United States v. Rene Garcia, Jr.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3650
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Rene Garcia, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 14, 2000
Filed: June 29, 2000
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Before: WOLLMAN, Chief Judge, BEAM, Circuit Judge, and PANNER,1
District Judge
PER CURIAM
Rene Garcia, Jr. was convicted by a jury of conspiracy and possession with
intent to distribute methamphetamine. He argues that the district court2 erred by (1)
permitting testimony regarding prior drug dealings; (2) enhancing his sentence based
1
The Honorable Owen M. Panner, United States District Judge for the
District of Oregon, sitting by designation.
2
The Honorable D. Brook Bartlett, United States District Judge for the
Western District of Missouri.
on a finding that he was the leader of a five-participant conspiracy; (3) departing
upward based on a determination that his criminal history was understated; (4)
imposing an excessive fine; and (5) refusing to permit the filing of a supplemental
motion for new trial. We reject these arguments and we affirm.
1. Prior Crimes Evidence
We have regularly permitted trial courts to admit evidence of a defendant’s prior
drug dealings. See United States v. Oates, 173 F.3d 651, 660 (8th Cir.), cert. denied,
120 S. Ct. 213 (1999); United States v. Moore, 98 F.3d 347, 350 (8th Cir. 1996). We
have reviewed the record and conclude that the trial court did not abuse its discretion
in admitting the testimony here. See United States v. Davidson, 195 F.3d 402, 408 (8th
Cir. 1999), cert. denied, 120 S. Ct. 1218 (2000).
2. Leadership Enhancement
The district court did not clearly err by finding that there were five or more
participants in the conspiracy. See United States v. Simmons, 154 F.3d 765, 768 (8th
Cir. 1998). Individuals who are not indicted or prosecuted, but who may be
“criminally responsible” for the crime, are considered participants under U.S.S.G. §
3B1.1(a). See United States v. Brockman, 183 F.3d 891, 899 (8th Cir. 1999), cert.
denied, 120 S. Ct. 800 (2000). The record here supports the district court’s
determination that as many as eight individuals participated in Garcia’s scheme.
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3. Upward Departure
The district court did not abuse its discretion by departing upward from the
guideline range. See United States v. Herr, 202 F.3d 1014, 1016 (8th Cir. 2000). There
is “ample evidence that [Garcia’s] criminal history category did not reflect the
seriousness of his criminal activity.” See United States v. Collins, 104 F.3d 143, 145
(8th Cir. 1997); see also Herr, 202 F.3d at 1017 (affirming upward departure when
defendant’s “repeated violations show his disrespect for the law and that leniency has
not been effective”).
4. Excessive Fine
Garcia argues that the district court did not make express findings regarding his
ability to pay a fine. The fallacy of that argument is that Garcia refused to disclose his
assets prior to sentencing. See United States v. Berndt, 86 F.3d 803, 808 (8th Cir.
1996) (affirming amount of fine when defendant attempted to hide assets).
5. Supplemental Motion
The district court did not abuse its discretion by refusing to permit Garcia to file
a pro se supplemental motion for a new trial. See United States v. Garrett, 961 F.2d
743, 748 (8th Cir. 1992) (applying abuse of discretion standard to district court’s
refusal to permit defendant to file untimely motions). Garcia was given ample and
repeated opportunities to file such a motion, but simply failed to do so.
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We affirm the conviction and sentence imposed by the district court.
A true copy
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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