CA No. 15-10203cdn.ca9.uscourts.gov/datastore/uploads/enbanc/15-10203...DANIEL G. BOGDEN United...

CA No. 15-10203

District Court No. 2:13-cr-148-JAD-GWF

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEXIS TORRES-SIMON,

Defendant-Appellant. __________

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEVADA _________________________________________

Government’s Proposed Supplement for En Banc Rehearing _________________________________________

DANIEL G. BOGDEN United States Attorney ELIZABETH O. WHITE Appellate Chief and Assistant United States Attorney District of Nevada 100 W. Liberty, Suite 600 Reno, Nevada 89501 (775) 784-5438 Attorneys for the United States

Case: 15-10203, 01/27/2017, ID: 10291055, DktEntry: 45, of 18

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TABLE OF CONTENTS

A. Excerpts from Government’s Answering Brief in Unites States v. Julio De Armas Diaz (15-10230) .......................... 1 B. Excerpts from Government’s Answering Brief in Unites States v. Alexander Del Valle Garcia (15-10230) ................ 8


CA No. 15-10230


IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________


Plaintiff-Appellee,

v.

JULIO DE ARMAS DIAZ,

Defendant-Appellant.

________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

GOVERNMENT’S ANSWERING BRIEF

DANIEL G. BOGDEN

United States Attorney

ELIZABETH O. WHITE

Appellate Chief

ADAM FLAKE

Assistant U.S. Attorney

District of Nevada

501 Las Vegas Blvd S. Ste. 1100

Las Vegas, NV 89101

(702) 388-6336

Attorneys for Appellee

Date submitted: April 27, 2016

Case: 15-10230, 04/27/2016, ID: 9955384, DktEntry: 17, Page 1 of 47

Addendum001


30

Next, Diaz claims that the “only” evidence linking Diaz to the

Smith’s robbery came from Easter. AOB 35. This is incorrect. As quoted

above, Diaz and Simon referenced that robbery during the April 7

recording. See ante, 4-5. Moreover, Diaz’s attempt to undermine

Easter’s testimony suffers from the same malady that all his sufficiency

arguments do: this Court does not determine how much weight the jury

should give evidence on appeal. It construes the evidence in a light most

favorable to the verdict.

Finally, Diaz seeks to discount evidence that Corona received a

bottle of morphine stolen from the Walgreen’s robbery from Diaz’s

father because that bottle could have come from another source. AOB

35. Once again, the jury was free to give this evidence as much weight

as it saw fit in determining Diaz’s guilt or innocence. This Court does

not remake that determination.

D. The District Court Correctly Calculated Diaz’s Sentence.

Diaz challenges two different aspects of his sentence. AOB 36-47.

With respect to his challenge to the district court’s decision to apply

U.S.S.G. § 2X1.1 in the first instance and, alternatively, to consider the

coconspirators intended conduct as relevant conduct under § 1B1.3, the


Addendum002


31

government disagrees for the reasons explained in the Answering Brief

in Garcia, pages 67-72, which it hereby adopts, and for the reasons

explained in Section 1, below. The district court’s decision to apply the

obstruction of justice enhancement was correct for the reasons

explained in Section 2, below.

1. The District Court Correctly Applied the Conspiracy

Guideline, 2X1.1, to Diaz’s Conviction for Conspiring to

Commit Hobbs Act Robbery.

1. Standard of Review

Generally, when reviewing a sentence, this Court “first consider[s]

whether the district court committed significant procedural error[.]”

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). It

“review[s] the district court’s interpretation of the Sentencing

Guidelines de novo, the district court’s application of the Guidelines to

the facts for abuse of discretion, and the district court’s factual findings

for clear error.” United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.

2008).

2. Analytical Framework

As is relevant to this appeal, to calculate a sentence, the court

first determines the applicable offense Guideline section. U.S.S.G. §

1B1.1. The court then ascertains the base offense level and applies any


Addendum003


32

appropriate specific offense characteristics. Id. It then makes

appropriate adjustments related to victims, role, and obstruction of

justice. Id.

3. Argument

In paragraph 36 of Diaz’s PSR, Probation recommended basing

Garcia’s base offense level on U.S.S.G. § 2X1.1, which covers conspiracy,

unless the conspiracy “is expressly covered by another offense guideline

section.” That Guideline recommends applying enhancements from the

underlying Guideline for “intended offense conduct that can be

established with reasonable certainty.” Id. Probation accordingly

recommended applying enhancements for, among other things,

abduction, carjacking, and an intended loss amount of over $50,000 but

under $250,000. PSR ¶ 36. The district court followed Probation’s

recommendation. ER 63-64.

Diaz claims that the district court should not have applied

U.S.S.G. § 2X1.1, and instead should have applied U.S.S.G. § 2B3.1.

AOB 38-46. Under that theory, he argues that the abduction,

carjacking, and intended loss enhancements cannot apply because the


Addendum004


33

defendants were arrested before they actually committed those acts.

AOB 44-45. This argument lacks merit for at least two reasons.

First, § 2X1.1, not § 2B3.1, properly applies. Conspiracy to commit

Hobbs Act robbery in violation of 18 U.S.C. § 1951 is not expressly

covered in U.S.S.G. § 2B3.1, the specific offense guideline for robbery,

extortion, and blackmail. Diaz claims that “[b]ecause 18 U.S.C. § 1951

punishes conspiracy to interfere with commerce by robbery, the proper

guideline to apply is § 2B3.1, [and] there was no need nor ability for the

district court to resort to § 2X1.1.” AOB 41. But whether § 2X1.1 applies

does not depend on the language of the underlying statute—it applies

unless the “conspiracy is expressly covered by another offense guideline

section[.]” U.S.S.G. § 2X1.1(c)(1) (emphasis added).

Other circuits have held that Hobbs Act conspiracies are covered

by § 2X1.1. See, e.g., United States v. Gonzales, 642 F.3d 504, 505 (5th

Cir. 2011); United States v. Amato, 46 F.3d 1255, 1261 (2d Cir. 1995);

United States v. Mershon, 322 F. App’x 232, 236 (3d Cir. 2009)

(unpublished). The district court correctly adopted this reasoning,

relying on Amato. ER 63-64.


Addendum005


34

Diaz claims that the district court erred by relying on Amato

because that case “ignores Appendix A to the Guidelines, which

expressly directs Hobbs Act robberies to be calculated under § 2B3.1.”

AOB 43. While the Appendix lists § 2B3.1 among several Guidelines for

violations of 18 U.S.C. § 1951, the Appendix also states, “For the rules

governing the determination of the offense guideline section(s) from

Chapter Two, and for any exceptions to those rules, see §1B1.2

(Applicable Guidelines).” See U.S.S.G. § Appendix A, Introduction. That

section in turn states that “Refer to the Statutory Index (Appendix A) to

determine the Chapter Two offense guideline, referenced in the

Statutory Index for the offense of conviction. If the offense involved a

conspiracy, attempt, or solicitation, refer to § 2X1.1 (Attempt,

Solicitation, or Conspiracy) as well as the guideline referenced in the

Statutory Index for the substantive offense.” U.S.S.G. § 1B1.2. As

argued above, the district court correctly referred to § 2X1.1.

Diaz claims that “this Court has acknowledged the substantive

guideline, and not U.S.S.G. § 2X1.1, applies to attempt, conspiracy, and

solicitation crimes that are specifically included in the statute defining

the offense.” AOB 43, citing United States v. Van Boom, 961 F.2d 145,


Addendum006


35

146 (9th Cir. 1992), and United States v. Koeing, 952 F.2d 267, 272 (9th

Cir. 1991). Neither Van Boom nor Koeing address conspiracy to commit

Hobbs Act robbery in violation of 18 U.S.C. § 1951. See Van Boom, 961

F.2d at 146 (conviction for attempt bank robbery); Koeing, 952 F.2d at

270 (conviction for conspiracy to produce and use counterfeit access

devices).

Even if § 2X1.1 did not apply initially, moreover, the abduction,

carjacking, and intended loss enhancements would still apply as

relevant conduct under § 1B1.3, as the court properly held in the

alternative. ER 2536. U.S.S.G. § 1B1.3(a)(3) applies to “all harm that

was the object of such acts and omissions[,]” U.S.S.G. § 1B1.3(a)(3), and

§ 1B1.3’s Application Note 8 states, “In the case of a partially completed

offense . . . the offense level is to be determined in accordance with §

2X1.1 (Attempt, Solicitation, or Conspiracy) whether the conviction is

for the substantive offense, the inchoate offense (attempt, solicitation,

or conspiracy), or both.” The intended abduction, carjacking, and loss

amount were all relevant conduct under § 1B1.3. ER 2536.6

6 Diaz invokes the rule of lenity. AOB 43-44. That rule does not apply

here, however, because he has not identified any grievous ambiguity in


Addendum007


CA No. 15-10220


IN THE

UNITED STATES COURT OF APPEALS


__________


Plaintiff-Appellee,

v.

ALEXANDER DEL VALLE GARCIA,


________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

GOVERNMENT’S ANSWERING BRIEF

DANIEL G. BOGDEN

United States Attorney

ELIZABETH O. WHITE

Appellate Chief

ADAM FLAKE

Assistant U.S. Attorney

District of Nevada

333 Las Vegas Blvd S. Ste. 5000

Las Vegas, NV 89101

(702) 388-6336

Attorneys for Appellee

Date submitted: March 10, 2016


Addendum008


67

with respect to this April 8th situation,” ER 2381, and “the question of

what he was arrested on is simply not relevant to this.” ER 2383.

On appeal, Garcia claims that what the FBI knew “was relevant

to show at the very least how late Garcia was brought into any alleged

scheme” and that it bolstered Garcia’s mere presence defense. AOB 62-

63. Garcia cannot show an abuse of discretion. The jury was tasked with

evaluating the evidence to determine whether it proved beyond a

reasonable doubt that Garcia committed conspiracy and false

statement. It was not tasked with evaluating the legal question of

probable cause. The court acted well within its discretion in excluding

this irrelevant line of questioning.

I. The District Court Correctly Calculated Garcia’s Sentence.


Generally, when reviewing a sentence, this Court “first consider[s]

whether the district court committed significant procedural error[.]”

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). It

“review[s] the district court’s interpretation of the Sentencing

Guidelines de novo, the district court’s application of the Guidelines to

the facts for abuse of discretion, and the district court’s factual findings


Addendum009


68

for clear error.” United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.

2008).

“The district court’s determination that [a defendant] obstructed

justice is a factual finding reviewed for clear error.” United States v.

Ancheta, 38 F.3d 1114, 1117 (9th Cir. 1994). This Court reviews the

decision to apply the obstruction of justice enhancement to a given set of

facts for abuse of discretion. United States v. McNally, 159 F.3d 1215,

1217 (9th Cir. 1998).

“The district court’s determination about whether a defendant was

engaged in a mitigating role is also reviewed for clear error.” United

States v. Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010).

This Court reviews a district court’s finding that a defendant

possessed a firearm under the Guidelines for clear error. United States

v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990). It likewise reviews for

clear error a finding that a codefendant’s conduct was reasonably

foreseeable. Id.

2. Analytical Framework

As is relevant to this appeal, to calculate a sentence, the court

first determines the applicable offense Guideline section. U.S.S.G. §


Addendum010


69

1B1.1. The court then ascertains the base offense level and applies any

appropriate specific offense characteristics. Id. It then makes

appropriate adjustments related to victims, role, and obstruction of

justice. Id.

3. Argument

a. The District Court Correctly Applied the Conspiracy

Guideline, 2X1.1, to Garcia’s Conviction for Conspiring

to Commit Hobbs Act Robbery.

In paragraph 35 of the PSR, Probation recommended basing

Garcia’s base offense level on U.S.S.G. § 2X1.1, which covers conspiracy,

unless the conspiracy “is expressly covered by another offense guideline

section.” That Guideline recommends applying enhancements from the

underlying Guideline for “intended offense conduct that can be

established with reasonable certainty.” Id. Probation accordingly

recommended applying enhancements for, among other things,

abduction, carjacking, and an intended loss amount of over $50,000 but

under $250,000. PSR ¶ 35.

Garcia claims that the district court should not have applied §

2X1.1, and instead should have applied U.S.S.G. § 2B3.1. AOB 64-70.

Under that theory, he argues that the abduction and carjacking

enhancements could not apply because § 2B3.1 “required the actual


Addendum011


70

occurrence of abducting and carjacking,” and that the loss enhancement

could not apply because § 2B3.1 “explicitly preclude[s] the application of

intended loss.” AOB 65. This argument lacks merit for at least two

reasons.

First, § 2X1.1, not § 2B3.1, properly applies. Conspiracy to commit

Hobbs Act robbery in violation of 18 U.S.C. § 1951 is not expressly

covered in U.S.S.G. § 2B3.1, the specific offense guideline for robbery,

extortion, and blackmail. Garcia argues that § 2B3.1 applies because

“[b]y its very language, § 1951 includes conspiracies and attempts.”

AOB 64. But whether § 2X1.1 applies does not depend on the language

of the underlying statute—it applies unless the “conspiracy is expressly

covered by another offense guideline section[.]” U.S.S.G. § 2X1.1(c)(1)

(emphasis added). While this Court has not squarely addressed the

issue, other circuits have held that Hobbs Act conspiracies are covered

by § 2X1.1. See, e.g., United States v. Gonzales, 642 F.3d 504, 505 (5th

Cir. 2011); United States v. Amato, 46 F.3d 1255, 1261 (2d Cir. 1995);

United States v. Mershon, 322 F. App’x 232, 236 (3d Cir. 2009)


Addendum012


71

(unpublished).14 The district court correctly adopted this reasoning,

relying on Amato. ER 3075-76.

Garcia claims that “the Ninth Circuit has held . . . that the

robbery guidelines and not the conspiracy guidelines, govern violations

of § 1951 even when the violation only involves conspiracy to commit

robbery.” AOB 66, citing United States v. Van Boom, 961 F.2d 145, 146

(9th Cir. 1992), and United States v. Shaw, 91 F.3d 86, 88-89 (9th Cir.

1996). Neither Van Boom nor Shaw address conspiracy to commit

Hobbs Act robbery in violation of 18 U.S.C. § 1951. See Van Boom, 961

F.2d at 146 (conviction for attempt bank robbery); Shaw, 91 F.3d at 88

(conviction for attempt armed bank robbery, armed bank robbery, and

use of a firearm).

Second, even if § 2X1.1 did not apply initially, the abduction,

carjacking, and intended loss enhancements would still apply as

relevant conduct under § 1B1.3, as the court properly held in the

alternative. ER 3140. Garcia contends that the abduction, carjacking,

14 In United States v. Thomas, 8 F.3d 1552, 1564-65 (11th Cir. 1993),

the Eleventh Circuit declined to apply § 2X1.1 to conspiracy to commit

robbery under the Hobbs Act, but it did so relying partly on United

States v. Skowronski, 968 F.2d 242, 249-50 (2d Cir.1992)) which was

later overruled by Amato, 46 F.3d at 1261.


Addendum013


72

and intended loss were not relevant conduct because they did not

actually occur, and “§ 1B1.3 permits consideration of ‘all acts and

omissions committed’ and ‘all harm that resulted from the acts and

omissions[.]’” AOB 70. But U.S.S.G. § 1B1.3(a)(3) also applies to “all

harm that was the object of such acts and omissions[.]” U.S.S.G. §

1B1.3(a)(3). And § 1B1.3’s Application Note 815 states, “In the case of a

partially completed offense . . . the offense level is to be determined in

accordance with § 2X1.1 (Attempt, Solicitation, or Conspiracy) whether

the conviction is for the substantive offense, the inchoate offense

(attempt, solicitation, or conspiracy), or both.” The intended abduction,

carjacking, and loss amount were all relevant conduct under § 1B1.3.

ER 3140.

This result makes sense. Garcia should not escape punishment for

planning to commit abduction, carjacking, and robbery of a vehicle of

more than $50,000-worth of drugs because law enforcement fortuitously

intervened shortly before he and his coconspirators could bring their

plan to fruition. See U.S.S.G. § 2X1.1, Commentary, Background (“In

15 This note was numbered 7 in the November 2014 version of the

Guidelines, under which Garcia was sentenced. It was renumbered 8 in

the November 2015 version, but the wording was not changed.


Addendum014


73

most prosecutions for conspiracies or attempts, the substantive offense

was substantially completed or was interrupted or prevented on the

verge of completion by the intercession of law enforcement authorities

or the victim. In such cases, no reduction of the offense level is

warranted.”).

b. The District Court Properly Applied the Obstruction

Enhancement.

In paragraph 39 of the PSR, Probation recommended applying a

two-level obstruction enhancement under U.S.S.G. § 3C1.1, which

applies when “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant

offense of conviction[.]” Application Note (4)(G) gives the following as an

example of obstruction: “providing a materially false statement to a law

enforcement officer that significantly obstructed or impeded the official

investigation or prosecution of the instant offense[.]”

At trial, the government introduced evidence that Garcia falsely

told law enforcement that his passenger’s name was “Giovanni,” that

the two of them were headed to the MGM to try to get “Giovanni” a job,

and that the gloves and duct tape in the car he was driving belonged to


Addendum015


1

CERTIFICATE OF SERVICE

I hereby certify that on January 27, 2017, I electronically filed the foregoing Government’s Proposed Supplement for En Banc Rehearing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case will be served by the appellate CM/ECF system.

/s Elizabeth O. White ELIZABETH O. WHITE Appellate Chief and Assistant United States Attorney


CA NO. 15-10203

IN THE UNITED STATES COURT OF APPEALS


* * *


Plaintiff-Appellee, Ninth Circuit Docket No.: 15-10203

D.C. No. 2:13-CR 00148-JAD-GWF

(Nevada, Las Vegas)

v.

ALEXIS TORRES-SIMON,


On Appeal from the United States District COUli

for the District of Nevada

Appellant's Proposed Supplement for En Bane Rehearing

DUSTIN R. MARCELLO (SBN 010134) PITARO & FUMO, CHTD.

601 Las Vegas Blvd. South Las Vegas, Nevada 89101

Tel. 702/474-7554 Fax 702/474-4210 E-mail [email protected] ATTORNEY FOR APPELLANT


1

2 A. Excerpts from Opening Brief in

3 United States v. Julio De Armas Diaz (15-10230) .............................. 1

4 B. Excerpts from Opening Brief in

5 United States. v. Alexander Del Valle Garcia (15-10220) ................... 14

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C. Excerpts from Reply Brief in United States. v. Alexander Del Valle Garcia(15-1 0220) .................... .28

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/s/ Dustin R. Marcello Dustin R. Marcello, Esq. Nevada BarNo.: 10134


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CERTIFICATE OF SERVICE

I hereby certify that I am an employee of the PITARO & FUMO, CHID.,

and that on the 26th day of February, 2017, I did serve via CM/ECF transmission

5 the foregoing Appellant's Proposed Supplement for En Bane Rehearing with

6 the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit

7 by using the appellate CM/ECF system. Participants in the case will be served by

8 the appellate CM/ECF system.

9

10 PITARO & FUMO, CHTD.

11 lsi Kristine Tacata

12 KRISTINE T ACAT A ,

13 An employee of Pitaro & Furno, Chtd.

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Case: 15-10230, 12/30/2015, ID: 9811020, DktEntry: 9-1, Page 1 of 57

CASE NO. 15-10230

IN THE UNITED STATES COURT OF APPEALS


***


Plaintiff/Appellee, D.C. No. 2: 13-cr-00148-JAD-GWF-1 (N evada, Las Vegas)

vs.

JULIO DE ARMAS DIAZ,

Defendant/Appellant.

Appeal from the United States District Court for the District of Nevada

APPELLANT JULIO DE ARMAS DIAZ'S OPENING BRIEF

RENEL.VALLADARES Federal Public Defender * AMY B. CLEARY Assistant Federal Public Defender 411 E. Bonneville, Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577 Amy _ [email protected]

*Counsel for Appellant, Julio De Armas Diaz

000001

(1 of 74) Case: 15-10203, 02/26/2017, ID: 10333413, DktEntry: 56, Page 4 of 37


have referenced in the April 7, 2013 recording. Gov. Trial Exh. 17 A; ER 1518 ("I

gave your dad a container."). In addition to Corona's credibility issues discussed

above, government witness Paul Costales admitted the bottle Corona obtained could

have been distributed by other companies other than BeavEx, Inc. ER 494.

Thus, even considering this evidence in the light most favorable to the

government, the jury's verdict can only be supported by untenable inferences and

speculation-not proof beyond a reasonable doubt. "Mere suspicion or speculation

cannot be the basis for creation of logical inferences" to support a finding of guilt

United States v. Lewis, 787 F .2d 1318, 1323 (9th Cir. 1986). As such, the COUli

must reverse not only Count 7, but each of the substantive counts underlying it.

D. The District Court Erroneously Calculated Diaz s Sentencing Range Under the Guidelines.

Adoption of Garcia's Arguments

Diaz adopts the arguments raised by Garcia regarding the district court's

sentencing errors, pursuant to Federal Rule of Appellate Procedure 28(i), and adds

the following argument in support of this appellate issue. See Opening Brief of

Garcia, pp. 63-54, Ninth Circuit Case No. 15-10220.

Standard of Review

"Appellate review is to determine whether the sentence is reasonable." United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Any sentence that is

procedurally erroneous or substantively unreasonable will be set aside. Id.

Accordingly, this Court employs a two-part review of sentences. See United States

v. Rising Sun, 522 F.3d 989, 993 (9th Cir. 2008).

36 000002



First, this Court must ensure the district court committed no "significant

procedural error," such as incorrectly calculating the Guideline range, failing to

consider 3553(a) factors, choosing a sentence based on clearly erroneous facts, or

failing to adequately explain the sentence selected. Carty, 520 F.3d at 993. Then,

the Court must "consider the substantive reasonableness of the sentence imposed."

Gall v. United States, 552 U.S. 38, 51 (2007).

This Court reviews "the district court's application of the Sentencing

Guidelines de novo, the district court's application of the Sentencing Guidelines to

the facts of a case for abuse of discretion, and the district court's factual finding for

clear error." United States v. Grissom, 525 F.3d 691,696 (9th Cir. 2008) (quotation

omitted).

Analysis

The district court committed several procedural errors in this case.6 These

errors render the sentence Mr. Diaz received procedurally unreasonable, requiring

remand for resentencing.

6 Ironically, before the district court reversed Counts 2 and 3, the PSR suggested the guideline range was 121 to 151 months on Counts 1, 2, 5, 7, 8, 9, 10, with a five-year consecutive term for Count 3, for a total sentencing range of 181 to 211 months. ER 2455-2458. (Count 3 would have required a 5-year. After the district court reversed Counts 2 and 3, the PSR suggested the guideline range increased to 188 to 235 months. ER 2455-2458. The reversal of Counts 2 and 3, at least according to the Probation Department, thus had the effect of increasing Diaz's sentencing range. ER 2455-2458.

37 000003



1. The district court applied the wrong base offense level under the Guidelines relative to Counts 1 and 5.

The heart of the disagreement with the district court's guideline calculation

surrounds the district court's choice of guideline to apply in the first instance for the

Count 1 conviction under 18 V.S.c. § 1951, conspiracy to commit a Hobbs Act

robbery. The district court's guideline choice fails to comply with the Sentencing

Guidelines' directives or this Court's delineated process for following the

Sentencing Guidelines' directives.

a. Presentence Investigation Report

Prior to sentencing, the Probation Department prepared a Presentence

Investigation Report, separating the offense of conviction into two groups, pursuant

to the grouping rules in V.S.S.G. §§ 3D1.2(a) and (c). PSR, pp. 11-12.7 The first

group consisted of Count 1 (conspiracy to interfere with commerce by robbery under

18 U.S.C. § 1951) and Count 5 (false statement under 18 U.S.C. § 1001). PSR, p.

11. The second group consisted of Count 7 (conspiracy to commit theft from

interstate shipment under 18 U.S.C. § 371) and Counts 8 through 10 (theft from

interstate shipment under 18 V.S.C. §§ 659,670). PSR, p. 12.

For the first group, the PSR calculated the base offense level by first applying

V.S.S.G. § 2X1.1, the guideline for "Attempt, Solicitation, or Conspiracy (Not

Covered by a Specific Offense Guideline)." PSR,,-r 36. This guideline directs that

the base offense level be selected by using "[t] he base offense level from the

guideline for the substantive offense, plus any adjustments from such guideline for

7 The PSR applied the 2013 edition of the Sentencing Guidelines Manual. PSR, p. 11.

38 000004


Case: 15-10230, 12/30/2015, 10: 9811020, OktEntry: 9-1, Page 46 of 57

any intended offense conduct that can be established with reasonable certainty."

U.S.S.G. § 2X1.1(a). The PSR then applied U.S.S.G. § 2B3.1, the substantive

offense guideline for "Robbery." PSR, ~ 36. The PSR stated the base offense level

was 20, to which it added the following contested enhancements, through reference

to U.S.S.G. § 2Xl.l: (a) 5 levels under § 2B3.1(b)(2)(C) because a member of the

conspiracy possessed a firearm; (b) 4 levels under § 2B3.1 (b)( 4) because the offense

involved a plan to abduct the delivery driver to facilitate the commi~sion of the

offense; (c) 2 levels under § 2B3.1(b)(5) because the conspiracy included an intent

to carjack the delivery truck; (d) 1 level under § 2B3.1(b)(6) as the object of the

offense was a controlled substance; and (e) 2 levels under § 2B3.1(b)(7)(C) as the

intended loss was more than $50,000 but less than $250,000 ($131,000). PSR, pp.

11-12, Addendum.

b. Defense Objection

Diaz objected to the PSR reference to and application of U.S.S.G. § 2Xl.l

and several of the enhancements applied through its use. ER 2433-2443, 2450-

2458,2460-2462; 3067-3077, 3100-3108,3119-31-35. Diaz stated the offense of

conviction, 18 U.S.C. § 1951, includes conspiracy to interfere with commerce by

robbery as part of the prohibited conduct. As such, Diaz argued the first group

should be calculated pursuant to U.S.S.G. § 2B3.1 without reference to § 2X1.1

c. District Court's Guideline Calculation

The district court adopted the PSR's calculations and applied § 2X1.1 and,

through it, applied § 2B3.1. ER 65-66. The district court thus applied § 2B3.1 's

enhancements pursuant to the directives set forth in § 2X 1.1, instead of the directives

39 000005



set forth in § 2B3.1. ER 66-67. This resulted in an adjusted offense level of 34,

which the district court decreased by 3 levels under U.S.S.G. § 2X1.1(b)(2), which

applies in conspiracy cases when the defendant has not completed all acts necessary

to complete the crime underlying the conspiracy. ER 66-67.

d. Proper Guideline Calculation

This Court has made clear the process by which district court must select the

proper guideline to apply. First, the district court must determine which guideline

section in Chapter Two (Offense Conduct) is applicable to the offense of conviction.

United States v. McEnry, 659 F.3d 893, 897 (9th Cir. 2011) (citing U.S.S.G. §

IB 1.2(a)). To make this determination, the district cOUli must "refer to the Statutory

Index, Appendix A of the Guidelines, to find the offense of conviction." McEnry,

659 F.3d at 897. Only if the offense is not listed in the Statutory Index may the

district court apply U.S.S.G. § 2X5.1 to find the most analogous guideline. Jd.

This COUli has also held that, "when 'more than one guideline section is

referenced for the paliicular statute, [courts should] use the guideline most

appropriate for the nature of the offense conduct charged in the count of which the

defendant was convicted.'" McEnry, 659 F.3d at 898 (citing United States v.

Crawford, 185 F.3d 1024 (9th Cir. 1999) (quoting U.S.S.G. App'x A introduction)).

"Relevant conduct may be considered only in the imposition of guidelines

enhancements and adjustments, once a guideline has been selected." McEnry, 659

F .3d at 898 (internal quotations and citations omitted).

The Guidelines mirror this COUli's approach. Through U.S.S.G. Appendix

C, paragraph, 591, the Sentencing Commission has emphasized district courts must

40 000006



apply the offense guideline identified in the Statutory Index "'unless the case fell

into a single specified exception. '" McEnry, 659 F .3d at 897 (citation omitted).

The statute underlying Count 1 provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a) (emphasis added). The indictment alleged in Count 1 that

Diaz conspired to interfere with commerce by robbery under 18 U.S.C. § 1951.

ER 74.

To decide the guideline to apply, the district court was required to first turn to

the Statutory Index, Appendix A of the Guidelines, to determine if the Guidelines

specifically designate a Chapter Two guideline for violations of 18 U .S.C. § 1951.

McEnry, 659 F.3d at 897. The Statutory Index provides there are four possible

Chapter Two guidelines that are applicable to 18 U.S.C. § 1951: 2B3.1 (addressing

robbery), 2B3.2 (addressing extortion), 2B3.3 (addressing blackmail and extortion),

or 2C 1.1 (addressing extortion, fraud in honest services, and conspiracy to defraud).

U.S.S.G., App'x A.

Because 18 U.S.C. § 1951 punishes conspiracy to interfere with commerce by

robbery, the proper guideline to apply is § 2B3.1. There was no need nor ability for

the district court to resort to § 2X 1.1. Conspiracy to commit robbery is expressly

contemplated by both U.S.S.G. § 2B3.1 and 18 U.S.C. § 1951.

41 000007



The district court's reliance on out-of-circuit authority to apply U.S.S.G. §

2Xl.l was imprudent. To apply § 2X 1.1, the district court relied upon the Second

Circuit's decision in United States v. Amato, 46 F.3d 1255 (2nd Cir. 1995). Amato

addressed whether a Hobbs Act robbery conspiracy falls under the § 2X 1.1 as a

conspiracy not otherwise covered in the Guidelines or § 2B3.I as a robbery that

whose statutOlY elements include conspiracy. Amato, 46 F.3d at 1259. The Second

Circuit recognized its previous decision in United States v. Skowronski, 968 F .2d

242 (2nd Cir. 1992), held § 2B3.1 applies to the exclusion of §2X1.1 in such cases.

The rationale behind Sk01vronski was that, because

the Hobbs Act's prohibition included not only robbery, but also conspiracy to rob, and because Guideline § 2E 1.5 assigned violations of the Hobbs Act (implicitly including conspiracies) to specified guidelines, including § 2B3.1 for robbelY, the guideline for robbery should be deemed to 'expressly cover[ ]' a Hobbs Act robbery conspiracy, with the consequence that the conspiracy guideline, § 2X1.1, would not apply.

Amato, 46 F.3d at 1260 (quoting Skoviwonski, 968 F.2d at 250).

However, Amato called into question the continued validity of Skowronski

after the 1993 amendments to the Guidelines, amendments that deleted U.S.S.G. §

2E 1.5 that went into effect in 1993 subsequent to the Skowronski decision. The

Amato court explained U.S.S.G. § 2E1.5 had expressly referred Hobbs Act

violations, and by inference, Hobbs Act robbery conspiracies, to § 2B3.1 (among

other guidelines). However, the Amato court believed the Sentencing Commission's

deletion of § 2E1.5 and its cross-reference to § 2B3.I, somehow rendered § 2Xl.l

applicable to cases where a defendant was convicted of conspiracy to commit a

42 000008



Hobbs Act robbery. Jd. The Amato cOUli thus concluded nothing in the Guidelines

remained to allow § 2B3.1 to cover Hobbs Act conspiracy convictions. Jd. at 1261.

In addition to lacking precedential value, Amato lacks any persuasive value because

it ignores Appendix A to the Guidelines, which expressly directs that Hobbs Act

robberies be calculated under U.S.S.G. § 2B3.1.

Moreover, though this COUli does not appear to have addressed the specific

issue before the Court relative to a Hobbs Act conspiracy, this Court has

acknowledged the substantive guideline, and not U.S.S.G. § 2X1.1, applies to

attempt, conspiracy, and solicitation crimes that are specifically included in the

statute defining the offense. See United States v. Van Boom, 961 F.2d 145, 147 (9th

Cir. 1992) (crime of attempted robbery is included as a violation of 18 U.S.C. §

2113, and is governed by U.S.S.G. § 2B1.1, § 2X1.1 only applies to the extent that

it is referred to in section 2B 1.1); United States v. Koeing, 952 F.2d 267, 272 (9th

Cir. 1991) (crime of attempted fraud is specifically listed in 18 U.S.C. § 1029, and

is therefore covered by U.S.S.G. § 2F1.1, not § 2X1.1).

The same rationale applies here. The statute of conviction is 18 U.S.C.

§ 1951, which specifically includes conspiracy in the language of the statute. The

district court erred in calculating the offense level through application ofU.S.S.G. §

2X1.1 as opposed to § 2B3.1. It is therefore necessary to vacate Diaz's sentence and

remand for resentencing under U.S.S.G. § 2B3.1, without reference to § 2X1.1.

If the Court finds, however, that the Guidelines are unclear on this issue, it is

requested the Court apply the rule of lenity to require an interpretation of the

Guidelines that favors Diaz. See United States v. Leal-Felix, 665 F.3d 1037, 1040

(9th Cir. 2011) ("If, after applying the normal rules of statutory interpretation, the

43 000009



Sentencing Guideline is still ambiguous, the rule of lenity requires us to interpret the

Guideline in favor of [the defendant].").

Once U.S.S.G. § 2B3.1 is correctly applied, the enhancements contested

below can no longer be applied. This is because § 2B3.l adjusts the base offense

for some intended conduct, but not all. Under § 2B3.1, some enhancements apply if

specific offense conduct in fact occurred, contemplating actual conduct: other

enhancements do not require specific offense conduct to have actually occurred,

contemplating intended conduct.

For example, under U.S.S.G. § 2B3.1(6), a two-level enhancement is

permitted "[i]f a firearm, destructive device, or controlled substance was taken, or if

the taking of such an item was an object of the offense." This particular guideline

covers both actual conduct (the taking of a firearm, destructive device or controlled

substance) and intended conduct (the object of the offense was the taking of a

firearm, destructive device, or controlled substance). U.S.S.G. § 2B3.1(b)(6). On

the other hand, U.S.S.G. § 2B3.1 (b )(3) adjusts the base offense level only "[i]f any

victim sustained bodily injury." This enhancement requires actual conduct-injury

to a victim-not merely intended conduct. The Sentencing Commission clearly

knew how to include intended conduct for enhancement purposes and determined

not every enhancement under U.S.S.G. § 2B3.1 is to be applied for mere intended

conduct.

Properly applying § 2B3.1, a 4-level enhancement can only apply "[i]f any

person was abducted to facilitate the commission of the offense or to facilitate the

escape." U.S.S.G. § 2B3.1(b)(4)(A). The Commentary notes this guideline

"provides an enhancement for robberies where a victim was forced to accompany

44 000010



the defendant to another location, or was physically restrained by being tied, bound,

or locked up." ld. at Background Notes. This enhancement is thus not to be applied

for mere intent to abduct someone to facilitate the offense.

The same type of correction is needed relative to 2-level enhancement under

U.S.S.G. § 2B3.1(b)(5). This enhancement can only be applied "[i]f the offense

involved carjacking." U.S.S.G. § 2B3.1 (b )(5). The Application Notes define

"9atjacking" as "the taking or attempted taking of a motor vehicle from the person

or the presence of another by force and violence or by intimidation." U.S.S.G. §

2B3.1, n.1. The Sentencing Commission thus intended the enhancement to apply

only when actual or attempted carjacking occurred. The enhancement is not

appropriate when there is only a stated intent to employ Cat jacking at a future time

actual conduct is required.

And, finally, the same type of correction is necessary relative to 2-1evel

enhancement applied under U.S.S.G. § 2B3.1(b )(7). This enhancement may only be

applied "[i]f the loss exceeded $10,000." The Commentary defines "loss" as "the

value ofthe property taken, damaged, or destroyed." U.S.S.G. § 2B3.1, n.3. In other

words, the enhancement requires actual loss, not merely intended loss.

Though the Guidelines prior to the 2001 amendments allowed for intended

loss to be calculated in some circumstances, the current Guidelines do not allow for

a loss enhancement using a theory of intended loss. For example, in the version of

the Guidelines in effect in 2000, the Sentencing Commission explained the

"[v]aluation of loss is discussed in the Commentary to § 2B 1.1 (Larceny,

Embezzlement, and Other Forms of Theft)." U.S.S.G. § 2B3.1, Application Note 3

(1998 version). Section 2B 1.1 calculates loss as the greater of actual loss or intended

45 000011



loss. V.S.S.G. § 2Bl.l, Application Notes. However, § 2B3.1 no longer contains a

cross-reference to V.S.S.G. § 2Bl.l. Thus, U.S.S.G. § 2B3.1 requires actual loss in

order to apply an enhancement for loss. Moreover, even if this enhancement was

appropriate in cases of mere intended conduct, any speculation as to the amount of

loss was too amorphous to justify this enhancement in the first instance. While the

object of the conspiracy was a controlled substance, the alleged value of that

substance would not be known unless the robbelY had been completed. This did not

occur.

For these reasons, Diaz requests the guideline calculation for Group 1 be

recalculated under V.S.S.G. § 2B3.1, without reference to V.S.S.G. § 2Xl.l, and

without the enhancements under § 2B3.1(b )(4)(A), § 2B3.1(b )(5), and § 2B3.1(b)(7).

2. The district court erroneously applied a two-level obstruction of justice enhancement.

The district court also erroneously applied a 2-level upward adjustment under

V.S.S.G. § 3Cl.l for obstruction of justice. The district court predicated this

adjustment upon Diaz's alleged statement to Christensen that he did not own the gun

found in his car or know it was present in the car.

This enhancement is to be applied only:

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

V.S.S.G. § 3Cl.l.

46 000012



The Sentencing Commission explains this enhancement will ordinarily not

apply when "making false statements, not under oath, to law enforcement officers,

unless Application Note 4(0) above applies." U.S.S.O. § 3C 1.1, n.S. In turn,

Application Note 4(0) provides U.S.S.O. § 3C1.1 only applies if the defendant

provided "a materially false statement to a law enforcement officer that significantly

obstructed or impeded the official investigation or prosecution of the instant

offense." Application Note 4 also states the "adjustment applies to any other

obstructive conduct in respect to the official investigation, prosecution, or sentencing

of the instant offense where there is a separate count of conviction for such conduct."

Id. at n.4.

Notably, application of the obstruction adjustment requires a false statement

to have a more significant effect than a false statement under 18 U.S.C. § 1001.

There has never been an allegation that Diaz was under oath when he spoke with

Christensen. There also has never been any showing that Diaz's made a materially

false statement to Christensen that significantly obstructed or impeded the official

investigation or prosecution of Diaz's case. Under 18 U.S.C. § 1001, the false

statement needed to only have had "a natural tendency to influence" or be "capable

of influencing" law enforcement. Under § 3C 1.1, the government was required to

prove the statement significantly obstructed or impeded law enforcement's

investigation or the prosecution of his case. For the reasons set forth above, there

was insufficient evidence to sustain a conviction under 18 U.S.C. § 1001-there is

thus even less so to sustain application of the adjustment under U.S.S.O. § 3Cl.l. It

is requested the COUli vacate Diaz's sentence and direct that his sentence be

recalculated without this adjustment.

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Additionally, it bolstered Garcia's defense that he was merely present at the time

of the arrest and would have explained that Garcia's presence at trial was based

upon the biased statements of Corona and a translation by Christensen of

statements allegedly made by Garcia - as opposed to any evidence prior to the date

of the arrest.

Taken alone, this Court may hold that the issues outlined herein were not

sufficient to warrant reversal. However, in this case, the cumulative effect of

failing to sever, failing to suppress certain statements, failing to allow exploration

of certain impeachment evidence, failing to strike a juror for cause, providing

erroneous jury instructions, refusing to preserve proffered evidence and

prosecutorial misconduct, prejudiced and prevented Garcia from his constitutional

right to a fair trial. Accordingly, the trial court's judgment should be reversed, and

this COUl1 should order a new trial.

H. The District Court Erred in Sentencing Guideline Calculations as to Garcia


After United States v. Booker, 543 U.S. 220 (2005), a district court's

sentencing decisions are reviewed for abuse of discretion. Gall v. United States,

552 U.S. 38, 49 (2007). On review, this Court must first ensure that there are no

significant procedural errors and then apply the standard. United States v. Carty,

520 F.3d 984, 991-94 (9th Cir. 2008) (en bane), cert. denied, 443 U.S. 1061

63

000014



(2008). A mistake in calculating the recommended advisory sentencing guideline

range is a significant procedural error that requires remand for re-sentencing.

United States v. Munoz-Camarena, 631 F.3d 1028, 1030-1031 (9th Cir. 2011).

In applying relevant conduct, the district court, at a minimum, find proof by

a preponderance of the evidence. See United States v. Harrison-Philpot, 978 F.2d

1520, 1523 (9th Cir. 1992). However, where there is an "extremely

disproportionate effect," on the sentence, the court must adhere to a clear and

convincing standard of proof. See United States v. Munoz, 233 F.3d 1117, 1126-

1127 (9th Cir. 2000).

2. Argument

Garcia submits that the court erred by applying the general conspIracy

guideline, §2X 1.1, to Count 1, conspiracy to commit robbery in violation of 18

U.S.C. § 1951, relying on a 1995 Second Circuit case, United States v. Amato, 46

F.3d 1255 (2d Cir. 1995). However, one need only refer to Appendix A of the

Guidelines Manuel to see that 18 U.S.C. § 1951 is assigned to § 2B3.1. By its very

language, § 1951 includes conspiracies and attempts. Because the court's

misapplication of the general conspiracy guideline, §2X1.1, the court imposed

enhancements not allowed under § 2B3.1.

Notwithstanding this misapplication, the court erred by finding, by a

preponderance of the evidence, that certain enhancements should be imposed when

64

000015



the facts of the case did not suppOli those enhancements: a two-level enhancement

for obstruction, a five-level enhancement for possession of the gun and two-level

enhancement for obstruction. The court further denied Garcia's request for a

greater role reduction.

a. Enhancements that should not have applied as a matter of law

Garcia was convicted of conspiracy to commit robbery under 18 U.S.C. §

1951 ("the robbery statute") and conspiracy to commit theft under 18 U.S.c. § 371.

Probation recommended calculating the base offense level of the group one, count

one § 1951 robbery conspiracy at 36 by including several enhancements for

intended conduct under guidelines § 2X1.1 (the "conspiracy guidelines"). Three of

the enhancements probation recommended could not be considered in Garcia's

sentencing as a matter of law. The abduction and carjacking enhancements could

not apply because the conspiracy guidelines do not govern § 1951 violations, and §

2B3.1 of the guidelines governing robbery (the "robbery Guidelines") required the

actual occurrence of abducting and carjacking. Neither, however, occurred. The

intended-loss enhancement could not apply because the robbery guidelines

explicitly preclude the application of intended loss. Finally, the relevant-conduct

theory failed to support consideration of the above enhancements' associated

conduct.

b. Abduction and carjacking enhancements

65

000016



The robbery guidelines provide for abduction and caljacking enhancements,

but they require abduction or caljacking actually to have occurred as part of the

underlying robbery offense before the enhancements apply. True, some

conspiracies are governed by the conspiracy guidelines under §2X 1.1, which

permit "[t]he base offense level [ ... ] for the substantive offense to be adjusted [ ... ]

for any intended offense conduct." The Ninth Circuit has held, however, that the

robbery guidelines and not the conspiracy guidelines, govern violations of § 1951,

even when the violation only involves conspiracy to commit robbery. In United

States v. Van Boom, the court held that, when sentencing for attempted robbery, the

correct guideline is §2B3.1, not §2Xl.1. 961 F.2d 145, 146 (9th Cir. 1992) (but

applying §2Xl.l for intended loss in attempted bank robbery under 1990 USSG

Manual). Similarly, in United States v. Shaw, 91 F.3d 86, 88-89 (9th Cir. 1996), the

court applied §2B3.1 to a robbery conspiracy.

Although the conspiracy guidelines under §2X1.1 permit consideration of all

intended conduct, the robbery guidelines permit consideration only of very limited

intended conduct. Indeed, only one enhancement in the robbery guidelines

contains language allowing its application when the violative conduct was merely

intended. It states that "[i]f a firearm, destructive device, or controlled substance

was taken, or if the taking of such item was an object of the offense. . ."

§2B3.1 (b)( 6). Garcia acknowledges that, under United States v. Si, 343 F .3d 1116,

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Case: 15-10220, 11/17/2015,10: 9759674, OktEntry: 20, Page 67 of 78

1128 (9th Cir. 2003), the court was, in analyzing the robbery guidelines, affirming

an enhancement for intended loss. The offense conduct in that case, however,

occurred in 1998. See Si, 343 F .3d at 1120. Enhancements were similarly applied

in Van Boon and Shaw, again pre-2001 cases. However, the 2001 amendments to

the guidelines removed intended loss as an enhancement for § 1951 offenses.

In stark contrast to the firearm/drug-taking enhancement, neither the

abduction enhancement nor the carjacking enhancement contained any intended

conduct language. Rather, the abduction enhancement applies "[i]f any person was

abducted[.]" Id., at § 2B3.1(b)( 4)(a) (emphasis added). The guidelines instruct

that the abduction enhancement applies in "robberies where a victim was forced to

accompany the defendant to another location, or was physically restrained by being

tied, bound, or locked up." Id., at § 2B3.1(b)(4)(A), Background Notes (emphasis

added). The plain meaning of the abduction enhancement's language requires an

actual abduction before it applies. Similarly, the Cat jacking enhancement applies

"[i]f the offenseinvolved Cat jacking." Id. at §2B3.1(5). The guidelines further

define carjacking as "the taking or attempted taking of a motor vehicle from the

person of another[.]" Id., at § 2B3.1(b )(5), Application Note 1. As a matter of

law, no attempt occurred in this case. (See Dkt. 268; EOR, Vol. I, at 430.) It

follows, then, that no actual taking occurred. Accordingly, neither abduction nor

carjacking could be considered in the group one base offense level calculation.

67 000018



c. Intended-loss enhancement

Probation recommended adding two levels because the drugs purportedly in

the van "werevalued at more than $50,000 but less than $250,000[.]" Second

Amended PSR, 12/9/14, at ~ 35 (citing U.S.S.G. § 2B3.1(b)(7)) (See Sealed; EOR

XII). The robbelY guideline's loss enhancement only applies, however, if "the loss

exceeded $10,000[.]" U.S.S.G. § 2B3.1 (7) (emphasis added). Although the

guidelines permitted consideration of intended loss in some robbelY offenses

before the 2001 amendments, they do no longer. The old robbery guidelines stated

that the "[v]aluation of loss is discussed in the CommentalY to § 2Bl.l," U.S.S.G.

§ 2B3.1, Application Note 3 (1998), which at the time permitted reference to §

2X1.1 to determine intended loss in uncompleted robberies. See U.S.S.G. § 2B1.1,

Application Note 2 (1998). The applicable robbery Guidelines now, however,

define loss as "the value of the propel1y taken, damaged, or destroyed," (emphasis

added), and no longer cross-reference § 2Bl.l's commentalY or § 2X1.1. U.S.S.G.

§ 2B3.1(b)(7), Application Note 3 (2001, and after). The plain language of the

current robbery Guidelines requires actual loss before the loss enhancement

applies, as confirmed by a January 6, 2015 telephonic meeting with the office of

the Sentencing Commission. Here, there was no actual-or even partial or

attempted-robbery, and therefore no actual loss. Accordingly, the court erred in

considering any loss in determining Garcia's sentence.

68

000019



d. Relevant conduct theory does not apply

Relevant conduct theory did not permit consideration of abduction,

carjacking, or intended-loss, either. The pertinent Guidelines addressing relevant

conduct provide as follows: (a) Chapters Two (Offense Conduct) and Three

(Adjustments). Unless otherwise specified, (i) the base offense level where the

guideline specifies more than one base offense level, (ii) specific offense

characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in

Chapter Three, shall be determined on the basis of the following:

(l)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in C011cert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which §3D 1.2( d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1 )(A) and(1 )(B) above that were pati of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and (4) any other information specified in the applicable guideline.

U.S.S.G. § IB1.3.

69 000020



Like the language of the enhancements above, the language of the relevant

conduct guideline subsection requires actual conduct. Specifically, § IB 1.3 permits

consideration of "all acts and omissions committed" and "all harm that resulted

from the acts and omissions[.]" As detailed above, neither carjacking nor

abduction actually occurred, and there was no actual loss. Because the conduct

underlying the enhancements was arguably intended but never in fact occurred, it

did not warrant consideration as relevant conduct.

e. Enhancements lacl{ing in the necessary proof

Probation also included enhancements for obstruction of justice and

possession of a firearm in its group one base offense level calculation, but neither

was suppOlied by sufficient evidence.

1. Obstruction of justice enhancement

The guidelines permit an enhancement for obstructing justice if (1) the

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

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (2) the obstructive conduct

related to (a) the defendant's offense of conviction and any relevant conduct, or (b)

a closely related offense[.] U.S.S.G. § 3Cl.l (the "obstruction enhancement").

The guidelines instruct that the obstruction enhancement does not typically apply

when "making false statements, not under oath, to law enforcement officers, unless

70

000021



Application Note 4(G) above applies." Jd. at Application Note 5(B). Application

Note 4(G), in turn, states the obstruction enhancement applies if the defendant

"provid[ ed] a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the

instant offense [ ... ]" (emphasis added). Garcia was convicted on count four for

false statement under 18 U.S.C. § 1001. Significantly, however, the guidelines'

definition of obstructive conduct is not synonymous with the elements of false

statement under 18 U.S.C. § 1001.

The jUly was only required to find Garcia's false statement "had a natural

tendency to influence, or was capable of influencing, the agency's decisions or

activities." (See Jury Instructions, Dkt. 242; EOR Vol. XiV at 3786-3831).

Although conviction under § 1001 only requires a statement that could influence

the investigation, the guidelines require actual and significant obstruction of the

investigation for the obstruction enhancement to apply. The government cited to

United States v. Sanders, 478 Fed.Appx. 374 (9th Cir. 2012) and United States v.

Allen, 341 F.3d 870, 897 (9th Cir. 2003) to show that relatively minor misleading

statements can be "material" and "tend to influence" the investigation. (See Dkt.

280; EOR, Vol. XV, at 4074-4085; Dkt. 288; EOR, Vol. XV, at 4107-4121.)

These cases analyze the much less-stringent false statement elements, however,

and do not address whether the statements actually and significantly impeded or

71

000022



obstructed, other than the government's argument that it had to conduct an extra

interview or two. Therefore, the evidence preponderated against enhancing for

obstruction.

f. Firearm enhancement

Section 2B3.1(b)(2)(C) of the guidelines governing robbery ("the firearm

enhancement") provides that "if a firearm was brandished or possessed, increase

[the offense level] by five levels." The firearm enhancement should not have been

included in the group-one offense-level calculation for two reasons. First, Garcia

did not possess the gun, and there was insufficient evidence to show that Garcia

could have reasonably foreseen the gun in his codefendants' trunk. Second, to the

extent the gun was possessed by Garcia's codefendants, it was not possessed in the

course of the robbery conspiracy. Furthermore, in light of the acquittal on the

count-three gun charge, the court should have granted a downward variance to the

extent the firearm enhancement added more prison time than a gun-charge

conviction.

1. Garcia did 110t possess the firearm

The Ninth Circuit has observed that although the guidelines define

"brandish," they do not define "possess." United States v. Johnson, 37 F.3d 1352,

1353 (9th Cir. 1994). The Johnson court went on to utilize the "plain meaning" of

"possess" in the context of determining whether a firearm enhancement applied at

72

000023



sentencing, defining it as "to have in one's actual and physical control; to have the

exclusive detention and control of." Id. at 1354 (citing Black's Law Dictionary

1046 (5th ed. 1979)). Here, undisputed testimony established that the unloaded

firearm was located in a car not occupied by Garcia, in the trunk, under a spare tire,

wrapped in a shirt. (Dkt. 294; EOR, Vol. IX, at 2194-2207). Under Johnson and

the plain meaning of "possess," Garcia did not possess the firearm. Furthermore,

there was no credible evidence offered at trial that Garcia possessed knowledge of

all the plan's details, let alone knowledge of a gun's presence or even knowledge

that would reasonably portend a gun's presence. Under Pinkerton v. United States,

328 U.S. 640, 647 (1946), coconspirator liability, "[t]here is no presumption of

foreseeability, and the burden of proving foreseeability remains on the

government." United States v. Castaneda, 9 F.3d 761, 767 (9th Cir. 1993),

overruled on other grounds by United States v. Norby, 225 F.3d 1053 (9th Cir.

2000). This Circuit has recognized that due process limits Pinkerton exposure with

respect to defendants playing only minor roles or where "the relationship between

the defendant and the substantive offense is slight." See Gross, 724 F.3d at 1089

(internal citations omitted).

Here, sparing, brief, and unrecorded phone pings along with Garcia's abrupt

appearance at the scene in the final hours alone associate him with the conspiracy.

Fmihermore, no evidence at trial showed that Simon or Diaz had engaged in armed

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conduct in the past, or that Garcia was aware of any of their past conduct. Neither

did evidence at trial show Garcia was told a gun would be brought, or that he was

informed of circumstances that would allow him to foresee his codefendants would

have a gun in their trunk. Indeed, at trial neither the jury nor the district court

heard any content of the brief communications purpOliedly between Garcia and

Simon; the district court can only guess as to what Garcia knew. Aspects of the

plan, if any beyond driving Corona, were told to Garcia. Because Garcia did not

possess the gun, and insufficient evidence exists to even suggest he could

reasonably foresee his codefendants bringing a gun, Garcia's sentence cannot be

enhanced for possession of a firearm.

2. The gun was not possessed in relation to the robbery conspiracy

The Ninth Circuit has held that for the firearm enhancement to apply in the

robbery guideline context, the gun must be possessed or used "in the course of' the

underlying crime. United States v. Wright, 215 F.3d 1020, 1030 (9th Cir. 2000).

Here, as detailed above, the gun was at all times unloaded, secured under a spare

tire in a codefendant's trunk, and wrapped in a shirt. Although the gun was

present, it was not employed in the course of the conspiracy. This point is

underscored by the government's decision not to predicate the now-acquitted 18

u.S.C. § 924(c) charge on the subject conspiracy, but rather on the attempt that

never occurred. Because the gun was not possessed in the course of the conspiracy,

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the firearm cannot be considered at sentencing.

3. The court should have allowed up to four-level reduction for Garcia's minimal role in the conspiracy.

Doubtless, Garcia was the least culpable among the three codefendants, so

he requested a four-level minimal-role reduction. Guidelines § 3B 1.2(a) provides

that "[i]f the defendant was a minimal participant in any criminal activity,

decrease by 4 levels." This departure "is intended to cover defendants who are

plainly among the least culpable of those involved in the conduct of the group."

See § 3B1.2, Application Note 4. Here, the robbery conspiracy with which Garcia

was charged began on April 4, 2013 and culminated in the defendants' arrest four

days later early in the morning on April 8, 2013. The cOUli found, however, that

the evidence showed Garcia joined the conspiracy late at night on April 7, 2014.

See April 25 Order, Dkt. 194 EOR, Vol. II at 406-424. Accordingly, Garcia was

only a member of the four-day conspiracy for less than a day. Because the details

of the plan were solidified during the daytime on April 7 (in the "ride-around"

conversation), Garcia could not have played any role in hatching the scheme or

organizing the steps to complete it. Nor did the government elicit any direct

evidence at trial that Garcia was fully abreast of the plan's details or scope. Rather,

Garcia appeared at the very tail end, giving the informant a ride to the rendezvous

spot.

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Garcia's minimal role in the overall scheme is even more apparent in the

context of the count-seven theft conspiracy, of which Garcia was also convicted

based on the same conduct and of which the robbery conspiracy was alleged as an

overt act. The theft conspiracy began in October of 2012 and ended a year and a

half later on the April 8, 2013 day of arrest. The 18-month-Iong conspiracy

included multiple thefts and a break-in, in which Garcia played absolutely no role

and during which Garcia was not affiliated with the conspiracy. Again, during the

overall year-and-a-half scheme, Garcia was involved for less than a day-and even

then after the planning stage had ended. Therefore, a 4-level minimal-role

reduction should apply to Garcia for both the group one, count one robbery

conspiracy and the group two, count seven theft conspiracy. Alternatively, and at a

minimum, the court should have allowed a three-level departure under Guidelines

§ 3B 1.2 for a role more than minimal but less than minor.

IX. CONCLUSION

Based on the foregoing, Garcia respectfully requests that this Court reverse the

judgment of the trial court and remand for entry of judgment of acquittal on all

counts or, alternatively, remand for a new trial or are-sentencing.

Dated this 17th day of November 2015.

lsi Kathleen Bliss Kathleen Bliss, Esq.

Counsel for Defendant-Appellant

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issued during the rebuttal argument, it went directly to Garcia's defense and his

constitutional right not to testify. The government cannot carry its burden in

demonstrating that "it is more probable than not that the error did not materially

affect the verdict." See United States v. Seschillie, 310 F.3 d 1208, 1214 (9th Cir.

2002), cert. denied, 538 U.S. 953 (2003). In this case, the prosecution's comments

warrant reversal.

E. The District Court Erred in its Application of the Sentencing Guidelines as to Garcia.

Pursuant to Fed. R. App. P. 28(i), Garcia adopts the arguments presented by

Diaz in his opening brief in case no. 15-10230, at pages 36-47, and those presented

by Simon in his opening brief in case no. 15-10203, at pages 40-46, regarding the

district court's sentencing errors.

The jury convicted Garcia of two conspIraCIes: Count 1, conspiracy to

interfere with commerce by robbery, in violation of 18 U.S.C. § 1951 (Group One

ofthe Presentencing Report (hereinafter "PSR")); and Court 7, conspiracy to commit

theft from interstate shipment, in violation of 18 U.S.C. § 371 (Group Two of the

PSR). Probation calculated the adjusted offense level for Group One at 34, with

Group Two at 18. See Second Revised PSR at pages 11-12.

First referring to § 2X 1.1, and then to the substantive offense guideline §

2B3.1, Probation generated an adjusted offense level of 34 by applying

enhancements under § 2B3.l via the directives of § 2X1.1, not § 2B3.1. Had the

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Case: 15-10220,04/28/2016, ID: 9957604, DktEntry: 48, Page 19 of 26

district court instead applied § 2B3.1 without reference to § 2X 1.1, the

enhancements for taking a gun, abduction and caljacking, and intended loss would

have fallen away, as those require actual conduct instead of intended conduct.

Probation defended its use of § 2X 1.1 instead of § 2B3.I by determining that § 2X 1 .1

is the most "analogous" guideline. See PSR at 47. In doing so, Probation ignored

the robbery guideline that is indexed to 18 U.S.C. § 1951 - the statute of conviction

here, not conspiracy, in violation of 18 U.S.C. § 371. Defendant Garcia clearly

objected to this misapplication. See Dkt. 280, EOR, Vol. XV, at 4074-4085; 4107-

4135; EOR, Vol. XVI, at 4136-4140.

Remarkably, in its answering brief, the government never addresses the

district court's failure to properly apply the Statutory Index, Appendix A of the

Guidelines as directed by U.S.S.G. § IB 1.2(a) ( "[d]etermine the offense guideline

section in Chapter Two (Offense Conduct) applicable to the offense of conviction

(i.e., the offense conduct charged in the count of indictment. . .of which the

defendant was convicted); see United States v. McEnry, 659 F.3d 893, 897 (9th Cir.

2011). Section IB1.2(a) further provides, when the offense involved a conspiracy,

that the comi should refer to § 2X1.I, "as well as the guideline referenced in the

Statutory Index for the substantive offense." Id. (emphasis added). Here, the Index

specifically assigns a violation of 18 U.S.C. § 1951 to § 2B3.1. Since Congress

chose to punish conspiracy under 18 U.S.C. § 1951, the only appropriate guideline

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was § 2B3.1, not § 2X 1.1 as a vehicle to superimpose intended loss onto § 2B3.1

which instead requires actual loss under most adjustments.

Instead, the government, like the district court, relied on the faulty analysis

of an eleven-year-old case from the Second Circuit, United States v. Amato, 46 F.3d

1255 (2d Cir. 1995). Amato, too, ignored application of the Index and instead

considered the deletion of § 2E 1.5 as dispositive. ld. at 1261. But what about the

Index reference to § 2B3.1 for violations of § 1951, which expressly includes

conspiracy to commit robbery? At best, the Amato rationale is inconclusive and this

Circuit has not decided the issue.

Furthermore, the government, referencing the Commentary to U.S.S.G. §

2Xl.l, argues that use of intended loss under § 2Xl.l instead of § 2B3.1, simply

"makes sense." Answering Br., p. 72. Actually, it makes no sense whatsoever that

the Sentencing Commission meant to punish more severely'a conspirator than one

who actually commits the violent act of robbery or cmjacking. It makes no sense

that someone planning to steal gets a heftier sentence that one actually who takes the

money. It makes no sense that a defendant who talks about beating another person

gets punished more severely than a defendant who clobbers a victim.

Even more attenuated is the government's assertion that the Commentary

supports its argument by expressly providing that "in most prosecutions for

conspiracies or attempts, the substantive offense was substantially completed or was

20 000030



interrupted or prevented on the verge of completion by law enforcement ... In such

cases, no reduction of the offense is warranted." U.S.S.G. § 2X1.1, Commentary,

Background. However, here, the district court entered judgements of acquittal for

attempted robbery (Count 2) and possession of a firearm in furtherance of a robbery

(Count 3) because the district court found that the government had failed to prove

that the defendants had sufficiently taken substantial steps to commit those counts.

See EOR, Vol. II, at 430-50. In other words, the defendants here did not even get to

the substantial step. The government's argument thus fails.

Had the district court referenced the Index, the steps would have been clear:

Appendix A of the Guidelines Manual assigns 18 U.S.C. § 1951 to § 2B3.1. By its

very language, § 1951 includes conspiracies and attempts. Because the court's

misapplication of the general conspiracy guideline, § 2X 1.1 instead of the robbery

guideline, § 2B3.1, the comi imposed enhancements not allowed under § 2B3.1

using intended loss versus actual loss. Applying the correct guideline, § 2B3.1,

would have removed the abduction and carjacking enhancements as well as the

intended-loss enhancement, resulting in an adjusted offense level of20.

Finally, the relevant-conduct theory failed to support consideration of the

above enhancements' associated conduct because, like the language of the

enhancements above, the language of the relevant-conduct guideline subsection

requires actual conduct. Specifically, § 1 B 1.3 permits consideration of "all acts and

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000031



omissions committed" and "all harm that resulted from the acts and omissions[.]"

As detailed above, neither carjacking nor abduction actually occurred, and there was

no actual loss. Because the conduct underlying the enhancements was arguably

intended but never in fact occurred, it did not warrant consideration as relevant

conduct.

As argued in Diaz's Opening Brief, (case. no. 15-10230 at p. 43), should this

Court find that the Guidelines are unclear, it should apply the rule of lenity in

Garcia's favor. See United States v. Leal-Felix, 665 F.3d 1037, 1040 (9th Cir. 201l)

("If, after applying the normal rules of statutory interpretation, the Sentencing

Guideline is still ambiguous, the rule of lenity requires us to interpret the Guideline

in favor of [the defendant].").

The government argues that the district court properly applied enhancements

for obstruction of justice and possession of a firearm. The government uncovered

an argument in suppOli - that Garcia instructed Corona, the snitch-to lie to FBI. 6

As noted by Diaz, this was one of the eve-of-trial revelations by Corona. See EOR,

Vol. VII, at 1798-1800; see also Diaz's opening brief, case no. 15-10230, at p. 14.

The government's argument that this wholly uncorroborated testimony by

6 In Garcia's opening brief, at page 23, reference to this passage incorrectly cited the transcript. The testimony of Corona in which he talked about arrival at the school and statements by Garcia and Diaz about "looking for ajob" are found in EOR, Vol. VII, at 1634 and 1794-1795.

22 000032



Corona is sufficient to support an obstruction enhancement is too great a stretch.

First, it required the cOUli to believe Corona by a preponderance of the evidence on

this point, which was impossible under the circumstances. Second, the Guidelines

permit this enhancement for obstructing justice only if (1) the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or sentencing of the instant

offense of conviction, and (2) the obstructive conduct related to (a) the defendant's

offense of conviction and any relevant conduct, or (b) a closely related offense [ . J

V.S.S.G. § 3C1.1 (the "obstruction enhancement"). Furthermore, as directed by

Application Note 4(G), the obstruction enhancement applies if the defendant

"provid[ ed] a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the

instant offense [ ... J" (emphasis added). The government's investigation and

prosecution essentially ended with the arrests of Garcia and the others.

The district court also misapplied Section 2B3.1 (b )(2)(C) of the Guidelines

governing robbery ("the firearm enhancement"), which provides that "if a firearm

was brandished or possessed, increase [the offense level] by five levels." The

firearm enhancement should not have been included in the Group One offense-level

calculation for two reasons. First, Garcia never possessed the gun, and there was

insufficient evidence to show that Garcia could have reasonably foreseen the shirt

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ensconced gun in the trunk of another vehicle. The government cites Muscarello v.

United States, 524 U.S. 125, 128 (1998), which is factually distinctive and

inapplicable to the issue here. In Muscarello, the singular issue was whether, under

18 U.S.C. § 924( c), "carrying" a firearm could apply to a gun locked in the glovebox.

The defendants in the companion appeals had admitted to carrying guns. Jd. There

thus was no question about foreseeability. Second, to the extent the gun was

possessed by Garcia's codefendants, it was not possessed in the course of the robbery

conspiracy. Furthermore, in light of the acquittal on the Count Three gun charge,

the court should have granted a downward variance to the extent the firearm

enhancement ended up adding more prison time than a gun-charge conviction -

another illogical ifnot reprehensibly unfair application ofthe Guidelines in this case.

Based upon the foregoing, this Court should remand for resentencing with

instructions as to the proper application of the Guidelines under § 2B3.1.

II. CONCLUSION

Based on the foregoing, Garcia respectfully requests that this Court reverse the

judgment of the trial court and remand for entry of judgment of acquittal on all

counts or, alternatively, remand for a new trial or are-sentencing.

Dated this 28th day of April 2016.

lsi Kathleen Bliss Kathleen Bliss, Esq.

Counsel for Defendant-Appellant

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