United States v. Basilio Garcia

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4453
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Basilio Garcia, also known as “Gordo,” *
also known as Ruben Torres-Leon, * [UNPUBLISHED]
also known as Alberto Garcia Rios, *
also known as Basilio Garcia-Santana, *
*
Appellant. *
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Submitted: January 30, 2007
Filed: February 2, 2007
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Before SMITH, GRUENDER, AND SHEPHERD, Circuit Judges.
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PER CURIAM.
Basilio Garcia appeals the 120-month sentence that the district court1 imposed
after he pleaded guilty to possessing with intent distribute over 50 grams of pure
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Invoking
Anders v. California, 386 U.S. 738 (1967), his counsel has moved to withdraw, filing
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
a brief in which he argues that the court erred in determining it lacked the discretion
to sentence Garcia below the 10-year statutory mandatory minimum, and that the
sentence was cruel and unusual punishment. In a pro se supplemental brief, Garcia
contends his counsel was ineffective for failing to seek a lower sentence under 21
U.S.C. § 841(b)(1)(B)(viii) (5-year minimum for offense involving “50 grams or more
of a mixture or substance containing a detectible amount of methamphetamine”). The
government has moved to dismiss the appeal or for summary disposition.
We conclude that the district court correctly determined that it had no authority
to sentence Garcia below the 10-year statutory mandatory minimum. See United
States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (only authority for district court
to depart from statutory minimum sentence is found in 18 U.S.C. § 3553(e) and (f),
which apply only when government makes substantial-assistance motion or defendant
qualifies for safety-valve relief); U.S.S.G. § 5C1.2(a)(1) (defendant cannot have more
than 1 criminal history point to be eligible for safety-valve relief).
We further conclude that the Eighth Amendment argument is without merit.
See United States v. Collins, 340 F.3d 672, 679 (8th Cir. 2003) (Eighth Amendment
forbids only extreme sentences that are grossly disproportionate to crime; mandatory
minimum penalties for drug offenses do not violate Eighth Amendment); United
States v. Mendoza, 876 F.2d 639, 641 (8th Cir. 1989) (mandatory minimum
sentencing does not violate right to be free from cruel and unusual punishment).
Finally, as to Garcia’s pro se argument that counsel was ineffective, we find no
reason to depart from the usual rule of requiring ineffective-assistance claims to be
raised in a 28 U.S.C. § 2255 motion. See United States v. Ramirez-Hernandez, 449
F.3d 824, 827 (8th Cir. 2006) (this court “will consider ineffective-assistance claims
on direct appeal only where the record has been fully developed, where not to act
would amount to a plain miscarriage of justice, or where counsel’s error is readily
apparent”). In any event, Garcia’s argument is without merit because he specifically
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admitted possessing with intent to distribute 81 grams of pure methamphetamine, and
he pled guilty to possessing with intent to distribute over 50 grams of pure
methamphetamine, which was the basis for the court’s imposition of the 10-year
mandatory minimum. See 21 U.S.C. § 841(b)(1)(A)(viii).
Accordingly, we affirm the judgment, grant counsel’s motion to withdraw, and
dismiss the government’s motion as moot.
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