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United States v. Garcia-Damian, 10th Cir. (2017)
United States v. Garcia-Damian, 10th Cir. (2017)
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.
_________________________________
count of illegal reentry after removal in violation of 8 U.S.C. 1326. Prior to his
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This order and judgment is not binding precedent, except under the doctrines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
old stepdaughter to sit on his lap and rubbing her private area with his hand over her
June 2014. Four months later he was apprehended in New Mexico, leading to the
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
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).
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 PSRs sixteen-level enhancement, arguing that it should not
apply because his indecency offense did not qualify as a crime of violence under
2
At sentencing, the district court denied Garcia-Damians 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
I reviewed the entirety of the [PSR] as well as the factual findings, all of
. . . Mr. Garcias criminal history, Ive 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.
his sentence.1
1
Garcia-Damians 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
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
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
issue, nor do we demand that the district court recite any magic words to prove that it
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
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. Appx 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 courts 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 defendants 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-Damians
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
sentencing courts know the law and apply it in making their decisions. Ruiz-
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
F.3d 932, 938 (10th Cir. 2005) (The defendant has the burden of proving entitlement
to a downward departure.).
III
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.
6
rangeunder a deferential abuse-of-discretion standard. Gall, 552 U.S. at 41. A
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).
contends that the district court failed to accord proper weight to mitigating 3553(a)
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 courts 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
7
We are sympathetic to Garcia-Damians argument that his sentence is unduly
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
retroactive amendments.3 Our circuit has cast doubt on the notion that such
would not apply retroactively unless the Commission says it does). At least one
Guideline amendment, and observing that the court would decline to do so even if
permissible because such remand would interfere with the Sentencing Commissions
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
Carlos F. Lucero
Circuit Judge