United States v. Alejandro Garcia-Lagunas

ON REHEARING

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4370

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12−cr−00376−F−1)

Argued: September 17, 2015 Decided: September 1, 2016

Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Diaz wrote the opinion, in which Judge Duncan
joined. Senior Judge Davis wrote a dissenting opinion.

ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

2
DIAZ, Circuit Judge:

A jury convicted Alejandro “Alex” Garcia-Lagunas of

conspiracy to distribute or possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a), 846. He was

sentenced to 188 months’ imprisonment. Garcia-Lagunas appealed

and we affirmed his conviction, finding that the government

committed nonconstitutional error by using ethnically charged

evidence to rebut Garcia-Lagunas’s assertion that he was too

poor to have dealt in large quantities of drugs, but that such

error was harmless. We also vacated his sentence, holding that

the district court’s miscalculation of Garcia-Lagunas’s

Guidelines range was plain error affecting his substantial

rights, and remanded for resentencing.

Garcia-Lagunas filed a petition for rehearing and rehearing

en banc. We granted Garcia-Lagunas’s petition for panel

rehearing, thus vacating our prior opinion and mooting the

petition for rehearing en banc. We directed briefing on whether

the evidentiary error, if assumed to be of constitutional

magnitude, was nonetheless harmless beyond a reasonable doubt.

We now again affirm Garcia-Lagunas’s conviction, vacate his

sentence, and remand for resentencing.

3
 I.

A.

On March 27, 2012, Ronnie Reed was arrested in

Fayetteville, North Carolina, on federal drug trafficking

charges. Reed told the arresting officers that he had a

“Mexican drug supplier” named “Alex” and led them to three

trailers in Robeson County—at 33 Sonoma, 47 Sonoma, and 294

Maple Leaf—where he said he had purchased drugs from “Alex.”

Reed also gave the officers four telephone numbers that he had

previously used to contact “Alex.”

The next day, the police executed search warrants on the

three trailers. They found Garcia-Lagunas’s parents at 33

Sonoma and ten one-kilogram wrappers, several with “white

powdery residue” on them, buried in a lean-to shed behind the

trailer at 47 Sonoma. J.A. 98. At 294 Maple Leaf, officers

found an older male with a small user amount of cocaine. During

earlier surveillance, officers had seen a car leave 294 Maple

Leaf and go to a trailer at 353 Westcott. As the search of the

three trailers had not turned up “Alex,” the officers decided to

try 353 Westcott. When they arrived, Detective Kurt Stein

observed Marco Hernandez exit the trailer from the back, and

Detective Pedro Orellano and Sergeant Gregory Johnson approached

him. Orellano confirmed with Hernandez that Hernandez lived at

the trailer and obtained his consent to search it.

4
 The officers found Garcia-Lagunas and Brian Jacobs inside

the trailer. Garcia-Lagunas had white powder under his nose and

appeared impaired. Garcia-Lagunas identified himself to the

officers as Alex. Both Garcia-Lagunas and Jacobs told the

officers that they did not live in the trailer. After Sergeant

Johnson asked him to empty his pockets, Garcia-Lagunas produced

$600 cash and a cell phone, which had his photograph as its

background image. When Detective Stein dialed one of the phone

numbers Reed had given the police for “Alex,” 1 Garcia-Lagunas’s

phone rang.

The officers then searched the trailer. In the kitchen,

they found a handgun and several small baggies. In one bedroom,

the officers found body armor; a large digital scale; a small

digital scale; a black plastic bag containing a vacuum-sealed

bag, which in turn contained about 800 grams of a white powdery

substance; and a small baggie of crack cocaine. The white

powder field-tested positive for cocaine, but later State Bureau

of Investigation (“SBI”) laboratory tests revealed that the

powder contained no controlled substance.

Analysis of Garcia-Lagunas’s phone’s records connected it

to several known drug dealers, including Reed, Jacobs, Thomas

1Brian Jacobs and Thomas Brewington, a drug dealer who
purchased cocaine from Garcia-Lagunas, also gave officers that
same phone number for “Alex.”

5
Brewington, Shaun Beard, and Reginald Clark. The records showed

that from February 9th to 23rd, 2012, there were 185 calls

between Garcia-Lagunas and Beard; 60 between Garcia-Lagunas and

Clark; 56 between Garcia-Lagunas and Jacobs; 56 between Garcia-

Lagunas and Reed; and 160 between Garcia-Lagunas and various

numbers with a 404 area code, which the government identified as

Atlanta, a “drug hub city.” J.A. 139. From February 13th to

21st, 2012, there were 37 calls between Garcia-Lagunas and the

landline at 294 Maple Leaf. From February 22nd to February

23rd, 2012, there were five calls between Garcia-Lagunas and

Brewington.

B.

A grand jury charged Garcia-Lagunas 2 with conspiring to

distribute or possess with the intent to distribute 500 grams of

cocaine, in violation of 21 U.S.C. §§ 841(a), 846, and

unlawfully reentering the United States after having previously

been deported, in violation of 8 U.S.C. § 1326(a). He pleaded

guilty to the unlawful reentry charge and proceeded to trial on

the conspiracy charge.

Before trial, the government gave notice of its intention

to call Detective Shawn Collins as an expert witness, stating

that he would “testify about drug trafficking investigations and

2 Garcia-Lagunas was indicted under the name Alex Fuentes.

6
methods utilized by drug traffickers to operate and protect

their drug business.” J.A. 32. Separately, the district court

agreed to provide Garcia-Lagunas with a Spanish interpreter for

the proceedings.

Collins was the government’s first witness, testifying both

as an expert and as a fact witness with respect to the

investigation and the searches. According to Collins, the white

powder found in the trailer could have field-tested positive for

cocaine and still have been found to contain no controlled

substance in SBI’s laboratory analysis if the cocaine had been

mixed with a sufficient amount of cutting agent such that “when

the lab sampled a small amount of that 800 grams of cocaine

there . . . wasn’t enough cocaine in it to even register with

the SBI or the instruments they were using.” J.A. 111.

Collins also told the jury that Garcia-Lagunas was “an

alien illegally in the United States.” J.A. 150. After the

prosecution asked Collins if he saw that Garcia-Lagunas was

being assisted by an interpreter in court, Collins responded

that his informants had not indicated that they had needed to

use Spanish in their dealings with Garcia-Lagunas. Moreover,

Collins testified that Garcia-Lagunas “appeared to be fluent in

English.” J.A. 151.

Four drug dealers—Reed, Jacobs, Brewington, and Antonio

Locklear—each testified pursuant to plea agreements to having

7
purchased cocaine from Garcia-Lagunas. Reed bought four to nine

ounces of cocaine from Garcia-Lagunas at the 47 Sonoma location

two times a week from October 2011 until Reed’s March 27, 2012

arrest, adding up to at least six kilograms, and separately

bought nine to twenty ounces of cocaine from Garcia-Lagunas at

the Maple Leaf location at least once a week from December 2011

until March 27, 2012, adding up to at least four additional

kilograms. Reed resold the drugs that he bought from Garcia-

Lagunas, and did not use them himself.

Jacobs had been buying drugs from Garcia-Lagunas for about

eight years, prior to which Jacobs had sold to Garcia-Lagunas.

On the day of Garcia-Lagunas’s arrest, Jacobs had given $600 to

Garcia-Lagunas for three-quarters of an ounce of cocaine.

Jacobs also testified that he had on over thirteen other

occasions bought from a quarter of an ounce to three-quarters of

an ounce of cocaine from Garcia-Lagunas.

According to Brewington, he bought cocaine from Garcia-

Lagunas only once, at 294 Maple Leaf, and he bought nine ounces

on that occasion. He discussed the amount of cocaine he could

resell with Garcia-Lagunas, in order to negotiate a better

price. Brewington noted that when he tried to redistribute the

cocaine, “one of [his] people that [he] gave it to was

complaining that it wouldn’t” cook properly. J.A. 363.

8
 Locklear began using Garcia-Lagunas as a source for drugs

around June of 2010. From then until March 2011, he bought

cocaine from Garcia-Lagunas about every other day, and he

purchased the drugs to resell them. On direct examination,

Locklear testified that he always bought at least nine ounces,

and never more than eighteen ounces, and estimated that he had

bought 29-30 kilograms total. However, on cross-examination,

Garcia-Lagunas impeached Locklear with a March 2011 statement to

law enforcement, in which he had apparently attributed only

three kilograms of cocaine to Garcia-Lagunas.

Reed, Jacobs, Brewington, and Locklear each testified that

they did not know the others, except that Reed knew of

Brewington, and all testified to having spoken English with

Garcia-Lagunas.

Hernandez, the owner of the trailer at 353 Westcott,

testified, also pursuant to a plea agreement, that Garcia-

Lagunas had been staying in the room in which the body armor and

scales had been found for about four weeks leading up to the

arrest, and that the armor and large scale belonged to Garcia-

Lagunas. 3 Hernandez also testified that while he had never seen

Garcia-Lagunas selling drugs, he had seen visitors, including

3
In their testimony, Detectives Collins and Orellano noted
that the room Hernandez attributed to Garcia-Lagunas looked as
if it had recently been moved into.

9
Jacobs, give Garcia-Lagunas money. He also saw Jacobs give

Garcia-Lagunas the gun that was found in the trailer. 4

Detective Orellano testified about his participation in the

searches and the evidence that he and Detective Stein found in

the 353 Westcott trailer. While cross-examining Orellano, the

defense elicited testimony regarding the squalid state of

Garcia-Lagunas’s living conditions, which supported Garcia-

Lagunas’s defense theory that he was a drug user but not a drug

dealer. On redirect, Orellano told the jury that he had

extensive experience investigating “Hispanic drug traffickers,”

and that “they’re very modest living” because “they send the

majority if not all of the proceeds back to their native

countries.” J.A. 270.

Defense counsel objected. Asked to explain the relevance

of Orellano’s testimony, the government said that it rebutted

the defense’s implied argument “that it would be impossible for

the defendant to have dealt these large amounts of cocaine and

taken in this large amount of money because he’s living in

relatively low level conditions.” J.A. 271. Defense counsel

responded that Orellano had not been qualified as an expert.

4 When Garcia-Lagunas and Hernandez were placed in a cell
together after their arrests, Garcia-Lagunas called Hernandez a
“chiva,” a “term supposedly . . . for the people who collaborate
with the law.” J.A. 305-06.

10
After confirming that Orellano’s testimony was based on his

training and experience, the district court overruled the

objection. 5 Orellano repeated the testimony in slightly

different terms: “It is consistent with Hispanic drug

traffickers not to misuse the drug proceeds and to send or get

rid of the proceeds, send them to their native countries or

their next step over them in the drug trafficking organization.”

J.A. 274. The government referred to this testimony during its

closing argument to explain Garcia-Lagunas’s lack of an

“extravagant lifestyle.” J.A. 520.

Several other officers testified for the government.

Relevant to this appeal, Detective Matthew Taylor testified that

based on his training and experience, the type of baggies he

found in the kitchen at 353 Westcott were “mostly used for the

repackaging and sale of narcotics.” J.A. 411. Detective Stein

testified, based on his training and experience, that the

vacuum-sealed bag containing the 800 grams of white powder was

of the type frequently used by drug traffickers “to seal in the

5 After defense counsel renewed his objection, the court at
a bench conference stated: “I’m not quite sure what the
relevance of all of this is, but I do know, based on my
experience, that most Latins send money home whether they’re
drug dealers or not.” J.A. 273. Garcia-Lagunas contends that
the court’s statement emboldened the government to engage in
ethnic stereotyping. The court’s comment is puzzling at best,
but we do not address it further because there is no evidence
that the jury heard it.

11
odor of the narcotics so that they’re harder to be detected

[and] easier to transport.” J.A. 437-38.

Through cross-examination and closing argument, Garcia-

Lagunas presented two defense theories: first, that even if he

sold drugs to the dealer witnesses, he did so in a simple

“buyer-seller” relationship, and the evidence was insufficient

to show that he was involved in a distribution conspiracy with

those dealers; 6 second, that he was too poor to have dealt in the

large quantities that the government’s witnesses attributed to

him.

The court chose (without objection from the parties) not to

submit a special verdict sheet for the jury to indicate the

amount of cocaine Garcia-Lagunas was responsible for within the

conspiracy, finding it sufficient that the verdict form

specifically referenced the indictment. The jury found Garcia-

Lagunas guilty of conspiring to distribute or possess with

intent to distribute 500 grams or more of cocaine. After the

verdict, the district court sua sponte directed the parties to

brief whether it erred by failing to instruct the jury to find

the amount of cocaine individually attributable to Garcia-

Lagunas, as required by United States v. Collins, 415 F.3d 304

6“A mere buyer-seller relationship is insufficient to
support a conspiracy conviction.” United States v. Howard, 773
F.3d 519, 525 (4th Cir. 2014).

12
(4th Cir. 2005). However, it ultimately ruled that no Collins

error had occurred.

The presentence investigation report (the “PSR”) found

Garcia-Lagunas responsible for 39 kilograms of cocaine and 16

grams of crack cocaine, resulting in a base offense level of 34.

The PSR added three two-level enhancements for possession of a

dangerous weapon, threatening or directing the use of violence,

and obstruction of justice, resulting in a total offense level

of 40. The PSR also found Garcia-Lagunas had a criminal history

score of zero, putting him in criminal history category I.

Garcia-Lagunas objected to the drug weight calculation and the

three enhancements.

The district court overruled Garcia-Lagunas’s objections to

the drug weight calculation and the dangerous weapon

enhancement, but sustained the objections to the other two

enhancements, resulting in an offense level of 36. An offense

level of 36 coupled with criminal history category I yielded a

Guidelines range of 188 to 235 months’ imprisonment. The

government stated, however, that it would agree to a “two level

downward variance based upon the Attorney General’s recent

directive that is related to the proposed amendment to the

Guidelines, specifically the drug quantity base offense levels

in the Guideline that may end up being a two level drop for each

drug quantity,” provided that Garcia-Lagunas agreed not to later

13
seek a variance for the same reason. J.A. 678-79. Garcia-

Lagunas so agreed, and the district court stated its intent “to

go down the two levels.” J.A. 679-80.

The resulting offense level of 34 yielded a Guidelines

range of 151 to 188 months’ imprisonment. The district court

then sentenced Garcia-Lagunas to 188 months’ imprisonment while

stating it was “impos[ing] a sentence at the low end of the

range because this constitutes the defendant’s first felony

conviction.” J.A. 680-81, 683. The court also sentenced

Garcia-Lagunas to a consecutive sentence of 24 months’

imprisonment for his unlawful reentry conviction. Only after

announcing the sentence did the court allow Garcia-Lagunas to

allocute.

II.

Garcia-Lagunas argues that the government’s improper use of

an ethnic stereotype to rebut Garcia-Lagunas’s defense theory

that he was too poor to be a major drug dealer was

constitutional error and was not harmless beyond a reasonable

doubt. We will assume, as the government conceded, see Oral

Argument at 20:38–20:51, United States v. Garcia–Lagunas, No.

14–4370 (Sept. 17, 2015), http://coop.ca4.uscourts.gov/OAarchive

/mp3/14-4370-20150917.mp3, that the use of the stereotype was

constitutional error, and proceed directly to the question of

14
whether the government has shown that the error was harmless

beyond a reasonable doubt. See, e.g., United States v. Evans,

216 F.3d 80, 89-90 (D.C. Cir. 2000) (declining to decide whether

error was constitutional where the error was harmless under

either constitutional or nonconstitutional standard).

A.

For all constitutional errors that do not “‘defy analysis

by “harmless error” standards[,]’ . . . ‘reviewing courts must

apply [Federal Rule of Criminal Procedure] Rule 52(a)’s

harmless-error analysis and must disregar[d] errors that are

harmless beyond a reasonable doubt.’” 7 United States v. Lovern,

293 F.3d 695, 700 (4th Cir. 2002) (third alteration in original)

(quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991) and

Neder v. United States, 527 U.S. 1, 7 (1999)). The essential

question is therefore: “Is it clear beyond a reasonable doubt

that a rational jury would have found the defendant guilty

absent the error?” Neder, 527 U.S. at 18; see also United

States v. Camacho, 955 F.2d 950, 955 (4th Cir. 1992) (“The

decision below should only stand if, viewing the entire record,

it is clear beyond a reasonable doubt that the jury would have

7
Garcia-Lagunas does not argue that this constitutional
error is in the “limited class of fundamental constitutional
errors” that require automatic reversal without a harmlessness
analysis. United States v. Lovern, 293 F.3d 695, 700 (4th Cir.
2002).

15
returned a guilty verdict absent the allegedly harmless

error.”). The burden rests on the government, the beneficiary

of the error, to show harmlessness. See Chapman v. California,

386 U.S. 18, 24 (1967). We have “the power to review the record

de novo in order to determine an error’s harmlessness.”

Fulminante, 499 U.S. at 295.

Importantly, “holding the error harmless does not

‘reflec[t] a denigration of the constitutional rights

involved,’” Neder, 527 U.S. at 19 (alteration in original)

(quoting Rose v. Clark, 478 U.S. 570, 577 (1986)), and we

emphasize that “[i]njection of a defendant’s ethnicity into a

trial as evidence of criminal behavior is self-evidently

improper and prejudicial,” United States v. Cruz, 981 F.2d 659,

664 (2d Cir. 1992); see also United States v. Runyon, 707 F.3d

475, 494 (4th Cir. 2013) (“The Supreme Court has long made clear

that statements that are capable of inflaming jurors’ racial or

ethnic prejudices ‘degrade the administration of justice.’”

(quoting Battle v. United States, 209 U.S. 36, 39 (1908))).

In this case, the government’s reliance on an ethnic

stereotype to explain Garcia-Lagunas’s living conditions was

particularly inapt given its failure to show that Garcia-Lagunas

was sending significant money anywhere. The record shows that

since 1988, Garcia–Lagunas has spent the great majority of his

time in the United States. While he does have two children

16
living in Mexico, he has two other children living in this

country, and at the time of his arrest his parents lived next

door to him. Nor did the government present any evidence that

Garcia-Lagunas was sending proceeds to the “next step over [him]

in the drug trafficking organization.” J.A. 274. Thus, the

government’s only “evidence” that Garcia–Lagunas was remitting

money was the generalization about Hispanic drug traffickers.

That said, the harmless error rule “serve[s] a very useful

purpose insofar as [it] block[s] setting aside convictions”

where the constitutional error had “little, if any, likelihood

of having changed the result of the trial.” Neder, 527 U.S. at

19 (alterations in original) (quoting Chapman, 386 U.S. at 22).

The rule thus “recognizes the principle that the central purpose

of a criminal trial is to decide the factual question of the

defendant’s guilt or innocence, . . . and promotes public

respect for the criminal process by focusing on the underlying

fairness of the trial.” Id. at 18 (alteration in original)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

B.

In this case, Garcia-Lagunas was found guilty of coming “to

a mutual understanding to try to accomplish the . . . plan of

distributing or possessing with intent to distribute 500 grams

or more of cocaine,” and “knowingly bec[oming] a member of that

conspiracy.” J.A. 554. We are satisfied beyond a reasonable

17
doubt that—even without the government’s improper use of an

ethnic stereotype—a rational jury still would have arrived at

that verdict.

1.

We begin first with the quantity of the drugs involved in

the conspiracy. At trial, the government presented evidence

that Garcia-Lagunas sold far greater amounts of cocaine than the

500 grams charged in the indictment. The testimony of Reed,

Jacobs, Brewington, and Locklear attributed to Garcia-Lagunas

the sale of nearly 40 kilograms—40,000 grams—of cocaine. Thus,

the jury need only have credited 1.3% of that quantity to

satisfy the government’s burden.

The fact that Reed, Jacobs, Brewington, and Locklear were

known drug dealers each testifying pursuant to a plea agreement

certainly casts some doubt on their credibility. See United

States v. Garcia, 752 F.3d 382, 397 (4th Cir. 2014) (noting that

a witness’s testimony for the government “was put into

question . . . not least because his testimony was in return for

sentencing considerations by the Government in a [state]

prosecution in which he faced a maximum potential sentence of

life in prison and . . . deportation”). But see id. (“Of

course, the jury was unquestionably entitled to credit the

testimony of [that government witness].”). Here, however, the

testimony of three of the dealers was bolstered by phone records

18
showing an extraordinary volume of phone calls (in a compressed

period of time) between them and Garcia-Lagunas. 8 See, e.g.,

J.A. 338 (Jacobs testifying that he and Garcia-Lagunas exchanged

“somewhere around th[e] range” of 56 calls from February 10th to

22nd, 2012); cf. United States v. Johnson, 617 F.3d 286, 298

(4th Cir. 2010) (finding error not harmless where codefendant

drug dealers’ testimony was inconsistent, there was otherwise

“scant evidence,” and defendant “called seven witnesses to

testify about his legitimate source of income”).

In addition, circumstantial physical evidence also pointed

to Garcia-Lagunas’s guilt. See United States v. Holness, 706

F.3d 579, 598-600 (4th Cir. 2013) (finding error harmless beyond

a reasonable doubt even where “the government’s case was

predominantly circumstantial”). Garcia-Lagunas’s room had a

large scale in it that the jury heard was of the type commonly

used by dealers to weigh drugs in large quantities, as well as a

smaller scale typically used to weigh user amounts of drugs,

which had what appeared to be cocaine and crack cocaine residue

on it.

8 The phone records were largely irrelevant to Locklear’s
testimony, as the subpoenaed records covered February 9th to
23rd, 2012, and Locklear testified that he stopped purchasing
from Garcia-Lagunas following his arrest in March 2011.

19
 In the same room, officers found a bulletproof vest that

Detective Collins testified was “another tool of the drug

trade.” J.A. 106. Hernandez told the jury that the vest and

the large scale belonged to Garcia-Lagunas. Inside a storage

container in Garcia-Lagunas’s room was 800 grams of a white

powdery substance, packed in a vacuum-sealed bag and again in a

garbage bag. The substance field-tested positive for cocaine,

though the readings were “light.” J.A. 108. Subsequent SBI

test results showed that the powder did not contain a controlled

substance but Collins explained that such a result was possible

even if there were cocaine present, given the techniques used in

the lab, if the cocaine had had a significant amount of cutting

agent added to it. The government’s evidence showed that

Garcia-Lagunas was “known for adding too much additive into

cocaine which would produce a very small amount of cocaine.”

J.A. 111; see also J.A. 363 (Brewington testifying that when he

tried to resell cocaine he purchased from Garcia-Lagunas, a

customer complained that “[i]t wouldn’t cook properly”).

Other tools of the drug trade were found in the trailer’s

main room. Police found a .32 caliber revolver in a purple

Crown Royal bag in a cabinet over the stove, which Jacobs had

given to Garcia-Lagunas that day. There were several phones on

20
the kitchen table when Collins entered the trailer, 9 and Collins

testified that he had seen dealers who dealt in large quantities

with four to six different phones, because “it’s harder for a

law enforcement officer to keep track of several different

phones at a time.” J.A. 85. In addition, Reed testified that

he had used three to four different phone numbers to reach

Garcia-Lagunas. Finally, officers also found one-inch-by-one-

inch plastic baggies on top of the kitchen cabinets and in a box

on top of the refrigerator.

The circumstances of Garcia-Lagunas’s arrest also

demonstrate that he was a drug dealer. Jacobs testified that

when he had previously bought cocaine from Garcia-Lagunas at the

Westcott trailer, he bought between a quarter of an ounce and

three-quarters of an ounce, and that on the day of the arrest,

he was there to purchase three-quarters of an ounce and had

given Garcia-Lagunas $600 for it. Hernandez saw Jacobs give

Garcia-Lagunas “some money . . . and a gun,” J.A. 298, and saw

Garcia-Lagunas count the cash before pocketing it. And when the

officers arrived, Garcia-Lagunas was found with $600 in cash.

9The record does not explain where the phones were when
Sergeant Johnson and Detective Stein first entered the trailer,
except for the phone that Garcia-Lagunas removed from his
pocket.

21
 With respect to the conspiracy element of the offense,

“[g]iven the ‘clandestine and covert’ nature of conspiracies,

the government can prove the existence of a conspiracy by

circumstantial evidence alone.” United States v. Howard, 773

F.3d 519, 525 (4th Cir. 2014) (quoting United States v. Burgos,

94 F.3d 849, 857 (4th Cir. 1996) (en banc)). While “[a] mere

buyer-seller relationship is insufficient to support a

conspiracy conviction,” evidence that such a buyer-seller

relationship is continuing and includes repeated transactions

“can support the finding that there was a conspiracy, especially

when coupled with substantial quantities of drugs.” Id. at 525-

26 (quoting United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008)).

Here, the most direct evidence that Garcia-Lagunas shared a

“mutual understanding” to distribute cocaine was Brewington’s

testimony that he discussed the amount of cocaine he could

“move” with Garcia-Lagunas, so that Garcia-Lagunas “would lower

the price,” J.A. 361-62, which indicates that Garcia-Lagunas

knew Brewington was a reseller and not buying the drugs for his

own use. In addition, Reed and Locklear each testified that

they were buying from Garcia-Lagunas more than twice a week and

that they were reselling the drugs that they bought from Garcia-

Lagunas. See Howard, 773 F.3d at 526 (noting that defendant

selling to “frequent customers who often resold the drugs”

22
supported a conspiracy conviction). More circumstantially, the

high quantities and frequency of transactions attributed to

Garcia-Lagunas support the government’s contention that he knew

his buyers were redistributing the drugs.

2.

On this record, we are satisfied that the constitutional

error was harmless beyond a reasonable doubt. Put another way,

we conclude “that the district court’s judgment, entered on the

jury’s guilty verdict, could not have been substantially swayed”

by the improperly admitted evidence. United States v. Holness,

706 F.3d 579, 600 (4th Cir. 2013).

Garcia-Lagunas’s reliance on our decision in United States

v. Johnson, 617 F.3d 286 (4th Cir. 2010), to argue otherwise

misses the mark. There, we held that a nonconstitutional error

in admitting police testimony regarding the meaning of

wiretapped phone calls was not harmless in a drug conspiracy

case where “[n]o drugs were found, no financial evidence was

presented and there was no surveillance that captured

[defendant] engaging in illicit activity, despite the extensive

investigation mounted by the local DEA,” and where the

erroneously admitted testimony lent “critical credibility

bolstering the government’s reliance on the testimony of three

convicted drug dealers.” Id. at 295-96.

23
 We emphasized there, however, that the testifying drug

dealers “often contradicted themselves,” id. at 295, and the

contradictions were highlighted by a DEA agent who originally

testified as a government witness but was called by the defense

“to testify regarding his interview with [one of the witnesses]

and the inconsistencies between the information he collected in

the interview and [that witness’s] testimony at trial,” id. at

291 n.5.

In addition, Johnson presented a much stronger defense than

Garcia-Lagunas did, testifying that he had never been involved

with drugs, had no criminal record, was a former Marine and

State Trooper, and had legitimate sources of income. Id. at

291. He also called several witnesses to testify to those

legitimate sources of income, and several witnesses who

testified about his lifestyle and character, including that he

had never been involved with drugs. Id. at 291-92, 298.

Finally, the erroneously admitted testimony in Johnson was

central to the government’s case: A government witness testified

that the language Johnson and a non-testifying codefendant used

in a phone call was code related to drug dealing. With the

contradictory testimony of the codefendant dealers, this was

essentially the entirety of the government’s case against

Johnson. Id. at 296 (“Had Agent Smith’s testimony been

excluded, the jury would have weighed the testimony of Johnson,

24
a veteran and former law enforcement officer with no criminal

record, against that of a convicted drug dealer and two co-

defendants with long rap sheets.”).

In short, Johnson and this case are poles apart. And

unlike many of the cases that have found that an evidentiary

error was not harmless (Johnson included), what Garcia-Lagunas

did with his earnings from the drug trade was not an element of

the prosecution’s case against him. Cf. Satterwhite v. Texas,

486 U.S. 249, 258-59 (1988) (finding psychiatrist’s improper

testimony not harmless beyond a reasonable doubt where jury had

to find “future dangerousness” beyond a reasonable doubt to

sentence defendant to death, he was the only psychiatrist to

testify at sentencing, and he “stated unequivocally that, in his

expert opinion” the defendant would “‘present a continuing

threat to society by continuing acts of violence’” (quoting the

record)); United States v. Williams, 632 F.3d 129, 134 (4th Cir.

2011) (finding improperly admitted stipulation not harmless

beyond a reasonable doubt because it “essentially established an

element of the crime”).

Moreover, although the government repeated the offensive

stereotype in its closing argument, the improper evidence did

not pervade the trial. Cf. Garcia, 752 F.3d at 398 (finding

improperly admitted testimony about the meaning of defendant’s

phone calls not harmless where the testifying agent testified

25
six of the twelve days of the trial, was recalled to the stand

eighteen times, and “[f]rom the beginning of the trial to the

end of the trial, the calls and the meaning of the words used in

those calls were the centerpiece of the [g]overnment’s case”).

Finally, the challenged testimony did not open the door to the

admission of further damaging evidence that would otherwise not

have come in. Cf. Fulminante, 499 U.S. at 300 (finding improper

admission of duplicative confession not harmless beyond a

reasonable doubt where it “led to the admission of other

evidence prejudicial to” the defendant).

In short, whatever questions Garcia-Lagunas’s living

conditions may have raised, it is beyond clear to us that a

rational jury would have nonetheless convicted him of the drug

conspiracy offense, even had they heard nothing of Orellano’s

improper testimony. Accordingly, we hold that the evidentiary

error was harmless beyond a reasonable doubt. 10

10 Garcia-Lagunas also complains that Detective Orellano
should not have been permitted to testify to the practices of
Hispanic drug traffickers because he was not testifying as an
expert. Having assumed that Orellano’s testimony violated
Garcia-Lagunas’s constitutional rights, but having found it
harmless beyond a reasonable doubt, we do not address this
separate objection.

26
 III.

Garcia-Lagunas also contends that (1) the admission of

evidence regarding Garcia-Lagunas’s immigration status and use

of an interpreter was plain error, (2) the district court

improperly allowed Collins to testify as an expert witness in

spite of the government’s failure to comply with expert

disclosure requirements, and (3) the district court allowed

improper opinion testimony from several of the government’s lay

witnesses.

We review these evidentiary challenges for abuse of

discretion. Johnson, 617 F.3d at 292. Where Garcia-Lagunas

objected at trial, we review for harmless error, leaving the

judgment intact where we are able to conclude, “after pondering

all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by the

error.” Id. (quoting United States v. Brooks, 111 F.3d 365, 371

(4th Cir. 1997)).

Where Garcia-Lagunas failed to timely object, we review for

plain error. United States v. Keita, 742 F.3d 184, 189 (4th

Cir. 2014). To make out a plain error, “the defendant must show

‘there was an error, the error was plain, and the error affected

[the defendant’s] substantial rights.’” Id. (alteration in

original) (quoting United States v. Boykin, 669 F.3d 467, 470

(4th Cir. 2012)).

27
 A.

Garcia-Lagunas contends that the district court erred in

admitting evidence regarding his immigration status and use of

an interpreter at trial. Because the defense failed to timely

object at trial, we review for plain error.

Evidence of a crime or wrong is not admissible to prove a

defendant’s bad character in order to show that he acted in

accordance with that character. Fed. R. Evid. 404(b)(1). Such

evidence may be admissible, however, “for another purpose, such

as proving . . . identity.” Id. 404(b)(2). Under Rule 404(b),

we use a four-part test to assess admissibility: “(1) the prior-

act evidence must be relevant to an issue other than character,

such as intent; (2) it must be necessary to prove an element of

the crime charged; (3) it must be reliable; and (4) . . . its

probative value must not be substantially outweighed by its

prejudicial nature.” United States v. Lespier, 725 F.3d 437,

448 (4th Cir. 2013) (alteration in original) (quoting United

States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)).

1.

The government presented evidence that Garcia-Lagunas was

an alien illegally in the United States. The government argues

that this was relevant to Garcia-Lagunas’s identity. At trial,

the officers explained that “they learned that a Mexican man

going by the name ‘Alex’ was a significant source of cocaine in

28
Cumberland and Robeson Counties.” Appellee’s Br. at 42.

According to the government, Garcia-Lagunas’s immigration status

was thereby relevant as evidence that he was “Alex.” We do not

agree.

Collins testified solely that “[t]he defendant was

previously deported from the United States and is an alien

illegally in the United States right now.” J.A. 150. This

testimony has almost no probative value concerning Garcia-

Lagunas’s Mexican nationality; it establishes only that he is

not a United States citizen. We reject the notion that an

individual’s status as an illegal alien, without more, creates

an inference of Mexican nationality. And, importantly, the

government could easily have shown that Garcia-Lagunas was from

Mexico without highlighting his immigration status. See Fed. R.

Evid. 404(b) advisory committee’s note (“The determination must

be made whether the danger of undue prejudice outweighs the

probative value of the evidence in view of the availability of

other means of proof . . . .”). Because the probative value of

Garcia-Lagunas’s immigration status, especially without

reference to his country of citizenship, was so low, we find

that it was substantially outweighed by its prejudicial nature.

It was not, therefore, permissible 404(b) evidence. See

Lespier, 725 F.3d at 448.

29
 Garcia-Lagunas’s evidentiary challenge, however, fails on

plain error review. “To be ‘plain,’ an error must be ‘clear’ or

‘obvious’ . . . .” United States v. Ramirez-Castillo, 748 F.3d

205, 215 (4th Cir. 2014) (quoting United States v. Olano, 507

U.S. 725, 734 (1993)). Even if the error here was plain, we

“may correct the error” only if it also “affect[s] substantial

rights.” Olano, 507 U.S. at 732 (alteration in original)

(emphasis omitted). An error affects substantial rights “in

most cases” if it “affected the outcome of the district court

proceedings.” Ramirez-Castillo, 748 F.3d at 215 (quoting Olano,

507 U.S. at 734).

We need not address whether the improper admission of

Garcia-Lagunas’s immigration status was plain because we find

that it did not affect the outcome of the trial. As we have

discussed, the jury had before it substantial evidence of

Garcia-Lagunas’s participation in a conspiracy to distribute

cocaine, and his immigration status was not referenced again

after Collins’s testimony. Thus, we find no plain error on this

record.

2.

Garcia-Lagunas also challenges the government’s references

to his use of an interpreter at trial, arguing that they were

intended to paint him as a “faker” for relying on an interpreter

when he did not need one. Appellant’s Br. at 36.

30
 The government’s witnesses told the jury that they spoke to

Garcia-Lagunas in English when they dealt with him, and some of

those witnesses could only speak English. To prove that Garcia-

Lagunas was the man who dealt with these witnesses, the

government had good reason to clarify to the jury that he could

in fact speak English, in spite of the impression his use of an

interpreter may have created. We therefore find that the

government’s references to Garcia-Lagunas’s interpreter were

relevant to identity, and their probative value was not

substantially outweighed by any threat of prejudice. See

Lespier, 725 F.3d at 448. Accordingly, we find no error.

B.

1.

Garcia-Lagunas next contends that the district court erred

in allowing Detective Collins to testify as an expert witness

where the government failed to comply with the expert disclosure

requirements. Because the defense failed to timely object at

trial, we again review for plain error.

Federal Rule of Criminal Procedure 16(a)(1)(G) requires the

government, on the defendant’s request, to provide the defendant

a written summary of any expert testimony that it intends to

use. That summary “must describe the witness’s opinions, the

bases and reasons for those opinions, and the witness’s

qualifications.” Fed. R. Crim. P. 16(a)(1)(G). “Rule

31
16(a)(1)(G) ‘is intended to minimize surprise that often results

from unexpected expert testimony . . . and to provide the

opponent with a fair opportunity to test the merit of the

expert’s testimony through focused cross-examination.’” United

States v. Smith, 701 F.3d 1002, 1007 (4th Cir. 2012) (quoting

Fed. R. Crim. P. 16(a)(1)(G) advisory committee’s note to 1993

amendment).

Garcia-Lagunas points out that the government’s notice that

Collins would “testify about drug trafficking investigations and

methods utilized by drug traffickers to operate and protect

their drug business,” J.A. 32, failed to state Collins’s

qualifications, opinions, or “the bases and reasons for his

opinions.” Appellant’s Br. at 38.

While Garcia-Lagunas has a viable argument that the

government’s short and summary notice failed to meet the

requirements of Rule 16(a)(1)(G), we need not decide whether the

district court’s admission of the testimony was plain error, as

Garcia-Lagunas cannot establish that any such error affected his

substantial rights.

On that score, while Garcia-Lagunas claims that Collins’s

testimony was “completely unexpected,” id. at 39, he fails to

point to any specific portion of the testimony that took him by

surprise. Collins’s testimony largely served to provide the

jury the contextual background of how drug trafficking

32
organizations function and explain the significance of certain

physical evidence. Given the limited scope of the physical

evidence, Garcia-Lagunas surely anticipated the line of

questioning regarding the negative SBI test results.

Accordingly, Garcia-Lagunas cannot establish that more specific

notice of the scope of Collins’s testimony would have so changed

the defense’s ability to cross-examine him that the trial would

have come out differently. See United States v. Jones, 739 F.3d

364, 370 (7th Cir. 2014) (“We need not consider whether the

error [of admitting expert testimony without notice] could be

considered plain, because [the defendant] cannot demonstrate

that he would not have been convicted absent the error, or that

the introduction of that testimony without complying with the

expert testimony requirements resulted in a miscarriage of

justice.”).

2.

Garcia-Lagunas also contends that Collins’s testimony

explaining how the white powder might have tested positive in

the field but negative in the laboratory for any controlled

substance was improper lay opinion testimony, as Collins was not

an expert in SBI laboratory techniques. Counsel objected at

trial; therefore we review for harmless error.

After defense counsel’s objection, the government elicited

testimony from Collins demonstrating his familiarity with the

33
methods used by the SBI in its laboratory tests. In particular,

he testified that he knew from his training and experience that

they would test only a portion of a controlled substance. This

foundation testimony adequately demonstrated Collins’s

competence to testify on this issue. 11

IV.

Garcia-Lagunas next challenges his sentence. “We review a

criminal sentence for procedural and substantive reasonableness

under a deferential abuse-of-discretion standard.” United

States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014) (citing

Gall v. United States, 552 U.S. 38, 51 (2007)). First, we must

“ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range.” Gall, 552 U.S. at 51. If

the sentence is procedurally sound, we then move on to “consider

the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id. Because Garcia-Lagunas did

not object to any of the alleged sentencing errors, we review

11 Garcia-Lagunas also contends that the district court
erred in admitting lay opinion testimony from Detectives Taylor
and Stein concerning the use of small plastic baggies and
vacuum-sealed bags in drug trafficking. Because Garcia-Lagunas
did not object at trial, we review for plain error. Garcia-
Lagunas cannot meet that high bar. Given the weight of the
evidence against him, we are confident that the complained-of
testimony did not affect the outcome of the proceeding.

34
for plain error. United States v. Lynn, 592 F.3d 572, 576–77

(4th Cir. 2010).

A.

Garcia-Lagunas first challenges the district court’s

determination that it did not commit a Collins error in failing

to instruct the jury to determine the quantity of cocaine

Garcia-Lagunas was responsible for within the conspiracy.

For drug offenses, 21 U.S.C. § 841(b) “sets forth a

graduated penalty scheme based on the quantity of drugs

attributable to the defendant.” United States v. Foster, 507

F.3d 233, 250 (4th Cir. 2007). The statute imposes mandatory

minimum and maximum penalties when a defendant is responsible

for a threshold quantity of drugs. Here, Garcia-Lagunas was

convicted of a conspiracy to distribute 500 grams or more of

cocaine. Under § 841(b)(1)(B), Garcia-Lagunas was subject to a

sentence of no less than five and no more than 40 years’

imprisonment.

However, in United States v. Collins, we held that “an

individual defendant, found guilty of conspiracy to violate

§ 841(a), [should not] be sentenced under § 841(b) by

considering the amount of narcotics distributed by the entire

conspiracy,” 415 F.3d 304, 312 (4th Cir. 2005) (emphasis

omitted), but rather “the jury must determine what amount of

cocaine base was attributable to [each defendant],” id. at 314.

35
 The district court, relying on United States v. Williams,

439 F. App’x 254 (4th Cir. 2011) (per curiam), found that it did

not need to submit this question to the jury, as “there [was] no

uncertainty regarding the amount of cocaine the defendant

distributed and no co-conspirators for the jury to consider,”

and therefore “the drug quantity charged in the indictment can

serve as the statutory sentencing threshold under § 841(b).”

J.A. 639.

This was not plain error. Although Williams was

unpublished and therefore not precedential, it suggests that

even if the district court erred, such error was not plain. See

Williams, 439 F. App’x at 257; see also United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005) (“An error is plain ‘where the

law at the time of trial was settled and clearly contrary to the

law at the time of appeal.’” (quoting Johnson v. United States,

520 U.S. 461, 468 (1997))). In addition, Garcia-Lagunas cannot

show that any such error affected his substantial rights. He

was sentenced under 21 U.S.C. § 841(b)(1)(B), which has a

mandatory minimum of five years’ imprisonment. Had he instead

been sentenced under the more lenient § 841(b)(1)(C), he would

have been subject to a mandatory minimum of three years’

supervised release and a mandatory maximum of twenty years’

imprisonment.

36
 There is no indication that the district court was

inclined, in the absence of a five-year mandatory minimum, to

give Garcia-Lagunas a sentence of less than five years’

imprisonment. Nor was Garcia-Lagunas’s sentence above the

twenty year mandatory maximum that would have applied under the

more lenient subsection. Garcia-Lagunas therefore fails to

establish that there was plain error or that such error affected

his substantial rights.

B.

Finally, Garcia-Lagunas argues that the district court

erred procedurally when it calculated his offense level as 36.

We agree, and also find that the error was plain and

substantially affected Garcia-Lagunas’s rights.

At sentencing, the district court announced that Garcia-

Lagunas’s total offense level was 36 after sustaining two of his

objections to the PSR’s calculation. The government responded

that it would not object to a downward departure of two levels

to reflect upcoming amendments to the Guidelines, and the court

agreed to go down those two levels. Thus, Garcia-Lagunas’s

total offense level should have been 34, which would have

yielded a Guidelines range of 151 to 188 months’ imprisonment.

While the 188 month sentence the court imposed was within this

range, the court specifically stated that it was “impos[ing] a

sentence at the low end of the range.” J.A. 683. Additionally,

37
in its “Statement of Reasons” form, the court scored Garcia-

Lagunas’s total offense level at 36, noting that it sustained

one of Garcia-Lagunas’s objections to the PSR and used the

anticipated Guidelines amendment reduction, but not

acknowledging that it sustained a second objection. Thus, the

court’s error in sentencing Garcia-Lagunas under offense level

36 instead of 34 was plain. See United States v. Ford, 88 F.3d

1350, 1356 (4th Cir. 1996) (finding plain and prejudicial error

where the erroneous addition of points to the defendant’s

criminal history score caused the defendant “to be sentenced at

a more severe guideline range”).

We also find that the error significantly affected Garcia-

Lagunas’s substantial rights. The district court made clear

that it intended to sentence Garcia-Lagunas at the low end of

the range to reflect his lack of criminal history. Thus, had it

consulted the correct range, there is good reason to believe the

court would have sentenced Garcia-Lagunas to 151, rather than

188, months’ imprisonment.

After our original opinion in this case, the Supreme Court

in Molina-Martinez v. United States, 136 S. Ct. 1338, 1347

(2016), held that “in the ordinary case a defendant will satisfy

his burden to show prejudice by pointing to the application of

an incorrect, higher Guidelines range and the sentence he

received thereunder.” In that case, as here, the district court

38
sentenced the defendant under an incorrect Guidelines range, but

gave him the lowest sentence under that incorrect range, which

also fell within the correct Guidelines range. The Court held

that despite the district court’s failure to explain the

sentence, “the [d]istrict [c]ourt’s selection of a sentence at

the bottom of the range, . . . ‘evinced an intention . . . to

give the minimum recommended by the Guidelines.’” Id. at 1347-

48 (alteration in original) (quoting Brief for the United States

at 18, Molina-Martinez, 136 S. Ct. 1338 (No. 13-40324)). Here,

the sentencing court made this intention explicit, and thus

“there is at least a reasonable probability that the [d]istrict

[c]ourt would have imposed a different sentence” had it

sentenced Garcia-Lagunas under the correct Guidelines range.

Id. Because “[t]hat probability is all that is needed to

establish an effect on substantial rights,” Garcia-Lagunas has

established that effect. Id. at 1349.

And though we need not always correct plain error, Keita,

742 F.3d at 189, we do so here. Fairness dictates that Garcia-

Lagunas be sentenced under the correct Guidelines range,

particularly when doing so could potentially lead to a sentence

reduction. See Ford, 88 F.3d at 1356 (“[S]entencing a defendant

at the wrong guideline range seriously affects the fairness,

integrity, and public reputation of the judicial proceedings.”).

“Three years of a man’s life is not a trifling thing.” Id.

39
 V.

We affirm Garcia-Lagunas’s conviction. The district court,

however, plainly erred in calculating Garcia-Lagunas’s

Guidelines range, and the error affected his substantial rights.

Accordingly, we vacate the sentence and remand for resentencing.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

40
DAVIS, Senior Circuit Judge, dissenting:

On our panel rehearing, my friends in the majority assume

for the sake of argument that the improper and prejudicial

testimony elicited and relied upon by the Government to convict

Appellant Alejandro Garcia-Lagunas amounts to constitutional

error. There is no need for assumptions; this is unequivocally,

and admittedly, a case of constitutional error. Moreover, the

majority concludes that the Government’s error, as compounded by

the district court’s failure to correct it, even if of a

constitutional magnitude, was harmless beyond a reasonable

doubt. I, however, remain compelled to conclude that the

Government did not carry its burden of proving beyond a

reasonable doubt that its clearly unconstitutional use of a

blatant ethnic generalization did not contribute to the jury’s

verdict. Accordingly, I respectfully dissent from the

majority’s decision to refuse, once again, to order a new trial.

I.

During trial, Garcia-Lagunas’s counsel sought to show that

Garcia-Lagunas was, at most, a common drug abuser and not a

sophisticated drug distributor who trafficked large volumes of

cocaine as alleged in the indictment. To make this distinction,

counsel strategically questioned Government witnesses on cross-

examination about Garcia-Lagunas’s meager lifestyle, a lifestyle

devoid of the flamboyant trappings derived from drug proceeds

41
that one might expect to surround a high-volume narcotics

distributor. For example, the cross-examinations of convicted

drug dealer Ronnie Reed and Detectives Shawn Collins and Pedro

Orellano tended to establish that Garcia-Lagunas lived a life of

truly limited means. Reed testified that he never knew Garcia-

Lagunas to have any “fancy things” such as jewelry, firearms, or

vehicles. J.A. 222. Detectives Collins and Orellano testified

that, on the evening of his arrest, Garcia-Lagunas was found

shirtless and shoeless in the “kitchen/living room area” of a

small trailer at 353 Wescott Drive in which he had recently

begun renting a room for less than $350 per month. J.A. 103-04,

315. Detective Collins described the bedroom belonging to

Garcia-Lagunas as in “disarray” and explained to the jury that

it looked as though Garcia-Lagunas had yet to unpack since

moving to the trailer, as his belongings were scattered

throughout the small room in laundry baskets. J.A. 120.

Further law-enforcement testimony showed that detectives

searched the 353 Wescott trailer, as well as three other

trailers in and around Robeson County, North Carolina, where it

was alleged that Garcia-Lagunas had previously sold cocaine, and

not one of the searches uncovered evidence of profits consistent

with an individual allegedly trafficking hundreds of thousands

of dollars’ worth of cocaine. In fact, the only items of value

that the searches uncovered, a .32 caliber revolver and $600 in

42
U.S. currency, were described as having been brought to the 353

Wescott trailer the night of Garcia-Lagunas’s arrest by Brian

Jacobs, allegedly in exchange for three-quarters of an ounce of

powder cocaine. J.A. 298, 320–21, 342. However, no powder

cocaine was actually found at that trailer or any other of the

trailers linked to Garcia-Lagunas.

Testimony revealed that the only substances discovered by

law enforcement to lab-test positive for the presence of cocaine

were two baggies containing user amounts of crack cocaine, for

which Garcia-Lagunas was not charged. J.A. 117, 122, 124, 404.

Counsel for Garcia-Lagunas provided an explanation for the

presence of those drugs by questioning the Government witnesses

about his client’s personal drug use. Three different

Government witnesses testified that they had observed Garcia-

Lagunas use drugs, J.A. 320, 349, 355, 376, and Jacobs testified

that, for a number of years, Garcia-Lagunas had actually

purchased small amounts of cocaine from him for Garcia-Lagunas’s

personal use, J.A. 354. Further, several detectives explained

to the jury that, on the night of his arrest, Garcia-Lagunas had

white powder under his nose, which, together with his dilated

pupils and erratic movements, suggested that he had ingested

cocaine immediately before the arrival of the law-enforcement

officers. J.A. 103–04, 248, 283.

43
 To bring home the defense theory of the case, counsel

emphasized during cross-examination that Garcia-Lagunas’s meager

lifestyle did not square with the portrait that the Government

was painting of a sophisticated, large-volume drug trafficker.

Counsel astutely presented the theory by offering the jury the

opportunity to contrast Garcia-Lagunas’s lifestyle with that of

Reed, one of Garcia-Lagunas’s alleged purchasers. Counsel

questioned Detective Collins and Reed on cross-examination about

Reed’s drug-trafficking operation and the proceeds that Reed had

amassed during the four years that he sold drugs prior to his

2012 arrest on federal drug trafficking charges. J.A. 153-55,

225-30. During searches of Reed’s family home and stash house,

officers found more than $100,000 in U.S. currency, multiple

telephones, a 2008 Infiniti, a 2006 Chevy Impala, a 2004 Acura,

a 2004 BMW, a 2002 Lincoln Navigator, and multiple firearms.

J.A. 154-55. The officers also found contraband consistent with

a large-scale drug-trafficking operation, including more than

180 grams of crack cocaine, more than three-and-a-half kilos of

powder cocaine, 240 grams of marijuana, money that the

Fayetteville police department had used to conduct controlled

buys from Reed, a cocaine press, and a money counter. J.A. 225-

29.

The upshot of all of this, contrary to the majority

opinion’s one-sided spin on the evidence, is that there were

44
two, competing narratives before the jury. And it was the

jury’s call, not the job of the members of this appellate panel,

to judge the credibility of all of the evidence, weigh it

accordingly, and reach a fair and impartial verdict in

accordance with law.

Ultimately, counsel for Garcia-Lagunas hoped the testimony

he elicited would prompt the following question from at least

one juror (because of course, he only needed to garner the

interest of one juror to raise a possibility of a more

beneficial outcome than the one he got): how can a man who is

allegedly responsible for selling hundreds of thousands of

dollars’ worth of cocaine 1 not have on hand any discernable

direct or indirect proceeds of any kind on the day of his

arrest, with zero indication from any source that his arrest was

imminent? Any experienced (and even an inexperienced) Assistant

United States Attorney prosecuting cases in this Circuit would

fully expect (and be prepared for) this kind of defense tack on

this record.

1
According to the testimony of the four drug dealers
testifying pursuant to plea agreements, Garcia-Lagunas sold to
them, in the aggregate, at least 39 kilos of cocaine, with each
kilo of cocaine valuing approximately $30,000 to $32,000 during
the relevant time frame. J.A. 205, 208, 239, 340-42, 360-61,
388.

45
 My friends in the majority may not think much of defense

theories in general, or of Garcia-Lagunas’s theory in

particular, but that is what it was, fully supported by

admissible evidence, and well within the realm of plausible

disputation by a lawyer committed to her Fifth- and Sixth-

Amendment-based obligations to her client. 2 As in any

prosecution, whether for a crime involving the infliction of

unspeakable violence upon actual victims, or in the prosecution

of the most plain-vanilla so-called “white collar” offense, and

any prosecution in between, the defendant in our system is

entitled to have the jury grapple, if it must, with his defense

theory, unaided by blatantly foul blows delivered by the

prosecution, abetted by the trial judge, in the use of racial or

ethnic entreaties aimed at undermining or dismissing outright

2Recall that the indictment in this case charged a greater-
included offense of conspiring to distribute or possess with the
intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. §§ 841(a), 846. Importantly, therefore, the
defense theory in this case not only militated in favor of an
acquittal, but perhaps even more important from the defense
perspective, it laid the basis for the jury’s consideration of a
lesser included offense involving a lesser amount of narcotics
and thus a lower potential sentence. Cf. United States v.
Hickman, 626 F.3d 756, 763-71 (4th Cir. 2010) (holding that
evidence was insufficient to support the jury’s guilty verdict
on the indicted conspiracy involving greater drug amount but
remanding for resentencing on conspiracy involving lesser drug
amount).

46
the defense theory of the case. But that is precisely what

happened here.

As Garcia-Lagunas’s defense theory became apparent during

trial, the Government seemingly recognized for the first time

the absence of drug trafficking proceeds as a potential weakness

in its case, a case in which it now argues the evidence of guilt

was always overwhelming. The Government opted not to cure the

ostensible weakness through the introduction of admissible

evidence by, for example, moving to admit proof of wire

transfers from Garcia-Lagunas to individuals in Mexico. Either

because such evidence did not exist 3 or because the Government

failed to adequately prepare its case, the Government instead

sought to counter the defense theory by eliciting an outrageous

ethnic stereotype about the propensity of “Hispanic drug

traffickers” to live modestly while sending “the majority if not

all the proceeds back to their native countries.” J.A. 270.

The Government then highlighted this irrelevant and unsupported

racial generalization at the outset of its rebuttal closing

argument, stating:

3 As my colleagues in the majority point out, Garcia-Lagunas
has resided in the United States since he was a teenager, and
the majority of his family, including his parents, spouse, and
two of his children, also live in the United States, making it
improbable that he was sending large amounts of money back to
individuals in Mexico.

47
 Ladies and Gentlemen, what did Detective Orellano tell
you about Hispanic drug trafficking organizations
[sic] and about what they do with their money? He
told you that they package that money and they send it
back to their home country as part of the drug
trafficking organization. That’s why we don’t have an
extravagant lifestyle associated with this Defendant,
fancy cars, any of the things like Ronnie Reed has
talked about.

J.A. 520.

The relative ability of this particular stereotype to sway

one or more jurors is evidenced by its extraordinary confirming

effect on the presiding judge. In response to a renewed

objection to Detective Orellano’s testimony, the trial judge

held a bench conference and admitted that he “wasn’t quite sure

the relevance of” the Detective’s testimony regarding Hispanic

drug traffickers, but that, “based on [his] experience, . . .

most Latins [sic] send money home whether they’re drug dealers

or not.” 4 J.A. 273. The Government admittedly hoped the jurors

4 The majority chooses not to address how the trial judge’s
statements could have independently affected the jury’s thinking
because they were voiced during a bench conference and there is
no affirmative evidence that the jury heard the trial judge’s
reinforcing remarks. However, it is not Garcia-Lagunas’s burden
to demonstrate the rippling effects of the Government’s
unconstitutional testimony. Rather, the Government is tasked
with establishing that its constitutional error did not
contribute to the jury’s verdict. Here, the Government has not
attempted to show that the trial judge’s statements did not
affect the jury’s consideration of Garcia-Lagunas’s defense
theory. Moreover, I note that, having both served as a juror on
three occasions in criminal cases tried in Maryland state
courts, and having presided for 14 years over federal jury
trials employing “white noise” to keep jurors in the dark, I
(Continued)
48
would draw a similar inference when rendering a verdict. J.A.

273.

To counter Garcia-Lagunas’s primary defense theory and cure

a perceived hole in its case, the Government offered up a

generalization about Garcia-Lagunas’s ethnicity to the jury.

The Government hoped that, like the presiding judge, the jurors

would believe that Garcia-Lagunas’s modest lifestyle could not

rationally undermine allegations that he distributed hundreds of

thousands of dollars’ worth of cocaine because he assuredly had

been sending his significant proceeds back to his native

country, electing to live like a pauper in the United States.

Tellingly, even the Government concedes that the

elicitation of Detective Orellano’s testimony during re-direct

and the recitation of the testimony at the outset of the

rebuttal closing argument amounted to a constitutional error.

Oral Argument at 20:38-20:51, United States v. Garcia-Lagunas,

No. 14-4370 (Sept. 17, 2015), available at

http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mps.

know full well that statements made during bench conferences not
infrequently remain within earshot of nearby and attentive
jurors. Accordingly, because there is nothing in the record
here to suggest that the judge’s remarks went unheard in this
instance, it undeniably falls on this Panel, in conducting a
harmless-error review, to fully consider the trial judge’s
statements and their potential, if not likely, impact on the
jury’s verdict.

49
During oral argument, when asked whether the error amounted to

constitutional error, counsel for the Government responded

unequivocally, “Yes.” Id. The Panel then asked, as a result of

the Government’s belief that constitutional error had occurred,

whether it was the Government’s burden “to prove beyond a

reasonable doubt that the error had no substantial effect on the

jury’s verdict.” Id. In response, counsel for the Government

firmly stated, “That’s correct.” Id.

Accordingly, because it is clear that “[a]ppeals to racial,

ethnic, or religious prejudice during the course of a trial

violate a defendant’s Fifth Amendment right to a fair trial,”

United States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000), I

see no reason to resort to assumptions in addressing Garcia-

Lagunas’s appeal. See, e.g., United States v. Vue, 13 F.3d

1206, 1213 (8th Cir. 1994) (concluding that a constitutional

error occurs when the Government “invite[s] the jury to put [a

defendant’s] racial and cultural background into the balance in

determining their guilt”). The Government’s appeal to an

unabashed ethnic generalization was plainly a constitutional

error, and as a result, it is the Government’s burden to prove

that its error was harmless beyond a reasonable doubt. And, for

the reasons set forth below, I cannot conclude that the

Government carried that burden in this case.

50
 II.

As the majority explains, not all constitutional errors

mandate reversal. However, when a non-structural constitutional

error occurs, the reviewing court may only disregard the error

so long as the Government can carry its burden of demonstrating

that the error was “harmless beyond a reasonable doubt.” Neder

v. United States, 527 U.S. 1, 7 (1999) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). Here, the majority

concludes that the Government has met its harmless-error burden

because “even without the [G]overnment’s improper use of an

ethnic stereotype[,] a rational jury still would have arrived at

that verdict.” Ante at 17. 5 For several reasons, I believe this

analysis grievously misses the mark.

5As discussed fully infra, in framing the issue as it does,
the majority commits a fundamental error that has been
identified and warned against by distinguished legal scholars
and others for decades:

Properly applied, harmless error analysis should ask
only whether the state can demonstrate that error did
not sufficiently affect the outcome at trial and not,
conversely, whether evidence of guilt outweighed the
impact of any error. See Sullivan v. Louisiana, 508
U.S. 275, 279 (1993) (“The inquiry . . . is . . .
whether the guilty verdict actually rendered in this
trial was surely unattributable to the error. That
must be so, because to hypothesize a guilty verdict
that was never in fact rendered--no matter how
inescapable the findings to support that verdict might
be--would violate the jury-trial guarantee.”); Jason
M. Solomon, Causing Constitutional Harm: How Tort Law
Can Help Determine Harmless Error in Criminal Trials,
(Continued)
51
 Rule 52(a) of the Federal Rules of Criminal Procedure

mandates that “[a]ny error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.”

Fed. R. Crim. Pro. 52(a). Rule 52(a)’s “emphasi[s] [on]

‘substantial rights’” serves two important purposes. Chapman,

386 U.S. at 22. First, it stresses the significance of the

factfinding process, recognizing that, at its heart, “the

central purpose of a criminal trial is to decide the factual

question of the defendant’s guilt or innocence.” Neder, 527

U.S. at 18 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986)). Second, it “promotes public respect for the criminal

process by focusing on the underlying fairness of the trial

rather than on the virtually inevitable presence of immaterial

error.” Van Arsdall, 475 U.S. at 681. Accordingly, in

practice, Rule 52(a) works to “save the good”—those convictions

99 Nw. U. L. Rev. 1053, 1085-98 (2005) (arguing that
judges should look at evidence of influence on jury
rather than focusing primarily on untainted evidence
of guilt).

Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev.55, 108
n.195 (2008); see also John M. Greabe, The Riddle of Harmless
Error Revisited, 54 Hous. L. Rev. (forthcoming 2016) (manuscript
at 12 n.70) (“The [Supreme] Court has at . . . times . . .
suggested that the presence of overwhelming evidence of guilt
alone renders an error harmless. But these statements—which are
akin to a ‘correct result’ test of the sort rejected in Chapman—
are contradicted by the Court’s more carefully reasoned cases
and should not be taken to express the proper formulation.”
(internal citations omitted)).

52
that, while the product of an imperfect trial, were the subject

of “constitutional errors which in the setting of [the]

particular case [were] so unimportant and insignificant that

they may . . . be deemed harmless”—while excising the bad—those

convictions that might have been impacted by the complained of

error. Chapman, 386 U.S. at 22–24.

The Supreme Court applied Rule 52(a)’s harmless-error

analysis in Neder when a criminal defendant challenged a

district court’s failure to submit the materiality element of

the defendant’s tax-fraud charges to the jury. 527 U.S. at 4.

The Supreme Court began by stating the overarching test for

determining whether a constitutional error is harmless:

“[W]hether it appears ‘beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.’” Id.

at 15 (quoting Chapman, 386 U.S. at 24). To answer that

question, the Court first considered the ways in which the

Government could carry its burden of establishing the

materiality element. Id. at 16. It explained that, “[i]n

general, a false statement is material if it has a natural

tendency to influence, or [is] capable of influencing the

decision of the decisionmaking body to which it was addressed”

but noted that “several courts have determined that any failure

to report income is material.” Id. (alterations in original)

(citations and internal quotation marks omitted). The Court

53
then described how, at trial, the Government had “introduced

evidence that Neder failed to report over $5 million in income

from the loans he obtained,” and that “[t]he failure to report

such substantial income incontrovertibly” established the

materiality element of his charges. Id.

After emphasizing that Neder did not even attempt to

contest materiality, either before the jury or on appeal, the

Supreme Court concluded that, “[i]n this situation, where a

reviewing court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same

absent error, the erroneous instruction is properly found to be

harmless.” Id. at 16–17. And specifically applying the test

set forth in Chapman, the Court further noted that, “We think it

beyond cavil here that the error ‘did not contribute to the

verdict obtained.’” Id. at 17 (quoting Chapman, 386 U.S. at

24).

It is true that reading portions of Neder in isolation and

out of context from the remainder of the Supreme Court’s

extensive harmless-error jurisprudence, as the majority does in

this case, could lead one to conclude that all a reviewing court

must do to satisfy itself of an error’s harmlessness is ask

whether it is beyond a reasonable doubt that a jury would have

54
found the defendant guilty if the error had never occurred.

Such an approach, however, is misplaced and ill-advised.

First, it fails to give proper credence to the narrow

nature of the holding in Neder. In summarizing why its

harmless-error inquiry reached “an appropriate balance between

society’s interest in punishing the guilty [and] the method by

which decisions of guilt are to be made,” the Court took care to

explain that,

[i]n a case such as this one, where a defendant did
not, and apparently could not, bring forth facts
contesting the omitted element, answering the question
whether the jury verdict would have been the same
absent the error does not fundamentally undermine the
purpose of the jury trial guarantee.

Id. at 18–19. Unlike Neder, the present appeal clearly does not

fit within the narrow subset of cases where the fact that a

rational jury could have found the defendant guilty absent the

erroneous omission necessarily dictates that the error did not

contribute to the verdict.

Second, merely assuring oneself that a rational jury would

have nonetheless convicted the criminal defendant absent the

error fails to heed important guidance from the Supreme Court.

The Supreme Court has explained that, in the case of affirmative

error, a reviewing court should not simply confine itself to the

abstract and ask “whether, in a trial that occurred without the

error, a guilty verdict would surely have been rendered.”

55
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). Rather, a Rule

52(a) harmless-error analysis requires us to consider “what

effect [the error] had upon the guilty verdict in the case at

hand” and assure ourselves that “the guilty verdict actually

rendered in [the] trial was surely unattributable to the error.”

Id. This is so because, when we frame the harmless-error

analysis in the abstract and remain content to imagine a world

where the Government exclusively relied upon admissible

evidence, we not only fail to consider the error’s actual effect

on the jury, but we also “improperly conflate[] sufficiency-of-

the-evidence review with the appropriate Chapman standard.”

United States v. Holness, 706 F.3d 579, 598 (4th Cir. 2013)

(quoting Virgin Islands v. Martinez, 620 F.3d 321, 338 (3d Cir.

2010)). Here, when I consider the specifics of the Government’s

prosecution of Garcia-Lagunas and the unique nature of the

unconstitutional testimony and the prosecution’s arguments based

thereon, I am unable to conclude beyond a reasonable doubt that

the complained of error did not contribute to the jury’s

verdict. 6

6 In this regard, it bears mention that not all
constitutional infringements visited upon defendants in criminal
cases stand on equal footing. That is to say, as one scholar
argues, “judicial proceedings marred by unconstitutional
discrimination on the basis of race, religion, ethnicity,
national origin, or gender and intentional misconduct by
government officials such as . . . prosecutors” deserve a
(Continued)
56
 From opening statements through closing arguments, Garcia-

Lagunas’s trial lasted a mere thirteen hours spread over the

course of three days. Within those thirteen hours, when

confronted with a gaping hole in its confident characterization

of Garcia-Lagunas as a sophisticated drug trafficker responsible

for the distribution of more than 39 kilos of cocaine valued at

more than $1 million, the Government knowingly and purposefully

elicited inadmissible and prejudicial testimony from a law-

enforcement officer. While the Government did not qualify

Detective Orellano as an expert, it repeatedly requested that he

testify pursuant to his “training and experience” investigating

Hispanic drug trafficking organizations. J.A. 272–74.

Accordingly, when Detective Orellano explained to the jury that

it did not need to be concerned that the investigation into

Garcia-Lagunas recovered no proceeds and instead revealed a man

of abject poverty because such evidence was actually “consistent

with the method of operation of Hispanic drug traffickers,” he

did so with an authority that any juror would have had

heightened level of scrutiny in the analysis of harmless error.
Greabe, supra note 5, at 5.

57
difficulty discounting. 7 The Government no doubt hoped that

Detective Orellano’s years of experience investigating “Hispanic

drug traffickers” would carry weight with the jury, and the

import of his testimony to the Government’s case is evidenced by

the Government’s decision to begin its rebuttal closing remarks

by asking, “What did Detective Orellano tell you about Hispanic

drug trafficking organizations and about what they do with their

money?” J.A. 520.

The weighty impact of this unconstitutional testimony and

argument is illuminated further when one considers that the

Government’s case against Garcia-Lagunas relied almost

exclusively upon criminal defendants testifying pursuant to plea

agreements and circumstantial evidence. As Garcia-Lagunas

pointed out to the jury, the Government was unable to present

any direct evidence that Garcia-Lagunas participated in a drug

trafficking conspiracy through law-enforcement testimony. When

cross-examining Detective Collins, Garcia-Lagunas confirmed

that, despite a lengthy investigation into a “Mexican drug

7Importantly, further exacerbating the impact of this
improper testimony, the trial judge asked Orellano, in open
court before the jury, to state the basis of his opinion. The
magic words “training and experience” were quickly forthcoming,
and the trial judge promptly overruled counsel’s renewed
objection. J.A. 272–73. One can easily understand the
remarkable impact on a juror who observes such a display of
judicial approval of a law-enforcement witness.

58
trafficker named Alex,” the Government did not have direct

evidence of any hand-to-hand transactions or controlled buys

involving Garcia-Lagunas. J.A. 152–53. This lack of direct

evidence is especially probative when one considers that law-

enforcement officers had Reed, Garcia-Lagunas’s alleged

purchaser, under “intense surveillance” while Reed was allegedly

visiting Garcia-Lagunas at least three times a week to purchase

cocaine. J.A. 152–53, 204–06. Despite these frequent and

consistent rendezvous, law enforcement never saw Reed with

Garcia-Lagunas and did not become aware of the locations of the

meetings until after Reed was arrested on his own federal drug

trafficking charges. Id.

Of greatest significance to this appeal’s harmless-error

analysis, however, is not the highly prejudicial method by which

the unconstitutional evidence was presented to the jury, the

Government’s repeated and strategic reliance upon the evidence,

or the strength vel non of the Government’s case against Garcia-

Lagunas. The most critical factor here is the uniquely

troublesome nature of the unconstitutional testimony. Not only

do “[a]ppeals to racial, ethnic, or religious prejudice during

the course of a trial violate a defendant’s Fifth Amendment

right to a fair trial,” but on a broader note, they also place

the public’s trust in “[t]he fairness and integrity of [our]

criminal” justice system at risk. Cabrera, 222 F.3d at 594,

59
597; see also Pena–Rodriguez v. People, 350 P.3d 287, 294 (Colo.

2015) (Marquez, J., dissenting), cert. granted sub nom. Pena–

Rodriguez v. Colorado, No. 15-606, 2016 WL 1278620 (U.S. Apr. 4,

2016) (“Racial discrimination in our jury trial system not only

violates our Constitution and the laws enacted under it but is

at war with our basic concepts of a democratic society and a

representative government,” and “the harm caused by such

discrimination is not limited to the defendant—there is injury

to the jury system, to the law as an institution, to the

community at large, and to the democratic ideal reflected in the

processes of our courts.” (internal citations and quotations

marks omitted)). And it is in recognition of this fact that

several of our sister circuits have unequivocally condemned the

use of impermissible ethnic or racial generalizations and

reversed the convictions of criminal defendants, even where the

reviewing panel believed that the non-erroneous evidence was

sufficient to convict. See, e.g., Cabrera, 222 F.3d at 596–97

(reversing defendants’ convictions after noting that,

“[a]lthough we find that the evidence was sufficient to convict

Cabrera and Mulgado, Detective Brook’s repeated references to

their Cuban origin and his generalizations about the Cuban

community prejudiced Cabrera in the eyes of the jury”); Vue, 13

F.3d at 1213 (reversing defendants’ convictions despite finding

that the evidence was sufficient to sustain the convictions

60
because the panel believed that “the injection of ethnicity into

the trial clearly invited the jury to put the [defendants’]

racial and cultural background into the balance of determining

their guilt,” thereby undermining the bedrock principle of our

legal system--“[f]ormal equality before the law”). I agree that

it is “much too late in the day to treat lightly the risk that

racial bias may influence a jury’s verdict in a criminal case.”

United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990).

Here, because the Government repeatedly encouraged the jury

to consider Garcia-Lagunas’s ethnicity and draw inferences

contrary to Garcia-Lagunas’s interest in reliance upon an ethnic

generalization, I am unable to conclude that the constitutional

error did not contribute to the jury’s verdict. Specifically,

the effect of the error was to eviscerate the sole plausible

defense theory of the case, one with ample evidentiary support

in the record. Indeed, I am baffled how any reviewing court

could consider an error of this magnitude harmless beyond a

reasonable doubt, either to a criminal defendant’s conviction or

our criminal justice system on the whole. By presenting to the

jury its unconstitutionally constructed racial taxonomy of the

universe of North Carolina drug traffickers—African-American

drug dealers like Reed, who live the high life and spend

lavishly and ostentatiously, with lots of cash and drugs lying

about, in contrast to “Hispanic drug traffickers,” whose

61
members, even long-time residents in this country, like Garcia-

Lagunas, habitually choose to live in abject poverty—the

Government blatantly bolstered its case in contravention of well

known and well settled constitutional norms.

Moreover, as the majority opinion correctly and

comprehensively explains, the jury knew, for lack of a timely

objection or motion in limine by defense counsel, although it

should not have been told, that Garcia-Lagunas was present in

this country illegally. The majority refuses to treat that error

as one remediable under our plain error doctrine. But plain

error as to that singular issue to one side, the jury’s

knowledge of that irrelevant and highly prejudicial fact renders

the prosecution’s resort to racial and ethnic animus more, not

less, condemnable, and should factor into the harmless-error

analysis. It blinks reality not to do so.

III.

It is ironic that, in a break from our sister circuits, and

at a moment in our country’s history when uncommon attention is

being paid to issues of racial and ethnic stereotyping and

consequent mistreatment, actual or threatened, this Court

chooses to privilege the Government to employ, without

consequence, irrelevant, prejudicial, and factually unwarranted

evidence of blatant racial stereotyping to obtain a criminal

conviction. In this moment, not even the ethnic heritage of

62
distinguished federal judges is beyond trashing in the public

sphere, and by a prominent candidate for the most powerful

office on the planet, no less. All this at a time when this

Court has otherwise stood firmly against manifestations of

insidious racial and ethnic animus in voting, N.C. State

Conference of NAACP v. McCrory, --- F.3d ---, 2016 WL 4053033

(4th Cir. July 29, 2016), employment, Boyer–Liberto v.

Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc), and

many other domains of civic, economic, and political life.

After this published opinion, future panels of this Court

will be required to struggle with the issue of just how much

evidence of guilt is enough evidence of guilt to permit the

Court to give the Government a pass when it bolsters its pursuit

of a conviction through resort to gratuitous racial and ethnic

evidence intended to spur one or more jurors to convict. This

case sets a very low bar, considering that the level of

certainty that the constitutional violation had no effect upon

any juror is agreed to be “beyond a reasonable doubt,” a

standard that, interestingly, this Court has long refused to

allow trial judges to define for ordinary jurors. See United

States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc)

(“We find no reason to alter our current practice of not

requiring a jury instruction defining reasonable doubt in

criminal cases.”). Perhaps, as we approach the 50th anniversary

63
of the seminal teachings of Chapman v. California, the time has

come for this Court to undertake an examination of just what

“beyond a reasonable doubt” means, after all.

I would vacate the conviction on the conspiracy count of

the indictment and order a new trial.

64