United States v. Garcia

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 6, 2011
No. 10-13237 JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 0:09-cr-60245-WPD-5

UNITED STATES OF AMERICA,

lllllllllllllllllllll Plaintiff-Appellee,

versus

RENE FERNANDEZ GARCIA,

lllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(July 6, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:

Rene Fernandez Garcia appeals his conviction and sentence for being a

felon in possession of a firearm, 18 U.S.C. § 922(g)(1). On appeal, Garcia argues
that the district court erred in denying his motion to suppress evidence seized

during a warrantless search of his vehicle. He also contends that the district court

clearly erred by denying his request for a minor-role reduction under U.S.S.G.

§ 3B1.2(b). For the reasons stated below, we affirm.

I.

A grand jury returned an indictment charging Garcia with: (1) conspiracy to

obstruct interstate commerce by means of robbery, in violation of 18 U.S.C.

§ 1951(a); (2) conspiracy to possess with intent to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. § 846; (3) attempt to possess with

intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C.

§ 846; (4) conspiracy to use and carry firearms during and in relation to a crime of

violence and drug trafficking crime, in violation of 18 U.S.C. § 924(o); (5) using

and carrying firearms during and in relation to a crime of violence and drug

trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; and (6) being a

felon in possession of a firearm, in violation of 18 U.S.C.§§ 922(g)(1) and 2

(Count Six). Amaury Hernandez, Lazaro Riveras, Jose Veitia, Pablo

Arrechavaleta, Jorge Herrera, and Garcia’s brother, Rafael Fernandez Garcia, also

were charged in the superseding indictment.

Garcia moved to suppress evidence seized during a warrantless search of his

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Hummer H2 vehicle. At the suppression hearing, Special Agent James VanVliet

of the Bureau of Alcohol, Tobacco, and Firearms testified that Hernandez and

Riveras met with an undercover officer. The officer was posing as a disgruntled

drug courier who was seeking to have his employer’s stash house robbed.

Hernandez and Riveras indicated that their robbery crew would enter the stash

house dressed as law enforcement officers and armed with guns.

On September 10, 2009, the date on which the robbery was to occur,

Herandez met with the government’s confidential informant (“CI”) in Miami

Lakes. He entered the CI’s vehicle, and the two men started driving westbound on

the Miramar Pakway. They pulled over on the shoulder of the road to wait for the

other conspirators. Eventually, three other vehicles arrived at the scene: a white

Chevrolet Impala, a red Hummer H2, and a white Ford F350 pickup truck. A

detective conducting surveillance observed Garcia driving the Hummer. All four

vehicles proceeded northbound on I-75 to the Sawgrass Expressway and then

exited onto Commercial Boulevard.

The CI’s vehicle and the Impala pulled into a Mobil gas station where the

conspirators were supposed to meet with the CI, while the Hummer and the Ford

F350 parked across from the Mobil station in a CVS parking lot. Aerial

surveillance showed two men standing outside the Hummer. Eventually, those

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men got into the Ford F350 and traveled a quarter of a mile down the street to a

Sunoco gas station. The CI’s vehicle and the Impala followed the undercover

detective to a warehouse. Hernandez, the CI, and the undercover detective entered

the warehouse, while Riveras, Veitia, and Arrechavaleta remained outside in the

Impala. Hernandez called Garcia and told him, “So the Hummer can park over

there with those things, you copy me?” The agents interpreted this to be a

reference to the firearms and the tools that were to be used in the robbery.

Hernandez, Arrechavaleta, Riveras and Veitia were arrested at the warehouse, and

Garcia, his brother Rafael Garcia, and Herrera were arrested inside the Ford F350

that was parked at the Sunoco gas station. Agents did not discover any firearms

on the defendants’ persons or inside the Chevrolet Impala or the Ford F350, but

they did find the keys to the Hummer in the Ford F350. The agents then searched

the Hummer and discovered a Beretta pistol, a shotgun, and police paraphernalia.

The district court determined that the search of the Hummer was lawful

under the automobile exception to the Fourth Amendment’s warrant requirement

because the agents had probable cause to believe that the weapons for the robbery

would be found in that vehicle. Accordingly, the district court denied Garcia’s

motion to suppress.

At trial, Hernandez testified regarding Garcia’s role in the conspiracy. He

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explained that Rafael Garcia, Arrechavaleta, and Herrera were to enter the stash

house first dressed as law enforcement officers. Riveras would then enter the

house armed with the shotgun, accompanied by Veitia, who would be carrying the

Beretta pistol. Garcia’s job was to supply the Beretta pistol and to transport the

firearms and various police items to the staging area for the robbery. The other

conspirators wanted Garcia to take the weapons to avoid any connection to them

in the event that police stopped them. During the robbery Garcia was to wait

outside the stash house in the Hummer in case he was needed. Garcia would not

receive an equal share of the cocaine because he was not going to actively

participate in the robbery. Instead, he would receive some money or cocaine from

each of the other conspirators. The jury convicted Garcia with respect to Count

Six, the felon in possession charge, but acquitted him of the other charges against

him.

At sentencing, Garcia requested a minor-role reduction under U.S.S.G.

§ 3B1.2(b). He observed that his role in the robbery was limited to transporting

some of the firearms and equipment that would be used to commit the crime. He

also noted that he was going to be paid less than any of his co-conspirators.

The district court denied Garcia’s request for a minor-role reduction. The

court observed that Garcia transported the guns to be used in the robbery, used a

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walkie-talkie, and also planned to conduct surveillance during the robbery. The

district court concluded that these were “instrumental aspects” of the planned drug

robbery. The court determined that Garcia had an offense level of 26 and a

guideline range of 70 to 87 months’ imprisonment. The district court sentenced

Garcia to the upper end of that range, 87 months’ imprisonment.

II.

A district court’s denial of a motion to suppress presents a mixed question

of law and fact. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).

We review the district court’s legal rulings de novo and its findings of fact for

clear error. Id. Under the automobile exception, police may conduct a

warrantless search of a vehicle if: “(1) the vehicle is readily mobile; and (2) the

police have probable cause for the search.” Id. at 1293. The mobility requirement

is satisfied whenever the vehicle to be searched is operational. United States v.

Watts, 329 F.3d 1282, 1286 (11th Cir. 2003). A functioning vehicle is considered

to be “mobile” even if it already has been secured by the police. See Michigan v.

Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080-81, 73 L.Ed.2d 750 (1982)

(explaining that officers may conduct a warrantless search of an automobile even

after the vehicle is impounded and in police custody); United States v. Birdsong,

982 F.2d 481, 483 (11th Cir. 1993) (holding that automobile exception applied

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even though the defendant already had been taken into custody and the police

were in possession of his car keys). Police have probable cause to search a vehicle

“‘when under the totality of the circumstances, there is a fair probability that

contraband or evidence of a crime will be found in the vehicle.’” Lindsey, 482

F.3d at 1293 (quoting United States v. Tamari, 454 F.3d 1259, 1264 (11th Cir.

2006)).

In this case, the district court correctly concluded that the Hummer was

readily mobile. The Hummer plainly was operational because law enforcement

officers observed Garcia driving it shortly before his arrest. Garcia observes that

the officers had already arrested him and had taken possession of the keys to the

Hummer, but those facts do not show that the vehicle was not operational. The

mobility requirement focuses on whether the vehicle is capable of functioning, not

whether it is likely to move in the near future. See Thomas, 458 U.S. at 261, 102

S.Ct. at 3080-81; Birdsong, 982 F.2d at 483.

The agents also had probable cause to search the Hummer. Hernandez told

the undercover officer that the robbery crew would enter the stash house dressed

as police and armed with guns. On the day planned for the robbery, law

enforcement officers observed Garcia following Hernandez’s vehicle in the

Hummer. Later, Hernandez called Garcia and made a reference to “those things”

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in the Hummer. When the conspirators were placed under arrest, the agents did

not find any weapons on their persons or in the other vehicles associated with the

conspiracy. Thus, the officers had probable cause to believe that the weapons for

the robbery would be found in the Hummer. See Lindsey, 482 F.3d at 1293. We

conclude that the district court properly denied Garcia’s motion to suppress.

III.

A district court’s determination of a defendant’s role in the offense is

reviewed for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc). The party seeking the adjustment bears the burden of

establishing its applicability by a preponderance of the evidence. Id. at 939.

Under the Sentencing Guidelines, a defendant’s offense level is to be reduced by

two levels if the defendant was only a “minor participant” in the criminal activity.

U.S.S.G. § 3B1.2(b). A minor participant is one “who is less culpable than most

other participants, but whose role could not be described as minimal.” U.S.S.G.

§ 3B1.2, comment. (n.5). In determining whether to award a minor-role

adjustment, the district court should consider two principles: “first, the defendant’s

role in the relevant conduct for which [he] has been held accountable at

sentencing, and, second, [his] role as compared to that of other participants in [his]

relevant conduct.” De Varon, 175 F.3d at 940.

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 Here, Garcia did not play a minor role in the robbery conspiracy. Although

Garcia was not to enter the stash house himself, he supplied the Beretta pistol that

was to be used to commit the robbery. He also transported the Beretta and the

shotgun to a staging area for the robbery, along with police paraphernalia that his

co-conspirators were to wear during the robbery. Given these facts, the district

court appropriately concluded that Garcia was involved in “instrumental aspects”

of the conspiracy.

Under the second prong of De Varon, it appears that Garcia’s role in the

offense was somewhat less serious than that of his co-conspirators, as he was not

to enter the stash house himself and was to be paid less than the other conspirators.

Nevertheless, Garcia still played an integral role in the conspiracy because he

supplied one firearm and transported the shotgun and other tools that were to be

used in the robbery. In light of the evidence presented at trial, the district court

did not clearly err by denying Garcia’s request for a minor-role reduction.

Accordingly, we affirm.

AFFIRMED.

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