                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 28 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10481

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00914-FRZ-
                                                 JCG-1
  v.

NORMAN GARCIA,                                   MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                 Frank R. Zapata, Senior District Judge, Presiding

                      Argued and Submitted January 15, 2013
                            San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

       Norman Garcia was indicted on two counts of Assault with a Dangerous

Weapon, in violation of 18 U.S.C. §§ 113(a) and 1153(a), and one count of

Possession and Use of a Firearm in Relation to a Crime of Violence, in violation of

18 U.S.C. § 924(c)(1)(A)(iii). Following a joint trial with one co-defendant, the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jury convicted Garcia on all counts and the district court sentenced him to eleven

years imprisonment. Garcia now appeals his conviction and sentence. The parties

are familiar with the facts. We affirm.

      Garcia contends that the district court erred by denying his motion to sever.

The denial of a motion to sever is reviewed for abuse of discretion. United States v.

Jenkins, 785 F.2d 1387, 1393 (9th Cir. 1986). Garcia must show that “joinder was

so manifestly prejudicial that it outweighed the dominant concern with judicial

economy.” United States v. Douglass, 780 F.2d 1472, 1478 (9th Cir. 1986). Garcia

makes three arguments that he was unduly prejudiced by the joint trial: (1) that

there was a disparity in the weight of the evidence offered against him and his co-

defendant; (2) that the jury instructions were inadequate; and (3) that the

confession of his co-defendant violated the rule in Bruton v. United States, 391

U.S. 123 (1968).

      Each of these arguments fails. The jury could compartmentalize the evidence

offered against the two defendants and thus Garcia was not prejudiced by a joint

trial. See United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980); see also

United States v. Monks, 774 F.2d 945, 949 (9th Cir. 1985). The trial judge gave

clear instructions to the jury that neutralized any potential prejudice. See Escalante,

637 F.2d at 1201–02. Garcia’s co-defendant testified at trial and was subject to


                                           2
cross-examination, and therefore Bruton does not apply. See Bruton, 391 U.S. at

126-128.

       Garcia also argues that there was insufficient evidence to prove the intent

element of his assault conviction. We review a sufficiency of the evidence claim de

novo. United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). We must

“determine whether ‘after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). The record contained sufficient facts from which the jury could infer that

Garcia had the requisite intent. See United States v. Birges, 723 F.2d 666, 672 (9th

Cir. 1984).

       Next, Garcia contends that the district court should have instructed the jury

regarding the lesser-included offense of simple assault even though he did not

request it at trial. A challenge to the district court’s failure to give a lesser-included

offense instruction sua sponte is reviewed for plain error. United States v. Parker,

991 F.2d 1493, 1496 (9th Cir. 1993). “Plain error is found only in exceptional

circumstances, when the error is highly prejudicial, affects substantial rights, and it

is highly probable that it materially affected the verdict.” United States v. Sanchez,


                                             3
914 F.2d 1355, 1358 (9th Cir. 1990). The jury had ample evidence to convict

Garcia for the charged offense and Garcia fails to establish that it is highly

probable that a lesser-included instruction would have changed the verdict. See id.

at 1358, 1360–61. There was no plain error.

      Finally, Garcia argues that his consecutive sentences for convictions under

18 U.S.C. §§ 113(a)(3) and 1153(a) in addition to § 924(c) run afoul of the Double

Jeopardy clause. Consecutive sentences do not violate the Double Jeopardy clause

when “each count of the indictment requires proof of a fact that the other does

not.” United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir. 1986) (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)). Garcia’s convictions

satisfy the Blockburger test; Sections 924(c)(1)(A)(iii) and 113(a)(3) each require

proof of at least one fact that the other does not.

      AFFIRMED.




                                            4
