United States v. Javier Garcia-Roman , 477 F. App'x 251 ( 2012 )


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  •    Case: 11-50366       Document: 00511866079         Page: 1     Date Filed: 05/24/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 24, 2012
    No. 11-50366
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JAVIER GARCIA-ROMAN,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Western District of Texas
    No. 2:09-CR-777-3
    Before REAVLEY, SMITH, and PRADO, Circuit Judges.
    PER CURIAM:*
    A jury convicted Javier Garcia-Roman of conspiracy to possess with intent
    to distribute 100 grams or more of heroin and less than 500 grams of cocaine in
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-50366    Document: 00511866079       Page: 2   Date Filed: 05/24/2012
    No. 11-50366
    violation of 
    21 U.S.C. §§ 846
     and 841(a)(1) and conspiracy to import 100 grams
    or more of heroin and less than 500 grams of cocaine in violation of 
    21 U.S.C. §§ 963
    , 952(a), and 960(a)(1). The district court sentenced him to 168 months of
    imprisonment on each count, to run concurrently.
    Garcia-Roman contends that the evidence was insufficient to support the
    verdict. Because he moved for a judgment of acquittal pursuant to Federal Rule
    of Criminal Procedure 29, we review his claim de novo, “applying the same stan-
    dards as the district court in reviewing the sufficiency of the evidence.” United
    States v. Anderson, 
    174 F.3d 515
    , 522 (5th Cir. 1999). We consider “whether,
    viewing the evidence in the light most favorable to the government, a rational
    trier of fact could have found the essential elements of the offense beyond a rea-
    sonable doubt.” United States v. Greer, 
    137 F.3d 247
    , 249 (5th Cir. 1998).
    “To establish a conspiracy under either 
    21 U.S.C. § 846
     or § 963, the Gov-
    ernment must prove beyond a reasonable doubt (1) that an agreement existed
    between two or more persons to violate the applicable narcotics law (i.e., a con-
    spiracy existed), (2) that each alleged conspirator knew of the conspiracy and
    intended to join it and (3) that each alleged conspirator participated (i.e., joined)
    voluntarily in the conspiracy.” United States v. Medina, 
    161 F.3d 867
    , 872 (5th
    Cir. 1998). Because knowledge of drug type and quantity is not an element of
    an offense under § 841(a)(1), United States v. Gamez-Gonzalez, 
    319 F.3d 695
    ,
    699-700 (5th Cir. 2003), or of an offense under § 952(a) and § 960(a), United
    States v. Restrepo-Granda, 
    575 F.2d 524
    , 527-28 (5th Cir. 1978); see United
    States v. Valencia-Gonzales, 
    172 F.3d 344
    , 345-46 (5th Cir. 1999), the govern-
    ment was not required to prove that Garcia-Roman knew the type or quantity
    of drugs that his conspiracies involved, see United States v. Patino-Prado, 
    533 F.3d 304
    , 309-10 (5th Cir. 2008).
    The trial evidence showed that Garcia-Roman enlisted his brother, Faver,
    to help him find someone to bring narcotics into the United States. Faver
    recruited Britny, with whom Faver made a trip to Piedras Negras, Mexico, in
    2
    Case: 11-50366    Document: 00511866079      Page: 3    Date Filed: 05/24/2012
    No. 11-50366
    May 2009 as Garcia-Roman directed their movements over the phone. They met
    a woman who gave Britny white flip-flops that contained drugs, and Faver and
    Britny returned to the United States and delivered the flip-flops as instructed
    by Garcia-Roman. Garcia-Roman paid Britny $500 and subsequently offered
    Britny $1,000 to make another trip with her friend Lauren.
    Britny and Lauren traveled to Piedras Negras in June 2009 as Garcia-
    Roman directed their movements over the phone. Britny received another pair
    of white flip-flops from the same woman in Piedras Negras, but they were
    arrested at the border as they tried to return to the United States. Garcia-
    Roman gave Faver $200 in cash for expenses for the May trip and initially gave
    Britny the same amount for expenses for the trip in June. The flip-flops Britny
    was wearing when she was arrested contained heroin and cocaine.
    Thus, viewing the evidence in the light most favorable to the government,
    a rational trier of fact could have found beyond a reasonable doubt that Garcia-
    Roman conspired to import and to possess with intent to distribute controlled
    substances. In addition, the jury’s findings that the conspiracies involved at
    least 100 grams of heroin and an unspecified amount of cocaine were supported
    by a chemist’s testimony that the flip-flops Britny attempted to smuggle in June
    contained 953.4 grams of heroin and 65.1 grams of cocaine.
    Garcia-Roman also avers that the district court erred in doubling the
    amount of drugs seized in June in order to calculate the total amount of drugs
    that his crimes involved. The district court’s determination of the quantity of
    drugs attributable to a defendant for purposes of U.S.S.G. § 2D1.1 is a factual
    finding made under the preponderance-of-the-evidence standard. United States
    v. Betancourt, 
    422 F.3d 240
    , 247 (5th Cir. 2005). We give “considerable defer-
    ence” to such factual findings, reversing them “only if they are clearly errone-
    ous.” 
    Id. at 246
     (internal quotation marks and citations omitted). “There is no
    clear error if the district court’s finding is plausible in light of the record as a
    whole.” United States v. Cisneros-Gutierrez, 
    517 F.3d 751
    , 764 (5th Cir. 2008)
    3
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    No. 11-50366
    (internal quotation marks and citation omitted).
    A court may consider estimates in determining drug quantity for sentenc-
    ing purposes, provided that the estimates are reasonable and based on reliable
    evidence. See, e.g., Betancourt, 
    422 F.3d at 246
    ; see also § 2D1.1, comment.
    (n.12). When approximating the amount of controlled substances, a court may
    consider “similar transactions in controlled substances by the defendant,” as well
    as other factors. § 2D1.1, comment. (n.12). In Betancourt, the district court mul-
    tiplied the amount of cocaine the defendant distributed to one individual by
    twelve, which was the number of the individuals to whom the defendant had sold
    cocaine, and we affirmed. Betancourt, 
    422 F.3d at 246-48
    ; see also United States
    v. Cabrera, 
    288 F.3d 163
    , 166-73 (5th Cir. 2002) (affirming a similar calculation
    involving the number of aliens trafficked by the defendant).
    Garcia-Roman’s conspiracies involved two drug-smuggling trips during
    which he provided the smugglers $200 in cash for expenses and directed their
    movements over the phone and in which the smugglers met the same woman in
    Piedras Negras who gave the same smuggler (Britny) white flip-flops to wear
    across the border. In addition, the presentence report (“PSR”) stated that Garcia
    paid Faver and Britny the same amount for the first trip that he initially offered
    to pay Britny for the second trip with Lauren. The PSR explained that the
    smugglers used the Eagle Pass border crossing during both trips. In light of
    these similarities, the finding that the conspiracies involved twice the amount
    of drugs seized during the second trip is plausible in light of the record as a
    whole. See Cisneros-Gutierrez, 
    517 F.3d at 764
    ; Betancourt, 
    422 F.3d at 246-48
    .
    AFFIRMED.
    4