United States v. Harrison Garcia

Court of Appeals for the Eleventh Circuit·Decided July 9, 2019·No. 17-13992·Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-13992

D.C. Docket No. 1:16-cr-20837-PAS-1

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus

HARRISON GARCIA, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of Florida

(July 9, 2019)

Before TJOFLAT, MARTIN, and TRAXLER, * Circuit Judges. MARTIN, Circuit Judge:

Harrison Garcia was tried and convicted of three drug offenses and two firearms offenses. Mr. Garcia appeals the denial of his motion to suppress and six adverse trial rulings, as well as the sufficiency of the evidence supporting his firearms convictions. After careful review, and with the benefit of oral argument, we affirm.

I.

In late 2015, a confidential informant told law enforcement that Mr. Garcia was selling drugs. Officers began surveilling one of his residences on SW 29th Street in Miami, Florida. They also began monitoring his profile on the social media service Instagram, where they discovered Mr. Garcia posted photos of himself with drugs and firearms.

Based on the surveillance, officers decided to make two controlled drug buys with a confidential informant. At both buys, Mr. Garcia exchanged narcotics for money. A few weeks later, officers searched the garbage at the 29th Street house. The search turned up marijuana paraphernalia and empty bottles of

*

Honorable William B. Traxler, Jr., United States Circuit Judge for the Fourth Circuit, sitting by designation.

promethazine with codeine (a high-strength cough syrup, known by the slang “sizzurp” or “lean,” that produces a mild feeling of euphoria).

With evidence from the controlled buys and the trash pull, officers got a warrant to search the 29th Street house and made a plan to arrest Mr. Garcia.

About 5:00 in the afternoon the day of the planned arrest, officers saw Mr.

Garcia leave the 29th Street house with a backpack. He drove off in a Suburban with three other men. Some distance away, twenty agents stopped the Suburban, arrested Mr. Garcia, and seized his backpack. The backpack contained a Glock .380, a green baggie filled with marijuana and moon rocks, and Mr. Garcia’s wallet and identification.

Once Mr. Garcia was secure, officers informed him they had a search warrant for the 29th Street house. They asked him for the keys to the 29th Street house to avoid breaking the door down, and Mr. Garcia handed them over.

Law enforcement then went to the 29th Street house and searched it. A Homeland Security Investigations (HSI) agent named Rimas Sliazas stayed with Mr. Garcia where he was arrested while other officers searched the house. In the search of the 29th Street house, officers found marijuana; moon rocks; a digital scale with marijuana residue on it; and two firearms, a Glock 9 millimeter and an FN Five-Seven.

About two hours after his arrest, Agent Sliazas brought Mr. Garcia to the 29th Street house. Agent Sliazas and Kevin Selent, another HSI agent, Mirandized Mr. Garcia and asked for his consent to search the 29th Street house as well as a condo Mr. Garcia also owned. Mr. Garcia waived his Miranda rights, consented to the searches, and signed forms confirming the waiver and consent. Mr. Garcia also gave agents the passcodes to his cell phones. And he admitted he was en route to a drug transaction when he left the 29th Street house.

The officers then took Mr. Garcia to his condo, where he again handed over the key. After a search, agents seized “a couple thousand pills” of alprazolam (Xanax), two firearms—an AK-47 and a Uzi 9 millimeter—and several empty medicine bottles.

Over the course of the evening, Mr. Garcia admitted to owning all the drugs and firearms the officers found. He said he trafficked in narcotics to supplement his main source of income—working in the music industry. He used the proceeds from his drug sales to buy high-end cars and firearms. He said he used the firearms for protection from rival drug dealers.

Later, law enforcement extracted text messages from Mr. Garcia’s phones.

Those messages showed Mr. Garcia sold drugs by phone and had photographs of promethazine with codeine.

II.

The government indicted Mr. Garcia on five counts. Three counts charged drug crimes: conspiracy to possess with intent to distribute marijuana, alprazolam (Xanax), and promethazine with codeine, in violation of 21 U.S.C. § 846; maintaining a drug-involved premises, in violation of 21 U.S.C. § 856; and possessing with intent to distribute Xanax, in violation of 21 U.S.C. § 841. The two remaining counts charged Mr. Garcia with possessing a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c). One of the § 924(c) counts charged possession of the F.N. Five-Seven, Glock 9 millimeter, and Glock .380 in furtherance of maintaining the drug involved premises, the 29th Street house. The other charged possession of the AK-47 and Uzi 9 millimeter found in Mr. Garcia’s condo in furtherance of possessing with intent to distribute Xanax.

Mr. Garcia filed a motion to suppress the statements he made after his arrest, claiming he invoked his right to counsel as soon as he was arrested. 1 A magistrate judge held a hearing on the motion and heard Mr. Garcia’s testimony. The magistrate judge issued a Report and Recommendation finding Mr. Garcia’s testimony that he invoked his right to counsel was not believable. The District Court adopted the Report and Recommendation and denied Mr. Garcia’s motion to

1 Below, Mr. Garcia also contended the search warrant contained false statements that rendered it invalid under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), but he does not press that argument on appeal.

suppress his post-arrest statements based on the adverse credibility finding of the magistrate judge.

Mr. Garcia moved to reconsider the denial of his suppression motion, asserting, among other things, that his testimony that he invoked his right to counsel was “unrebutted.” The District Court held a hearing on the reconsideration motion during which Mr. Garcia withdrew his motion. The District Court issued a supplemental order, again adopting the magistrate judge’s finding that Mr. Garcia never invoked his right to counsel.

Mr. Garcia proceeded to trial, and the jury convicted him of all counts. The District Court denied all post-trial motions and sentenced Mr. Garcia to a total of 30 years and one day in prison. The District Court imposed concurrent one day sentences for each of the drugs convictions. As the District Court was required by law to do, it imposed a five-year sentence on the first § 924(c) count and twenty- five years on the second one, to run consecutively to each other. The District Court set the one-day sentences for the drug counts to run consecutively to the sentences on the firearms counts.

This appeal followed.

III.

We begin with Mr. Garcia’s appeal of the denial of his motion to suppress.

“Review of a denial of a motion to suppress is a mixed question of law and fact.”

United States v. Bennett, 555 F.3d 962, 964 (11th Cir. 2009) (per curiam). This Court “review[s] de novo the district court’s application of the law to the facts” but reviews “factual findings only for clear error, construing all facts in the light most favorable to the prevailing party below.” Id. at 964–65.

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