ON REHEARING

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4370

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior 

District Judge. (5:12−cr−00376−F−1)

Argued: September 17, 2015 Decided: September 1, 2016 

Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior 

Circuit Judge. 

Affirmed in part, vacated in part, and remanded by published 

opinion. Judge Diaz wrote the opinion, in which Judge Duncan 

joined. Senior Judge Davis wrote a dissenting opinion.

ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North 

Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE 

UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. 

ON BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States
2

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.
3

DIAZ, Circuit Judge:

A jury convicted Alejandro “Alex” Garcia-Lagunas of 

conspiracy to distribute or possess with intent to distribute 

cocaine, in violation of 21 U.S.C. §§ 841(a), 846. He was 

sentenced to 188 months’ imprisonment. Garcia-Lagunas appealed 

and we affirmed his conviction, finding that the government 

committed nonconstitutional error by using ethnically charged 

evidence to rebut Garcia-Lagunas’s assertion that he was too 

poor to have dealt in large quantities of drugs, but that such 

error was harmless. We also vacated his sentence, holding that 

the district court’s miscalculation of Garcia-Lagunas’s 

Guidelines range was plain error affecting his substantial 

rights, and remanded for resentencing.

Garcia-Lagunas filed a petition for rehearing and rehearing 

en banc. We granted Garcia-Lagunas’s petition for panel 

rehearing, thus vacating our prior opinion and mooting the 

petition for rehearing en banc. We directed briefing on whether 

the evidentiary error, if assumed to be of constitutional 

magnitude, was nonetheless harmless beyond a reasonable doubt. 

We now again affirm Garcia-Lagunas’s conviction, vacate his 

sentence, and remand for resentencing.
4

I.

A.

On March 27, 2012, Ronnie Reed was arrested in 

Fayetteville, North Carolina, on federal drug trafficking 

charges. Reed told the arresting officers that he had a 

“Mexican drug supplier” named “Alex” and led them to three 

trailers in Robeson County—at 33 Sonoma, 47 Sonoma, and 294 

Maple Leaf—where he said he had purchased drugs from “Alex.” 

Reed also gave the officers four telephone numbers that he had 

previously used to contact “Alex.”

The next day, the police executed search warrants on the 

three trailers. They found Garcia-Lagunas’s parents at 33 

Sonoma and ten one-kilogram wrappers, several with “white 

powdery residue” on them, buried in a lean-to shed behind the 

trailer at 47 Sonoma. J.A. 98. At 294 Maple Leaf, officers 

found an older male with a small user amount of cocaine. During 

earlier surveillance, officers had seen a car leave 294 Maple 

Leaf and go to a trailer at 353 Westcott. As the search of the 

three trailers had not turned up “Alex,” the officers decided to 

try 353 Westcott. When they arrived, Detective Kurt Stein 

observed Marco Hernandez exit the trailer from the back, and 

Detective Pedro Orellano and Sergeant Gregory Johnson approached 

him. Orellano confirmed with Hernandez that Hernandez lived at 

the trailer and obtained his consent to search it.
5

The officers found Garcia-Lagunas and Brian Jacobs inside 

the trailer. Garcia-Lagunas had white powder under his nose and 

appeared impaired. Garcia-Lagunas identified himself to the 

officers as Alex. Both Garcia-Lagunas and Jacobs told the 

officers that they did not live in the trailer. After Sergeant 

Johnson asked him to empty his pockets, Garcia-Lagunas produced 

$600 cash and a cell phone, which had his photograph as its 

background image. When Detective Stein dialed one of the phone 

numbers Reed had given the police for “Alex,”1 Garcia-Lagunas’s 

phone rang.

The officers then searched the trailer. In the kitchen, 

they found a handgun and several small baggies. In one bedroom, 

the officers found body armor; a large digital scale; a small 

digital scale; a black plastic bag containing a vacuum-sealed 

bag, which in turn contained about 800 grams of a white powdery

substance; and a small baggie of crack cocaine. The white 

powder field-tested positive for cocaine, but later State Bureau 

of Investigation (“SBI”) laboratory tests revealed that the 

powder contained no controlled substance.

Analysis of Garcia-Lagunas’s phone’s records connected it 

to several known drug dealers, including Reed, Jacobs, Thomas 

 1 Brian Jacobs and Thomas Brewington, a drug dealer who 

purchased cocaine from Garcia-Lagunas, also gave officers that 

same phone number for “Alex.”
6

Brewington, Shaun Beard, and Reginald Clark. The records showed 

that from February 9th to 23rd, 2012, there were 185 calls 

between Garcia-Lagunas and Beard; 60 between Garcia-Lagunas and 

Clark; 56 between Garcia-Lagunas and Jacobs; 56 between GarciaLagunas and Reed; and 160 between Garcia-Lagunas and various 

numbers with a 404 area code, which the government identified as 

Atlanta, a “drug hub city.” J.A. 139. From February 13th to 

21st, 2012, there were 37 calls between Garcia-Lagunas and the 

landline at 294 Maple Leaf. From February 22nd to February 

23rd, 2012, there were five calls between Garcia-Lagunas and 

Brewington.

B.

A grand jury charged Garcia-Lagunas2 with conspiring to 

distribute or possess with the intent to distribute 500 grams of 

cocaine, in violation of 21 U.S.C. §§ 841(a), 846, and 

unlawfully reentering the United States after having previously 

been deported, in violation of 8 U.S.C. § 1326(a). He pleaded 

guilty to the unlawful reentry charge and proceeded to trial on 

the conspiracy charge.

Before trial, the government gave notice of its intention 

to call Detective Shawn Collins as an expert witness, stating 

that he would “testify about drug trafficking investigations and 

 2 Garcia-Lagunas was indicted under the name Alex Fuentes. 
7

methods utilized by drug traffickers to operate and protect 

their drug business.” J.A. 32. Separately, the district court 

agreed to provide Garcia-Lagunas with a Spanish interpreter for 

the proceedings.

Collins was the government’s first witness, testifying both 

as an expert and as a fact witness with respect to the 

investigation and the searches. According to Collins, the white 

powder found in the trailer could have field-tested positive for 

cocaine and still have been found to contain no controlled 

substance in SBI’s laboratory analysis if the cocaine had been 

mixed with a sufficient amount of cutting agent such that “when 

the lab sampled a small amount of that 800 grams of cocaine 

there . . . wasn’t enough cocaine in it to even register with 

the SBI or the instruments they were using.” J.A. 111. 

Collins also told the jury that Garcia-Lagunas was “an 

alien illegally in the United States.” J.A. 150. After the 

prosecution asked Collins if he saw that Garcia-Lagunas was 

being assisted by an interpreter in court, Collins responded 

that his informants had not indicated that they had needed to 

use Spanish in their dealings with Garcia-Lagunas. Moreover, 

Collins testified that Garcia-Lagunas “appeared to be fluent in 

English.” J.A. 151.

Four drug dealers—Reed, Jacobs, Brewington, and Antonio 

Locklear—each testified pursuant to plea agreements to having 
8

purchased cocaine from Garcia-Lagunas. Reed bought four to nine 

ounces of cocaine from Garcia-Lagunas at the 47 Sonoma location 

two times a week from October 2011 until Reed’s March 27, 2012 

arrest, adding up to at least six kilograms, and separately 

bought nine to twenty ounces of cocaine from Garcia-Lagunas at 

the Maple Leaf location at least once a week from December 2011 

until March 27, 2012, adding up to at least four additional 

kilograms. Reed resold the drugs that he bought from GarciaLagunas, and did not use them himself.

Jacobs had been buying drugs from Garcia-Lagunas for about 

eight years, prior to which Jacobs had sold to Garcia-Lagunas. 

On the day of Garcia-Lagunas’s arrest, Jacobs had given $600 to 

Garcia-Lagunas for three-quarters of an ounce of cocaine. 

Jacobs also testified that he had on over thirteen other 

occasions bought from a quarter of an ounce to three-quarters of 

an ounce of cocaine from Garcia-Lagunas.

According to Brewington, he bought cocaine from GarciaLagunas only once, at 294 Maple Leaf, and he bought nine ounces 

on that occasion. He discussed the amount of cocaine he could 

resell with Garcia-Lagunas, in order to negotiate a better 

price. Brewington noted that when he tried to redistribute the 

cocaine, “one of [his] people that [he] gave it to was 

complaining that it wouldn’t” cook properly. J.A. 363.
9

Locklear began using Garcia-Lagunas as a source for drugs 

around June of 2010. From then until March 2011, he bought 

cocaine from Garcia-Lagunas about every other day, and he 

purchased the drugs to resell them. On direct examination, 

Locklear testified that he always bought at least nine ounces, 

and never more than eighteen ounces, and estimated that he had 

bought 29-30 kilograms total. However, on cross-examination, 

Garcia-Lagunas impeached Locklear with a March 2011 statement to 

law enforcement, in which he had apparently attributed only 

three kilograms of cocaine to Garcia-Lagunas.

Reed, Jacobs, Brewington, and Locklear each testified that 

they did not know the others, except that Reed knew of 

Brewington, and all testified to having spoken English with 

Garcia-Lagunas.

Hernandez, the owner of the trailer at 353 Westcott, 

testified, also pursuant to a plea agreement, that GarciaLagunas had been staying in the room in which the body armor and 

scales had been found for about four weeks leading up to the 

arrest, and that the armor and large scale belonged to GarciaLagunas.3 Hernandez also testified that while he had never seen 

Garcia-Lagunas selling drugs, he had seen visitors, including 

 3 In their testimony, Detectives Collins and Orellano noted 

that the room Hernandez attributed to Garcia-Lagunas looked as 

if it had recently been moved into. 
10

Jacobs, give Garcia-Lagunas money. He also saw Jacobs give 

Garcia-Lagunas the gun that was found in the trailer.4

Detective Orellano testified about his participation in the 

searches and the evidence that he and Detective Stein found in 

the 353 Westcott trailer. While cross-examining Orellano, the 

defense elicited testimony regarding the squalid state of 

Garcia-Lagunas’s living conditions, which supported GarciaLagunas’s defense theory that he was a drug user but not a drug 

dealer. On redirect, Orellano told the jury that he had 

extensive experience investigating “Hispanic drug traffickers,” 

and that “they’re very modest living” because “they send the 

majority if not all of the proceeds back to their native 

countries.” J.A. 270. 

Defense counsel objected. Asked to explain the relevance 

of Orellano’s testimony, the government said that it rebutted 

the defense’s implied argument “that it would be impossible for 

the defendant to have dealt these large amounts of cocaine and 

taken in this large amount of money because he’s living in 

relatively low level conditions.” J.A. 271. Defense counsel 

responded that Orellano had not been qualified as an expert. 

 4 When Garcia-Lagunas and Hernandez were placed in a cell 

together after their arrests, Garcia-Lagunas called Hernandez a 

“chiva,” a “term supposedly . . . for the people who collaborate 

with the law.” J.A. 305-06.
11

After confirming that Orellano’s testimony was based on his 

training and experience, the district court overruled the 

objection.5 Orellano repeated the testimony in slightly 

different terms: “It is consistent with Hispanic drug 

traffickers not to misuse the drug proceeds and to send or get 

rid of the proceeds, send them to their native countries or 

their next step over them in the drug trafficking organization.” 

J.A. 274. The government referred to this testimony during its 

closing argument to explain Garcia-Lagunas’s lack of an 

“extravagant lifestyle.” J.A. 520.

Several other officers testified for the government. 

Relevant to this appeal, Detective Matthew Taylor testified that 

based on his training and experience, the type of baggies he 

found in the kitchen at 353 Westcott were “mostly used for the 

repackaging and sale of narcotics.” J.A. 411. Detective Stein 

testified, based on his training and experience, that the 

vacuum-sealed bag containing the 800 grams of white powder was 

of the type frequently used by drug traffickers “to seal in the 

 5 After defense counsel renewed his objection, the court at 

a bench conference stated: “I’m not quite sure what the 

relevance of all of this is, but I do know, based on my 

experience, that most Latins send money home whether they’re 

drug dealers or not.” J.A. 273. Garcia-Lagunas contends that 

the court’s statement emboldened the government to engage in 

ethnic stereotyping. The court’s comment is puzzling at best, 

but we do not address it further because there is no evidence 

that the jury heard it.
12

odor of the narcotics so that they’re harder to be detected 

[and] easier to transport.” J.A. 437-38.

Through cross-examination and closing argument, GarciaLagunas presented two defense theories: first, that even if he 

sold drugs to the dealer witnesses, he did so in a simple 

“buyer-seller” relationship, and the evidence was insufficient 

to show that he was involved in a distribution conspiracy with 

those dealers;6 second, that he was too poor to have dealt in the 

large quantities that the government’s witnesses attributed to 

him.

The court chose (without objection from the parties) not to 

submit a special verdict sheet for the jury to indicate the 

amount of cocaine Garcia-Lagunas was responsible for within the 

conspiracy, finding it sufficient that the verdict form 

specifically referenced the indictment. The jury found GarciaLagunas guilty of conspiring to distribute or possess with 

intent to distribute 500 grams or more of cocaine. After the 

verdict, the district court sua sponte directed the parties to 

brief whether it erred by failing to instruct the jury to find 

the amount of cocaine individually attributable to GarciaLagunas, as required by United States v. Collins, 415 F.3d 304 

 6 “A mere buyer-seller relationship is insufficient to 

support a conspiracy conviction.” United States v. Howard, 773 

F.3d 519, 525 (4th Cir. 2014).
13

(4th Cir. 2005). However, it ultimately ruled that no Collins

error had occurred.

The presentence investigation report (the “PSR”) found 

Garcia-Lagunas responsible for 39 kilograms of cocaine and 16 

grams of crack cocaine, resulting in a base offense level of 34. 

The PSR added three two-level enhancements for possession of a 

dangerous weapon, threatening or directing the use of violence, 

and obstruction of justice, resulting in a total offense level 

of 40. The PSR also found Garcia-Lagunas had a criminal history 

score of zero, putting him in criminal history category I. 

Garcia-Lagunas objected to the drug weight calculation and the 

three enhancements.

The district court overruled Garcia-Lagunas’s objections to 

the drug weight calculation and the dangerous weapon 

enhancement, but sustained the objections to the other two 

enhancements, resulting in an offense level of 36. An offense 

level of 36 coupled with criminal history category I yielded a 

Guidelines range of 188 to 235 months’ imprisonment. The 

government stated, however, that it would agree to a “two level 

downward variance based upon the Attorney General’s recent 

directive that is related to the proposed amendment to the 

Guidelines, specifically the drug quantity base offense levels 

in the Guideline that may end up being a two level drop for each 

drug quantity,” provided that Garcia-Lagunas agreed not to later 
14

seek a variance for the same reason. J.A. 678-79. GarciaLagunas so agreed, and the district court stated its intent “to 

go down the two levels.” J.A. 679-80. 

The resulting offense level of 34 yielded a Guidelines 

range of 151 to 188 months’ imprisonment. The district court 

then sentenced Garcia-Lagunas to 188 months’ imprisonment while 

stating it was “impos[ing] a sentence at the low end of the 

range because this constitutes the defendant’s first felony 

conviction.” J.A. 680-81, 683. The court also sentenced 

Garcia-Lagunas to a consecutive sentence of 24 months’ 

imprisonment for his unlawful reentry conviction. Only after 

announcing the sentence did the court allow Garcia-Lagunas to 

allocute.

II.

Garcia-Lagunas argues that the government’s improper use of 

an ethnic stereotype to rebut Garcia-Lagunas’s defense theory 

that he was too poor to be a major drug dealer was 

constitutional error and was not harmless beyond a reasonable 

doubt. We will assume, as the government conceded, see Oral 

Argument at 20:38–20:51, United States v. Garcia–Lagunas, No. 

14–4370 (Sept. 17, 2015), http://coop.ca4.uscourts.gov/OAarchive

/mp3/14-4370-20150917.mp3, that the use of the stereotype was 

constitutional error, and proceed directly to the question of 
15

whether the government has shown that the error was harmless 

beyond a reasonable doubt. See, e.g., United States v. Evans, 

216 F.3d 80, 89-90 (D.C. Cir. 2000) (declining to decide whether 

error was constitutional where the error was harmless under 

either constitutional or nonconstitutional standard).

A.

For all constitutional errors that do not “‘defy analysis 

by “harmless error” standards[,]’ . . . ‘reviewing courts must 

apply [Federal Rule of Criminal Procedure] Rule 52(a)’s 

harmless-error analysis and must disregar[d] errors that are 

harmless beyond a reasonable doubt.’”7 United States v. Lovern, 

293 F.3d 695, 700 (4th Cir. 2002) (third alteration in original)

(quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991) and 

Neder v. United States, 527 U.S. 1, 7 (1999)). The essential 

question is therefore: “Is it clear beyond a reasonable doubt 

that a rational jury would have found the defendant guilty 

absent the error?” Neder, 527 U.S. at 18; see also United 

States v. Camacho, 955 F.2d 950, 955 (4th Cir. 1992) (“The 

decision below should only stand if, viewing the entire record, 

it is clear beyond a reasonable doubt that the jury would have 

 7 Garcia-Lagunas does not argue that this constitutional 

error is in the “limited class of fundamental constitutional 

errors” that require automatic reversal without a harmlessness 

analysis. United States v. Lovern, 293 F.3d 695, 700 (4th Cir. 

2002).
16

returned a guilty verdict absent the allegedly harmless 

error.”). The burden rests on the government, the beneficiary 

of the error, to show harmlessness. See Chapman v. California, 

386 U.S. 18, 24 (1967). We have “the power to review the record 

de novo in order to determine an error’s harmlessness.” 

Fulminante, 499 U.S. at 295.

Importantly, “holding the error harmless does not 

‘reflec[t] a denigration of the constitutional rights 

involved,’” Neder, 527 U.S. at 19 (alteration in original)

(quoting Rose v. Clark, 478 U.S. 570, 577 (1986)), and we 

emphasize that “[i]njection of a defendant’s ethnicity into a 

trial as evidence of criminal behavior is self-evidently 

improper and prejudicial,” United States v. Cruz, 981 F.2d 659, 

664 (2d Cir. 1992); see also United States v. Runyon, 707 F.3d 

475, 494 (4th Cir. 2013) (“The Supreme Court has long made clear 

that statements that are capable of inflaming jurors’ racial or 

ethnic prejudices ‘degrade the administration of justice.’”

(quoting Battle v. United States, 209 U.S. 36, 39 (1908))).

In this case, the government’s reliance on an ethnic

stereotype to explain Garcia-Lagunas’s living conditions was 

particularly inapt given its failure to show that Garcia-Lagunas 

was sending significant money anywhere. The record shows that 

since 1988, Garcia–Lagunas has spent the great majority of his 

time in the United States. While he does have two children 
17

living in Mexico, he has two other children living in this 

country, and at the time of his arrest his parents lived next 

door to him. Nor did the government present any evidence that 

Garcia-Lagunas was sending proceeds to the “next step over [him] 

in the drug trafficking organization.” J.A. 274. Thus, the 

government’s only “evidence” that Garcia–Lagunas was remitting 

money was the generalization about Hispanic drug traffickers.

That said, the harmless error rule “serve[s] a very useful 

purpose insofar as [it] block[s] setting aside convictions” 

where the constitutional error had “little, if any, likelihood 

of having changed the result of the trial.” Neder, 527 U.S. at 

19 (alterations in original) (quoting Chapman, 386 U.S. at 22). 

The rule thus “recognizes the principle that the central purpose 

of a criminal trial is to decide the factual question of the 

defendant’s guilt or innocence, . . . and promotes public 

respect for the criminal process by focusing on the underlying 

fairness of the trial.” Id. at 18 (alteration in original) 

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

B.

In this case, Garcia-Lagunas was found guilty of coming “to 

a mutual understanding to try to accomplish the . . . plan of 

distributing or possessing with intent to distribute 500 grams 

or more of cocaine,” and “knowingly bec[oming] a member of that 

conspiracy.” J.A. 554. We are satisfied beyond a reasonable 
18

doubt that—even without the government’s improper use of an 

ethnic stereotype—a rational jury still would have arrived at 

that verdict.

1.

We begin first with the quantity of the drugs involved in 

the conspiracy. At trial, the government presented evidence 

that Garcia-Lagunas sold far greater amounts of cocaine than the 

500 grams charged in the indictment. The testimony of Reed, 

Jacobs, Brewington, and Locklear attributed to Garcia-Lagunas 

the sale of nearly 40 kilograms—40,000 grams—of cocaine. Thus, 

the jury need only have credited 1.3% of that quantity to

satisfy the government’s burden. 

The fact that Reed, Jacobs, Brewington, and Locklear were

known drug dealers each testifying pursuant to a plea agreement 

certainly casts some doubt on their credibility. See United 

States v. Garcia, 752 F.3d 382, 397 (4th Cir. 2014) (noting that 

a witness’s testimony for the government “was put into 

question . . . not least because his testimony was in return for 

sentencing considerations by the Government in a [state] 

prosecution in which he faced a maximum potential sentence of 

life in prison and . . . deportation”). But see id. (“Of 

course, the jury was unquestionably entitled to credit the 

testimony of [that government witness].”). Here, however, the 

testimony of three of the dealers was bolstered by phone records 
19

showing an extraordinary volume of phone calls (in a compressed 

period of time) between them and Garcia-Lagunas.8 See, e.g., 

J.A. 338 (Jacobs testifying that he and Garcia-Lagunas exchanged 

“somewhere around th[e] range” of 56 calls from February 10th to 

22nd, 2012); cf. United States v. Johnson, 617 F.3d 286, 298 

(4th Cir. 2010) (finding error not harmless where codefendant 

drug dealers’ testimony was inconsistent, there was otherwise

“scant evidence,” and defendant “called seven witnesses to 

testify about his legitimate source of income”).

In addition, circumstantial physical evidence also pointed 

to Garcia-Lagunas’s guilt. See United States v. Holness, 706 

F.3d 579, 598-600 (4th Cir. 2013) (finding error harmless beyond 

a reasonable doubt even where “the government’s case was 

predominantly circumstantial”). Garcia-Lagunas’s room had a 

large scale in it that the jury heard was of the type commonly

used by dealers to weigh drugs in large quantities, as well as a 

smaller scale typically used to weigh user amounts of drugs, 

which had what appeared to be cocaine and crack cocaine residue 

on it.

 8 The phone records were largely irrelevant to Locklear’s 

testimony, as the subpoenaed records covered February 9th to 

23rd, 2012, and Locklear testified that he stopped purchasing 

from Garcia-Lagunas following his arrest in March 2011.
20

In the same room, officers found a bulletproof vest that 

Detective Collins testified was “another tool of the drug 

trade.” J.A. 106. Hernandez told the jury that the vest and 

the large scale belonged to Garcia-Lagunas. Inside a storage 

container in Garcia-Lagunas’s room was 800 grams of a white 

powdery substance, packed in a vacuum-sealed bag and again in a 

garbage bag. The substance field-tested positive for cocaine, 

though the readings were “light.” J.A. 108. Subsequent SBI 

test results showed that the powder did not contain a controlled 

substance but Collins explained that such a result was possible 

even if there were cocaine present, given the techniques used in 

the lab, if the cocaine had had a significant amount of cutting 

agent added to it. The government’s evidence showed that 

Garcia-Lagunas was “known for adding too much additive into 

cocaine which would produce a very small amount of cocaine.” 

J.A. 111; see also J.A. 363 (Brewington testifying that when he 

tried to resell cocaine he purchased from Garcia-Lagunas, a 

customer complained that “[i]t wouldn’t cook properly”).

Other tools of the drug trade were found in the trailer’s 

main room. Police found a .32 caliber revolver in a purple 

Crown Royal bag in a cabinet over the stove, which Jacobs had 

given to Garcia-Lagunas that day. There were several phones on 
21

the kitchen table when Collins entered the trailer,9 and Collins 

testified that he had seen dealers who dealt in large quantities 

with four to six different phones, because “it’s harder for a 

law enforcement officer to keep track of several different 

phones at a time.” J.A. 85. In addition, Reed testified that 

he had used three to four different phone numbers to reach

Garcia-Lagunas. Finally, officers also found one-inch-by-oneinch plastic baggies on top of the kitchen cabinets and in a box 

on top of the refrigerator.

The circumstances of Garcia-Lagunas’s arrest also

demonstrate that he was a drug dealer. Jacobs testified that 

when he had previously bought cocaine from Garcia-Lagunas at the 

Westcott trailer, he bought between a quarter of an ounce and 

three-quarters of an ounce, and that on the day of the arrest, 

he was there to purchase three-quarters of an ounce and had 

given Garcia-Lagunas $600 for it. Hernandez saw Jacobs give 

Garcia-Lagunas “some money . . . and a gun,” J.A. 298, and saw 

Garcia-Lagunas count the cash before pocketing it. And when the 

officers arrived, Garcia-Lagunas was found with $600 in cash. 

 9 The record does not explain where the phones were when 

Sergeant Johnson and Detective Stein first entered the trailer, 

except for the phone that Garcia-Lagunas removed from his 

pocket. 
22

With respect to the conspiracy element of the offense,

“[g]iven the ‘clandestine and covert’ nature of conspiracies, 

the government can prove the existence of a conspiracy by 

circumstantial evidence alone.” United States v. Howard, 773 

F.3d 519, 525 (4th Cir. 2014) (quoting United States v. Burgos, 

94 F.3d 849, 857 (4th Cir. 1996) (en banc)). While “[a] mere 

buyer-seller relationship is insufficient to support a 

conspiracy conviction,” evidence that such a buyer-seller 

relationship is continuing and includes repeated transactions 

“can support the finding that there was a conspiracy, especially 

when coupled with substantial quantities of drugs.” Id. at 525-

26 (quoting United States v. Reid, 523 F.3d 310, 317 (4th Cir. 

2008)).

Here, the most direct evidence that Garcia-Lagunas shared a 

“mutual understanding” to distribute cocaine was Brewington’s

testimony that he discussed the amount of cocaine he could 

“move” with Garcia-Lagunas, so that Garcia-Lagunas “would lower 

the price,” J.A. 361-62, which indicates that Garcia-Lagunas 

knew Brewington was a reseller and not buying the drugs for his 

own use. In addition, Reed and Locklear each testified that 

they were buying from Garcia-Lagunas more than twice a week and 

that they were reselling the drugs that they bought from GarciaLagunas. See Howard, 773 F.3d at 526 (noting that defendant 

selling to “frequent customers who often resold the drugs” 
23

supported a conspiracy conviction). More circumstantially, the 

high quantities and frequency of transactions attributed to 

Garcia-Lagunas support the government’s contention that he knew 

his buyers were redistributing the drugs. 

2.

On this record, we are satisfied that the constitutional 

error was harmless beyond a reasonable doubt. Put another way, 

we conclude “that the district court’s judgment, entered on the 

jury’s guilty verdict, could not have been substantially swayed” 

by the improperly admitted evidence. United States v. Holness, 

706 F.3d 579, 600 (4th Cir. 2013). 

Garcia-Lagunas’s reliance on our decision in United States 

v. Johnson, 617 F.3d 286 (4th Cir. 2010), to argue otherwise 

misses the mark. There, we held that a nonconstitutional error 

in admitting police testimony regarding the meaning of 

wiretapped phone calls was not harmless in a drug conspiracy 

case where “[n]o drugs were found, no financial evidence was 

presented and there was no surveillance that captured 

[defendant] engaging in illicit activity, despite the extensive 

investigation mounted by the local DEA,” and where the 

erroneously admitted testimony lent “critical credibility 

bolstering the government’s reliance on the testimony of three 

convicted drug dealers.” Id. at 295-96.
24

We emphasized there, however, that the testifying drug 

dealers “often contradicted themselves,” id. at 295, and the 

contradictions were highlighted by a DEA agent who originally 

testified as a government witness but was called by the defense 

“to testify regarding his interview with [one of the witnesses] 

and the inconsistencies between the information he collected in 

the interview and [that witness’s] testimony at trial,” id. at 

291 n.5.

In addition, Johnson presented a much stronger defense than 

Garcia-Lagunas did, testifying that he had never been involved 

with drugs, had no criminal record, was a former Marine and 

State Trooper, and had legitimate sources of income. Id. at 

291. He also called several witnesses to testify to those 

legitimate sources of income, and several witnesses who 

testified about his lifestyle and character, including that he 

had never been involved with drugs. Id. at 291-92, 298.

Finally, the erroneously admitted testimony in Johnson was 

central to the government’s case: A government witness testified 

that the language Johnson and a non-testifying codefendant used 

in a phone call was code related to drug dealing. With the 

contradictory testimony of the codefendant dealers, this was 

essentially the entirety of the government’s case against 

Johnson. Id. at 296 (“Had Agent Smith’s testimony been 

excluded, the jury would have weighed the testimony of Johnson, 
25

a veteran and former law enforcement officer with no criminal 

record, against that of a convicted drug dealer and two codefendants with long rap sheets.”). 

In short, Johnson and this case are poles apart. And 

unlike many of the cases that have found that an evidentiary 

error was not harmless (Johnson included), what Garcia-Lagunas 

did with his earnings from the drug trade was not an element of 

the prosecution’s case against him. Cf. Satterwhite v. Texas, 

486 U.S. 249, 258-59 (1988) (finding psychiatrist’s improper 

testimony not harmless beyond a reasonable doubt where jury had 

to find “future dangerousness” beyond a reasonable doubt to 

sentence defendant to death, he was the only psychiatrist to 

testify at sentencing, and he “stated unequivocally that, in his 

expert opinion” the defendant would “‘present a continuing 

threat to society by continuing acts of violence’” (quoting the 

record)); United States v. Williams, 632 F.3d 129, 134 (4th Cir. 

2011) (finding improperly admitted stipulation not harmless 

beyond a reasonable doubt because it “essentially established an 

element of the crime”). 

Moreover, although the government repeated the offensive 

stereotype in its closing argument, the improper evidence did 

not pervade the trial. Cf. Garcia, 752 F.3d at 398 (finding 

improperly admitted testimony about the meaning of defendant’s 

phone calls not harmless where the testifying agent testified 
26

six of the twelve days of the trial, was recalled to the stand 

eighteen times, and “[f]rom the beginning of the trial to the 

end of the trial, the calls and the meaning of the words used in 

those calls were the centerpiece of the [g]overnment’s case”). 

Finally, the challenged testimony did not open the door to the 

admission of further damaging evidence that would otherwise not 

have come in. Cf. Fulminante, 499 U.S. at 300 (finding improper 

admission of duplicative confession not harmless beyond a 

reasonable doubt where it “led to the admission of other 

evidence prejudicial to” the defendant).

In short, whatever questions Garcia-Lagunas’s living 

conditions may have raised, it is beyond clear to us that a 

rational jury would have nonetheless convicted him of the drug 

conspiracy offense, even had they heard nothing of Orellano’s 

improper testimony. Accordingly, we hold that the evidentiary 

error was harmless beyond a reasonable doubt.10

 10 Garcia-Lagunas also complains that Detective Orellano 

should not have been permitted to testify to the practices of 

Hispanic drug traffickers because he was not testifying as an 

expert. Having assumed that Orellano’s testimony violated 

Garcia-Lagunas’s constitutional rights, but having found it 

harmless beyond a reasonable doubt, we do not address this 

separate objection.
27

III.

Garcia-Lagunas also contends that (1) the admission of 

evidence regarding Garcia-Lagunas’s immigration status and use 

of an interpreter was plain error, (2) the district court 

improperly allowed Collins to testify as an expert witness in 

spite of the government’s failure to comply with expert 

disclosure requirements, and (3) the district court allowed 

improper opinion testimony from several of the government’s lay 

witnesses.

We review these evidentiary challenges for abuse of 

discretion. Johnson, 617 F.3d at 292. Where Garcia-Lagunas 

objected at trial, we review for harmless error, leaving the 

judgment intact where we are able to conclude, “after pondering 

all that happened without stripping the erroneous action from 

the whole, that the judgment was not substantially swayed by the 

error.” Id. (quoting United States v. Brooks, 111 F.3d 365, 371 

(4th Cir. 1997)).

Where Garcia-Lagunas failed to timely object, we review for 

plain error. United States v. Keita, 742 F.3d 184, 189 (4th 

Cir. 2014). To make out a plain error, “the defendant must show 

‘there was an error, the error was plain, and the error affected 

[the defendant’s] substantial rights.’” Id. (alteration in 

original) (quoting United States v. Boykin, 669 F.3d 467, 470

(4th Cir. 2012)).
28

A.

Garcia-Lagunas contends that the district court erred in 

admitting evidence regarding his immigration status and use of 

an interpreter at trial. Because the defense failed to timely 

object at trial, we review for plain error.

Evidence of a crime or wrong is not admissible to prove a 

defendant’s bad character in order to show that he acted in 

accordance with that character. Fed. R. Evid. 404(b)(1). Such 

evidence may be admissible, however, “for another purpose, such 

as proving . . . identity.” Id. 404(b)(2). Under Rule 404(b), 

we use a four-part test to assess admissibility: “(1) the prioract evidence must be relevant to an issue other than character, 

such as intent; (2) it must be necessary to prove an element of 

the crime charged; (3) it must be reliable; and (4) . . . its 

probative value must not be substantially outweighed by its 

prejudicial nature.” United States v. Lespier, 725 F.3d 437, 

448 (4th Cir. 2013) (alteration in original) (quoting United 

States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)).

1.

The government presented evidence that Garcia-Lagunas was 

an alien illegally in the United States. The government argues 

that this was relevant to Garcia-Lagunas’s identity. At trial, 

the officers explained that “they learned that a Mexican man 

going by the name ‘Alex’ was a significant source of cocaine in 
29

Cumberland and Robeson Counties.” Appellee’s Br. at 42. 

According to the government, Garcia-Lagunas’s immigration status 

was thereby relevant as evidence that he was “Alex.” We do not 

agree.

Collins testified solely that “[t]he defendant was 

previously deported from the United States and is an alien 

illegally in the United States right now.” J.A. 150. This 

testimony has almost no probative value concerning GarciaLagunas’s Mexican nationality; it establishes only that he is 

not a United States citizen. We reject the notion that an 

individual’s status as an illegal alien, without more, creates 

an inference of Mexican nationality. And, importantly, the 

government could easily have shown that Garcia-Lagunas was from 

Mexico without highlighting his immigration status. See Fed. R. 

Evid. 404(b) advisory committee’s note (“The determination must 

be made whether the danger of undue prejudice outweighs the 

probative value of the evidence in view of the availability of 

other means of proof . . . .”). Because the probative value of 

Garcia-Lagunas’s immigration status, especially without 

reference to his country of citizenship, was so low, we find 

that it was substantially outweighed by its prejudicial nature. 

It was not, therefore, permissible 404(b) evidence. See

Lespier, 725 F.3d at 448.
30

Garcia-Lagunas’s evidentiary challenge, however, fails on 

plain error review. “To be ‘plain,’ an error must be ‘clear’ or 

‘obvious’ . . . .” United States v. Ramirez-Castillo, 748 F.3d 

205, 215 (4th Cir. 2014) (quoting United States v. Olano, 507 

U.S. 725, 734 (1993)). Even if the error here was plain, we 

“may correct the error” only if it also “affect[s] substantial 

rights.” Olano, 507 U.S. at 732 (alteration in original) 

(emphasis omitted). An error affects substantial rights “in 

most cases” if it “affected the outcome of the district court 

proceedings.” Ramirez-Castillo, 748 F.3d at 215 (quoting Olano, 

507 U.S. at 734).

We need not address whether the improper admission of 

Garcia-Lagunas’s immigration status was plain because we find 

that it did not affect the outcome of the trial. As we have 

discussed, the jury had before it substantial evidence of 

Garcia-Lagunas’s participation in a conspiracy to distribute 

cocaine, and his immigration status was not referenced again 

after Collins’s testimony. Thus, we find no plain error on this 

record.

2.

Garcia-Lagunas also challenges the government’s references 

to his use of an interpreter at trial, arguing that they were 

intended to paint him as a “faker” for relying on an interpreter 

when he did not need one. Appellant’s Br. at 36.
31

The government’s witnesses told the jury that they spoke to 

Garcia-Lagunas in English when they dealt with him, and some of 

those witnesses could only speak English. To prove that GarciaLagunas was the man who dealt with these witnesses, the 

government had good reason to clarify to the jury that he could 

in fact speak English, in spite of the impression his use of an 

interpreter may have created. We therefore find that the 

government’s references to Garcia-Lagunas’s interpreter were 

relevant to identity, and their probative value was not 

substantially outweighed by any threat of prejudice. See

Lespier, 725 F.3d at 448. Accordingly, we find no error.

B.

1.

Garcia-Lagunas next contends that the district court erred 

in allowing Detective Collins to testify as an expert witness 

where the government failed to comply with the expert disclosure 

requirements. Because the defense failed to timely object at 

trial, we again review for plain error.

Federal Rule of Criminal Procedure 16(a)(1)(G) requires the 

government, on the defendant’s request, to provide the defendant 

a written summary of any expert testimony that it intends to 

use. That summary “must describe the witness’s opinions, the 

bases and reasons for those opinions, and the witness’s 

qualifications.” Fed. R. Crim. P. 16(a)(1)(G). “Rule 
32

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. Smith, 701 F.3d 1002, 1007 (4th Cir. 2012) (quoting 

Fed. R. Crim. P. 16(a)(1)(G) advisory committee’s note to 1993 

amendment).

Garcia-Lagunas points out that the government’s notice that 

Collins would “testify about drug trafficking investigations and 

methods utilized by drug traffickers to operate and protect 

their drug business,” J.A. 32, failed to state Collins’s 

qualifications, opinions, or “the bases and reasons for his 

opinions.” Appellant’s Br. at 38.

While Garcia-Lagunas has a viable argument that the 

government’s short and summary notice failed to meet the 

requirements of Rule 16(a)(1)(G), we need not decide whether the 

district court’s admission of the testimony was plain error, as 

Garcia-Lagunas cannot establish that any such error affected his 

substantial rights.

On that score, while Garcia-Lagunas claims that Collins’s 

testimony was “completely unexpected,” id. at 39, he fails to 

point to any specific portion of the testimony that took him by 

surprise. Collins’s testimony largely served to provide the 

jury the contextual background of how drug trafficking 
33

organizations function and explain the significance of certain 

physical evidence. Given the limited scope of the physical 

evidence, Garcia-Lagunas surely anticipated the line of 

questioning regarding the negative SBI test results.

Accordingly, Garcia-Lagunas cannot establish that more specific 

notice of the scope of Collins’s testimony would have so changed 

the defense’s ability to cross-examine him that the trial would 

have come out differently. See United States v. Jones, 739 F.3d 

364, 370 (7th Cir. 2014) (“We need not consider whether the 

error [of admitting expert testimony without notice] could be 

considered plain, because [the defendant] cannot demonstrate 

that he would not have been convicted absent the error, or that 

the introduction of that testimony without complying with the 

expert testimony requirements resulted in a miscarriage of 

justice.”).

2.

Garcia-Lagunas also contends that Collins’s testimony 

explaining how the white powder might have tested positive in 

the field but negative in the laboratory for any controlled 

substance was improper lay opinion testimony, as Collins was not 

an expert in SBI laboratory techniques. Counsel objected at 

trial; therefore we review for harmless error.

After defense counsel’s objection, the government elicited 

testimony from Collins demonstrating his familiarity with the 
34

methods used by the SBI in its laboratory tests. In particular, 

he testified that he knew from his training and experience that 

they would test only a portion of a controlled substance. This 

foundation testimony adequately demonstrated Collins’s 

competence to testify on this issue.11

IV.

Garcia-Lagunas next challenges his sentence. “We review a 

criminal sentence for procedural and substantive reasonableness 

under a deferential abuse-of-discretion standard.” United 

States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014) (citing 

Gall v. United States, 552 U.S. 38, 51 (2007)). First, we must 

“ensure that the district court committed no significant 

procedural error, such as failing to calculate (or improperly 

calculating) the Guidelines range.” Gall, 552 U.S. at 51. If 

the sentence is procedurally sound, we then move on to “consider 

the substantive reasonableness of the sentence imposed under an 

abuse-of-discretion standard.” Id. Because Garcia-Lagunas did 

not object to any of the alleged sentencing errors, we review 

 11 Garcia-Lagunas also contends that the district court 

erred in admitting lay opinion testimony from Detectives Taylor 

and Stein concerning the use of small plastic baggies and 

vacuum-sealed bags in drug trafficking. Because Garcia-Lagunas 

did not object at trial, we review for plain error. GarciaLagunas cannot meet that high bar. Given the weight of the 

evidence against him, we are confident that the complained-of 

testimony did not affect the outcome of the proceeding.
35

for plain error. United States v. Lynn, 592 F.3d 572, 576–77 

(4th Cir. 2010).

A.

Garcia-Lagunas first challenges the district court’s 

determination that it did not commit a Collins error in failing 

to instruct the jury to determine the quantity of cocaine 

Garcia-Lagunas was responsible for within the conspiracy.

For drug offenses, 21 U.S.C. § 841(b) “sets forth a 

graduated penalty scheme based on the quantity of drugs 

attributable to the defendant.” United States v. Foster, 507 

F.3d 233, 250 (4th Cir. 2007). The statute imposes mandatory 

minimum and maximum penalties when a defendant is responsible 

for a threshold quantity of drugs. Here, Garcia-Lagunas was 

convicted of a conspiracy to distribute 500 grams or more of 

cocaine. Under § 841(b)(1)(B), Garcia-Lagunas was subject to a 

sentence of no less than five and no more than 40 years’ 

imprisonment.

However, in United States v. Collins, we held that “an 

individual defendant, found guilty of conspiracy to violate

§ 841(a), [should not] be sentenced under § 841(b) by 

considering the amount of narcotics distributed by the entire 

conspiracy,” 415 F.3d 304, 312 (4th Cir. 2005) (emphasis 

omitted), but rather “the jury must determine what amount of 

cocaine base was attributable to [each defendant],” id. at 314.
36

The district court, relying on United States v. Williams, 

439 F. App’x 254 (4th Cir. 2011) (per curiam), found that it did 

not need to submit this question to the jury, as “there [was] no 

uncertainty regarding the amount of cocaine the defendant 

distributed and no co-conspirators for the jury to consider,” 

and therefore “the drug quantity charged in the indictment can 

serve as the statutory sentencing threshold under § 841(b).” 

J.A. 639.

This was not plain error. Although Williams was 

unpublished and therefore not precedential, it suggests that 

even if the district court erred, such error was not plain. See

Williams, 439 F. App’x at 257; see also United States v. Hughes, 

401 F.3d 540, 547 (4th Cir. 2005) (“An error is plain ‘where the 

law at the time of trial was settled and clearly contrary to the 

law at the time of appeal.’” (quoting Johnson v. United States, 

520 U.S. 461, 468 (1997))). In addition, Garcia-Lagunas cannot 

show that any such error affected his substantial rights. He 

was sentenced under 21 U.S.C. § 841(b)(1)(B), which has a 

mandatory minimum of five years’ imprisonment. Had he instead 

been sentenced under the more lenient § 841(b)(1)(C), he would 

have been subject to a mandatory minimum of three years’ 

supervised release and a mandatory maximum of twenty years’ 

imprisonment.
37

There is no indication that the district court was 

inclined, in the absence of a five-year mandatory minimum, to 

give Garcia-Lagunas a sentence of less than five years’ 

imprisonment. Nor was Garcia-Lagunas’s sentence above the 

twenty year mandatory maximum that would have applied under the 

more lenient subsection. Garcia-Lagunas therefore fails to 

establish that there was plain error or that such error affected 

his substantial rights.

B.

Finally, Garcia-Lagunas argues that the district court 

erred procedurally when it calculated his offense level as 36. 

We agree, and also find that the error was plain and 

substantially affected Garcia-Lagunas’s rights.

At sentencing, the district court announced that GarciaLagunas’s total offense level was 36 after sustaining two of his 

objections to the PSR’s calculation. The government responded 

that it would not object to a downward departure of two levels 

to reflect upcoming amendments to the Guidelines, and the court 

agreed to go down those two levels. Thus, Garcia-Lagunas’s 

total offense level should have been 34, which would have 

yielded a Guidelines range of 151 to 188 months’ imprisonment. 

While the 188 month sentence the court imposed was within this 

range, the court specifically stated that it was “impos[ing] a 

sentence at the low end of the range.” J.A. 683. Additionally, 
38

in its “Statement of Reasons” form, the court scored GarciaLagunas’s total offense level at 36, noting that it sustained 

one of Garcia-Lagunas’s objections to the PSR and used the 

anticipated Guidelines amendment reduction, but not 

acknowledging that it sustained a second objection. Thus, the 

court’s error in sentencing Garcia-Lagunas under offense level 

36 instead of 34 was plain. See United States v. Ford, 88 F.3d 

1350, 1356 (4th Cir. 1996) (finding plain and prejudicial error 

where the erroneous addition of points to the defendant’s 

criminal history score caused the defendant “to be sentenced at 

a more severe guideline range”).

We also find that the error significantly affected GarciaLagunas’s substantial rights. The district court made clear 

that it intended to sentence Garcia-Lagunas at the low end of 

the range to reflect his lack of criminal history. Thus, had it 

consulted the correct range, there is good reason to believe the 

court would have sentenced Garcia-Lagunas to 151, rather than 

188, months’ imprisonment.

After our original opinion in this case, the Supreme Court 

in Molina-Martinez v. United States, 136 S. Ct. 1338, 1347

(2016), held that “in the ordinary case a defendant will satisfy 

his burden to show prejudice by pointing to the application of 

an incorrect, higher Guidelines range and the sentence he 

received thereunder.” In that case, as here, the district court 
39

sentenced the defendant under an incorrect Guidelines range, but 

gave him the lowest sentence under that incorrect range, which

also fell within the correct Guidelines range. The Court held 

that despite the district court’s failure to explain the 

sentence, “the [d]istrict [c]ourt’s selection of a sentence at 

the bottom of the range, . . . ‘evinced an intention . . . to 

give the minimum recommended by the Guidelines.’” Id. at 1347-

48 (alteration in original) (quoting Brief for the United States

at 18, Molina-Martinez, 136 S. Ct. 1338 (No. 13-40324)). Here, 

the sentencing court made this intention explicit, and thus 

“there is at least a reasonable probability that the [d]istrict 

[c]ourt would have imposed a different sentence” had it 

sentenced Garcia-Lagunas under the correct Guidelines range. 

Id. Because “[t]hat probability is all that is needed to 

establish an effect on substantial rights,” Garcia-Lagunas has 

established that effect. Id. at 1349.

And though we need not always correct plain error, Keita, 

742 F.3d at 189, we do so here. Fairness dictates that GarciaLagunas be sentenced under the correct Guidelines range, 

particularly when doing so could potentially lead to a sentence 

reduction. See Ford, 88 F.3d at 1356 (“[S]entencing a defendant 

at the wrong guideline range seriously affects the fairness, 

integrity, and public reputation of the judicial proceedings.”). 

“Three years of a man’s life is not a trifling thing.” Id. 
40

V.

We affirm Garcia-Lagunas’s conviction. The district court, 

however, plainly erred in calculating Garcia-Lagunas’s 

Guidelines range, and the error affected his substantial rights. 

Accordingly, we vacate the sentence and remand for resentencing.

AFFIRMED IN PART, 

VACATED IN PART,

AND REMANDED
41

DAVIS, Senior Circuit Judge, dissenting:

On our panel rehearing, my friends in the majority assume 

for the sake of argument that the improper and prejudicial 

testimony elicited and relied upon by the Government to convict 

Appellant Alejandro Garcia-Lagunas amounts to constitutional 

error. There is no need for assumptions; this is unequivocally, 

and admittedly, a case of constitutional error. Moreover, the 

majority concludes that the Government’s error, as compounded by 

the district court’s failure to correct it, even if of a 

constitutional magnitude, was harmless beyond a reasonable 

doubt. I, however, remain compelled to conclude that the 

Government did not carry its burden of proving beyond a 

reasonable doubt that its clearly unconstitutional use of a 

blatant ethnic generalization did not contribute to the jury’s 

verdict. Accordingly, I respectfully dissent from the 

majority’s decision to refuse, once again, to order a new trial.

I.

During trial, Garcia-Lagunas’s counsel sought to show that 

Garcia-Lagunas was, at most, a common drug abuser and not a 

sophisticated drug distributor who trafficked large volumes of 

cocaine as alleged in the indictment. To make this distinction, 

counsel strategically questioned Government witnesses on crossexamination about Garcia-Lagunas’s meager lifestyle, a lifestyle 

devoid of the flamboyant trappings derived from drug proceeds 
42

that one might expect to surround a high-volume narcotics 

distributor. For example, the cross-examinations of convicted 

drug dealer Ronnie Reed and Detectives Shawn Collins and Pedro 

Orellano tended to establish that Garcia-Lagunas lived a life of 

truly limited means. Reed testified that he never knew GarciaLagunas to have any “fancy things” such as jewelry, firearms, or 

vehicles. J.A. 222. Detectives Collins and Orellano testified 

that, on the evening of his arrest, Garcia-Lagunas was found 

shirtless and shoeless in the “kitchen/living room area” of a 

small trailer at 353 Wescott Drive in which he had recently 

begun renting a room for less than $350 per month. J.A. 103-04, 

315. Detective Collins described the bedroom belonging to 

Garcia-Lagunas as in “disarray” and explained to the jury that 

it looked as though Garcia-Lagunas had yet to unpack since 

moving to the trailer, as his belongings were scattered 

throughout the small room in laundry baskets. J.A. 120. 

Further law-enforcement testimony showed that detectives 

searched the 353 Wescott trailer, as well as three other 

trailers in and around Robeson County, North Carolina, where it 

was alleged that Garcia-Lagunas had previously sold cocaine, and 

not one of the searches uncovered evidence of profits consistent 

with an individual allegedly trafficking hundreds of thousands 

of dollars’ worth of cocaine. In fact, the only items of value 

that the searches uncovered, a .32 caliber revolver and $600 in 
43

U.S. currency, were described as having been brought to the 353 

Wescott trailer the night of Garcia-Lagunas’s arrest by Brian 

Jacobs, allegedly in exchange for three-quarters of an ounce of 

powder cocaine. J.A. 298, 320–21, 342. However, no powder 

cocaine was actually found at that trailer or any other of the 

trailers linked to Garcia-Lagunas.

Testimony revealed that the only substances discovered by 

law enforcement to lab-test positive for the presence of cocaine 

were two baggies containing user amounts of crack cocaine, for 

which Garcia-Lagunas was not charged. J.A. 117, 122, 124, 404. 

Counsel for Garcia-Lagunas provided an explanation for the 

presence of those drugs by questioning the Government witnesses 

about his client’s personal drug use. Three different 

Government witnesses testified that they had observed GarciaLagunas use drugs, J.A. 320, 349, 355, 376, and Jacobs testified 

that, for a number of years, Garcia-Lagunas had actually 

purchased small amounts of cocaine from him for Garcia-Lagunas’s 

personal use, J.A. 354. Further, several detectives explained 

to the jury that, on the night of his arrest, Garcia-Lagunas had 

white powder under his nose, which, together with his dilated 

pupils and erratic movements, suggested that he had ingested 

cocaine immediately before the arrival of the law-enforcement 

officers. J.A. 103–04, 248, 283.
44

To bring home the defense theory of the case, counsel 

emphasized during cross-examination that Garcia-Lagunas’s meager 

lifestyle did not square with the portrait that the Government 

was painting of a sophisticated, large-volume drug trafficker. 

Counsel astutely presented the theory by offering the jury the 

opportunity to contrast Garcia-Lagunas’s lifestyle with that of 

Reed, one of Garcia-Lagunas’s alleged purchasers. Counsel 

questioned Detective Collins and Reed on cross-examination about

Reed’s drug-trafficking operation and the proceeds that Reed had 

amassed during the four years that he sold drugs prior to his 

2012 arrest on federal drug trafficking charges. J.A. 153-55, 

225-30. During searches of Reed’s family home and stash house, 

officers found more than $100,000 in U.S. currency, multiple 

telephones, a 2008 Infiniti, a 2006 Chevy Impala, a 2004 Acura, 

a 2004 BMW, a 2002 Lincoln Navigator, and multiple firearms. 

J.A. 154-55. The officers also found contraband consistent with 

a large-scale drug-trafficking operation, including more than 

180 grams of crack cocaine, more than three-and-a-half kilos of 

powder cocaine, 240 grams of marijuana, money that the 

Fayetteville police department had used to conduct controlled 

buys from Reed, a cocaine press, and a money counter. J.A. 225-

29.

The upshot of all of this, contrary to the majority 

opinion’s one-sided spin on the evidence, is that there were 
45

two, competing narratives before the jury. And it was the 

jury’s call, not the job of the members of this appellate panel, 

to judge the credibility of all of the evidence, weigh it 

accordingly, and reach a fair and impartial verdict in 

accordance with law. 

Ultimately, counsel for Garcia-Lagunas hoped the testimony 

he elicited would prompt the following question from at least 

one juror (because of course, he only needed to garner the 

interest of one juror to raise a possibility of a more 

beneficial outcome than the one he got): how can a man who is 

allegedly responsible for selling hundreds of thousands of 

dollars’ worth of cocaine1 not have on hand any discernable 

direct or indirect proceeds of any kind on the day of his 

arrest, with zero indication from any source that his arrest was 

imminent? Any experienced (and even an inexperienced) Assistant 

United States Attorney prosecuting cases in this Circuit would 

fully expect (and be prepared for) this kind of defense tack on 

this record.

 1 According to the testimony of the four drug dealers 

testifying pursuant to plea agreements, Garcia-Lagunas sold to 

them, in the aggregate, at least 39 kilos of cocaine, with each 

kilo of cocaine valuing approximately $30,000 to $32,000 during 

the relevant time frame. J.A. 205, 208, 239, 340-42, 360-61, 

388. 
46

My friends in the majority may not think much of defense 

theories in general, or of Garcia-Lagunas’s theory in

particular, but that is what it was, fully supported by 

admissible evidence, and well within the realm of plausible 

disputation by a lawyer committed to her Fifth- and SixthAmendment-based obligations to her client.2 As in any 

prosecution, whether for a crime involving the infliction of 

unspeakable violence upon actual victims, or in the prosecution 

of the most plain-vanilla so-called “white collar” offense, and 

any prosecution in between, the defendant in our system is 

entitled to have the jury grapple, if it must, with his defense 

theory, unaided by blatantly foul blows delivered by the 

prosecution, abetted by the trial judge, in the use of racial or 

ethnic entreaties aimed at undermining or dismissing outright 

 2 Recall that the indictment in this case charged a greaterincluded offense of conspiring to distribute or possess with the 

intent to distribute 500 grams or more of cocaine, in violation 

of 21 U.S.C. §§ 841(a), 846. Importantly, therefore, the 

defense theory in this case not only militated in favor of an 

acquittal, but perhaps even more important from the defense 

perspective, it laid the basis for the jury’s consideration of a 

lesser included offense involving a lesser amount of narcotics 

and thus a lower potential sentence. Cf. United States v. 

Hickman, 626 F.3d 756, 763-71 (4th Cir. 2010) (holding that 

evidence was insufficient to support the jury’s guilty verdict 

on the indicted conspiracy involving greater drug amount but 

remanding for resentencing on conspiracy involving lesser drug 

amount).
47

the defense theory of the case. But that is precisely what 

happened here. 

As Garcia-Lagunas’s defense theory became apparent during 

trial, the Government seemingly recognized for the first time 

the absence of drug trafficking proceeds as a potential weakness 

in its case, a case in which it now argues the evidence of guilt 

was always overwhelming. The Government opted not to cure the 

ostensible weakness through the introduction of admissible 

evidence by, for example, moving to admit proof of wire 

transfers from Garcia-Lagunas to individuals in Mexico. Either 

because such evidence did not exist3 or because the Government 

failed to adequately prepare its case, the Government instead 

sought to counter the defense theory by eliciting an outrageous 

ethnic stereotype about the propensity of “Hispanic drug 

traffickers” to live modestly while sending “the majority if not 

all the proceeds back to their native countries.” J.A. 270. 

The Government then highlighted this irrelevant and unsupported 

racial generalization at the outset of its rebuttal closing

argument, stating:

 3 As my colleagues in the majority point out, Garcia-Lagunas 

has resided in the United States since he was a teenager, and 

the majority of his family, including his parents, spouse, and 

two of his children, also live in the United States, making it 

improbable that he was sending large amounts of money back to 

individuals in Mexico. 
48

Ladies and Gentlemen, what did Detective Orellano tell 

you about Hispanic drug trafficking organizations 

[sic] and about what they do with their money? He 

told you that they package that money and they send it 

back to their home country as part of the drug 

trafficking organization. That’s why we don’t have an 

extravagant lifestyle associated with this Defendant, 

fancy cars, any of the things like Ronnie Reed has 

talked about.

J.A. 520.

The relative ability of this particular stereotype to sway 

one or more jurors is evidenced by its extraordinary confirming 

effect on the presiding judge. In response to a renewed 

objection to Detective Orellano’s testimony, the trial judge 

held a bench conference and admitted that he “wasn’t quite sure

the relevance of” the Detective’s testimony regarding Hispanic 

drug traffickers, but that, “based on [his] experience, . . . 

most Latins [sic] send money home whether they’re drug dealers 

or not.”4 J.A. 273. The Government admittedly hoped the jurors 

 4 The majority chooses not to address how the trial judge’s 

statements could have independently affected the jury’s thinking 

because they were voiced during a bench conference and there is 

no affirmative evidence that the jury heard the trial judge’s 

reinforcing remarks. However, it is not Garcia-Lagunas’s burden 

to demonstrate the rippling effects of the Government’s 

unconstitutional testimony. Rather, the Government is tasked 

with establishing that its constitutional error did not 

contribute to the jury’s verdict. Here, the Government has not 

attempted to show that the trial judge’s statements did not 

affect the jury’s consideration of Garcia-Lagunas’s defense 

theory. Moreover, I note that, having both served as a juror on 

three occasions in criminal cases tried in Maryland state 

courts, and having presided for 14 years over federal jury 

trials employing “white noise” to keep jurors in the dark, I 

(Continued)
49

would draw a similar inference when rendering a verdict. J.A. 

273. 

To counter Garcia-Lagunas’s primary defense theory and cure 

a perceived hole in its case, the Government offered up a 

generalization about Garcia-Lagunas’s ethnicity to the jury. 

The Government hoped that, like the presiding judge, the jurors 

would believe that Garcia-Lagunas’s modest lifestyle could not 

rationally undermine allegations that he distributed hundreds of 

thousands of dollars’ worth of cocaine because he assuredly had 

been sending his significant proceeds back to his native 

country, electing to live like a pauper in the United States. 

Tellingly, even the Government concedes that the 

elicitation of Detective Orellano’s testimony during re-direct 

and the recitation of the testimony at the outset of the 

rebuttal closing argument amounted to a constitutional error. 

Oral Argument at 20:38-20:51, United States v. Garcia-Lagunas, 

No. 14-4370 (Sept. 17, 2015), available at

http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mps. 

 

know full well that statements made during bench conferences not 

infrequently remain within earshot of nearby and attentive 

jurors. Accordingly, because there is nothing in the record 

here to suggest that the judge’s remarks went unheard in this 

instance, it undeniably falls on this Panel, in conducting a 

harmless-error review, to fully consider the trial judge’s 

statements and their potential, if not likely, impact on the 

jury’s verdict.
50

During oral argument, when asked whether the error amounted to 

constitutional error, counsel for the Government responded 

unequivocally, “Yes.” Id. The Panel then asked, as a result of 

the Government’s belief that constitutional error had occurred, 

whether it was the Government’s burden “to prove beyond a 

reasonable doubt that the error had no substantial effect on the 

jury’s verdict.” Id. In response, counsel for the Government 

firmly stated, “That’s correct.” Id. 

Accordingly, because it is clear that “[a]ppeals to racial, 

ethnic, or religious prejudice during the course of a trial 

violate a defendant’s Fifth Amendment right to a fair trial,” 

United States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000), I 

see no reason to resort to assumptions in addressing GarciaLagunas’s appeal. See, e.g., United States v. Vue, 13 F.3d 

1206, 1213 (8th Cir. 1994) (concluding that a constitutional 

error occurs when the Government “invite[s] the jury to put [a 

defendant’s] racial and cultural background into the balance in 

determining their guilt”). The Government’s appeal to an 

unabashed ethnic generalization was plainly a constitutional 

error, and as a result, it is the Government’s burden to prove 

that its error was harmless beyond a reasonable doubt. And, for 

the reasons set forth below, I cannot conclude that the 

Government carried that burden in this case. 
51

II.

As the majority explains, not all constitutional errors 

mandate reversal. However, when a non-structural constitutional 

error occurs, the reviewing court may only disregard the error 

so long as the Government can carry its burden of demonstrating 

that the error was “harmless beyond a reasonable doubt.” Neder 

v. United States, 527 U.S. 1, 7 (1999) (quoting Chapman v. 

California, 386 U.S. 18, 24 (1967)). Here, the majority 

concludes that the Government has met its harmless-error burden 

because “even without the [G]overnment’s improper use of an 

ethnic stereotype[,] a rational jury still would have arrived at 

that verdict.” Ante at 17.5 For several reasons, I believe this 

analysis grievously misses the mark. 

 5 As discussed fully infra, in framing the issue as it does, 

the majority commits a fundamental error that has been 

identified and warned against by distinguished legal scholars 

and others for decades:

Properly applied, harmless error analysis should ask 

only whether the state can demonstrate that error did 

not sufficiently affect the outcome at trial and not, 

conversely, whether evidence of guilt outweighed the 

impact of any error. See Sullivan v. Louisiana, 508 

U.S. 275, 279 (1993) (“The inquiry . . . is . . . 

whether the guilty verdict actually rendered in this 

trial was surely unattributable to the error. That 

must be so, because to hypothesize a guilty verdict 

that was never in fact rendered--no matter how 

inescapable the findings to support that verdict might 

be--would violate the jury-trial guarantee.”); Jason 

M. Solomon, Causing Constitutional Harm: How Tort Law 

Can Help Determine Harmless Error in Criminal Trials, 

(Continued)
52

Rule 52(a) of the Federal Rules of Criminal Procedure 

mandates that “[a]ny error, defect, irregularity, or variance 

that does not affect substantial rights must be disregarded.” 

Fed. R. Crim. Pro. 52(a). Rule 52(a)’s “emphasi[s] [on] 

‘substantial rights’” serves two important purposes. Chapman, 

386 U.S. at 22. First, it stresses the significance of the 

factfinding process, recognizing that, at its heart, “the 

central purpose of a criminal trial is to decide the factual 

question of the defendant’s guilt or innocence.” Neder, 527 

U.S. at 18 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 

(1986)). Second, it “promotes public respect for the criminal 

process by focusing on the underlying fairness of the trial 

rather than on the virtually inevitable presence of immaterial 

error.” Van Arsdall, 475 U.S. at 681. Accordingly, in 

practice, Rule 52(a) works to “save the good”—those convictions 

 

99 Nw. U. L. Rev. 1053, 1085-98 (2005) (arguing that 

judges should look at evidence of influence on jury 

rather than focusing primarily on untainted evidence 

of guilt).

Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev.55, 108 

n.195 (2008); see also John M. Greabe, The Riddle of Harmless

Error Revisited, 54 Hous. L. Rev. (forthcoming 2016) (manuscript 

at 12 n.70) (“The [Supreme] Court has at . . . times . . . 

suggested that the presence of overwhelming evidence of guilt 

alone renders an error harmless. But these statements—which are 

akin to a ‘correct result’ test of the sort rejected in Chapman—

are contradicted by the Court’s more carefully reasoned cases 

and should not be taken to express the proper formulation.” 

(internal citations omitted)).
53

that, while the product of an imperfect trial, were the subject 

of “constitutional errors which in the setting of [the] 

particular case [were] so unimportant and insignificant that 

they may . . . be deemed harmless”—while excising the bad—those 

convictions that might have been impacted by the complained of 

error. Chapman, 386 U.S. at 22–24. 

The Supreme Court applied Rule 52(a)’s harmless-error 

analysis in Neder when a criminal defendant challenged a 

district court’s failure to submit the materiality element of 

the defendant’s tax-fraud charges to the jury. 527 U.S. at 4. 

The Supreme Court began by stating the overarching test for 

determining whether a constitutional error is harmless: 

“[W]hether it appears ‘beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.’” Id.

at 15 (quoting Chapman, 386 U.S. at 24). To answer that 

question, the Court first considered the ways in which the 

Government could carry its burden of establishing the 

materiality element. Id. at 16. It explained that, “[i]n 

general, a false statement is material if it has a natural 

tendency to influence, or [is] capable of influencing the 

decision of the decisionmaking body to which it was addressed” 

but noted that “several courts have determined that any failure 

to report income is material.” Id. (alterations in original) 

(citations and internal quotation marks omitted). The Court 
54

then described how, at trial, the Government had “introduced 

evidence that Neder failed to report over $5 million in income 

from the loans he obtained,” and that “[t]he failure to report 

such substantial income incontrovertibly” established the 

materiality element of his charges. Id.

After emphasizing that Neder did not even attempt to 

contest materiality, either before the jury or on appeal, the 

Supreme Court concluded that, “[i]n this situation, where a 

reviewing court concludes beyond a reasonable doubt that the 

omitted element was uncontested and supported by overwhelming 

evidence, such that the jury verdict would have been the same 

absent error, the erroneous instruction is properly found to be 

harmless.” Id. at 16–17. And specifically applying the test 

set forth in Chapman, the Court further noted that, “We think it 

beyond cavil here that the error ‘did not contribute to the 

verdict obtained.’” Id. at 17 (quoting Chapman, 386 U.S. at 

24). 

It is true that reading portions of Neder in isolation and 

out of context from the remainder of the Supreme Court’s 

extensive harmless-error jurisprudence, as the majority does in 

this case, could lead one to conclude that all a reviewing court 

must do to satisfy itself of an error’s harmlessness is ask 

whether it is beyond a reasonable doubt that a jury would have 
55

found the defendant guilty if the error had never occurred. 

Such an approach, however, is misplaced and ill-advised. 

First, it fails to give proper credence to the narrow 

nature of the holding in Neder. In summarizing why its 

harmless-error inquiry reached “an appropriate balance between 

society’s interest in punishing the guilty [and] the method by 

which decisions of guilt are to be made,” the Court took care to 

explain that,

[i]n a case such as this one, where a defendant did 

not, and apparently could not, bring forth facts 

contesting the omitted element, answering the question 

whether the jury verdict would have been the same 

absent the error does not fundamentally undermine the 

purpose of the jury trial guarantee.

Id. at 18–19. Unlike Neder, the present appeal clearly does not 

fit within the narrow subset of cases where the fact that a 

rational jury could have found the defendant guilty absent the 

erroneous omission necessarily dictates that the error did not 

contribute to the verdict.

Second, merely assuring oneself that a rational jury would 

have nonetheless convicted the criminal defendant absent the 

error fails to heed important guidance from the Supreme Court. 

The Supreme Court has explained that, in the case of affirmative 

error, a reviewing court should not simply confine itself to the 

abstract and ask “whether, in a trial that occurred without the 

error, a guilty verdict would surely have been rendered.” 
56

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). Rather, a Rule 

52(a) harmless-error analysis requires us to consider “what 

effect [the error] had upon the guilty verdict in the case at 

hand” and assure ourselves that “the guilty verdict actually 

rendered in [the] trial was surely unattributable to the error.” 

Id. This is so because, when we frame the harmless-error 

analysis in the abstract and remain content to imagine a world 

where the Government exclusively relied upon admissible 

evidence, we not only fail to consider the error’s actual effect 

on the jury, but we also “improperly conflate[] sufficiency-ofthe-evidence review with the appropriate Chapman standard.” 

United States v. Holness, 706 F.3d 579, 598 (4th Cir. 2013) 

(quoting Virgin Islands v. Martinez, 620 F.3d 321, 338 (3d Cir. 

2010)). Here, when I consider the specifics of the Government’s 

prosecution of Garcia-Lagunas and the unique nature of the 

unconstitutional testimony and the prosecution’s arguments based 

thereon, I am unable to conclude beyond a reasonable doubt that 

the complained of error did not contribute to the jury’s 

verdict.6

 6 In this regard, it bears mention that not all 

constitutional infringements visited upon defendants in criminal 

cases stand on equal footing. That is to say, as one scholar 

argues, “judicial proceedings marred by unconstitutional

discrimination on the basis of race, religion, ethnicity,

national origin, or gender and intentional misconduct by

government officials such as . . . prosecutors” deserve a 

(Continued)
57

From opening statements through closing arguments, GarciaLagunas’s trial lasted a mere thirteen hours spread over the 

course of three days. Within those thirteen hours, when 

confronted with a gaping hole in its confident characterization 

of Garcia-Lagunas as a sophisticated drug trafficker responsible 

for the distribution of more than 39 kilos of cocaine valued at 

more than $1 million, the Government knowingly and purposefully 

elicited inadmissible and prejudicial testimony from a lawenforcement officer. While the Government did not qualify 

Detective Orellano as an expert, it repeatedly requested that he 

testify pursuant to his “training and experience” investigating 

Hispanic drug trafficking organizations. J.A. 272–74. 

Accordingly, when Detective Orellano explained to the jury that 

it did not need to be concerned that the investigation into 

Garcia-Lagunas recovered no proceeds and instead revealed a man 

of abject poverty because such evidence was actually “consistent 

with the method of operation of Hispanic drug traffickers,” he 

did so with an authority that any juror would have had 

 

heightened level of scrutiny in the analysis of harmless error. 

Greabe, supra note 5, at 5.
58

difficulty discounting.7 The Government no doubt hoped that 

Detective Orellano’s years of experience investigating “Hispanic 

drug traffickers” would carry weight with the jury, and the 

import of his testimony to the Government’s case is evidenced by 

the Government’s decision to begin its rebuttal closing remarks 

by asking, “What did Detective Orellano tell you about Hispanic 

drug trafficking organizations and about what they do with their 

money?” J.A. 520.

The weighty impact of this unconstitutional testimony and 

argument is illuminated further when one considers that the 

Government’s case against Garcia-Lagunas relied almost 

exclusively upon criminal defendants testifying pursuant to plea 

agreements and circumstantial evidence. As Garcia-Lagunas 

pointed out to the jury, the Government was unable to present 

any direct evidence that Garcia-Lagunas participated in a drug 

trafficking conspiracy through law-enforcement testimony. When 

cross-examining Detective Collins, Garcia-Lagunas confirmed 

that, despite a lengthy investigation into a “Mexican drug 

 7 Importantly, further exacerbating the impact of this 

improper testimony, the trial judge asked Orellano, in open 

court before the jury, to state the basis of his opinion. The 

magic words “training and experience” were quickly forthcoming, 

and the trial judge promptly overruled counsel’s renewed 

objection. J.A. 272–73. One can easily understand the 

remarkable impact on a juror who observes such a display of 

judicial approval of a law-enforcement witness.
59

trafficker named Alex,” the Government did not have direct 

evidence of any hand-to-hand transactions or controlled buys 

involving Garcia-Lagunas. J.A. 152–53. This lack of direct 

evidence is especially probative when one considers that lawenforcement officers had Reed, Garcia-Lagunas’s alleged 

purchaser, under “intense surveillance” while Reed was allegedly 

visiting Garcia-Lagunas at least three times a week to purchase 

cocaine. J.A. 152–53, 204–06. Despite these frequent and 

consistent rendezvous, law enforcement never saw Reed with 

Garcia-Lagunas and did not become aware of the locations of the 

meetings until after Reed was arrested on his own federal drug 

trafficking charges. Id.

Of greatest significance to this appeal’s harmless-error 

analysis, however, is not the highly prejudicial method by which 

the unconstitutional evidence was presented to the jury, the 

Government’s repeated and strategic reliance upon the evidence, 

or the strength vel non of the Government’s case against GarciaLagunas. The most critical factor here is the uniquely 

troublesome nature of the unconstitutional testimony. Not only 

do “[a]ppeals to racial, ethnic, or religious prejudice during 

the course of a trial violate a defendant’s Fifth Amendment 

right to a fair trial,” but on a broader note, they also place 

the public’s trust in “[t]he fairness and integrity of [our] 

criminal” justice system at risk. Cabrera, 222 F.3d at 594, 
60

597; see also Pena–Rodriguez v. People, 350 P.3d 287, 294 (Colo. 

2015) (Marquez, J., dissenting), cert. granted sub nom. Pena–

Rodriguez v. Colorado, No. 15-606, 2016 WL 1278620 (U.S. Apr. 4, 

2016) (“Racial discrimination in our jury trial system not only 

violates our Constitution and the laws enacted under it but is 

at war with our basic concepts of a democratic society and a 

representative government,” and “the harm caused by such 

discrimination is not limited to the defendant—there is injury 

to the jury system, to the law as an institution, to the 

community at large, and to the democratic ideal reflected in the 

processes of our courts.” (internal citations and quotations 

marks omitted)). And it is in recognition of this fact that 

several of our sister circuits have unequivocally condemned the 

use of impermissible ethnic or racial generalizations and 

reversed the convictions of criminal defendants, even where the 

reviewing panel believed that the non-erroneous evidence was 

sufficient to convict. See, e.g., Cabrera, 222 F.3d at 596–97 

(reversing defendants’ convictions after noting that, 

“[a]lthough we find that the evidence was sufficient to convict 

Cabrera and Mulgado, Detective Brook’s repeated references to 

their Cuban origin and his generalizations about the Cuban 

community prejudiced Cabrera in the eyes of the jury”); Vue, 13 

F.3d at 1213 (reversing defendants’ convictions despite finding 

that the evidence was sufficient to sustain the convictions 
61

because the panel believed that “the injection of ethnicity into

the trial clearly invited the jury to put the [defendants’] 

racial and cultural background into the balance of determining 

their guilt,” thereby undermining the bedrock principle of our 

legal system--“[f]ormal equality before the law”). I agree that 

it is “much too late in the day to treat lightly the risk that 

racial bias may influence a jury’s verdict in a criminal case.” 

United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990). 

Here, because the Government repeatedly encouraged the jury 

to consider Garcia-Lagunas’s ethnicity and draw inferences 

contrary to Garcia-Lagunas’s interest in reliance upon an ethnic 

generalization, I am unable to conclude that the constitutional 

error did not contribute to the jury’s verdict. Specifically, 

the effect of the error was to eviscerate the sole plausible 

defense theory of the case, one with ample evidentiary support 

in the record. Indeed, I am baffled how any reviewing court 

could consider an error of this magnitude harmless beyond a 

reasonable doubt, either to a criminal defendant’s conviction or 

our criminal justice system on the whole. By presenting to the 

jury its unconstitutionally constructed racial taxonomy of the 

universe of North Carolina drug traffickers—African-American 

drug dealers like Reed, who live the high life and spend 

lavishly and ostentatiously, with lots of cash and drugs lying 

about, in contrast to “Hispanic drug traffickers,” whose 
62

members, even long-time residents in this country, like GarciaLagunas, habitually choose to live in abject poverty—the 

Government blatantly bolstered its case in contravention of well 

known and well settled constitutional norms. 

Moreover, as the majority opinion correctly and 

comprehensively explains, the jury knew, for lack of a timely 

objection or motion in limine by defense counsel, although it 

should not have been told, that Garcia-Lagunas was present in 

this country illegally. The majority refuses to treat that error 

as one remediable under our plain error doctrine. But plain 

error as to that singular issue to one side, the jury’s 

knowledge of that irrelevant and highly prejudicial fact renders 

the prosecution’s resort to racial and ethnic animus more, not 

less, condemnable, and should factor into the harmless-error 

analysis. It blinks reality not to do so.

III.

It is ironic that, in a break from our sister circuits, and 

at a moment in our country’s history when uncommon attention is 

being paid to issues of racial and ethnic stereotyping and 

consequent mistreatment, actual or threatened, this Court 

chooses to privilege the Government to employ, without 

consequence, irrelevant, prejudicial, and factually unwarranted 

evidence of blatant racial stereotyping to obtain a criminal 

conviction. In this moment, not even the ethnic heritage of 
63

distinguished federal judges is beyond trashing in the public 

sphere, and by a prominent candidate for the most powerful 

office on the planet, no less. All this at a time when this 

Court has otherwise stood firmly against manifestations of 

insidious racial and ethnic animus in voting, N.C. State 

Conference of NAACP v. McCrory, --- F.3d ---, 2016 WL 4053033 

(4th Cir. July 29, 2016), employment, Boyer–Liberto v. 

Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc), and 

many other domains of civic, economic, and political life. 

After this published opinion, future panels of this Court 

will be required to struggle with the issue of just how much 

evidence of guilt is enough evidence of guilt to permit the 

Court to give the Government a pass when it bolsters its pursuit 

of a conviction through resort to gratuitous racial and ethnic 

evidence intended to spur one or more jurors to convict. This 

case sets a very low bar, considering that the level of 

certainty that the constitutional violation had no effect upon 

any juror is agreed to be “beyond a reasonable doubt,” a 

standard that, interestingly, this Court has long refused to 

allow trial judges to define for ordinary jurors. See United 

States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc)

(“We find no reason to alter our current practice of not 

requiring a jury instruction defining reasonable doubt in 

criminal cases.”). Perhaps, as we approach the 50th anniversary 
64

of the seminal teachings of Chapman v. California, the time has

come for this Court to undertake an examination of just what 

“beyond a reasonable doubt” means, after all.

I would vacate the conviction on the conspiracy count of 

the indictment and order a new trial.