United States v. Garrido

995 F.2d 808, 1993 WL 184002
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 3, 1993
DocketNos. 92-2925, 92-2975, 92-3016 and 92-3197
StatusPublished
Cited by46 cases

This text of 995 F.2d 808 (United States v. Garrido) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Garrido, 995 F.2d 808, 1993 WL 184002 (8th Cir. 1993).

Opinion

MAGILL, Circuit Judge.

This case involves a conspiracy to distribute marijuana. All four defendants were found guilty after a jury trial, and appeal, raising several claims of error at trial and at sentencing. We affirm the majority of issues. However, we vacate the sentences and remand for resentencing, finding error in the marijuana quantities used to determine the offense levels.

I. BACKGROUND

Detective Ron Pauley, who worked for the MEG Unit, a narcotics law enforcement team in St. Louis County, Missouri, arranged with defendant Jose Valenzuela-Valles (Valenzuela) to purchase marijuana in January 1992. On January 30, Pauley met with a confidential informant (Cl) and Valenzuela to discuss the purchase. On January 31, Valenzuela joined the Cl and drove to another location to pick up defendant Jose Garrido (Garrido). The three then went to Garrido’s house. En route, Garrido and Valenzuela made two phone calls to defendant Carlos Villanueva-Hernandez (Carlos), and called Carlos again from Garrido’s house.

Shortly after the Cl, Valenzuela, and Gar-rido arrived at Garrido’s house, Carlos and his brother, defendant Ismael Villanueva-Hernandez (Ismael), arrived. Carlos asked for payment for the marijuana, and was told the money was at Thrifty Inn Motel. Pauley had rented a room at the Thrifty Inn to facilitate conducting this sting operation, and a surveillance team was monitoring the motel. The Cl drove to Thrifty Inn, accompanied by Valenzuela and Garrido, and parked in a restaurant parking lot next to the motel. Carlos and Ismael drove together in their ear, and also parked in the restaurant parking lot. Carlos, Valenzuela, Garrido, and the Cl then entered the motel. Ismael remained in the car, and locked all the doors to the passenger compartment.

[811]*811The Cl called Pauley’s room from the lobby, and Garrido stood next to the Cl during this call. Garrido left the motel and began pacing around the parking lot of the motel, looking all around and turning his head in all directions. The Cl and Valenzuela went up to Pauley’s room where Pauley showed them the money, and then left to get the marijuana. While the Cl and Valenzuela waited at the motel side entrance, Carlos returned to the car, and Ismael drove it to the side entrance. As Ismael relocked the passenger compartment, Carlos removed a brick of marijuana from the trunk and reentered the motel. The Cl and Carlos took the marijuana to Pauley’s room, then returned to the car to get the rest of the marijuana. When Carlos came back out of the motel, Ismael opened the trunk with a release located in the glove compartment. Carlos removed a box containing more marijuana from the trunk, and returned to Pauley’s room. This transaction involved 31.6 pounds of marijuana. The police then arrested all four defendants. A surveillance team made a videotape from the parking lot before and during the arrests.

Carlos consented to a search of his house. In the house, police discovered two boxes containing forty-three white paper bags filled with 43.05 pounds of marijuana, a .22 caliber rifle,1 packaging materials, a triple beam scale, and $3500.

All four defendants were charged with: (Count 1) conspiracy to possess and distribute marijuana in violation of 21 U.S.C. § 841(a)(1); and (Count 2) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). The defendants were tried together before a jury. After trial, the jury returned a verdict of guilty for all four defendants on both counts.

At sentencing, the court found that the conspiracy had 150 pounds of marijuana available for sale, and used that amount to calculate an offense level of 22 for all four defendants. Ismael’s and Carlos’ (the brothers) offense levels were enhanced by two levels under U.S.S.G. § 2Dl.l(b)(l) for possession of a dangerous weapon during the commission of the offense. Carlos’ offense level was enhanced by an additional four levels under U.S.S.G. § 3Bl.l(a) based on the finding that he was a leader in a criminal activity involving five or more participants.2 Garrido was sentenced to two concurrent terms of fifty-one months; Ismael was sentenced to two concurrent terms of fifty-one months; Valenzuela was sentenced to two concurrent terms of forty-six months; and Carlos was sentenced to two concurrent terms of seventy-eight months.

II. DISCUSSION

A. Amount Used to Establish Base Offense Level

All four defendants objected at sentencing to calculating their offense levels based on a finding that the conspiracy participants had 150 pounds of marijuana available to distribute.

The court relied on U.S.S.G. § 2D1.4 to reach the final figure of 150 pounds. This section states that “the offense level shall be the same as if the object of the conspiracy ... had been completed.” U.S.S.G. § 2D1.4.3 When calculating that [812]*812the object of the conspiracy involved 150 pounds, the court included the 31.6 pounds seized at Thrifty Inn and the 43.05 pounds seized from Carlos’ house. Thus, the 150-pound estimate assumes that the conspiracy involved the marijuana seized at both locations and also involved 75.35 additional pounds of marijuana which was not seized.

We review factual findings by a sentencing court for clear error. United States v. Balfany, 965 F.2d 575, 584 (8th Cir.1992). We reverse if we are left with the definite and firm conviction that the sentencing court erred. See United States v. Lawrence, 915 F.2d 402, 406 (8th Cir.1990). We have reviewed the evidence before the district court from which it made the finding that the object of the conspiracy involved 150 pounds, and have found only the following: (1) At trial, Detective Pauley was asked how much marijuana he originally was “looking to buy.” He answered “approximately a hundred to 150 pounds.” Trial Tr. 2-4. Pauley also testified that when he and Valenzuela discussed the purchase, Valenzuela “stated that he did not have the 150 pounds, he had 30 pounds left for sale.” Trial Tr. 2-6; and (2) the presentence report for all four defendants contained a statement indicating the confidential informant had told an agent that 150 pounds were available.

However, a presentence report is not evidence, United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993), the confidential informant did not testify at trial that the conspiracy involved 150 pounds, and the government introduced no evidence to support the state-' ment in the presentence report. Pauley’s trial testimony does not establish that Valenzuela ever had 150 pounds for sale. It merely establishes that Pauley wanted to buy up to that amount. This is insufficient evidence for the court to have found the object of the conspiracy was the sale of 150 pounds. Compare United State v. Burks, 934 F.2d 148

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Cite This Page — Counsel Stack

Bluebook (online)
995 F.2d 808, 1993 WL 184002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-garrido-ca8-1993.