Filed: Feb. 19, 2010
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4404 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN NOYOLA GARCIA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00079-FDW-7) Submitted: January 29, 2010 Decided: February 19, 2010 Before MICHAEL, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Mauro Barreiro, LAW O
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4404 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN NOYOLA GARCIA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00079-FDW-7) Submitted: January 29, 2010 Decided: February 19, 2010 Before MICHAEL, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Mauro Barreiro, LAW OF..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4404
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUBEN NOYOLA GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00079-FDW-7)
Submitted: January 29, 2010 Decided: February 19, 2010
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mauro Barreiro, LAW OFFICE OF MAURO BARREIRO, Edinburg, Texas,
for Appellant. Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ruben Noyola Garcia was convicted by a jury of
conspiracy to possess with intent to distribute at least 100
kilograms of marijuana, 21 U.S.C.A. §§ 846, 841(b)(1)(B) (West
1999 & Supp. 2009) (Count One), and possession of at least 100
kilograms of marijuana with intent to distribute, 21 U.S.C.A.
§ 841(a), (b)(1)(B), 18 U.S.C. § 2 (2006). Garcia challenges
his conviction and sentence. We affirm.
The government’s evidence at trial established that in
January 2007 a tractor-trailer truck was stopped in Mississippi
because it lacked a visible Department of Transportation number.
Inspection revealed that it contained rotting fruit and $1.2
million in cash in several suitcases. The driver, Benito
Delagarza, cooperated and made two recorded telephone calls to
his boss, Ruben Barraza, who was listed on documents in the
truck’s cab as the owner of the trucking company. Barraza
agreed to send money so that Delagarza could return to Texas and
said he did not know “how much” was in the truck, but that
Delagarza should get a receipt for it. Delagarza later recorded
two conversations with Garcia in Texas, during which they
discussed preparations for two more trips using a blue truck and
transporting 2000 “pesos” to Charlotte, North Carolina. Drug
Enforcement Administration (DEA) Agent Hurst, who helped conduct
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the investigation in Texas, testified that the defendants used
the term “pesos” to mean pounds.
On March 19, 2007, Delagarza recorded audio and video
tape of a truck being loaded at a warehouse leased by Barraza.
The lights in the warehouse were dimmed while packages were
loaded first, then the lights were turned back on and a forklift
was used to fill the truck with pallets of produce. Garcia,
Ruben Barraza, Edgar Barraza, and co-defendant Juan Garza were
present, with Barraza operating the forklift.
Federal agents kept the truck under surveillance and
unloaded produce and more than 2000 pounds of marijuana from the
truck shortly afterward. The marijuana was flown to North
Carolina. Delagarza drove the truck to Charlotte, where the
agents reloaded the marijuana onto the truck. Delagarza called
Barraza on March 22, 2007, and was told to go to a warehouse
leased to co-defendant Patrick Schwenke. After the marijuana
was unloaded by Schwenke, Juan Sanchez-Solorzano, and others,
they were arrested, as was co-defendant Sharu Bey, who arrived
to buy marijuana. On the same day, Garcia and Garza sent a
moneygram to Delagarza.
In April and at the end of May 2007, Delagarza drove
loads of marijuana to Indianapolis, Indiana, and to Durham,
North Carolina, as directed by Barraza and Garcia. Ruben
Barraza and Garcia were arrested in June 2007. Edgar Barraza
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became a fugitive. Garcia, Barraza, and Bey went to trial and
were convicted on all counts. Garza, Schwenke, Sanchez-
Solorzano, and two other co-defendants entered guilty pleas;
however, only Sanchez-Solorzano testified at the trial.
Delagarza was expected to testify, but disappeared shortly
before the trial began.
Before trial, the government moved to admit tape
recordings of the monitored conversations between Delagarza and
defendants Barraza and Garcia. The district court granted the
motion, finding that the defendants’ inability to cross-examine
Delagarza did not violate the Confrontation Clause because the
recorded conversations were among co-conspirators. The court
held that Delagarza’s statements were not hearsay because they
were not offered for “the truth of the matter asserted,” Fed. R.
Evid. 801, but to provide a context for the defendant’s
statements. The government requested a limiting instruction, to
which the court agreed.
During the trial, Garcia and Barraza expressed
frustration at Delagarza’s absence. Garcia’s attorney asked DEA
Agent Patina, who was in charge of the Charlotte investigation,
if he knew where Delagarza was, although Barraza’s attorney did
not agree that the question should be asked. Patina said he did
not know. At the close of the government’s evidence, Garcia’s
attorney informed the court that he intended to request a
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missing witness instruction; later, he decided not to do so.
Garcia did point out in his closing argument that neither
Delagarza nor Schwenke had testified.
In sentencing Garcia, the district court held him
responsible for over 4000 kilograms of marijuana, resulting in a
base offense level of 34, U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(3) (2007), as recommended in the presentence report.
The court decided that Garcia had a managerial or supervisory
role, USSG § 3B1.1(b), rather than a leadership role, a
determination with which defense counsel agreed. The court
determined that a gun found in Garcia’s desk at his body shop
next to a telephone used for calls to co-conspirators warranted
an enhancement under USSG § 2D1.1(b)(1). Garcia’s offense level
was 38. He was in criminal history category I, which gave him
an advisory guideline range of 262-327 months. The district
court sentenced him to a term of 280 months.
On appeal, Garcia first challenges the
manager/supervisor role adjustment. Because he did not contest
the district court’s decision at sentencing, our review is for
plain error. United States v. Olano, 507 U.S. 725, 732-37
(1993). Garcia contends that the district court failed to
analyze the factors set out in Application Note 3 to § 3B1.1 as
significant to the determination of a defendant’s role. He
further argues that the trial evidence was ambiguous as to his
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role in the conspiracy and showed only Barraza in a leadership
position. However, the audio and videotapes recorded Garcia
speaking authoritatively with Delagarza about future shipments,
as well as participating in sending money to Delagarza after the
Charlotte delivery. Both Delagarza and Garza described Garcia
as “involved” with all the known shipments. Garza said Garcia
directed and organized shipments and had paid him for his work
on one shipment. With this evidence before it, the district
court did not plainly err in finding that Garcia had a
managerial or supervisory position in the conspiracy.
Garcia next contests the weapon enhancement. A two-
level increase is authorized under § 2D1.1(b)(1) if the
defendant possessed a dangerous weapon during the offense.
Application Note 3 to § 2D1.1 explains that the enhancement
“should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the
offense.” The district court’s factual finding that Garcia
possessed a dangerous weapon during the offense is reviewed for
clear error. United States v. McAllister, 272 F.3d 228, 234
(4th Cir. 2001). The government “need only show that the weapon
was present during the relevant illegal drug activity.”
Id.
Pertinent factors the court may consider are the type of weapon
and its location. United States v. Manigan, ___ F.3d ___,
2010
WL 298031, at *5-6 (4th Cir. Jan. 26, 2010). Courts have noted
6
that drug dealers are more likely to use handguns than long
guns. Id. at *5. Also, the accessibility of firearms during
drug activities is a relevant factor.
Id. at *6.
Here, Patina testified at Garcia’s sentencing that the
DEA agents in Texas learned that meetings relating to the
conspiracy were held in Garcia’s body shop. This information
was corroborated by Garza. The gun was found in Garcia’s desk
next to a phone used for calls related to the conspiracy.
Garcia argues that the district court clearly erred in relying
on Patina’s testimony rather than his own assertion that he had
found the gun in a vehicle being worked on in the body shop. He
points out that the gun was not mentioned in trial testimony and
that Patina did not specify how many meetings there were, who
was present, or what was discussed. He also maintains that
Garza was an unreliable source of information because, when he
first began to cooperate, he did not admit the full extent of
his participation in the conspiracy. However, we conclude that
the district court did not clearly err in rejecting Garcia’s
assertion that the gun’s presence in his desk was accidental and
finding that it was not clearly improbable that the gun was
connected to the conspiracy.
Garcia next contends that the district court
considered unreliable and unsubstantiated evidence to find him
responsible for 4790.45 kilograms of marijuana and concedes only
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that he was properly held responsible for the marijuana shipped
to Charlotte, which was slightly less than 1000 kilograms. We
review the district court’s calculation of the quantity of drugs
attributable to a defendant for sentencing purposes for clear
error. United States v. Randall, 171 F.3d 195, 210 (4th Cir.
1999). “A defendant’s base offense level under the Guidelines
for drug conspiracy cases is determined by the amount of drugs
“reasonably foreseeable to him within the scope of his unlawful
agreement.” United States v. Lamarr,
75 F.3d 964, 972 (4th Cir.
1996). The government must establish the quantity of drugs
attributable to a defendant by a preponderance of the evidence
and may do so through the introduction of relevant and reliable
evidence. United States v. Jones,
31 F.3d 1304, 1316 (4th Cir.
1994). “Where there is no drug seizure or the amount seized
does not reflect the scale of the offense, the court shall
approximate the quantity of the controlled substance. USSG
§ 2D1.1, cmt. n.12. “The district court is afforded broad
discretion as to what information to credit in making its
calculations.” United States v. Cook,
76 F.3d 596, 604 (4th
Cir. 1996) (internal quotation marks omitted). “A district
court may properly convert cash amounts linked credibly to the
defendant’s purchase or sale of narcotics” as long as the court
does not double count the proceeds and the drugs, and “[d]irect
or hearsay testimony of lay witnesses . . . can provide
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sufficiently reliable evidence of quantity.” United States v.
Sampson, 140 F.3d 585, 592 (4th Cir. 1998) (internal citations
omitted).
Garcia contends that only Delagarza connected him to
the $1.2 million seized in Mississippi (1869.69 kilograms of
marijuana equivalent) and that Delagarza was not a credible
source of information. However, Delagarza’s phone call to
Barraza established Barraza’s connection to the money when
Barraza encouraged Delagarza to get a receipt for it, and
Delagarza’s subsequent recorded conversation with Garcia and
videotape of Garcia and Barraza loading marijuana together
established the conspiratorial relationship between Garcia and
Barraza. Thus, Delagarza’s claim that Garcia was also involved
with the shipments to Indianapolis (616.44 kilograms) and Durham
(861.84 kilograms) was not incredible. Garza said Garcia paid
him $1000 for his assistance with one of those shipments.
Further, Garcia’s involvement with the Durham delivery was
corroborated by Garza. Garcia argues that Patina’s statement
that $300 per pound was the price for marijuana in Texas was
speculative. However, Garcia did not inquire about the source
of Patina’s information during his cross-examination of Patina.
Finally, Garcia argues that no evidence connected him
to the 453.6 kilograms of marijuana derived from ledgers or logs
of prior drug transactions seized from Schwenke’s warehouse in
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Charlotte. While this claim appears to have some merit,
reducing the total quantity attributed to Garcia by 453.6
kilograms leaves a total of 4336.85 kilograms, well within the
range of 3000-10,000 kilograms for base offense level 34. Thus,
any error in attributing the 453.6 kilograms to Garcia did not
affect his sentence. We conclude that credible evidence of
Garcia’s direct involvement with at least 3000 kilograms of
marijuana was presented to the district court, and its
determination that Garcia was responsible for that amount was
not clearly erroneous.
Garcia also asserts that the evidence was insufficient
to support the jury’s guilty verdict. A jury conviction in a
criminal case must be sustained if there is substantial
evidence, taking the view most favorable to the government, to
support it. United States v. Cameron, 573 F.3d 179, 183 (4th
Cir. 2009) (internal quotation and citation omitted).
Substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.
Id. The reviewing court must consider circumstantial as well as
direct evidence and allow the government the benefit of all
reasonable inferences from the facts proven to those sought to
be established.
Id.
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Garcia argues that all of his activities and
conversations that were in evidence at trial were consistent
with legitimate, non-criminal business and social conduct.
However, the verdict was supported by Garcia’s presence with
Barraza at the warehouse when the truck was loaded with
marijuana, his recorded conversations with Delagarza about
future deliveries (even though marijuana was not overtly
discussed), and his presence with Garza when money was wired to
Delagarza after the marijuana was delivered in Charlotte. This
evidence was sufficient to permit the inference that Garcia was
conspiring with Barraza, Delagarza, and others to traffic in
marijuana. Therefore, this issue is without merit.
Last, Garcia claims that his attorney was ineffective
at trial in failing to move for an acquittal at the close of the
government’s case and at the close of all evidence. He also
argues that his attorney was ineffective at sentencing in
conceding that an adjustment for a manager or supervisor role
was appropriate. Claims of ineffective assistance of counsel
are generally not cognizable on direct appeal. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant must bring his
claim in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion. See
id.; United States v. Hoyle,
33 F.3d 415, 418 (4th Cir. 1994).
An exception exists when the record conclusively establishes
11
ineffective assistance. United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999);
King, 119 F.3d at 295.
Here, Garcia’s claim is in part factually incorrect
because his attorney did make a Rule 29 motion for acquittal at
the close of the government’s case and at the close of all
evidence. Further, the record does not establish conclusively
that his attorney was ineffective in conceding that a
manager/supervisor role adjustment should be applied.
Therefore, Garcia’s claim of ineffective assistance is not
cognizable in this appeal.
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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