United States v. Sisk

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4567
ROBERT LIONEL SISK,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4609
VENTURA GARCIA, a/k/a Chili,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4697
ESTEBAN GARCIA, SR., a/k/a Esteban
Garcia-Olvera,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-01-52)

Argued: October 31, 2003

Decided: February 12, 2004
2 UNITED STATES v. SISK
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Aaron Edmund Michel, Charlotte, North Carolina; Rich-
ard Dwight Biggs, LAW OFFICE OF MARCIA G. SHEIN, P.C.,
Decatur, Georgia, for Appellants. Thomas Richard Ascik, Assistant
United States Attorney, Asheville, North Carolina, for Appellee. ON
BRIEF: Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN,
P.C., Decatur, Georgia, for Appellant Sisk; Stanford K. Clontz,
STANFORD K. CLONTZ, P.A., Asheville, North Carolina, for
Appellant Ventura Garcia. Robert J. Conrad, Jr., United States Attor-
ney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Esteban Garcia, Sr., Ventura Garcia, and Robert Sisk were charged
and convicted under 21 U.S.C. §§ 841 and 846, which make it unlaw-
ful to conspire to possess with intent to distribute five kilograms or
more of cocaine or fifty grams or more of methamphetamine.
Because the jury was instructed that it had to find the threshold
amounts of both cocaine and methamphetamine, and the evidence
only supported a finding of a threshold amount of methamphetamine,
the defendants argue that their convictions must be reversed. We dis-
agree because the statutory offense for which the defendants were
charged only requires proof of a threshold amount of one of the enu-
 UNITED STATES v. SISK 3
merated drugs. We also reject other challenges by the defendants to
their convictions and sentences. The convictions and sentences are
therefore affirmed.

I.

This appeal arises out of an indictment that charged fourteen per-
sons with conspiracy to possess with intent to distribute at least five
kilograms of cocaine and at least fifty grams of methamphetamine in
violation of 21 U.S.C. §§ 841 and 846. Ten of those charged pled
guilty, and one was convicted at a separate trial. The three defendants
in this appeal, Esteban Garcia, Sr. (Esteban), Ventura "Chili" Garcia
(Ventura), and Robert Sisk, were tried together.

The indictment alleged that the three defendants were part of a
drug distribution conspiracy that operated in western North Carolina
from around 1990 until 2000. Defendant Esteban Garcia owned and
operated CNS Video, a known center of drug distribution activity, and
undercover officers began visiting the store to purchase drugs. The
officers made some purchases directly from Esteban and other pur-
chases from Esteban’s nephew, Antonio. Officers also purchased
drugs from Esteban at his home. During one transaction Esteban told
an undercover officer that he had fronted large quantities of drugs to
two persons and that his supplier was going to kill them if they did
not pay what was due.

Several of the coconspirators who had pled guilty testified for the
government at trial. Tony Branch testified that his associate, Ricky
Moore, had purchased five ounces of methamphetamine from Esteban
at CNS Video. Branch also testified that he had purchased metham-
phetamine from Esteban on approximately 100 occasions in amounts
ranging from three to ten ounces. On some of those occasions, Branch
saw defendant Ventura Garcia, who was Esteban’s brother, at CNS
Video. Finally, Branch said that he had purchased methamphetamine
from defendant Robert Sisk.

Randy Hodge testified that he had seen Regina Thompson pick up
two ounces of methamphetamine from Esteban Garcia at CNS Video.
Hodge also recounted several other occasions when he or Thompson
had obtained methamphetamine or cocaine from Esteban. Finally,
4 UNITED STATES v. SISK
Hodge said that he had been approached by Ventura Garcia, whom
he referred to as "Chili," about a drug debt he (Hodge) owed to Este-
ban. J.A. 216. During that encounter, Ventura mentioned repeatedly
that Thompson owed Esteban large amounts of money and that "they"
were going to kill her if she did not pay her debts. J.A. 217-18.

Ricky Moore testified that he had purchased cocaine and metham-
phetamine from defendant Robert Sisk on multiple occasions. Moore
had also seen Sisk purchase methamphetamine from a drug distributor
named Tom Smith. During one such purchase, Sisk became angry
over the price that Smith was charging for methamphetamine. Sisk
said, "I know that you’re getting it at the same place that I get mine.
I know it’s the same Mexicans." J.A. 472. Sisk also indicated that he
was getting his drugs from "the video store." J.A. 472. On another
occasion, Sisk told a second witness that he was getting his drugs
from "the Mexicans," specifically mentioning "Chili" (Ventura Gar-
cia). J.A. 479.

Several additional witnesses testified that they had purchased drugs
from or had seen drugs in the possession of Esteban, Ventura, or Sisk.
For example, James Heffernan purchased methamphetamine from
Sisk once or twice a week and saw "large amounts" of methamphet-
amine and cocaine at Sisk’s residence. J.A. 380-81. Bradley Mace
bought "half an ounce to an ounce" of methamphetamine from Ven-
tura Garcia on six to twelve occasions. J.A. 182-83. Jimmy Robinson
saw Ventura with a package of methamphetamine "probably the size
of a bible." J.A. 461. Larry Patterson bought an ounce of metham-
phetamine from Sisk each month for a period of two years and was
asked by Ventura to help distribute drugs. During a visit to Esteban
Garcia’s residence, Tony Branch saw a chunk of methamphetamine
the size of a "country ham." J.A. 330.

A number of witnesses saw the defendants sell or possess large
quantities of methamphetamine. The total of the weights the witnesses
attributed to the various methamphetamine sales comfortably
exceeded the fifty-gram threshold charged in the indictment. There
was considerably less evidence about cocaine quantities. There was
specific testimony about the purchase or possession of about 1500
grams of cocaine, some 3500 grams less than the five kilograms
charged in the indictment. To make up the additional 3500 grams of
 UNITED STATES v. SISK 5
cocaine, the government relied on the testimony of four witnesses
who made general references to cocaine quantity. James Heffernan
testified that he had seen defendant Sisk in possession of different
amounts of cocaine, "sometimes large, sometimes small," J.A. 381;
Eric Heffernan, the brother of James, purchased "some cocaine" from
Sisk and recalled seeing "quantities of [cocaine and methamphet-
amine] . . . ounces and stuff . . . [packaged] in sandwich bags," J.A.
418, 420; Kaythe McCurry saw Sisk with "pockets full of [metham-
phetamine and cocaine]," J.A. 408-09; finally, Jimmy Robinson testi-
fied that he had done "maybe a little cocaine" with Esteban Garcia.
J.A. 458.

The jury found Esteban, Ventura, and Sisk guilty after a two-day
trial. The defendants appeal their convictions and sentences. They
claim that (1) there was insufficient evidence to prove that the con-
spiracy involved five kilograms of cocaine; (2) there was insufficient
evidence to prove a single conspiracy; (3) the district court erred in
joining the three defendants for trial; and (4) the district court erred
in its conspiracy instructions to the jury. Each defendant has also
appealed his individual sentence. Robert Sisk appeals the district
court’s determination of the drug quantity used to set his base offense
level and the court’s refusal to grant a downward departure. Ventura
Garcia appeals a two-level enhancement for possession of a danger-
ous weapon, and Esteban Garcia appeals a three-level enhancement
for his role in the offense. Esteban further claims that he was denied
effective assistance of counsel.

II.

A.

The district court erroneously charged the jury that the government
had to prove the conspiracy involved at least five kilograms of
cocaine and at least fifty grams of methamphetamine. The evidence
easily supports a finding that the conspiracy involved at least fifty
grams of methamphetamine. The defendants claim on appeal, how-
ever, that their convictions must be reversed because there was insuf-
ficient evidence to support the jury’s finding that the conspiracy
involved at least five kilograms of cocaine. As the factual statement
in part I reveals, the evidence does not support a finding of five kilo-
6 UNITED STATES v. SISK
grams of cocaine, but that does not translate into a reversal of the con-
victions. An examination of the crime charged in this case leads us
to conclude that the government was only required to prove that the
conspiracy involved five kilograms of cocaine or fifty grams of
methamphetamine.

The defendants were indicted and convicted under provisions that
forbid any person from conspiring to possess with intent to distribute
five kilograms or more of cocaine or fifty grams or more of metham-
phetamine. See 21 U.S.C. § 841(a), (b); 21 U.S.C. § 846. The substan-
tive provision, § 841, is worded in the disjunctive, but when, as here,
a defendant is charged with possession with intent to distribute more
than one illegal substance, the indictment must charge in the conjunc-
tive to fully inform him of the acts charged. See, e.g., United States
v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001); see also United
States v. Klein, 850 F.2d 404, 406 (8th Cir. 1988). Accordingly, the
indictment here charged the defendants with conspiring to possess
with intent to distribute at least five kilograms of cocaine and at least
fifty grams of methamphetamine. As the Supreme Court has said,
"when a jury returns a guilty verdict on an indictment charging sev-
eral acts in the conjunctive . . . the verdict stands if the evidence is
sufficient with respect to any one of the acts charged." Turner v.
United States, 396 U.S. 398, 420 (1970). See also United States v.
Champion, 387 F.2d 561, 563 n.6 (4th Cir. 1967). Normally, then, the
sufficiency of the evidence as to methamphetamine quantity would
support the convictions, notwithstanding the insufficiency of the evi-
dence as to cocaine quantity.

However, the defendants contend that in this case the quantity of
cocaine charged became an essential element of the crime as a result
of an erroneous jury instruction. The district court instructed the jury
that in order to convict the defendants, it had to find that the conspir-
acy involved five kilograms of cocaine and fifty grams of metham-
phetamine. According to the defendants, this erroneous instruction
became the "law of the case" because the government did not lodge
an objection. See, e.g., United States v. Romero, 136 F.3d 1268, 1272
(10th Cir. 1998). Regardless of how this argument might be dealt with
in certain other jurisdictions, our circuit precedent requires us, when
reviewing the sufficiency of the evidence, to "compare the Govern-
ment’s evidence against the elements of the charged offense." United
 UNITED STATES v. SISK 7
States v. Alvarez, 351 F.3d 126, 130 (4th Cir. 2003). See also United
States v. Mackins, 32 F.3d 134, 138 (4th Cir. 1994). The statutory
offense charged requires a drug quantity and type element of either
five kilograms of cocaine or fifty grams of methamphetamine. The
indictment had to charge both drugs, but the guilty verdict stands if
there is sufficient evidence to find either drug in the right quantity.
Thus, because the methamphetamine quantity is sufficient, the argu-
ment about insufficient cocaine quantity is moot.

B.

The defendants further contend that there was insufficient evidence
to support a finding that they were involved in a single conspiracy.
A single drug conspiracy exists when there is an agreement to engage
in one overall venture to deal in drugs. United States v. Bowens, 224
F.3d 302, 307 (4th Cir. 2000). In order to prove a conspiracy to pos-
sess drugs with the intent to distribute, the government must establish
that: (1) an agreement to possess with intent to distribute existed
between two or more persons; (2) the defendant knew of the conspir-
acy; and (3) the defendant knowingly and voluntarily became a part
of the conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996). Once it has been shown that a conspiracy exists, the evidence
need only establish a "slight connection" between the defendant and
the conspiracy to support conviction. Id. at 861. Thus, a defendant
may "properly be convicted of conspiracy without full knowledge of
all of [the conspiracy’s] details, but if he joins the conspiracy with an
understanding of the unlawful nature thereof and willfully joins in the
plan on one occasion, it is sufficient to convict him of conspiracy,
even though he had not participated before and even though he played
only a minor part." Id. at 858.

The evidence was sufficient to establish that the defendants were
part of a single conspiracy to distribute drugs. Esteban Garcia owned
and operated CNS Video store. Various witnesses, including two
undercover police officers, purchased drugs at that location from both
Esteban and Antonio Garcia. During some of those purchases, Ven-
tura Garcia was present at the video store. Esteban and Ventura also
sold significant amounts of drugs out of their homes. One witness saw
Esteban in possession of a chunk of methamphetamine the size of a
"country ham," while another witness recounted how Ventura wanted
8 UNITED STATES v. SISK
the witness "to buy for him and sell for him." J.A. 330, 258. Ventura
collected drug debts for Esteban, and several persons owed Esteban
large sums for drugs that the Garcias had supplied on credit. On one
occasion, Esteban went to Ventura’s home and handed him a "wad of
money." J.A. 463. Taken together, these facts were sufficient for a
jury to conclude that Esteban and Ventura were involved in a single
conspiracy involving the distribution of drugs. The evidence, while
perhaps not as direct, was also sufficient to establish that Robert Sisk
was a part of the same (single) drug conspiracy. At least six witnesses
purchased methamphetamine from Sisk. Robert Moore heard Sisk
acknowledge that he was getting his drugs from "the Mexicans" "at
the video store." Sisk told another witness that he was getting his
drugs from the "Mexicans," specifically mentioning "Chili," who was
Ventura Garcia. Based on this evidence, a jury could reasonably con-
clude that the Garcias and Sisk were sufficiently linked "by their
mutual interest in [supplying] . . . a particular drug consumption mar-
ket" to be a part of the same drug conspiracy. See Burgos, 94 F.3d at
858.

C.

The defendants raise two further issues related to their convictions.
First, the defendants claim that they were improperly joined for trial.
Ordinarily, "defendants who have been charged in the same conspir-
acy indictment should be tried together. The party moving for sever-
ance must establish that prejudice would result from a joint trial, not
merely that separate trials would result in a better chance of acquit-
tal." United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992).
The defendants claim that they should not have been tried together
because "the Government joined multiple alleged drug conspiracies in
a one conspiracy count and argued that a single connection among the
defendants was sufficient to make this one conspiracy." Appellants’
Br. at 45. However, as we just concluded, there was sufficient evi-
dence for a jury to find that the defendants were involved in a single
conspiracy. This means that their claim of improper joinder is merit-
less.

Second, the defendants claim that the district court improperly
required the jury to consider whether a conspiracy existed before it
considered the drug quantity element of the conspiracy charge. We do
 UNITED STATES v. SISK 9
not believe that the instruction, considered as a whole, delinked the
drug quantity issue from the conspiracy issue. We review jury instruc-
tions to insure that they "fairly state the controlling law." United
States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990). Reversal is
required "only if the error [in instruction] is determined to have been
prejudicial, based on review of the record as a whole." Sturges v. Mat-
thews, 53 F.3d 659, 661 (4th Cir. 1995).

The district court initially instructed the jury that drug quantity was
an essential element of the conspiracy charge that must be established
beyond a reasonable doubt. The verdict form, however, indicated that
the jury should consider the question of drug quantity only after it
concluded that a conspiracy had been established. After jury delibera-
tions began, the jury asked the district court to reiterate the essential
elements of the crime. In response the court listed the elements of the
conspiracy charge, noting that drug quantity was an element of the
crime that must be proved beyond a reasonable doubt. The court con-
tinued, "you must find also — beyond a reasonable doubt — that the
conspiracy involved at least five kilograms of cocaine [and] . . . at
least fifty grams of methamphetamine." J.A. 614.

The defendants claim that the verdict form, by directing the jury to
consider drug quantity only after it had determined whether a conspir-
acy existed, "totally relieved the jury of considering quantity as an
element of the offense." Appellants’ Br. at 30. We disagree. On every
occasion when the district court instructed the jury, it made clear that
the government was required to prove drug quantity beyond a reason-
able doubt. Although the verdict form directed the jury to determine
whether a conspiracy existed before reaching the question of drug
quantity, the form did not relieve the jury of finding drug quantity
beyond a reasonable doubt. In essence, then, the verdict form simply
led the jury to consider certain elements of the charged offense before
considering drug quantity. We conclude that there was no prejudicial
error in the instructions.

III.

The defendants raise several challenges to the district court’s calcu-
lation of their individual sentences. We review a district court’s legal
interpretation of the Sentencing Guidelines de novo and its factual
10 UNITED STATES v. SISK
findings in sentencing for clear error. United States v. Daughtrey, 874
F.2d 213, 217-18 (4th Cir. 1989).

A.

Defendant Sisk argues that the district court committed two errors
in computing his sentence. First, Sisk claims that the court improperly
calculated the quantity of drugs attributable to him. Second, Sisk
claims that, by refusing to grant a downward departure, the court
committed reversible error because his criminal history category over-
stated the seriousness of his prior crimes. We reject each claim.

A district court’s "approximation of the amount of drugs is not
clearly erroneous if supported by competent evidence in the record."
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). When
objecting to drug quantities, "the defendant has an affirmative duty to
show that the information [relied on by the court] is inaccurate or
unreliable." United States v. Carter, 300 F.3d 415, 425 (4th Cir.
2002). At the prosecution’s urging, the district court attributed one-
and-a-half to five kilograms of methamphetamine to Sisk. This
amount was considerably lower than the presentence report’s recom-
mendation of "15 kilograms or more of methamphetamine, 25 kilo-
grams or more of cocaine, and a large quantity of marijuana." S.A. 9.
There was trial testimony showing that Sisk was responsible for at
least one-and-a-half kilograms of methamphetamine, but Sisk argues
that the district court should have discounted this testimony because
it was "uncorroborated" and imprecise as to actual drug quantity.
Appellants’ Br. at 34-36. There is no authority for the proposition that
testimony establishing drug quantity for sentencing purposes must be
corroborated or precise. See, e.g., United States v. Love, 134 F.3d 595,
607 (4th Cir. 1998) (district court may rely on uncorroborated hearsay
in determining drug quantity); United States v. Uwaeme, 975 F.2d
1016, 1019 (4th Cir. 1992)(precise calculations of drug quantity not
required). Here, the methamphetamine quantity attributed to Sisk by
the district court was conservative and was supported by competent
evidence in the record.

Sisk also claims that because his criminal history category over-
stated the seriousness of his prior crimes, the district court erred in
rejecting his request for a downward departure. We may review a dis-
 UNITED STATES v. SISK 11
trict court’s refusal to depart downward "only when the district court
was under the mistaken impression that it lacked the authority to
depart." United States v. Carr, 303 F.3d 539, 545 (4th Cir. 2002)(cita-
tions omitted). At the sentencing hearing the district judge specifically
stated that "in my discretion, I denied the request for a downward
departure in this case." J.A. 653-54. The statement demonstrates that
the district court was aware of its authority and was not laboring
under any mistaken understanding of the law. Accordingly, we may
not review the decision denying Sisk’s request for a downward depar-
ture.

B.

Ventura Garcia challenges the district court’s imposition of a two-
level sentence enhancement for possession of a firearm. See U.S.S.G.
§ 2D1.1(b)(1)(2002). When firearms are found in "the proximity of
narcotics," a § 2D1.1(b)(1) enhancement is generally warranted.
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). The
enhancement "should be applied [under 2D1.1(b)(1)] if the weapon
was present, unless it is clearly improbable that the weapon was con-
nected with the offense." U.S.S.G. § 2D1.1, cmt. n.3. Ventura’s pre-
sentence report stated that "Randy Hodge indicated in statements to
agents that [Ventura] carried a derringer type pistol. A .38 caliber
Derringer pistol and an Enfield rifle were located at [Ventura’s] resi-
dence during a search . . . along with methamphetamine and cocaine."
J.A. 725.

Ventura argues that the enhancement was improper because the
presentence report was based entirely on hearsay. However, "there is
no bar to the use of hearsay in sentencing . . . [when] the defendant
has had an opportunity to rebut or explain," and Ventura had that
opportunity here. United States v. Love, 134 F.3d 595, 607 (4th Cir.
1998)(citations omitted). Ventura further argues that he should not
have received the enhancement because the district court refused to
enhance Esteban Garcia’s sentence even though officers found fire-
arms at Esteban’s home. Ventura overlooks the fact that when officers
searched Esteban’s home they found firearms but no drugs, indicating
that, unlike Ventura’s case, Esteban’s firearms were not located
within the vicinity of drugs. Even assuming for the sake of argument
that Esteban should have received an adjustment for firearms posses-
12 UNITED STATES v. SISK
sion, Ventura may not challenge his sentence on that ground. A sen-
tencing enhancement "is mandatory . . . in the event the defendant
engaged in conduct that is encompassed by a guideline providing for
an enhancement." United States v. Ashers, 968 F.2d 411, 414 (4th Cir.
1992). Esteban’s sentence does not alter the fact that Ventura engaged
in conduct that mandates the firearms enhancement in his own case.
Ventura’s firearms enhancement is therefore affirmed.

C.

Esteban Garcia challenges the three-level enhancement imposed
for his role in the offense. The Guidelines provide for this enhance-
ment when "the defendant was a manager or supervisor and the crimi-
nal activity included five or more participants." U.S.S.G. § 3B1.1(b).
A district court considers the following factors in deciding whether to
apply the enhancement:

the exercise of decision making authority, the nature of par-
ticipation 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, the nature and scope of the illegal
activity, and the degree of control and authority exercised
over others.

U.S.S.G. § 3B1.1, cmt. n.4.

Esteban does not argue that the conspiracy involved fewer than five
participants. Rather, he argues that he was at most a buyer and a seller
of illegal drugs, not a manager or supervisor. The evidence estab-
lished that Esteban owned CNS Video, which was the hub of a drug
distribution ring. On one occasion at CNS Video, Antonio Garcia
fronted two ounces of methamphetamine to an undercover agent.
When the agent returned to the store to pay for the drugs, he found
Esteban but not Antonio. Esteban told the agent that the debt could
be paid to him (Esteban) because "it is [my] stuff anyway." J.A. 489.
Esteban said further that Tony had been handling it for him. In addi-
tion, Ventura Garcia collected drug debts for Esteban. Finally, Este-
ban fronted drugs to several coconspirators. Taken together, the
evidence established that Esteban controlled the drug distribution
 UNITED STATES v. SISK 13
operation. In sum, the evidence was sufficient to support the three-
level enhancement for Esteban Garcia’s role in the offense.

IV.

Finally, Esteban Garcia claims that he was denied effective assis-
tance of counsel. In this circuit "a claim of ineffective assistance of
counsel should be raised by a habeas corpus motion under 28 U.S.C.
§ 2255 in the district court and not on direct appeal, unless it conclu-
sively appears from the record that defense counsel did not provide
effective representation." United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999) (citations omitted). Because it does not conclu-
sively appear from the record that Esteban was denied the effective
assistance of counsel, we leave that issue for any collateral proceed-
ings.

V.

The defendants’ convictions and sentences are affirmed.

AFFIRMED