United States v. Garciga ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4160
HUMBERTO DEJESUS GARCIGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-91-52)
Submitted: February 3, 1998
Decided: February 19, 1998
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed and remanded by unpublished per curiam opinion.
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COUNSEL
Douglas W. Kenyon, Albert Diaz, HUNTON & WILLIAMS,
Raleigh, North Carolina, for Appellant. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Christine Witcover Dean, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
In 1991, Humberto DeJesus Garciga was found guilty after a jury
trial of conspiracy to distribute and to possess with intent to distribute
cocaine, LSD, and other controlled substances in violation of 21
U.S.C. § 846 (1994), and of distribution of cocaine in violation of 21
U.S.C. § 841(a)(1) (1994). Garciga was tried with two of his seven
co-conspirators, including his wife, Dalia Garciga.*
On appeal, Garciga contends that a variance existed between the
conspiracy charged and the evidence adduced at trial. He contends
that the evidence at trial at best proved the existence of two separate
conspiracies, and was insufficient to prove the single conspiracy
charged in the indictment. Garciga also claims that the district court
erred in refusing to give the requested instruction on multiple conspir-
acies, and that it erred by failing to append to Garciga's presentence
investigation report its written findings regarding Garciga's challenge
to the amount of cocaine for which he was held responsible, in com-
pliance with Fed. R. Crim. P. 32(c)(3)(D).
I.
The standard of review for sufficiency of the evidence is de novo,
and the court must consider the evidence in the light most favorable
to the government. See United States v. Burgos , 94 F.3d 849, 862 (4th
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*In 1996, Garciga filed a motion to vacate his sentence under 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997), contending that his trial
counsel had failed to file an appeal as requested by Garciga. In accor-
dance with United States v. Peak, 992 F.2d 39 (4th Cir. 1993), the district
court vacated the judgment entered in 1992 and reinstated the same judg-
ment to allow Garciga to appeal. Garciga timely appealed from the rein-
stated judgment.
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Cir. 1996) (in banc), cert. denied, 65 U.S.L.W. 3586 (U.S. Feb. 24,
1997) (No. 96-6868). If "`any rational trier of fact could have found
the essential elements of the crime [charged] beyond a reasonable
doubt,'" then the verdict must be upheld. See United States v.
Johnson, 54 F.3d 1150, 1153 (4th Cir. 1995) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
Here, the evidence showed that Garciga was part of a conspiracy
involving the sale and distribution of both cocaine and LSD. Garciga
began distributing cocaine with co-conspirator Crescencio Velasquez
in 1985. Garciga also sold cocaine on a regular basis to co-conspirator
Hector Leones, who in turn distributed the cocaine in Florida, Geor-
gia, and North Carolina. Leones was also involved in distributing
LSD, heroin, and diet pills with several other co-conspirators.
Garciga also sold cocaine to co-conspirator Richard Flores.
Through 1987, Flores bought cocaine from Garciga once or twice
monthly, which he then delivered to Leones and co-conspirator Rob-
ert Seay. Phone records showed that both Flores and Leones had
extensive contact with co-conspirator Lonnie Edsell Spell, who in
turn had extensive contact with named co-conspirator Carland Ray
Davis. Testimony also established that Leones was involved in deal-
ing cocaine with Seay, Spell, Davis, and the remaining named co-
conspirator, Maurice Jackson.
Overall, the evidence established that Garciga regularly sold
cocaine directly to Leones and Flores, who in turn distributed it to
Seay, Jackson, Davis, and Spell. Leones and Seay also dealt in diet
pills and LSD. Thus, there was ample evidence to support a finding
that Garciga was part of the one, overall conspiracy charged in the
indictment. Garciga need not have had direct contact with all of the
co-conspirators to support a finding that he was involved in the over-
all single conspiracy. See Johnson, 54 F.3d at 1154 (holding that evi-
dence supported finding of single conspiracy even though principals
did not know each other or had minimal contact with each other);
United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). Like-
wise, Garciga need not have dealt directly in all of the controlled sub-
stances in which the conspiracy dealt to be found part of the
conspiracy. See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993).
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Further, even assuming that the evidence supported the existence
of multiple conspiracies, the court's failure to give a jury instruction
on multiple conspiracies is not reversible error. Garciga contends that
he was involved only with Leones and Flores in distributing cocaine.
However, the evidence showed that Leones and Flores both dealt
directly with Spell, Jackson, Davis, and Seay. Thus, there was sub-
stantial evidence that the separate Garciga-Leones-Flores conspiracy,
which Garciga contends existed, was closely related to the overall
conspiracy charged by virtue of Leones' and Flores' relationship with
the other co-conspirators. See United States v. Kennedy, 32 F.3d 876,
884 (4th Cir. 1994). Accordingly, the failure to give a multiple con-
spiracy instruction is not reversible error. See United States v.
Howard, 115 F.3d 1151, 1157 (4th Cir. 1997); Kennedy, 32 F.3d at
884.
II.
During the sentencing hearing, a dispute arose over the amount of
cocaine for which Garciga should be responsible. The PSR claimed
that over 200 kilograms of cocaine were channeled through Leones
over the course of the conspiracy, although Garciga's counsel argued
that the actual amount was far less. The court declined to resolve this
dispute, concluding that the amount of cocaine distributed by the con-
spiracy was not relevant for sentencing purposes. However, the court
did not append a written record of this determination to Garciga's
PSR.
Federal Rule of Criminal Procedure 32(c)(3)(D) requires that the
district court make a finding as to a disputed allegation or determine
that no such finding is necessary because the controverted matter will
not be considered during sentencing. Here, the district court acted
within its discretion by declining to rule on the controversy between
the parties regarding the amount of cocaine distributed by the conspir-
acy. See United States v. Miller, 871 F.2d 488, 489 (4th Cir. 1989).
However, Rule 32 also requires that the district court append to the
PSR a written record of its determination that no findings are neces-
sary. See Fed. R. Crim. P. 32(c)(3)(D). The district court did not
attach to the PSR a written record of its determination that no findings
were necessary on the amount of cocaine distributed by the conspir-
acy. We therefore remand the case for the limited purpose of attach-
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ment of the district court's determination to the PSR. See United
States v. Daniel, 3 F.3d 775, 780 (4th Cir. 1993).
Accordingly, Garciga's conviction and sentence are affirmed. We
remand for the limited purpose of attachment of the district court's
written findings to the PSR under Fed. R. Crim. P. 32(c)(3)(D). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED AND REMANDED
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