United States v. Nicholas Garcia , 491 F. App'x 815 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 10 2012
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. 11-50460
Plaintiff - Appellee, D.C. No. 2:08-cr-01234-R-1
v.
MEMORANDUM *
NICHOLAS MYLES GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted August 7, 2012
Pasadena, California
Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.
Nicholas Myles Garcia (Garcia) appeals his 51-month sentence for
subscribing to a false tax return under 26 U.S.C. § 7206(1) and conspiracy under
18 U.S.C. § 371. In this case’s prior iteration, we reversed and remanded Garcia’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
initial 51-month sentence because the district court failed “to discuss any of the
applicable sentencing factors, explain how it resolved the parties’ dispute with
respect to the Guidelines calculations, or address Garcia’s request for a sentence
below the Guidelines range.” United States v. Garcia, 426 Fed. App’x 530, 531
(9th Cir. 2011). On remand, the government no longer sought the contested 2-point
sentencing enhancement and thus the parties agreed on a lower Guidelines range
(41-51 months, instead of the prior range of 51-63 months). The district court again
imposed a 51-month sentence. We have jurisdiction under 28 U.S.C. § 1291, and
we vacate and remand to a different district court judge for resentencing.
In the circumstances of this case, we find that the district court’s inadequate
explanation renders Garcia’s sentence procedurally erroneous. Gall v. United
States, 552 U.S. 38, 49 (2007). Although only a limited explanation is required for
within-Guideline sentences, United States v. Carty, 520 F.3d 894, 992 (9th Cir.
2008) (en banc), the district court nevertheless failed to “set forth enough to satisfy
the appellate court that [it] considered the parties’ arguments and ha[d] a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007). The district court began Garcia’s resentencing
hearing by noting that the remand requires it to give reasons, but it reimposed the
identical 51-month sentence, which was at the high end of the revised Guidelines
2
range, before providing any explanation. When the district court did explain, it
initially miscalculated the Guidelines range and – while it did include specific facts
about Garcia and his crime – was brief and simply repeated various parts of
§ 3553(a). Most important, the district court entirely ignored one of Garcia’s
principal arguments for mitigation (that he had been rehabilitated in prison,
supported by positive evaluations from prison officials) and dismissively rejected
the other (that his crimes were the result of significant emotional trauma suffered
during his childhood, supported by the report of a psychologist). Both were
“specific, nonfrivolous argument[s] tethered to a relevant § 3553(a) factor,” for
which a “judge should normally explain why he accepts or rejects the party’s
position,” Carty, 520 F.3d at 992. Because the record does not support the
conclusion that the district court made a “reasoned” decision, we find procedural
error and vacate the sentence.1
We also grant Garcia’s request that his case be remanded to a different judge
for resentencing. Because the initial judge has twice imposed an identical sentence,
we believe that he would have substantial difficulty in putting his previously
expressed views out of mind. United States v. Working, 287 F.3d 801, 809 (9th Cir.
1
Because we vacate the sentence, Garcia’s third claim on appeal – to
conform the written judgment of the supervised release conditions to the oral
pronouncement – is moot.
3
2002). Additionally, “[w]e do not believe that resentencing by another judge would
entail waste and duplication out of proportion to the gain achieved in preserving an
appearance of fairness, as a new sentencing hearing will be required whether the
case is reassigned or [not].” United States v. Paul, 561 F.3d 970 (9th Cir. 2009).
VACATED and REMANDED.
Judge Silverman concurs in the result.
4
FILED
United States v. Garcia, No. 11-50460 AUG 10 2012
MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, concurring: U .S. C O U R T OF APPE ALS
I concur in the result.