United States v. Gustavo Garcia-Miranda ( 2019 )


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  •      Case: 18-40391      Document: 00515022613         Page: 1    Date Filed: 07/05/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-40391                        FILED
    July 5, 2019
    UNITED STATES OF AMERICA,                                            Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    GUSTAVO GARCIA-MIRANDA,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:16-CR-178-1
    Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
    PER CURIAM:*
    This appeal solely concerns the sentencing of a conspirator in a drug
    transaction.     He argues he should not have been subject to a sentence
    enhancement for the importation of methamphetamines and was entitled to a
    sentence reduction for having only a minor role in the conspiracy. We find no
    clear error in the district court’s findings and AFFIRM.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40391     Document: 00515022613     Page: 2     Date Filed: 07/05/2019
    No. 18-40391
    FACTUAL AND PROCEDURAL BACKGROUND
    In May 2016, the Department of Homeland Security received
    information regarding a multi-syndicated drug trafficking and money
    laundering organization that was operating in the Dallas and Fort Worth area.
    Homeland      Security’s   subsequent   investigation      determined    that   the
    organization was importing and distributing drugs from Mexico and smuggling
    the bulk cash proceeds back to Mexico.         A confidential informant called
    members of the organization to negotiate the purchase of multiple kilograms
    of methamphetamine on December 13, 2016. Juan Manuel Bustos-Chipres
    contacted the informant later that day, stating that he was in the Dallas area
    and available to meet. Bustos-Chipres agreed to meet at a Golden Corral
    restaurant in Garland, Texas, where he provided to the confidential informant
    a sample of the methamphetamine. Bustos-Chipres agreed to deliver five
    kilograms of methamphetamine to the informant the following day.
    The next day, the informant called a member of the organization known
    as Kike, who stated that he had completed the five-kilogram purchase of
    methamphetamine from his associate, Don Tavo. Kike told the informant that
    a “person of confidence” would make the delivery, who turned out to be Bustos-
    Chipres.     Bustos-Chipres arrived at the restaurant that was the agreed
    meeting location with the defendant Gustavo Garcia-Miranda as a passenger.
    Garcia-Miranda and Bustos-Chipres entered the restaurant together. The
    informant then called Bustos-Chipres, who exited the restaurant with Garcia-
    Miranda and drove away. The vehicle was eventually stopped for a traffic
    violation.
    Officers stated that Bustos-Chipres was extremely nervous during the
    traffic stop. They asked him if there was anything illegal in the vehicle. He
    repeatedly said “no.” He then granted oral permission to search the vehicle.
    Officers saw a speaker box in the trunk that was unusually heavy, with
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    No. 18-40391
    materials inside inconsistent with a speaker. Bustos-Chipres then exited the
    vehicle and appeared as though he might flee. Officers attempted to detain
    him, and he resisted. Garcia-Miranda, on the other hand, ran to the vehicle
    and was observed reaching inside. Officers ordered him to remove his hand
    from the vehicle and to lie down. He complied. In the speaker box were 5.93
    kilograms of “Ice,” or d-methamphetamine, which a lab tested at 99% purity.
    Garcia-Miranda stipulated that the amount involved during the term of the
    conspiracy involved “500 grams or more of a mixture or substance containing
    a detectable amount of methamphetamine.”
    Garcia-Miranda pled guilty to one count of conspiracy to possess with
    intent to distribute methamphetamine in violation of 
    21 U.S.C. §§ 841
    , 846.
    The presentence report (“PSR”) determined that Garcia-Miranda’s base offense
    level was 38 pursuant to U.S.S.G. § 2D1.1(c)(1) because the offense involved
    more than 4.5 kilograms of Ice. The PSR applied a two-level enhancement
    pursuant to Guidelines Section 2D1.1(b)(5) because the offense involved the
    importation of methamphetamine from Mexico, and Garcia-Miranda was not
    entitled to a mitigating-role adjustment under Section 3B1.2. After a two-level
    adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a), Garcia-
    Miranda’s total offense level of 38 and his criminal history category of I yielded
    an advisory guidelines range of 235 to 293 months of imprisonment.
    Garcia-Miranda objected to the PSR on two grounds: the Section
    2D1.1(b)(5) importation enhancement was improper because he was not aware
    that the methamphetamine originated in Mexico; further, he was entitled to
    a mitigating role adjustment in part because he was simply Bustos-Chipres’s
    “helper” who rode as a friend. Garcia-Miranda urged both objections at his
    sentencing.
    At the sentencing hearing, Garcia-Miranda attempted to distinguish
    existing caselaw concerning whether knowledge of the drug’s origin was
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    required for an importation enhancement. See United States v. Serfass, 
    684 F.3d 548
    , 551 (5th Cir. 2012). Garcia-Miranda also called Bustos-Chipres as a
    witness, who testified that Garcia-Miranda was not “involved in [the]
    arrangement of getting the methamphetamines,” had no “input on putting the
    drugs in the car,” and was “merely riding along with [Bustos-Chipres] as some
    sort of . . . protection.” Bustos-Chipres concluded that Garcia-Miranda “was
    less involved” in the offense than he.
    On cross-examination, Bustos-Chipres testified that he did not know
    who hired him to distribute the nearly six kilograms of methamphetamine. He
    refused to disclose who gave him the phone number used to contact the
    informant in the drug distribution. Upon being instructed by the district court
    to answer the question, Bustos-Chipres refused. The district court noted that
    Bustos-Chipres could not “pick and choose what he’s going to answer.” The
    district court found Bustos-Chipres not to be credible and did not rely on his
    testimony.   The court determined that it defied common sense to believe
    Garcia-Miranda did not know that the methamphetamine was imported from
    Mexico.
    The district court overruled Garcia-Miranda’s objections and adopted the
    PSR. The court did not grant Garcia-Miranda’s request for a mitigating-role
    reduction. It did, however, calculate Garcia-Miranda’s Guidelines range using
    a two-level reduction through the “safety valve” provisions and a further one-
    level reduction for acceptance of responsibility, resulting in a total offense level
    of 35. The district court imposed a sentence of 168 months, at the bottom of
    the 168 to 210-month Guidelines range.
    On appeal, Garcia-Miranda challenges the denial of his request for a
    mitigating-role   adjustment     and     the   application   of   the   importation
    enhancement.
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    DISCUSSION
    This court reviews “the district court’s interpretation of the Sentencing
    Guidelines de novo, and review[s] the district court’s factual findings for clear
    error.” Serfass, 684 F.3d at 550. “There is no clear error if the district court’s
    finding is plausible in light of the record as a whole.” Id. (quoting United States
    v. Cisneros-Gutierrez, 
    517 F.3d 751
    , 764 (5th Cir. 2008)). We first will review
    whether the district court erred when it found that Garcia-Miranda was not a
    minor or minimal participant, then consider the propriety of the two-level
    importation enhancement.
    I.    Mitigating Role Adjustment
    Garcia-Miranda argues the district court erred when it did not grant a
    two-level sentence reduction for having a minor role. Garcia-Miranda claims
    that the district court’s decision should be reviewed de novo, because the
    district court “misinterpreted the guidelines . . . when it relied on factors that
    were not relevant to Garcia-Miranda’s role in the conspiracy.”                “The
    determination whether to apply [U.S.S.G. § 3B1.2] is based on the totality of
    the circumstances and involves a determination that is heavily dependent
    upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.3(C). When a
    defendant objected in district court, we review for clear error a district court’s
    finding that a defendant was not a minor or minimal participant. United
    States v. Gomez-Valle, 
    828 F.3d 324
    , 327 (5th Cir. 2016).
    Section 3B1.2 “provides a range of adjustments for a defendant who
    plays a part in committing the offense that makes him substantially less
    culpable than the average participant in the criminal activity.” § 3B1.2, cmt.
    n.3(A). In particular, it authorizes a two-level reduction for a defendant who
    was a “minor participant.” § 3B1.2(b). A minor participant is one who is “less
    culpable than most other participants in the criminal activity, but whose role
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    could not be described as minimal.” § 3B1.2, cmt. n.5. The defendant has the
    burden of demonstrating his entitlement to a minor role adjustment. United
    States v. Castro, 
    843 F.3d 608
    , 612 (5th Cir. 2016). A Section 3B1.2 adjustment
    is not warranted simply because a defendant “does less than other
    participants.” United States v. Miranda, 
    248 F.3d 434
    , 446 (5th Cir. 2001).
    Garcia-Miranda argues that the evidence demonstrates he was involved
    in the conspiracy only for a short time, that he was less culpable than a drug
    courier, that his only role was to ride along with Bustos-Chipres to appear to
    be protection, that he did not know the amount of the narcotics in the vehicle,
    nor did he know the terms of the sale. Garcia-Miranda also argues that the
    district court relied on improper factors in denying his mitigating role. These
    included that he and Bustos-Chipres were both illegal immigrants from
    Mexico, that they knew each other from Mexico, that they were in the vehicle
    together, and that he attempted to grab his cell phone from the car when
    arrested.
    Garcia-Miranda also argues that he was less culpable than most other
    participants, shown to some extent by the fact he received a reduction under
    the “safety valve” pursuant to Section 5C1.2 of the Guidelines. Because he
    described his small role in the offense, and the district court had to have
    believed that he was truthful to receive the safety valve, he argues entitlement
    to a reduction for being a minor participant.
    We will review the evidence to determine whether the district court’s
    findings were plausible. Serfass, 684 F.3d at 550. Drug couriers are not
    necessarily entitled to a mitigating role adjustment. See Castro, 843 F.3d at
    612.      Furthermore, the defendant bears the burden of proving by a
    preponderance of the evidence that a reduction was warranted. Id. At the
    sentencing hearing, Garcia-Miranda called Bustos-Chipres to testify, who
    claimed that Garcia-Miranda had “no input on placing the drugs in the car,”
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    that he was only there for protection, and that Garcia-Miranda did not arrange
    for the drugs to be in the car.
    On    cross-examination,    Bustos-Chipres    refused    to   answer    the
    government’s questions even after the district court instructed him to answer.
    The district court found that Bustos-Chipres was not credible nor forthcoming.
    The district court noted that Bustos-Chipres and Garcia-Miranda were both
    from Mexico, that they had a previous relationship there, and that they were
    illegally present in the United States. The district court determined that
    Garcia-Miranda was minimizing his conduct and not telling “the whole story.”
    The district court stated that Garcia-Miranda was “more involved” than he
    admitted.    There is evidence that Garcia-Miranda accompanied Bustos-
    Chipres inside the restaurant where the delivery of the methamphetamine was
    to take place, that they left together after the confidential informant called
    Bustos-Chipres, and that Garcia-Miranda attempted to recover a cell phone
    from the stopped vehicle after Bustos-Chipres attempted to flee. The district
    court also heard that Garcia-Miranda had joint possession of the
    methamphetamine in the vehicle, and that he was present to provide at least
    the illusion of protection for Bustos-Chipres. Furthermore, Garcia-Miranda
    stipulated that he “knew that the amount involved during the term of the
    conspiracy involved 500 grams or more of . . . methamphetamine.”
    Based on this evidence, the district court’s finding that Garcia-Miranda
    was not entitled to a mitigating role adjustment was plausible. The evidence
    allowed the district court to infer that Garcia-Miranda had greater knowledge
    of the “scope and structure of the criminal activity” and to determine the
    “nature and extent of the defendant’s participation in the commission of the
    criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(C). The district court therefore
    did not rely on irrelevant factors when it considered those “non-exhaustive . . .
    factors” in the Guidelines commentary. Id.
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    Furthermore, Garcia-Miranda’s evidence was insufficient to overcome
    his burden of showing that he was substantially less culpable than the average
    participant. Castro, 843 F.3d at 612. The district court explicitly found that
    Bustos-Chipres, Garcia-Miranda’s only witness, was not credible. Because the
    district court could plausibly have inferred that Garcia-Miranda was more
    than a minor participant from the government’s evidence and the PSR, and
    Garcia-Miranda failed to present credible evidence establishing the culpability
    of an average participant and his substantially lower culpability, we find no
    error in the district court’s factual finding. See id. at 613.
    We discuss one additional detail of this issue. The district court focused
    on the prior relationship of these two men in Mexico to support that Garcia-
    Miranda knew of the greater scheme. Garcia had the burden of producing
    evidence of the nature of the role of an average participant, but the district
    court completely discredited his evidence. We have indicated the importance
    of a district court’s findings about average participation before assessing
    whether someone was substantially less culpable than that, and no such
    findings were made here. See United States v. Sanchez-Villareal, 
    857 F.3d 714
    ,
    722 (5th Cir. 2017). In that case, we reversed as the “wisest course” in the
    absence of findings. 
    Id.
     (quoting United States v. Cruickshank, 
    837 F.3d 1182
    ,
    1195 (11th Cir. 2016)). Yet here, because Garcia-Miranda had the burden to
    show he was below average, and the district court found his one witness had
    no credibility, there is no evidence to support the reduction. In light of the
    failure of proof, and despite the absence of findings of what constituted the
    average, we see no basis for reversal.
    Garcia-Miranda’s arguments include that the district court’s grant of a
    safety valve constituted an effective finding that Garcia-Miranda was truthful
    in his representations to the government. He represented to the government
    that he was simply a passenger in the car with his co-defendant, and that he
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    knew there were drugs in the car but had no involvement in negotiating or
    delivering the drugs. The grant of a safety valve, though, does not create an
    entitlement to a mitigating role reduction. The safety valve requires only that
    he not be “an organizer, leader, manager, or supervisor of others in the
    offense.” See U.S.S.G. § 5C1.2(a)(4).
    The district court did not err in finding that Garcia-Miranda was not
    eligible for the mitigating role reduction.
    II.    Importation Enhancement
    Garcia-Miranda      also     disputes     the    two-level     enhancement       for
    importation of methamphetamine. Section 2D1.1(b)(5) provides for a two-level
    enhancement if the offense involved the importation of methamphetamine and
    the defendant did not qualify for a mitigating role adjustment under U.S.S.G.
    § 3B1.2, which we addressed above. Garcia-Miranda argues there was no
    evidence in the record he was involved in the actual importation of the
    methamphetamine, and he could not have reasonably foreseen that the drugs
    were imported from Mexico, citing the Guidelines provision concerning
    “relevant conduct.” U.S.S.G. § 1B1.3(a)(1)(B)(iii).
    These arguments do not overcome that the Section 2D1.1(b)(5)
    “sentencing enhancement applies if the offense involved the importation of
    amphetamine or methamphetamine regardless of whether the defendant had
    knowledge of that importation.”             Serfass, 684 F.3d at 552.            Further,
    “distribution   (or    possession    with      intent   to   distribute)    of   imported
    methamphetamine, even without more, may subject a defendant to the Section
    2D1.1(b)(5) enhancement . . . . Because the methamphetamine [the defendant]
    possessed was imported from Mexico, the enhancement was properly applied.”
    United States v. Foulks, 
    747 F.3d 914
    , 915 (5th Cir. 2014).
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    We conclude that regardless of what Garcia-Miranda knew, or what he
    could have foreseen, the fact that the methamphetamine here was imported
    means that we affirm the two-level importation enhancement.
    AFFIRMED.
    10
    

Document Info

Docket Number: 18-40391

Filed Date: 7/5/2019

Precedential Status: Non-Precedential

Modified Date: 7/5/2019