United States v. Garza , 187 F. App'x 397 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 30, 2006
June 27, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-50400
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS GARZA, JR.,
also known as Jose Luis Garza,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
No. W-00-CR-94-2
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Garza, Jr., appeals his jury conviction of, and sentence
for, possession with intent to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. § 841(a)(1). He contends the
evidence was insufficient to sustain the verdict. Specifically, he
argues that the government’s case rested solely on a single finger-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-50400
-2-
print found on one of the nine packages of cocaine seized on Sep-
tember 23, 2000, and on Homero DeLeon’s incredible testimony.
Garza further argues that he presented a plausible explanation as
to how and why his fingerprint was found on the package of cocaine
and, thus, the evidence gives equal or nearly equal circumstantial
support to a theory of innocence.
Viewed in the light most favorable to the verdict, the evi-
dence was sufficient to establish that Garza knowingly possessed
with intent to distribute five kilograms or more of cocaine. Ho-
mero DeLeon testified that the 8.9 kilograms of cocaine seized from
Ricardo DeLeon’s van belonged to Garza, that the cocaine was stored
in Garza’s house, and that Garza packaged and loaded the cocaine
into the van. Homero DeLeon’s testimony was not incredible or fac-
tually insubstantial on its face and, further, was corroborated in
part by the fact that Garza’s fingerprint was found on one of the
packages.
The jury’s acquittal of Garza on the conspiracy count did not
necessarily imply that the jury found Homero DeLeon incredible.
See United States v. Pena, 949 F.2d 751, 755 (5th Cir. 1991); Unit-
ed States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995). Moreover,
although Garza provided an explanation as to how his fingerprint
could have gotten on the package, the jury’s decision to accept or
reject this explanation was a credibility determination that we
will not disturb. See United States v. Runyan, 290 F.3d 223, 240
(5th Cir. 2002).
No. 03-50400
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Garza claims the district court erred in determining the quan-
tity of drugs attributable to him as relevant conduct without mak-
ing the particularized findings required by U.S.S.G. § 1B1.3. Spe-
cifically, he argues that the calculation in the presentence report
was based solely on Homero DeLeon’s disbelieved trial testimony and
Ricardo DeLeon’s incredible and uncorroborated statements to law
enforcement officers before he absconded. Garza also avers that
the district court failed to make particularized findings that he
was part of a jointly undertaken criminal activity and that his co-
defendants’ acts were reasonably foreseeable.
Contrary to Garza’s contention, the district court did not
include third-party conduct in determining the quantity of drugs
attributable to him as relevant conduct and, thus, it was not re-
quired to make findings regarding a jointly undertaken criminal
activity. Further, although Garza argues that the relevant conduct
offenses were based on Homero DeLeon’s and Ricardo DeLeon’s in-
credible and uncorroborated statements, Garza did not submit any
rebuttal evidence to refute the information in the presentence re-
port. Ricardo DeLeon’s statements were corroborated in part by Ho-
mero DeLeon’s statements to law enforcement officers and Homero
DeLeon’s testimony at trial. Therefore, the district court’s de-
termination of relevant conduct was plausible in light of the rec-
ord read as a whole, and Garza has not demonstrated clear error.
Garza contends that the district court clearly erred when it
increased his base offense level for possession of a dangerous
No. 03-50400
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weapon under U.S.S.G. § 2D1.1(b)(1). The court’s determination
that it was not clearly improbable that the weapon seized from Ri-
cardo DeLeon’s vehicle was connected to the offense of conviction
was plausible in light of the record read as a whole. Officer Hugh
Curry testified that Garza was a passenger in the van in which 8.9
kilograms of cocaine and a .380 caliber handgun were found. Garza
admitted at trial that he knew the weapon was in the van.
Further, it is not plainly improbable that the weapon was used
to protect Garza’s drug trafficking activities. See United States
v. Westbrook, 119 F.3d 1176, 1193 (5th Cir. 1997) (observing that
guns are “tools of the trade” for those engaged in the drug bus-
iness). Therefore, the government established a sufficient tempor-
al and spatial relationship among the weapon, the drug trafficking
activity, and Garza, and thus the district court did not clearly
err when it increased Garza’s base offense level for possession of
a dangerous weapon under § 2D1.1(b)(1). See United States v. East-
land, 989 F.2d 760, 770 (5th Cir. 1993).
Garza argues that the district court violated his Sixth Amend-
ment right to a jury trial when it enhanced his sentence based on
facts that were neither admitted by him nor found by a jury beyond
a reasonable doubt. Because Garza’s objections to the presentence
report did not sufficiently apprise the district court that he was
raising a claim of constitutional error, his Sixth Amendment claim
is not preserved, so our review is for plain error. See United
No. 03-50400
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States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126
S. Ct. 43 (2005).
The district court erred when it sentenced Garza pursuant to
a mandatory guidelines system based on its factual findings as to
the drug-quantity calculation and dangerous-weapon enhancement.
See United States v. Booker, 543 U.S. 220, 244 (2005); United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.),
cert. denied, 126 S. Ct. 267 (2005). Garza has not demonstrated,
however, that this plain error affected his substantial rights.
The record gives no indication that the district court would
have reached a different result under an advisory guidelines sys-
tem. Although the court sentenced Garza at the lowest end of the
guideline range, it found no reason to depart from that range. See
United States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir.),
cert. denied, 126 S. Ct. 264 (2005). Given the lack of evidence
indicating that the court would have reached a different conclu-
sion, Garza has failed to establish plain error. See Mares, 402
F.3d at 520-22.
AFFIRMED.