United States of America v. Alexander Del Valle Garcia, aka Alexander Del Valle-Garcia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEXANDER DEL VALLE GARCIA,
aka Alexander Del Valle-Garcia,
Defendant-Appellant.
No. 15-10220
D.C. No.
2:13-cr-00148-JAD-GWF-3
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued October 21, 2016; Resubmitted June 15, 2017
San Francisco, California
Before: GRABER and MURGUIA, Circuit Judges, and O’CONNELL,** District
Judge.
Defendant Alexander Del Valle Garcia and two co-defendants conspired
with a confidential informant to rob drugs from a delivery van’s driver, by
abducting him and stealing his van. When arrested, en route to the crime, police
FILED
JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Beverly Reid O’Connell, United States District Judge for
the Central District of California, sitting by designation.

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officers discovered, in the cars, a gun, zip ties, duct tape, and gloves. Garcia
falsely told the officers that he was driving a friend to apply for a job and that the
gloves and duct tape inside the car belonged to the registered owner. A jury
convicted Garcia of conspiracy to interfere with commerce by robbery, in violation
of 18 U.S.C. § 1951; conspiracy to commit theft in an interstate shipment, in
violation of 18 U.S.C. § 371; and making a false statement, in violation of 18
U.S.C. § 1001. The district court then sentenced him to 96 months’ imprisonment.
We affirm.
1. The district court did not abuse its discretion, United States v. Jenkins,
633 F.3d 788, 807 (9th Cir. 2011), by denying Garcia’s motion to sever his trial
from his co-defendants’ trial. Because all three Defendants were charged with
conspiracy, all acts concerning the planned robbery were admissible with respect to
all Defendants. Although the trial also pertained to charges of three earlier thefts
allegedly committed only by Garcia’s co-defendants, the subject matter is not a
complicated one that would have made it hard for the jury to compartmentalize. A
jury reasonably could be expected to consider the evidence of those three thefts
separately, because they involved easy-to-understand actions (thefts of purses and
drugs), concerning different victims, on different dates (November 2012,
December 2012, mid-March 2013), which preceded the planned robbery (April 8,
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2013); the government introduced no evidence that even implied that Garcia was
involved in those earlier thefts;1 and the district court repeatedly gave proper
limiting instructions to the jury.
2. The district court did not err by denying Garcia’s motion to suppress
evidence. The court did not clearly err in finding that Garcia voluntarily consented
to the search of his Nissan. See United States v. Bassignani, 575 F.3d 879, 887
(9th Cir. 2009) (holding that we review for clear error whether consent was
voluntary). Although there were some factors that weighed against a finding of
voluntariness of consent to search the car, other factors weighed in favor of
voluntariness, and the court’s choice is well supported by the record.
The court also did not err by concluding that Garcia’s statements were not
taken in violation of Miranda. See United States v. Brobst, 558 F.3d 982, 995 (9th
Cir. 2009) ("We review de novo the district court’s decision to admit or suppress
statements that may have been obtained in violation of Miranda."). To the extent
that Garcia challenges Agent Christensen’s credibility, the district court did not err
in crediting Christensen’s testimony.
1 The only exception occurred when a witness misidentified Garcia as the
thief in one of the earlier crimes. During closing argument, the government’s
lawyer asked the jury to disregard that testimony entirely.
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3. For the reasons stated by the district court, sufficient evidence supported
Garcia’s convictions on the conspiracy counts. Evidence supported findings "that
[one of the co-defendants] contacted Garcia prior to the scheme and that the two
men exchanged a number of phone calls; that Garcia picked up [the confidential
informant] on the morning of [the planned heist], and drove him to where [the co-
defendants] were parked even th[ough] Garcia and [the informant] had never
previously met; that implements of the robbery scheme were found in Garcia’s car;
and that [the informant] testified that, during their drive to the school parking lot,
Garcia expressed his hopefulness that they were going to make a lot of money from
the heist."
Sufficient evidence also supported Garcia’s conviction on the false-
statements count. The jury reasonably could have believed the testimony by the
government’s witnesses that flatly contradicted Garcia’s statements, thus
establishing the "falsity" element. See United States v. Stewart, 420 F.3d 1007,
1015 (9th Cir. 2005) ("We must respect the province of the jury to ascertain the
credibility of witnesses, resolve evidentiary conflicts, and draw reasonable
inferences from proven facts, by assuming that the jury resolved all such matters in
a manner which supports the verdict." (internal quotation marks omitted)).
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The jury also reasonably could have concluded that Garcia’s statements were
"material." "[T]he materiality requirement of a § 1001 violation is satisfied if the
statement is capable of influencing or affecting a federal agency." United States v.
Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998). Here, the statements could have
influenced the officers’ investigation. For example, had the officers believed
Garcia’s exculpatory statements, they would not have charged him with a crime.
The nature of Garcia’s statements—what he planned to do that morning and who
owned the apparent tools of a planned robbery—were directly relevant to the
government’s investigation and determination of whom to prosecute and for what
crimes.
4. We reject Garcia’s challenges to the district court’s rulings on
impeachment, for the reasons stated in United States v. Simon, 665 F. App’x 597,
599–600 (9th Cir. 2016) (unpublished), aff’d, 2017 WL 2469420, at *4 n.5 (9th
Cir. June 8, 2017) (en banc).
5. The district court did not err by declining to strike a juror, for the reasons
stated in Simon, 665 F. App’x at 600.
6. The government’s lawyer did not engage in prosecutorial misconduct
during closing argument. The challenged statements, in context, did not comment
on Garcia’s silence; and the court gave a proper cautionary instruction. See United
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States v. Mayans, 17 F.3d 1174, 1185 (9th Cir. 1994) ("A prosecutorial statement
is impermissible if it is manifestly intended to call attention to the defendant's
failure to testify, or is of such a character that the jury would naturally and
necessarily take it to be a comment on the failure to testify." (internal quotation
marks omitted)).
7. We have carefully reviewed Garcia’s assertions of additional trial error,
under the heading of "cumulative error," and we conclude that no reversible error
occurred.
8. The district court correctly calculated the applicable Guidelines range.
Enhancements for Intended Conduct. For the reasons stated in Simon, 2017
WL 2469420, the district court properly applied the general conspiracy guideline
found in U.S.S.G. § 2X1.1. Accordingly, the court properly applied enhancements
for Garcia’s intended conduct, including the planned abduction, carjacking, and
loss amount. U.S.S.G. § 2X1.1(a).
Obstruction of Justice. The court did not abuse its discretion by applying a
two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. Garcia
falsely told law enforcement officers that he was driving a friend to apply for a job
and that the gloves and duct tape inside the car belonged to the registered owner.
Because Garcia was not under oath, in order for this enhancement to apply, "the
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false statement must constitute an actual impediment, rather than a mere attempt to
impede the investigation [or prosecution]." United States v. McNally, 159 F.3d
1215, 1217 (9th Cir. 1998).
We conclude that the district court did not abuse its discretion in concluding
that Garcia’s lies actually impeded the investigation. Garcia did not simply deny
guilt; he lied by saying that he was taking a friend to apply for a job at MGM and
that the gloves and duct tape belonged to the registered owner of the car. Officers
tracked down, interviewed, and called as witnesses MGM employees and the car’s
owner in order to refute Garcia’s exculpatory statements. None of that
investigation would have occurred without Garcia’s lies, so it cannot be
characterized as "routine" background investigation or otherwise ordinary
investigation that would have occurred even without the lies. United States v.
Solano-Godines, 120 F.3d 957, 964 (9th Cir. 1997).
Possession of a Firearm. The district court did not err by applying a five-
level enhancement under U.S.S.G. § 2B3.1(b)(2)(C) for possession of a firearm.
Given that the conspiracy’s plan was to abduct and rob a delivery driver as he left
his home, it was "reasonably foreseeable" that one of Garcia’s co-conspirators
would possess a gun in the course of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B).
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Minimal Participant. The district court did not clearly err, United States v.
Tankersley, 537 F.3d 1100, 1110 (9th Cir. 2008), in finding that Garcia qualified
for a minor-role reduction under U.S.S.G. § 3B1.2(b) but not a minimal-participant
reduction under § 3B1.2(a). Garcia does not appear to have been involved in the
planning of the crime but, by arriving at the planned scene of the abduction with
gloves and other tools, he was prepared to be a full participant in the crime itself.
Cf. United States v. Daychild, 357 F.3d 1082, 1103 (9th Cir. 2004) ("The district
court was entitled to decline to view [the defendant] as ‘less culpable’ within the
meaning of U.S.S.G. § 3B1.2 when [he] was directly involved in a central act of
the conspiracy, the exchange of drugs for money, merely because there may have
been ancillary aspects of the conspiracy unknown to [him].").
AFFIRMED.
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