USA v. Manolo Garza

Filing

OPINION filed: AFFIRMED, decision not for publication. Martha Craig Daughtrey, (authoring); John M. Rogers and Deborah L. Cook, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0640n.06
No. 16-1235

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MANOLO GARZA,
Defendant-Appellant.

BEFORE:

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FILED
Dec 01, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

DAUGHTREY, ROGERS, COOK, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Manolo Garza appeals the
60-month prison sentence he received for violating the conditions of supervised release.
Specifically, he challenges both the procedural and substantive reasonableness of that sentence,
which the district court ordered to be served consecutively with his sentence for the crime that
served as the basis for the supervised-release revocation. We find no merit to Garza’s arguments
and affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
After pleading guilty to charges of conspiracy to possess with intent to distribute and
conspiracy to distribute cocaine and marijuana, Garza was sentenced in May 2003 to 84 months
in prison, a penalty that reflected a substantial downward departure from the applicable
Guidelines sentencing range. Upon release from incarceration, Garza began a five-year period of
supervised release on June 24, 2009. Garza later was charged with conspiring with 15 other

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individuals from 2012 until May 2014 to possess with intent to distribute and to distribute
520 kilograms of cocaine and 260 kilograms of heroin. Garza pleaded guilty to those charges, as
well as to a charge of conspiring to use a communication facility to commit a drug-trafficking
offense. Although Garza was subject to a Guidelines sentencing range of 360 months to life, the
district court sentenced him in June 2015 to 180 months in prison, in consideration of his
substantial assistance in the prosecution of his co-conspirators.
Because one condition of Garza’s supervised release after his 2003 conviction was that
he “not commit another federal, state or local crime,” the government filed a petition to revoke
that release in light of the subsequent conviction. At the ensuing hearing in the original district
court on the petition to revoke supervised release, Garza admitted that he had violated the
conditions of that release and accepted full responsibility for his actions. The district judge
acknowledged that acceptance of responsibility and made note of the fact that Garza had offered
substantial assistance to the government in prosecuting other members of the conspiracy that
resulted in his initial conviction. Even though defense counsel also highlighted the support
Garza had received from his family and Garza’s efforts “to get his electrical contractor’s
certificate” while incarcerated, the judge emphasized that the defendant twice had received
substantial reductions in his sentences upon earlier convictions but, nevertheless, had failed to
reform his ways. Instead, he noted, Garza chose to engage in yet another drug-trafficking
conspiracy that resulted in the distribution of significant quantities of both cocaine and heroin.
Thus, although the sentencing guidelines called for a prison term between 27 and 33 months
upon revocation of the supervised release, see USSG § 7B1.4(a), the district court sentenced
Garza to the statutory maximum period of incarceration of 60 months in order to provide
sufficient deterrence to Garza and to society in general and to “protect the public from further

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crimes of the defendant.” The district court further ordered that the 60-month sentence be
“consecutive to the undischarged term of imprisonment imposed in the other case,” i.e., Garza’s
subsequent conviction. From that judgment, Garza now appeals.
DISCUSSION
We review sentences imposed upon revocation of supervised release for reasonableness
under a deferential abuse-of-discretion standard. United States v. Melton, 782 F.3d 306, 312 (6th
Cir. 2015). Reasonableness review of a sentence “has both a procedural and a substantive
component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v.
United States, 552 U.S. 38, 51 (2007)). Procedural errors include “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—including an explanation for any deviation
from the Guidelines range.” Gall, 552 U.S. at 51.
Appellate review of the substantive reasonableness of a sentence “will, of course, take
into account the totality of the circumstances, including the extent of any variance from the
Guidelines range.”

Id.

“A sentence is substantively unreasonable if the sentencing court

arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider
pertinent [18 U.S.C.] § 3553(a) factors, or gave an unreasonable amount of weight to any
pertinent factor.” United States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012) (citation
omitted). Although we “may apply a rebuttable presumption of reasonableness to sentences
within the Guidelines,” United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008) (citing Gall,
552 U.S. at 51), the fact that a sentence imposed by a district court is outside the Guidelines

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range does not mean that we may apply a presumption that the sentence is unreasonable. Gall,
552 U.S. at 51.
Garza insists in this appeal, however, that his 60-month sentence is both procedurally and
substantively unreasonable. His procedural challenge is two-fold. First, he argues that the
district court failed to comply with the mandate of Rule 32(h) of the Federal Rules of Criminal
Procedure that the court give him advance notice of its intention to depart upward from the
relevant Guidelines range. Second, Garza contends that the district court committed procedural
error in failing to articulate on the record its reasons for ordering consecutive sentencing.
Necessity of Rule 32(h) Notice
Garza failed to object in the district court to the lack of Rule 32(h) notice; consequently,
our review of this issue is for plain error only. See United States v. Bostic, 371 F.3d 865, 872-73
(6th Cir. 2004). Under that plain-error standard, we will reverse a district court decision only
upon finding that (1) the district court erred, (2) the error was plain, (3) the error affected
substantial rights of the defendant, and (4) the error “seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)
(citations omitted).
Although Rule 32(h) does mandate that notice of an intent to depart from the Guidelines
generally be given prior to sentencing hearings, it is not Rule 32, but Rule 32.1 of the Federal
Rules of Criminal Procedure that governs the revocation or modification of supervised release.
And nowhere in the provisions of Rule 32.1 is there a notice requirement similar to that found in
Rule 32(h). Garza nevertheless argues that the provisions of both rules should govern the district
court’s actions in revocation situations—that “Rule 32.1 specifically guides the District Court
and the parties as to how the supervised release violation hearing is conducted, and Rule 32(h)
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guides the District Court in what it must do before deciding to depart from the Guidelines
range . . . .”
Although the decision unpublished and thus non-precedential, we have set out the
analytical shortcomings of Garza’s position in a prior opinion. In United States v. Smith, we
explained:
[The defendant’s] argument that “nothing in Rule 32(h) creates a specific
exemption for revocation proceedings” further misses the mark. Textually, there
is nothing in Rule 32 that would extend the rule beyond the scope of its title,
“Sentencing and Judgment.” Moreover, during sentencing, the district court is not
always required to provide advance notice; it is only when the court does so “on a
ground not identified for departure either in the presentence report or in a party’s
prehearing submission.” There is no presentence report and often no prehearing
submission for violations of supervised release. Not only would [the defendant]
have this court apply Rule 32(h) beyond its plain meaning, but he would have the
court rewrite the rule in order for it to sensibly apply to supervised release
hearings.
639 F. App’x 348, 353 (6th Cir. 2016) (citations omitted); see also United States v. Baker, 521 F.
App’x 371, 374 (6th Cir. 2013) (“[T]he notice requirement associated with a departure under
Fed. R. Crim. P. 32(h) does not apply to a probationary setting such as a revocation of supervised
release”); United States v. Dawe, 362 F. App’x 436, 438 (6th Cir. 2010) (courts considering this
issue “universally have held, under varying rationales, that Rule 32(h)’s notice requirement does
not extend to” sentences imposed after revocation of supervised release).
In the absence of contrary circuit precedent in a published decision of this court, the
district court’s reliance upon the holdings in Smith, Baker, and Dawe to conclude that Rule
32(h)’s notice requirement does not apply in the revocation setting cannot be considered plain
error. There is, therefore, no merit to Garza’s first challenge to the procedural reasonableness of
his sentence.

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Explanation for Order of Consecutive Sentencing
The defendant next insists that his sentence is procedurally unreasonable because the
district court failed to provide an adequate explanation for its decision to have the 60-month
sentence for violation of the terms of supervised release run consecutively to an undischarged
term of imprisonment imposed in a prior criminal proceeding. Again, Garza failed to object to
the order of consecutive sentencing in the district court, thus limiting our review to a search for
plain error. See Bostic, 371 F.3d at 872-73.
The policy statement contained in USSG § 7B1.3(f) provides that “[a]ny term of
imprisonment imposed upon the revocation of . . . supervised release shall be ordered to be
served consecutively to any sentence of imprisonment that the defendant is serving . . . .”
However, that “policy statement is not binding on the district court, and construing it to be
mandatory would be reversible error.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir.
2011) (citation omitted). In fact, 18 U.S.C. § 3584(a) provides, in relevant part, that “if a term of
imprisonment is imposed on a defendant who is already subject to an undischarged term of
imprisonment, the terms may run concurrently or consecutively . . . .” (Emphasis added.)
“The court, in determining whether the terms imposed are to be ordered to run
concurrently or consecutively, shall consider, as to each offense for which a term of
imprisonment is being imposed, the factors set forth in section 3553(a).” 18 U.S.C. § 3584(b).
Moreover, “a district court must indicate on the record its rationale [for imposing consecutive
sentences], either expressly or by reference to a discussion of relevant considerations contained
elsewhere. Otherwise, meaningful appellate review becomes impossible.” United States v.
Cochrane, 702 F.3d 334, 346 (6th Cir. 2012) (citing United States v. Inman, 666 F.3d 1001, 1004
(6th Cir. 2012)). However, “[t]here is no requirement that the district court state a ‘specific

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reason’ for a consecutive sentence.” Johnson, 640 F.3d at 208-09. As long as “the court makes
generally clear the rationale under which it has imposed the consecutive sentence . . . , it does not
abuse its discretion.” United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998).
Here, the district court did not state expressly that it was imposing consecutive sentences
for specified reasons.

Nevertheless, the court did engage in a thorough discussion of the

§3553(a) factors and did explain that its evaluation of those factors supported the decision to
subject Garza to the maximum allowable punishment. Specifically, the district court discussed
the large quantity of drugs involved in Garza’s latest drug-trafficking, the similarity of the
defendant’s latest offense to the crime for which he originally was placed on supervised release,
the fact that Garza twice before had been granted significant downward departures in sentencing
only to continue his criminal activities, the need for both individual and societal deterrence, and
the need to protect the public from additional criminal activity by the defendant. The district
court then noted that because Garza already had avoided 30 years of incarceration as a result of
downward departures in two prior cases, the 33-month high end of the applicable Guidelines
range was insufficient to punish Garza for “running a large-scale drug operation under the nose
of the probation offer, and the Court, in virtual terms.” Finally, the district court expressed some
frustration with the fact that “[t]he Court cannot do any more than a five-year sentence” for the
supervised-release violation.
The district court’s discussion thus fully indicated on the record the rationale for
maximizing the prison term to be imposed upon Garza. In light of that fact, the district court did
not plainly err in ordering the defendant’s 60-month sentence to be served consecutively with a
prior, undischarged term of imprisonment.

Garza’s second challenge to the procedural

reasonableness of his sentence also is without merit.

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Challenge to the Substantive Reasonableness of the Sentence
In a final appellate challenge, Garza also contends that the 60-month, consecutive
sentence is substantively unreasonable. In support of that argument, he states only that the
district court placed too much emphasis on the need to punish him and to deter future criminal
activity and not enough emphasis on the mitigating evidence offered by Garza. As discussed
above, however, the district court did take note of the defendant’s cooperation with authorities,
his acceptance of responsibility, and his efforts in prison to obtain skills that would benefit him
upon his release from incarceration. Furthermore, the district court did not abuse its discretion in
emphasizing the evidence of Garza’s massive drug-trafficking organization and his failure to
take advantage of opportunities to turn from criminal activity. Indeed, we have held that “[i]t is
reasonable . . . for the district court to have given significant weight to general deterrence and
retribution . . . in light of the extent and duration of [a defendant’s] drug trafficking.” United
States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008). Just because Garza believes that the district
court should have balanced the § 3553(a) factors differently does not mean that the court was not
justified in departing upward to the maximum penalty allowed by statute, as long as the sentence
was otherwise reasonable. See, e.g., United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006).
This allegation of error also is without merit.
CONCLUSION
For the reasons set out above, we conclude that the sentence imposed upon revocation of
Garza’s supervised release was both procedurally and substantively reasonable.
AFFIRM the judgment of the district court.

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We thus