United States v. Francis Garzon

• Court: Court of Appeals for the Third Circuit
• Decided: February 4, 2025
• Docket: 24-1266
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 24-1266

UNITED STATES OF AMERICA,

v.

FRANCIS ANTHONY GARZON,

Appellant

Appeal from the United States District Court for the District of New Jersey (District Court No. 3:21-cr-00896-001) District Judge: Honorable Zahid N. Quraishi

Submitted under Third Circuit L.A.R. 34.1(a) January 22, 2025

Before: HARDIMAN, McKEE, and AMBRO, Circuit Judges

(Opinion filed February 4, 2025)

OPINION*

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. AMBRO, Circuit Judge

Defendant Francis Garzon thought he had been robbed. So he and his associates

set out on a multistate vigilante mission to find the offender and reclaim Garzon’s

property, threatening people at gunpoint and intimidating witnesses. After Garzon

pleaded guilty, the District Court sentenced him to 121 months in prison. He now appeals

four rulings underpinning that sentence. Finding no error, we affirm.

I. Background

In September 2019, a suitcase was taken from Garzon’s Brooklyn apartment while

he was away on vacation. His building’s security footage captured a man leaving with the

suitcase, which Garzon says contained $100,000 worth of cash and valuables.

Garzon filed no police report. Instead, he took matters into his own hands. During

his vacation, he had left an apartment key with an acquaintance, Adem Ayoub, and

Garzon assumed Ayoub was involved with the theft. After investigating more, Garzon

came to believe a man named Craig Pius was also involved and, in fact, was the man seen

on the video carrying the suitcase. Garzon researched Pius and learned his address, the

names of his wife and daughter, and the names and address of his parents.

In December 2019, Garzon, an associate named Endrit Kllogjeri, and another man

accosted Pius’s parents on the doorstep of their New Jersey home. The men insisted Pius,

the couple’s adult son, had stolen the suitcase from Garzon’s apartment, and they

demanded the valuables back with an additional $100,000 cash. Garzon made Pius’s

father call his son. When he did so, Garzon snatched the phone from him to speak to Pius,

threatening him and his daughter. Next, Garzon pointed a gun—he disputes whether it

2 was a real one, a matter of legal significance—at the father’s head and cocked it. Before

anything else happened, Kllogjeri grabbed Garzon’s arm and lowered it, saying, “No. Not

now.”, but told Pius’s father his life was “on the line.” App. 203. Garzon and the

associates left, yet the extortive conduct continued for another week. During that time, for

example, Garzon called Pius’s family and threatened them, and he sent Pius’s father

videos of the family that had been recorded in secret. Eventually, police found and

arrested Garzon and Kllogjeri.

In custody, Garzon admitted he went to Pius’s parents’ house to intimidate Pius

into giving back the valuables. Though he admitted to pointing a gun at Pius’s father’s

head to intimidate him, he claimed it was only a BB gun. Garzon said he tossed it away

after leaving the house; it has never been recovered. Once charged by complaint, Garzon

was released on bond. While out on bond, he found Ayoub, the acquaintance who had the

keys to Garzon’s apartment during his vacation, and threatened to kill him.

Garzon was then charged by a two-count indictment for Hobbs Act extortion. He

pleaded guilty the week before trial. Meanwhile, Kllogjeri was convicted after his own

trial. In those proceedings, Pius’s parents testified that the gun on the porch was a real

firearm, and Kllogjeri, despite standing to benefit, never alleged that the gun was not real.

Garzon’s sentencing was the subject of substantial briefing and a thorough

hearing. The District Court determined Garzon’s offenses fell within a United States

Sentencing Guidelines range of 121–151 months and, in January 2024, imposed a

sentence at the bottom: 121 months. Garzon timely appealed.

3 Before us, Garzon challenges four of the District Court’s rulings concerning his

Guidelines range and the underlying enhancements: (1) that he possessed a firearm;

(2) that he “otherwise used” that firearm and did not merely “brandish” it; (3) that he

obstructed justice when he threatened Ayoub; and (4) that because of his obstruction, he

forfeited any sentence reduction for acceptance of responsibility.1

II. Discussion2

The government must prove the application of a sentencing enhancement by a

preponderance of the evidence. United States v. Chandler, 104 F.4th 445, 449 (3d Cir.

2024). On appeal, we review for clear error a district court’s factual findings and

application of the Guidelines to the facts. United States v. Rodriguez, 40 F.4th 117, 120–

21 (3d Cir. 2022). “We find clear error if, when reviewing the entire record, we are left

with the definite and firm conviction that a mistake has been committed.” United States v.

Caraballo, 88 F.4th 239, 244 (3d Cir. 2023) (internal quotations omitted).

A. The District Court did not clearly err in finding that Garzon used a firearm.

Section 2B3.2(b)(3)(A) of the Guidelines provides sentencing enhancements when

a weapon is used to harm or threaten others during the commission of an extortive crime.

1 Garzon also obliquely challenges the substantive reasonableness of his 121-month sentence, but he makes no argument on this point beyond his four challenges to the District Court’s application of the Guidelines. “Such a passing reference does not preserve the issue for appeal.” United States v. James, 955 F.3d 336, 345 n.8 (3d Cir. 2020). 2 The District Court had jurisdiction over Garzon’s federal offenses under 18 U.S.C. § 3231. We have jurisdiction over his challenge to his sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

4 When that weapon is a generic “dangerous weapon,” enhancements of 3 and 4 levels may

apply. U.S.S.G. § 2B3.2(b)(3)(A)(iv), (v); see § 1B1.1 cmt. n.1(E) (defining “[d]angerous

weapon”). But when the weapon is a “firearm,” those enhancements jump to 5, 6, and 7

levels. § 2B3.2(b)(3)(A)(i), (ii), (iii); see § 1B.1 cmt. n.1(H) (defining “[f]irearm”).

Throughout sentencing, relying on his statement to police that he possessed only a

BB gun, Garzon argued for the lower “dangerous weapon” enhancement. Instead, the

District Court applied a 6-level enhancement, finding Garzon had a firearm.3 Garzon

renews that argument before us, believing the District Court based its application on

insufficient evidence.

The District Court relied on two kinds of evidence. First, Pius’s parents, who came

face-to-face with the gun, testified that it appeared to be a real gun, and the Court found

that testimony credible. Garzon resists, noting that the parents are not firearms experts,

but we have previously held that the “credible” testimony of laypersons held at gunpoint

can prove a gun was real. E.g., United States v. Lake, 150 F.3d 269, 271 (3d Cir. 1998);

United States v. Beverly, 99 F.3d 570, 572 (3d Cir. 1996); see also United States v. Smith,

786 F. App’x 790, 793 (10th Cir. 2019) (unpublished) (“[When] the burden of proof is a

preponderance of evidence, one need not be a firearms expert to reliably state that a gun

was pointed at one’s face.”) Second, Garzon’s associate Kllogjeri, who could have

benefited by testifying at his own trial that it was not a real gun, did not do so. By

contrast, the only affirmative evidence supporting Garzon is his self-serving testimony.

3 The precise level of enhancement was informed by the Court’s finding that Garzon “otherwise used” the firearm, discussed in Part II.B below. 5 Reviewing the record, we cannot say there was clear error in the District Court’s

determination that the preponderance of the evidence supported the gun’s authenticity—

that is, that the gun was more likely than not a “firearm” as defined by the Guidelines.

See U.S.S.G § 1B.1 cmt. n.1(H); Chandler, 104 F.4th at 449 (enhancements are proved

by preponderance of evidence).

B. The District Court did not err by finding Garzon did not merely brandish the firearm but further “otherwise used” it.4

Under the Guidelines, “[b]randish[ing]” a weapon “means that all or part of the

weapon was displayed, or the presence of the weapon was otherwise made known . . . in

order to intimidate [a] person, regardless of whether the weapon was directly visible to

that person.” § 1B1.1 cmt. n.1(C). “Otherwise used” means “the conduct did not amount

to the discharge of a firearm but was more than brandishing, displaying, or possessing a

firearm or other dangerous weapon.” § 1B1.1 cmt. n.1(J) (emphasis added). So while

brandishing merely requires making the “presence” of the gun known to threaten, we and

our sister circuits have held that the pointing of a firearm in the midst of threatening

action rises to the level of “otherwise used.” E.g., United States v. Orr, 312 F.3d 141, 145

(3d Cir. 2002) (rejecting the requirement of any “verbalized threat to harm the victim”

and affirming application of enhancement when defendant “point[ed] a gun at the head of

[a bank’s] assistant manager and order[ed] her to empty money into a garbage bag”);

4 The Government argues that Garzon waived this argument when he agreed at sentencing that if the District Court found he pointed the gun at Pius’s father’s head, he indeed “otherwise used” the gun. Answering Br. 16–17. We need not decide whether the Government is right, as we affirm on review for clear error. 6 United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009) (“By pointing the gun at [the

victim’s] face, as opposed to merely displaying it for intimidation purposes, [defendant]

‘otherwise used’ the gun rather than ‘brandished’ it.”).

In his brief to us, Garzon argues that “otherwise used” requires more than just

pointing the gun. Opening Br. 15–21. For the reasons just articulated, we agree. Garzon

pointed the gun at Pius’s father’s head, cocked it, and demanded he make Pius return the

valuables, so the District Court correctly applied the enhancement here.

C. The District Court correctly applied the obstruction-of-justice enhancement for Garzon’s threat to “kill” Ayoub.

Section 3C1.1 of the Guidelines provides a 2-level enhancement when the

defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the . . . prosecution” and the conduct “related

to . . . the defendant’s offense of conviction.” This includes threatening witnesses. See

§ 3C1.1 cmt. n.4(A).

At sentencing, the District Court heard testimony from Ayoub about Garzon’s

threats and viewed videos of the incident, including one Ayoub took on his cell phone.

The District Court found Ayoub credible, determined his testimony tracked the videos,

and applied the enhancement.

Before us, Garzon challenges minor factual inconsistencies in Ayoub’s testimony

and the District Court’s credibility determination. Only in “rare circumstances” will we

hold a district court’s credibility determination to be clearly erroneous, but we do not find

those circumstances here. Dardovitch v. Haltzman, 190 F.3d 125, 140 (3d Cir. 1999).

7 “[T]he record, as well as common sense, amply supports the District Court’s conclusion

as to the weight to be accorded to” Ayoub’s testimony. Id. Further, the “insignificant

testimonial inconsistencies” Garzon identifies are not sufficient grounds to “reject[] a

positive credibility finding under a clear error standard.” Alimbaev v. Att’y Gen., 872 F.3d

188, 198 (3d Cir. 2017) (internal quotation marks omitted).

Because the District Court did not err in crediting Ayoub’s testimony about

Garzon’s threats, it did not clearly err in its application of the enhancement for

obstruction of justice based on that testimony.

D. The District Court did not err by denying an acceptance-of-responsibility reduction in Garzon’s offense level.

Under U.S.S.G. § 3E1.1(a), a defendant can receive a two-level decrease in

offense level for accepting responsibility—often by pleading guilty, as Garzon did. But

sensibly, that Guideline also provides that application of an obstruction-of-justice

enhancement, see Part II.C above, bars the reduction for accepting responsibility except

in “extraordinary” circumstances. § 3E1.1 cmt. n.4.

Garzon argues that the District Court erred by deciding in rote manner that the

obstruction-of-justice enhancement per se defeated the acceptance-of-responsibility

credit—that is, without evaluating whether his was an extraordinary circumstance. He is

wrong. The transcript shows the District Court made such a finding, so we affirm. See

App. 143 (“With respect to the acceptance of responsibility enhancement, I find that it no

longer applies. I’m taking away Mr. Garzon’s points. He threatened a witness. That is

8 absolutely unacceptable. It meets the obstruction of justice enhancement. There’s nothing

extraordinary about this case.”).5

* * * We perceive no clear error in the District Court’s findings that Garzon “otherwise

use[d]” a “firearm,” obstructed justice, and did not present extraordinary circumstances

that would preserve a Guidelines reduction for acceptance of responsibility. Accordingly,

we affirm his sentence.

5 Were this not enough, we observe, without deciding, that Garzon may have waived this issue when his counsel admitted he had no argument for why this might be an extraordinary circumstance. See App. 138 (Defense counsel, to the Court: “[Garzon]’s not going to get [the] acceptance of responsibility reduction based on your finding of the obstruction. I do not have arguments for extraordinary [circumstances].”). See United States v. Davis, 105 F.4th 541, 547 (3d Cir. 2024) (discussing waiver in the context of sentencing hearings).