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United States of America v. Victor Garcia

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ARGUED AUGUST 7, 2012

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

The defendant pleaded guilty to attempting to possess cocaine, intending to distribute it, and was sentenced to 120 months in prison. He had given a person who, unbeknownst to him, was working with the federal Drug Enforcement Administration $477,020 for 32 kilograms of what he thought was cocaine (it wasn’t). After arresting him officers searched his apartment and found 13 kilograms of real cocaine. He hasn’t been prosecuted for that possession although he could have been because the five-year statute of limitations had not yet run. He challenged the legality of the search because he feared that the government might use the 13 kilograms against him at trial to bolster its case of attempt; the government did not deny that it might. His agreement to plead guilty provided that he could challenge the search and entitles him if the challenge succeeds to withdraw his plea of guilty. Apparently he thinks that in a trial he might be acquitted of attempted possession if the 13 kilograms of real cocaine were kept out of the case.

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