United States v. Garcia-Flores , 207 F. App'x 397 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-20351
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL GARCIA-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-350-ALL
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Rafael Garcia-Flores (Garcia) pleaded guilty to count 5 of a
superseding indictment, charging him with illegal re-entry after
deportation, and was found guilty after a bench trial of counts 1,
3, and 4, of the superseding indictment charging him with
unlawfully transporting aliens for the purpose of financial gain
resulting in the death of an alien and aiding and abetting, of
being a felon in possession of a firearm, and of being an alien in
possession of a firearm. Garcia was sentenced within the guideline
imprisonment range to a 150-month term of imprisonment as to count
*
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this opinion should not be published and is not precedent except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.
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1 and to concurrent 120-month terms of imprisonment as to counts 3,
4, and 5 and was ordered to serve concurrent three-year periods of
supervised release.
At the bench trial, the Government introduced evidence showing
that Garcia was transporting three illegal aliens from a house in
Houston to a grocery-store parking lot. One of the aliens was Jimy
Lopez-Mejia Garcia. His brother, Jose Santos Lopez-Mejia, was
going to meet Garcia in the grocery-store parking lot and pay for
Jimy’s release. During the transaction, Jose and Garcia got into
a knife fight. Garcia drove away, with Jose Lopez hanging on the
side of Garcia’s truck. Garcia pulled a 9mm pistol and the other
men in the truck struggled with Garcia. The pistol discharged
once. The truck struck a telephone pole and two other vehicles.
Jose Lopez was thrown to the pavement and was killed.
In general, 8 U.S.C. § 1324(a)(1)(A) makes it a crime to
transport illegal aliens. § 1324(a)(1)(A). Section
1324(a)(1)(B)(iii) and (iv) establishes increased maximum penalties
if, during the commission of a violation of subsection (a)(1)(A),
the defendant causes any person to suffer serious bodily injury or
death or placed in jeopardy the life of “any person.”
§ 1324(a)(1)(B)(iii) & (iv); United States v. Williams, 449 F.3d
635, 644–45 (5th Cir. 2006). Garcia contends for the first time on
appeal and without citation that the term “any person” refers only
to undocumented aliens alleged to have been transported. Our
review is for plain error. See United States v. Alfaro-Hernandez,
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453 F.3d 280, 281 (5th Cir. 2006). Garcia has not identified and
we have not found any case in which a court has interpreted the
statute in the manner in which Garcia contends it should be
interpreted. Accordingly, the district court could not have
committed a clear or obvious error in giving the term “any person”
its ordinary and natural meaning. See United States v. Hall, 110
F.3d 1155, 1161 (5th Cir. 1997).
Garcia contends also that the district court erred by
overruling his objection to an eight-level increase in his offense
level under U.S.S.G. § 2L1.1(b)(6) because of Lopez’s death.
Garcia contends that the enhancement does not apply because Lopez
was not one of the smuggled aliens. Our review is for plain error.
See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
Under § 2L1.1(b)(6)(4), a defendant’s offense level is increased by
eight levels “if any person died.” United States v. Garcia-
Guerrero, 313 F.3d 892, 898 (5th Cir. 2002). In overruling
Garcia’s objection, the district court found that Garcia’s relevant
conduct proximately caused Jose’s death. The district court
explained, “Smuggling aliens illegally with a loaded firearm could
reasonably lead the smuggler to foresee the result in this case;
that is, death and serious bodily injury to third parties who
negotiate for the release of the illegally smuggled aliens.” The
district court’s finding and its enhancement of the offense level
under § 2L1.1(b)(6) was not plainly erroneous. See Villegas, 404
F.3d at 358.
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Prior to the bench trial, the parties reached an agreement
that Garcia would plead guilty to transporting an illegal alien for
financial gain, a violation of § 1324(a)(1)(A)(ii) and (B)(ii)
(count 1), and § 1326 (count 5), but would proceed to a bench trial
as to the sentencing enhancements of count 1 related to bodily
injury and death ((B)(iii) & (iv)) and as to the firearms counts
(counts 3 and 4), in exchange for which the Government would agree
to dismissal of count 2 (kidnaping).
Garcia contends that the district court erred in finding him
guilty of § 1324(a)(1)(B)(iii) and (iv) because that finding “was
not supported by the evidence and was contrary to the admonishments
of the offense elements to which [he] entered his plea of guilty.”
We review the district court’s acceptance of Garcia’s partial
guilty plea to count 1 for plain error. See United States v. Vonn,
535 U.S. 55, 59 (2002). We review the sufficiency of the evidence
as to the bodily-injury-and-death enhancements in the light most
favorable to the Government to determine “whether the finding of
guilt is supported by substantial evidence, i.e., evidence
sufficient to justify the trial judge, as the trier of fact, in
concluding beyond a reasonable doubt that the defendant is guilty.”
United States v. Turner, 319 F.3d 716, 720–21 (5th Cir. 2003)
(quotation marks omitted).
Garcia admitted at the rearraignment that he violated
§ 1324(a)(1)(A) by transporting illegal aliens for financial gain.
Under § 1324(a)(1)(B)(iii) and (iv), the maximum penalty for such
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violation is increased (to 20 years and death or life imprisonment,
respectively) if, “during and in relation to” the violation, the
defendant “causes serious bodily injury . . . to, or places in
jeopardy the life of, any person” or if such violation results “in
the death of any person.” § 1324(a)(1)(B)(iii) & (iv); see
Williams, 449 F.3d at 644–45. The evidence, viewed in the light
most favorable to the Government, showed that, while Garcia was
transporting illegal aliens in violation of § 1324(a)(1)(A)(ii),
Jose Lopez became involved in an argument with Garcia regarding one
of the aliens and that Lopez was killed when he was thrown to the
pavement as Garcia attempted to leave the scene in his vehicle.
The district court’s finding of guilt is supported by substantial
evidence. See Turner, 319 F.3d at 720–21. Garcia’s substantial
rights were not affected by any error in accepting Garcia’s partial
guilty plea as to count 1. See United States v. Olano, 507 U.S.
725, 734–35 (1993).
Garcia also contends that his guilty plea was involuntary
because the district court failed to comply with FED. R. CRIM. P. 11.
We review this issue for plain error. See Vonn, 535 U.S. at 59.
As to count 1, Garcia contends specifically that the district court
erred in admonishing him about the maximum punishment. The maximum
term of imprisonment for transporting illegal aliens for financial
gain or for engaging in a conspiracy to transport illegal aliens is
ten years. See § 1324(a)(1)(A)(ii) & (v)(I) and (B)(i). If the
defendant merely transports illegal aliens or aids and abets the
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offense of transporting illegal aliens, the maximum penalty is five
years. See § 1324(a)(1)(A)(ii) & (v)(II) and (B)(ii). The
district court admonished Garcia that he faced a maximum sentence
of 10 years for count 1. Garcia argues that the maximum sentence
was five years because the evidence introduced at the bench trial
showed that he was guilty of aiding and abetting only and so should
have been convicted and sentenced pursuant to § 1324(a)(1)(B)(ii).
Garcia admitted at the rearraignment that he had transported
illegal aliens for financial gain. Therefore, the maximum sentence
to which he was exposed as a consequence of his guilty plea was 10
years, under § 1324(a)(1)(A)(ii) and (B)(i). There was no error,
plain or otherwise.
The district court admonished Garcia that he faced a maximum
sentence of 20 years for count 5 (illegal reentry after
deportation). Under § 1326(b)(2), an alien who reenters the United
States following deportation, in violation of § 1326(a), who was
convicted of an aggravated felony prior to deportation, faces a
maximum term of imprisonment of 20 years. Garcia admitted that,
prior to deportation, he was convicted of an aggravated felony,
that is, a drug trafficking offense. Garcia contends that the
prior felony involved marijuana possession for which he served a
six-month sentence and that the district court erred in admonishing
him that he faced a statutory maximum sentence of 20 years.
Because he received only a six-month sentence for the marijuana-
possession conviction, Garcia argues, he was not subject to the 16-
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level enhancement under U.S.S.G. § 2L1.2(1)(A)(I) and the district
court’s admonition to the contrary and failure to define
“aggravated felony” made his guilty plea involuntary. Garcia
contends also that the error led to an incorrect application of the
Guidelines. These arguments are without merit.
Under Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Court upheld the treatment of prior convictions as
sentencing factors. Despite repeated attack, this court has held
that Almendarez-Torres remains binding, despite the holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Accordingly, any
failure on the part of the district court to admonish Garcia
adequately regarding the impact of § 1326(b)(2) on his sentencing
range could not have affected the voluntariness of Garcia’s guilty
plea to a violation of § 1326(a) and was not plainly erroneous.
Garcia admitted, in response to questioning by his own
attorney, that he was deported following conviction for an
aggravated felony. Instead of a 16-level increase in offense
level, Garcia received a 12-level increase in offense level because
of the prior felony. That increase impacted group II of the
guideline calculation (count 5) but did not impact group I (counts
1, 3, and 4). Garcia did not object to the 12-level increase.
Accordingly, our review is for plain error. See United States v.
Vargas-Garcia, 434 F.3d 345, 347 (5th Cir. 2005), cert. denied, 126
S. Ct. 1894 (2006). Because the offense level for group I was
higher, Garcia was sentenced pursuant to group I and the 12-level
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enhancement had no effect on the total offense level and Garcia’s
substantial rights were not affected.
Garcia contends that the district court erred in overruling
his objection to the lack of an adjustment in offense level for
acceptance of responsibility. The reduction for acceptance of
responsibility “‘is not intended to apply to a defendant who puts
the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse.’” United States v. Sanchez-
Ruedas, 452 F.3d 409, 414–15 (5th Cir. 2006) (quoting U.S.S.G.
§ 3E1.1, comment. (n.2)), cert. denied, 127 S. Ct. 315 (2006). The
judgment is
AFFIRMED.