United States v. Juan Garcia , 447 F. App'x 752 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1721
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Juan Aldama Garcia, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: November 14, 2011
Filed: November 25, 2011
___________
Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
___________
PER CURIAM.
The appellant, Juan Aldama Garcia, a Mexican national, pleaded guilty to one
count of unlawful entry after deportation, in violation of 8 U.S.C. §§ 1326(a) and
1326(b)(2). The district court1 sentenced Garcia to 85 months’ imprisonment.2 On
appeal, Garcia argues the district court clearly erred in finding he was an active
member of the Latin Kings street gang at the time of the offense. We affirm.
1
The Honorable John A. Jarvey, United States District Court for the Southern
District of Iowa.
2
The district court also sentenced Garcia to a consecutive 15-month sentence
for a supervised release violation, arising out of a similar case in Arizona.
On July 28, 2010, Garcia was arrested in Johnson County, Iowa, for driving
while his license was denied or revoked. At the time of the arrest, Garcia was
wearing black shoes with yellow laces, a black shirt, and a black Pittsburgh Pirates
baseball cap with a yellow “P” on it. When later questioned about his clothing,
Garcia admitted black and yellow are the colors of the Latin Kings street gang. He
further stated the “P” on his baseball cap stood for “People Nation,” a group of gangs
to which the Latin Kings belong. Garcia admitted to being a member of the Latin
Kings in the past, but denied being affiliated with the gang at the time of his arrest.
On August 18, 2010, a grand jury returned a single-count indictment charging
Garcia with unlawful reentry after deportation. See 8 U.S.C. § 1326(a), (b)(2).
Garcia pleaded guilty to the offense on November 22, 2010, and a sentencing hearing
was set for March 25, 2011. The only contested issue at sentencing was Garcia’s
active membership in the Latin Kings street gang at the time of the offense.
To establish Garcia’s affiliation with the Latin Kings at the time of the offense,
the government offered photographs of Garcia’s gang-related tattoos, including a lion
with a five-pointed crown on his chest, an “It’s Good To Be A King” tattoo on his
forearm, and a teardrop tattoo under his left eye. Detective Michael Channon, an
expert on the Latin Kings, testified the teardrop tattoo signified a violent act taken on
behalf of the gang, and explained the tattoo can only be worn with the gang’s
permission. Detective Channon further testified the following markers are
representative of the Latin Kings street gang: black and yellow colors; sports-
affiliated clothing, generally associated with the Iowa Hawkeyes, the Pittsburgh
Steelers, or the Pittsburgh Pirates; and an emphasis on the letter “P” for “People
Nation,” the group of gangs to which the Latin Kings belong. He opined a gang
member who wanted to end his affiliation with the gang would not wear gang-related
colors or display gang-related tattoos. According to his testimony, however,
membership in the Latin Kings is “for life” and “once you are in the gang . . . [y]ou
don’t get out.” Additionally, the arresting officer testified the Latin Kings have been
-2-
present in Johnson County, Iowa, noted Garcia wore the gang’s colors and symbol on
the day of his arrest, and stated the Latin Kings pose a problem for law enforcement
in Johnson County.
Based on the evidence presented at the sentencing hearing, the district court
found Garcia was an active member of the Latin Kings street gang at the time of his
arrest. The court considered Garcia’s gang membership as part of its section 3553(a)
analysis in fashioning an appropriate sentence. See 18 U.S.C. § 3553(a)(1) (requiring
a sentencing court to consider the history and characteristics of the defendant).
Having calculated Garcia’s advisory Guideline range at 71 to 87 months, the court
then sentenced him to 85 months’ imprisonment. Garcia timely appealed.
The narrow issue on appeal is whether the district court erred in finding Garcia
was an active member of the Latin Kings at the time of the offense. We review the
sentencing court’s factual findings for clear error. United States v. Brooks, 648 F.3d
626, 629 (8th Cir. 2011). A finding of fact is clearly erroneous only if we are left
with a definite and firm conviction a mistake has been made. United States v.
Guiheen, 594 F.3d 589, 591 (8th Cir. 2010) (citation omitted).
If the defendant challenges a factual basis for his sentence, the government
must prove the challenged facts by a preponderance of the evidence. United States
v. Kang, 143 F.3d 379, 381 (8th Cir. 1998). At sentencing, the government presented
testimony Garcia wore the Latin Kings’ black and yellow colors and had gang-related
tattoos on the day of his arrest. See United States v. Ellison, 616 F.3d 829, 833-34
(stating evidence the defendant wore gang colors, had gang tattoos, and used gang
signs was admissible, among other purposes, to impeach defendant’s testimony he
was not a member of the West Side Hustlers gang); see also United States v. Lara,
181 F.3d 183, 190 (1st Cir. 1999) (explaining “[m]embers of the Latin Kings signal
their affiliation by sporting beads and other accouterments (including tattoos) in the
gang’s colors–black and gold”); United States v. Bethal, 245 F. App’x 460, 475-76
-3-
(6th Cir. 2007) (McKeague, J., dissenting) (noting gangs use particular colors and
symbols to create a group identity and rely on permanent markings, such as tattoos,
to indicate gang membership). The government further established, through expert
witness testimony, only active Latin Kings members can wear the gang’s colors and
display the teardrop tattoo, which one earns by committing a violent crime on behalf
of the gang. See United States v. Sparks, 949 F.2d 1023, 1026 (8th Cir. 1991)
(holding the district court properly admitted expert testimony on defendant’s active
gang membership). Moreover, although denying an affiliation with the Latin Kings
at the time of his arrest, Garcia admitted to his past membership in the gang. In turn,
the government presented expert testimony membership in the Latin Kings street
gang is “for life.” See United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997)
(stating gang-related evidence, including testimony “gang membership is for life,” is
admissible to show gang affiliation). Based on the record, we conclude the district
court did not clearly err in finding Garcia was an active member of the Latin Kings
street gang at the time of the offense.
Accordingly, we affirm the district court’s judgment.
______________________________
-4-