United States v. Garcia

576 F. App'x 878
Court of Appeals for the Tenth Circuit·Decided August 27, 2014·No. 13-8066·Unpublished·Cited by 1 cases

Opinion

ORDER AND JUDGMENT *

DAVID M. EBEL, Circuit Judge.

Garcia was found guilty of conspiracy to possess with intent to distribute and distribution of 500 grams or more of a mixture or substance with a detectable amount of methamphetamine, 21 U.S.C. §§ 846(a)(1)(A) and 841(a)(1) and (b)(1)(A) (Count 1), and of possession of a firearm in furtherance of a drug felony, 18 U.S.C. § 924(c)(1)(A) (Count 2). The district court sentenced Garcia to 120 months and then sixty consecutive months for Counts 1 and 2, respectively. Garcia appealed, contending that there was insufficient evidence to convict on either count. We affirm the jury’s verdict.

I.

The sufficiency of the evidence to support a jury’s verdict is a legal issue that is reviewed de novo. United States v. Lewis, 240 F.3d 866, 870 (10th Cir.2001). On appeal, this court asks “whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Jameson, 478 F.3d 1204, 1208 (10th Cir.2007). “The jury, as fact finder, has discretion to resolve all conflicting testimony, weigh the evidence, and draw infer- *880 enees from the basic facts to the ultimate facts.” United States v. Anderson, 189 F.3d 1201, 1205 (10th Cir.1999). “Nonetheless, we may not uphold a conviction obtained by piling inference upon inference .... The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt.” United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir.2009) (alteration in original) (internal quotation marks omitted).

II. Count One — Conspiracy to Distribute and Distribution

The government presented sufficient evidence from which a reasonable jury could have concluded that Garcia conspired with the intent to distribute and distribution of 500 grams or more of a mixture or substance with a detectable amount of methamphetamine. Garcia’s appeal on this issue focuses solely on the insufficiency of the evidence showing that the amount that Garcia distributed or intended to distribute was 500 grams or more. But, Kyle Carothers, one of Garcia’s customers, testified that he bought around an ounce of meth per day from Garcia and her husband, Sigifredo Molina, from September 2011 through January 2012 and from March 2012 through May 23, 2012, which, standing alone, is sufficient. Even were Garcia only responsible for one half an ounce per day and only from the period of October through December 2011 (i.e. not counting any of September 2011 and January of 2012), it would yield a total amount sold of 644 grams— sufficient without considering the March-May 2012 period. 1

Garcia points to the testimony of Whitney Rose, Carothers’ girlfriend at the time, contending that Carothers did not deal primarily with Garcia. Rose testified that “[Carothers] would go somewhere else in [their] house with [Molina] and they would make an exchange,” and that she “believed” that Garcia was not present during those exchanges. R. Vol. Ill at 685. However, a reasonable jury could have: 1) decided that this evidence was not definite enough to preclude Garcia from having been present and involved at the drug distribution such that at least half the meth could be attributed to Garcia; 2) disbelieved Rose; or 3) believed that Molina and Garcia were still conspiring together even if one was often not in the room actually handling the meth. Under any of these scenarios, Carothers’ testimony alone was sufficient for a reasonable jury to convict.

III. Count Two — firearm conviction

The government also presented sufficient evidence for the jury to convict on Count 2. “A conviction under 18 U.S.C. § 924(c)(1)(A) requires more than just possession of a firearm; it also requires that such possession be in furtherance of ... a drug trafficking crime.” United States v. McGehee, 672 F.3d 860, 871 (10th Cir.2012) (internal quotation marks omitted). “[T]he government must establish some nexus between the firearms and the underlying drug trafficking crime.” Id. “The intent to possess the weapon to further a drug trafficking crime is generally proven through circumstantial evidence.... ” Id. This court has held that “trading drugs for guns furthers, promotes or advances a drug trafficking crime.” United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir.2007) (internal quotation marks omit *881 ted). Additionally, this court has noted some of the types of circumstantial evidence it will consider in deciding whether a firearm was used “in furtherance” of a drug crime. McGehee, 672 F.3d at 871 (citing United States v. Trotter, 483 F.3d 694, 701 (10th Cir.2007)). The non-exclusive list of “Trotter factors” includes: “ ‘the type of drug activity being conducted, the accessibility of the firearm, the type of firearm, the legal status of the firearm, whether the firearm is loaded, the proximity of the firearm to drugs or drug profits, and the time and circumstances under which the firearm is found.’ ” Id. (quoting Trotter, 483 F.3d at 701).

Heidi Blankenship, another of Garcia’s customers, testified that she traded a gun to Garcia and Molina in exchange for a reduction of $200 in her drug debts. This fact alone would be enough to satisfy the “in furtherance” standard. See Luke-Sanchez, 483 F.3d at 706. 2 Although we acknowledge our unpublished precedent in a sentencing appeal holding that a gun traded for an accrued debt does not satisfy the “in furtherance” standard, United States v. Evans, 99 Fed.Appx. 220 (10th Cir.2004) (unpublished decision), Garcia’s situation is distinguishable. In Evans, “[t]he government concede[d] that the drug distribution, which occurred on some prior unknown date, was completed by the time [the defendant] received the gun as payment for the drugs,” 99 Fed.Appx. at 221.

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United States v. Garcia, 576 F. App'x 878 (10th Cir. 2014).

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