                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2002

USA v. Garcia
Precedential or Non-Precedential:

Docket 1-1930




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Recommended Citation
"USA v. Garcia" (2002). 2002 Decisions. Paper 87.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/87


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                                                   NOT PRECEDENTIAL

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ____________

                           No. 01-1930
                           ____________

                             UNITED STATES OF AMERICA

                                              v.

                                          JOSE J. GARCIA,

Appellant
                           ____________

            Appeal from the United States District Court
              For the Eastern District of Pennsylvania
                       D.C. No.: 00-cr-00306
             District Judge: Honorable Stewart Dalzell
                            ____________

   Submitted Under Third Circuit LAR 34.1(a) January 18, 2002

Before: SCIRICA and ROSENN, Circuit Judges, and KANE*, District Judge.

                    (Filed February 1, 2002 )

Richard J. Zack
Suite 1250
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
     Counsel for Appellee

David L. McColgin


*Honorable Yvette Kane, United States District Judge for the Middle
District of
  Pennsylvania, sitting by designation.

Defender Association of Philadelphia
Federal Court Division
Curtis Center, Independence Square West
Suite 540 West
Philadelphia, PA 19106
     Counsel for Appellant

                           ____________

                         MEMORANDUM OPINION
                          ____________

ROSENN, Circuit Judge.
     A federal grand jury sitting in the United States District Court for
the Eastern
District of Pennsylvania indicted Jose J. Garcia on one count. The
indictment charged
him with maliciously destroying or attempting to destroy a building by
fire or destructive
device, in violation of 18 U.S. C.   844(i). On November 13, 2000, Garcia
pled guilty
pursuant to a plea agreement.
     The Pre-Sentence Report (PSR) recommended a two-point enhancement to
Garcia's base offense level pursuant to United States Sentencing
Guidelines   3C1.1
because he obstructed justice. Garcia objected to the enhancement at
sentencing. The
District Court, however, overruled his objection and sentenced Garcia to
30 months
imprisonment, three years supervised release, a $1500 fine, and a $50
special assessment.
Garcia timely appealed. We affirm.
     Rifat Ismail was co-owner of the Roslyn Food Market in Roslyn,
Pennsylvania.
Beset by severe financial difficulties, Ismail decided to burn down his
store to collect the
insurance proceeds. Ismail hired Garcia to do the torching and paid him
$2000. Garcia
hired three people from his neighborhood to help him, splitting the $2000
between them.
On October 31, 1994, these three threw Molotov cocktails through the
windows of the
market. The attempt to burn down the market, however, was highly
unsuccessful. The
Molotov cocktails only started small fires, and the fire department
arrived and quickly put
them out. The market suffered very little damage and the owners filed no
insurance
claims.
     The local police and agents with the Bureau of Alcohol, Tobacco and
Firearms
interviewed Ismail. He admitted he had arranged for the arson and
identified Garcia as
the person he hired to set the fire. At the behest of the agents, Ismail
met with Garcia on
November 1, 1995, wearing a hidden microphone. The agents recorded the
conversation
between the two.
     During the conversation, Ismail informed Garcia that he had received
a grand jury
subpoena and asked Garcia several times what he should do. Garcia made
comments that
the District Court construed as exhortations to Ismail to lie to the grand
jury about his
knowledge of the arson. On the basis of these exhortations, the District
Court adopted the
recommendation contained in the PSR and enhanced Garcia's base offense
level two
levels pursuant to the Sentencing Guidelines.
               On appeal, Garcia contends that the District Court committed
clear error when it
increased the offense level by two, predicated on the defendant's alleged
attempt to
suborn perjury by urging co-conspirator Ismail falsely to inform the grand
jury that Ismail
knew nothing about the arson fire that the two of them had conspired to
set.
     The factual dispute pertinent to the enhancement of Garcia's sentence
is
extremely narrow but critical. Because the District Court's decision to
enhance is
essentially factual, this Court's standard of review is for clear error.
United States. v.
Maurello, 76 F.3d 1304, 1308 (3d Cir. 1996).
     Garcia contends that his sentence should not have been enhanced for
obstruction
of justice because, "when all of his statements are read in context, it is
clear that he was
simply urging Ismail not to say anything to the grand jury." Garcia
admits that at one
time in his recorded conversation with Ismail, he told Ismail to say that
he did not "know
what they [are] talking about." However, he argues that this statement
should be
considered in the context of Garcia's advice, repeated eight times, that
Ismail assert his
Fifth Amendment right to remain silent and "say nothing." The District
Court rejected
this interpretation of the conversation.
     We have reviewed the transcript of the recorded conversation and a
fair reading of
the transcript supports the District Court's interpretation and the PSR
recommendation.
Although Garcia does suggest several times to Ismail not to say anything,
there are other
points in the conversation where Garcia appears to be telling Ismail to
lie to the grand
jury. At one point, Garcia tells Ismail that all he has to say is "you
don't know what they
talking about." Later in the conversational exchange, Garcia urges Ismail
to say "what
are you talking about?" These statements give credence to the District
Court's
interpretation of the conversation. Moreover, as the United States
Supreme Court
observed in Anderson v. City of Bessemer City, "[w]here there are two
permissible views
of the evidence, the fact finder's choice between them cannot be clearly
erroneous." 470
U.S. 564, 574 (1985).
     A District Court's finding of fact is "clearly erroneous" only when
an appellate
court considering the matter firmly convinced that a mistake had been
committed. United
States v. Bogusz, 43 F.3d 82, 85 (3d Cir. 1994). We are convinced that
the District Court
made no mistake and that its factual findings are not clearly erroneous.
     The judgment and sentence of the District Court is affirmed.
TO THE CLERK:

Please file the foregoing opinion.



                                     /s/ Max Rosenn
                                     Circuit Judge
