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United States v. Garcia-Lagunas

United States Court of Appeals, Fourth Circuit

September 1, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes, Defendant-Appellant.

          Argued: September 17, 2015

         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)


          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.

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

          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.



         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.

         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 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.


         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 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 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.

         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 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. 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 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 (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 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.


         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), /mp3/14-4370-20150917.mp3, that the use of the stereotype was constitutional error, and proceed directly to the question of 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).


         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 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 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)).


         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 doubt that-even without the government's improper use of an ethnic stereotype-a rational jury still would have arrived at that verdict.


         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 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 ...

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