United States v. Pedro Garcia ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PEDRO RODRIGUEZ GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cr-00516-WDQ-1)
Submitted: January 29, 2015 Decided: March 27, 2015
Before MOTZ, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland, for Appellant. Gerald A. A. Collins, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland; Debra Lynn Dwyer,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, Pedro Rodriguez Garcia was
convicted of conspiracy to commit Hobbs Act robbery and of Hobbs
Act robbery, both in violation of 18 U.S.C. § 1951(a) (2012),
and using and carrying a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c) (2012).
Garcia received concurrent sentences of 240 months on the two
Hobbs Act convictions and a consecutive mandatory minimum
sentence of eighty-four months on the firearm conviction. In
accordance with Anders v. California, 386 U.S. 738 (1967),
Garcia’s counsel has filed a brief certifying that there are no
meritorious issues for appeal, but questioning whether the
district court erred in denying Garcia’s motion to suppress
photographic and in-court identifications and whether trial
counsel was ineffective when he stipulated to the admission of
an autopsy report. Garcia has filed a pro se supplemental brief
arguing that the district court erred when it applied a two-
level obstruction of justice enhancement and double-counted the
victim’s death when selecting an appropriate sentence. We
affirm.
When considering the denial of a suppression motion,
we review the district court’s legal conclusions de novo and its
factual findings for clear error. United States v. Saunders,
501 F.3d 384, 389 (4th Cir. 2007). A two-step analysis is
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employed to determine the admissibility of a challenged
identification. Id. “First the defendant must show that the
photo identification procedure was impermissibly suggestive.
Second, if the defendant meets this burden, a court considers
whether the identification was nevertheless reliable in the
context of all of the circumstances.” Id. at 389-90 (footnote
omitted). Thus, we may uphold a district court’s denial of a
motion to suppress identifications if we find the
identifications reliable, without determining whether the
identification procedure was unduly suggestive. Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994). In evaluating the
reliability of a witness’ identification, we consider:
the opportunity of the witness to view the criminal at
the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and
the length of time between the crime and the
confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
The district court did not err when it found the
identifications reliable. Garcia’s coconspirator had multiple
opportunities to familiarize himself with Garcia’s appearance —
he spent five days casing a robbery target with Garcia, carried
out the robbery with him, and traveled to another city with him
after the robbery. Furthermore, Garcia’s coconspirator
testified that he was certain that Garcia was the individual
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with whom he carried out the robbery. Accordingly, the district
court properly denied Garcia’s motion to suppress the
identifications.
We decline to reach Garcia’s claim of ineffective
assistance of counsel. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
assistance claims are not addressed on direct appeal. United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead,
such claims should be raised in a motion brought pursuant to 28
U.S.C. § 2255 (2012), in order to permit adequate development of
the record. See United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010). Because there is no conclusive evidence of
ineffective assistance on the face of the record, we conclude
that Garcia’s claim should be raised, if at all, in a § 2255
motion.
In accordance with Anders, we have reviewed Garcia’s
pro se claims and the record in this case and have found no
meritorious issues for appeal. Therefore, although we grant
Garcia’s motion to supplement the record, we affirm Garcia’s
conviction and sentence. This court requires that counsel
inform Garcia, in writing, of the right to petition the Supreme
Court of the United States for further review. If Garcia
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
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this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Garcia.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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