[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-11653

Non-Argument Calendar

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D.C. Docket No. 1:17-cr-20701-MGC-5

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

LEONARDO MIGUEL GARCIA MORALES, 

a.k.a. El Padrino, 

a.k.a. El Taliban, 

a.k.a. Miguelito, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(February 25, 2021)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Leonardo Miguel Garcia Morales appeals his conviction and sentence for 

conspiracy to commit Hobbs Act robbery. He raises five arguments on appeal. 

First, he argues the district court constructively amended the indictment in 

violation of his Fifth and Sixth Amendment rights. Second, he says the district 

court improperly conferred with the jury about their request for a transcript when 

Garcia Morales was not present. Third, he argues that his sentence was 

procedurally defective because the district court gave him a longer sentence on 

account of conduct for which Garcia Morales was never convicted. Fourth, he says 

the district court should have granted him a continuance to allow a neurologist to 

testify at his sentencing. And finally, Garcia Morales says his 84-month sentence 

is substantively unreasonable in light of his severe medical condition. 

After careful review, we find that the district court did not amend the 

indictment and that the district court’s communications with the jury do not 

warrant a new trial. Therefore, we affirm Garcia Morales’s conviction. However, 

we agree with Garcia Morales that his sentence is procedurally unreasonable

because the district court erred in including an offense of which he was acquitted 

in its calculation of his offense level. We therefore vacate Garcia Morales’s 

sentence and remand for further proceedings consistent with this opinion. Because 

we vacate Garcia Morales’s sentence on this ground, we need not address the other 

challenges he raised to his sentence. 

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I.

In 2012, Garcia Morales participated in a plan to rob what he believed to be 

a marijuana grow house. Instead, Garcia Morales was met by an armed 

homeowner who shot him repeatedly, leaving him a quadriplegic. Garcia 

Morales’s co-conspirators later robbed a gold courier, but due to his severe 

injuries, Garcia Morales did not directly participate in that venture. 

In 2017, a grand jury indicted Garcia Morales on a number of counts related 

to the robberies and other conduct. As relevant to this appeal, Count 1 charged

conspiracy to commit Hobbs Act robberies for planning to steal from “persons 

employed by businesses and companies operating in interstate commerce and 

foreign commerce, and persons engaged in illegal interstate and foreign commerce, 

namely, narcotics trafficking.” 

The district court’s jury instructions explained that Count 1 charged Garcia 

Morales with “two separate substantive crimes,” conspiring to rob a gold courier 

and to rob a marijuana dealer. The district court further explained that the 

government was required to prove that Garcia Morales committed only one of 

those crimes but that the jury had to be unanimous as to “which of the two crimes” 

he committed. 

After deliberations began, and when Garcia Morales was not present, the

jury asked the district court whether it could get transcripts of witness testimony, 

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including Garcia Morales’s testimony. At first, the district court said it would wait 

for Garcia Morales to be present to address the question. But upon learning that 

Garcia Morales had been returned to the facility where he was housed during the 

trial, the district court decided to answer the transcript question given that it 

“doesn’t really affect any substantive matter.” The district court then informed the 

government and Garcia Morales’s counsel that it would explain to the jurors that 

they could get a copy of the transcripts, but that “it is time-consuming, [and] that 

they should rely on their own recollection,” if they could. Garcia Morales’s 

counsel never objected to the district court so advising the jury outside the 

presence of Garcia Morales. 

The district court then told the jurors they should “rely on [their] recollection 

of the testimony,” but that they could receive copies of the transcripts if they so 

desired. The district court also explained that if the jurors had seen that “the 

lawyers had some copies of the transcripts” during closing arguments, “that’s 

because they ordered it” before then, and it would still take some time to produce 

copies for the jury. This prompted the jury to ask, “the attorneys have copies, so 

why can’t we get them?” The attorneys explained to the district court that neither 

of them had transcripts of witness testimony, only transcripts that had been 

received in evidence. The district court then asked the attorneys to come stand in 

the doorway of the jury room and repeat that explanation to the jury, which they 

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did. There is no record of what the attorneys said to the jury at that time, and

Garcia Morales was not present for this discussion. The jury then withdrew its 

request to review a transcript of Garcia Morales’s testimony but still asked to 

review the transcript of another witness’s testimony. 

The jury found Garcia Morales guilty on Count 1 of conspiracy to commit 

the marijuana robbery, but not the gold courier robbery. Garcia Morales’s 

Presentence Investigation Report (“PSR”) determined that because Count 1 

charged “conspiracy to commit more than one offense,” Sentencing Guideline §

1B1.2(d) required that the charge be treated “as if the defendant had been 

convicted on a separate count of conspiracy for each offense that the defendant 

conspired to commit.” The PSR recommended a total offense level of 29, 

including one unit attributed to the gold courier robbery. 

Garcia Morales objected to the computation of the offense level because “it 

includes points for acquitted conduct,” namely the gold courier robbery. The 

district court overruled that objection, finding “by a preponderance” that Garcia 

Morales assisted in the planning of and shared in the proceeds from the gold 

courier robbery. The district court then noted that it was “probably going to depart 

downward for some of the categories, such as his medical condition and such, as 

him not being overtly involved,” and suggested that “in the end it’s probably going 

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to balance out.” The district court sentenced Garcia Morales to 84 months’ 

imprisonment on all counts. 

Garcia Morales timely appealed. 

II.

A.

Garcia Morales argues that the district court constructively amended the 

indictment when it instructed the jury that it needed to find him guilty of 

conspiring to commit only one of either the gold courier or marijuana robberies. 

Garcia Morales points out that Count 1 charges him with conspiring to rob 

“persons employed by businesses and companies operating in interstate commerce 

and foreign commerce, and persons engaged in illegal interstate and foreign 

commerce.” And he insists that the district court was not entitled to amend the 

indictment to change the “and” to an “or.” 

We review de novo whether the district court constructively amended the 

indictment. United States v. Sammour, 816 F.3d 1328, 1335 (11th Cir. 2016).1 

The Fifth Amendment guarantees that a defendant can only be convicted of crimes 

charged in his indictment. United States v. Holt, 777 F.3d 1234, 1261 (11th Cir. 

1 The government argues that this alleged error is unreviewable because Garcia Morales invited 

it or, in the alternative, that it should be reviewed only for plain error because he failed to object 

to the instruction at the charging conference. But we need not decide which level of review 

applies here, because Garcia Morales’s constructive amendment claim fails even when reviewed 

de novo. See infra pp. 6–9. 

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2015). An indictment is constructively amended, and violates that right, when “the 

essential elements of the offense contained in the indictment are altered to broaden 

the possible bases for conviction beyond what [was] contained in the indictment.” 

Id. (quotation marks omitted). But there is a difference between the elements and 

the objects of a crime. It is well-settled that “where an indictment charges in the 

conjunctive several means of violating a statute, a conviction may be obtained on 

proof of only one of the means, and accordingly the jury instruction may properly 

be framed in the disjunctive.” United States v. Simpson, 228 F.3d 1294, 1300 

(11th Cir. 2000). 

Here, it is clear that Count 1 charged a single, multi-object conspiracy. The 

elements of conspiracy to commit Hobbs Act robbery are: (1) there was an 

agreement between two or more people, including the defendant, to commit a 

Hobbs Act robbery; (2) the defendant knew about the conspiratorial goal; and 

(3) the defendant voluntarily participated in furthering that goal. Brown v. United 

States, 942 F.3d 1069, 1075 (11th Cir. 2019) (per curiam). Garcia Morales was 

charged with violating the Hobbs Act by conspiring to steal from legal and illegal 

enterprises. In other words, Garcia Morales was charged with participating in a 

single conspiracy that had more than one goal, including the marijuana robbery and 

the gold courier robbery. This means the government needed to prove that he was 

aware of and participated in furthering at least one of those goals, but not 

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necessarily both. See Simpson, 228 F.3d at 1300. The district court properly 

instructed the jury about how to evaluate the evidence as to whether Garcia 

Morales participated in a single, multi-object conspiracy. 

Garcia Morales first argues that the district court improperly instructed the 

jury as if he had been charged with multiple conspiracies when he was charged 

with a single conspiracy. But no one disputes that Count 1 charged Garcia Morales 

with a single conspiracy. Garcia Morales’s repeated insistence that Count 1 

“clearly charges a single conspiracy” does not help him in the face of a charge for 

a single conspiracy with multiple objects. 

Garcia Morales places great weight on the fact that the government did not 

charge him for robbing the gold courier or aiding and abetting in that robbery. He 

says it is reasonable to infer from that decision that “the grand jury did not charge 

[him] in Count 1 as a co-conspirator in the gold courier robbery as a stand-alone 

conspiracy.” But it is not uncommon for a defendant to be charged with 

conspiracy to commit a crime without being charged with the substantive offense. 

See Ocasio v. United States, 578 U.S. __, 136 S. Ct. 1423, 1430 (2016) (“[A] 

conspirator may be convicted even though he was incapable of committing the 

substantive offense himself.” (quotation marks omitted)). And again, Garcia 

Morales was not charged with conspiring to commit the gold courier robbery as a 

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stand-alone conspiracy. He was charged with participating in a single, overarching conspiracy with two objects. 

Garcia Morales also points to the fact that there was insufficient evidence of 

his knowledge and planning of the gold courier robbery. But this merely explains 

the jury’s verdict regarding that object of the conspiracy. It does not tell us that the 

grand jury intended to charge him with participating in both, and necessarily both, 

goals of that single conspiracy. Indeed, the fact that there was considerably more 

evidence about Garcia Morales’s participation in one object of the conspiracy than 

the other suggests quite the opposite. 

Garcia Morales was charged with a single, multi-object conspiracy. The 

district court was therefore correct in instructing the jury that the government 

needed to prove Garcia Morales participated in only one object of the conspiracy. 

It did not constructively amend the indictment by doing so. 

B.

Garcia Morales next argues that the district court improperly excluded him 

from a critical stage of the trial when it discussed the jury’s request for trial 

transcripts without him present and answered one of the jury’s questions off the 

record. He argues that this violated his Fifth and Sixth Amendment Rights, 

Federal Rule of Criminal Procedure 43, and the Court Reporters Act (“CRA”). He 

points out that after the off-the-record discussion, the jury withdrew their request 

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for a transcript of his testimony, and says that neither he nor his counsel ever 

consented to the district court’s decision to have these discussions without Garcia 

Morales present. 

As an initial matter, because Garcia Morales raised this claim for the first 

time on appeal, we review the constitutionality of the district court’s actions for 

plain error. United States v. Mosquera, 886 F.3d 1032, 1043 (11th Cir. 2018). To 

succeed on plain error review, a defendant must show “error that is plain; that 

affects substantial rights; and that seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Holt, 777 F.3d at 1261 (quotation marks 

omitted). 

A criminal defendant has the “right to be present at any stage of the criminal 

proceeding that is critical to its outcome if his presence would contribute to the 

fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 

2658, 2667 (1987). But this Court has held that a district court did not violate a 

defendant’s right to be present at every stage of the trial when the court, absent the 

defendant and his counsel, responded to a jury’s request for a transcript by noting 

that transcripts were not usually prepared during a trial and that the jury should 

follow its recollection of the evidence. United States v. Zielie, 734 F.2d 1447, 

1460 (11th Cir. 1984), abrogated in part on other grounds by Bourjaily v. United 

States, 483 U.S. 171, 107 S. Ct. 2775 (1987), as recognized in United States v. 

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Chestang, 849 F.2d 528 (11th Cir. 1988). In Zielie, this Court held that the 

defendant showed no prejudice as a result of the district court’s “purely 

ministerial” act. Id. In so ruling, we held that “when the judge’s answer to the 

jury’s inquiry is distinctly responsive to the question; clearly states the law; and no 

prejudice is shown,” any alleged error is harmless. Id. 

So too here. Even if Garcia Morales should have been present for the 

district court’s response to the jury’s inquiry, he has not shown how this affected 

his substantial rights. He has not explained what objection he would have lodged 

or how his presence, in addition to that of his counsel (who was present throughout 

this interaction) would have changed anything. Garcia Morales suggests that the 

district court somehow convinced the jury to withdraw its request for a transcript 

of his testimony. But the district court never denied the jury access to any 

transcript and there is no reason to think that Garcia Morales’s presence would 

have convinced the jury they needed it.

2

 

Garcia Morales also claims that the district court violated the CRA when the 

court responded, outside the deliberation room and off the record, to the jury’s 

question about why the jurors could not have transcripts if the attorneys had them. 

2 As we review the alleged violation of Federal Rule of Criminal Procedure 43 for harmlessness, 

the same analysis applies. That rule requires that the defendant be present at “every trial stage, 

including jury impanelment and the return of the verdict.” Fed. R. Crim. P. 43(a)(2). To the 

extent the district court’s actions here technically violated the rule, Garcia Morales has failed to 

show how he was harmed by the violation. 

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The CRA requires a reporter to record verbatim all proceedings held in open court 

in criminal cases. See United States v. Cashwell, 950 F.2d 699, 703 (11th Cir. 

1992) (quoting 28 U.S.C. § 753(b)). But not every “failure to record, however 

small or insignificant, will work a reversal.” United States v. Selva, 559 F.2d 

1303, 1306 n.5 (5th Cir. 1977).3 Typically, reversal is warranted in cases with 

“substantial or significant omissions,” such as when the record is missing voir dire, 

opening statements, government or defense closing argument, or the entire 

transcript. See id. 

Here, there was no substantial or significant omission from the record. The 

interaction with the jury was very brief, was in the presence of Garcia Morales’s 

trial counsel, the district court and counsel gave accurate information in response 

to the jury’s question, and the court first put into the record what it was going to 

have the attorneys tell the jury. See United States v. Stefan, 784 F.2d 1093, 1102

(11th Cir. 1986) (holding that the omission of a one hour and forty-five minute 

bench conference, in such a “long and complex case,” was not a substantial or 

significant omission). And as we review this claim for harmlessness, see United 

States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009) (per curiam), Garcia 

3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding

precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at

1209.

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Morales has again failed to show how he was harmed by any technical violation of 

the CRA. 

C.

Finally, Garcia Morales argues that his sentence is procedurally 

unreasonable because his offense level calculation improperly included the gold 

courier robbery. The government concedes that the district court erred in 

calculating Garcia Morales’s offense level by treating the gold courier robbery as a 

separate group under Guideline § 1B1.2(d). Nevertheless, the government insists 

that any error was harmless because the district court stated that it was departing 

downward one level due to Garcia Morales’s limited role in the gold courier 

robbery. 

We agree with the government’s concession that the district court erred in 

treating the gold courier robbery as a separate group under United States 

Sentencing Guideline § 1B1.2(d). That Guideline states that a “conviction on a 

count charging conspiracy to commit more than one offense shall be treated as if 

the defendant had been convicted on a separate count of conspiracy for each 

offense that the defendant conspired to commit.” USSG § 1B1.2(d). The 

commentary clarifies that the conviction itself has to establish that the defendant 

committed each relevant offense. USSG § 1B1.2(d) cmt. n.3. Here, the jury 

acquitted Garcia Morales of conspiring to commit the gold courier robbery. Thus 

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the district court was not entitled to treat the gold courier robbery as a separate 

offense under this guideline. 

We conclude this error was not harmless. “An error in the district court’s 

calculation of the Sentencing Guidelines range warrants vacating the sentence, 

unless the error is harmless.” United States v. Barner, 572 F.3d 1239, 1247 (11th 

Cir. 2009). An error is harmless only where “a district judge clearly states that he 

would impose the same sentence, even if he erred in calculating the guidelines.” 

Id. at 1248 (emphasis added). The fact that the district court varied downward 

from the guidelines range is not sufficient to demonstrate harmless error. See

United States v. Eason, 953 F.3d 1184, 1195 n.8 (11th Cir. 2020) (finding that a 

Guidelines calculation error was not harmless where the district court never “stated 

on the record that the enhancement made no difference to the sentence it imposed.”

(quotation marks omitted) (alterations adopted)).

Here, the district court’s statements were not clear enough to assure us that it 

would have imposed the same sentence regardless of its calculation error. The 

district court stated that it would “probably” depart downward due to a 

combination of Garcia Morales’s medical condition and “him not being overtly 

involved.” These equivocal statements, suggesting that both Garcia Morales’s 

medical condition as well as his limited role in the gold courier robbery contributed 

to the downward departure, provide only the weakest of assurance that the error 

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was harmless. Because the district court erred in calculating Garcia Morales’s

Guidelines range and never clearly stated that it would impose the same sentence 

regardless of that error, we conclude that his sentence is procedurally 

unreasonable. See Barner, 572 F.3d at 1248. 

AFFIRMED in part, VACATED in part, and REMANDED for further 

proceedings consistent with this opinion. 

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