In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2368
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ALEXSIS J. GARCIA, A/K/A
ALEXIS JAMES GARCIA,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 13 CR 40097 — J. Phil Gilbert, Judge.
____________________
ARGUED APRIL 22, 2015 — DECIDED OCTOBER 29, 2015
____________________
Before POSNER, KANNE, Circuit Judges, and DARRAH, Dis‐
trict Judge.
DARRAH, District Judge. This is a direct appeal of a crimi‐
nal sentence against defendant‐appellant Alexsis J. Garcia
(“Garcia”). Pursuant to an open plea agreement, Garcia pled
Of the Northern District of Illinois, sitting by designation.
2 No. 14‐2368
guilty to two counts of distribution of heroin in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C).
The district court found that Garcia had a Criminal His‐
tory Category of V and a total offense level of 19, which led
to a guideline range of 57 to 71 months. The Government
recommended a sentence of 120 months’ imprisonment. The
Government argued that Garcia’s criminal history was al‐
most that of a career offender and that Garcia should be sen‐
tenced between the guideline range of 57 to 71 months and
the career offender guideline range of approximately 151 to
188 months. Garcia’s counsel recommended a sentence at the
low end of the range, 57 months, and argued that Garcia’s
traumatic childhood and his acceptance of Christianity were
strong factors in mitigation. Defendant also made a state‐
ment in allocution that addressed both of those mitigating
factors.
The district court sentenced Garcia to 108 months in pris‐
on. In addition, the district court imposed three years of su‐
pervised release without any consideration of the § 3553(a)
sentencing factors.
Garcia presents three issues on appeal. First, Garcia ar‐
gues that the district court did not offer a sufficiently com‐
pelling justification for imposing a sentence above the guide‐
line range. Second, Garcia argues that the district court
committed a procedural error when it stated that it intended
to impose a sentence that was 27 months above the high end
of the 57 to 71 month guideline range, but then imposed a
sentence of 108 months’ imprisonment, 37 months above the
high end of the guideline range. Finally, Garcia argues that
the district court erred by imposing discretionary supervised
No. 14‐2368 3
release conditions without making any 18 U.S.C. § 3583(d)
findings to support them.
A district court’s sentence is reviewed under an abuse‐of‐
discretion standard, regardless of whether that sentence is
imposed inside or outside the Guidelines range. Gall v. Unit‐
ed States, 552 U.S. 38, 51 (2007). An above‐range sentence is
upheld so long as the district court applied the factors in 18
U.S.C. § 3553(a) and adequately explains why the penalty is
appropriate. See United States v. Hill, 645 F.3d 900, 911 (7th
Cir. 2011); United States v. Courtland, 642 F.3d 545, 550–51 (7th
Cir. 2011).
The district court reasonably determined that previous
incarcerations had not deterred Garcia from committing se‐
rious crimes and that an above‐the‐range sentence was nec‐
essary to protect the public. See 18 U.S.C. § 3553(a)(2)(B)‐(C).
The court also noted that Garcia remained drug free and
helped people while he was imprisoned but had failed to do
so when released. See 18 U.S.C. § 3553(a)(2)(D). Further, the
court specifically found that the factors in aggravation out‐
weighed the factors in mitigation. The district court applied
the factors in 18 U.S.C. § 3553(a) and adequately explained
why an above‐the‐range penalty is appropriate.
The Government has conceded that the case must be re‐
manded for a new sentencing hearing on the imposition of
the conditions for supervised release. “[S]entencing judges
should impose conditions of supervised release which are (a)
appropriately tailored to the defendantʹs offense, personal
history and characteristics; (b) involve no greater deprivation
of liberty than is reasonably necessary to achieve the goals of
deterrence, protection of the public, and rehabilitation; and
(c) sufficiently specific to place the defendant on notice of
4 No. 14‐2368
what is expected.” United States v. Parrish Kappes, 782 F.3d
828, 847–48 (7th Cir. 2015). Further, “a sentencing court must
justify the conditions and the length of the term at sentenc‐
ing by an adequate statement of reasons, reasonably related
to the applicable § 3553(a) factors.” Id. at 845 (citing United
States v. Bryant, 754 F.3d 443, 445 (7th Cir. 2014)).
In this instance, the district court made no statement of
reasons justifying the non‐mandatory conditions of super‐
vised release or the length of the term of supervised release.
Therefore, the case must be remanded to the district court
for resentencing and a statement of reasons in justification of
the length and conditions of supervised release.
Garcia also argues that the district court committed a
procedural error by imposing a 108 month sentence but also
stating that the sentence would be 27 months above the high
end of the guideline range, which would have resulted in a
sentence of 98 months. Procedural errors include: “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erro‐
neous facts, or failing to adequately explain the chosen sen‐
tence—including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51. When imposing the
sentence, the district court stated:
The Court, having considered all the infor‐
mation of the presentence report, including
guideline computations and factors set forth in
18 USC 3553(a), pursuant to [the] Sentencing
Reform Act of 1984, it is the judgment of this
Court that the defendant, Alexsis James Garcia
is hereby committed to the custody of the Bu‐
No. 14‐2368 5
reau of Prisons to be imprisoned for a term of
108 months on each count to be served concur‐
rently. That’s 27 months, a little over two years
above the high end of the guideline range,
which the Court, in balancing the aggravation
and mitigation, feels that that’s ‐‐ a 27‐month
above the guideline is appropriate.
Sent. Tr. at 18–19. The written judgment stated that Garcia
was sentenced to 108 months on Counts 1 and 2 of the in‐
dictment, the sentences to run concurrently. The district
court committed a procedural error by imposing a sentence
that was 37 months above the guideline range.
Usually, if the oral and written sentences are in conflict,
the oral pronouncement controls. United States v. Daddino, 5
F.3d 262, 266 (7th Cir. 1993). “This rule can only prevail,
however, if the oral language is unambiguous.” Id. It would
be permissible to determine that the written judgement and
commitment order controls. See United States v. Bonanno, 146
F.3d 502, 511 (7th Cir. 1998). In this case, however, the district
court on remand will be afforded an opportunity to sentence
anew and assure there is no conflict.
It is therefore ORDERED that the case is remanded for
resentencing. This will further provide the district court an
opportunity to give clear justification for the length and
conditions of supervised release and clarify its ruling as to
the length of Garcia’s sentence.