United States v. Eulalia Garcia ( 2016 )

Case: 16-40124 Document: 00513811822 Page: 1 Date Filed: 12/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40124 FILED
Summary Calendar December 23, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EULALIA GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-11-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
A jury convicted Eulalia Garcia of possession with intent to distribute
100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B), and 18 U.S.C. § 2, and acquitted her of conspiracy to commit the
substantive offense. On appeal, her retained attorney, J.M. Alvarez, posits just
the opposite: that Garcia was convicted of the conspiracy offense and acquitted
of the substantive offense. We are presented with the sole argument that the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-40124 Document: 00513811822 Page: 2 Date Filed: 12/23/2016
No. 16-40124
evidence was insufficient to convict Garcia of the conspiracy offense. Garcia’s
failure to challenge her actual conviction or sentence constitutes an
abandonment of the issues. United States v. Miranda, 248 F.3d 434, 443 (5th
Cir. 2001). The district court judgment is therefore AFFIRMED. 1
We must also note that counsel’s brief is exceptionally poor. Not only
does counsel erroneously present the count of conviction, but he makes a
number of other inexcusable errors demonstrating that he has not fulfilled
“[h]is role as advocate [which] requires that he support his client’s appeal to
the best of his ability.” Anders v. California, 386 U.S. 738, 744 (1967). Nor has
he complied with his duties under Federal Rule of Appellate Procedure
28(a)(8)(A) to present his “contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant relies.” FED.
R. APP. P. 28(a)(8)(A). Counsel’s brief cites scant case law, mispresents the
law, at times is incomprehensible, contains numerous sentence fragments and
typographical errors, quotes from the trial transcript without notation, and
even erroneously requests that we overturn Garcia’s conviction for murder, a
crime never alleged in this case.
Sanctions may be warranted where counsel’s arguments are “totally
without merit and his briefing . . . sloppily prepared.” Macklin v. City of New
Orleans, 293 F.3d 237, 241 (5th Cir. 2002). We have imposed sanctions under
Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927 for the filing of a
“‘slap-dash’ excuse for a brief” after noting that “poor quality of briefing is
inexcusable.” Carmon v. Lubrizol, 17 F.3d 791, 795 (5th Cir. 1994). Counsel
1 Even if we were to exercise our discretion under Miranda to consider the unbriefed
issue of whether the evidence was sufficient to support Garcia’s actual offense of conviction,
we would affirm nonetheless. Based on the evidence presented at trial, any rational trier of
fact could have found the essential elements of her crime beyond a reasonable doubt. United
States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc); United States v. Cain,
440 F.3d 672, 675 (5th Cir. 2006).
2
Case: 16-40124 Document: 00513811822 Page: 3 Date Filed: 12/23/2016
No. 16-40124
is therefore WARNED that we will impose sanctions for future frivolous filings.
See Cilauro v. Thielsch Eng’g, 123 F. App’x 588, 591 (5th Cir. 2005) (issuing a
warning to counsel for filing a frivolous brief).
3