United States v. Miguel Garcia , 299 F. App'x 607 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3542
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Miguel Garcia, also known *
as Michael Garcia, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 7, 2008
Filed: November 12, 2008
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
A jury found Miguel Garcia guilty of conspiring to distribute and possess with
intent to distribute more than 500 grams of a methamphetamine mixture, in violation
of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2 (Count I); and possessing with
intent to distribute 42.53 grams of a methamphetamine mixture, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count II). The government filed
notice under 21 U.S.C. § 851(a)(1) of its intent to rely on two prior convictions to
enhance Garcia’s sentence to life in prison under 21 U.S.C. § 841(b)(1)(A): a 1999
conviction for selling methamphetamine and marijuana, in violation of Minn. Stat.
Ann. §§ 152.023.1(1) and 152.024.1(4); and a 2005 conviction for conspiring to sell
marijuana, in violation of Minn. Stat. Ann. § 152.025.1(1). The district court1
sentenced Garcia to concurrent terms of life in prison on Count I and 360 months on
Count II.
On appeal, counsel has filed a brief under Anders v. California, 386 U.S. 738,
744 (1967), arguing that the joinder of Garcia’s trial with that of his codefendant was
prejudicial because there was a spillover effect from the evidence against his
codefendant. We find the district court did not abuse its discretion in joining the cases
for trial, as the court instructed the jury that they must consider separately each crime
charged against each defendant. See United States v. Liveoak, 377 F.3d 859, 864 (8th
Cir. 2004) (standard of review for claim that joinder was prejudicial); United States
v. Mickelson, 378 F.3d 810, 817-18 (8th Cir. 2004) (where multiple defendants are
tried together, risk of undue prejudice is best cured through cautionary jury
instruction); United States v. Pecina, 956 F.2d 186, 188 (8th Cir. 1992) (“disparity in
the weight of the evidence” does not require severance).
Garcia has filed a pro se supplemental brief, raising several additional
arguments, which we reject seriatim as meritless. First, the court did not err, plainly
or otherwise, in finding that Garcia had two prior felony drug offenses which
subjected him to a mandatory life sentence under section 841(b)(1)(A). See United
States v. Roundtree, 534 F.3d 876, 882 (8th Cir. 2008) (felony drug offense is any
drug conviction punishable by imprisonment for more than one year; citing 21 U.S.C.
§ 802(44)). Garcia’s reliance on Lopez v. Gonzales, 127 S. Ct. 625, 627-28 (2006)
(addressing meaning of “felony punishable under the Controlled Substances Act” for
purposes of 18 U.S.C. § 924(c)(2)), is misplaced. Second, Garcia is barred from
challenging a search of a vehicle in which he was a passenger, as he did not challenge
the search below. See United States v. Lucas, 499 F.3d 769, 785 (8th Cir. 2007) (en
1
The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
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banc) (“Generally, both the government and defendants are barred from raising Fourth
Amendment arguments for the first time on appeal.”), cert. denied, 128 S. Ct. 1702
(2008); cf. United States v. Dixon, 51 F.3d 1376, 1382-83 (8th Cir. 1995) (defendant
waived right to challenge search warrant on appeal by failing to challenge it below).
Third, this court has previously rejected an argument similar to Garcia’s argument that
the government failed to prove he had the required intent for the crime because he was
under the influence of drugs and he sold drugs only to satisfy his addiction. See
United States v. Griffin, 909 F.2d 1222, 1224 (8th Cir. 1990) (“mere addiction to
drugs is not a defense to charges of conspiracy to distribute and possession with intent
to distribute”). Last, Garcia seems to be confused in arguing that, because section
841(b)(1)(C) does not authorize a life sentence, his sentence violates Apprendi v. New
Jersey, 530 U.S. 466 (2000). In reality, he was properly sentenced on Count II to 360
months under section 841(b)(1)(C) (maximum sentence of 30 years for person
convicted of offense involving any amount of methamphetamine) and to life on Count
I under section 841(b)(1)(A) (mandatory life sentence for person convicted of offense
involving 500 grams of methamphetamine mixture after two prior felony drug
offenses).
Upon reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
82-84 (1988), we have found no nonfrivolous issues. Accordingly, we affirm. We
also grant counsel’s motion to withdraw, and deny Garcia’s motion for new counsel.
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