United States v. Norman Garcia , 506 F. App'x 593 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10481
Plaintiff - Appellee, D.C. No. 4:10-cr-00914-FRZ-
JCG-1
v.
NORMAN GARCIA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted January 15, 2013
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Norman Garcia was indicted on two counts of Assault with a Dangerous
Weapon, in violation of 18 U.S.C. §§ 113(a) and 1153(a), and one count of
Possession and Use of a Firearm in Relation to a Crime of Violence, in violation of
18 U.S.C. § 924(c)(1)(A)(iii). Following a joint trial with one co-defendant, the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jury convicted Garcia on all counts and the district court sentenced him to eleven
years imprisonment. Garcia now appeals his conviction and sentence. The parties
are familiar with the facts. We affirm.
Garcia contends that the district court erred by denying his motion to sever.
The denial of a motion to sever is reviewed for abuse of discretion. United States v.
Jenkins, 785 F.2d 1387, 1393 (9th Cir. 1986). Garcia must show that “joinder was
so manifestly prejudicial that it outweighed the dominant concern with judicial
economy.” United States v. Douglass, 780 F.2d 1472, 1478 (9th Cir. 1986). Garcia
makes three arguments that he was unduly prejudiced by the joint trial: (1) that
there was a disparity in the weight of the evidence offered against him and his co-
defendant; (2) that the jury instructions were inadequate; and (3) that the
confession of his co-defendant violated the rule in Bruton v. United States, 391
U.S. 123 (1968).
Each of these arguments fails. The jury could compartmentalize the evidence
offered against the two defendants and thus Garcia was not prejudiced by a joint
trial. See United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980); see also
United States v. Monks, 774 F.2d 945, 949 (9th Cir. 1985). The trial judge gave
clear instructions to the jury that neutralized any potential prejudice. See Escalante,
637 F.2d at 1201–02. Garcia’s co-defendant testified at trial and was subject to
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cross-examination, and therefore Bruton does not apply. See Bruton, 391 U.S. at
126-128.
Garcia also argues that there was insufficient evidence to prove the intent
element of his assault conviction. We review a sufficiency of the evidence claim de
novo. United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). We must
“determine whether ‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). The record contained sufficient facts from which the jury could infer that
Garcia had the requisite intent. See United States v. Birges, 723 F.2d 666, 672 (9th
Cir. 1984).
Next, Garcia contends that the district court should have instructed the jury
regarding the lesser-included offense of simple assault even though he did not
request it at trial. A challenge to the district court’s failure to give a lesser-included
offense instruction sua sponte is reviewed for plain error. United States v. Parker,
991 F.2d 1493, 1496 (9th Cir. 1993). “Plain error is found only in exceptional
circumstances, when the error is highly prejudicial, affects substantial rights, and it
is highly probable that it materially affected the verdict.” United States v. Sanchez,
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914 F.2d 1355, 1358 (9th Cir. 1990). The jury had ample evidence to convict
Garcia for the charged offense and Garcia fails to establish that it is highly
probable that a lesser-included instruction would have changed the verdict. See id.
at 1358, 1360–61. There was no plain error.
Finally, Garcia argues that his consecutive sentences for convictions under
18 U.S.C. §§ 113(a)(3) and 1153(a) in addition to § 924(c) run afoul of the Double
Jeopardy clause. Consecutive sentences do not violate the Double Jeopardy clause
when “each count of the indictment requires proof of a fact that the other does
not.” United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir. 1986) (citing
Blockburger v. United States, 284 U.S. 299, 304 (1932)). Garcia’s convictions
satisfy the Blockburger test; Sections 924(c)(1)(A)(iii) and 113(a)(3) each require
proof of at least one fact that the other does not.
AFFIRMED.
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