United States v. Garcia , 24 F. App'x 872 ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 21 2001
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                   No. 01-8025
    (D.C. No. 00-CR-101-02)
    REUBEN GARCIA,                                        (D. Wyo.)
    Defendant-Appellant.
    ORDER AND JUDGMENT            *
    Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY ,
    Senior Circuit Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    Appellant Reuben Garcia challenges a two-level enhancement to his
    sentence for drug-related offenses, arguing that the government failed to
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    prove that he was a leader or organizer of criminal activity as described in
    Section 3B1.1(c) of the Sentencing Guidelines.   1
    We exercise jurisdiction under
    
    18 U.S.C. § 3742
     and affirm.
    I. Background
    Between April 1 and June 15, 2000, Mr. Garcia obtained methamphetamine
    and heroin from sources in California and paid a methamphetamine addict, Walter
    J. Hei, to transport the drugs from California to Minneapolis, Minnesota, where
    the drugs were sold. On one occasion when Mr. Hei was driving to Minnesota, he
    was stopped by police in Wyoming for an expired registration, and the drugs were
    discovered with the assistance of a canine unit. Mr. Garcia, Mr. Hei, and Mr.
    Garcia’s cousin, Amado Garcia (who was traveling with Mr. Hei when he was
    stopped by the police), were charged with conspiracy to possess and distribute
    methamphetamine.
    A superseding indictment charged Mr. Garcia with conspiracy to possess
    with intent to distribute methamphetamine and heroin, aiding and abetting
    possession with intent to distribute methamphetamine, and aiding and abetting
    possession with intent to distribute heroin. Mr. Garcia pled guilty to all three
    counts of the superseding indictment.
    1
    The November 1, 2000 Sentencing Guidelines were applied by the district
    court and apply to this appeal.
    -2-
    At his sentencing hearing, Mr. Garcia moved for a downward departure on
    the grounds that his criminal history was over represented, and objected to the
    government’s effort to seek a two-level enhancement to his sentence for his role
    as a leader or organizer in the offense. The sentencing court granted the
    downward departure but imposed the two-level leader/organizer enhancement.
    In concluding that Mr. Garcia had served the role of a leader/organizer, the
    sentencing court focused on the fact that Mr. Garcia recruited Mr. Hei, paid
    Mr. Hei, instructed Mr. Hei in trafficking, provided Mr. Hei with specially crafted
    undergarments in which to transport the drugs, and otherwise controlled the
    logistics of the transport. The sentencing court relied heavily on the investigative
    report and on testimony by Mr. Hei which the court observed in separate
    proceedings. Mr. Garcia now appeals the imposition of the enhancement.
    II. Discussion
    Section 3B1.1(c) of the Sentencing Guidelines mandates that a defendant’s
    offense level be increased two levels “[i]f the defendant was an organizer, leader,
    manager, or supervisor in any criminal activity.” When the government
    seeks to increase a defendant’s sentence, it bears the burden of proving by
    a preponderance of the evidence that the increase is justified. United States v.
    Torres, 
    53 F.3d 1129
    , 1142 (10th Cir. 1995).
    -3-
    When determining whether to impose a leader/organizer enhancement, the
    sentencing court should consider
    the exercise of decision making authority, the nature of participation
    in the commission of the offense, the recruitment of accomplices, the
    claimed right to a larger share of the fruits of the crime, the degree
    of participation in planning or organizing the offense . . . and the
    degree of control and authority exercised over others.
    USSG § 3B1.1, cmt. (n.4) (2000). “In considering these factors, the
    sentencing court should remain conscious of the fact that the gravamen of this
    enhancement is control, organization, and responsibility for the actions of other
    individuals . . . .” Torres, 
    53 F.3d at 1142
    .
    The basic thrust of Mr. Garcia’s argument on appeal is that the government
    failed to meet its burden of proof because it failed to introduce key facts into
    evidence and otherwise presented information that was unreliable or insufficient.
    This assertion is reiterated through four distinct allegations of error:   that the
    district court (1) impermissibly adopted the findings of the presentence report
    (PSR) and the investigative report; (2) impermissibly considered unreliable
    hearsay; (3) impermissibly relied on information not in evidence; and (4) failed
    to consider the factors relevant to determination of whether Mr. Garcia was
    a leader/organizer.
    In reviewing a sentencing decision, we review the district court’s legal
    conclusions de novo and its factual findings for clear error. United States v.
    -4-
    Baez-Acuna, 
    54 F.3d 634
    , 638 (10th Cir. 1995). The determination that a
    defendant was a leader of a criminal activity is an issue of fact. United States v.
    Browning, 
    61 F.3d 752
    , 755 (10th Cir. 1995). Where a defendant failed to raise
    an issue before the sentencing court our review is for plain error only. United
    States v. Farnsworth, 
    92 F.3d 1001
    , 1007 (10th Cir. 1996).
    A. The District Court Was Free to Adopt the Findings
    of the Investigative and Presentence Reports
    Mr. Garcia asserts that a sentencing court may not simply adopt the
    findings of the PSR (or, by extension, the findings in the investigative report that
    supports the PSR), citing   Farnsworth. See 
    92 F.3d at 1011
    . The prohibition
    stated in Farnsworth is based on Fed. R. Crim. Pro. 32(c)(1), 2 which requires that
    “[f]or each matter controverted [in the presentence report], the court must make
    either a finding on the allegation or a determination that no finding is necessary
    because the controverted matter will not be taken to account in, or will not affect,
    sentencing.”
    The fact that a defendant has objected to the ultimate conclusions drawn by
    the PSR, however, does not necessarily imply that a “controverted matter” exists.
    To successfully invoke the fact-finding obligation of Rule 32(c)(1), the defendant
    must make “specific allegations of factual inaccuracy.” United States v. Murray,
    2
    Formerly Rule 32(c)(3)(D) .
    -5-
    
    82 F.3d 361
    , 363 (10th Cir. 1996) (quoting United States v. Pedraza, 
    27 F.3d 1515
    , 1531 (10th Cir. 1994)); see also United States v. Huerta, 
    182 F.3d 361
    ,
    364 (5th Cir. 1999) (defendant’s rebuttal evidence must demonstrate that
    information in PSR is materially untrue, inaccurate or unreliable). Arguments
    that “challenge[] the district court’s application of the guidelines to the facts and
    not the facts themselves” do not trigger any obligation on the part of the district
    court to make specific findings. United States v. Windle, 
    74 F.3d 997
    , 1002
    (10th Cir. 1996); see also United States v. Hall, 
    212 F.3d 1016
    , 1023 (7th Cir.
    2000) (defendant must offer evidence beyond his own mere denials to prompt
    further inquiry into disputed sentencing issues).
    Here, Mr. Garcia lodged objections directly to the PSR and reiterated his
    objections both in a subsequent memorandum addressing sentencing issues and
    again at the sentencing hearing. In his objections, Mr. Garcia denied that he was
    a leader, claimed that he and Mr. Hei decided together to distribute the drugs in
    Minneapolis, and described their relationship as that of “co-equals.” He did not,
    however, rebut any of the core facts supporting the conclusion that he was a
    leader or organizer, for example: that he paid Mr. Hei, purchased train tickets for
    one of the transports, and supplied the specially crafted undergarments in which
    Mr. Hei transported the drugs.   Because Mr. Garcia did not offer any evidence
    specifically controverting factual information in the PSR, the sentencing court
    -6-
    was not prohibited from adopting the factual findings of the PSR or the
    investigative report.
    B. The Hearsay Testimony Was Corroborated by
    Facts Admitted by the Defendant
    Mr. Garcia also argues that the sentencing court improperly considered
    unreliable hearsay in the form of the investigative report. In the report, a police
    officer recounted statements made by Mr. Hei regarding the nature of his
    relationship with Mr. Garcia and described an undercover phone call from Mr.
    Hei to Mr. Garcia.
    The rules of evidence do not apply to sentencing hearings, and, as such, a
    sentencing court is free to consider hearsay that bears   “some minimal indicia of
    reliability.” Browning, 
    61 F.3d at 755
    ; see also USSG § 6A1.3(a). Such indicia
    of reliability are present here. We have previously held that hearsay may be
    sufficiently reliable if corroborated by facts admitted by a defendant in pleading
    guilty to the indictment.   See United States v. Roach, 
    978 F.2d 573
    , 576
    (10th Cir. 1992) (hearsay testimony by agent reliable even though contradicted by
    defendant’s testimony).
    Here, by pleading guilty to the indictment, Mr. Garcia admitted that he
    asked Mr. Hei to transport the drugs, paid Mr. Hei, obtained and provided the
    drugs to Mr. Hei, provided specially crafted undergarments for transporting the
    drugs, paid Mr. Hei’s travel expenses, and verbally directed Mr. Hei’s actions
    -7-
    over the telephone.   3
    These admitted facts provide sufficient corroboration for the
    hearsay testimony of the police officer.
    C. It Was Not Plain Error for the Sentencing Court
    to Rely on Information Not in Evidence
    Mr. Garcia further argues that the sentencing court erred in relying on the
    investigative report because the government did not seek to have the report
    formally admitted into evidence. This objection was not raised before the
    sentencing court; therefore, our review is for plain error only.    See Farnsworth ,
    
    92 F.3d at 1007
    . To demonstrate the existence of plain error, an appellant must
    show (1) there is error, (2) that is plain, and (3) that affects substantial rights.
    Johnson v. United States, 
    520 U.S. 461
    , 466-67 (1997).
    In determining a sentence, t he district court may appropriately consider all
    sources of information without limitation; the sole touchstone is reliability. See
    United States v. Beaulieu, 
    893 F.2d 1177
    , 1179 (10th Cir. 1990). Thus, the
    sentencing court may consider information that would be inadmissible at a
    criminal trial, including reliable hearsay and statements of co-defendants made in
    separate proceedings. See USSG § 6A1.3, cmt.; Beaulieu, 
    893 F.2d at 1181
    .
    3
    One of Mr. Garcia’s primary arguments is that it was improper for the
    sentencing court to rely on a description of this undercover phone call from Mr.
    Hei to Mr. Garcia. The essential facts of this phone call, however, were included
    in the factual basis of the indictment and thus admitted by Mr. Garcia.
    -8-
    In light of the sentencing court’s virtually limitless prerogative to consider
    information known to it from a variety of sources, and in light of the admissions
    by Mr. Garcia detailed above, even if there was error in not requiring the
    government to make a formal evidentiary submission, it did not affect Mr.
    Garcia’s substantial rights.
    D. The Sentencing Court Adequately Considered
    the Relevant Sentencing Factors
    Finally, Mr. Garcia asserts that the sentencing court failed to consider
    the factors outlined in the commentary to Section 3B1.1. Specifically, Mr. Garcia
    points to the lack of any evidence pertaining to one of the factors: whether he
    demanded a greater share of the profits. There is no merit to this argument.
    “[T]he commentary to this guideline does not mandate that sentencing
    courts expressly consider each and every factor listed therein, but rather, it
    merely encourages it.” Torres, 
    53 F.3d at 1143
    . We have held that      a defendant
    may be found to be a “leader” under Section 3B1.1(c) based “upon a mere
    showing ‘that the defendant exercised any degree of direction or control over
    someone subordinate to him in the distribution scheme.’” Baez-Acuna, 
    54 F.3d at 639
     (quoting United States v. Backas, 
    901 F.2d 1528
    , 1530 (10th Cir. 1990)).
    In light of the information contained in the investigative report and Mr. Garcia’s
    own admissions based on the superseding indictment, there was ample evidence
    -9-
    indicating that he exercised control over Mr. Hei in the trafficking and
    distribution of the drugs at issue here.
    The judgment of the United States District Court for the District of
    Wyoming is AFFIRMED.
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    -10-