United States v. Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-41586
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANICETO GARCIA
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-983-1
--------------------
Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Aniceto Garcia appeals his conditional guilty plea
conviction and sentence for possession of marijuana with intent
to distribute. He asserts that the district court erred in
denying his motion to suppress because the agents stopping him
lacked a reasonable particularized suspicion of illegal activity.
To the extent Garcia is arguing, for the first time on appeal,
that the district court should not have considered any
information known solely by Border Patrol agent Frank Terrazas
*
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this opinion should not be published and is not precedent except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.
No. 03-41586
-2-
because Terrazas did not participate in the actual stop, he
waived this argument by not presenting it in the district court.
See United States v. Carreon-Palacio, 267 F.3d 381, 389 (5th Cir.
2001). We have reviewed the stipulated evidence and the
arguments of counsel and conclude that the agents possessed a
reasonable suspicion supporting the investigatory stop of
Garcia’s vehicle. See United States v. Guerrero-Barajas, 240
F.3d 428, 432 95th Cir. 2001).
Garcia also asserts that the district court improperly
enhanced his sentence pursuant to U.S.S.G. § 4B1.1 for career
offender status, despite the fact that his prior offenses were
not alleged in the indictment and were not admitted by him before
the district court. He maintains that the use of his prior
convictions to enhance his guideline sentence violated Blakely v.
Washington, 124 S. Ct. 2531 (2004). Because Garcia did not make
this argument below, we review for plain error. See United
States v. Ocana, 204 F.3d 585, 588-89 (5th Cir. 2000). Blakely
does not apply to the Sentencing Guidelines. See United States
v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), petition for
cert. filed (U.S. July 14, 2004)(No. 04-5263). The judgment of
the district court is AFFIRMED.