U.S. v. Garcia, 94-1146

• Decision Date: 08 August 1994
• Docket Number: No. 94-1146,94-1146
• Citation: 32 F.3d 1017
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1017

32 F.3d 1017

UNITED STATES of America, Plaintiff-Appellee, v. David GARCIA, Defendant-Appellant.

No. 94-1146.

United States Court of Appeals, Seventh Circuit.

Argued July 6, 1994.

Decided Aug. 8, 1994.

Rodger A. Heaton, Asst. U.S. Atty., Springfield, IL (argued), for U.S.

Christopher M. Stone, Chicago, IL (argued), for David Garcia.

Before BAUER, COFFEY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

David Garcia entered a guilty plea to a charge of conspiracy to distribute cocaine. Due to a prior state conviction for possession of cocaine, Garcia received a mandatory minimum sentence of twenty years, pursuant to 21 U.S.C. Sec. 841(b)(1)(A). Garcia argues that his state conviction does not constitute a "prior conviction for a felony drug offense," under Sec. 841(b)(1)(A), because it was related to the larger conspiracy to which he pleaded guilty.

I.

The indictment charged Garcia with conspiring to distribute cocaine from 1987 through at least September 16, 1992. Garcia pled guilty to a conspiracy lasting from "early 1990 through at least September 16, 1992." In calculating Garcia's sentence, the district court found that Garcia had conspired to distribute approximately 132 kilograms of cocaine. The court also considered Garcia's prior conviction for drug-related activity: on October 26, 1990, Garcia was arrested for possessing 3.87 grams of cocaine; his state conviction became final on March 7, 1991. The district court determined that the state conviction was a prior conviction as described in 21 U.S.C. Sec. 841(b)(1)(A), that qualified Garcia for a mandatory minimum sentence of twenty years and imposed a twenty-year sentence.

II.

The statute at issue is the penalty provision contained in 21 U.S.C. Sec. 841. It reads in pertinent part:

If any person commits [a violation of 21 U.S.C. Sec. 841(a)(1) ] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment.

21 U.S.C. Sec. 841(b)(1)(A) (emphasis added). Garcia argues that his state conviction for possession should not be considered a prior conviction because it was factually related to the federally charged conspiracy. He argues that the 3.87 grams of cocaine for which he was convicted in state court were merely "samples" that he carried in furtherance of the conspiracy for which he was convicted in federal court.

Garcia asserts that, according to United States v. Blackwood, 913 F.2d 139 (4th Cir.1990), if the prior activities are part of the same overall conduct, they should not be counted as prior offenses under Sec. 841(b)(1)(A). In Blackwood the question was whether the defendant's two prior convictions should be counted as one for purposes of the mandatory minimum sentence. The convictions resulted from possession of a controlled substance: within a period of two hours drugs were found both in the defendant's truck and in his motel room. In state court the defendant was convicted of two separate offenses, one for possession in the truck and one for possession in the motel. Later, in regard to a conviction in federal court for possession with intent to distribute, the federal judge counted the prior state convictions as one for purposes of enhancement under Sec. 841(b)(1)(A). The court determined that " '[p]rior' or 'previous convictions,' when used for sentence enhancement, means separate criminal episodes, not separate convictions arising out of a single transaction." Id. at 146. To be treated as separate convictions the offenses "should have occurred on occasions 'distinct in time.' " Id. at 147 (quoting United States v. Petty, 828 F.2d 2, 3 (8th Cir.1987)).

More relevant to the case at hand, however, is United States v. Hughes, 924 F.2d 1354 (6th Cir.1991), which was relied upon by the court in sentencing Garcia. In Hughes the defendant pled guilty to conspiracy to possess with intent to distribute. He argued that his prior state felony drug conviction was for possession of cocaine in connection with the conspiracy to which he pled guilty. The court followed the analysis in Blackwood and concluded that, although the prior conviction was related to the conspiracy charge, the convictions were "distinct in time." Id. The conspiracy continued for more than nine months after the possession offense occurred and for three months after the conviction became final. The court noted that the purpose of the mandatory minimum is to target recidivism, and the defendant had continued in his unlawful drug-related activity for three months after his conviction was final. Id. In a case following Hughes, the district court determined that prior state convictions for possession of a controlled substance should be used to enhance a subsequent sentence for conspiracy to distribute cocaine, despite the defendant's argument that the convictions were part of the ongoing conspiracy. United States v. Martinez, 1992 WL 82317, 1992 U.S.Dist. LEXIS 4953 (E.D.Pa. Apr. 13, 1992), aff'd without op., 989 F.2d 489 (3rd Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2946, 124 L.Ed.2d 693 (1993). The court pointed out that, as in Hughes, "the defendant had opportunity after the state felony conviction was finalized to discontinue his involvement in unlawful drug-related activity." Id.

Garcia asserts that, although the court in Hughes purported to follow Blackwood, it did not do so. Garcia does not acknowledge a major distinction between Hughes and Blackwood. Blackwood dealt with two prior convictions, resulting from a single criminal activity, that were considered as one for purposes of enhancement; Hughes addressed the relationship between the prior conviction and the conviction for which the defendant was being sentenced. Garcia's case is more similar to Hughes. Only one prior conviction, and its relationship to the instant offense, is at issue here. More significantly, in Blackwood, the second discovery of drugs occurred before the defendant had an opportunity to cease criminal activity; after the defendant's conviction in Hughes was final, the defendant continued to engage in drug-related activity. Likewise, Garcia continued to actively participate in the drug conspiracy for eighteen months after his state conviction became final, regardless of when he entered into the conspiracy.

United States v. Pace, 981 F.2d 1123 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1401, 122 L.Ed.2d 774 (1993), also supports the district court's judgment. In Pace the defendant was convicted of conspiracy to distribute a controlled substance based on twenty alleged overt acts, including five of which he was convicted as substantive offenses. The court rejected the defendant's argument that, because the substantive offenses also were alleged as...