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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10890
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00143-VMC-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 24, 2018)
Before MARTIN, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
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Pedro Garcia appeals his 78-month sentence after pleading guilty to a single
count of being a felon in possession of a firearm. Garcia raises three arguments on
appeal. First, he contends that the district court erred in adopting a guidelines
calculation that assigned him three criminal history points based on a June 2001
offense for which he received a four-year youthful-offender sentence that was later
modified to probation. Second, he argues that his sentence was both procedurally
and substantively unreasonable because it was based on erroneous facts and failed
to account for mitigating factors. Finally, he asserts that 18 U.S.C. § 922(g) is
unconstitutional both on its face and as applied to him. We address each argument
in turn.
I.
On March 31, 2016, Garcia was charged in a one-count indictment with
knowingly possessing a firearm after a felony conviction in violation of 18 U.S.C.
§§ 922(g)(1) and (924)(a). The government later filed a superseding indictment,
which added language charging him with possession of ammunition as well.
On November 1, 2016, Garcia pled guilty, without a written plea agreement,
to the original indictment. Because the original indictment did not charge
possession of ammunition, the magistrate judge accepting the plea did not ask
Garcia about any ammunition. Nevertheless, the government asked that it be
considered relevant conduct at sentencing. Garcia admitted during the plea hearing
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that the firearm was made outside of Florida, and therefore must have traveled
across state lines to Florida.
The probation office prepared a presentence investigation report (“PSR”)
which recommended a criminal history score of 14. This score included three
criminal history points for a 2001 conviction for robbery and aggravated battery.
The PSR noted that Garcia had been sentenced as a youthful offender to four years
imprisonment, followed by two years of probation. In 2004, his probation for this
sentence was revoked, and Garcia was sentenced to 11 months and 29 days
imprisonment. The PSR also listed criminal convictions for armed vehicular
burglary, possession of cocaine, racketeering, and a previous conviction for
possession of a firearm by a convicted felon.
Based on this criminal history and the relevant offense level, the PSR
recommended an advisory sentence guideline range of 63 to 78 months
imprisonment. The PSR also stated that “[t]he defendant suffers from significant
mental health problems,” and noted that Garcia had allegedly been sexually
assaulted as a minor and had attempted suicide. The PSR mentioned Garcia’s
“significant substance abuse problems associated with cocaine and marijuana.”
Neither party objected to the facts contained in the PSR or to the application
of the sentencing guidelines. At sentencing, the district court adopted the findings
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of fact in the PSR and concluded that the advisory guideline range was 63 to 78
months.
The government argued for a sentence in the middle of the guideline range.
The district court asked “Why do you think a sentence in the mid-range is your
recommendation? He didn’t plead with a plea agreement. He just pled, right?”
The government agreed. The district court again asked why a mid-range sentence
would be appropriate, stating:
Why would you cut someone some slack and say middle of the range?
When you have somebody with this kind of history, why wouldn’t
you go for the high end of the guidelines? You already let him plead
to the initial indictment as opposed to the Superseding Indictment.
Isn’t that enough of a benefit? And he didn’t even sign a plea
agreement.
The district court stated it was “a little surprised” by the government’s position,
and that it was “kind of taken aback that’s what you’ve asked for because I think
this is somebody with a very significant criminal history.” After the government
finished its argument, the district court remarked:
I think what you have said supports a sentence at the high end, not at
the middle of the range. . . . I’m surprised that’s what you’re asking
for. And I’ve been sentencing at the bottom of the range and I’ve
been departing downwards quite a few times, but this gentleman has a
very significant criminal history. I’m thinking about the safety of the
public.
Garcia’s counsel argued for a sentence “towards the low end.” He
highlighted mitigating factors such as substance abuse and “some issues that
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happened to Mr. Garcia when he was younger,” apparently alluding to the PSR’s
statement that Garcia had been sexually assaulted in his youth. He also argued that
Garcia had merely allowed a friend to store the firearm in his house, and that it did
not belong to Garcia.
The district court told Garcia that it had “reevaluated” how it sentenced
defendants and that it had been “imposing lower sentences” where possible.
However, given Garcia’s criminal history, the court said “I just feel that if I don’t
give a significant sentence, I’m not doing my job to protect the public.” After
hearing a statement from Garcia, the district court sentenced him to 78 months
imprisonment. The district court reached its decision “[a]fter considering the
Advisory Sentencing Guidelines and all of the factors identified in [18 U.S.C.
§ 3553(a)].” Finally, the district court explained to Garcia, “I have given
consideration to your mental health problems, your personal characteristics, but
your extensive criminal conduct does not warrant and downward variance and,
furthermore, warrants a sentence at the highest end of the guidelines.” Neither
party objected to the sentence.
Garcia appealed.
II.
We ordinarily review a district court’s interpretation of the sentencing
guidelines de novo and its factual determinations for clear error. See United States
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v. Monzo, 852 F.3d 1343, 1348 (11th Cir. 2017). An argument raised for the first
time on appeal, however, is reviewed for plain error. United States v. Clark, 274
F.3d 1325, 1326 (11th Cir. 2001) (per curiam). A “plain error” is any deviation
from a legal rule that is “clearly established at the time the case is reviewed on
direct appeal.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (per
curiam). “[W]here the explicit language of a statute or rule does not specifically
resolve an issue, there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam). The error must “affect
substantial rights,” meaning “[i]t must have affected the outcome of the district
court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770,
1777–78 (1993) (quotation omitted and alteration adopted). We may correct the
error if it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. McKinley, 732 F.3d 1291, 1296 (11th Cir. 2013)
(per curiam) (quotation omitted).
III.
Garcia argues the district court erred by assigning three criminal history
points to his 2001 conviction for robbery and aggravated battery because his
sentence was reduced to probation when he completed a youthful offender
program.
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In calculating a defendant’s criminal history category, three points are
assigned “for each prior sentence of imprisonment exceeding one year and one
month.” United States Sentencing Guidelines § 4A1.1(a). “[C]riminal history
points are based on the sentence pronounced, not the length of time actually
served.” Id. § 4A1.2 cmt. n.2. All sentences imposed within ten years of the
offense of conviction are counted, as are any sentences imposed or served within
fifteen years of the offense if the sentence exceeded thirteen months imprisonment.
Id. § 4A1.2(e)(1)–(2). Any sentence falling outside these time periods is not
counted. Id. § 4A1.2(e)(3).
Where a sentence is imposed as the result of a probation violation, the
guidelines instruct as follows: “[A]dd the original term of imprisonment to any
term of imprisonment imposed upon revocation. The resulting total is used to
compute the criminal history points . . . .” Id. § 4A1.2(k)(1). That is, instead of
counting the original sentence and sentence after revocation separately, “the
sentence given upon revocation should be added to the original sentence of
imprisonment . . . and the total should be counted as if it were one sentence.” Id.
§ 4A1.2 cmt. n.11.
Under Florida law, defendants sentenced as youthful offenders can
participate in a basic training program lasting at least 120 days, not counting time
served prior to the program. Fla. Stat. § 958.045(1), (5)(c). “If the youthful
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offender’s performance is satisfactory, the court shall issue an order modifying the
sentence imposed and place the offender on probation subject to the offender
successfully completing the remainder of the basic training program.” Id.
§ 958.045(5)(c). We have not addressed how a Florida youthful-offender sentence
modified to probation upon completion of a training program impacts a
defendant’s criminal history score. We have, however, held that other youthful-
offender convictions count toward a defendant’s criminal history score and
sentencing enhancements. See United States v. Wilks, 464 F.3d 1240, 1242–44
(11th Cir. 2006) (holding that Florida youthful-offender convictions “can qualify
as a predicate offenses for sentence enhancement[s]”); United States v. Pinion, 4
F.3d 941, 945 (11th Cir. 1993) (discussing South Carolina’s youthful-offender
program).
The district court did not plainly err in adopting a guideline calculation that
assigned Garcia three criminal history points for the June 2001 offense. The
guidelines do not specifically address, and no binding precedent holds, that once a
Florida youthful-offender sentence is modified to probation, the probationary
sentence replaces the original sentence of imprisonment for purposes of calculating
a defendant’s criminal history score. See Lejarde-Rada, 319 F.3d at 1291. If the
original sentence remains valid, then application of the guidelines is clear: Garcia’s
original four-year sentence—plus a 364-day term imposed when Garcia’s
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probation was later revoked—was in excess of thirteen months, and imposed
within fifteen years of the offense of conviction, so it is assigned three criminal
history points. See USSG §§ 4A1.1(a), 4A1.2(e)(1), (k)(1). Therefore the district
court did not plainly err in assigning three criminal history points to this
conviction.
IV.
Garcia next argues his sentence was procedurally and substantively
unreasonable.
A.
In examining procedural reasonableness, we must “ensure that the district
court committed no significant procedural error, such as 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.” Gall
v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “A factual finding is
clearly erroneous when, although there is evidence to support it, we are left with
the definite and firm conviction, after review of the entire evidence, that a mistake
has been made.” United States v. Hill, 783 F.3d 842, 846 (11th Cir. 2015) (per
curiam).
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Garcia argues the sentence was procedurally unreasonable because the
district court relied on three erroneous facts, namely: (1) that he received a benefit
by entering a guilty plea without having to sign a plea agreement; (2) that he
received a benefit from pleading to the original indictment and not the superseding
indictment; and (3) that he received a benefit from being prosecuted in federal
court, rather than state court. We are not persuaded. The district court’s
statements were accurate. Garcia did plead guilty to the original federal
indictment, without signing a plea agreement. Indeed, this did benefit Garcia in a
couple of ways. First, by pleading without a plea agreement he did not waive any
appellate rights. Also, by pleading to the original indictment he did not have to
admit that he possessed ammunition. Finally, the district court did not characterize
his federal prosecution as a benefit. At sentencing, the district court said: “I’m
looking here at protecting the public. It’s just paramount in this kind of case. It’s
why the U.S. Attorney’s Office took this case as opposed to letting the state handle
it, where he would have gotten a less significant sentence.” Because the district
court did not characterize Garcia’s federal prosecution as a benefit to him, this
argument fails as well.
Additionally, Garcia has not shown that any perceived “benefit” from these
facts influenced the district court’s decision. The district court repeatedly stressed
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that the motivating factor behind the sentence was Garcia’s criminal history and
the need to protect the public.
Viewing the sentencing record as a whole, Garcia has not shown plain error
in the procedure that resulted in his sentence.
B.
In reviewing a sentence for substantive reasonableness, we consider the
totality of the circumstances and will remand for resentencing only when “left with
the definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted). The
district court must impose a sentence that is “sufficient, but not greater than
necessary, to comply with the purposes” of § 3553(a)(2), including the need to
reflect the seriousness of the offense, provide just punishment, deter criminal
conduct, and protect the public. 18 U.S.C. § 3553(a)(2). It must also consider “the
nature and circumstances of the offense and the history and characteristics of the
defendant.” Id. § 3553(a)(1). The weight given to any particular factor “is a
matter committed to the sound discretion of the district court,” and the court’s
failure to discuss mitigating evidence does not mean that the court ignored or failed
to consider it. United States v. Amedeo, 487 F.3d 823, 832–33 (11th Cir. 2007)
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(quotation omitted). Nevertheless, a district court abuses its discretion when it “(1)
fails to afford consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted).
Garcia first argues that the sentence is substantively unreasonable for the
same reasons he says it is procedurally unreasonable. That is, he says the court
relied on clearly erroneous facts. However, as discussed above, the sentence is not
procedurally unreasonable, and hence this argument fails.
Garcia next argues the district court failed to afford weight to mitigating
factors, such as his mental health problems, his history of substance abuse, and the
sexual assault he suffered as a minor. But, to the contrary, the district court
expressly told Garcia that it had “given consideration to your mental health
problems, your personal characteristics.” The court ultimately decided that “your
extensive criminal conduct does not warrant a downward variance and,
furthermore, warrants a sentence at the highest end of the guidelines.” The district
court also indicated that it reached its decision “[a]fter considering the Advisory
Sentencing Guidelines and all of the factors identified in [18 U.S.C. § 3553(a)].”
Based on these statements, it appears the district court properly considered all of
the relevant §3553(a) factors, and we cannot say that it clearly erred in weighing
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each factor. Therefore Garcia has not shown plain error in the substantive
reasonableness of his sentence.
V.
Finally, Garcia challenges the constitutionality of 18 U.S.C. § 922(g), both
on its face and as applied to him.
“We have repeatedly held that Section 922(g)(1) is not a facially
unconstitutional exercise of Congress’s power under the Commerce Clause
because it contains an express jurisdictional requirement” that is satisfied when the
firearm involved in the offense has at least “minimal nexus” to interstate
commerce. United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011)
(quotation omitted). The “minimal nexus” requirement is met where the
government demonstrates that the firearm in question has traveled in interstate
commerce. Id. Here, the government submitted a factual basis, and Garcia
admitted at the change of plea hearing, that the firearm in question was
manufactured outside Florida, establishing the minimal nexus to interstate
commerce. Therefore Section 922(g)(1) is not unconstitutional as applied to
Garcia.
AFFIRMED.
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