IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40520

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

RENE GARCIA, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before REAVLEY, PRADO, and COSTA, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Defendant–Appellant Rene Garcia appeals from a two-level sentencing 

enhancement for possession of a dangerous weapon in connection with a drug 

offense under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(b)(1).

Garcia argues that the district judge unfairly relied on testimony that the 

district judge had heard in a separate criminal proceeding of another person—

without prior notice to Garcia—in violation of Federal Rule of Criminal 

Procedure 32 and U.S.S.G. § 6A1.3. We agree, and we vacate Garcia’s sentence 

and remand for resentencing.

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2015

Lyle W. Cayce

Clerk

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I. FACTUAL AND PROCEDURAL BACKGROUND

Garcia pleaded guilty to conspiracy to possess more than 100 kilograms 

of marijuana with intent to distribute in violation of 18 U.S.C. §§ 841(a)(1), 

841(b)(1)(A), and 846, pursuant to a plea agreement. The probation officer 

prepared a presentence investigation report (PSR) and recommended a 

sentencing range of 188 to 235 months, subject to a motion by the Government 

for an acceptance-of-responsibility decrease.

The recommended Guidelines range included a two-level sentencing 

enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). The 

probation officer based her recommendation on evidence that Garcia conspired 

to perpetrate a marijuana robbery. According to the PSR, Garcia’s neighbor, 

Pedro Alvarado, was an alleged drug trafficker. Garcia contacted Alvarado to 

warn him about a suspicious vehicle parked near his property. Alvarado told 

Garcia that he would go and check out the vehicle. Then, Garcia drove a car, 

accompanied by Miguel Romo and David Olivarez, that followed a car driven 

by Alvarado in a high-speed chase of the suspicious vehicle. According to the 

PSR, one of the passengers in Alvarado’s car opened fire on the suspicious 

vehicle. It turns out that the occupant of the suspicious vehicle was Homeland 

Security Investigations Special Agent Kelton Harrison, who sustained a 

gunshot wound during the incident. In describing the offense conduct—

separate from the § 2D1.1(b)(1) enhancement discussion—the PSR also 

mentions that “Arnaldo Alvarado claimed he observed a rifle and a night-vision 

scope in Rene Garcia’s vehicle before he departed their residence.”

Garcia filed written objections to the PSR in which he objected to the 

§ 2D1.1(b)(1) two-level enhancement and argued that he never himself

possessed a firearm. The probation officer adhered to her recommendation. In 

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her response, she relied on § 2D1.1 application note 11(A)1 and explained that 

it did not matter whether Garcia himself possessed the firearm: “[T]he 

enhancement should be applied if the weapon was present, unless it is clearly 

improbable that the weapon was connected to the offense . . . .” She reasoned 

that the enhancement for possession of a weapon “reflects the increased danger 

of violence when drug traffickers possess weapons.”

At the sentencing hearing, the district judge relied on his recollection of 

Alvarado’s criminal trial—over which the sentencing judge presided and in 

which Garcia did not participate.2 Defense counsel objected to the § 2D1.1(b)(1) 

sentencing enhancement. He argued that the “gun is attributed to the 

Alvarados,” referring to the lead car driven by Alvarado in the pursuit of the 

suspicious vehicle—not the car driven by Garcia. The district judge responded: 

“[S]ince there was a complete trial in the Alvarado case, I’m very familiar with 

. . . the situation there.” Although the district court initially expressed 

skepticism about awarding the § 2D1.1(b)(1) enhancement, (“I wasn’t going to 

assess any kind of use of weapon by Mr. Garcia.”), the district judge was 

ultimately persuaded by the Government’s argument that trial testimony 

indicated that at least one witness “testified that he saw a gun—at least one 

firearm in Mr. Garcia’s vehicle after the shooting.” Ultimately, the district 

 

1 The application note provides:

The enhancement for weapon possession in [§ 2D1.1](b)(1)] reflects the 

increased danger of violence when drug traffickers possess weapons. The 

enhancement should be applied if the weapon was present, unless it is clearly 

improbable that the weapon was connected with the offense. For example, the 

enhancement would not be applied if the defendant, arrested at the defendant’s 

residence, had an unloaded hunting rifle in the closet.

U.S.S.G. § 2D1.1 cmt. n.11(A) (emphasis added).

2 Garcia was a codefendant in Alvarado’s criminal prosecution; however, Garcia

pleaded guilty well before trial started and therefore was not involved in the trial.

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court credited the Government’s recollection of Olivarez’s testimony that there 

was a rifle in Garcia’s car.

As for the PSR’s mentioning that Arnoldo Alvarado “claimed he observed 

a rifle . . . in Rene Garcia’s vehicle before he departed their residence,” the 

district court specifically decided to “discount the self-serving testimony of 

Arnoldo Alvarado on that issue.” The court reasoned that Alvarado’s testimony 

on this point, placing the rifle in Garcia’s car instead of Alvarado’s car, “was 

designed to shift the blame from his own conduct to others.”

Defense counsel objected to the use of Olivarez’s testimony from 

Alvarado’s trial to enhance Garcia’s sentence—testimony that was not 

contained in the PSR: “Judge, . . . if you look at the . . . PSR, [the rifle in Garcia’s 

car] is not mentioned. What’s mentioned is the weapon that the Alvarados 

ha[d].” Indeed, as noted above, the PSR reflects this and states that “the vehicle 

driven by Pedro Alvarado, and occupied by Arnold Alvarado and 16-year-old 

M.A. . . . [,] opened fire on the suspicious vehicle.” Defense counsel continued: 

“[W]e plead to marijuana and all of a sudden we’re . . . dealing with other issues 

that we weren’t prepared to deal with.” The court rejoined: “Well, you should 

have anticipated a weapon issue if there was weapons there.” Defense counsel 

replied: “I want to make sure I don’t waive the objection. I’m just saying that 

. . . we didn’t have notice of that [from] the PSR.”

Ultimately, the district court calculated the Guidelines range at 78 to 97 

months and sentenced Garcia within the Guidelines to 78 months in prison. 

Garcia timely appeals.

II. JURISDICTION AND STANDARD OF REVIEW

This is a direct appeal of a federal criminal sentence. The district court 

had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because Garcia objected in the 

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district court to the lack of notice at his sentencing hearing,3 we review this 

question de novo. See United States v. Knight, 76 F.3d 86, 87 (5th Cir. 1996)

(per curiam); accord United States v. Pennington, No. 14-60182, 2015 WL 

1500514, at *2 (5th Cir. Apr. 3, 2015) (unpublished).

III. DISCUSSION

The principal issue in this appeal is whether the district court erred by 

using testimony from a separate criminal trial that was not contained in the 

PSR to enhance Garcia’s sentence without prior notice. Garcia contends, inter 

alia, that the district court relied on information that was “not contained 

within the PSR” and of which “Garcia did not receive notice that the Court was 

going to utilize . . . in assessing a [two-level] enhancement,” in violation of 

Federal Rule of Criminal Procedure 32 and U.S.S.G. § 6A1.3.4 The Government 

counters that the PSR provided Garcia with adequate notice of the 

enhancement. The Government also argues that the district court properly 

“relied on its recollection of the sworn testimony of David Olivarez that one of 

the occupants of Garcia’s truck carried a firearm” in applying the two-level 

enhancement.

Section 6A1.3(a) of the U.S. Sentencing Guidelines requires that the 

parties “be given an adequate opportunity to present information” to address 

“any factor important to the sentencing determination [that] is reasonably in 

dispute.” Federal Rule of Criminal Procedure 32(i)(1)(C) provides, “[a]t 

 

3 Defense counsel specifically stated: “[W]e didn’t have notice [that testimony from 

Alvarado’s trial would be used to enhance Garcia’s sentence from] the PSR . . . . I understand 

the Court’s logic on this but I just wanted to preserve my objection on this.” For the reasons 

discussed infra at note 4, we need not address the Government’s argument that Garcia’s 

constitutional claims must be reviewed for plain error only.

4 Garcia also argues the enhancement violated his constitutional rights to due process 

and to confront witnesses against him. The Government contends that Garcia’s these

arguments were not fairly presented to the district court and should therefore be reviewed 

for plain error only. Because we resolve Garcis’s appeal on non-constitutional grounds, we 

need not and do not address these arguments.

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sentencing, the court . . . must allow the parties’ attorneys to comment on the 

probation officer’s determinations and other matters relating to an appropriate 

sentence.”

We have noted that “[t]he touchstone of [R]ule 32 is reasonable notice to 

allow counsel adequately to prepare a meaningful response and engage in 

adversary testing at sentencing.” United States v. Angeles–Mendoza, 407 F.3d 

742, 749 n.12 (5th Cir. 2005) (citation and internal quotation marks omitted); 

see also Irizarry v. United States, 553 U.S. 708, 715 (2008) (“Sound practice 

dictates that judges in all cases should make sure that the information 

provided to the parties in advance of the hearing, and in the hearing itself, has 

given them an adequate opportunity to confront and debate the relevant 

issues.”); 3 Charles A. Wright et al., Federal Practice & Procedure: Criminal

§ 529 (4th ed. 2015) (“Factual matters not included in the presentence report 

should also be disclosed in advance of sentencing so that the government and 

the defendant are able to contest inaccuracies.”). In assessing the 

reasonableness of notice, we have considered “the abilities of the average 

defense counsel” and the need of sentencing judges for “sufficient flexibility to 

deal with factors not covered in the PSR or arising after its writing.” Knight, 

76 F.3d at 88–89.

“[I]f the defendant has actual knowledge of the facts on which the district 

court bases an enhancement or a denial of a reduction, the Sentencing 

Guidelines themselves provide notice of the grounds relevant to the proceeding 

sufficient to satisfy the requirements of Rule 32 and U.S.S.G. § 6A1.3.” Id. at 

88. For instance, we have held that a defendant’s untruthful letter to the 

sentencing judge could be used to enhance his sentence for obstruction of 

justice and to deny a reduction for acceptance of responsibility without prior 

notice, reasoning that the defendant “knew of the letter he authored.” Id. at 

87–89. We have also held that a defendant’s knowledge of his own perjurious

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testimony at trial was itself “adequate notice of the court’s intent to enhance 

his sentence for obstruction of justice,” United States v. Marmolejo, 89 F.3d 

1185, 1201 (5th Cir. 1996), aff’d on other grounds sub nom., Salinas v. United 

States, 522 U.S. 52 (1997).

We confronted a strikingly similar situation in United States v. 

Townsend, 55 F.3d 168 (5th Cir. 1995) (per curiam). There, as here, the 

sentencing judge relied on a state witness’s testimony in a coconspirator’s 

separate proceeding to deny the defendant’s motion for reduction of sentence—

without prior notice to the defendant of the court’s intent to do so. Id. at 170. 

We vacated the sentence and remanded for resentencing. Id. at 173. We held 

that “when a court intends to rely on testimony from a different proceeding in 

its resentencing decision, the court must timely advise the defendant in 

advance of its decision that it has heard or read and is taking into account that 

testimony, such that the defendant has the opportunity to contest the 

testimony.” Id. at 172. We reasoned that, because the defendant “was never 

notified that the court intended to rely on” testimony from his codefendant’s 

sentencing proceeding, the defendant “did not have an adequate opportunity 

to respond.” Id. We explained that the district court “need only tell a defendant 

that it intends to rely on testimony from another proceeding in order to alert 

the defendant to his opportunity to respond to that testimony.” Id. at 173.

We have also held that a sentencing court’s decision “to consider 

information about [one defendant] from [a codefendant’s] PSR without at least 

giving [the defendant] an opportunity to see it and contest its accuracy would 

clearly be improper.” United States v. Smith, 13 F.3d 860, 867 (5th Cir. 1994); 

see id. at 866–68 (vacating and remanding defendant Phillips’ sentence 

because “[t]he factual contents of Smith’s PSR—on the basis of which the trial 

court found joint enterprise as to her—cannot be used against Phillips”). We 

have also noted in dictum that “when [a sentencing] court intends to rely on 

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information not contained in a defendant’s PS[R], Criminal Rule of Procedure 

32 requires that ‘defense counsel must be given an opportunity to address the 

court on the issue.’” United States v. Goldfaden, 959 F.2d 1324, 1330 (5th Cir. 

1992) (quoting United States v. Otero, 868 F.2d 1412, 1415 (5th Cir. 1989)).

Although Townsend arose on motion for a reduction of sentence under 

18 U.S.C. § 3582(c), its reasoning to applies with equal force in this context. 

Here, the PSR reflects that the probation officer recommended the two-level 

enhancement based on the presence of a firearm in Alvarado’s car. Yet, the 

district court enhanced Garcia’s sentence because it credited Olivarez’s 

testimony from another proceeding—of which Garcia was unaware—that there 

was a rifle in Garcia’s car. Because Garcia was not notified prior to the 

sentencing hearing of the district court’s intent to enhance his sentence based 

on information that was not contained in the PSR, Garcia had no meaningful 

opportunity to present evidence to impeach or contradict Olivarez’s testimony.

See Smith, 13 F.3d at 867 (“[F]or the sentencing court to consider information 

about [a defendant extrinsic to the defendant’s PSR] without at least giving 

[the defendant] the opportunity to see it and contest its accuracy would clearly 

be improper.”). Unlike in Knight and Marmolejo, there is no indication that 

Garcia had actual knowledge of Olivarez’s testimony from Alvarado’s trial.

Therefore, we hold that the district court’s reliance on testimony from a 

separate criminal trial that was not contained in the PSR to enhance Garcia’s 

sentence—without prior notice and of which Garcia had no actual knowledge—

violated the notice requirements of Rule 32 and U.S.S.G. § 6A1.3.5 We note 

that this holding is consistent with our case law, see United States v. Beasley, 

490 F. App’x 676, 676–77 (5th Cir. 2012) (per curiam) (“Beasley is correct that 

the district court was required to notify him of its intent to rely on the 

 

5 We need not and do not reach Garcia’s constitutional arguments.

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testimony so that he had the opportunity to contest it.”); Townsend, 55 F.3d at 

172–73; Smith, 13 F.3d at 867, and with the views of our sister circuits, see, 

e.g., United States v. Reynoso, 254 F.3d 467, 469 (3d Cir. 2001) (“Following both 

Supreme Court jurisprudence and our own, we hold that before a sentencing 

court may rely on testimonial or other evidence from an earlier proceeding, it 

must afford fair notice to both defense counsel and the Government that it 

plans to do so.”); United States v. Berzon, 941 F.2d 8, 21 (1st Cir. 1991) (“We 

hold . . . that, notwithstanding the wide scope of the sentencing court’s 

discretion, a defendant may not be placed in a position where, because of his 

ignorance of the information being used against him, he is effectively denied 

an opportunity to comment on or otherwise challenge material information 

considered by the district court. . . . [T]he PS[R] in this case . . . did not 

sufficiently include all of the purported factors relevant to Berzon’s role in the 

offense which were later presented to the court at Novak’s separate sentencing 

hearing.”); United States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir. 1990) 

(“[E]vidence presented at the trial of another may not—without more—be used 

to fashion a defendant’s sentence if the defendant objects. In such a case, where 

the defendant has not had the opportunity to rebut the evidence or generally 

to cast doubt upon its reliability, he must be afforded that opportunity.”).6

 

6 The Government filed a letter brief pursuant to Fed. R. App. P. 28(j) containing 

citations to various persuasive authorities from other circuits to support its argument that 

Garcia’s sentence should be affirmed. 

Each case is inapposite. In United States v. Carmona, 873 F.2d 569, 574 (2d Cir. 1989), 

the issue was whether hearsay evidence was admissible at sentencing and comported with 

due process—not notice of evidence extrinsic to the PSR. In the other cited cases, the courts 

specifically found the evidence extrinsic to the PSR to be duplicative and corroborative of 

unobjected-to evidence in the PSR. United States v. Quinoñes–Meléndez, No. 14-1369, 2015 

WL 3982388, at *3 (1st Cir. July 1, 2015); United States v. Checora, 175 F.3d 782, 787 & n.2 

(10th Cir. 1999) (“Redcap’s Presentence Report specifically relied upon the testimony of his 

co-defendants, particularly in its response to Redcap’s objections, thereby giving him notice 

of the statements that would be used against him.”); United States v. Pippen, 115 F.3d 422, 

425 (7th Cir. 1997) (relying on the lack of a specific objection to the PSR).

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The Government has not convincingly demonstrated that the district 

court’s reliance on Olivarez’s trial testimony at Garcia’s sentencing was 

harmless error under Federal Rule of Criminal Procedure 52(a). The burden is 

on the Government to “convincingly demonstrate” that the sentencing court 

would have imposed the same sentence absent the error, and this “is a heavy 

burden.” United States v. Ibarra–Luna, 628 F.3d 712, 717 (5th Cir. 2010). The 

Government exclusively argued that Garcia’s sentence should be reviewed for 

plain error only and neglected to brief harmless error, so the Government has 

not carried its burden. Moreover, we cannot say that this error was harmless. 

The district court expressed reluctance to enhance Garcia’s sentence for the 

reasons given in the PSR, and the court found the “self-serving testimony of 

Arnoldo Alvarado” mentioned in the PSR not credible. Olivarez’s testimony 

from the Alvarado trial weighed heavily in the district court’s decision to 

enhance Garcia’s sentence, and Garcia did not have an opportunity to present 

contradicting evidence or impeach Olivarez’s credibility. See Angeles–Mendoza, 

407 F.3d at 749 n.12 (“The touchstone of rule 32 is reasonable notice to allow 

counsel adequately to prepare a meaningful response and engage in adversary 

testing at sentencing.” (emphasis added) (internal quotation marks omitted)).

IV. CONCLUSION

For the foregoing reasons, we VACATE Garcia’s sentence and REMAND

for resentencing in accordance with this opinion.

 

Moreover, United States v. Blackwell, 49 F.3d 1232 (7th Cir. 1995), the final case cited 

by the Government in its 28(j) letter brief, cuts against the Government’s argument. There, 

the court held: “[W]e do not believe [the defendant] was given sufficient notice to allow him 

meaningfully to rebut the prior testimony [of a codefendant in a separate sentencing 

proceeding]. . . . We therefore think it prudent, if not necessary, to remand this case for 

resentencing.” Id. at 1239–40.

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