F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUL 28 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-8098 and 02-8028
v. (D.C. No. 00-CR-101-03-D)
(D. Wyoming)
AMADO GARCIA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR and KELLY, Circuit Judges, and SHADUR, ** Senior District
Judge.
Amado Garcia was convicted of various drug-related charges. He
challenges his sentencing enhancement under 21 U.S.C. § 851, asserts a violation
of Apprendi v. New Jersey, 530 U.S. 466 (2000), contends the district court erred
by not immunizing a witness, and alleges ineffective assistance of counsel. We
affirm.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable Milton I. Shadur, Senior District Judge, United States
**
District Court, Northern District of Illinois, sitting by designation.
Mr. Garcia was originally charged with conspiracy to traffic in
methamphetamine and possession with intent to deliver. A superseding indictment
added heroin distribution to the conspiracy, along with possession of heroin with
intent to distribute. Thereafter, the government filed an information under 21
U.S.C. § 851, indicating an intent to subject Mr. Garcia to an enhanced prison term
under 21 U.S.C. § 841(b)(1)(A) based on a prior felony drug conviction. A jury
convicted Mr. Garcia on all counts. A presentence report (PSR) was prepared and
objections were filed. Mr. Garcia’s trial counsel withdrew and was replaced for
the sentencing and appeal process.
Mr. Garcia’s first contends the district court erred in enhancing his sentence
under 21 U.S.C. § 851. We review the legality of the sentence de novo. See
United States v. Lopez-Gutierrez, 83 F.3d 1235, 1246 (10th Cir. 1996). The
government’s § 851 information was served on Mr. Garcia’s counsel. It included
as attachments the relevant court records related to Mr. Garcia’s 1989 drug felony
conviction in Fresno County, California. The district court informed Mr. Garcia
he had a right to have his attorney present during his interview with the probation
officer in the preparation of the PSR, but Mr. Garcia’s counsel did not attend.
The PSR reflected the arrest and conviction from Fresno County, as well as
the subsequent revocation of Mr. Garcia’s probation while serving the sentence for
that offense. Mr. Garcia objected, contending the California “offense did not take
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place” and the sentence enhancement was incorrect. The probation officer
prepared an Addendum to the PSR, addressing all of the objections. This
Addendum referred to Mr. Garcia’s admission during the presentence interview of
his involvement in the California offense and his incarceration for it.
At the sentencing hearing, the government presented a certified copy of the
change of plea transcript from the Fresno County Superior Court for a case styled
People v. Amado Garcia, a certified copy of a Fresno County Superior Court
judgment in the same case, and a fax copy of a document bearing the same
defendant’s name and case number reporting the details of the sentence. Mr.
Garcia contended the documents constituted hearsay and had nothing to do with
him. The court agreed to accept the documents on the condition that the
government show the defendant was the same man in both cases.
Mr. Garcia now argues that the documents presented by the government
were not properly authenticated pursuant to F ED . R. E VID . 901 and 902. However,
the Federal Rules of Evidence are by their own terms expressly inapplicable to
sentencing hearings. F ED . R. E VID . 1101(d)(3). The sentencing court is required
only to ensure that the information on which it relies has “sufficient indicia of
reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). See also
United States v. Browning, 61 F.3d 752, 755 (10th Cir. 1995). Most of the
documents in this case were certified copies of public records, which are self-
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authenticating under F ED . R. E VID . 902(4). Thus, even if the Federal Rules of
Evidence applied here, Mr. Garcia’s argument would fail because the documents
meet the standard of sufficient indicia of reliability. 1
Mr. Garcia next asserts he was not personally provided with a copy of the
information that specified a 1989 Fresno County, California, conviction as the
basis for a sentence enhancement. However, under § 851(a) the government may
serve either the defendant or his lawyer. The government met the requirements of
the statute by serving Mr. Garcia’s attorney.
Mr. Garcia also argues the court employed “improper procedures” in
applying the enhancement, violating the rules of evidence, the Fifth and Sixth
Amendments, and unspecified “applicable statutes.” Beyond his earlier argument
based on F ED . R. E VID . 902, Mr. Garcia does not elaborate on what statutes apply
or how they or the Fifth or Sixth Amendment were violated. We do not consider
arguments not properly developed in the briefs. See, e.g., Am. Airlines v.
Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992); Philips v. Calhoun, 956 F.2d
949, 953-54 (10th Cir. 1992). See also F ED . R. A PP . P. 28(a)(9). As the Seventh
Circuit has put it: “Judges are not like pigs, hunting for truffles buried in briefs.”
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
1
The other documents were faxed from the Fresno County Superior Court
to the clerk’s office during the sentencing hearing while the district court waited,
so there is little question of their reliability.
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Mr. Garcia next contends Miranda v. Arizona, 384 U.S. 436 (1966), was
violated when the district court relied upon his admission of the Fresno conviction
in his interview with the probation officer. Our precedent conclusively forecloses
this argument. We held in United States v. Rogers, 921 F.2d 975, 979-80 (10th
Cir. 1990), that so long as defense counsel has not been affirmatively excluded, a
voluntary post-conviction pre-sentence investigation interview does not constitute
the sort of coercive interrogation environment governed by Miranda. The district
court specifically informed Mr. Garcia he could have his attorney present at the
interview if he wished.
Mr. Garcia further maintains the district court used the “preponderance of
the evidence” standard rather than the “beyond a reasonable doubt” standard
required by § 851(c)(1). He fails to support this contention with either explanation
or specific citations to the record. While the district court did not specifically
reference either standard by name, we presume the district court knows the
requirements of the laws it applies absent evidence to the contrary. See
Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996); Griego v. Padilla (In
Re Griego), 64 F.3d 580, 584 (10th Cir. 1995). Because Mr. Garcia presented no
specific evidence to the contrary, we apply the presumption and reject his
contention of error.
Mr. Garcia’s last argument regarding the § 851 enhancement concerns the
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sufficiency of the evidence. We have already rejected his objections to the
reliability of the documents establishing the fact that the conviction occurred. We
therefore consider only whether the evidence was sufficient to show that Mr.
Garcia is the same person as the Amado Garcia referenced in those documents.
Mr. Garcia relies on United States v. Green, 175 F.3d 822 (10th Cir. 1999), to
support his contention, but Green is distinguishable. In that case, there was an
issue of matching aliases to real names, while here the defendant in the Fresno
County case had exactly the same name as Mr. Garcia. Moreover, there was
evidence that Mr. Garcia lived in Fresno at the time of the Fresno County
conviction. Finally, Mr. Garcia explicitly admitted the conviction to the probation
officer. All of the details of his admission correspond to the details of the Fresno
County case described in the documents provided by the government. Viewing
the evidence in the light most favorable to the government, we conclude a rational
trier of fact could have determined “beyond a reasonable doubt” id. at 834, that the
two Amado Garcias were one and the same person. The enhancement of Mr.
Garcia’s sentence based on the prior California conviction was therefore
appropriate.
Mr. Garcia’s second major issue on appeal fails as a matter of law. He
contends that increasing the mandatory minimum sentence under 21 U.S.C. §
841(b)(1)(A) from ten years to twenty years, based on his 1989 drug felony
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conviction, violated Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument
is precluded by decisions of the Supreme Court and this circuit which conclusively
hold to the contrary.
Mr. Garcia’s maximum sentence was unaffected by the § 851 enhancement –
it remained at life imprisonment. Only the mandatory minimum was increased. In
Harris v. United States, 536 U.S. 545 U.S. 545 (2002), the Court held that facts
only channeling a sentencing court’s discretion within a maximum range already
established by Congress are not elements, but sentencing factors. Id. at 552-56.
The Court rejected the argument that Apprendi applies to increases in minimum as
well as maximum sentences. Id. at 568-69. Moreover, based on the Court’s
statement in Almendarez-Torres v. United States, 523 U.S. 224, 241 (1998), that
issues of recidivism are sentencing factors which may be properly decided by the
court rather than the jury, we have held that a prior conviction need not be a fact
alleged in the indictment and submitted to the jury. United States v. Wilson, 244
F.3d 1208, 1216-17 (10th Cir. 2001). For these reasons, we reject Mr. Garcia’s
Apprendi claim as a matter of law.
Mr. Garcia also asserts the district court erred by not granting immunity to
Reuben Garcia, a defense witness. Although we review the court’s refusal to grant
immunity for abuse of discretion, United States v. LaHue, 261 F.3d 993, 1014
(10th Cir. 2001) (order in denial of rehearing), where, as here, the defendant did
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not raise this issue in the district court, our review is limited to “plain error” under
F ED . R. C RIM . P. 52(b). We only correct “plain error” on appeal where it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” See Jones v. United States, 527 U.S. 373, 389 (1999) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). Reuben Garcia was indicted as
a co-conspirator, but pled guilty. Defendant sought to compel Reuben Garcia’s
testimony, proffering only a conclusory statement of his own noninvolvement in
the conspiracy. The district court held a hearing on the motion to compel, but
Reuben Garcia refused to testify based on his Fifth Amendment rights. At that
time, it was apparent the court could not in fact compel Reuben Garcia’s
testimony, nor could it compel the government to seek immunity on his behalf.
The defendant never asked the court to confer immunity on its own authority. At
the end of the hearing, the court stated the matter was effectively concluded by the
impasse. This scenario is wholly in line with our precedent in United States v.
Hunter, 672 F.2d 815, 817 (10th Cir. 1982), abrogation on other grounds
recognized by United States v. Call, 129 F.3d 1402, 1404 (10th Cir. 1997).
Finally, Mr. Garcia alleges the constitutional ineffectiveness of his trial
counsel. 2 These claims are not reviewable on direct appeal. See United States v.
2
We take the opportunity to note here that despite Mr. Garcia’s
protestations against his current appellate counsel and his continuing attempts to
represent himself pro se in this appeal, we commend Mr. Pretty (the third attorney
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Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (deeming ineffective
assistance claims on direct appeal “presumptively dismissible”). Only in the rare
cases in which ineffective assistance claims have already been fully developed in
the record can the court consider them on direct appeal. See United States v.
Boigegrain, 155 F.3d 1181, 1186 (10th Cir. 1998); see also Massaro v. United
States, 123 S. Ct. 1690, 1695-96 (2003). This is not one of those cases. There has
been no factual development of these claims at all. If Mr. Garcia wishes to pursue
them, he must bring these claims in a future 28 U.S.C. § 2255 proceeding.
Accordingly, we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
so far for Mr. Garcia) for the excellent job he has done in representing his client
before us.
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