United States v. Garcia-Damian , 702 F. App'x 743 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2250
(D.C. No. 2:15-CR-00123-KG-1)
ANDRES GARCIA-DAMIAN, a/k/a (D.N.M.)
Damian Andres Garcia,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.
_________________________________
Andres Garcia-Damian appeals his 46-month sentence for illegal reentry.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I
Garcia-Damian is a Mexican citizen. On March 25, 2015, he pled guilty to one
count of illegal reentry after removal in violation of 8 U.S.C. § 1326. Prior to his
removal, Garcia-Damian lived in Texas for approximately eleven years. In August
2012, he pled guilty to a domestic violence assault charge involving his wife, for
which he received a 45-day sentence. And in November 2013, he pled guilty to one
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
count of Indecency With a Child – Sexual Contact, which is a second degree felony
in Texas. He received a deferred sentence of six years’ probation. This conviction
stemmed from approximately eight instances of Garcia-Damian asking his eight-year-
old stepdaughter to sit on his lap and rubbing her private area with his hand over her
clothes. As a result of this conviction, Garcia-Damian was removed to Mexico in
June 2014. Four months later he was apprehended in New Mexico, leading to the
current illegal reentry charge.
Applying the 2014 version of the Sentencing Guidelines, a Presentence
Investigation Report (“PSR”) calculated Garcia-Damian’s total offense level at 21,
with a criminal history category of III, for an advisory Guidelines range of 46-57
months’ imprisonment. The total offense level was calculated using a base offense
level of eight, a sixteen-level enhancement for removal following a felony conviction
for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014), and a three-level
reduction for acceptance of responsibility. Garcia-Damian’s criminal history
category was based on his prior assault and indecency charges, and the fact that he
committed the illegal reentry offense while on probation. See § 4A1.1(c), (d) (2014).
The PSR recommended a within-Guidelines sentence.
Garcia-Damian moved for a downward variance on the grounds that his wife
and stepdaughter, who were the victims of his prior crimes, supported him. He also
filed an objection to the PSR’s sixteen-level enhancement, arguing that it should not
apply because his indecency offense did not qualify as a “crime of violence” under
the applicable Guideline.
2
At sentencing, the district court denied Garcia-Damian’s requested variance
after considering the motion, counsels’ statements at the hearing, and two letters of
support written by his wife and stepdaughter. The court concluded that it was “not
inclined to grant a variance based on that motion or any other basis that you might
have in mind.” However, it continued the hearing to allow further briefing on the
PSR objection. At the continued hearing, the district court heard oral argument from
both parties and an allocution statement from Garcia-Damian. It then overruled
Garcia-Damian’s objection to the PSR and imposed a 46-month sentence, stating:
I’m finding that the [indecency] conviction in the defendant’s [PSR], . .
. and the 16-level enhancement . . . are appropriate and applicable in this
particular case as a crime of violence, so the objection is overruled.
I reviewed the entirety of the [PSR] as well as the factual findings, all of
. . . Mr. Garcia’s criminal history, I’ve considered the sentencing
guideline applications and the factors in 18 United States Code Section
3553(a)(1) through (7).
The offense level is 21, the criminal history category is III, the range is
46 to 57 months.
I note that the defendant, Mr. Garcia, reentered the United States
unlawfully after he had been deported, and that was after being
convicted of a felony crime of violence.
Garcia-Damian now appeals both the procedural and substantive reasonableness of
his sentence.1
1
Garcia-Damian’s original counsel failed to file an appeal. In a subsequent 28
U.S.C. § 2255 proceeding, the district court determined that counsel was ineffective
for failing to consult with Garcia-Damian about his desire to appeal. Consequently,
final judgment was vacated and re-entered to permit the timely filing of this direct
appeal.
3
II
On appeal, Garcia-Damian asserts a series of procedural reasonableness
challenges that he did not raise before the district court. Accordingly, we review for
plain error and will reverse only if there is “(1) error, (2) that is plain, (3) which
affects substantial rights, and (4) which seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Romero, 491 F.3d 1173,
1176-78 (10th Cir. 2007). A district court commits procedural error by “failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
Garcia-Damian argues that the district court failed to adequately explain its
sentence and its rejection of his motion for a downward variance. When imposing a
within-Guidelines sentence, a court must state “the reasons for its imposition of the
particular sentence.” § 3553(c). However, our circuit has repeatedly stated that
§ 3553(c) requires only that a district court provide “a general statement noting the
appropriate guideline range and how it was calculated.” United States v. Ruiz-
Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007) (quotations omitted). “[T]his general
statement need involve no ritualistic incantation to establish consideration of a legal
issue, nor do we demand that the district court recite any magic words to prove that it
considered the various [§ 3553(a)] factors . . . .” Id. (quotations omitted).
4
In Ruiz-Terrazas, we reviewed the rejection of a downward variance motion
and a sentencing explanation that is almost identical to that provided by the district
court below. We concluded “the district court committed no error at all.” Id. at
1199. Thus, although we agree that “a more detailed sentencing explanation can
often prove beneficial, even if it is not mandatory,” id. at 1202, in light of the
substantially similar explanation deemed sufficient in Ruiz-Terrazas, we cannot say
that any error the district court might have committed in this case was plain.2
Garcia-Damian also argues that the district court erroneously presumed the
applicable Guidelines range was reasonable. Unlike appellate courts, district courts
“do[] not enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Rita v United States, 551 U.S. 338, 351 (2007). However, Garcia-Damian
has failed to show that the district court committed such an error. The court never
expressly applied such a presumption, and Garcia-Damian has not identified a case in
which this court found reversible error without an express application. See, e.g.,
2
None of the cases Garcia-Damian references affect this conclusion. First,
United States v. Brown, 654 F. App’x 896 (10th Cir. 2016) (unpublished), involved
an outside-Guidelines sentence and is thus inapposite. See United States v. Fraser,
647 F.3d 1242, 1246 (10th Cir. 2011) (noting sentencing court’s explanatory
obligation differs for outside-Guidelines sentences). Second, because we concluded
that the sentencing explanation in United States v. McComb, 519 F.3d 1049 (10th
Cir. 2007), “met[] and exceeded” the legal requirement, id. at 1055, that case does
not purport to set the floor for a legally sufficient sentencing explanation, id. at 1056(“[W]e have upheld sentences that have done far less to address a defendant’s request
for a different sentence.”). Finally, in United States v. Sanchez-Juarez, 446 F.3d
1109 (10th Cir. 2006), we remanded because the district court did not mention the
§ 3553(a) factors and the record provided “no indication” that it had considered them.
Id. at 1116. In contrast, the district court in this case entertained Garcia-Damian’s
variance motion and oral argument from both parties about the § 3553(a) factors, and
it stated that it had considered the factors before imposing a final sentence.
5
United States v. Conlan, 500 F.3d 1167, 1168-69 (10th Cir. 2007) (district court
noted “the presumption of reasonableness of the guidelines” at sentencing).
“[A]bsent some indication in the record suggesting otherwise,” we presume that
sentencing courts “know the law and apply it in making their decisions.” Ruiz-
Terrazas, 477 F.3d at 1201 (quotations omitted).
Finally, Garcia-Damian asserts that the district court committed error by
failing to apply § 4A1.3(b)(1) of the Guidelines, which allows for a downward
departure if the defendant’s “criminal history category substantially over-represents
the seriousness of the defendant’s criminal history” or likelihood of recidivism.
However, Garcia-Damian did not move for a downward departure on this basis, and
he provides no case law to support the proposition that a district court commits
procedural error by failing to grant an unrequested discretionary departure.
Accordingly, we discern no plain error. See United States v. Sierra-Castillo, 405
F.3d 932, 938 (10th Cir. 2005) (“The defendant has the burden of proving entitlement
to a downward departure.”).
III
We next review the substantive reasonableness of Garcia-Damian’s sentence.
“[S]ubstantive reasonableness addresses whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.
2008) (quotation omitted). We review the substantive reasonableness of “all
sentences—whether inside, just outside, or significantly outside the Guidelines
6
range—under a deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41. A
within-Guidelines sentence is presumptively reasonable. Gambino-Zavala, 539 F.3d
at 1232. We will “deem a sentence unreasonable only if it is arbitrary, capricious,
whimsical, or manifestly unreasonable,” United States v. Gant, 679 F.3d 1240, 1249
(10th Cir. 2012) (quotation omitted), and “we will reverse a determination only if the
court exceeded the bounds of permissible choice, given the facts and the applicable
law in the case at hand,” McComb, 519 F.3d at 1053 (quotation omitted).
Garcia-Damian’s substantive reasonableness challenge is two-fold: he
contends that the district court failed to accord proper weight to mitigating § 3553(a)
factors, and that subsequent amendments to the Guidelines demonstrate the
unreasonable severity of his sentence. Regarding the § 3553(a) factors, Garcia-
Damian argues that a below-Guidelines sentence was warranted due to his minimal
criminal history, significant ties to the United States, family support, and cultural
assimilation, and because the facts of his prior convictions are “not as serious” as
other violent offenses. But under our deferential standard of reasonableness review,
mere disagreement with the manner in which the district court weighed the § 3553(a)
factors is not enough to reverse a sentence. Gall, 552 U.S. at 51. “Instead, we must
give due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the [sentence].” United States v. Smart, 518 F.3d 800, 808 (10th Cir.
2008) (quotation omitted). We do not perceive any abuse of discretion in the district
court’s weighing of these factors.
7
We are sympathetic to Garcia-Damian’s argument that his sentence is unduly
harsh, as demonstrated by subsequent Guideline amendments lowering his applicable
range to 10-16 months. However, he does not assert that these amendments have
been made retroactive by the Sentencing Commission or offer any other argument
that would permit us to find substantive unreasonableness based solely on non-
retroactive amendments.3 Our circuit has cast doubt on the notion that such
amendments warrant resentencing. See Vasquez-Alcarez, 647 F.3d at 979 (rejecting
argument that a proposed—but not yet adopted—amendment can be used to find
substantive unreasonableness, and noting that, even if adopted, the amendment
“would not apply retroactively unless the Commission says it does”). At least one
unpublished opinion has explicitly rejected defendant’s argument. United States v.
Rodriguez-Garcia, 459 F. App’x 754, 757-58 (10th Cir. 2012) (unpublished)
(concluding it is “beyond our authority” to remand based on non-retroactive
Guideline amendment, and observing that the court would decline to do so even if
permissible because such remand would interfere with the “Sentencing Commission’s
prerogative” of determining retroactivity (quotation omitted)). Accordingly, we
cannot conclude that Garcia-Damian’s sentence was substantively unreasonable due
to the Guideline amendments.
3
In a “sharply criticized” opinion, United States v. Vasquez-Alcarez, 647 F.3d
973, 980 (10th Cir. 2011), the First Circuit has suggested resentencing may be
appropriate in this situation. See United States v. Godin, 522 F.3d 133, 136 (1st Cir.
2008). Because Garcia-Damian does not cite Godin or argue for adoption of its
analysis, we offer no views as to the validity of its approach.
8
IV
For the foregoing reasons, the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
9