UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 99-51091
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GILBERT GARCIA, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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February 15, 2001
Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT,* District
Judge.
SAMUEL B. KENT, District Judge:
Defendant Gilbert Garcia Jr. appeals his conviction and
sentence for conspiracy to possess with intent to distribute a
*
District Judge of the Southern District of Texas, sitting
by designation.
quantity of marijuana and aiding and abetting the possession with
the intent to distribute a quantity of marijuana. He argues: (1)
that the evidence was insufficient to sustain his conviction for
aiding and abetting, (2) that the District Court erred in denying
his requested downward adjustment for minor participation in the
offense, and (3) that under the recent decision of the United
States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the issue of drug quantity
should have been included in the indictment and charged to the
jury. For the reasons stated below, we affirm his conviction, but
vacate his sentence and remand for resentencing.
I. BACKGROUND
Defendant Gilbert Garcia Jr. was indicted for conspiracy to
possess with an intent to distribute marijuana in violation of 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (Count One) and aiding and
abetting the possession of marijuana with an intent to distribute
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts
Three and Six). The Government filed notice that it sought a
penalty enhancement under 21 U.S.C. § 841(b)(1)(A) for offenses
involving more than 1000 kilograms of marijuana.
The evidence at trial showed that Defendant allowed his truck
maintenance facility to be used to store marijuana for a Mexican
drug distribution operation headed by Omar Rubio. The organization
smuggled marijuana from Mexico to San Antonio, Texas where it was
2
stored pending further distribution. Tractor-trailers loaded with
marijuana were stored at Garcia’s facility on at least five
occasions. Although Garcia was present at the first delivery, he
was not present at subsequent deliveries. Garcia gave a key to the
property to one of the members of the drug distribution operation,
Rene Montes-Salinas, with instructions that he be notified of
further deliveries. Count One of the indictment concerns the first
delivery, which took place on September 24, 1998. Count Three of
the indictment concerns an October 4, 1998 delivery, and Count Six
concerns deliveries on November 5, 1998 and November 6, 1998.
Garcia was paid between $3,000 and $5,000 for each shipment. The
five shipments allegedly totaled more than 5,600 pounds of
marijuana.
A jury found the Defendant guilty on all three counts of the
indictment. Because the presentence report (“PSR”) indicated that
Garcia’s offenses involved more than 1,000 but less than 3,000
kilograms of marijuana, Garcia was assigned a base level of 32. See
U.S.S.G. § 2D1.1(c)(4). The PSR recommended that Garcia receive a
two-level downward adjustment in his offense level because he met
the requirements of § 2D1.1(b)(6).1 The total offense level of 30
combined with Garcia’s criminal history category of I, resulted in
a Sentencing Guideline range of 97-121 months imprisonment.
1
This provision gives a defendant a two-level reduction if
he meets the requirements of § 5C1.2, the “safety valve”
provision discussed infra note 2.
3
Because the offenses involved more than 1,000 kilograms of
marijuana, Garcia was subject to a mandatory minimum sentence of
ten years imprisonment followed by five years supervised release.
See 21 U.S.C. § 841(b)(1)(A). Because Garcia qualified under the
“safety valve” provision of § 5C1.2,2 however, the PSR recommended
that Garcia be sentenced without regard to the mandatory minimum.
Garcia objected to the PSR on the grounds that, among other
things: (1) he was entitled to a two-level downward adjustment in
his offense pursuant to § 3B1.2(b) because he played a minor role
in the offense of which he was convicted, (2) the PSR incorrectly
determined the quantity of drugs involved in his offense, and (3)
the drug quantity determination should have been submitted to a
jury.
At sentencing, the District Judge determined that Garcia
qualified under the “safety valve” provision of § 5C1.2 to be
sentenced without regard to the statutory minimum sentence set
forth in § 841(b)(1)(A). Garcia was thus sentenced to 97 months
imprisonment followed by five years supervised release for each of
the counts of which he was convicted, to run concurrently. He was
2
The “safety valve” allows a defendant to avoid a mandatory
minimum if he meets certain conditions, which stated loosely are:
(1) not having more than 1 criminal history point, (2) not using
violence or the credible threats of violence or possessing a
dangerous weapon in connection with the offense, (3) not causing
death or serious bodily injury, (4) not being an organizer,
leader, or supervisor and not engaging in a continuing criminal
enterprise, and (5) cooperating fully with the Government.
4
also required to pay a $300 special assessment. The District Judge
overruled the remaining objections. Defendant timely appealed.
II. ANALYSIS
A. Sufficiency of the Evidence
Defendant argues that his aiding and abetting conviction
concerning the incident on or about October 4, 1998 (Count Three)
is unsupported by the evidence. He contends that the Government
failed to prove: (1) that he committed an overt act designed to aid
in the success of the venture, (2) that the substance alleged to
have been distributed was in fact marijuana, or (3) how much
marijuana, if any, was involved. Garcia filed a motion for a
judgment of acquittal challenging the sufficiency of the
Government’s evidence at the close of the Government’s case-in-
chief and at the end of all evidence. The District Judge denied
both motions.
We review the denial of a motion for a judgment of acquittal
de novo. See United States v. Greer, 137 F.3d 247, 249 (5th Cir),
cert denied, 524 U.S. 920 (1998). In doing so, we must consider
whether “a rational trier of fact could have found that the
evidence established the essential elements of the crime beyond a
reasonable doubt.” United States v. Davis, 226 F.3d 346, 354 (5th
Cir. 2000). The Court considers “the evidence, all reasonable
inferences drawn therefrom, and all credibility determinations in
5
the light most favorable to the prosecution.” United States v.
Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Our role does not extend
to weighing the evidence or assessing the credibility of witnesses.
See id.
To convict a defendant for possession of marijuana with intent
to distribute, the Government must prove that the defendant (1)
knowingly; (2) possessed marijuana; (3) with the intent to
distribute. See id. To prove that a defendant aided and abetted
in the possession of marijuana with intent to distribute, the
Government must prove that the elements of the substantive offense
occurred and that the defendant associated with the criminal
venture, purposefully participated in the criminal activity, and
sought by his actions to make the venture succeed. See 18 U.S.C.
§ 2; United States v. Delagarza-Villarreal, 141 F.3d 133, 140 (5th
Cir. 1997). “Associate” means that the defendant shares in the
principal’s criminal intent. United States v. Jaramillo, 42 F.3d
920, 923 (5th Cir. 1995). “Participate” means that the defendant
engages in some affirmative conduct designed to aid the venture or
assists the perpetrator of the crime. Id. A Defendant “need not
have actual or constructive possession of the drugs to be guilty of
aiding and abetting possession with intent to distribute.” United
States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993).
Defendant’s first argument is that as to the October 4, 1998
offense, the record does not contain evidence that he actively
6
participated in furthering the criminal activity. The evidence at
trial established that Defendant: (1) was informed of the delivery
to his property and suggested that it be done at night, (2) was
also informed when the truck arrived, and (3) was informed the next
day when the drivers left his lot.
Defendant claims that the only evidence of affirmative conduct
on this occasion was his suggestion that the unloading take place
at night.3 This evidence, standing alone, Defendant argues, is
insufficient to support his aiding and abetting conviction.
Defendant also argues that his previous act of giving the key to
his property cannot be considered as evidence here because such
only aided a general scheme of possession of marijuana, not the
specific offense on October 4, 1998. See United States v. Lombardi,
138 F.3d 559, 561 (5th Cir. 1998)(holding that the Government must
show that Defendant aided and abetted the specific crime, not just
the overall scheme).
We conclude, however, that Defendant’s assent on this occasion
3
A party to a continuing conspiracy may be criminally
liable for a substantive offense committed by a co-conspirator in
furtherance of the conspiracy, even though the party does not
participate in the substantive offense, or have any knowledge of
it. See Pinkerton v. United States, 328 U.S. 640, 647, 66 S. Ct.
1180, 1183, 90 L. Ed. 1489 (1946); United States v. Acosta, 763
F.2d 671, 681 (5th Cir. 1985). However, a jury must be given an
instruction under this theory, a so-called Pinkerton instruction,
to be so convicted. See United States v. Pierce, 893 F.2d. 669,
676 (5th Cir. 1990); United States v. Basey, 816 F.2d 980, 999
(5th Cir. 1987). As Defendant points out, the jury was not given
this Pinkerton instruction. Thus, his aiding and abetting
conviction cannot rest on a conspiracy theory.
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to the use of his property for the storage of marijuana constitutes
the requisite affirmative conduct to support his aiding and
abetting conviction. Defendant did not have to physically appear
on his property to be guilty of the offense. Just as the mere
presence at the scene of the crime is not sufficient, by itself, to
support aiding and abetting liability,4 mere absence from the scene
does not, by itself, negate such liability. See Collins v. United
States, 65 F.2d 545, 547 (5th Cir. 1933).
Defendant’s second argument is that the Government’s evidence
did not establish that the substance stored on his property on
October 4, 1998 was in fact marijuana. Defendant notes that no
witness testified that they saw marijuana. The Government’s
witness was not at the property on the day in question, and the
surveillance officers did not see the contents of the shipment.
The Government responds, however, that there is substantial
evidence that the shipment was marijuana. This evidence includes
testimony that: (1) the other participants were seeking a place
“where marijuana could be unloaded,” (2) Defendant agreed to use
his property specifically for the unloading of marijuana, (3) on a
previous occasion, Defendant was present at the time of delivery to
verify that the substance was marijuana, (4) Defendant would have
been paid considerably more to store a harder drug, such as
4
See United States v. Williams, 341 U.S. 58, 64 n.4, 71 S.
Ct. 595, 599, 95 L. Ed. 747 (1951); Williams, 485 F.2d at 753.
8
cocaine. From this testimony, a jury could reasonably have
inferred that the substance unloaded on October 4, 1998, for which
Defendant was paid thousands of dollars to store, was in fact
marijuana, and not Tootsie Rolls.
Defendant’s final argument is that the Government failed to
prove the quantity of marijuana. The Government was not required,
however, to prove drug quantity to sustain a conviction under §
841. See 21 U.S.C. § 841(a). Drug quantity is relevant only to
Defendant’s Apprendi argument, discussed infra.
Because the evidence was sufficient to convict Defendant of
aiding and abetting the possession of marijuana with the intent to
distribute, we affirm his conviction and sentence for the October
4, 1998 offense.
B. Adjustment for Minor Participation
Defendant argues that he should have received a two-level
downward adjustment under the Sentencing Guidelines for being a
minor participant in criminal activity. See U.S.S.G § 3B1.2(b).
The Guidelines’ commentary defines “minor participant” as “any
participant who is less culpable than most other participants but
whose role could not be described as minimal.” U.S.S.G. § 3B1.2,
cmt. n.3. The commentary also indicates that to qualify, the
Defendant must be “substantially less culpable.” See U.S.S.G. §
3B1.2, cmt. background. A defendant has the burden of showing that
9
he is entitled to the downward adjustment. See United States v.
Marmolejo, 106 F.3d 1213, 1217 (5th Cir. 1997). Minor participation
is a “sophisticated factual determination,” to be made by the
sentencing judge. United States v. Gallegos, 868 F.2d 711, 713 (5th
Cir. 1989). The determination is to be made in light of all
relevant conduct (“all conduct within the scope of § 1B1.3
(Relevant Conduct)”), “not solely on the basis of elements and acts
cited in the count of conviction.” See U.S.S.G. ch.3, pt. B,
introductory comment. The sentencing judge must “articulate the
factual basis for the finding that [defendant] was an average
participant.” See United States v. Melton, 930 F.2d 1096, 1099 (5th
Cir. 1991). But see Gallegos, 868 F.2d at 713 (“[A] simple
statement that Defendant was not a ‘minor participant’ will
suffice”). We review a judge’s finding in this regard under a
clearly erroneous standard. See United States v. Morrow, 177 F.3d
272, 304-5 (5th Cir.), cert. denied, 528 U.S. 932 (1999).
Initially, Defendant disputes that he must be “substantially
less culpable” to qualify as a minor participant. He argues that
the commentary defines “minor participant” simply as “less
culpable” and that the commentary is binding on the sentencing
court. See United States v. Stinson, 508 U.S. 36, 38, 113 S. Ct.
1913, 1915, 123 L. Ed. 2d 598 (1993)(“[C]ommentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
10
of, that guideline.”). The Guidelines’ commentary, however, uses
the phrase “substantially less culpable.” See U.S.S.G § 3B1.2.
cmt. background. Moreover, our decisions, both before and after
the Supreme Court clarified in Stinson that the commentary is
binding, have held that a defendant must be “substantially less
culpable than the average participant” to qualify as a minor
participant. United States v. Brown, 54 F.3d 234, 241 (5th Cir.
1995); see also United States v. Thomas, 963 F.2d 63, 65 (5th Cir.
1992); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.
1988).
Defendant argues that he was simply a small cog in a large
wheel. The organization for which he provided services, Defendant
notes, was a far-flung drug operation based in Mexico with
approximately one hundred participants, operating since the late
1980s in several states including Texas, Arkansas, and Florida, and
reputed to smuggle a ton of marijuana and cocaine across the Texas
border per week. In comparison to the scope of the operation,
Defendant argues, his role was minor. Defendant objected on these
grounds to the PSR which recommended against the downward
adjustment. The sentencing Judge overruled the objection, stating
that Defendant “supplied a place for these drugs to be housed and
stored when they were brought from Mexico, unloaded and transported
to other destinations.”
Section 3B1.2 does not contemplate that the participation
level is to be evaluated in reference to the entire criminal
11
enterprise of which Defendant is a part. See United States v.
Burnett, 66 F.3d 137, 140 (7th Cir. 1995)(“3B1.2 does not ask
whether the defendant was minor in relation to the organization .
. . it asks . . . whether he was minor . . . in relation to the
conduct for which he was has been held accountable.”). Instead,
section 3B1.2 asks whether a defendant’s involvement is comparable
to that of an “average participant.” Buenrostro, 868 F.2d at 138.
Defendant allowed his property to be used as a stash house. He was
present for the first delivery and was kept abreast of subsequent
deliveries. One of the Government’s witnesses testified that the
organization could not function without Defendant’s “shop.”
Furthermore, Defendant was paid for each delivery. Most
importantly, however, Defendant was not held responsible for the
entire criminal history of the drug organization. Rather, his
sentence was based on conduct in which he was directly involved,
namely drug storage on his property. As such, his role was not
minor, but actually coextensive with the conduct for which he was
held accountable. See Marmolejo, 106 F.3d at 1217 (holding that
because only the drugs defendant actually transported were
attributed to him in calculating his sentence, he was not a minor
participant in relation to the offense); United States v. Atanda,
60 F.3d 196, 199 (5th Cir. 1995)(“[W]hen a sentence is based on an
activity in which a defendant was actually involved, § 3B1.2 does
not require a reduction in the base offense level even though the
defendant’s activity in a larger conspiracy may have been minor or
12
minimal.”). We conclude, therefore, that the District Judge’s
finding that Defendant was not a minor participant was not clearly
erroneous.
C. Drug Quantity and Apprendi
At oral argument, the parties were in agreement as to the
effect of the recent decision of the United States Supreme Court in
Apprendi on this case: Defendant’s term of supervised release
should be reduced from five years to three years. We agree, but
hold that under the facts of this case Apprendi also requires that
Defendant’s term of imprisonment be reduced from 97 months to no
more than 60 months.5
Under Apprendi, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. at —, 120 S. Ct. at
2362-3. We recently held in United States v. Doggett, that when
5
Defendant did not challenge his prison sentence in his
Apprendi argument either in his brief or at oral argument.
Although an argument not raised on appeal is ordinarily deemed
abandoned or waived, the Court may consider it on its own accord
when manifest injustice would otherwise occur. United States v.
Quiroz, 22 F.3d 489, 490-91 (2nd Cir. 1994); cf. United States
v. Winn, 948 F.2d 145, 157 (5th Cir. 1991)(holding that in the
absence of manifest injustice, the Court will not consider
arguments raised for the first time in appellant’s reply brief).
It would be manifestly unjust under the circumstances to ignore
the clear-cut, mechanical application of Apprendi to Defendant’s
prison sentence simply because Defendant did not ask for all the
relief to which he was entitled.
13
the Government seeks enhanced penalties based on the amount of
drugs under either § 841(b)(1)(A) or (B), drug quantity is an
element of the offense that must be submitted to a jury under
Apprendi. See United States v. Doggett, 230 F.3d 160, 164-65 (5th
Cir. 2000). Doggett clarifies, however, that when a defendant’s
sentence does not exceed the statutory maximum authorized by the
jury’s findings, Apprendi does not affect the sentence. See id. at
165; United States v. Meshack, 225 F.3d 556, 575-76 (5th Cir. 2000),
cert. denied, 121 S. Ct. 834 (2001).
In the case before us, drug quantity was neither stated in the
indictment nor charged to the jury. Defendant challenged his
sentence on these grounds at the sentencing hearing. Thus, he has
adequately preserved error, and the issue is before us on de novo
review. See Doggett, 230 F.3d at 165. Although Defendant was
sentenced without regard to the penalty enhancement that the
Government sought under 21 U.S.C. § 841(b)(1)(A), his sentence
nevertheless exceeded the statutory maximum authorized by the
jury’s findings. Without a jury determination of drug quantity,
the default sentencing provision for a marijuana conviction is
provided by § 841(b)(1)(D).5 See United States v. Salazar-Flores,
5
§ 841(b)(1)(D) governs convictions involving less than 50
kilograms of marijuana. Sentencing Defendant beyond the maximum
provided by § 841(b)(1)(D) necessarily attributes 50 kilograms or
more of marijuana to Defendant and hence runs afoul of Apprendi.
Doggett employed § 841(b)(1)(C) as the default, but the case
involved methamphetamine to which § 841(b)(1)(D) does not apply.
See Doggett, 230 F.3d at 162.
14
2001 WL 25691, * 2 (5th Cir. Jan. 25, 2001); United States v.
Nicholson, 231 F.3d 445, 454 (8th Cir. 2000); United States v.
Rogers, 228 F.3d 1318, 1327 n.15 (11th Cir. 2000); United States v.
Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). Under § 841(b)(1)(D),
the maximum prison sentence for a person without a prior conviction
for a felony drug offense is five years (60 months). Defendant’s
prison sentence of 97 months exceeds this maximum, and accordingly
must be reduced to no more than 60 months.
Defendant’s term of supervised release must likewise be
reduced, as discussed in oral argument. Section 841(b)(1)(D) does
not itself provide a maximum for the term of supervised release.
See 21 U.S.C. § 841(b)(1)(D) (stating that the term of supervised
release should be at least two years). Nonetheless, unless §
841(b)(1)(A) or (B) applies, the maximum term of supervised release
for a marijuana offense under § 841 is three years for persons
without a prior felony drug conviction. See 18 U.S.C. § 3583(b)(2)
(providing that “except as otherwise provided” the maximum term of
supervised release for a Class C or D felony is three years);
U.S.S.G. § 5D1.2(a)(2); United States v. Kelly, 974 F.2d 22, 24 (5th
Cir. 1992)(noting that the proper term of supervised release under
§ 841(b)(1)(D) is two to three years). Although § 841(b)(1)(A)
mandates a minimum term of five years supervised release, the
safety valve provision should have prevented this mandatory minimum
from being imposed. See U.S.S.G. §5D1.2, cmt. n.1; United States
v. Hendricks, 171 F.3d 1184, 1186 (8th Cir. 1999). In addition,
15
because § 841(b)(1)(A) imposes, on the basis of drug quantity, a
term of supervised release greater than the statutory maximum of
three years, under Apprendi the issue of drug quantity would have
to have been determined by the jury for this enhancement to be
applied. See Doggett, 230 F.3d at 165 n.2 (modifying a term of
supervised release because it exceeded the statutory maximum of
three years). Accordingly, Defendant’s term of supervised release
must be reduced from five years to no more than three years.
III. CONCLUSION
For the reasons stated above, we AFFIRM Defendant’s
conviction, but VACATE his sentence and REMAND the case to the
District Court for resentencing consistent with this opinion.
16