UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4160

HUMBERTO DEJESUS GARCIGA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, District Judge.

(CR-91-52)

Submitted: February 3, 1998

Decided: February 19, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed and remanded by unpublished per curiam opinion.

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COUNSEL

Douglas W. Kenyon, Albert Diaz, HUNTON & WILLIAMS,

Raleigh, North Carolina, for Appellant. Janice McKenzie Cole,

United States Attorney, Anne M. Hayes, Assistant United States

Attorney, Christine Witcover Dean, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In 1991, Humberto DeJesus Garciga was found guilty after a jury

trial of conspiracy to distribute and to possess with intent to distribute

cocaine, LSD, and other controlled substances in violation of 21

U.S.C. § 846 (1994), and of distribution of cocaine in violation of 21

U.S.C. § 841(a)(1) (1994). Garciga was tried with two of his seven

co-conspirators, including his wife, Dalia Garciga.*

On appeal, Garciga contends that a variance existed between the

conspiracy charged and the evidence adduced at trial. He contends

that the evidence at trial at best proved the existence of two separate

conspiracies, and was insufficient to prove the single conspiracy

charged in the indictment. Garciga also claims that the district court

erred in refusing to give the requested instruction on multiple conspiracies, and that it erred by failing to append to Garciga's presentence

investigation report its written findings regarding Garciga's challenge

to the amount of cocaine for which he was held responsible, in compliance with Fed. R. Crim. P. 32(c)(3)(D).

I.

The standard of review for sufficiency of the evidence is de novo,

and the court must consider the evidence in the light most favorable

to the government. See United States v. Burgos , 94 F.3d 849, 862 (4th

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*In 1996, Garciga filed a motion to vacate his sentence under 28

U.S.C.A. § 2255 (West 1994 & Supp. 1997), contending that his trial

counsel had failed to file an appeal as requested by Garciga. In accordance with United States v. Peak, 992 F.2d 39 (4th Cir. 1993), the district

court vacated the judgment entered in 1992 and reinstated the same judgment to allow Garciga to appeal. Garciga timely appealed from the reinstated judgment.

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Cir. 1996) (in banc), cert. denied, 65 U.S.L.W. 3586 (U.S. Feb. 24,

1997) (No. 96-6868). If "`any rational trier of fact could have found

the essential elements of the crime [charged] beyond a reasonable

doubt,'" then the verdict must be upheld. See United States v.

Johnson, 54 F.3d 1150, 1153 (4th Cir. 1995) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

Here, the evidence showed that Garciga was part of a conspiracy

involving the sale and distribution of both cocaine and LSD. Garciga

began distributing cocaine with co-conspirator Crescencio Velasquez

in 1985. Garciga also sold cocaine on a regular basis to co-conspirator

Hector Leones, who in turn distributed the cocaine in Florida, Georgia, and North Carolina. Leones was also involved in distributing

LSD, heroin, and diet pills with several other co-conspirators.

Garciga also sold cocaine to co-conspirator Richard Flores.

Through 1987, Flores bought cocaine from Garciga once or twice

monthly, which he then delivered to Leones and co-conspirator Robert Seay. Phone records showed that both Flores and Leones had

extensive contact with co-conspirator Lonnie Edsell Spell, who in

turn had extensive contact with named co-conspirator Carland Ray

Davis. Testimony also established that Leones was involved in dealing cocaine with Seay, Spell, Davis, and the remaining named coconspirator, Maurice Jackson.

Overall, the evidence established that Garciga regularly sold

cocaine directly to Leones and Flores, who in turn distributed it to

Seay, Jackson, Davis, and Spell. Leones and Seay also dealt in diet

pills and LSD. Thus, there was ample evidence to support a finding

that Garciga was part of the one, overall conspiracy charged in the

indictment. Garciga need not have had direct contact with all of the

co-conspirators to support a finding that he was involved in the overall single conspiracy. See Johnson, 54 F.3d at 1154 (holding that evidence supported finding of single conspiracy even though principals

did not know each other or had minimal contact with each other);

United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). Likewise, Garciga need not have dealt directly in all of the controlled substances in which the conspiracy dealt to be found part of the

conspiracy. See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.

1993).

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Further, even assuming that the evidence supported the existence

of multiple conspiracies, the court's failure to give a jury instruction

on multiple conspiracies is not reversible error. Garciga contends that

he was involved only with Leones and Flores in distributing cocaine.

However, the evidence showed that Leones and Flores both dealt

directly with Spell, Jackson, Davis, and Seay. Thus, there was substantial evidence that the separate Garciga-Leones-Flores conspiracy,

which Garciga contends existed, was closely related to the overall

conspiracy charged by virtue of Leones' and Flores' relationship with

the other co-conspirators. See United States v. Kennedy, 32 F.3d 876,

884 (4th Cir. 1994). Accordingly, the failure to give a multiple conspiracy instruction is not reversible error. See United States v.

Howard, 115 F.3d 1151, 1157 (4th Cir. 1997); Kennedy, 32 F.3d at

884.

II.

During the sentencing hearing, a dispute arose over the amount of

cocaine for which Garciga should be responsible. The PSR claimed

that over 200 kilograms of cocaine were channeled through Leones

over the course of the conspiracy, although Garciga's counsel argued

that the actual amount was far less. The court declined to resolve this

dispute, concluding that the amount of cocaine distributed by the conspiracy was not relevant for sentencing purposes. However, the court

did not append a written record of this determination to Garciga's

PSR.

Federal Rule of Criminal Procedure 32(c)(3)(D) requires that the

district court make a finding as to a disputed allegation or determine

that no such finding is necessary because the controverted matter will

not be considered during sentencing. Here, the district court acted

within its discretion by declining to rule on the controversy between

the parties regarding the amount of cocaine distributed by the conspiracy. See United States v. Miller, 871 F.2d 488, 489 (4th Cir. 1989).

However, Rule 32 also requires that the district court append to the

PSR a written record of its determination that no findings are necessary. See Fed. R. Crim. P. 32(c)(3)(D). The district court did not

attach to the PSR a written record of its determination that no findings

were necessary on the amount of cocaine distributed by the conspiracy. We therefore remand the case for the limited purpose of attach-

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ment of the district court's determination to the PSR. See United

States v. Daniel, 3 F.3d 775, 780 (4th Cir. 1993).

Accordingly, Garciga's conviction and sentence are affirmed. We

remand for the limited purpose of attachment of the district court's

written findings to the PSR under Fed. R. Crim. P. 32(c)(3)(D). We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED AND REMANDED

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