FILED
NOT FOR PUBLICATION
FEB 21 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10444
Plaintiff-Appellee, D.C. No. 1:13-cr-00219-DKW-2
v.
MEMORANDUM*
JOHN GARCIA IV,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted February 13, 2018
Honolulu, Hawaii
Before: O’SCANNLAIN, CLIFTON, and IKUTA, Circuit Judges.
Defendant-appellant John Garcia IV appeals his jury conviction and
sentence for possession of and conspiracy to possess methamphetamine and
cocaine with intent to distribute. Garcia raises three issues on appeal. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The district court did not violate Garcia’s Confrontation Clause right
when it denied the defense’s request to recross-examine one of the government’s
cooperating witnesses. “Allowing recross is within the sound discretion of the trial
court except where new matter is elicited on redirect examination.” United States v.
Baker, 10 F.3d 1374, 1404 (9th Cir. 1993) (overruled on other grounds by United
States v. Nordby, 225 F.3d 1053 (9th Cir. 2000)). The government did not elicit
any new matters on redirect. The government asked additional questions about the
witness’s plea agreement and interviews with government agents, both of which
Garcia’s counsel raised on cross. Moreover, any error was harmless beyond a
reasonable doubt in light of the substantial evidence against Garcia. See Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986).
2. The district court did not abuse its discretion in admitting Garcia’s
prior state conviction for possession of a user-quantity of methamphetamine under
Fed. R. Evid. 404(b). Although generally evidence of prior drug use is not relevant
on charges of conspiracy or intent to distribute narcotics, it may be admissible to
show “absence of mistake or accident in the charged transaction.” United States v.
Ramirez-Robles, 386 F.3d 1234, 1243 (9th Cir. 2004); see also United States v.
Hegwood, 977 F.2d 492, 497 (9th Cir. 1992). Here, the government introduced
Garcia’s prior conviction as proof that it was not a mistake or accident that drugs
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were found in Garcia’s apartment, and to show that Garcia had knowledge of their
presence. Garcia’s prior conviction was not too remote in time under our
precedent. United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997); United
States v. Vo, 413 F.3d 1010, 1018-19 (9th Cir. 2005). Moreover, any error in
admitting the evidence was harmless given the strength of the government’s case.
See United States v. Hill, 953 F.2d 452, 458 (9th Cir. 1991).
3. The district court did not err in denying Garcia a minor role reduction
under U.S.S.G. § 3B1.2. Although the district court did not specifically address
each of the five factors listed in the 2015 Amendment to this section of the
Sentencing Guidelines, the Ninth Circuit does not require judges to “tick off” each
factor. United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Garcia’s counsel briefed these five factors in depth and drew the court’s attention
to them during the sentencing. The record reflects that the district court
appropriately weighed and discussed the factors, without enumerating them.
Considering the totality of the circumstances, the district court did not abuse its
discretion in denying Garcia a sentencing reduction.
AFFIRMED.
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