United States v. Sixto Garcia

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4298 SIXTO MARCELINO GARCIA, a/k/a Tito, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (CR-98-87) Submitted: April 13, 2000 Decided: April 21, 2000 Before WIDENER and WILKINS, Circuit Judges, and HAMILTON, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Douglas E. Kingsbery, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina, for Appellant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Sixto Marcelino Garcia appeals his 168-month sentence imposed following a guilty plea to conspiracy to possess with intent to distrib- ute and to distribute cocaine in violation of 21 U.S.C.A. § 846 (West 1994 & Supp. 1999). Garcia asserts the district court erred in not stat- ing its reasoning for imposing a sentence at the high end of the guide- lines range and in sentencing him at the high end of the guidelines range based upon his level of involvement in the offense of convic- tion, when the court already increased his offense level under U.S. Sentencing Guidelines Manual, § 3B1.1(c) (1998). Because Garcia did not object to the alleged errors below, we review for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). Under 18 U.S.C.A. § 3553(c) (West Supp. 1999), a sentencing court must state in open court the reason for imposing a particular sentence. When the guidelines range is more than twenty-four months, the court must further state in open court the reason for imposing a sentence at a particular point in the guidelines range. See § 3553(c)(1). Even assuming that the court's failure to explain its reasoning is reviewable, we find no plain error. We further find that the court did not plainly err in both increasing Garcia's sentence offense level and sentencing him at the high end of the guidelines range based upon his role in the conspiracy. See 18 U.S.C. § 3661 (1994) ("No limitation shall be placed on the informa- tion concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sen- tence"). Accordingly, we affirm Garcia's sentence. We dispense with oral argument because the facts and legal contentions are adequately pre- 2 sented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3