     Case: 13-11279      Document: 00513190985         Page: 1    Date Filed: 09/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                      No. 13-11279                                 FILED
                                                                           September 11, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff-Appellee,
v.

JOHN GARCIA,

                                                 Defendant-Appellant.



                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:09-CR-276


Before STEWART, Chief Judge, and JOLLY and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant John Garcia appeals the sentence imposed by the
district court after pleading guilty to conspiracy to possess with intent to
distribute a controlled substance in violation of 21 U.S.C. §§ 846 & 841(b)(1)(B).
For the following reasons, we vacate and remand for resentencing.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-11279         Document: 00513190985         Page: 2    Date Filed: 09/11/2015



                                       No. 13-11279
                           I.     Facts & Procedural History
      John Garcia and two codefendants, Eric Tobias and Jeffrey Campos, 1
were charged by indictment with conspiracy to possess with intent to distribute
500 grams or more of cocaine, a Schedule II controlled substance, in violation
of 21 U.S.C. §§ 846 & 841 (b)(1)(B). The indictment resulted from an
investigation involving the sale of narcotics from a residence located on
Ivywood Drive in Dallas, Texas. During a search of the residence, officers
seized over 1,000 grams of cocaine, over 400 grams of methamphetamine, over
500 grams of marijuana, $4,583 in U.S. currency, several digital scales, and
seven firearms with ammunition.
      Garcia pled guilty as charged in the indictment, without a plea
agreement. According to the presentence investigation report (“PSR”), the
combined drugs attributable to Garcia had a total marijuana equivalency of
7,868.105 kilograms of marijuana, resulting in a base offense level of 34. See
U.S.S.G. § 2D1.1(c)(3). A two-level enhancement was assessed to Garcia’s
offense level because the firearms were found in his residence.                      Id. §
2D1.1(b)(1). Two more levels were added because it was determined that
Garcia “was an organizer of criminal activity.” Id. § 3B1.1(c). Another two
levels were added because Garcia created a substantial risk of death or serious
bodily injury when he fled from law enforcement officers on November 24,
2010. Id. § 3C1.2. Two levels were deducted from Garcia’s offense level for
acceptance of responsibility. Id. § 3E1.1(a). Garcia’s total offense level was
determined to be 38 with a criminal history category of I because he had no
prior criminal history. Consequently, Garcia’s advisory guidelines range was
determined to be 235 months to 293 months of imprisonment.




      1   Eric Tobias and Jeffrey Campos are not parties to this appeal.
                                              2
    Case: 13-11279     Document: 00513190985      Page: 3   Date Filed: 09/11/2015



                                  No. 13-11279
      Garcia objected to the PSR and also moved for a non-guidelines sentence
based on the 18 U.S.C. § 3553(a) factors. The probation officer maintained that
the enhancements to Garcia’s sentence were warranted and that his advisory
guidelines range was correctly calculated. The district court agreed with the
probation officer and overruled Garcia’s objections to the PSR. The district
court imposed a mid-range sentence of 265 months’ imprisonment with four
years of supervised release. Garcia filed this appeal.
                                 II.   Discussion
   Garcia asserts the following on appeal: (1) The district court erred in
applying a two-level enhancement to Garcia’s sentence for his role in the
offense; (2) The district court erred in ordering Garcia to forfeit the firearms
and ammunition seized from his residence; (3) The district court erred in
failing to award Garcia an additional one-level reduction for acceptance of
responsibility due to his refusal to waive his right to appeal; and, (4) The
sentence imposed by the district court was substantively unreasonable. We
address each of these arguments in turn.
   A. Garcia’s Role in the Offense
      Garcia challenges the district court’s two-point enhancement to his
offense level for his role in the offense on grounds that the PSR failed to provide
sufficient facts to support the finding that he was an organizer of the drug
conspiracy. Garcia contends that he, Campos, and Tobias shared equal roles
in facilitating the sale of drugs from their residence. We do not agree.
      We review a district court’s finding regarding a defendant’s role in an
offense for clear error. United States v. Rose, 449 F.3d 627, 634 (5th Cir. 2006).
A district court’s factual finding that a defendant is a leader or organizer need
only be supported by a preponderance of the evidence. United States v. Puig-
Infante, 19 F.3d 929, 944 (5th Cir. 1994).


                                        3
    Case: 13-11279    Document: 00513190985     Page: 4   Date Filed: 09/11/2015



                                 No. 13-11279
      Section 3B1.1(c) provides for a two-level enhancement if the defendant
is an organizer, leader, manager or supervisor of criminal activity. U.S.S.G. §
3B1.1(c).   The commentary provides that a defendant qualifies for the
enhancement if he was “the organizer, leader, manager, or supervisor of one or
more other participants.” § 3B1.1, cmt. n.2. Application Note 4 provides the
following additional guidance:
      Factors the court should consider include the exercise of decision
      making authority, the nature of participation in the commission of
      the offense, the recruitment of accomplices, the claimed right to a
      larger share of the fruits of the crime, the degree of participation
      in planning or organizing the offense, the nature and scope of the
      illegal activity, and the degree of control and authority exercised
      over others. There can, of course, be more than one person who
      qualifies as a leader or organizer of a criminal association or
      conspiracy.

Id., cmt. n.4.
      When the evidence demonstrates that a defendant directed another in
his drug trafficking activities in exchange for compensation, a sentence
enhancement under § 3B1.1(c) is appropriate. See United States v. Turner, 319
F.3d 716, 725 (5th Cir. 2003) (concluding that § 3B1.1(c) enhancement was
proper where defendant enlisted and arranged for another person to undertake
an activity to accomplish a criminal act); see also United States v. Gordon, 248
F. App’x 521, 525 (5th Cir. 2007) (per curiam) (affirming enhancement where
defendant recruited, paid, and instructed driver).
      The district court concluded that Garcia was an organizer under §
3B1.1(c) based upon the facts established in the PSR and the addenda.
According to the PSR, Tobias advised agents that Garcia allowed him to stay
at his residence in exchange for protecting the residence, distributing drugs,
and collecting drug proceeds on behalf of Garcia. Similarly, Campos told his
probation officer that he also helped Garcia conduct drug sales and protected

                                       4
    Case: 13-11279     Document: 00513190985     Page: 5   Date Filed: 09/11/2015



                                  No. 13-11279
his residence because Garcia allowed him to live there.            Thus, Garcia
compensated Campos and Tobias in the form of free rent for their assistance
in facilitating the sale of drugs from his residence on his behalf. On these
grounds we conclude that the district court’s finding that Garcia was an
organizer in the drug conspiracy is not clearly erroneous and is “plausible in
light of the record as a whole.” See Rose, 449 F.3d at 633; U.S.S.G. § 3B1.1(c).
   B. The Forfeiture Order
      Garcia also challenges the district court’s forfeiture order as to the
firearms and ammunition that were seized from Garcia’s residence.             He
contends that he did not have actual or constructive knowledge that the
Government was going to seek forfeiture of the property. According to Garcia,
he first became aware of the Government’s intentions at sentencing when the
district court issued the order of forfeiture. On this basis, Garcia asks this
court to vacate the district court’s judgment to the extent that it concerns
forfeiture of property. For the following reasons, we decline to do so.
      At sentencing, Garcia failed to object to the district court’s forfeiture
order, therefore, we review for plain error. See United States v. Marquez, 685
F.3d 501, 510 (5th Cir. 2012). Under the plain error standard, Garcia must
show a clear or obvious error that affected his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). This court has discretion to correct
the error if it seriously affects the fairness, integrity, or public reputation of
the proceedings. Id.
      Federal Rule of Criminal Procedure 32.2 sets forth the procedures to be
followed before a district court may enter a judgment of forfeiture in a criminal
case. See Marquez, 685 F.3d at 509. The defendant must be provided notice
in the indictment or information that the Government intends to seek
forfeiture. Fed. R. Crim. P. 32.2(a). Next, “[a]s soon as practical” after the
guilty plea, the court must determine the property subject to forfeiture and
                                        5
    Case: 13-11279     Document: 00513190985    Page: 6   Date Filed: 09/11/2015



                                 No. 13-11279
decide “whether the government has established the requisite nexus between
the property and the offense.” Fed. R. Crim. P. 32.2(b)(1)(A). The court then
“must promptly enter a preliminary order of forfeiture,” generally in advance
of sentencing, describing the property to be forfeited.      Fed. R. Crim. P.
32.2(b)(2)(A).   The preliminary order of forfeiture becomes final as to the
defendant “[a]t sentencing—or at any time before sentencing if the defendant
consents.”   Fed. R. Crim. P. 32.2(b)(4)(A).    “The court must include the
forfeiture when orally announcing the sentence or must otherwise ensure that
the defendant knows of the forfeiture at sentencing.”        Fed. R. Crim. P.
32.2(b)(4)(B).
      This court has stated that the procedures under Rule 32.2 “are not empty
formalities” and instead “serve a vital function in ensuring that a defendant
has notice of a criminal forfeiture and an opportunity to challenge any
forfeiture sought by the government.” Marquez, 685 F.3d at 509. Thus, they
are “mandatory.” Id.
      Although Garcia was not given notice of the forfeiture in the indictment,
factual resume, or at rearraignment, Garcia did have actual or constructive
notice of the Government’s intention to seek forfeiture because the
Government published notice of the pending forfeiture, pursuant to 21 U.S.C.
§ 853(n)(1) and Rule 32.2(b)(6)(C), on February 24, 2012. See McCray v. United
States, No. 94-30306, 1994 WL 725135, at *2 (5th Cir. 1994) (per curiam)
(unpublished). Further, Garcia never submitted proof regarding his title,
ownership or legal claim to the forfeited property, which, according to the
record evidence, belonged to Tobiasnot Garcia.               Tobias, Garcia’s
coconspirator, who pled guilty pursuant to a plea agreement, acknowledged
that the firearms and ammunition were used or intended to be used in the
offense and that he was the “sole owner of the [firearms and ammunition] and
[was] unaware of anyone else with a legal claim or interest in [the] property.”
                                      6
    Case: 13-11279    Document: 00513190985     Page: 7   Date Filed: 09/11/2015



                                 No. 13-11279
Pursuant to the plea agreement, Tobias agreed to forfeit the firearms and
ammunition.
      Tobias’s plea agreement was filed into the record on March 11, 2010. On
June 7, 2010, the Government filed a motion for preliminary order of forfeiture
and the district court granted the motion. The Government published notice
of the pending forfeiture, but Garcia did not submit a claim to the forfeited
property. On May 4, 2012, Garcia pled guilty to the conspiracy charge as
alleged in the indictment and on May 21, 2012, the Government moved for a
final order of forfeiture which was granted by the district court.
      This record evidence establishes that Garcia had actual or constructive
knowledge of the forfeiture order via publication but he did not enter a claim
to the property. Further, other than asserting that the firearms were seized
from his residence, a residence where he permitted Tobias to live, Garcia failed
to prove his ownership of the property. Accordingly, we hold that the district
court did not plainly err in in entering the forfeiture order. See Puckett, 556
U.S. at 135.
   C. Additional Reduction for Acceptance of Responsibility
   Garcia argues that the district court erred by failing to award him an
additional one-level reduction to his offense level for acceptance of
responsibility. In light of the recent changes in the law, Garcia contends that
he was entitled to an additional one-level reduction under U.S.S.G. § 3E1.1(b)
despite his unwillingness to waive his right to appeal.
      We conduct a two-step review of the district court’s sentencing decision.
United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014). “First, we must
‘ensure that the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, [or] failing to consider the § 3553(a)
factors.’” Id. (citations omitted). We “may affirm the sentence in spite of a
                                       7
    Case: 13-11279        Document: 00513190985        Page: 8   Date Filed: 09/11/2015



                                     No. 13-11279
procedural error if that error is harmless—that is, if ‘the error did not affect
the district court’s selection of the sentence imposed.’” Id. at 601 (citations
omitted). “Second, if the sentence is procedurally sound or if the procedural
error is harmless, [we] ‘consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.’” Id. at 598 (citation omitted).
In our application of this two-step review, we review “the sentencing court’s
interpretation or application of the Sentencing Guidelines de novo, and its
factual findings for clear error.” Id. at 598-99.
      U.S.S.G. § 3E1.1(b) provides that a defendant who has already received
a two-level reduction under § 3E1.1(a) and has timely cooperated is entitled to
an additional one-level reduction if the Government so moves. In United States
v. Newson, 515 F.3d 374, 378 (5th Cir. 2008), abrogated by United States v.
Palacios, 756 F.3d 325, 326 & n.1 (5th Cir. 2014) (per curiam), this court held
that a district court may not award a reduction pursuant to Section 3E1.1(b)
absent a motion from the Government and that a “defendant’s refusal to waive
his right to appeal is a proper basis for the Government to decline to make such
a motion[.]” The Sentencing Commission has since amended Section 3E1.1’s
commentary, effective November 1, 2013, to provide that the Government
should not refuse to move for the additional one-level reduction based on the
defendant’s failure to waive his appellate rights. See U.S.S.G. § 3E1.1, cmt.
n.6. Shortly thereafter, this court held in Palacios, 756 F.3d at 326 & n.1, that
Amendment 775 is a clarifying amendment and applies whether the defendant
was sentenced before or after its effective date. 2               This court further
acknowledged in United States v. Torres-Perez, 777 F.3d 764, 768 (5th Cir.
2015) that “it is now unquestionably clear under our precedent that” the




      2   Garcia was sentenced on November 22, 2013.
                                            8
     Case: 13-11279       Document: 00513190985         Page: 9     Date Filed: 09/11/2015



                                      No. 13-11279
Government may not withhold a § 3E1.1(b) motion due to the defendant’s
failure to waive his appellate rights.
       Here, as stated in the PSR, the probation officer determined that Garcia
had clearly demonstrated acceptance of responsibility for his offense for
purposes of § 3E1.1(a), however, the Government would not move for the
additional one-level reduction pursuant to § 3E1.1(b) because Garcia failed to
waive his right to appeal. Garcia’s original guidelines range was 235 to 293
months’ imprisonment. Reducing Garcia’s offense level an additional point
pursuant to § 3E1.1(b) would result in a new guidelines range of 210 to 262
months’ imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table). Although
the incorrect and correct guidelines ranges overlap, Garcia’s sentence of 265
months is not within the overlap and falls outside the correct guidelines range. 3
       Moreover, the Sentencing Commission’s clarifying revisions to the
Guidelines and this court’s very recent holdings in Palacios and Torres-Perez
make it abundantly clear that withholding the motion for the reason done so
in this casebecause Garcia refused to waive his right to appealis now
forbidden by our jurisprudence.


3 The Government argues that the district court would have imposed the same 265-month
sentence even if Garcia had been awarded an additional one-level reduction for acceptance of
responsibility. The Government cites the following statement made by the district court in
support of its position:

       I’ve determined that this sentence is the sentence that should be imposed
       under the statutory factors. And, again, as I note for the record, while this is
       a sentence within the advisory guideline range, it is a sentence that I would
       impose even if I were viewing the guidelines as but some of the 3553(a) factors.

The above statement, however, does not address whether the district court would have
imposed the same sentence regardless of an error in connection with the calculation of the
advisory guideline range. Further, the district court expressly stated at sentencing that the
265-month sentence was a “point within the range [that] is sufficient but not greater than
necessary to comply with the purposes set forth in Section 3553(a)(2).” For these reasons we
are not persuaded by the Government’s argument that the district court would have imposed
the 265-month sentence had it known that it was above the correct guidelines range.
                                              9
   Case: 13-11279    Document: 00513190985        Page: 10     Date Filed: 09/11/2015



                                 No. 13-11279
      On these grounds, we hold that the district court committed procedural
error by improperly calculating the correct Guidelines range. Robinson, 741 at
598. Further, because it appears from the record that the error “affect[ed] the
district court’s selection of the sentence imposed,” the error was not harmless.
Id. at 601. We therefore vacate and remand to the district court for
resentencing not inconsistent with this opinion. In light of this holding, we
pretermit   discussion   with   respect     to   whether     Garcia’s   sentence   is
substantively unreasonable.
                                III.   Conclusion
   For the foregoing reasons, the sentence of Defendant-Appellant John Garcia
is VACATED and REMANDED.




                                       10
