      10-3839-cr(L)
      United States v. Garcia
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
     DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
     A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2    the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
 3    York, on the 24th day of April, two thousand twelve.
 4
 5            PRESENT: AMALYA L. KEARSE,
 6                     RAYMOND J. LOHIER, JR.,
 7                                   Circuit Judges,
 8                     EDWARD R. KORMAN,
 9                                   District Judge.*
10
11            ------------------------------------------------------------------
12
13            UNITED STATES OF AMERICA,
14                                    Appellee,
15
16                                     v.                                          No. 10-3839-cr (Lead)
17                                                                                     11-195-cr (Con)
18            TOMMY GARCIA, aka Gordo,
19                                                     Defendant-Appellant.
20
21            ------------------------------------------------------------------
22
23            FOR APPELLANT:                           JONATHAN J. EINHORN, Esq., New Haven, CT.
24
25            FOR APPELLEE:                            ROBERT M. SPECTOR, Assistant United States
26                                                     Attorney (Sandra S. Glover, Assistant United


              *
                Judge Edward R. Korman, of the United States District Court for the Eastern
      District of New York, sitting by designation.
 1                                              States Attorney, on the brief), for David B. Fein,
 2                                              United States Attorney for the District of
 3                                              Connecticut, New Haven, CT.
 4
 5          Appeal from the United States District Court for the District of Connecticut (Alvin

 6   W. Thompson, Chief Judge).

 7          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 8   AND DECREED that the judgment of the District Court is AFFIRMED.

 9          Defendant-Appellant Tommy Garcia appeals from a judgment of conviction

10   entered in the United States District Court for the District of Connecticut (Thompson,

11   C.J.) following his plea of guilty to one count of conspiring to possess and distribute

12   cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), and 846. The

13   District Court sentenced Garcia principally to a 70-month term of imprisonment, to be

14   followed by a five-year term of supervised release. On appeal, Garcia contends that the

15   District Court erroneously determined that he was responsible for a quantity of crack

16   cocaine that was neither known to him nor reasonably foreseeable by him. We assume

17   the parties’ familiarity with the facts and record of prior proceedings, which we reference

18   only as necessary to explain our decision to affirm.

19          “The law is well established that if, as a tactical matter, a party raises no objection

20   to a purported error, such inaction constitutes a true ‘waiver’ which will negate even plain

21   error review.” United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007) (citation and

22   quotation marks omitted); see United States v. Olano, 507 U.S. 725, 733 (1993); United

23   States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009). Garcia intentionally waived his



                                                   2
 1   right to challenge the factual bases of his sentence, including the drug quantity for which

 2   he was held accountable at sentencing.

 3          At his sentencing hearing, for example, Garcia confirmed that during a safety

 4   valve proffer, he admitted to being responsible for distributing six kilograms of cocaine

 5   base. He explicitly declined a hearing on that issue. In his sentencing memorandum,

 6   moreover, Garcia stated that he had no objection to the facts contained in the presentence

 7   report, which noted that he was responsible for six kilograms of cocaine base. Similarly,

 8   in arguing for a downward departure under the Sentencing Guidelines, he admitted that

 9   “it was foreseeable to him that the quantities alleged by the government were involved.”

10          Garcia received several tangible benefits from his tactical decision to admit both

11   drug quantity and type. First, he qualified for safety valve relief from the mandatory

12   minimum ten-year sentence. See 18 U.S.C. § 3553(e). Second, he received a two-level

13   decrease in his Sentencing Guidelines range. See 18 U.S.C. § 3553(f). Third, he received

14   an additional three-level reduction under the Guidelines for full acceptance of

15   responsibility. Ultimately, the District Court imposed a non-Guidelines sentence of 70

16   months, below the applicable Guidelines range of 87-108 months.

17          Even if we were to conclude that Garcia had not waived his right to challenge the

18   factual bases for his sentence, his argument based on United States v. Chalarca, 95 F.3d

19   239 (2d Cir. 1996), would have no merit. Unlike in Chalarca, where the defendant “was

20   not aware that the purpose of his trip . . . was to purchase cocaine,” id. at 244, Garcia

21   directly participated in the drug transactions as a drug courier and knew that he was


                                                   3
 1   delivering drugs. Indeed, at sentencing, it was agreed that Garcia “was paid in terms of

 2   the amount of drugs that were sold. So that approximately 1 kilogram cocaine base was

 3   sold every 10 days to two weeks, and for that he was paid somewhere between $600 and

 4   $800.” Sentencing Tr., Aug. 17, 2010, at 5-6. “[T]he quantity of drugs attributed to a

 5   defendant need not be foreseeable to him when he personally participates, in a direct way,

 6   in a jointly undertaken drug transaction.” Chalarca, 95 F.3d at 243.

 7         We have considered Garcia’s remaining arguments and find them to be without

 8   merit. For the foregoing reasons, the judgment of conviction is AFFIRMED.

 9                                     FOR THE COURT:
10                                     Catherine O’Hagan Wolfe, Clerk of Court
11
12




                                                 4
