United States v. Garcia

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-30331 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL GARCIA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. CR-94-250-T - - - - - - - - - - September 30, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Miguel Garcia appeals his conviction of possession of

cocaine with intent to distribute and conspiracy to possess

cocaine with intent to distribute. He contends that the district

court erred by denying his motion to suppress; that the district

court erred by adjusting his offense level for possession of a

firearm; and that the district court erred by attributing 12.869

kilograms of cocaine to him.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-30331 - 2 -

First, Bernardo Garcia’s authority to consent to the search

of the apartment where he and Miguel Garcia resided extended to

Miguel Garcia’s bedroom. Miguel Garcia did not limit Bernardo

Garcia’s access to the bedroom in such a way as to diminish his

control over the premises. United States v. Richard, 994 F.2d

244, 250 (5th Cir. 1993).

Second, is it not clearly improbable that the pistol found

in Miguel Garcia’s bedroom was used in connection with

trafficking in the large amounts of cocaine seized from the

apartment or in the parking lot. The firearm adjustment was not

clearly erroneous. United States v. Castillo, 77 F.3d 1480, 1488

(5th Cir. 1996).

Third, the evidence indicated that Miguel Garcia could

reasonably have foreseen the cocaine delivered to Bernardo Garcia

in the parking lot. The finding that Miguel Garcia was

responsible for 12.869 kilograms of cocaine was not clearly

erroneous. United States v. Thomas, 963 F.2d 63, 64-65 (5th Cir.

1992).

AFFIRMED.