           Case: 11-15104    Date Filed: 09/18/2013   Page: 1 of 46


                                                           [DO NOT PUBLISH]          `

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-15104
                       ________________________

                  D.C. Docket No. 1:99-cr-00804-CMA-12



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee
                                                                 Cross-Appellant,

                                    versus


OSCAR VARELA GARCIA,
a.k.a. Omar Garcia Varela,
a.k.a. Capachivo,

                                                            Defendant-Appellant
                                                                Cross-Appellee.

                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                       ________________________

                             (September 18, 2013)
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Before HULL and MARTIN, Circuit Judges, and HINKLE, ∗ District Judge.

PER CURIAM:

       After a jury trial, defendant Oscar Varela Garcia appeals, on sufficiency of

the evidence grounds, his convictions for seven federal offenses. Garcia’s

convictions stemmed from his work as a high-ranking official in a Colombian drug

trafficking organization. The government cross-appeals Garcia’s total sentence,

which was based on a downward variance, of 280 months as substantively

unreasonable. After careful review, and with the benefit of oral argument, we

affirm Garcia’s convictions and sentences.

       We begin by setting forth the case’s procedural history up until the guilty

verdicts. Afterwards, we recount the trial evidence, since Garcia’s challenges

pertain to the sufficiency of the evidence presented against him. We then address

Garcia’s appeals, explaining why, viewing the evidence in the light most favorable

to the government, there was more than enough evidence for a reasonable jury to

find Garcia guilty of the seven charged offenses. Afterwards, we turn to the

government’s cross-appeal. We describe in full the presentence investigation

report (“PSI”), the sentencing hearing, and the downward variance. We explain

why in light of the significant discretion we must give to a district court in the



       ∗
         Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
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sentencing context, we cannot say that Garcia’s sentence was substantively

unreasonable.

                          I. PROCEDURAL HISTORY

A.    Indictment

      A federal grand jury in the Southern District of Florida returned a sixth

superseding indictment (the “indictment”) against five defendants: Diego Montoya

Sanchez, Eugenio Montoya Sanchez, Garcia (the defendant in this appeal), and two

others (Herrera and Perea).

      The indictment charged defendant Garcia with seven offenses: (1)

conspiracy to import five kilograms or more of cocaine into the United States, in

violation of 21 U.S.C. §§ 960(b)(1)(B) and 963 (“count one”); (2) conspiracy to

possess with intent to distribute five kilograms or more of cocaine, in violation of

21 U.S.C. §§ 841(b)(1)(A)(ii) and 846 (“count two”); (3) conspiracy to launder

monetary instruments, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1956(h)

(“count three”); (4) conspiracy to obstruct justice, in violation of 18 U.S.C.

§§ 1503 and 371 (“count nine”); (5) obstruction of justice by torturing and

murdering a government witness in a pending federal prosecution, in violation of

18 U.S.C. §§ 1503(a), 1503(b)(1), 1111, and 2 (“count ten”); (6) conspiracy to

commit murder as retaliation for providing information to a law enforcement

officer, in violation of 18 U.S.C. §§ 1513(a)(1)(B), 1513(a)(2)(A), and 1111

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(“count eleven”); and (7) murder in retaliation for providing information to a law

enforcement officer, in violation of 18 U.S.C. §§ 1513(a)(1)(B), 1513(a)(2)(A),

1111, and 2 (“count twelve”).

B.     Plea and Trial Rule 29 Motion

       Garcia pleaded not guilty to all counts and proceeded to trial. Meanwhile,

each of his co-defendants pleaded guilty to some of the counts in the indictment.

Afterwards, the district court held a seventeen-day jury trial in Garcia’s case.

           At the close of the government’s case, Garcia made a motion for a

judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal Procedure

as to each count. The district court denied the motion as to each count except for

count ten, the obstruction of justice by murder offense. As to that count, it

reserved ruling.1

C.     Jury Verdict

       Subsequently, the jury found Garcia guilty as to each count. At sentencing,

the district court denied Garcia’s pending Rule 29 motion as to count ten.

 II. TRIAL EVIDENCE ABOUT THE MONTOYA ORGANIZATION AND
               DEFENDANT GARCIA’S ROLE IN IT




       1
         The district court reserved ruling on count ten because it needed time to do “some
perusal of some law” regarding whether the charged offense could be based on conduct
occurring outside the United States. The district court subsequently determined that there was no
extraterritorial application problem.
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       Because defendant Garcia challenges his convictions on sufficiency of the

evidence grounds, we set forth in full the overwhelming evidence presented at trial.

A.     The Montoya Drug Trafficking Organization

       The trial evidence established that Garcia was a high-level official of a

Colombian cocaine trafficking organization led by his co-defendant, Diego

Montoya Sanchez (“Diego”).2

       Beginning by not later than 1986, Diego began selling cocaine that he

produced at a coffee plantation near Cali, Colombia. He soon formed an

organization to grow, process, and ship cocaine to Mexico (the “Montoya

organization”). From Mexico, a middle man smuggled the drugs into the United

States.

       Diego received assistance in this operation from his brothers, co-defendant

Eugenio Montoya Sanchez (“Eugenio”) and Juan Carlos Montoya Sanchez (“Juan

Carlos”). Diego was the head of the organization, Eugenio oversaw the group’s

finances, and Juan Carlos was responsible for the cocaine shipments. The

organization also employed approximately 80 workers in its cocaine laboratories.




       2
         During the trial, the witnesses, many of whom were former members of the Montoya
organization, referred to defendant Garcia by his various nicknames, including: “Capachivo,”
“Capa,” and “Don Omar.” For clarity purposes, we refer to the defendant as “Garcia,” regardless
of the name used by a testifying witness.
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      The Montoya organization was able to produce vast amounts of cocaine. A

former lab worker testified that, at their peak, the organization’s laboratories

produced approximately 1,500 kilograms of cocaine in a single day.

      Sometime around 1995, the Montoya organization stopped producing its

own cocaine and began purchasing already processed cocaine and shipping the

drugs to Mexico via boats. This business proved to be very lucrative. The

Montoya organization shipped to Mexico about one or two boatloads per month of

between 2,500 and 3,000 kilograms of cocaine. The organization received profits

ranging from $7.5 million to $9.9 million per boatload. After the boats arrived in

Guadalajara, Mexico, a middle man smuggled the cocaine into the United States.

      The Montoya organization used an intricate procedure to ensure that the

proceeds from these drug transactions were moved from the United States to

Colombia without detection. We set forth the details of these measures in our

discussion of Garcia’s challenge to his money laundering conspiracy conviction.

B.    Garcia’s Entrance into the Montoya Organization

      Defendant Garcia originally worked for another cocaine trafficking kingpin,

Grajales, commonly referred to as “Don Ivan.” During the 1980s and 1990s,

Garcia worked as the head of security for Don Ivan, who owned a large Colombian

estate called “Milan.” There was an airstrip at Milan, which Don Ivan allowed his

friend, Diego, to use for transporting cocaine. As Don Ivan’s head of security,

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defendant Garcia oversaw the team of 20 to 25 armed bodyguards working at the

Milan estate.

      In 1993, Don Ivan and his friend Diego instructed defendant Garcia to

murder an employee of another Colombian drug kingpin, with whom Diego was in

a dispute. Garcia successfully orchestrated the murder. After the rival drug

kingpin agreed not to retaliate against Diego or Don Ivan, Diego became, as one

witness stated, “the most important man within the North Valley Cartel.” The

witness explained that “making an attempt against the life of one of the members

of the [rival] organization, he being a kingpin of the North Valley Cartel, that gave

Diego a certain renown or a certain reputation within the North Valley Cartel.”

      Shortly thereafter, Don Ivan was arrested and imprisoned. At that point,

Diego took over operation of the Milan estate. Also around that time, defendant

Garcia, went to work exclusively for Diego, “in charge of the hit men and

security.” One witness testified that, as the organization’s head of security, Garcia

was “the most highly trusted in terms of murders and hit men activities.”

C.    Garcia’s Role in the Montoya Organization

      As the Montoya organization’s security chief, defendant Garcia performed a

number of functions. One of those was collecting drug debts. One of Garcia’s top

deputies testified that, often, the deputy could collect a debt by making a phone

call to the debtor and mentioning Garcia’s name. The deputy testified that he

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would tell the debtor “I am one of . . . [Garcia’s] workers.” After doing so, he

would “get a lot of respect.” When a phone call did not work, Garcia kidnapped

the debtor or the debtor’s family members, and only released the victim after the

debt was paid. For example, in the mid-1990s, Diego lost $3 million when a

shipment of cocaine profits was seized during transit from Miami to Colombia.

Diego summoned Garcia and ordered him to kidnap the individual in charge of

supervising the shipment of the money as well as the person’s family, and to not

release the victims until the lost funds were repaid. Garcia did so, and the debt was

recovered thereafter.

         Garcia also was responsible for retaliating against those who stole from the

Montoya organization. For example, approximately 1,500 kilograms of cocaine

were stolen from Diego around 1994. In response, Diego ordered defendant

Garcia to kidnap, torture, and kill the people suspected of stealing the cocaine.

Garcia assembled a team of 14 workers to help him with the kidnappings, torture,

and murders. Some time later, Garcia reported to Diego that he had murdered

some of the individuals responsible for the theft, and that he had recovered some of

the stolen drugs. Thereafter, Garcia reported to Diego again, this time telling the

organization leader that he had murdered the head of the gang that had stolen the

drugs.




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      Another one of Garcia’s tasks was murdering members of a rival drug

organization (led by Varela) after Diego declared “war” against the Varela

organization in 2003. Around that time, Diego summoned a meeting of Garcia and

a few of his other workers. Diego instructed his employees to gather a group of

men together for “war” with the Varela organization. Garcia suggested that the

group be called “Los Machos” because the men were “really tough guys . . . .

really macho.” Afterwards, Diego developed a list of the rival organization’s

members whom he wanted killed. Diego offered to pay Garcia a bounty for each

person on the list killed. The price of the bounty depended on the target’s

importance in the rival organization.

      Garcia then went about killing the members on the list. Garcia frequently

updated Diego on whom he and his men had killed. A witness testified that Garcia

would not personally carry out these murders; rather, he “had others whom [he and

his top deputies] would send out to do the killings.” Afterwards, the workers

would report back to Garcia “[a]bout the people that they had killed.” Garcia

received “a significant amount of money” after his workers killed Varela’s cousin,

“Porras,” a high-ranking official in the Varela organization.

      Another one of Garcia’s important roles was murdering members of the

Montoya organization suspected of being informants. Diego was very concerned

about the possibility that members of his organization might betray him.

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According to one witness, Diego “would say something like ‘These snitching sons

of bitches need to be killed. Anyone who comes out as a snitch, I will have them

killed.’” Garcia was responsible for ensuring that Diego made good on that threat.

      We discuss in detail below one the murders of an informant orchestrated by

Garcia. However, Garcia orchestrated several others. Evidence at trial showed

that Garcia was responsible for the murders of at least seven members of the

Montoya organization suspected of being informants, three of whom were the

brothers of Montoya’s top deputy. After at least one of these murders, Garcia’s

workers dismembered the victim’s body and dumped it into a river in order to

conceal it.

      Diego compensated defendant Garcia for this work. Prior to the 2003 war

with the rival drug organization, Diego paid Garcia between $3,000 and $5,000 for

each murder Garcia completed or arranged to be completed. After the outbreak of

the war, Diego began paying Garcia a monthly salary of approximately $500,000,

which Garcia shared with the men working for him. Additionally, he paid Garcia a

bounty for certain members of the rival organization that Garcia killed. Also

during the war, Diego and his brothers began to pay Garcia “stakes,” or portions of

the profits from their cocaine trafficking activities. A witness testified that Garcia

received a payment of $700,000 from the shipment of one 200 kilogram load of

cocaine.

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III. TRIAL EVIDENCE ABOUT THE MURDER OF AN FBI INFORMANT

      Counts nine through twelve pertained to Garcia’s role in murdering a

member of the Montoya organization who was cooperating with United States law

enforcement officers investigating the organization. Thus, we recount in detail the

evidence pertaining to that murder.

A.    Background on the Montoya Organization’s Miami Operations

      In the late 1990s, three members of the Montoya family (the mother of the

Montoya brothers, their sister, and Diego’s ex-wife) moved to Miami, Florida.

Around that time, one of Diego’s employees, Cardona, also moved to Miami.

While living in Miami, Cardona assisted Montoya family members living in the

United States. Cardona bought apartments for the family members to live in,

obtained cars for them to drive, and managed an off-shore bank account funded by

the Montoya brothers for their family members’ expenses in the United States.

      In June 2002, based on information provided by Colombian police,

American FBI agents identified Cardona as the Montoya organization’s operative

in the United States. At that time, an FBI agent confronted Cardona in a parking

lot in Miami and showed him evidence the FBI had gathered about the Montoya

organization. Cardona reviewed the extensive evidence already compiled and

agreed to assist the FBI’s efforts to obtain more details.

B.    The Victim Giraldo’s Cooperation with Federal Agents

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      After Cardona began informing on the Montoya organization, the FBI agents

asked him whether he knew of any organization member in Colombia who might

also be willing to assist American authorities. Cardona responded that his long-

time friend, Jhon Jairo Garcia Giraldo (“Giraldo”), might be amenable to helping

the FBI.

      At trial, Cardona described Giraldo as his “best friend” and stated that he

had met Giraldo when both were nine years old. In 1996, Giraldo was working for

a cellular phone company in Colombia when Cardona introduced him to the

Montoyas. Giraldo became friends with the Montoya brothers, and entered into a

business relationship with them whereby he provided them with cellular

equipment.

      Giraldo agreed to cooperate with the FBI. Giraldo traveled to Miami where

he met with the federal agents in September 2002. During that meeting, Giraldo

informed the agents of important locations for the Montoya organization’s drug

trafficking work and of the identities of high-ranking members of the organization.

Giraldo also discussed with the agents ways he could help them catch Diego.

Afterwards, Giraldo returned to Colombia.

      Giraldo traveled to Miami again on June 8, 2003. He did so because the

Montoya brothers had ordered him to deliver $15,000 to Diego’s ex-wife, who

lived in Miami. Cardona picked Giraldo up at the Miami airport and immediately

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took him to meet with FBI agents at a hotel. While in the agents’ presence,

Giraldo contacted Montoya organization members in Colombia to confirm that he

had arrived safely and to receive instructions on how to deliver the money.

Giraldo learned that a meeting was scheduled for later that day at his hotel. The

agents then photographed the cash and surveilled the transaction.

C.    Preparations to Torture and Murder Giraldo

      A few weeks later, on July 4, Giraldo returned to Colombia. Around that

time, Diego learned about Giraldo’s cooperation with the American officials. As a

result, Diego and his brothers decided to torture and kill Giraldo.

      After becoming aware of Giraldo’s actions, Eugenio summoned defendant

Garcia and one of Garcia’s top deputies, Robayo, to a meeting in Cali, Colombia.

At trial, Robayo testified about the meeting. Robayo stated that Eugenio instructed

him and Garcia to “torture [Giraldo] and . . . get some information out of him,

information that we need.” The needed information pertained to “what type of

information [Giraldo] was providing to the Americans.” Robayo testified that he

understood Eugenio as impliedly instructing them to murder Giraldo because

informants who are tortured “have to be killed.”

      After Robayo and Garcia met with Eugenio they discussed between

themselves how to kill Giraldo. Garcia directed Robayo to personally oversee the




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torture and killing of Giraldo, and gave Robayo specific directions on how to do

so.

       Garcia advised Robayo to take with him for the torture and murder two of

his (Garcia’s) family members known as “Los Locos” or “the crazy ones.”

According to Robayo, Garcia suggested that these men would be useful because

they “were good for torturing and they were good to dismember the bodies . . . they

were special in that.” As for how to torture Giraldo, Garcia told Robayo to “break

his shins because that is quite effective.” Garcia advised that, after Robayo broke

Giraldo’s shins, he should “[w]ait about 30 or 40 minutes . . . and put pressure

there . . . . squeeze that area there and then that will work.” Garcia also told

Robayo to murder Giraldo after getting information from him and then to “cut him

up and dismember him so that he disappears.” Robayo testified that he followed

these instructions because Garcia was his “boss” and he “had to do what he told me

to.”

D.     Giraldo’s Murder

       On a preselected day, Robayo lured Giraldo to another Montoya

organization member’s farm by requesting that Giraldo deliver cellular telephones

there. When Giraldo arrived, Robayo and his assistants grabbed and handcuffed

him, and then led him to a stable, where they sat him on a stool.




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      Once everyone was in the stable, Robayo excused his assistants and spoke to

Giraldo privately. Robayo advised Giraldo that he (Giraldo) was “in trouble” and

that Robayo would “help [him] out” if Giraldo answered Roabyo’s questions

truthfully. Despite Robayo’s offer of assistance, Giraldo denied providing

information to the DEA or the FBI. Giraldo suggested that it was Diego’s wife

(who lived in Miami) who was talking to the American authorities. After four or

five minutes, Robayo stepped outside of the stable and told his assistants “he has to

be tortured. He doesn’t want to talk.”

      The group reentered the stable, stripped Giraldo to his underwear and tied

his hands behind his back. One of the men beat Giraldo with a baseball bat and

“broke his leg with several blows.” Robayo testified that, while the beating

occurred, Giraldo “was screaming. He made a real racket.” Giraldo still refused to

admit to betraying the Montoya organization.

      Following Garcia’s instructions, Robayo waited about 40 minutes and then

squeezed Giraldo’s broken leg. Robayo also placed a hood over Giraldo’s head

and dunked his head in a container of water. At another point, the men broke

Giraldo’s other leg and squeezed it. Despite enduring such pain, Giraldo refused to

confess.




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      After “[h]ours” of torture, Robayo decided “to kill him.” The men murdered

Giraldo by placing a bag over his head and thus asphyxiating him. Afterwards,

they dismembered Giraldo’s body and threw the parts into a nearby river.

E.    Reports to Garcia About the Torture and Murder

      Although Garcia was not at the farm during the torture and murder, he kept

close tabs on the events. Robayo testified that Garcia called him twice while he

was torturing Giraldo. The conversations were short, according to Robayo,

“because [Robayo] was busy.”

      Later on, Robayo met with Garcia in person. Garcia asked Robayo: “How

did you do?” To which Robayo replied: “So-so. You know, that customer didn’t

have much to say.” Garcia asked Robayo specific questions about the torture

methods used. He asked: “Did you hit him on the shins like I told you?” Garcia

assured him: “We did everything to him.”

      Garcia also developed a plan to ensure that Colombian law enforcement

authorities could not link the Montoya organization to Giraldo’s murder. He

instructed Robayo to take Giraldo’s car and “dump [it] at a location somewhere

where the guerrillas are nearby . . . . So if something comes up, it would look as if

the guerrillas had kidnapped him.” Robayo disposed of the car just as Garcia

instructed.

F.    Garcia’s Reports to the Montoya Organization About the Murder

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      Once Garcia learned that his workers had carried out the torture and murder,

Garcia reported to his superiors within the Montoya organization. A former

Montoya organization employee testified that, at a meeting attended by Diego and

Eugenio, Garcia discussed killing and torturing Giraldo.

      The Montoya brothers were pleased that Garcia had arranged for Giraldo’s

death. Diego said to the former employee: “We have killed that son of a bitch

snitch.” Eugenio gave credit to Garcia for carrying out the murder. However, at a

subsequent meeting among Diego, Robayo, and Garcia, Robayo told Diego he

believed that Giraldo was actually innocent of being an informant for the U.S.

government. This statement angered Diego. Garcia intervened on Robayo’s

behalf, stating, “Diego, everything was done to him. Believe us, if he did not talk,

it was because he was not guilty.”

G.    The Cover-up of the Murder

      One of the Montoya organization members who helped in Giraldo’s torture

and murder kept Giraldo’s cellular telephone and used the phone to place calls. As

a result, Colombian law enforcement authorities investigating Giraldo’s

disappearance identified the Montoya organization member as a suspect.

      In response, Garcia and Robayo arranged to bribe Colombian officials.

Garcia also ordered Robayo to murder the person who had kept the telephone,

which Robayo did.

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         IV. STANDARDS OF REVIEW FOR GARCIA’S APPEAL

      Garcia challenges each of his seven convictions on sufficiency of the

evidence grounds. “We review de novo whether there is sufficient evidence to

support a jury’s verdict in a criminal trial.” United States v. Doe, 661 F.3d 550,

560 (11th Cir. 2011). In performing this review, we view the evidence in the light

most favorable to the government, and we resolve all reasonable inferences and

credibility determinations in favor of the guilty verdict. Id.

      Evidence is sufficient to support a conviction if a reasonable jury could find

that the evidence established guilt beyond a reasonable doubt. United States v.

Beckles, 565 F.3d 832, 840 (11th Cir. 2009). We will not vacate a conviction on

sufficiency of the evidence grounds when a defendant does nothing more than put

forth “a reasonable hypothesis of innocence.” Id. This is because “the issue is not

whether a jury reasonably could have acquitted but whether it reasonably could

have found guilt beyond a reasonable doubt.” Id. at 840–41 (internal quotation

marks omitted).

      With these standards in mind, we address each of Garcia’s challenges to his

convictions, starting with his argument about counts one and two—the drug

conspiracy counts.

     V. SUFFICIENCY OF THE EVIDENCE – COUNTS ONE AND TWO

A.    Elements of the Drug Conspiracy Offenses

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       Garcia first challenges his convictions on counts one and two, the drug

conspiracy counts. On count one, the jury convicted defendant Garcia of

conspiring to import five kilograms or more of cocaine into the United States, in

violation of 21 U.S.C. § 960(b)(1)(B), the substantive object offense statute, and

§ 963, the conspiracy offense statute. To support a conviction under § 963, the

government needed to prove “beyond a reasonable doubt that there existed an

agreement between two or more persons to import narcotics into the United States

and that [Garcia] knowingly and voluntarily participated in that agreement.”

United States v. Arbane, 446 F.3d 1223, 1228 (11th Cir. 2006).

      As for count two, the jury convicted defendant Garcia of conspiring to

possess with intent to distribute five kilograms or more of cocaine, in violation of

21 U.S.C. § 841(b)(1)(A)(ii), the substantive object offense statute, and § 846, the

conspiracy offense statute. “To sustain a conviction for conspiring to distribute

narcotics,” we consider whether there was sufficient evidence to establish the

following elements: (1) “an agreement existed between two or more persons to

distribute the drugs”; (2) “the defendant . . . knew of the conspiratorial goal”; and

(3) “he knowingly joined or participated in the illegal venture.” United States v.

Matthews, 168 F.3d 1234, 1245 (11th Cir. 1999).

      On both offenses, “[t]he government [did] not have to prove that [Garcia]

knew all of the details of the conspiracy or that he participated in every phase of

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the scheme.” United States v. Guerrero, 935 F.2d 189, 192 (11th Cir. 1991).

Moreover, a defendant’s knowing participation may be established “through proof

of surrounding circumstances, such as acts committed by the defendant that

furthered the purpose of the conspiracy.” Id.

B.    Evidence in Support of Conviction

      Garcia concedes the first elements on both offenses—that two or more

members of the Montoya organization agreed to import or distribute cocaine to the

United States. Additionally, there was testimony about multiple actions that

Garcia knowingly took in furtherance of this conspiracy. Garcia contends that

there was insufficient evidence that he knowingly joined the conspiracy, knowing

of its goal. He is wrong. There was ample evidence for a reasonable jury to

conclude that Garcia knew the Montoya organization’s goal of exporting cocaine

to the United States.

      First, multiple witnesses testified about the close relationship between

Garcia and the Montoya organization’s leader, Diego. For example, Sanchez, a

cousin of the Montoya brothers who spent most of his life working for the

Montoya organization, testified at trial that after Garcia coordinated the murder of

the rival drug organization member, “the friendship was consolidated more

between [Garcia] and Diego Montoya.” Likewise, Garcia’s former assistant,

Robayo, testified that Garcia met with Diego frequently and “was a very important

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individual . . . for Diego.” He stated that Diego and Garcia “were close and they

had a trusting relationship.” Upon seeing each other, Diego and Garcia would

offer warm greetings and hug. A reasonable jury could infer from the evidence

about the close relationship between Diego and Garcia that Diego shared with

Garcia details about the Montoya organization’s drug distribution activities. In

fact, it is difficult to imagine that Garcia could have been so close to Diego, and

yet Diego withheld from Garcia fundamental facts about the field in which they

both labored.

      Additionally, there was ample evidence about the drug debt collection work

that Garcia did for the Montoya organization. For example, a former Montoya

organization member, Perez, testified that Garcia had primary responsibility for

collecting the organization’s drug debts. Likewise, Robayo provided details about

the “trafficking debt” collection measures that he and defendant Garcia undertook.

Robayo stated that he could simply make a phone call and state that he was one of

“[defendant Garcia’s] workers” and prompt the debtor to pay the sum owed. A

reasonable jury could infer that Garcia knew the source of the debts he collected—

the organization’s cocaine trafficking. Again, it is unfathomable that Garcia could

have spent more than a decade collecting debts for a sophisticated drug trafficking

organization without knowing that the debts were owed for shipments of cocaine to

the United States.

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       There was more evidence, though. Multiple witnesses testified about the

significant sums of money Garcia earned from his work for the Montoya

organization. Robayo testified that, once the Montoya organization went to “war”

with its rival (sometime around September 2003), Diego started to give Garcia

$50,000 per month. Former organization member Perez stated that defendant

Garcia kept close track of the organization’s finances because “as soon as the

money would come in, then [enforcers like Garcia] would get paid right away for

the crimes that they had committed and whatever money was owed them.” Perez

explicitly stated that the money being used to pay Garcia came from “[d]rug

trafficking.” Perez also testified that the “final destination” of the drugs generating

this money “was the U.S.” A reasonable jury could infer that Garcia knew the

source of the large sums of money he was receiving—the organization’s drug

shipments to the United States.

       In short, there was more than enough evidence for a reasonable jury to

conclude that defendant Garcia knew the conspiracy’s unlawful purpose of sending

drugs to the United States. Accordingly, we affirm his convictions on counts one

and two.3



       3
        In opposition to this conclusion, Garcia cites cases from this Court where we have
vacated conspiracy convictions on sufficiency of the evidence grounds. However, these cases
involve very different facts than we have here. See United States v. Johnson, 440 F.3d 1286,
1294–96 (11th Cir. 2006) (vacating money laundering conspiracy conviction); United States v.
Charles, 313 F.3d 1278, 1283–87 (11th Cir. 2002) (vacating convictions for conspiracy to
                                              22
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          VI. SUFFICIENCY OF THE EVIDENCE – COUNT THREE

A.     The Money Laundering Conspiracy Statute

       Next, Garcia challenges the sufficiency of the evidence as to his count three

conviction for conspiring to launder money. To convict Garcia for conspiring to

commit money laundering under 18 U.S.C. § 1956(h), the government needed to

show: (1) that an agreement existed between two or more persons to commit a

money laundering offense, as set forth in 18 U.S.C. § 1956 or § 1957; and (2) that

Garcia knowingly and voluntarily joined in or participated in the conspiracy. See

United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005); see also 18 U.S.C.

§ 1956(h). The government did not need to prove the commission of an overt act

to obtain a conviction under the statute. See Whitfield v. United States, 543 U.S.

209, 214, 125 S. Ct. 687, 691 (2005). Moreover, the government could rely on

circumstantial evidence to prove the conspiracy’s existence. United States v.

Kennard, 472 F.3d 851, 856 (11th Cir. 2006). Additionally, the government

possess with intent to distribute cocaine and conspiracy to carry a firearm in furtherance of that
crime where evidence established only that defendant knew of plan to commit a home invasion
robbery, not that the goal of the robbery was to steal narcotics); United States v. Martinez, 83
F.3d 371, 374 (11th Cir. 1996) (vacating conviction for conspiracy to possess cocaine with intent
to distribute where the evidence established that co-conspirator told defendant that the
conspiracy was to steal money and there was no evidence that defendant knew actual goal of
conspiracy was to steal cocaine). In fact, in one of the cases Garcia relies on, we did not vacate a
conspiracy conviction at all; rather, we vacated a defendant’s sentence because the district court
misapplied the conspiracy guideline. See United States v. Hernandez, 141 F.3d 1042, 1051–57
(11th Cir. 1998) (vacating defendant’s sentence for multi-object conspiracy offense when district
court had determined sentence based on offense level of one object offense, committing murder-
for-hire, and there was insufficient evidence for a reasonable jury to convict defendant of
conspiring to commit murder-for-hire). In any event, the mere fact that this Court has in the past
vacated a conspiracy conviction does not give us reason to do so here.
                                                23
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needed only to prove that Garcia knew the conspiracy’s essential money

laundering objective, not that he knew specific details about the conspiracy. See

id.

B.      Elements of the Object Offense

        The jury found Garcia guilty of conspiring to commit the money laundering

offense set forth in 18 U.S.C. § 1956(a)(1)(B)(i).4 The elements of a violation of

§ 1956(a)(1)(B)(i) are: (1) “the defendant conducted or attempted to conduct a

financial transaction”; (2) “the transaction involved the proceeds of a statutorily

specified unlawful activity”; (3) “the defendant knew the proceeds were from some

form of illegal activity”; and (4) “the defendant knew a purpose of the transaction

was to conceal or disguise the nature, location, source, ownership, or control of the

proceeds.” United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002).

        As for the first element, a “financial transaction” is, inter alia, “a transaction

which in any way or degree affects interstate or foreign commerce . . . involving

the movement of funds by wire or other means.” 18 U.S.C. § 1956(c)(4). The

term “transaction” refers to “a purchase, sale, loan, pledge, gift, transfer, delivery,

or other disposition . . . of currency.” Id. § 1956(c)(3). We previously have noted


        4
         That provision states: “[w]hoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact involves the proceeds of specified unlawful
activity . . . knowing that the transaction is designed in whole or in part . . . to conceal or disguise
the nature, the location, the source, the ownership, or the control of the proceeds of specified
unlawful activity” shall be guilty of a felony offense. See 18 U.S.C. § 1956(a)(1)(B)(i).
                                                  24
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that these definitions indicate “that Congress intended to criminalize a broad array

of transactions designed to facilitate numerous federal crimes.” United States v.

Adams, 74 F.3d 1093, 1102 (11th Cir. 1996) (internal quotation marks and citation

omitted).

      On the second required element, the statute provides that a “specified

unlawful activity” includes “the manufacture, importation, sale, or distribution of a

controlled substance.” 18 U.S.C. § 1956(c)(7)(B)(i). “Proof that the funds were

drug proceeds may be established by circumstantial evidence.” United States v.

Frazier, 605 F.3d 1271, 1282 (11th Cir. 2010).

      To prove the third element—that that defendant knew the illegal character of

the transferred funds—“[c]ircumstantial evidence may be used to prove a

defendant knew the funds were drug proceeds.” Id.

      As for the fourth, “concealment” element, the government did not need to

prove that Garcia was trying to conceal the “the illegal nature of the funds”; rather,

the government needed only to prove that Garcia concealed “the location of the

[illegal] money.” United States v. Elso, 422 F.3d 1305, 1309 n.7 (11th Cir. 2005).

This Court previously has noted evidence relevant in determining whether a

transaction’s purpose was to conceal the location of illegal funds, including, inter

alia: (1) “statements by a defendant probative of intent to conceal”; (2) “unusual

secrecy surrounding the transaction”; (3) “highly irregular features of the

                                          25
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transaction”; (4) “using third parties to conceal the real owner”; and (5) “a series of

unusual financial moves cumulating in the transaction.” United States v. Johnson,

440 F.3d 1286, 1291 (11th Cir. 2006) (internal quotation marks omitted). Also

relevant to this element is “whether the money is better concealed or concealable

after the transaction than before.” Id. (internal quotation marks omitted).

C.    Evidence That Members of the Montoya Organization Conspired to
      Commit Money Laundering – Shipment of Cash to Colombia

      There was more than enough evidence that two or more members of the

Montoya organization conspired to commit the object offense of money

laundering, as set forth in 18 U.S.C. § 1956(a)(1)(B)(i).

      The government’s evidence included details about the money laundering

operation that the Montoya organization used to move from the United States to

Colombia the proceeds of its drug trafficking. Specifically, Perez, who served as

the secretary for Eugenio Montoya (the brother responsible for the organization’s

finances) described this process in detail.

      Perez stated that: (1) American purchasers would deliver money to a middle

man, Arturo Beltran, located in Mexico ; (2) an intermediary between Beltran and

the Montoya organization, “Gogo,” (also operating from Mexico) would contact

Beltran and arrange to receive the money from him; (3) after receiving the money,

Gogo would transfer it to yet another middle man, “Pirana,” who would arrange to

have it shipped to Colombia via “airlines”; (4) once the money was in Colombia,
                                          26
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Gogo would transfer it to a Montoya organization representative, either “Marbel”

(located in Cali) or “Villegas” (located in Bogota); (5) Marbel or Villegas would

then place the money in locations, referred to as “stash places”; (6) the recipient of

the money would give a report to Eugenio Montoya; (7) the Montoya brothers

would confer and decide what to do with the new funds, including paying debts,

distributing money to organization members, or spending the money to fund their

own lifestyles; (8) Diego would then give instructions to the individuals

responsible for disbursing the money, including, among others, Villegas; and (9)

once they disbursed the money from these stash houses, these individuals would

report to Eugenio. According to Perez, this whole process involved shipments of

American currency, usually in amounts ranging between $15 million and $25

million.

      Based on this testimony, a reasonable jury could conclude that Montoya

organization members conspired to commit money laundering, as set forth in 18

U.S.C. § 1956(a)(1)(B)(i). First, the process of moving the drug proceeds from the

United States to Colombia involved multiple “financial transactions” as defined in

the statute. The money moved from: (1) American purchasers to Beltran; (2)

Beltran to Gogo; (3) Gogo to Pirana; (4) Pirana to the Montoya organization

members; and (5) from the Montoya organization to various payees. Each transfer

of money undoubtedly affected interstate or foreign commerce. Next, the

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testimony made clear that the money being transferred was the proceeds of a

specified unlawful activity—drug trafficking. Third, the testimony also left little

doubt that all participants in the operation knew the money’s illegal character.

       Fourth, there was sufficient evidence for a reasonable jury to conclude that

the Montoya organization members carefully orchestrated the multi-step process in

order to conceal the location of the drug proceeds. The scheme involved a series

of unusual transactions, involving three different middle men and the movement of

money from the United States, to Mexico, and then to Colombia. Additionally,

once the money arrived in Colombia, Montoya organization members placed it in

concealed “stash places.” Particularly telling was the fact that the organization

carried on these complicated, high value transactions entirely in cash, which a

reasonable jury could assume it did in order to avoid leaving evidence of the

transactions. Without a doubt, at the end of this process, the funds were “better

concealed . . . than before.” See Johnson, 440 F.3d at 1291.5



       5
         We recognize that this conduct might be more appropriately charged under subsection
(a)(2) of the federal money laundering statute, which prohibits, inter alia, “transport[ing] . . .
funds from a place in the United States to or through a place outside the United States . . . with
the intent to promote the carrying on of specified unlawful activity.” 18 U.S.C. § 1956(a)(2)(A).
However, the indictment did not charge defendant Garcia with conspiring to commit this object
money laundering offense; it charged him with conspiring to commit the money laundering
offense discussed above. Moreover, the district court’s jury instructions referred only to
subsection (a)(1). Thus, the jury convicted Garcia of conspiring to commit the offense set forth
in subsection (a)(1), not the one set forth in subsection (a)(2). We therefore review the
sufficiency of the evidence as to the offense for which Garcia was actually convicted, not other
offenses which he could have been convicted of.
                                                28
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D.    Evidence That Members of the Montoya Organization Conspired to
      Commit Money Laundering – Purchases in Miami, Florida

      Although the government argued at trial that the evidence just discussed

supported the money laundering conspiracy conviction, on appeal the government

contends that other evidence also could lead a reasonable jury to find that the

Montoya organization conspired to commit money laundering. This evidence was

the testimony of Montoya organization member Cardona.

      As discussed, the Montoya organization sent Cardona to live in Miami,

where he assisted various members of the Montoya family living there. Upon

arriving in Miami, Cardona made purchases on behalf of the Montoya brothers,

using money provided by the Montoya brothers.

      For example, Cardona helped the family members purchase a condominium

located on Williams Island costing approximately $750,000. For the $150,000

down payment, he used money that the Montoya organization transferred from

Mexico into a Miami attorney’s escrow account. Cardona told the attorney that the

Montoyas “were businessmen in sugar cane,” and did not reveal that they were

cocaine traffickers.

      Cardona also helped the Montoyas acquire a second apartment, this one

located in Miami Beach, Florida. This apartment cost between $450,000 and

$500,000, and Cardona received the money for the down payment through a

similar process as with the other condominium purchase.
                                         29
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      Additionally, Cardona testified that he established an off-shore corporation,

2101 Limited, and opened an off-shore bank account for that corporation. He used

the corporation’s bank account “[t]o make the payments on the apartment loans

and to cover the expenses of the Montoya family.”

      Not only did Cardona buy the family members condominiums, he also

purchased a Lincoln Navigator automobile for Diego’s wife. He purchased the car

with $40,000 of Montoya organization money that he brought with him from

Colombia after Marbel, a keeper of a “stash place” gave it to him there. To get this

money into the United States, Cardona declared it as “money from [his] company.”

Similarly, Cardona purchased a BMW M3 vehicle for Diego’s (approximately) 16-

year-old son. Cardona obtained from the Montoya organization the $60,000

needed to purchase this car. An organization member made a wire transfer from

Mexico into the off-shore account of Montoya’s corporation, and then the

corporation issued a draft to the car dealership.

      A reasonable jury could conclude that Cardona’s actions in Miami

constituted money laundering under subsection (a)(1) of the federal money

laundering statute. The evidence established that Cardona completed multiple

transactions using Montoya organization funds.

      In light of the ample evidence regarding the Montoya organization’s drug

trafficking activities, a reasonable jury could easily conclude that this money came

                                          30
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from the drug trafficking business. Additionally, Cardona himself testified that

some of the money came directly from Marbel, one of the organization members

involved in the financial operations. Moreover, a reasonable jury could infer that

Cardona, an employee of the Montoya organization, knew the illegal character of

the funds.

      As for the concealment element, the Montoya organization took multiple

steps to conceal the location of the funds Cardona used in Miami. For example,

the organization: (1) wired funds from Mexico, rather than directly from

Colombia; (2) used the escrow account of an attorney; and (3) had Cardona

establish an off-shore bank account under the name of a shell corporation for the

purpose of receiving funds. Further, Cardona lied about the Montoya

organization’s enterprise.

      This evidence, in addition to the evidence about the cash shipments to

Colombia, provides ample support for the conclusion that the Montoya

organization conspired to commit money laundering, as set forth in 18 U.S.C.

§ 1956(a)(1)(B)(i).

E.    Evidence That Garcia Knowingly and Voluntarily Joined or
      Participated in the Money Laundering Conspiracy

      As for the second element, there was also sufficient evidence for a

reasonable jury to find that defendant Garcia knowingly and voluntarily

participated in the Montoya organization’s money laundering operations.
                                         31
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      As discussed, Perez testified that Garcia frequently questioned him about the

organization’s money laundering operations. Perez stated that defendant Garcia

asked him “[h]ow were we doing as far as money went. He was always addressing

matters that had to do with money, the financial aspect.” Garcia did so because

when drug profits arrived in Colombia, portions were often given to Garcia.

Royabo testified that Garcia was responsible for then taking those profits and

distributing them to the organization members who worked directly for him.

Therefore, the evidence showed that Garcia played a crucial role in the

organization’s financial operations—he distributed the concealed illegal proceeds

of drug transactions to the organization’s employees as payment for their work.

      Moreover, on this second element, the government did not even need to

prove that Garcia actively participated in the conspiracy. The second element

required the government only to prove that defendant Garcia knowingly joined the

conspiracy. See Silvestri, 409 F.3d at 1328. There was extensive evidence that

Garcia joined the Montoya organization. Moreover, there was testimony that

Garcia knew about the organization’s financial operations. Thus, a reasonable jury

could conclude that Montoya knowingly joined the conspiracy to launder money,

as money laundering was central to the Montoya organization’s financial dealings.

      Garcia contends that the evidence of the Florida-based transactions cannot

support his conviction because “Cardona did not identify Mr. Garcia or claim that

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he, Cardona, had any discussions with Mr. Garcia about any of the purchases or

other financial transactions he was involved in with any of the Montoyas.”

Whether Montoya knew specifically about the Florida-based money laundering

operation is not dispositive. Importantly, Garcia did not need to know details

about the methods the Montoya organization used to launder money, so long as he

was aware of the money laundering objective. See Kennard, 472 F.3d at 856.

There was more than enough evidence for a reasonable jury to conclude that

Garcia was so aware.

      Garcia also argues that the evidence of the shipments of cash to Colombia

was insufficient to convict him under § 1956(h) because these activities took place

largely outside the United States, and that particular subsection does not expressly

state its extraterritorial effect. Be that as it may, Garcia ignores subsection (f) of

the statute, which provides: “There is extraterritorial jurisdiction over the conduct

prohibited by this section if—(1) the conduct is by a United States citizen, or, in

the case of a non-United States citizen, the conduct occurs in part in the United

States; and (2) the transaction or series of related transactions involves funds or

money instruments of a value exceeding $10,000.” 18 U.S.C. § 1956(f).




                                           33
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       The requirements for extraterritorial jurisdiction were met here. The

evidence showed that the transferred funds originated in the United States. 6 Thus,

a portion of each transaction occurred in the United States. Second, the evidence

showed that the transactions routinely involved amounts equal to or in excess of

$15 million, well above the statutory $10,000 threshold. Even if there was not

extraterritorial jurisdiction over the cash shipments to Colombia, there is no

dispute that the transactions in Miami completed by Cardona are punishable in

American courts.

       Therefore, Garcia is wrong in arguing that the evidence regarding money

laundering activities that happened outside the United States could not support his

money laundering conspiracy conviction. We affirm this conviction.

     VII. SUFFICIENCY OF THE EVIDENCE – COUNTS NINE AND TEN

       Next, Garcia challenges the sufficiency of the evidence as to his convictions

on counts nine and ten for conspiracy to obstruct justice (count nine) and

obstruction of justice (count ten). Again, there was sufficient evidence for a

reasonable jury to convict defendant Garcia of these offenses.

A.     Elements of Conspiracy to Obstruct Justice and of Obstruction of
       Justice


       6
         Admittedly, Perez did not recall who was responsible for getting the money from the
American purchasers to the Mexican middle man, Beltran. However, this does not negate the
fact that the movement of the money from the United States to Mexico was an integral part of the
overall money laundering operation.
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      Count nine charged defendant Garcia under the general conspiracy statute,

18 U.S.C. § 371. The elements of a conspiracy under this statute are: (1) “an

agreement among two or more persons to achieve an unlawful objective;” (2)

“knowing and voluntary participation in the agreement;” and (3) “an overt act by a

conspirator in furtherance of the agreement.” United States v. Hasson, 333 F.3d

1264, 1270 (11th Cir. 2003).

      The indictment alleged and the jury convicted Garcia of conspiring to

achieve the unlawful object of obstructing justice under 18 U.S.C. § 1503(a). The

jury also convicted Garcia of obstruction of justice under the same statute, as

charged in count ten. “In order to sustain a conviction under . . . § 1503, the

government must show that the accused (1) corruptly or by threats, (2) endeavored,

(3) to influence, obstruct, or impede the due administration of justice.” United

States v. Brand, 775 F.2d 1460, 1465 (11th Cir. 1985). We have previously

explained that “[t]o prove a conspiracy to violate § 1503, the government must . . .

show that the actions the defendant agreed to take would themselves violate

§ 1503, that is, would have the natural and probable effect of interfering with the

due administration of justice in a way that is more than merely speculative.”

United States v. Vaghela, 169 F.3d 729, 734 (11th Cir. 1999) (internal quotation

marks omitted).

B.    The Evidence in Support of Counts Nine and Ten

                                          35
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      There was more than enough evidence for a reasonable jury to conclude that

Garcia formed an agreement with other Montoya organization members to obstruct

justice by murdering a government informant—Giraldo. We need not recount this

evidence a second time.

      Although Garcia labels his argument as going to the sufficiency of the

evidence, he does not actually argue that there was not enough evidence to convict

him of these counts. Rather, he makes two legal arguments, neither of which is

availing. First, Garcia contends that the conspiracy statute is limited to

conspiracies to commit “any offense against the United States,” see 18 U.S.C.

§ 371, whereas “the victim of [his] crime was not the United States but rather John

[sic] Jairo Giraldo Garcia.” The Seventh Circuit has previously explained that the

statutory language “any offense against the United States” refers to “any federal

offense.” Iysheh v. Gonzales, 437 F.3d 613, 614 (7th Cir. 2006) (internal

quotation marks omitted). We agree with this intuitive analysis and reject Garcia’s

exceedingly narrow reading of the conspiracy statute.

      Next, Garcia argues that the obstruction of justice statute, § 1503(a), only

prohibits efforts to “influence, intimidate, or impede” certain individuals, including

“any grand or petit juror or officer in or of any court of the United States, or officer

who may be serving at any examination or other proceeding before any United




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States magistrate judge or other committee [sic] magistrate.” See 18 U.S.C.

§ 1503(a).

       Garcia is correct that the statute does contain reference to these types of

persons. However, Garcia wholly ignores a subsequent clause in the statute which

provides that whoever “corruptly or by threats or force . . . influences, obstructs, or

impedes, or endeavors to influence, obstruct, or impede, the due administration of

justice, shall be punished as provided in subsection (b).” 18 U.S.C. § 1503(a).7

This subsequent clause, referred to as the “omnibus clause,” is not tied to actions

directed at particular types of individuals. Instead, it applies broadly to all

“interferences with the due administration of justice.” United States v. Brenson,


       7
           Section 1503(a), in full, states as follows:
               Whoever corruptly, or by threats or force, or by any threatening letter or
       communication, endeavors to influence, intimidate, or impede any grand or petit
       juror, or officer in or of any court of the United States, or officer who may be
       serving at any examination or other proceeding before any United States
       magistrate judge or other committing magistrate, in the discharge of his duty, or
       injures any such grand or petit juror in his person or property on account of any
       verdict or indictment assented to by him, or on account of his being or having
       been such juror, or injures any such officer, magistrate judge, or other committing
       magistrate in his person or property on account of the performance of his official
       duties, or corruptly or by threats or force, or by any threatening letter or
       communication, influences, obstructs, or impedes, or endeavors to influence,
       obstruct, or impede, the due administration of justice, shall be punished as
       provided in subsection (b). If the offense under this section occurs in connection
       with a trial of a criminal case, and the act in violation of this section involves the
       threat of physical force or physical force, the maximum term of imprisonment
       which may be imposed for the offense shall be the higher of that otherwise
       provided by law or the maximum term that could have been imposed for any
       offense charged in such case.
18 U.S.C. § 1503(a).


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104 F.3d 1267, 1275 (11th Cir. 1997) (internal quotation marks omitted). As we

have previously recognized, “the omnibus clause i[s] broad enough to cover any

act committed corruptly, in an endeavor to impede or obstruct justice.” Id.

(internal quotation marks omitted). Moreover, “the statute . . . reaches all corrupt

conduct capable of producing an effect that prevents justice from being duly

administered, regardless of the means employed.” Id. (internal quotation marks

and alteration omitted). In light of this broad statute, we have no trouble

concluding that Garcia’s conduct—orchestrating the kidnapping, torture, and

murder of a government informant—was capable of preventing justice from being

duly administered. 8 Accordingly, we affirm these convictions.

   VIII. SUFFICIENCY OF THE EVIDENCE – COUNTS ELEVEN AND
                           TWELVE




       8
          Garcia also argues that his conviction on count ten should be vacated because 18 U.S.C.
§ 1111, the federal murder statute, is limited to offenses that occurred “[w]ithin the special
maritime and territorial jurisdiction of the United States,” whereas the murder of Giraldo
occurred in Colombia. See 18 U.S.C. § 1111(b). However, Garcia was not convicted of murder
under § 1111. He was convicted of obstruction of justice under § 1503, which has no such
territorial limitation. Although the indictment did refer to § 1111, it did not charge Garcia with
violating that statute. Rather, it cited § 1111 because the penalty provision in § 1503 states that
“[t]he punishment for an offense under [§ 1503] is . . . in the case of a killing, the punishment
provided in sections 1111 and 1112.” 18 U.S.C. § 1503(b)(1).
         Additionally, Garcia argues that there was no evidence that he “was ever told or
otherwise knew . . . Giraldo was a U.S. informer.” Garcia is wrong. Robayo testified that he
(Robayo) and defendant Garcia attended a meeting with Eugenio where Eugenio instructed them
to torture Giraldo to extract information about “what [Giraldo] was doing and what type of
information he was providing to the Americans.” When asked whether he remembered “Eugenio
saying that [Giraldo] was cooperating with the Americans?”, Robayo answered “Yes.” A
reasonable jury could rely on this evidence.
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       Garcia’s last challenge is to his convictions on counts eleven and twelve for

conspiracy to commit murder in retaliation for providing information to a federal

law enforcement officer and the substantive offense of committing murder in

retaliation for providing information to a federal law enforcement officer, in

violation of 18 U.S.C. § 1513(a)(1)(B). Section 1513(a)(1)(B) provides that

“[w]hoever kills or attempts to kill another person with intent to retaliate against

any person for . . . providing to a law enforcement officer any information relating

to the commission or possible commission of a Federal offense . . . shall be

punished.” 18 U.S.C. § 1513(a)(1)(B).

       Garcia’s argument on these counts is that Giraldo was not a person protected

by the statute. 9 Garcia contends that “[a]ll John [sic] Jairo Giraldo Garcia did was

identify people who worked with Diego Leon Montoya and pointed out on a map

where he believed some of them could be located[,] . . . . [and] received money in

Colombia and brought it to one of the Montoya family members in Miami under

the vigil of the FBI.”

       Garcia’s argument is frivolous. The facts that Garcia concedes more than

establish that Giraldo was providing the FBI with information relating to the



       9
         For the first time in his reply brief, Garcia argues that “there was no record evidence of
Mr. Garcia’s retaliatory intent with reference to whatever he did do relating to Garcia Giraldo
retaliatory intent [sic].” We do not address this argument because “[w]e decline to consider
arguments raised for the first time in a reply brief.” United States v. Martinez, 83 F.3d 371, 377
n.6 (11th Cir. 1996).
                                                39
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Montoya organization’s commission of multiple federal offenses. Thus, Garcia’s

challenge to his convictions on these counts fails.

      In sum, we reject Garcia’s arguments and we affirm his convictions.

     IX. GOVERNMENT’S CROSS-APPEAL OF GARCIA’S SENTENCE

      We now turn to the government’s cross-appeal of defendant Garcia’s 280-

month sentence and explain why the district court did not abuse its discretion by

imposing a sentence that was below the guidelines range set forth in the

presentence investigation report (“PSI”). To do so, we first describe the PSI, and

we then set forth the sentencing hearing. Afterwards, we analyze the substantive

reasonableness of Garcia’s sentence.

A.    The PSI

       In the PSI, Probation recommended a total offense level of 46, a criminal

history category of I, and a resulting guidelines range of life imprisonment.

Probation determined this offense level by first grouping together all seven

convictions pursuant to U.S.S.G. § 3D1.2 and then applying the base offense level

for the most serious count—the drug conspiracy conviction in count one. The base

offense level for that offense was 43 because the drug conspiracy involved conduct

that constituted murder. The PSI then added three levels pursuant to U.S.S.G. §

3B1.1(b) after determining that Garcia was a manager or supervisor of a

conspiracy involving five or more participants.

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      The PSI also noted that Garcia was subject to: (1) mandatory minimum

sentences of 10 years’ imprisonment on counts one and two (the drug conspiracy

counts), see 21 U.S.C. §§ 960(b)(1)(B), 841(b)(1)(A); (2) a statutory maximum

term of 20 years’ imprisonment on count three (the money laundering conspiracy

count), see 18 U.S.C. § 1956(a)(1); (3) a statutory maximum of 5 years’

imprisonment on count nine (the conspiracy to obstruct justice offense), see 18

U.S.C. § 371; and (4) any penalty on counts ten, eleven, and twelve (the

obstruction of justice and murder offenses), see 18 U.S.C. §§ 1503(b)(1),

1513(a)(2)(A), and 1111.

      Additionally, the PSI set forth the sentences that Garcia’s co-defendants had

received after pleading guilty pursuant to plea agreements. Because the district

court stressed the need to avoid disparities between the sentences of defendant

Garcia and his co-defendants, we set forth those co-defendants’ sentences as

follows: (1) Eugenio (the Montoya brother responsible for the Montoya

organization’s finances) received a 360-month sentence; (2) Juan Carlos (the

Montoya brother responsible for the Montoya organization’s drug trafficking

operations) received a 262-month sentence; (3) Sanchez (the Montoya brothers’

cousin, who worked as a bodyguard for his cousins) received a 235-month

sentence; (4) Robayo (defendant Garcia’s top deputy in his security operations)

received a 140-month sentence; (5) Diego (the leader of the Montoya organization)

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received a 540-month sentence; (6) Herrera (a veteran of the Colombian drug

trafficking business recruited by Diego to assist in the “war” with Varela’s rival

drug organization) received a 235-month sentence; and (7) Perea (an ally of

Diego’s who, in 2005, became responsible for building a cocaine laboratory for the

Montoya organization and who later oversaw the operations of that laboratory)

received a 218-month sentence.

B.    Sentencing Hearing

      At sentencing, defendant Garcia asked the district court to vary downward

and impose a sentence of 188 months. Garcia’s attorney stressed, inter alia: (1)

Garcia’s impoverished upbringing, which the attorney contended left Garcia with

little choice but to join the Montoya organization; (2) Garcia’s age of 62-years-old

along with his pending deportation to Colombia, which made it unlikely that he

would commit further crimes upon release; and (3) the need to avoid creating

disparities between Garcia’s sentence and the sentences of his co-defendants. On

this last point, Garcia’s attorney acknowledged that Garcia’s actions could

potentially justify a sentence longer than the ones received by his co-defendants.

However, Garcia’s counsel argued that this aggravating fact was offset by the

mitigating fact of Garcia’s advanced age.

      Afterwards, the government requested a sentence of between 546 months

and 673 months. Notably, the government did not request a guidelines sentence of

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life imprisonment due to a “commitment” to the Colombian government which

precluded federal prosecutors from seeking life sentences for Colombian drug

traffickers prosecuted in the United States. The government also acknowledged

that a “norm” had previously been in place that any drug trafficker extradited to the

United States from Colombia received no more than a 30-year American sentence.

However, the government stated that this norm was “no longer in place.” Thus, the

government asked for a sentence of a term of years but asked that the district court

not be bound by this 30-year maximum “norm.”

      In support of its request, the government suggested the district court should

not consider the sentences of other members of the Montoya organization because

they either had not been charged with an offense relating to murder or had pleaded

guilty and not proceeded to trial. Thus, the government argued that these

defendants were not similarly situated to Garcia. The government also suggested

that Garcia was not merely a victim of the circumstances of his upbringing.

Instead, he was a person who “through his own violence and brutality, became one

of Colombia’s most feared enforcers.” Additionally, the government argued that

Garcia’s age should be an aggravating, not a mitigating, consideration. The

government contended that Garcia was before the district court “as an older man

not because he committed one or two missteps late in life, but, rather, . . . because




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he was involved in criminal activity for approximately two decades and he

managed to have a very long and prolific career before he was captured.”

      After hearing from both parties and learning that defendant Garcia did not

wish to speak, the district court took a brief recess in order to review the sentences

it had imposed on Garcia’s co-defendants. Upon return from the recess, the district

court sentenced Garcia to 280 months’ imprisonment on counts ten, eleven, and

twelve, to run concurrent with 120-month sentences on counts one, two, and three

and a 60-month sentence on count nine (for a total 280-month sentence).

      The district court explained that it was not imposing the sentence requested

by the government because it could not “in good conscience, sentence [Garcia] to a

term longer than the terms that Eugenio and Diego Montoya Sanchez were given.”

The district court suggested that Garcia would not have committed the atrocious

acts resulting in his convictions were it not for the leadership of the Montoya

brothers. Moreover, the district court believed that sentencing Garcia to a term

longer than the Montoya brothers received would “send a message that you’re

punished just for going to trial.”

      Instead of sentencing Garcia based on the guidelines or the government’s

extrapolated version of them, the district court, among other things, “looked at the

[sentences given to] the codefendants who operated in the role of enforcers similar

to . . . Garcia.” The district court stated that it determined its sentence “[a]fter

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giving all of the factors great consideration and based on [its] knowledge of what it

is this defendant is responsible for.” The district court acknowledged that Garcia’s

crimes were “among the worst crimes in humanity” and that it could not “think of

anything worse than” Garcia’s actions of “tortur[ing] and kill[ing] human beings.”

C.     Reasonableness Review of Garcia’s Sentence

       We review sentences for both procedural and substantive reasonableness.

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). Here, the

government’s argument is that Garcia’s sentence is substantively unreasonable.10

We review the substantive reasonableness of a sentence for an abuse of discretion.

Gall v. United States, 552 U.S. 38, 56, 128 S. Ct. 586, 600 (2007). We will find an

abuse of discretion when the district court: (1) “fails to afford consideration to

relevant factors that were due significant weight”; (2) “gives significant weight to

an improper or irrelevant factor”; or (3) “commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (internal quotation marks omitted).

       However, we will vacate a sentence only when we “are left with the definite

and firm conviction that the district court committed a clear error of judgment in



       10
         To the extent that the government also argues Garcia’s sentence is procedurally
unreasonable because the district court failed to take into account all of the § 3553(a) factors, the
record belies this argument. As stated, the district court explicitly stated that it had determined
Garcia’s sentence “after giving all of the factors great consideration.” We assume that the
“factors” to which the district court referred were the § 3553(a) factors.
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weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Id. at 1190 (internal

quotation marks omitted).

      The record in this case does not leave us with such a “definite and firm

conviction.” Admittedly, Garcia’s sentence was based on a downward variance

from the guidelines range. However, the district court provided compelling

justifications for imposing this variance. Moreover, the district court

acknowledged the severity of Garcia’s offenses and adequately took into account

the § 3553(a) factors. Whether this Court would impose a longer sentence if we

stood in the district court’s place is irrelevant. As the district court noted, it

selected Garcia’s sentence after having sat through a lengthy jury trial and having

heard all the evidence bearing on Garcia’s culpability for his horrid conduct. Thus,

we defer to the district court’s first-hand experience in this particular case and

decline to vacate Garcia’s 280-month sentence as substantively unreasonable.

                                  X. CONCLUSION

      In light of the foregoing, we affirm Garcia’s convictions and sentences.

AFFIRMED




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