United States v. Arsenio Garcia , 215 F. App'x 948 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 31, 2007
No. 06-11807 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-00532-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARSENIO GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 31, 2007)
Before ANDERSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Arsenio Garcia appeals the district court’s order granting a sentence
reduction based on substantial assistance under Fed.R.Crim.P. 35(b). On appeal,
Garcia argues that the district court erred by considering factors other than his
substantial assistance, such as the nature and circumstances of the underlying
offense and his prior criminal history, in determining the extent of the reduction.
In alternative, he argues the sentencing court erred by reducing his sentence
pursuant to a fixed sentencing policy instead of conducting an individualized
examination of the nature and extent of his substantial assistance.
We do not generally review the refusal to grant a substantial-assistance
departure or the extent of a departure. United States v. Luiz, 102 F.3d 466, 468
(11th Cir. 1996) (discussing a departure made pursuant to U.S.S.G. § 5K1.1).
However, we do review departures in instances where the defendant alleges that
the district court misapplied the relevant law in granting the departure. United
States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996).
Because Garcia failed to raise this issue below, the proper standard of review
is for plain error. See United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006)
(stating that when the appealing party does not clearly state the grounds for an
objection in the district court, this Court’s review is limited to plain error). “An
appellate court may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects substantial
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rights and then only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Massey, 443 F.3d at 818. Under the
third prong of plain error review, it is the defendant who is required to demonstrate
that the plain error affected his substantial rights. United States v. Shelton, 400
F.3d 1325, 1331 (11th Cir. 2005). In other words, it is the defendant’s burden to
show that the error “actually did make a difference.” Id. at 1332 (quotation
omitted).
Pursuant to Fed.R.Crim.P. 35(b), upon the government’s motion, a court
may reduce a defendant’s sentence after sentencing on the basis of his substantial
assistance. We have held that a district court may reduce a sentence under Rule
35(b) “only to reflect a defendant’s subsequent, substantial assistance in the
investigation or prosecution of another person.” United States v.
Chavarria-Herrara,15 F.3d 1033, 1037 (11th Cir. 1994) (quotation omitted). The
difference between a Rule 35(b) motion and a U.S.S.G. § 5K1.1 substantial-
assistance motion is temporal for § 5K1.1 is used at sentencing to reflect
substantial assistance rendered up until that moment while Rule 35(b) is used after
sentencing to reflect substantial assistance rendered after sentencing. See United
States v. Alvarez, 115 F.3d 839, 842 (11th Cir. 1997). To assist district courts in
evaluating the nature and extent of a defendant’s substantial assistance, U.S.S.G.
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§ 5K1.1 contains a list of substantial-assistance factors, which instructs courts to
consider:
(1) the court’s evaluation of the significance and usefulness of the
defendant’s assistance, taking into consideration the government’s
evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information
or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant
or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
U.S.S.G. § 5K1.1(a)(1)-(5). “In determining the extent of a substantial-assistance
departure, the district court must consider the factors set forth in § 5K1.1(a).”
United States v. Martin, 455 F.3d 1227, 1235 (11th Cir. 2006). However, the list
of § 5K1.1(a) factors is not exclusive. United States v. Crisp, 454 F.3d 1285, 1289
(11th Cir. 2006). Nevertheless, when “a district court grants a downward departure
under U.S.S.G. § 5K1.1 or reduces a sentence under Rule 35(b), the sentence
reduction may be based only on factors related to the defendant’s substantial
assistance.” United States v. McVay, 447 F.3d 1348, 1355 (11th Cir. 2006). In
granting the departure, “[t]he sentencing judge must . . . state the reasons for
reducing a sentence under this section.” U.S.S.G. § 5K1.1, comment. (backg’d)
(citing 18 U.S.C. § 3553(c)).
A court’s decision not to grant as large a departure as is requested, however,
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can be based on other factors. In Manella, the government filed a Rule 35(b)
motion based on the appellant’s continuing substantial assistance. 86 F.3d at 202.
At the hearing, the government argued for a reduction of 60 months, but the court
only granted a reduction of 7 months. Id. In determining the extent of the
reduction, the court considered the leniency of the original sentence imposed and
the factors listed in 18 U.S.C. § 3553(a)(1) and (2), including the nature and
circumstances of the offense of conviction and the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment. Id. On appeal, Manella challenged the order granting the
seven-month reduction, arguing that the court misapplied Rule 35(b) when it
considered factors other than his substantial assistance. Id. In particular, Manella
contended that his substantial assistance was the sole factor that the district court
could consider on a Rule 35(b) motion, and that the court erred when it considered
other factors that militated against a reduction in his case. Id. at 204. We rejected
Manella’s argument concluding that:
A careful reading of Rule 35(b) reveals that the text does not prohibit
the consideration of any factor other than the defendant’s substantial
assistance. The rule states that “[t]he court . . . may reduce a sentence
to reflect a defendant’s subsequent, substantial assistance . . . .”
Under this language, the only factor that may militate in favor of a
Rule 35(b) reduction is the defendant’s substantial assistance.
Nothing in the text of the rule purports to limit what factors may
militate against granting a Rule 35(b) reduction. Similarly, the rule
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does not limit the factors that may militate in favor of granting a
smaller reduction.
Id. (quoting Fed.R.Crim.P. 35(b)). We further noted that:
In this case, the district court weighed several factors against
Manella’s substantial assistance, including the seriousness of the
offense and the need for the sentence imposed to promote respect for
the law and provide just punishment. The district court’s
consideration of these factors was based on 18 U.S.C. § 3553, which
lists factors that the court is required to consider when imposing a
sentence. Rule 35(b) does not prohibit the consideration of these
factors in deciding to what extent a defendant’s sentence should be
reduced for substantial assistance.
Id. at 205 (footnote omitted).
Contrary to Garcia’s contention otherwise, the district court did not commit
any error, plain or otherwise, when it considered his non-assistance-related factors
in determining the extent of the departure. See Manella, 86 F.3d at 204-05. As we
explained in Manella, the district court was permitted under Rule 35(b), to consider
factors, including those listed in 18 U.S.C. § 3553(a), that militated in favor of
granting a smaller reduction. Id.
Turning to Garcia’s second argument, that district court erred when it
employed a rigid sentencing practice, we reject this argument because he did not
raise it below and it cannot survive plain error review. See United States v.
Cosgrove, 73 F.3d 297 (11th Cir. 1996) (rejecting similar argument because the
appellants did not object below). While there may have been error in this policy,
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Garcia has not shown that the error affected his substantial rights. Massey, 443
F.3d at 818; Shelton, 425 F.3d at 1331-32. Garcia has put forth no evidence that
had the court conducted an individualized examination of the nature and extent of
his substantial assistance in accordance with the § 5K1.1(a) factors, it would have
granted him a greater reduction.
Based on the parties’ briefs and the record, we discern no reversible error.
Accordingly, we affirm the district court’s order reducing Garcia’s sentencing
pursuant to Rule 35(b).
AFFIRMED. 1
1
Garcia’s request for oral argument is denied.
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