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United States v. Garcia

July 10, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

MIGUEL N. GARCIA AND CARL J. MCAFEE,

DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 95 CR 142--J.P. Stadtmueller, Chief Judge.

Before POSNER, Chief Judge, ESCHBACH, and ROVNER, Circuit Judges.

ESCHBACH, Circuit Judge.

ARGUED MAY 16, 1996

DECIDED JULY 10, 1996

Carl McAfee pleaded guilty to conspiracy to possess with the intent to distribute more than five kilograms of cocaine. Miguel Garcia, McAfee's co-conspirator, proceeded to trial where he was convicted of the offense to which McAfee pleaded guilty and knowingly and intentionally attempting to possess with the intent to distribute cocaine. McAfee appeals only his sentence. Garcia appeals his convictions and his sentence. Our court consolidated their appeals for disposition. We AFFIRM.

I.

On March 8, 1995, Vivian Betancourt (hereinafter "Betancourt") was arrested on a marijuana charge. Betancourt agreed to cooperate with the government in exchange for leniency. She promised that she would deliver to the government a cocaine dealer.

On March 14, in cooperation with the government, Betancourt phoned Miguel Garcia. Garcia said that he wanted to buy eight kilograms of cocaine. On June 20, Betancourt called Garcia and told him that her associates had ten kilograms of cocaine available for purchase. Garcia agreed to buy all ten. Later that day, Betancourt phoned again, saying that she could deliver fifteen kilograms. Garcia said that he only wanted ten, and that he had the money on hand. The next day Betancourt and Garcia met with undercover detectives, posing as drug dealers, in a motel room in Milwaukee, Wisconsin. Garcia told the detectives that he wanted to purchase ten kilograms. Garcia said that he needed to speak with his buyers, *fn1 and that he would return within the hour to purchase the drugs. Betancourt and Garcia returned to Garcia's home where they met Carl McAfee. Garcia relayed to McAfee what had transpired at the motel. McAfee expressed reservations about transacting business at a motel. Based on McAfee's concern, Garcia stopped the deal.

On July 28, 1995, Garcia contacted Betancourt to reorganize the transaction. Garcia went to Betancourt's apartment and again said that he wanted to purchase ten kilograms of cocaine. Betancourt told Garcia that her supplier would be in town on August 1. Garcia reassured Betancourt that he would have the money to buy ten kilograms. On August 1, 1995, Garcia returned to Betancourt's apartment. Betancourt informed Garcia that he had to produce the requisite funds before he would be allowed access to the cocaine. Garcia left, and returned with McAfee. McAfee said that they would purchase four kilograms first, and then three more only after his associates had inspected the first four. Initially Betancourt resisted, renewing her claim that her suppliers wanted her to sell fifteen kilograms. However, Garcia and McAfee held firm at seven. After Betancourt agreed, McAfee delivered to Betancourt money for three kilograms, then left to pick up money for the fourth kilogram.

Police entered Betancourt's apartment after McAfee left, where they found Betancourt, Garcia, over $60,000 in cash, and hand-written calculations of the profit margin on seven kilograms of cocaine. Law enforcement agents then surveilled Betancourt's apartment and awaited McAfee's return. Officers stopped McAfee in his car near Betancourt's apartment. In McAfee's car the officers found, among other things, money to purchase a fourth kilogram.

On August 8, 1995, McAfee and Garcia were indicted. Count One charged both men with conspiracy to possess with the intent to distribute more than five kilograms of cocaine, in violation of 18 U.S.C. sec. 2 and 21 U.S.C. secs. 841(a)(1) and 846. Count Two charged McAfee with knowingly and intentionally possessing with the intent to distribute cocaine, in violation of 18 U.S.C. sec. 2 and 21 U.S.C. sec. 841(a)(1). Count Three charged both Garcia and McAfee with knowingly and intentionally attempting to possess with the intent to distribute cocaine, in violation of 18 U.S.C. sec. 2 and 21 U.S.C. secs. 841(a)(1) and 846. McAfee pleaded guilty to Count One, but reserved the right to challenge the amount of cocaine attributable to him as relevant conduct at sentencing. Garcia proceeded to a jury trial where he was convicted on Counts One and Three.

On December 15, 1995, the district court held a sentencing hearing where it determined that the relevant conduct as to both McAfee and Garcia involved seven kilograms of cocaine, and that Garcia was a career criminal. McAfee was sentenced to 166 months. Garcia received 360 months for Count One and 240 months for Count Three, to run concurrent. McAfee and Garcia now bring these timely appeals. We have jurisdiction pursuant to 28 U.S.C. sec. 1291.

II.

A. The sufficiency of the ...


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