* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Milton I. Shadur, Senior District J udge, United States District Court, Northern District of Illinois, sitt ing by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. AMADO GARCIA, Defendant - Appellant. No. 01-8098 and 02-8028 (D.C. No. 00-CR-101-03-D) (D. Wyoming)



### ORDER AND JUDGMENT *

Before SEYMOURand KELLY , Circuit Judges, and SHADUR , ** Senior District Judge.
Amado Garcia was convicted of various drug-related charges. He challenges his sentencing enhancement under 21 U.S. C. § 851, asserts a violation of Apprendi v. New Jersey , 530 U.S. 466 (2000), contends the district court erred by not immunizing a witness, and alleges ineffectiv e assistance of counsel. We affirm.-2-

Mr. Garcia was originally charged with conspiracy t o traffic in methamphetamine and possession with intent to deliv er. A superseding indictment added heroin distribution to the conspiracy, along with possession of heroin with intent to distribute. Thereafter, the government f iled an information under 21 U.S.C. § 851, indicating an intent to subject Mr. G arcia to an enhanced prison term under 21 U.S.C. § 841(b)(1)(A) based on a prior fel ony drug conviction. A jury convicted Mr. Garcia on all counts. A presentence report (PSR) was prepared and objections were filed. Mr. Garcia’s trial counsel withdrew and was replaced for the sentencing and appeal process. Mr. Garcia’s first contends the district court erre d in enhancing his sentence under 21 U.S.C. § 851. We review the legality of t he sentence de novo

. See United States v. Lopez-Gutierrez , 83 F.3d 1235, 1246 (10th Cir. 1996). The government’s § 851 information was served on Mr. Ga rcia’s counsel. It included as attachments the relevant court records related t o Mr. Garcia’s 1989 drug felony conviction in Fresno County, California. The distr ict court informed Mr. Garcia he had a right to have his attorney present during his interview with the probation officer in the preparation of the PSR, but Mr. Garc ia’s counsel did not attend. The PSR reflected the arrest and conviction from Fr esno County, as well as the subsequent revocation of Mr. Garcia’s probation while serving the sentence for that offense. Mr. Garcia objected, contending the California “offense did not take-3-

place” and the sentence enhancement was incorrect. The probation officer prepared an Addendum to the PSR, addressing all of the objections. This Addendum referred to Mr. Garcia’s admission during the presentence interview of his involvement in the California offense and his i ncarceration for it. At the sentencing hearing, the government presented a certified copy of the change of plea transcript from the Fresno County Superior Court for a case styled People v. Amado Garcia , a certified copy of a Fresno County Superior Court judgment in the same case, and a fax copy of a docu ment bearing the same defendant’s name and case number reporting the deta ils of the sentence. Mr. Garcia contended the documents constituted hearsay and had nothing to do with him. The court agreed to accept the documents on t he condition that the government show the defendant was the same man in b oth cases. Mr. Garcia now argues that the documents presented by the government were not properly authenticated pursuant to F ED . R. E VID . 901 and 902. However, the Federal Rules of Evidence are by their own term s expressly inapplicable to sentencing hearings. F ED . R. E VID . 1101(d)(3). The sentencing court is required only to ensure that the information on which it rel ies has “sufficient indicia of reliability to support its probable accuracy.” U.S .S.G. § 6A1.3(a). See also United States v. Browning , 61 F.3d 752, 755 (10th Cir. 1995). Most of the documents in this case were certified copies of pub lic records, which are self-1 The other documents were faxed from the Fresno Cou nty Superior Court

to the clerk’s office during the sentencing hearing while the district court waited, so there is little question of their reliability. -4- authenticating under F ED . R. E VID . 902(4). Thus, even if the Federal Rules of Evidence applied here, Mr. Garcia’s argument would fail because the documents meet the standard of sufficient indicia of reliabil ity. 1 Mr. Garcia next asserts he was not personally provi ded with a copy of the information that specified a 1989 Fresno County, Ca lifornia, conviction as the basis for a sentence enhancement. However, under § 851(a) the government may serve either the defendant or his lawyer. The gove rnment met the requirements of the statute by serving Mr. Garcia’s attorney. Mr. Garcia also argues the court employed “improperprocedures” in applying the enhancement, violating the rules of ev idence, the Fifth and Sixth Amendments, and unspecified “applicable statutes.” Beyond his earlier argument based on F ED . R. E VID . 902, Mr. Garcia does not elaborate on what statut es apply or how they or the Fifth or Sixth Amendment were vi olated. We do not consider arguments not properly developed in the briefs. See, e.g., Am. Airlines v. Christensen , 967 F.2d 410, 415 n.8 (10th Cir. 1992); Philips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992). See also F ED . R. A PP . P. 28(a)(9). As the Seventh Circuit has put it: “Judges are not like pigs, hunt ing for truffles buried in briefs.” United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991).-5-

Mr. Garcia next contends Miranda v. Arizona , 384 U.S. 436 (1966), was violated when the district court relied upon his ad mission of the Fresno conviction in his interview with the probation officer. Our p recedent conclusively forecloses this argument. We held in United States v. Rogers , 921 F.2d 975, 979-80 (10th Cir. 1990), that so long as defense counsel has notbeen affirmatively excluded, a voluntary post-conviction pre-sentence investigatio n interview does not constitute the sort of coercive interrogation environment gove rned by Miranda . The district court specifically informed Mr. Garcia he could hav e his attorney present at the interview if he wished. Mr. Garcia further maintains the district court use d the “preponderance of the evidence” standard rather than the “beyond a re asonable doubt” standard required by § 851(c)(1). He fails to support this contention with either explanation or specific citations to the record. While the dis trict court did not specifically reference either standard by name, we presume the d istrict court knows the requirements of the laws it applies absent evidence to the contrary. See Northington v. Marin , 102 F.3d 1564, 1570 (10th Cir. 1996); Griego v. Padilla (In Re Griego) , 64 F.3d 580, 584 (10th Cir. 1995). Because Mr. G arcia presented no specific evidence to the contrary, we apply the pre sumption and reject his contention of error. Mr. Garcia’s last argument regarding the § 851 enha ncement concerns the-6-

sufficiency of the evidence. We have already rejec ted his objections to the reliability of the documents establishing the fact that the conviction occurred. We therefore consider only whether the evidence was su fficient to show that Mr. Garcia is the same person as the Amado Garcia refer enced in those documents. Mr. Garcia relies on United States v. Green , 175 F.3d 822 (10th Cir. 1999), to support his contention, but Green is distinguishable. In that case, there was an issue of matching aliases to real names, while here the defendant in the Fresno County case had exactly the same name as Mr. Garcia . Moreover, there was evidence that Mr. Garcia lived in Fresno at the tim e of the Fresno County conviction. Finally, Mr. Garcia explicitly admitte d the conviction to the probation officer. All of the details of his admission corre spond to the details of the Fresno County case described in the documents provided by the government. Viewing the evidence in the light most favorable to the gov ernment, we conclude a rational trier of fact could have determined “beyond a reaso nable doubt” id. at 834, that the two Amado Garcias were one and the same person. Th e enhancement of Mr. Garcia’s sentence based on the prior California con viction was therefore appropriate. Mr. Garcia’s second major issue on appeal fails as a matter of law. He contends that increasing the mandatory minimum sent ence under 21 U.S.C. § 841(b)(1)(A) from ten years to twenty years, based on his 1989 drug felony-7-

conviction, violated Apprendi v. New Jersey , 530 U.S. 466 (2000). This argument is precluded by decisions of the Supreme Court and this circuit which conclusively hold to the contrary. Mr. Garcia’s maximum sentence was unaffected by the § 851 enhancement – it remained at life imprisonment. Only the mandato ry minimum was increased. In Harris v. United States , 536 U.S. 545 U.S. 545 (2002), the Court held thatfacts only channeling a sentencing court’s discretion wit hin a maximum range already established by Congress are not elements, but sente ncing factors. Id. at 552-56. The Court rejected the argument that Apprendiapplies to increases in minimum as well as maximum sentences. Id. at 568-69. Moreover, based on the Court’s statement in Almendarez-Torres v. United States , 523 U.S. 224, 241 (1998), that issues of recidivism are sentencing factors which m ay be properly decided by the court rather than the jury, we have held that a pri or conviction need not be a fact alleged in the indictment and submitted to the jury

. United States v. Wilson , 244 F.3d 1208, 1216-17 (10th Cir. 2001). For these rea sons, we reject Mr. Garcia’s Apprendiclaim as a matter of law. Mr. Garcia also asserts the district court erred by not granting immunity to Reuben Garcia, a defense witness. Although we revi ew the court’s refusal to grant immunity for abuse of discretion, United States v. LaHue , 261 F.3d 993, 1014 (10th Cir. 2001) (order in denial of rehearing), wh ere, as here, the defendant did2 We take the opportunity to note here that despite Mr. Garcia’s

protestations against his current appellate counsel and his continuing attempts to represent himself pro se in this appeal, we commend Mr. Pretty (the third attorney -8- not raise this issue in the district court, our rev iew is limited to “plain error” under F ED . R. C RIM . P. 52(b). We only correct “plain error” on appeal where it “seriously affects the fairness, integrity or publi c reputation of judicial proceedings.” See Jones v. United States , 527 U.S. 373, 389 (1999) (quoting United States v. Olano , 507 U.S. 725, 732 (1993)). Reuben Garcia was ind icted as a co-conspirator, but pled guilty. Defendant sough t to compel Reuben Garcia’s testimony, proffering only a conclusory statement o f his own noninvolvement in the conspiracy. The district court held a hearing on the motion to compel, but Reuben Garcia refused to testify based on his Fifth Amendment rights. At that time, it was apparent the court could not in fact c ompel Reuben Garcia’s testimony, nor could it compel the government to se ek immunity on his behalf. The defendant never asked the court to confer immun ity on its own authority. At the end of the hearing, the court stated the matter was effectively concluded by the impasse. This scenario is wholly in line with our precedent in United States v. Hunter , 672 F.2d 815, 817 (10th Cir. 1982), abrogation on other grounds recognized by United States v. Call , 129 F.3d 1402, 1404 (10th Cir. 1997). Finally, Mr. Garcia alleges the constitutional inef fectiveness of his trial counsel. 2 These claims are not reviewable on direct appeal. See United States v.so far for Mr. Garcia) for the excellent job he has done in representing his client

before us. -9- Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (de eming ineffective assistance claims on direct appeal “presumptively d ismissible”). Only in the rare cases in which ineffective assistance claims have a lready been fully developed in the record can the court consider them on direct ap peal. See United States v. Boigegrain , 155 F.3d 1181, 1186 (10th Cir. 1998); see also Massaro v. United States , 123 S. Ct. 1690, 1695-96 (2003). This is not one of those cases. There has been no factual development of these claims at all. If Mr. Garcia wishes to pursue them, he must bring these claims in a future 28 U.S .C. § 2255 proceeding. Accordingly, we AFFIRM the judgment of the district court. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge