United States v. Garcia, 10th Cir. (2008)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS
June 12, 2008
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 07-1163
(D. Colorado)
BENITO GARCIA,
(D.C. No. 05-cr-00404-REB-5)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in
the determination of this appeal. See F ED . R. A P P . P. 34(a)(2); 10 TH C IR . R.
34.1(G). The case is therefore ordered submitted without oral argument.
Benito Garcia appeals the district courts sentence imposed for his
jury conviction for a drug conspiracy conviction. He argues that the district
court did not make particularized findings as to (1) the scope of the criminal
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
activity he agreed to undertake regarding the conspiracy, and (2) the total
amount of drugs involved that were foreseeable to him. Reviewing for plain
error, we affirm Mr. Garcias sentence.
I. BACKGROUND
Mr. Garcia became the focus of a Boulder County (Colorado) Drug
Task Force investigation that initially centered on Donald Jason Skinner in
May 2004. Mr. Skinner was identified as the leader of a drug distribution
organization (hereinafter SDO), and the purpose of the investigation,
which involved fifteen to twenty local law enforcement officers and
eventually a number of DEA agents, was to observe Mr. Skinner in order to
identify his associates and the source of the drugs.
In the course of the investigation, the officers obtained Mr. Skinners
cell phone records and conducted extensive surveillance of the SDO through
various methods, including the use of global positioning tracking devices
installed on Skinners vehicles. An undercover detective, Janet Aguirre,
was eventually able to make seven controlled purchases of drugs from the
SDO between May 10 and July 19, 2005. In addition, two bags containing
methamphetamine were found hidden under the hood of one of Mr. Skinners
cars on May 24, 2005. On September 7, 2005, the investigators executed an
arrest warrant for Mr. Skinner and search warrants for locations used by the
SDO for drug distribution activities.
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Mr. Skinner decided to cooperate with the investigation and supplied

information about the source of his drugs, his associates in the SDO. He
also initiated monitored contacts with other SDO participants and suppliers.
Mr. Skinner identified Mr. Garcia as a delivery person for the drugs
supplied by Santiago Mena-Flores, nicknamed Chago. Mr. Skinner stated
he met with Mr. Garcia at least fifty times. Other witnesses also described
Mr. Garcia as a delivery person for Chago. A jury convicted Mr. Garcia
of conspiracy to possess with the intent to distribute more than fifty grams
of methamphetamine (actual); more than 500 grams of a mixture and
substance containing a detectable amount of methamphetamine, a quantity
of a mixture and substance containing a detectable amount of cocaine and a
quantity of a mixture and substance containing a detectable amount of
marijuana, in violation of 21 U.S.C. 846, 841(a)(1), (b)(1)(A), (b)(1)(C)
and (b)(1)(D); and 18 U.S.C. 2.
The government filed a sentencing statement claiming that the
conspiracy involved the distribution of more than 15 kilograms of
methamphetamine, establishing a starting base offense level of 38 as
provided by U.S.S.G. 2D1.1(c)(1). The defendants sentencing statement
urged that a better view of the evidence established a drug quantity at 12
kilograms, based on the total quantity estimated by the government in plea
agreements with Mr. Garcias codefendants. Mr. Garcia also pointed out that
-3-
no independent evidence supported the trial testimony quantity estimates of

his coconspirators that the total quantity of methamphetamine exceeded 15
kilograms over the course of the conspiracy. According to Mr. Garcia, the
resulting base offense level would be 36 pursuant to U.S.S.G. 2D1.1(c)(2).
In the presentence report (PSR), the probation officer urged the
adoption of the governments position. Mr. Garcia filed three objections to
the PSR, arguing that (1) for the reasons proffered in his sentencing
statement, the base offense level should be 36, not 38; (2) he should receive a
mitigating role adjustment under U.S.S.G. 3B1.2; and (3) he should receive
a safety-valve reduction under U.S.S.G. 5C1.2.
The parties agreed that Mr. Garcias mitigating role in the offense
justified a two-level downward adjustment pursuant to U.S.S.G. 3B1.2.
The parties and the probation officer also agreed that Mr. Garcia qualified
for safety valve relief pursuant to U.S.S.G. 5C1.2. These provisions
triggered additional decreases under U.S.S.G. 2D1.1(a)(3) and (b)(11) to
the offense level. The application of these decreases resulted in a total
offense level of 30 under the governments version and 29 under the
defendants version. The resulting imprisonment ranges were 97 to 121
months imprisonment under the governments position or 87 to 108 months
imprisonment under Mr. Garcias analysis.
The district court resolved this dispute at the sentencing hearing in
-4-
favor of the governments position. The court then imposed an imprisonment

term of 97 months.
II. DISCUSSION
Mr. Garcia challenges the district courts lack of particularized
findings as to the scope of the conspiracy and as to the amount of the
contraband underlying the imposition of a 97-month sentence. Mr. Garcia
maintains that the trial evidence did not establish when he joined the
conspiracy, how often he made deliveries, or the quantities involved in each
delivery. Because the district court made no findings as to the extent and
scope of his role in the conspiracy, or as to the total amount of drugs
involved that were foreseeable to him, he argues that his sentence is
unreasonable.
A. Standard of Review
Our appellate review of Mr. Garcias sentence includes both a
procedural component, encompassing the method by which a sentence was
calculated, as well as a substantive component, which relates to the length of
the resulting sentence. United States v. Smart, 518 F.3d 800, 803 (10th Cir.
2008). Here, Mr. Garcia challenges only the procedural reasonableness of
his sentence, which requires, among other things, a properly calculated
Guidelines range. United States v. Saavedra, 523 F.3d 1287, 1289 (10th
Cir. 2008). See United States v. Ellis, 525 F.3d 960, 964 (10th Cir. 2008)
-5-
(A sentence is procedurally unreasonable if the court failed to calculate (or

improperly calculated) the Guidelines range, treated the Guidelines as
mandatory, failed to consider the 3553(a) factors, selected a sentence based
on clearly erroneous facts, or failed to adequately explain the chosen
sentence.) (internal alterations and quotations omitted). In determining
whether the district court correctly calculated the recommended Guidelines
range through application of the Guidelines, we review de novo the district
courts legal conclusions and any factual findings for clear error, giving due
deference to the district court's application of the Guidelines to the facts.
United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006).
Mr. Garcia argues that because he sought a lower sentence before the
district court, he preserved his objection to the calculus used by the district
court, and therefore, we review for harmless error. The government
acknowledges that Mr. Garcia asked the district court to hold him
accountable for only 12 kilograms of contraband, rather than 15 kilograms.
In so doing, Mr. Garcia pointed to the testimony of certain co-conspirators
who pleaded guilty and whose relevant offense conduct was established by
the plea agreement at 12 kilograms. The district court rejected this request
and adopted the PSRs recommendation that the offense involved the
distribution of more than 15 kilograms of methamphetamine. Mr. Garcia
lodged no further objection to the district courts calculations.
-6-
As the government observes:

[Mr. Garcia] did not assert below the argument that he now asserts
to this Court: that, in calculating the advisory guideline range, the
district court failed to adequately explain its determination of
Defendants relevant offense conduct by making detailed and
particularized findings about the scope of [Mr. Garcia]s
agreement with the other conspirators and the foreseeability of the
magnitude of the criminal activity of the others. Aplt. Brf. at 6,
7-8. [Mr. Garcia] therefore failed to raise, and thereby preserve for
review, the claim that he now brings before this Court for the first
time, and this Court may notice [Mr. Garcia]s new claim, if at all,
only under the stringent plain error standard.
Aples Br. at 16. Under the plain error standard, [this court] will not review
the district courts factual findings relating to sentencing, but will review for
particularly egregious or obvious and substantial legal error . . . . United
States v. Heredia-Cruz, 328 F.3d 1283, 1288 (10th Cir. 2003) (quoting
United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994)); see F ED . R.
C RIM . P. 52(b) (A plain error that affects substantial rights may be
considered even though it was not brought to the courts attention.)
B. Analysis
We hold that Mr. Garcia cannot demonstrate that the district courts
sentencing methodology rises to the level of an error that was particularly
egregious or obvious and substantial. Heredia-Cruz, 328 F.3d at 1288
(internal quotation marks omitted). Furthermore, to the extent Mr. Garcia
argues that the district court clearly erred in its determination of drug
quantity because it relied on either the testimony of co-conspirators or
-7-
because the government did not corroborate the estimates his co-conspirators
provided, there is ample evidence in the record to support the reasonableness
of the district courts sentence and sentencing procedure. Mr. Garcia
concedes that he was responsible for the distribution of 12 kilograms of
methamphetamine. As the government points out, Mr. Garcia was a runner
for Chago and met with Mr. Skinner more than fifty times to deliver drugs
and collect payment for previously delivered drugs. Mr. Skinner paid Chago
thousands of dollars for the previously delivered methamphetamine and
cocaine. He was involved in frequent and ongoing delivery of large
quantities of drugs for the SDO. Because the district court found the
testimony of the testifying co-conspirators to be credible, and thus it
committed no error when it found Mr. Garcia responsible for 15 kilograms of
methamphetamine.
III. CONCLUSION
Accordingly, because the district courts failure to make particularized
findings did not amount to plain error in this case, we AFFIRM Mr. Garcias
sentence.
Entered for the Court,
Robert H. Henry
Chief Circuit Judge
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

June 12, 2008

UNITED STATES OF AMERICA,

(D.C. No. 05-cr-00404-REB-5)

ORDER AND JUDGMENT *

Before HENRY, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.

Mr. Skinner decided to cooperate with the investigation and supplied

no independent evidence supported the trial testimony quantity estimates of

favor of the governments position. The court then imposed an imprisonment

(A sentence is procedurally unreasonable if the court failed to calculate (or

As the government observes:

Entered for the Court,

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