                         United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                _____________

                                   No. 99-3650
                                  _____________

United States of America,              *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri
Rene Garcia, Jr.,                      *
                                       * [UNPUBLISHED]
             Appellant.                *
                                  ____________

                              Submitted: June 14, 2000
                                Filed: June 29, 2000
                                 ______________

Before:      WOLLMAN, Chief Judge, BEAM, Circuit Judge, and PANNER,1
             District Judge

PER CURIAM

      Rene Garcia, Jr. was convicted by a jury of conspiracy and possession with

intent to distribute methamphetamine. He argues that the district court2 erred by (1)

permitting testimony regarding prior drug dealings; (2) enhancing his sentence based


      1
              The Honorable Owen M. Panner, United States District Judge for the
District of Oregon, sitting by designation.
      2
            The Honorable D. Brook Bartlett, United States District Judge for the
Western District of Missouri.
on a finding that he was the leader of a five-participant conspiracy; (3) departing

upward based on a determination that his criminal history was understated; (4)

imposing an excessive fine; and (5) refusing to permit the filing of a supplemental

motion for new trial. We reject these arguments and we affirm.

1.    Prior Crimes Evidence

      We have regularly permitted trial courts to admit evidence of a defendant’s prior

drug dealings. See United States v. Oates, 173 F.3d 651, 660 (8th Cir.), cert. denied,

120 S. Ct. 213 (1999); United States v. Moore, 98 F.3d 347, 350 (8th Cir. 1996). We

have reviewed the record and conclude that the trial court did not abuse its discretion

in admitting the testimony here. See United States v. Davidson, 195 F.3d 402, 408 (8th

Cir. 1999), cert. denied, 120 S. Ct. 1218 (2000).

2.    Leadership Enhancement

      The district court did not clearly err by finding that there were five or more

participants in the conspiracy. See United States v. Simmons, 154 F.3d 765, 768 (8th

Cir. 1998).   Individuals who are not indicted or prosecuted, but who may be

“criminally responsible” for the crime, are considered participants under U.S.S.G. §

3B1.1(a). See United States v. Brockman, 183 F.3d 891, 899 (8th Cir. 1999), cert.

denied, 120 S. Ct. 800 (2000).       The record here supports the district court’s

determination that as many as eight individuals participated in Garcia’s scheme.


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3.    Upward Departure

      The district court did not abuse its discretion by departing upward from the

guideline range. See United States v. Herr, 202 F.3d 1014, 1016 (8th Cir. 2000). There

is “ample evidence that [Garcia’s] criminal history category did not reflect the

seriousness of his criminal activity.” See United States v. Collins, 104 F.3d 143, 145

(8th Cir. 1997); see also Herr, 202 F.3d at 1017 (affirming upward departure when

defendant’s “repeated violations show his disrespect for the law and that leniency has

not been effective”).

4.    Excessive Fine

      Garcia argues that the district court did not make express findings regarding his

ability to pay a fine. The fallacy of that argument is that Garcia refused to disclose his

assets prior to sentencing. See United States v. Berndt, 86 F.3d 803, 808 (8th Cir.

1996) (affirming amount of fine when defendant attempted to hide assets).

5.    Supplemental Motion

      The district court did not abuse its discretion by refusing to permit Garcia to file

a pro se supplemental motion for a new trial. See United States v. Garrett, 961 F.2d

743, 748 (8th Cir. 1992) (applying abuse of discretion standard to district court’s

refusal to permit defendant to file untimely motions). Garcia was given ample and

repeated opportunities to file such a motion, but simply failed to do so.


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We affirm the conviction and sentence imposed by the district court.

A true copy

       Attest:

              CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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