USA v. Emilio Garcia

Filing

UNPUBLISHED OPINION FILED. [17-10970 Affirmed] Judge: JLW, Judge: JLD, Judge: LHS. [17-10970]

Case: 17-10970

Document: 00514423188

Page: 1

Date Filed: 04/10/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-10970
Summary Calendar

FILED
April 10, 2018
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EMILIO GARCIA GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-37-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Emilio Garcia Garcia appeals the sentence imposed following his guilty
plea conviction for illegal reentry following removal in violation of 8 U.S.C.
§ 1326. Garcia argued that a downward departure was warranted based on
two factors: his time served in state custody and his cultural assimilation. The
district court declined to depart from the guidelines and sentenced Garcia
within the guidelines range to 17 months of imprisonment. The district court

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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No. 17-10970
noted that a within-guidelines sentence was adequate to “reflect the
seriousness of the offense conduct, as well as the statutory sentencing factors
of [18 U.S.C.] § 3553(a)” and that there was “no reason to vary from the
Guidelines.”

Garcia argues that his sentence is both procedurally and

substantively unreasonable.
To the extent that Garcia argues that the district court erred by denying
his motion for a downward departure, the record does not reflect that the
district court mistakenly believed it lacked authority to depart. Thus, we lack
jurisdiction to review the propriety of the district court’s decision to deny a
downward departure. See United States v. Jefferson, 751 F.3d 314, 322-23 (5th
Cir. 2014).
We review Garcia’s argument that the district court failed to adequately
address his time served in state custody in imposing the 17-month sentence for
plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Wooley, 740 F.3d 359, 367 (5th Cir. 2014). Although the district court
did not provide specific reasons for rejecting Garcia’s argument, its failure to
do so did not constitute plain error given that the district court read Garcia’s
written submission, listened to his arguments at sentencing, expressly rejected
the argument, and concluded that a sentence within the guidelines range was
adequate to address the § 3553 sentencing goals. See Puckett, 556 U.S. at 135;
Rita v. United States, 551 U.S. 338, 356 (2007); United States v. Rodriguez, 523
F.3d 519, 525-26 (5th Cir. 2008).
Further, although Garcia argues that his 17-month sentence is
substantively unreasonable because the district court failed to take into
account his cultural assimilation as a factor under § 3553(a), he has failed to
overcome the presumption of reasonableness afforded his within-guidelines

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No. 17-10970
sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
The judgment of the district court is AFFIRMED.

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