United States v. Garcia , 432 F. App'x 248 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4826
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO ARTHUR GARCIA,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00066-JPB-DJJ-2)
Submitted: April 15, 2011 Decided: May 27, 2011
Before MOTZ, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Joseph Pizzuti, MCCAMIC, SACCO, PIZZUTI & MCCOID, PLLC,
Wheeling, West Virginia, for Appellant. William J. Ihlenfeld,
II, United States Attorney, Thomas O. Mucklow, Assistant United
States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Arthur Garcia appeals his conviction by a jury
of distribution of 16.7 grams of cocaine base, in violation of
21 U.S.C. § 841(a) (2006), and his resulting seventy-eight-month
sentence. 1 We affirm.
Garcia first argues that the district court erred in
denying his motion to dismiss the indictment for excessive
pre-indictment delay. We review for abuse of discretion a
district court’s denial of a motion to dismiss for
pre-indictment delay. See United States v. Loe, 586 F.2d 1015,
1019 (4th Cir. 1978). The Fifth Amendment requires dismissal of
an indictment where it is shown at trial that, first,
pre-indictment delay substantially prejudiced the defendant’s
rights to a fair trial and, second, the delay “‘was an
intentional device to gain tactical advantage over the
accused.’” United States v. Uribe-Rios, 558 F.3d 347, 358
(4th Cir. 2009) (quoting United States v. Marion, 404 U.S. 307,
324 (1971)). Finding no such showing here, we conclude that
this claim lacks merit.
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The district court initially imposed a sentence of 121
months’ imprisonment. However, upon Garcia’s motion for
resentencing in light of the Fair Sentencing Act of 2010, Pub.
L. No. 111-1220, 124 Stat. 2372, the district court reduced the
imprisonment term to seventy-eight months. The Government does
not appeal the reduction in sentence.
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Next, Garcia asserts that the district court erred in
denying his motion to exclude testimony that he came to
West Virginia to sell two ounces of crack cocaine. He argues
that the testimony was not necessary to complete the narrative
of the offense charged, exceeded the scope of the indictment,
and should not have been admitted.
We review a district court’s evidentiary rulings for
an abuse of discretion. United States v. Blake, 571 F.3d 331,
350 (4th Cir.), cert. denied, 130 S. Ct. 1104 (2010). Rule
404(b) of the Federal Rules of Evidence prohibits the admission
of “[e]vidence of other crimes, wrongs, or acts . . . to prove
the character of a person in order to show action in conformity
therewith.” However, Rule 404(b) does not apply to evidence of
acts intrinsic to the crime charged. United States v. Chin, 83
F.3d 83, 87 (4th Cir. 1996). Here, the disputed testimony
constitutes evidence intrinsic to the crime. Thus, the district
court did not abuse its discretion in allowing the challenged
testimony.
Turning to the trial, Garcia first argues that the
district court erred in declining to provide the jury an
instruction on reasonable doubt. The district court did not
err. “In this circuit, ‘although the district court may define
reasonable doubt to a jury [it] is not required to do so.’”
United States v. Lighty, 616 F.3d 321, 380 (4th Cir. 2010)
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(quoting United States v. Walton, 207 F.3d 694, 696-97
(4th Cir. 2000) (en banc)).
Garcia next argues that the district court should have
granted him a new trial after the Government elicited testimony
regarding a polygraph examination. Garcia also argues that he
is entitled to a new trial because the Government’s rebuttal
argument was improper. We review a district court’s denial of
motions for a mistrial or a new trial for abuse of discretion.
United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008)
(mistrial); United States v. Basham, 561 F.3d 302, 319
(4th Cir. 2009) (new trial).
A mistrial should be granted when the district court
finds that it has become a “manifest necessity” to stop the
trial because some event would prevent the defendant from
receiving a fair trial by an impartial jury. See Illinois v.
Somerville, 410 U.S. 458, 461 (1973); Sanders v. Easley, 230
F.3d 679, 685 (4th Cir. 2000). Whether evidence of a polygraph
test warrants a mistrial depends on “(1) whether an inference
about the result of the test may [have] be[en] critical in
assessing the witness’s credibility, and (2) whether the
witness’s credibility [was] vital to the case.” United
States v. Tedder, 801 F.2d 1437, 1444 (4th Cir. 1986). Garcia
has failed to establish either element here. Following the
reference to the polygraph, the district court clarified that
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witness had not taken a polygraph test and instructed the jury
to ignore the statement, thus avoiding any prejudice to Garcia.
Granting a new trial for prosecutorial misconduct is
appropriate where the prosecutor’s remarks were improper and
“prejudicially affected the defendant’s substantial rights so as
to deprive the defendant of a fair trial.” United States v.
Golding, 168 F.3d 700, 702 (4th Cir. 1999) (internal quotation
marks omitted). See United States v. Scheetz, 293 F.3d 175, 186
(4th Cir. 2002) (factors used to assess prejudice). We conclude
that the comments Garcia identifies as objectionable did not
deprive him of a fair trial. The comments were brief, isolated,
and did not have a tendency to mislead the jury.
Garcia also argues that the evidence was insufficient
to support his conviction. We review de novo challenges to the
sufficiency of the evidence supporting a jury verdict. United
States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007). A jury
verdict should be affirmed where, “viewing the evidence in the
light most favorable to the prosecution, [it] is supported by
substantial evidence.” United States v. King, 628 F.3d 693, 700
(4th Cir. 2011) (internal quotation marks omitted). Substantial
evidence is such “‘evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt.’” Id.
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(quoting United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc)).
To convict Garcia for distribution of cocaine base,
the Government was required to prove that Garcia, “as a
principal, (1) knowingly and intentionally (2) distributed (3)
[16.7] grams of cocaine base, or that, as an aider and abettor,
he knowingly associated himself with and participated in the
criminal venture.” United States v. Yearwood, 518 F.3d 220, 227
(4th Cir. 2008) (internal quotation marks omitted).
We conclude that the evidence presented at trial is
more than sufficient to sustain the conviction. Garcia’s co-
defendant testified that Garcia had come to the area with two
ounces of crack cocaine, looking to make money, and that he had
arranged for Garcia to make the sale to another individual, who
turned out to be a confidential informant. The testimony of
Garcia’s co-defendants, law enforcement officers, and the
confidential informant provided overwhelming evidence of
Garcia’s guilt.
Next, Garcia challenges his sentence. We review
Garcia’s sentence for reasonableness under a deferential abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.“Improper calculation of a defendant’s advisory sentencing range
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under the Guidelines constitutes significant procedural error.”
United States v. Clay, 627 F.3d 959, 964 (4th Cir. 2010).
Garcia first argues that his sentence was procedurally
unreasonable because the district court held him accountable for
two ounces of cocaine base when the indictment charged him with
possession of only 16.7 grams. Section 1B1.3(a) of the U.S.
Sentencing Guidelines Manual (“USSG”) (2009) specifies that the
base offense level is to be determined by considering the
offense of conviction and relevant conduct. “Sentencing judges
may find facts relevant to determining a Guidelines range by a
preponderance of the evidence, so long as that Guidelines
sentence is treated as advisory and falls within the statutory
maximum authorized by the jury’s verdict.” United States v.
Benkahla, 530 F.3d 300, 312 (4th Cir. 2008). We will not
overturn such factual findings unless they are clearly
erroneous. United States v. Jeffers, 570 F.3d 557, 570
(4th Cir. 2009).
Here, the indictment charged Garcia with distributing
16.7 grams of cocaine base, authorizing a maximum sentence of
forty years’ imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii)
(2006). Evidence adduced at trial was sufficient for the
district court to hold Garcia accountable at sentencing for two
ounces of cocaine. Based on distribution of 56.7 grams (two
ounces) of cocaine base, Garcia’s Guidelines range was 121 to
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151 months (later reduced to 78 to 97 months), well below the
maximum authorized by statute. Accordingly, the district court
did not commit procedural error in holding Garcia accountable
for 56.7 grams of cocaine base.
Garcia also contests the district court’s application
of a two-level obstruction of justice enhancement. See U.S.
Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2009). Garcia
contends the application of the enhancement constitutes
punishment “for his simple denial of guilt.”
This court reviews the factual findings underpinning
application of a sentence enhancement for clear error. United
States v. Carter, 601 F.3d 252, 254 (4th Cir. 2010). Section
3C1.1 of the Guidelines provides for a two-level increase in the
offense level “[i]f . . . the defendant willfully obstructed or
impeded, or attempted to instruct or impede, the administration
of justice with respect to the investigation, prosecution, or
sentencing of the instant offense.” The provision covers
perjury. USSG § 3C1.1 cmt. n. 4(b). A defendant commits
perjury “if [he] gives false testimony concerning a material
matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). A
perjury enhancement must be upheld if the district court “makes
a finding of an obstruction of, or impediment to, justice that
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encompasses all of the factual predicates for a finding of
perjury.” Id. at 95.
Garcia’s presentence report recommended that he be
given an obstruction of justice enhancement because he testified
falsely concerning a material issue. Garcia has not argued that
his testimony was affected by confusion, mistake, or faulty
memory. Accordingly, the district court did not err in applying
the obstruction of justice enhancement.
Finally, Garcia argues that the district court failed
to address what he identifies as a Kimbrough 2 issue — whether the
sentencing disparity between crack and powder cocaine “yields a
sentence greater than necessary to achieve [§] 3553(a)’s
purposes.” This issue implicates both the procedural and
substantive reasonableness of his sentence. See Gall, 552 U.S.
at 50-51; United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010) (“Substantive reasonableness examines the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).”); United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (stating
2
Kimbrough v. United States, 552 U.S. 85 (2007), held that
sentencing courts may conclude that application of a 100-to-one
crack to powder ratio produced a sentence greater than necessary
under 18 U.S.C. § 3553(a) (2006), and may deviate from the
Guidelines on that basis.
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district court must address nonfrivolous arguments presented by
parties in order for sentence to be procedurally reasonable).
Here, Garcia’s oblique reference to the crack/powder
disparity did not require the district court to specifically
address the argument. Garcia mentioned the disparity in passing
in his sentencing memorandum and did not raise the issue at the
sentencing hearing. Therefore, the district did not
procedurally err. Further, Garcia fails to rebut the
presumption of reasonableness this court accords to a sentence
within a properly-calculated Guidelines range. United States v.
Go, 517 F.3d 216, 218 (4th Cir. 2008). Moreover, the district
court opted to sentence Garcia in accord with the newly-enacted
Fair Sentencing Act, rather than the then-applicable Guidelines
range, so the court did not consider itself bound to apply the
crack/powder cocaine ratio dictated by the Guidelines. We
therefore conclude that his sentence is not substantively
unreasonable.
Based on the foregoing, we affirm Garcia’s conviction
and sentence. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid in the decisional
process.
AFFIRMED
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