[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 16, 2007
No. 06-13485 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00134-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO GARCIA,
a.k.a. Alfredo Garcia-Perez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 16, 2007)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Alfredo Garcia appeals his conviction and sentence for conspiracy to
distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C.
§ 846. Garcia asserts there was insufficient evidence to support his conviction
because the only evidence against him was the testimony of a co-conspirator, Jose
Guajardo-Reyes, Jr., who testified in hope of receiving a more lenient sentence.
Garcia further asserts the district court erred in applying the two-point
enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. Garcia
contends the record does not support a conclusion he escaped or attempted to
escape from custody prior to sentencing, because he was mistakenly released from
custody after his conviction. We affirm Garcia’s conviction and sentence.
I. DISCUSSION
A. Sufficiency of evidence
Garcia asserts the only witness against him was Guajardo, who admitted to
three prior convictions and was in a plea agreement with the Government to testify
against Garcia in the hopes of receiving a more lenient sentence. Garcia contends
Guajardo’s testimony was insufficient to convict him of conspiracy to distribute
and possess with intent to distribute marijuana.
We review de novo whether sufficient evidence supports a conviction,
inquiring whether, after viewing the evidence in the light most favorable to the
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government, any reasonable jury could have found the essential elements of a
crime beyond a reasonable doubt. United States v. Charles, 313 F.3d 1278, 1284
(11th Cir. 2002). Determinations of the credibility of witnesses fall within the
exclusive province of the jury and may not be revisited unless the testimony is
"incredible as a matter of law." United States v. Calderon, 127 F.3d 1314, 1325
(11th Cir.1997). Testimony is incredible as a matter of law if it is "unbelievable on
its face" or includes "facts that [the witness] physically could not have possibly
observed or events that could not have occurred under the laws of nature." Id.
Guajardo’s testimony was not incredible as a matter of law. He testified to
matters he observed, and, in addition, the jury was aware of both Guajardo’s
criminal history and his plea agreement with the Government. Moreover, Garcia’s
own post-arrest statements bolstered Guajardo’s testimony that it was Garcia who
introduced Guajardo to Frank Enriquez-Pina for the purpose of obtaining 200
pounds of marijuana and was present during the negotiations between Guajardo
and Enriquez for the purchase of the drugs. Garcia’s own statements also
corroborated Guajardo’s testimony that Garcia (1) arranged for transportation from
Texas to Pensacola, (2) traveled with Guajardo to Pensacola, and (3) met with and
spoke to Enriquez about the delivery of drugs. It was not unreasonable for the jury
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to find Guajardo’s testimony was credible because it was corroborated by other
evidence.
In order to sustain a conspiracy conviction under § 846, the Government
must have offered sufficient evidence to prove, beyond a reasonable doubt (1) an
illegal agreement existed to possess with intent to distribute marijuana; (2) Garcia
knew of it; and (3) Garcia knowingly and voluntarily joined the agreement. See
Charles, 313 F.3d at 1284. Based on Guajardo’s testimony and Garcia’s own
statements, there was sufficient evidence to prove an illegal agreement existed,
Garcia knew of the essential nature of it, and was a knowing and willing
participant. Thus, there was sufficient evidence to convict Garcia of conspiracy to
distribute and possess with intent to distribute marijuana
B. Obstruction of justice
Garcia asserts the record does not support a conclusion that he escaped or
attempted to escape from custody prior to sentencing. He asserts he was
(1) inadvertently released by Escambia County Jail officials; (2) he returned to San
Antonio, Texas, and contacted his attorney; (3) counsel for Garcia made several
phone calls to the U.S. Marshals Office in Pensacola, but was told that Garcia was
still in their custody, and (4) after Garcia and his girlfriend married, the U.S.
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Marshals Office was informed where Garcia could be located, and he was
subsequently arrested without incident.
When a district court imposes an enhancement for obstruction of justice, we
review the district court's findings of fact findings for clear error and its application
of the Sentencing Guidelines to the facts de novo. United States v. Uscinski, 369
F.3d 1243, 1246 (11th Cir. 2004). According to § 3C1.1, a two-level enhancement
is proper, if "the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense of conviction."
U.S.S.G. § 3C1.1.1
The Commentary provides “a non-exhaustive list of examples of the types of
conduct to which this adjustment applies." U.S.S.G. § 3C1.1, comment. (n.4). An
example of the type of conduct for which the enhancement applies is "escaping or
attempting to escape from custody before trial or sentencing; or willfully failing to
appear, as ordered, for a judicial proceeding." Id., comment. (n.4(e)). The
Commentary also provides a non-exhaustive list of the types of conduct that do not
warrant an application of the enhancement. Id., comment. (n.5). An example from
this list includes "avoiding or fleeing from arrest," unless the defendant "recklessly
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Garcia was sentenced under the November 1, 2005 version of the Guidelines manual.
Thus, all citations of the Sentencing Guidelines refer to the 2005 version.
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created a substantial risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.1, comment.
(n.5(d)); U.S.S.G. § 3C1.2. "Obstructive conduct can vary widely in nature, degree
of planning, and seriousness," and the Commentary instructs performing a
comparison of the conduct at hand to the conduct in the non-exhaustive lists in
Application Notes Four and Five to "assist the court in determining whether
application of this adjustment is warranted in a particular case." U.S.S.G. § 3C1.1,
comment. (n.3).
The district court did not err in enhancing Garcia’s sentence for obstruction
of justice under § 3C1.1. The court was understanding of Garcia’s travel to Texas
and his subsequent marriage, but found his failure to turn himself in afterwards
inexcusable. The court found that his conduct created unnecessary risk when he
caused the marshals to go into a house after him. Although Garcia argues his
behavior was not per se escaping, the Commentary to the provision specifically
states the examples in Application Notes Four and Five are “non-exhaustive” and
when determining whether to apply the provision, the court should compare the
type of behavior at hand to the type of behavior either warranting or not warranting
an enhancement. Although it is true Garcia did not escape from custody, he did
not turn himself back over to authorities for 15 days while he remained at large
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after his release. In addition, even after arrangements were made for his surrender,
he continued to elude authorities for several more days. It was only after the
marshals placed surveillance on his aunt’s home that he was finally apprehended.
Garcia’s post-conviction conduct caused the Government to take the additional
steps of tracking him down, placing surveillance on his aunt’s home, and re-
apprehending him, and the conduct is the type of conduct that warrants application
of the adjustment.
II. CONCLUSION
Sufficient evidence supports Garcia’s conviction. Additionally, the district
court did not err in applying the enhancement for obstruction of justice. We affirm
Garcia’s conviction and sentence.
AFFIRMED.
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