Garcia

I. Background

Garcia and Green were tried together before a jury in August 2005. Garcia was found guilty on 18 counts. The dis- trict court rejected Garcia’s motion under Federal Rule of Criminal Procedure 29 challenging the sufficiency of the evi- dence to support a conviction on five of those counts (Counts IV, V and VI; XXII and XXIII) under a Pinkerton theory of liability. See Pinkerton v. United States, 328 U.S. 640, 646-48 (1946) (holding that each member of a conspiracy may be charged with reasonably foreseeable substantive offenses committed by a co-conspirator in furtherance of the conspir- acy). Later, however, the district court granted Green’s simi- lar Rule 29 motion with respect to two of those same counts (Counts XXII and XXIII). The court reversed its earlier find- ing when denying Garcia’s motion that the person named in these counts was still a member of the conspiracy when com- mitting the charged offenses, and found instead that he was no longer part of the conspiracy by then.

Garcia was sentenced to a term of 1,284 months imprison- ment in November 2005. The district court calculated Gar- cia’s Guidelines-recommended sentence by departing upward 9686 …