US v. Danilo Garcia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00569-CCB-1 Copies to all parties and the district court/agency. [999987593].. [15-4813, 15-4818]

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 1 of 12

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4813

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANILO GARCIA, a/k/a Donny, a/k/a Darreo,
Defendant - Appellant.

No. 15-4818

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROY LEE CLAY, a/k/a Junior,
Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore.
Catherine C. Blake, Chief District
Judge. (1:11-cr-00569-CCB-1; 1:11-cr-00569-CCB-3)

Submitted:

November 29, 2016

Decided:

December 15, 2016

Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 2 of 12

Affirmed by unpublished per curiam opinion.

Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland; Christopher C. Nieto, BROWN & NIETO, LLC, Baltimore,
Maryland, for Appellants.
Rod J. Rosenstein, United States
Attorney, Ayn B. Ducao, Christopher J. Romano, Assistant United
States Attorneys, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 3 of 12

PER CURIAM:
A

jury

convicted

Danilo

Garcia

and

Roy

Lee

Clay

(collectively, “Appellants”) for their involvement in a heroin
trafficking conspiracy.

On appeal, Appellants claim that two

evidentiary errors require a new trial.
the

sufficiency

of

the

evidence

and

Clay also challenges

his

360-month

sentence.

Finding no error, we affirm.
I.
We review a district court’s evidentiary rulings for abuse
of discretion.
Cir. 2016).
the

law

United States v. Faulls, 821 F.3d 502, 508 (4th

Reversal is warranted only if, in consideration of

and

determination

facts
“was

of

the

arbitrary

case,

or

the

district

irrational.”

Id.

court’s
(internal

quotation marks omitted).
Appellants first contend that the district court erred in
allowing

Special

Agent

Todd

Edwards

to

testify

as

an

expert

witness on coded language used during intercepted phone calls,
arguing that the Government’s expert disclosure was deficient
and thus Appellants were prejudiced in their ability to conduct
an adequate cross-examination.

Rule 16(a)(1)(G), Fed. R. Crim.

P., requires the Government, when requested, to “give to the
defendant a written summary of any [expert] testimony that the
government intends to use . . . during its case-in-chief at

3

Appeal: 15-4813

Doc: 65

trial.”
the

Filed: 12/15/2016

Pg: 4 of 12

The disclosure “must describe the witness’s opinions,

bases

and

reasons

qualifications.”

Id.

for

those

opinions,

and

the

witness’s

“Rule 16(a)(1)(G) is intended to minimize

surprise that often results from unexpected expert testimony,
and to provide the opponent with a fair opportunity to test the
merit

of

the

examination.”
(4th

Cir.

expert’s

testimony

through

focused

cross-

United States v. Garcia-Lagunas, 835F.3d 479, 494

2016)

(alteration

and

internal

quotation

marks

omitted).
We

conclude

that

the

discretion

in

allowing

submitted

its

initial

commencement
identifying
testify.

of

Edwards

to

and

phone

court

did

testify.

disclosure

trial,

specific

district

well

before

supplemented
calls

about

this
which

not

abuse

The

Government

the

its

scheduled

disclosure
Edwards

by

would

Moreover, although the parties appeared before the

district court for an evidentiary hearing on an unrelated matter
before trial, Appellants failed to challenge the sufficiency of
the disclosure until the night before Edwards was scheduled to
testify.

The district court’s exercise of discretion under the

circumstances was wholly permissible.
Next, Appellants contend that the district court erred in
admitting

against

Clay

testimony

from

previous

a

portions
trial.

4

of

a

cooperating

Clay

contends

witness’
that

the

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 5 of 12

Government’s efforts to locate the witness prior to trial were
insufficient
violated
about

and

because

events

Separately,
because

that
he

the

was

that

Garcia

his

unable

to

occurred
contends

witness’

notwithstanding

Confrontation

the

cross-examine

after

that

testimony
district

Clause

the

witness
trial.

rights

improperly

court’s

were

previous

the

his

rights

were

violated

implicated

instruction

him,

that

the

evidence could be considered against Clay only.
We

review

violation.
cert.

de

novo

an

alleged

Confrontation

Clause

United States v. Reed, 780 F.3d 260, 269 (4th Cir.),

denied,

Confrontation

136

S.

Clause

Ct.

“bars

112,
the

113,

167

admission

(2015).
of

The

‘testimonial

statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’”
738

F.3d

643,

650

(4th

Cir.

United States v. Dargan,

2013)

(quoting

Washington, 541 U.S. 36, 53-54 (2004)).
trial

qualifies

as

testimonial

Crawford

v.

Testimony at a prior

evidence.

United

States

v.

Alvarado, 816 F.3d 242, 251 (4th Cir.), cert. denied, __ S. Ct.
__, 2016 WL 3655209 (U.S. Nov. 28, 2016).
Clause

guarantees

an

opportunity

for

“[T]he Confrontation
effective

cross-

examination, not cross-examination that is effective in whatever

5

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 6 of 12

way, and to whatever extent, the defense might wish.”

Delaware

v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
Rule 804(b)(1), Fed. R. Evid., allows the admission into
evidence of a hearsay statement from an unavailable witness who
previously

testified

at

a

trial,

that

is

offered

against

a

defendant who had an opportunity to challenge the declarant on
cross-examination.

A

declarant

is

unavailable

if

“the

statement’s proponent has not been able, by process or other
reasonable means, to procure the declarant’s attendance.”
R.

Evid.

Clause,

804(a)(5)(A).

“[t]he

ultimate

For

purposes

question

is

of

the

whether

Fed.

Confrontation

the

witness

is

unavailable despite good-faith efforts undertaken prior to trial
to locate and present that witness.”

Ohio v. Roberts, 448 U.S.

56, 74 (1980), abrogated on other grounds by Crawford, 541 U.S.
at 36.
We conclude that the district court did not err in allowing
the witness’ prior testimony into evidence.

The witness left

the country after his release from a period of incarceration,
essentially absconding from a period of community supervision.
Upon learning that the witness would be needed for a retrial,
the Government immediately took steps to locate the witness,
requesting help from both British and French authorities but to
no avail.

Officials also verified that the witness had not

6

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 7 of 12

reentered the United States using the passport that he used to
depart.

Clay’s

previous

counsel

had

had

an

opportunity

to

conduct cross-examination, and had asked several questions to
attempt to undermine the witness’ credibility before the prior
jury.

Moreover, in accordance with the parties’ agreement, the

district court informed the jury about the witness absconding
from

probation,

thus

cross-examination.

serving

to

amplify

counsel’s

previous

Additionally, the witness’ testimony did not

implicate Garcia by name, and the district court appropriately
instructed

the

jury

that

testimony against Garcia.

it

could

not

consider

the

witness’

See United States v. Min, 704 F.3d

314, 321 & n.5 (4th Cir. 2013) (noting, in affirming district
court’s admission of redacted confession, that “confessions do
not become facially incriminatory when the government introduces
evidence

at

trial

that

links

the

confession

to

other

defendants”); United States v. Chong Lam, 677 F.3d 190, 204 (4th
Cir.

2012)

(“[J]uries

instructions.”

are

presumed

to

follow

their

(internal quotation marks omitted)).
II.

Clay

next

against him.

challenges

the

sufficiency

of

the

evidence

In assessing the sufficiency of the evidence, we

determine whether there is substantial evidence to support the
conviction

when

viewed

in

the

7

light

most

favorable

to

the

Appeal: 15-4813

Doc: 65

Government.
2012).

Filed: 12/15/2016

United States v. Engle, 676 F.3d 405, 419 (4th Cir.

“Substantial

finder

of

Pg: 8 of 12

fact

evidence

could

is

accept

as

evidence

that

adequate

and

a

reasonable

sufficient

support a conclusion of guilt beyond a reasonable doubt.”
Thus,

“reversal

where

the

for

insufficiency

prosecution’s

failure

must
is

be

confined

clear.”

to

Id.

to
Id.

cases

(internal

quotation marks omitted).
“To

prove

conspiracy,

the

government

must

demonstrate

beyond a reasonable doubt (1) an agreement between two or more
persons to engage in conduct that violates a federal drug law,
(2) the defendant’s knowledge of the conspiracy, and (3) the
defendant’s

knowing

conspiracy.”

voluntary

participation

in

need

“Once the Government proves a conspiracy, the

only

establish

a

slight

connection

between

defendant and the conspiracy to support conviction.”
States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).
may

be

the

United States v. Gomez-Jimenez, 750 F.3d 370, 378

(4th Cir. 2014).
evidence

and

convicted

of

conspiracy

without

a

United

A defendant

knowing

all

of

its

details and even if he plays only a minor role, so long as he
enters

the

conspiracy

understanding

that

it

is

willfully joins in the plan at least once.
“Circumstantial

evidence

alone

8

is

sufficient

unlawful

and

Id. at 367-68.
to

support

a

Appeal: 15-4813

Doc: 65

conviction

Filed: 12/15/2016

for

conspiracy.”

Pg: 9 of 12

Gomez-Jimenez,

750

F.3d

at

378

(internal quotation marks omitted).
We

conclude

conviction.
and

Garcia,

Garcia

sufficient

evidence

supports

Clay’s

The Government introduced phone calls between Clay
which

transactions.
with

that

Edwards

interpreted

to

refer

to

drug

A cooperating witness placed Clay in New York
to

discuss

bad

heroin

that

Clay

had

purchased.

Garcia also informed the cooperating witness that he supplied
two people in Baltimore, one of whom, based on the other trial
evidence, was Clay.
all

of

the

drug

Additionally, while Clay was not tied to

transactions

proven

at

trial,

he

operating in a similar manner to his coconspirators.

was

seen

Finally, a

jailhouse informant’s testimony provided additional support for
the

jury

heroin.

to

find

Clay

responsible

for

over

one

kilogram

of

Thus, we conclude that there was sufficient evidence to

support the jury’s verdict.
III.
Finally, Clay contends that his sentence is unreasonable
because

the

district

court

failed

to

adequately

explain

his

sentence and should have rejected the application of the career
offender guideline in this instance.
sentence

“under

a

deferential

We review a defendant’s

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41 (2007).

9

standard.”
Under this

Appeal: 15-4813

Doc: 65

standard,

a

substantive

sentence

gave

calculated

the

Pg: 10 of 12

reviewed

reasonableness,

properly

range,

is

reasonableness.

procedural
court

Filed: 12/15/2016

for

Id.
we

at

both
51.

consider

In

whether

the

defendant’s

an

opportunity

parties

procedural

determining
the

advisory
to

and

district
Guidelines

argue

for

an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, and sufficiently explained the selected sentence.

Id.

at 49-51.
If a sentence is free of “significant procedural error,”
then we review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.”
sentence

that

is

within

or

below

a

Id. at 51.

properly

Guidelines range is presumptively reasonable.”
Louthian,

756

F.3d

295,

306

(4th

Cir.

“Any

calculated

United States v.

2014).

“Such

a

presumption can only be rebutted by showing that the sentence is
unreasonable
factors.”
In

when

measured

against

the

18 U.S.C.

§ 3553(a)

Id.
evaluating

a

sentencing

court’s

explanation

of

a

selected sentence, we consistently have held that, although the
district court must consider the statutory factors and explain
the

sentence,

“it

§ 3553(a) factors.”

need

not

robotically

tick

through

the

United States v. Helton, 782 F.3d 148, 153

(4th Cir. 2015) (internal quotation marks omitted).

10

At the same

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 11 of 12

time, the district court “must make an individualized assessment
based on the facts presented.”
“individualized

assessment

Gall, 552 U.S. at 50.

need

not

be

elaborate

While the

or

lengthy,

. . . it must provide a rationale tailored to the particular
case

at

hand

review.”

and

adequate

to

permit

meaningful

appellate

United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (internal quotation marks omitted).
We

conclude

that

Clay’s

within-Guidelines

sentence

is

reasonable.

While the court did not explicitly reference the

18 U.S.C.

3553(a)

§

factors

in

explaining

its

sentence,

offered a detailed explanation referring to those factors.
court

first

considered

noted
Clay’s

the

particular

§ 3553(a)(1), (2)(A).
to

disregard

the

seriousness

of

the

offense

circumstances.

See

and
18

it
The

then

U.S.C.

The court also recognized its discretion

career

offender

guideline,

but

permissibly

found that a sentence within Clay’s advisory guidelines range
was appropriate.

See id. § 3553(a)(3), (4).

Moreover, while

the district court recognized that Clay’s sentence would be more
severe than those of his coconspirators, the court explained why
the disparity was appropriate.
as

to

substantive

See id. § 3553(a)(6).

reasonableness,

we

conclude

that

Finally,
Clay

has

failed to overcome the presumption of reasonableness accorded to
his within-Guidelines sentence.

11

Appeal: 15-4813

Doc: 65

Filed: 12/15/2016

Pg: 12 of 12

IV.
For

all

judgments.
legal
before

these

we

affirm

the

district

court’s

We dispense with oral argument because the facts and

contentions
this

reasons,

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

12