Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Defendant-Appellant Macario Garcia appeals his conviction of conspiracy and possession with the intent to distribute cocaine pursuant to 21 U.S.C. §§ 841(a) (1), 846 and his sentence of 163 months imprisonment. Garcia contends 1) that the district court erred in denying Garcia's motion to sever his trial from his co-defendants' trial and 2) that the Federal Sentencing Guidelines violate the due process clause of the Fifth Amendment.

I. Whether The District Court Erred In Denying Garcia's Severance Motion.

A district court's decision to deny a severance motion is reviewed for abuse of discretion. United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987). The test for such abuse is "whether a joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial." United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir. 1982). Garcia has the burden of proving that the joint trial produced "clear," "manifest," or "undue" prejudice. United States v. Candoli, 870 F.2d 496, 510 (9th Cir. 1989).

Garcia argues that he was prejudiced by the antagonistic defenses of his co-defendants, Arzate and Marino. A severance motion must be granted under the antagonistic defense theory only if the defenses are mutually exclusive--one defendant's aquittal precludes a co-defendant's aquittal. United States v. Polizzi, 801 F.2d 1543, 1554 (9th Cir. 1986).

All the defendants were charged pursuant to 21 U.S.C. §§ 841(a) (1), 846. At trial, Garcia testified that an undercover police officer entrapped him into participating in the cocaine transaction. Furthermore, Garcia attempted to minimize his involvement by blaming Arzate. Arzate, in turn, tried to minimize his involvement by claiming that Garcia organized the transaction. Marino testified that Garcia mistakenly identified Marino as the third participant in the cocaine transaction.

Although the defenses conflicted, they were not mutually exclusive. The jury could have accepted Arzate's testimony that Garcia was the organizer and still acquitted Garcia on the entrapment theory. Similarly, the jury could have acquitted Marino on the mistaken identity theory without precluding Garcia's aquittal.

Because the defenses were not mutually exclusive, the district court did not abuse its dicretion in denying Garcia's severance motion.

II. Whether the Federal Sentencing Guidelines violate the due process clause of the Fifth Amendment.

Garcia argues that the Guidelines are unconstitutional because they fail to require that the sentencing factors be proved beyond a reasonable doubt. This court recently rejected this very same argument in United States v. Wilson, 900 F.2d 1350 (9th Cir. 1990). Therefore, we affirm the sentence.

AFFIRMED.