United States of America v. Danilo Garcia, a/k/a Donny, a/k/a Darreo

UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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. Clay also challenges
the sufficiency of the evidence and his 360-month sentence.
Finding no error, we affirm.
I.
We review a district court’s evidentiary rulings for abuse
of discretion. United States v. Faulls, 821 F.3d 502, 508 (4th
Cir. 2016). Reversal is warranted only if, in consideration of
the law and facts of the case, the district court’s
determination “was arbitrary or irrational.” Id. (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

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trial.” The disclosure “must describe the witness’s opinions,
the bases and reasons for those opinions, and the witness’s
qualifications.” Id. “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 expert’s testimony through focused cross-
examination.” United States v. Garcia-Lagunas, 835F.3d 479, 494
(4th Cir. 2016) (alteration and internal quotation marks
omitted).
We conclude that the district court did not abuse its
discretion in allowing Edwards to testify. The Government
submitted its initial disclosure well before the scheduled
commencement of trial, and supplemented this disclosure by
identifying specific phone calls about which Edwards would
testify. 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 portions of a cooperating witness’
testimony from a previous trial. Clay contends that the

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Government’s efforts to locate the witness prior to trial were
insufficient and that his Confrontation Clause rights were
violated because he was unable to cross-examine the witness
about events that occurred after the previous trial.
Separately, Garcia contends that his rights were violated
because the witness’ testimony improperly implicated him,
notwithstanding the district court’s instruction that the
evidence could be considered against Clay only.
We review de novo an alleged Confrontation Clause
violation. United States v. Reed, 780 F.3d 260, 269 (4th Cir.),
cert. denied, 136 S. Ct. 112, 113, 167 (2015). The
Confrontation Clause “bars the admission of ‘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.’” United States v. Dargan,
738 F.3d 643, 650 (4th Cir. 2013) (quoting Crawford v.
Washington, 541 U.S. 36, 53-54 (2004)). Testimony at a prior
trial qualifies as testimonial evidence. United States v.
Alvarado, 816 F.3d 242, 251 (4th Cir.), cert. denied, __ S. Ct.
__, 2016 WL 3655209 (U.S. Nov. 28, 2016). “[T]he Confrontation
Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever

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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.” Fed.
R. Evid. 804(a)(5)(A). For purposes of the Confrontation
Clause, “[t]he ultimate question is whether 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

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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 serving to amplify counsel’s previous
cross-examination. Additionally, the witness’ testimony did not
implicate Garcia by name, and the district court appropriately
instructed the jury that it could not consider the witness’
testimony against Garcia. 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 are presumed to follow their
instructions.” (internal quotation marks omitted)).
II.
Clay next challenges the sufficiency of the evidence
against him. In assessing the sufficiency of the evidence, we
determine whether there is substantial evidence to support the
conviction when viewed in the light most favorable to the

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Government. United States v. Engle, 676 F.3d 405, 419 (4th Cir.
2012). “Substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of guilt beyond a reasonable doubt.” Id.
Thus, “reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.” Id. (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 and voluntary participation in the
conspiracy.” United States v. Gomez-Jimenez, 750 F.3d 370, 378
(4th Cir. 2014). “Once the Government proves a conspiracy, the
evidence need only establish a slight connection between a
defendant and the conspiracy to support conviction.” United
States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). A defendant
may be convicted of conspiracy without 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 unlawful and
willfully joins in the plan at least once. Id. at 367-68.
“Circumstantial evidence alone is sufficient to support a

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conviction for conspiracy.” Gomez-Jimenez, 750 F.3d at 378
(internal quotation marks omitted).
We conclude that sufficient evidence supports Clay’s
conviction. The Government introduced phone calls between Clay
and Garcia, which Edwards interpreted to refer to drug
transactions. A cooperating witness placed Clay in New York
with Garcia 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. Additionally, while Clay was not tied to
all of the drug transactions proven at trial, he was seen
operating in a similar manner to his coconspirators. Finally, a
jailhouse informant’s testimony provided additional support for
the jury to find Clay responsible for over one kilogram of
heroin. 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. We review a defendant’s
sentence “under a deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). Under this

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standard, a sentence is reviewed for both procedural and
substantive reasonableness. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to 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.” Id. at 51. “Any
sentence that is within or below a properly calculated
Guidelines range is presumptively reasonable.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir. 2014). “Such a
presumption can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” Id.
In 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 need not robotically tick through the
§ 3553(a) factors.” United States v. Helton, 782 F.3d 148, 153
(4th Cir. 2015) (internal quotation marks omitted). At the same

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time, the district court “must make an individualized assessment
based on the facts presented.” Gall, 552 U.S. at 50. While the
“individualized assessment need not be elaborate or lengthy,
. . . it must provide a rationale tailored to the particular
case at hand and adequate to permit meaningful appellate
review.” 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, it
offered a detailed explanation referring to those factors. The
court first noted the seriousness of the offense and then
considered Clay’s particular circumstances. See 18 U.S.C.
§ 3553(a)(1), (2)(A). The court also recognized its discretion
to disregard the 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. See id. § 3553(a)(6). Finally,
as to substantive reasonableness, we conclude that Clay has
failed to overcome the presumption of reasonableness accorded to
his within-Guidelines sentence.

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IV.
For all these reasons, we affirm the district court’s
judgments. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED

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