United States v. Anthony Garza , 236 F. App'x 468 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_________________________ ELEVENTH CIRCUIT
SEPT 15, 2006
No. 04-11518 THOMAS K. KAHN
_________________________ CLERK
D.C. Docket No. 02-00585-CR-BBM-1-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY GARZA,
SALOMON ALVAREZ,
TIMOTHY MC CLENDON,
JOSE HERNANDEZ TAURINO,
Defendants-Appellants.
_____________________________
Appeals from the United States District Court
for the Northern District of Georgia
_____________________________
(September 15, 2006)
Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN,* District Judge.
PER CURIAM:
*
Honorable Adalberto Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
Following a one-week trial, a jury convicted Anthony Garza, Salomon Alvarez,
and Jose Hernandez Taurino of distributing, or aiding and abetting the distribution
of, 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. The jury also convicted Mr. Garza of conspiring to possess, with the
intent to distribute, 100 kilograms or more of marijuana, in violation of 21 U.S.C. §
846, and convicted Timothy McClendon of conspiring to possess, with the intent to
distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Mssrs.
Garza, Alvarez, Hernandez Taurino, and McClendon appeal their convictions and/or
sentences. We affirm in all relevant respects, but remand so that Mr. Garza’s
judgment can be corrected to reflect the appropriate offense of conviction.
I. FACTS
In 1999, the Drug Enforcement Administration (“DEA”) received information
from confidential sources about drug trafficking activity by Ronald Knight and his
associates, and initiated an investigation. The government applied for and received
court approval for several Title III wiretaps, including a wiretap on Ronald Knight’s
telephone beginning on November 30, 2001. The intercepted calls showed that
Ronald Knight was a mid-level distributor for a Mexican drug distribution network
controlled at least in part by the Garza brothers (who are not related to Anthony
Garza). This organization was active in Atlanta, Birmingham, Chicago, Pittsburgh,
2
and Grand Rapids. The conversations intercepted on the wiretaps showed that
Ronald Knight communicated directly with the Garza brothers to coordinate the
receipt of truckloads of cocaine and marijuana from Texas, and then sold the drugs
to Mr. McClendon, Kendell Ivory, and Corey Lewis. At trial, Mr. Lewis and Ronald
Knight testified for the government.
In late 2001, Ronald Knight was looking for locations in Atlanta where
incoming drug-laden trucks could be covertly unloaded, so Mr. Lewis introduced him
to Henry Green, who operated a truck repair facility. Mr. Lewis and Ronald Knight
testified that Mr. Green agreed to allow trucks to pull into his repair facility after the
business was closed, and unload the drugs from the trucks, in return for payment from
Ronald Knight.
The trial evidence centered around two separate shipments of drugs to Ronald
Knight from the Garza brothers. The first was a shipment of 89 kilograms of cocaine
in November of 2001. The second was a shipment of approximately 1,500 pounds
of marijuana on December 5, 2001. We do not discuss the cocaine shipment further
because the only defendant convicted of a cocaine charge, Mr. McClendon, does not
challenge the sufficiency of the evidence on that charge, and the cocaine shipment is
not otherwise relevant to the other issues raised on appeal.
In the days leading up to December 5, 2001, Ronald Knight received a
3
telephone call from Wilfredo Garza, one of the Garza brothers. Wilfredo Garza
advised Ronald Knight that a tractor trailer shipment of marijuana was on its way to
Atlanta. Before the marijuana arrived in Atlanta, Wilfredo Garza provided Ronald
Knight with a phone number and said the person using this number would coordinate
the delivery of the marijuana with him.
On December 5, 2001, Ronald Knight called the number given to him by
Wilfredo Garza and arranged to meet with the person who answered at a local hotel
to finalize plans for unloading the marijuana. DEA agents monitoring the wiretap of
Ronald Knight’s telephone overheard this conversation and followed Ronald Knight
to the hotel. They watched him park at the hotel and eventually enter a room on the
second floor. Ronald Knight explained at trial that, during this meeting, he and two
unidentified Hispanic individuals worked out the details of how the truckload of
marijuana would be unloaded. Right after Ronald Knight left the hotel, DEA Special
Agent McCrorey went to the room Ronald Knight had visited and knocked on the
door, pretending to be lost. Agent McCrorey testified that Anthony Garza opened the
door to the hotel room. The second Hispanic male in the room was never identified.
In making arrangements for the delivery of the marijuana, Ronald Knight asked
Mr. Lewis if they could once again use Mr. Green’s repair facility to unload the
drugs. Mr. Lewis testified that he consulted Mr. Green, who refused to open up the
4
garage or allow the marijuana to be stored in his shop because he had not received
additional payment for storing the earlier shipment of cocaine. Mr. Green, however,
agreed to allow Mr. Lewis to use the lot outside his garage, and further agreed to
leave his office open and have his employee, Roy Bridges, present to open the gate
to the lot to let in the tractor trailer. This conversation between Mr. Lewis and
Ronald Knight took place at around 8:15 p.m.
Ronald Knight asked his brother, Byron Knight, to go to the hotel where he had
earlier met Anthony Garza and pick up Mr. Garza and the other Hispanic male.
Byron Knight testified that he picked up these two men at the hotel and drove them
to a truck stop, where two more Hispanic males were waiting with the tractor trailer
carrying the marijuana. Byron Knight, Mr. Garza, and the other Hispanic mail from
the hotel joined the two other Hispanic males inside the cab of the tractor trailer, and
the five of them then rode in the tractor trailer to Mr. Green’s lot. When Byron
Knight and the four Hispanic males arrived at the lot in the tractor trailer – at around
9:45 p.m. – Mr. Lewis and Mr. Bridges were there to meet them. No one present at
the lot at this time identified who the Hispanic males were or gave any descriptions
of them.
Because Mr. Green did not allow Mr. Lewis to park the tractor trailer inside the
garage, and thus, did not unlock the garage, the Hispanic male who was driving the
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tractor trailer simply backed up close to the front wall of the building. The four
Hispanic males and Byron Knight got out of the truck, and everyone present,
including Mr. Lewis and Mr. Bridges, went into the office located inside the building.
While Ronald Knight worked on finding vehicles to transport the marijuana
from the lot, some of the Hispanic males obtained a flashlight, entered the trailer, and
began off-loading the marijuana, assisted by Mr. Lewis. Mr. Lewis testified that,
“from what [he] recall[ed],” “all” of the Hispanic males got into the trailer. Byron
Knight testified that only three of the Hispanic males entered the trailer at this time,
and that the fourth – the driver – stayed at the back of the trailer with him. While they
were together at the back of the trailer, Byron Knight and the driver did not discuss
the marijuana. As noted earlier, no one present at the lot identified who these
Hispanic males were (or who the driver was), or gave any descriptions of them.
The trailer, which was refrigerated, contained double-stacked pallets of
cabbage. The marijuana was stored at the front (or nose) of the trailer so that much
of the cabbage had to be removed to get to the drugs. The marijuana was secreted
inside produce boxes and wrapped in bundles coated with a greasy substance to mask
the smell. When the boxes containing the marijuana were moved from the front of
the trailer to the rear, the bundles were taken out of the boxes and stacked up just
inside the rear of the trailer. In this way, until Ronald Knight arrived with the off-
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load vehicles, all activity took place inside the trailer, and the doors of the trailer were
kept nearly closed to avoid police detection.
Mr. Lewis testified that, although at times one or more of the Hispanic males
would get out of the trailer to get some air, throughout the course of the off-loading
each of the Hispanic males spent some time in the trailer. Because the refrigeration
unit had been turned off, the walls of the trailer were wet and dripping with water.
In the meantime, Ronald Knight had arranged to borrow a maroon pick-up
truck, and at around 10:30 p.m. DEA agents saw him meet the truck at an Amoco gas
station and guide the truck to Mr. Green’s lot. Mr. Lewis also borrowed a white pick-
up truck and brought it to Mr. Green’s lot. The parties agreed that they would load
the marijuana onto the trucks, and that Mr. Lewis, with the white truck, and Byron
Knight, with the maroon truck, would drive to another location.
Testimony at trial, viewed in the light most favorable to the government,
established that everyone at the lot – the unidentified Hispanic males, Mr. Lewis,
Byron Knight, and Mr. Bridges – loaded the marijuana bundles from the back of the
trailer onto the two trucks. Byron Knight, for example, explained that he and the
unidentified driver of the tractor trailer helped carry the marijuana bundles from the
back of the trailer to the trucks. Byron Knight attempted to cover the marijuana
bundles in the maroon truck by placing cardboard boxes from the back of the trailer
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on top of the drugs. At 12:19 a.m. on December 6, 2001 – just after midnight – Mr.
Lewis called Ronald Knight and informed him that he and Byron Knight were leaving
Mr. Green’s lot.
The white truck left first, followed closely by the maroon truck. Dekalb
County police officers, who were assisting DEA agents that evening, performed a
traffic stop of the maroon truck, but Mr. Lewis managed to flee in the white truck.
Dekalb County police seized approximately 750 pounds of marijuana from the
maroon truck and arrested Byron Knight.
Agent McCrorey testified that, after the maroon truck was stopped, he briefly
examined the truck and its contents and observed the 750 pounds of marijuana in the
truck’s bed partially covered by flattened cabbage boxes. Agent McCrorey then
drove into Mr. Green’s nearby lot, where he saw a tractor trailer parked in front of the
building and Mr. Bridges walking from the back of the trailer to a large green
dumpster with empty produce boxes in his hands. Agent McCrorey noticed that the
boxes Mr. Bridges was carrying were identical to the boxes he had seen in the bed of
Byron Knight’s truck. Agent McCrorey then drove out of the lot and called in
marked Dekalb County police units.
Dekalb County Officers Brink and Frank, driving a marked car and wearing
uniforms, entered defendant Mr. Green’s lot. Once there, they saw Mr. Bridges at the
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front of the tractor trailer near the cab. When the officers asked him what he was
doing in the lot, Mr. Bridges stated he was working on the tractor trailer; however,
it was after midnight, there was no lighting in the lot, and Mr. Bridges had no tools
in his hands or nearby.
The officers then walked to the rear of the trailer where they found four
Hispanic males, who were identified as Mssrs. Garza, Alvarez, Hernandez Taurino,
and Rudy Perez.2 The officers smelled a strong odor of raw, bulk marijuana. One
door of the trailer was open and the officers noticed that the shipper’s tag – which is
used to seal the trailer after it is loaded and locked – had been cut.
The officers asked Mssrs. Garza, Alvarez, Hernandez Taurino, and Perez what
they were doing, and they replied that they were “hanging out.” The officers
performed pat-down searches and noticed that, although it had not rained that
evening, the whole front of the clothing worn by Mr. Garza and Mr. Perez was wet.
The officers then obtained permission to search the tractor and the trailer from one
of the Hispanic males who identified himself as the driver (there was no testimony
at trial about which of the four Hispanic males this person was). Inside the trailer,
the officers saw crates of produce with many of them appearing to have been
trampled upon. In addition, the tops of all the crates were wet. No marijuana was
2
According to the government’s brief, Mr. Perez was a fugitive at the time of trial.
9
found in or near the trailer.
Agent McCrorey searched the cab of the tractor and found the following: (1)
a certificate of completion of a truck driving course in Mr. Alvarez’s name; (2) a
Texas commercial driver’s license in Mr. Hernandez Taurino’s wallet; and (3) several
driver daily logs, used to keep track of the hours driven each day by each driver of the
tractor trailer. According to the driver logs, Mr. Alvarez and Mr. Hernandez Taurino
drove the tractor trailer from Texas to Georgia, with each one operating the truck for
various stages of the trip.
II. TRIAL ISSUES
A. THE FAILURE OF THE COURT REPORTER TO TRANSCRIBE THE CALLS AS
THEY WERE PLAYED FOR THE JURY
Mr. McClendon, who has new counsel on appeal, argues that reversal is
warranted because the court reporter did not transcribe the recorded telephone calls
when they were played for the jury, thereby making it impossible (1) for his new
counsel to review the record and decide what arguments to make on appeal, and (2)
for this Court to undertake appropriate appellate review. Although we agree that the
court reporter’s failure to transcribe the calls played for the jury was a violation of 28
U.S.C. § 753(b), we reject Mr. McClendon’s claim based upon our prior decision in
United States v. Charles, 313 F.3d 1278, 1282-83 (11th Cir. 2002), because (1) the
calls here were in English; (2) the disc with the calls was introduced into evidence as
10
Government Exhibit 1 and is part of the record on appeal; (3) the transcripts of these
calls were introduced into evidence as Government Exhibit 2 and are part of the
record on appeal; and (4) Ronald Knight and Mr. Lewis, participants in the
conversations, testified that the transcripts were accurate. Given that the calls were
in English and that the transcripts were accurate, there is not a “substantial and
significant omission from the trial transcript,” and we have been able to reconstruct
the record. As in recent cases involving similar circumstances, reversal is not
warranted. See, e.g., United States v. Wright, 164 Fed. Appx. 809, 819 (11th Cir. Jan.
6, 2006); United States v. Payne, 148 Fed. Appx. 804, 808 (11th Cir. August 29,
2005).
B. SUFFICIENCY OF THE EVIDENCE
Mssrs. Garza, Alvarez, and Hernandez Taurino contend that there was
insufficient evidence to support their convictions. To recap, all three were convicted
of distributing, or aiding and abetting the distribution of, 100 kilograms or more of
marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In addition, Mr.
Garza was convicted of conspiracy to possess, with the intent to distribute, 100
kilograms or more of marijuana, in violation of 21 U.S.C. § 846.3We review the sufficiency of the evidence de novo, “resolv[ing] all reasonable
3
To the extent Mr. McClendon challenges the sufficiency of the evidence by adopting his co-
defendants’ arguments, we summarily affirm.
11
inferences in favor of the jury’s verdict. The evidence is sufficient so long as a
reasonable trier of fact, choosing among reasonable interpretations of the evidence,
could find guilt beyond a reasonable doubt.” United States v. Arbane, 446 F.3d 1223,
1226 n.1 (11th Cir. 2006) (citation and internal quotation marks omitted).
Before turning to the evidence, we summarize the elements of the offenses on
which the jury convicted. With respect to the distribution charge under 21 U.S.C. §
841(a)(1), the government had to prove beyond a reasonable doubt (1) that the
defendant in question distributed (i.e., transferred or delivered possession of) 100
kilograms or more of marijuana to another, and (2) that the defendant acted
knowingly and intentionally. See, e.g., United States v. Rosen, 582 F.2d 1032, 1033
(5th Cir. 1978); United States v. Harold, 531 F.2d 704, 705 (5th Cir. 1976). On an
aiding and abetting theory under 18 U.S.C. § 2, the government had to prove beyond
a reasonable doubt (1) that someone committed the offense of distributing 100
kilograms or more of marijuana, (2) that the defendant in question committed an act
which contributed to and furthered this offense, and (3) that the defendant intended
to aid the commission of the offense. See, e.g., United States v. Arias-Izquierdo, 449
F.3d 1168, 1176 (11th Cir. 2006). “Mere presence is . . . insufficient when the
government charges the defendant under an aiding and abetting theory.” United
States v. Diaz-Boyzo, 432 F.3d 1264, 1269 (11th Cir. 2005). “To aid and abet one
12
must actively participate in the illegal venture.” Harold, 531 F.2d at 705. To support
a guilty verdict on the conspiracy charge against Mr. Garza under 21 U.S.C. § 846,
the government had to prove beyond a reasonable doubt (1) that two or more persons
conspired or illegally agreed to possess, with the intent to distribute, 100 kilograms
or more of marijuana, (2) that Mr. Garza knew of the goal or objective of the
conspiracy, and (3) that, with this knowledge, he voluntarily joined the conspiracy.
See, e.g., United States v. Cruz, 106 F.3d 1553, 1555-56 (11th Cir. 1997).
1. MSSRS. ALVAREZ AND HERNANDEZ TAURINO
The government’s case against Mssrs. Alvarez and Hernandez Taurino was not
overwhelming, largely because no one present at the lot identified the Hispanic males
who helped unload the marijuana from the trailer. Nevertheless, understanding that
“suspicion and conjecture are not sufficient to sustain a conviction,” Montoya v.
United States, 402 F.2d 847, 850 (5th Cir. 1968), we conclude that the evidence was
sufficient to support the jury’s verdict.
First, both men drove the tractor trailer with the 1500 pounds of marijuana
from Texas to Georgia. Neither was a mere passenger. Cf. United States v. Flores,
564 F.2d 717, 718-19 (5th Cir. 1977) (reversing conviction of passenger of pickup
truck containing 175 pounds of marijuana, even though passenger fled from law
enforcement, because there was no evidence that marijuana was visible to passenger
13
or that passenger made any inculpatory statements). Our cases hold that driving or
operating a vehicle, boat, or aircraft containing a large amount of narcotics is enough
for conviction, but where the narcotics are hidden, there must be “circumstances
evidencing a consciousness of guilt on the part of the defendant.” United States v.
Stanley, 24 F.3d 1314, 1320 (11th Cir. 1994) (adopting Fifth Circuit standard). Here
there were such circumstances. Although the driver log for December 5, 2001,
indicated that the tractor trailer “broke” at 9:00 p.m., the men drove the tractor trailer
to a lot next to a closed repair facility – remember that Mr. Green had refused to open
the garage – late at night with no indication that any repairs were made or that any
tools were available for such repairs. Furthermore, when questioned by the officers
after midnight on December 6, 2001, as to what they were doing at the lot, Mssrs.
Alvarez and Hernandez Taurino (together with Mssrs. Garza and Perez) said they
were hanging out. That response was inconsistent with being at the lot for repairs to
the tractor trailer, and suspicious given (1) the strong odor of raw marijuana and (2)
the fact that the unloading operation had just been completed.
Second, there is the general principle that, in cases involving large amounts of
narcotics, “a prudent drug smuggler is not likely to suffer the presence of unaffiliated
bystanders.” United States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985) (en
banc). That principle, by itself, is not enough, but it is not irrelevant either.
14
Third, despite the inability of any witnesses present at the lot to identify or
describe the Hispanic males who helped unload the marijuana, the jury could
reasonably have found that two of those males were Mssrs. Alvarez and Hernandez
Taurino. For starters, the two Hispanic males driving the tractor trailer containing the
marijuana met Byron Knight and the two other Hispanic males from the hotel at the
truck stop sometime before 9:45 p.m. and then headed to Mr. Green’s lot. Since
Mssrs. Alvarez and Hernandez Taurino drove the tractor trailer from Texas, and the
driver log indicated that the tractor trailer “broke” at 9:00 p.m., the jury could
reasonably have found that they were the two in the tractor trailer who met Byron
Knight and the other two Hispanic males. In addition, one of the Hispanic males
waiting in the tractor trailer identified himself to Byron Knight as the driver, which
again supports a finding that the two males waiting in the tractor trailer were Mssrs.
Alvarez and Hernandez Taurino. Finally, the whole unloading operation for the 1500
pounds of marijuana took about two to two and a half hours (from around 9:45 p.m.
to around 12:15 a.m.), the testimony was that four Hispanic males helped unload the
marijuana, and the arresting officers arrived at the lot shortly after the drugs were
unloaded. From these facts, the jury could reasonably have found that the four men
found near the open trailer by the officers after midnight – including Mssrs. Alvarez
and Hernandez Taurino – were the same four men who had helped move the drugs.
15
We have considered the cases cited by Mssrs. Alvarez and Hernandez Taurino,
as well as cases similar to them. See, e.g., United States v. Lopez-Ramirez, 68 F.3d
438, 441 (11th Cir. 1995) (defendant’s mere presence in garage when alleged
coconspirator unloaded crate packed with cocaine, and presence in house where
police later discovered cocaine, was not sufficient to support convictions for
conspiracy or possession with intent to distribute); United States v. Hernandez, 896
F.2d 513, 519-20 (11th Cir. 1990) (reversing conspiracy conviction despite being able
to “surmise that [the defendant’s] association with [another individual] may have
been criminal, that [the defendant’s] presence at the scene of the crime could have
been because of his involvement in the conspiracy, [and] that [the defendant’s] abrupt
departure might have occurred because he caught on[,] was guilty, and hoped to avoid
arrest”); United States v. Pintado, 715 F.2d 1501, 1504-05 (11th Cir. 1983) (evidence
that defendant was hiding in closet of house where drug raid was conducted at around
1:45 a.m. was insufficient to support conspiracy conviction, even though 29 bales of
damp marijuana were found in a car inside an enclosed garage whose door was open,
and even though Coast Guard had seen various unidentified individuals run from a
boat to the house carrying packages, as damp clothing found in the house was not tied
to defendant). We do not find these cases controlling, however, as the facts here are
quantitatively and qualitatively different. More on point is United States v. Mietus,
16
237 F.3d 866, 873 (7th Cir. 2001), which upheld the conviction of a defendant who
drove a tractor-trailer to a garage, called other co-defendants to come to the garage,
and was found unloading boxes of marijuana concealed in the trailer load of fresh
produce. Mietus is not on “all fours,” because the defendant there made calls to
others and was arrested while unloading the drugs, but it is analogous because, as we
have noted above, the jury could reasonably have found that Mssrs. Alvarez and
Hernandez Taurino were two of the Hispanic males who helped unload the marijuana
at Mr. Green’s lot.
2. MR. GARZA
As to Mr. Garza, we also find the evidence sufficient on both counts of
conviction. First, the jury could reasonably have found that Byron Knight met Mr.
Garza at the hotel and discussed with him how the marijuana would be unloaded, that
Mr. Garza was one of the two Hispanic males driven by Byron Knight to the truck
stop to meet Mssrs. Alvarez and Hernandez Taurino, and that Mr. Garza then traveled
in the tractor trailer to Mr. Green’s lot. This evidence, by itself, shows Mr. Garza’s
knowledge and is sufficient to sustain the conspiracy conviction. See, e.g.,
Hernandez, 896 F.2d at 518-19 (upholding conspiracy conviction of defendant who
checked her phone to see if cocaine deal would go through and who offered to
conduct transaction at her house if it could not be completed as planned). Second, at
17
the time of Mr. Garza’s arrest, the whole front of his clothing was wet (as was the
front of Mr. Perez’s clothing). The jury could reasonably have found that Mr. Garza
had been inside the trailer, whose walls were dripping with water because the
refrigeration unit had been turned off, and that he had been inside the trailer to help
unload the marijuana. Third, when asked by the officers what he was doing at Mr.
Green’s lot after midnight – having no other known connection to the tractor trailer
or the lot – Mr. Garza said he was hanging out. This evidence, taken together with
the earlier discussion Byron Knight had with Mr. Garza, supports the distribution
conviction.
III. SENTENCING ISSUES
We review the district court’s application and interpretation of the Sentencing
Guidelines de novo. See e.g., United States v. Norris, 452 F.3d 1275, 1280 (11th Cir.
2006). The district court’s role assessment under U.S.S.G. § 3B1.2 is reviewed for
clear error. See United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc).
A. MR. MCCLENDON
Mr. McClendon argues that the district court erred in not awarding him a minor
role reduction under USSG § 3B1.2. We disagree. The district court held Mr.
McClendon accountable only for the nine kilograms of cocaine that he agreed to sell,
18
and not for the entire shipment of 89 kilograms. This limitation of relevant conduct
does not bar a minor role reduction as a matter of law, see § 3B1.2,comment. (n.
3(a)), but it is not irrelevant either, as explained in United States v. Boyd, 291 F.3d
1274, 1277 (11th Cir. 2002), because the district court must measure a defendant’s
conduct against the role of others in that relevant conduct. The district court did not
clearly err in finding that Mr. McClendon was not a minor participant. Unlike some
of the other conspirators, Mr. McClendon had an ownership interest in a portion of
the cocaine shipment, and agreed to further distribute some of the cocaine; he was not
“substantially less culpable than the average participant.” § 3B1.2, comment (n.
3(a)).4
Mr. McClendon further contends that, in calculating his criminal history, the
district court erred in counting a Georgia misdemeanor conviction for obstruction of
a police officer and a Georgia misdemeanor conviction for simple battery. Again, we
disagree.
Looking at the obstruction conviction first, Mr. McClendon was sentenced in
2000 to 10 days’ imprisonment and 12 months’ probation. See McClendon PSR ¶ 29.
In relevant part, USSG § 4A1.2( c)(1)(A) provides that a misdemeanor conviction for
4
Mr. Garza sought to adopt the arguments made by his co-defendants, including the minor
role argument asserted by Mr. McClendon. We do not address Mr. Garza’s entitlement to a minor
role, as that matter is heavily dependent on the facts and those facts are not addressed by Mr. Garza
in his brief.
19
an offense similar to “hindering or failure to obey a police officer” is counted if the
“sentence was a term of probation of at least one year or a term of imprisonment of
at least 30 days[.]” Mr. McClendon, citing to Billingsley v. State, 177 Ga. App. 775,
341 S.E. 2d 305 (Ga. App. 1997) (holding that “twelve months” is not equivalent to
“one year” for purposes of a misdemeanor), argues that “Georgia law makes a critical
distinction between sentences of ‘twelve months’ and sentences of ‘one year.’ A
misdemeanor cannot be punished by a period of time exceeding twelve months, and
Georgia law holds that one year is greater than twelve months.” McClendon Brief at
22. Like the other circuits which have addressed this argument, we reject it because
Mr. McClendon has cited no authorities to support his contention that the Sentencing
Guidelines – as opposed to Georgia law – view a probationary sentence of “twelve
months” as different than a probationary sentence of “one year.” See United States
v. Blevins, 29 Fed. Appx. 195, 197 (6th Cir. Dec. 28, 2001); United States v. Mattox,
1998 WL 808362, *4 (4th Cir. Nov. 23, 1998); United States v. Prosper, 1998 WL
767105, *1-*2 (8th Cir. Nov. 2, 1998). See also United States v. McClendon, 195
F.3d 598, 602-03 (11th Cir. 1999) (rejecting similar argument on plain error review).
With respect to the simple battery conviction, Mr. McClendon was sentenced
in 1992 to 12 months’ probation and a $360 fine. Mr. McClendon asserts that a
simple battery conviction is not counted under the Sentencing Guidelines, but the
20
language of § 4A1.2( c) does not support his argument. Under this provision,
“sentences for misdemeanor and petty offenses are counted, except as follows . . . .
” Nothing following this language – i.e., nothing in subsections ( c)(1) or ( c)(2) –
suggests that a simple battery conviction would be excluded. Battery is not like the
other offenses excluded under § 4A1.2( c), see United States v. Dillon, 905 F.2d
1034, 1036 (7th Cir. 1990), and the cases we have been able to locate indicate that
simple (i.e., misdemeanor) battery is properly counted. See United States v. Lee, 995
F.2d 887, 888-89 (9th Cir. 1993) (rejecting argument that such a conviction could not
be counted because it was uncounseled); United States v. Reynolds, 31 Fed. Appx.
293, 294 (4th Cir. March 29, 2002) (same).
B. MR. GARZA AND MR. HERNANDEZ TAURINO
Mr. Garza and Mr. Hernandez Taurino argue that their respective 78-month and
63-month sentences were imposed in violation of the Sixth Amendment under Blakely
v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220(2005), because the district court found that the amount of marijuana involved was
at least 400 but less than 700 kilograms. This argument, however, is raised for the
first time on appeal. Before the district court, Mr. Garza and Mr. Taurino only
asserted as a factual matter that the amount of marijuana was less than what the
government claimed and what the district court found. They did not argue that the
21
Sixth Amendment prohibited the district court from making findings on drug quantity
beyond what was inherent in the jury verdict. Reviewing for plain error under our
decision in United States v. Rodriguez, 398 F.3d 1291, 1298-1301 (11th Cir. 2005),
cert. denied, 125 S. Ct. 2935 (2005), we find that there was error and that the error
was plain; the district court applied the Sentencing Guidelines in a mandatory fashion
after making a factual finding on a contested issue beyond what was inherent in the
jury verdict. But we also conclude that Mr. Garza and Mr. Taurino have not
established that the error affected their substantial rights. The fact that the district
court imposed sentences at the bottom of the applicable ranges under the Sentencing
Guidelines is not enough in light of our precedent. See United States v. Underwood,
446 F.3d 1340, 1344 (11th Cir. 2006); United States v. Fields, 408 F.3d 1356, 1360-61
(11th Cir. 2005).
We note that Mr. Garza’s judgment is incomplete, as it does not reflect that Mr.
Garza was convicted of violating 21 U.S.C. § 841 (a) (1). We therefore remand to the
district court to correct this clerical error. See United States v. Anderton, 136 F.3d
747, 751 (11th Cir. 1998).
IV. CONCLUSION
For the reasons set forth above, the convictions and sentences of Mssrs. Garza,
Alvarez, McClendon, and Hernandez Taurino are affirmed. We remand, however, for
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the district court to amend Mr. Garza’s judgment to reflect that Mr. Garza was
convicted of violating 21 U.S.C. § 841 (a) (1).
AFFIRMED.
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