Argued: September 17, 2015
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)
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.
Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant.
G. Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
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.
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.
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
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.
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
Garcia-Lagunas's phone rang.
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
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.
jury charged Garcia-Lagunas 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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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."
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. 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.
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.
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; second, that he was too poor to have dealt
in the large quantities that the government's witnesses
attributed to him.
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.
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.
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.
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.
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
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.'" 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.
"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))).
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.
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)).
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.
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.
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
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