United States v. Michael Garcia

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 26, 2023
• Docket: 22-4700
• Status: Unpublished

Opinion

USCA4 Appeal: 22-4700 Doc: 19 Filed: 06/26/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4700

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL SCOTT GARCIA,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:21-cr-00291-WO-1)

Submitted: June 22, 2023 Decided: June 26, 2023

Before HARRIS and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Louis C. Allen, Federal Public Defender, Charles L. White, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Frank Joseph Chut, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4700 Doc: 19 Filed: 06/26/2023 Pg: 2 of 4

PER CURIAM:

Michael Scott Garcia appeals his convictions and the 148-month sentence imposed

following his guilty plea, pursuant to a written plea agreement, to possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2) (2018). * Garcia’s counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), concluding that there are no meritorious grounds for appeal but

questioning whether the district court erred by imposing two Sentencing Guidelines

enhancements based on its determination that the offense involved at least three firearms,

see U.S. Sentencing Guidelines Manual § 2K2.1(b)(1)(A) (2021), including one with an

altered or obliterated serial number, see USSG § 2K2.1(b)(4)(B). Although he was

informed of his right to file a pro se supplemental brief, Garcia has not done so. The

Government has declined to file a response brief or to move to enforce the appeal waiver

contained in Garcia’s plea agreement. Finding no error, we affirm.

At sentencing, Garcia contended that he never possessed a specific firearm with an

altered serial number and that, without that firearm, neither of the challenged offense

enhancements were applicable. “In evaluating whether the district court properly applied

* Section 924(a)(2) was amended and no longer provides the penalty for § 922(g) convictions; the new penalty provision in 18 U.S.C. § 924(a)(8) sets forth a statutory maximum sentence of 15 years’ imprisonment for a § 922(g) offense. See Bipartisan Safer Communities Act, Pub. L. No. 117-159, § 12004(c), 136 Stat. 1313, 1329 (2022). The 15-year statutory maximum does not apply in this case, however, because Garcia’s offense was committed before the June 25, 2022, amendment of the statute.

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the advisory sentencing guidelines, we review the district court’s factual findings for clear

error and its legal conclusions de novo.” United States v. Pena, 952 F.3d 503, 507 (4th

Cir. 2020). A factual finding is clearly erroneous if, “although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.” United States v. Wooden, 887 F.3d 591, 602 (4th Cir.

2018) (internal quotation marks omitted). “If the district court’s account of the evidence

is plausible in light of the record viewed in its entirety, the court of appeals may not reverse

it even though convinced that had it been sitting as the trier of fact, it would have weighed

the evidence differently.” United States v. Ferebee, 957 F.3d 406, 417 (4th Cir. 2020)

(internal quotation marks omitted).

The Government is required to prove disputed Guidelines enhancements by a

preponderance of the evidence. United States v. Kobito, 994 F.3d 696, 701 (4th Cir. 2021).

“This burden simply requires the trier of fact to believe that the existence of a fact is more

probable than its nonexistence.” United States v. Patterson, 957 F.3d 426, 435 (4th Cir.

2020) (internal quotation marks omitted). Unlawful possession of a firearm may be actual

or constructive and exclusive or joint. United States v. Lawing, 703 F.3d 229, 240 (4th Cir.

2012). “A defendant may have constructive possession of contraband even if it is not in

his immediate possession or control.” United States v. Shorter, 328 F.3d 167, 172 (4th Cir.

2003). Constructive possession must be intentional, see United States v. Al Sabahi, 719

F.3d 305, 311 (4th Cir. 2013), and requires both that the defendant “knew of the

contraband’s presence and had the power to exercise dominion and control over it,” United

States v. Hall, 858 F.3d 254, 259 (4th Cir. 2017) (cleaned up). “[M]ere proximity to the

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contraband, . . . mere presence on the property where the contraband is found, or . . . mere

association with the person who does control the contraband” is insufficient to establish

dominion and control over the contraband. United States v. Blue, 808 F.3d 226, 232 (4th

Cir. 2015).

Viewing the evidence in light of these standards, we discern no clear error in the

district court’s finding that Garcia constructively possessed the third firearm underlying

the enhancements. In accordance with Anders, we have reviewed the entire record in this

case and have found no meritorious grounds for appeal. We therefore affirm the district

court’s amended judgment. This court requires that counsel inform Garcia, in writing, of

the right to petition the Supreme Court of the United States for further review. If Garcia

requests that a petition be filed, but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Garcia. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED