for resale
    from Garcia from February 2011 until September 2011 when Blankenship was arrested
    on assault charges. She testified that she usually purchased a quarter ounce at a time.
                               III. Count Two – firearm conviction
                  The government also presented sufficient evidence for the jury to convict
    on Count 2. “A conviction under 18 U.S.C. § 924(c)(1)(A) requires more than just
    possession of a firearm; it also requires that such possession be in furtherance of . . . a
    drug trafficking crime.” United States v. McGehee, 
    672 F.3d 860
    , 871 (10th Cir. 2012)
    (internal quotation marks omitted). “[T]he government must establish some nexus
    between the firearms and the underlying drug trafficking crime.” Id. “The intent to
    possess the weapon to further a drug trafficking crime is generally proven through
    circumstantial evidence . . . .” Id. This court has held that “trading drugs for guns
    furthers, promotes or advances a drug trafficking crime.” United States v. Luke-Sanchez,
    483 F.3d 703
    , 706 (10th Cir. 2007) (internal quotation marks omitted). Additionally, this
    court has noted some of the types of circumstantial evidence it will consider in deciding
    whether a firearm was used “in furtherance” of a drug crime. McGehee, 672 F.3d at 871
    (citing United States v. Trotter, 
    483 F.3d 694
    , 701 (10th Cir. 2007)). The non-exclusive
    list of “Trotter factors” includes: “‘the type of drug activity being conducted, the
    accessibility of the firearm, the type of firearm, the legal status of the firearm, whether
    the firearm is loaded, the proximity of the firearm to drugs or drug profits, and the time
    and circumstances under which the firearm is found.’” Id. (quoting Trotter, 483 F.3d at
                  Heidi Blankenship, another of Garcia’s customers, testified that she traded
    a gun to Garcia and Molina in exchange for a reduction of $200 in her drug debts. This
    fact alone would be enough to satisfy the “in furtherance” standard. See Luke-Sanchez,
    483 F.3d at 706.2 Although we acknowledge our unpublished precedent in a sentencing
    appeal holding that a gun traded for an accrued debt does not satisfy the “in furtherance”
    standard, United States v. Evans, 99 F. App’x 220 (10th Cir. 2004) (unpublished
    decision), Garcia’s situation is distinguishable. In Evans, “[t]he government concede[d]
    that the drug distribution, which occurred on some prior unknown date, was completed
    by the time [the defendant] received the gun as payment for the drugs,” 99 F. App’x at
    221. However, in our case, Blankenship and Garcia had a long, close relationship, in
    which the trading of the gun for a reduction in debt happened so that Blankenship could
    obtain more drugs in the future, which she then did obtain. Hence, the connection of the
    gun to drug trafficking was ongoing.
                  Moreover, applying the Trotter factors, and viewing the evidence and all
    inferences therefrom in favor of the government, a reasonable jury could find Garcia
    guilty of possessing the firearms in furtherance of a drug trafficking crime. First, the
    underlying activity in which Garcia engaged was the distribution of meth. Second, the
    firearms were located in close proximity to the traces of meth police discovered in the
    bathroom that served as the “business room” in Garcia and Molina’s home. Multiple
    witnesses testified to Garcia’s and Molina’s dealings from that bathroom. Kyle Carothers
    testified specifically that he noticed firearms around the bathroom, including the two
    handguns found by the agents, and that security cameras surrounded the premises. The
             Blankenship was asked on cross-examination why she had made an earlier
    statement to agents that she traded the gun to both Garcia and Molina, given that she was
    testifying at trial that she traded it to Garcia. She attempted to resolve this inconsistency
    by stating that she considered Garcia and Molina a unit, although she did not back down
    from her assertion that it was Garcia to whom she had actually given the gun.
    police also found the guns in the same safe where they discovered a meth pipe. Third, the
    firearms were handguns and this court’s “cases suggest that such handguns are frequently
    used in similar drug-trafficking crimes, where the offender needs protection because of
    the high-stakes, dangerous nature of the offense.” McGehee, 672 F.3d at 872. Fourth,
    viewing the evidence in the light most favorable to the government, the gun with one
    bullet jammed into the chamber is all that would be needed to use the protective function
    of the gun. Fifth, although the firearms were not registered to Garcia, they were
    registered to Molina who had been living and conducting business with Garcia for years.
    A reasonable jury could find that the firearms were used for protection in Molina and
    Garcia’s extensive drug sales.
                  Garcia contends that Congress and the Supreme Court have made the “in
    furtherance of” standard a strict one, satisfied only if the government shows that the
    firearms “further, advance, or help forward a drug trafficking offense.” United States v.
    449 F.3d 1099
    , 1103 (10th Cir. 2006). Garcia argues that merely having the
    firearms in the same room is not enough. However, in this case, the evidence—
    Blankenship’s trade of the gun to pay a drug debt and the circumstantial evidence of her
    possession of the gun in furtherance of an ongoing drug crime—is sufficient given our
    For the reasons discussed above, we affirm the jury’s conviction.
                                      ENTERED FOR THE COURT
                                      David M. Ebel
                                      Circuit Judge