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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14123
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20764-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER AMADO GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 3, 2019)
Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Roger Garcia appeals the district court’s orders denying his 18 U.S.C.
§ 3582(c)(2) motion for reduction in sentence and his motion to clarify the special
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conditions of his supervised release. We affirm.
I. BACKGROUND
In January 2014, Garcia pleaded guilty to one count of possession of child
pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). 1 The plea
agreement contained a factual proffer stating that federal law enforcement agents
began investigating Garcia for making files containing child pornography available
for distribution over a peer-to-peer network. On December 20, 2012, law
enforcement officials executed a valid search warrant for Garcia’s residence, where
they found digital devices containing child pornography.
The Presentence Investigation Report recommended an advisory guideline
range of 108 to 135 months’ imprisonment. The advisory guideline range included
1
Any person who . . . knowingly possesses, or knowingly accesses with intent to
view, 1 or more books, magazines, periodicals, films, video tapes, or other matter
which contain any visual depiction that has been mailed, or has been shipped or
transported using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce, or which was produced using materials
which have been mailed or so shipped or transported, by any means including by
computer, if-- (i) the producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct; and (ii) such visual depiction is of
such conduct . . . shall be fined under this title or imprisoned not more than 10
years, or both, but if any visual depiction involved in the offense involved a
prepubescent minor or a minor who had not attained 12 years of age, such person
shall be fined under this title and imprisoned for not more than 20 years.”
18 U.S.C. § 2252(a)(4)(B).
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a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for engaging in the
distribution of child pornography. 2 Garcia objected that the enhancement was
inapplicable because there was no evidence that he knew the files he posted were
being distributed. On April 24, 2014, the district court imposed a sentence of 80
months’ imprisonment to be followed by 20 years of supervised release. The
district court also ordered Garcia to comply with the special conditions of
supervised release that were outlined in the PSR.
Four years later, on August 14, 2018, Garcia filed a “Motion for 2-Level
Reduction Under Amendment 664 of the United States Sentencing Guidelines and
Reduction of Sentence Pursuant to Title 18 U.S.C. § 3582(c)(2).” The motion
argued that he was entitled to a two-level sentence reduction because Amendment
664 clarified the meaning of “distribution” for purposes of U.S.S.G.
§ 2G2.2(b)(3)(F) and the government had not shown that his posts qualified as
distribution. A few days later, Garcia filed a “Motion for Clarification,” requesting
that the district court “issue a clarification, wherein it articulates and explains the
reasons for the imposition of each special condition” of supervised release. The
district court denied summarily both of Garcia’s motions on September 11 and 12,
2
At the time that the PSR was prepared and at the time of sentencing, U.S.S.G.
§ 2G2.2(b)(3)(F) instructed “[i]f the offense involved: . . . [d]istribution other than distribution
described in subdivisions (A) through (E), increase by 2 levels.” U.S.S.G. § 2G2.2(b)(3)(F)
(2013).
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2018. Garcia filed two notices of appeal on September 24, 2018. One notice of
appeal identified, by name and docket number, the order denying the motion for
clarification, and the other identified, by name and docket number, the order
denying the § 3582(c)(2) motion. This Court docketed the notices of appeal under
one docket entry.
II. DISCUSSION
Garcia argues that the district court erred in denying his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) and his motion for clarification of
the conditions of his supervised release.3 Garcia is proceeding pro se, and we
construe liberally pro se pleadings. See Jones v. Fla. Parole Comm’n, 787 F.3d
1105, 1107 (11th Cir. 2015).
Garcia argues that the district court plainly erred in denying his motions in
summary form without providing a reasoned explanation for its decisions.
Although this Court generally expects a district court to provide a reasoned
explanation for its sentencing decision, this Court will review summary
dispositions so long as the summary disposition has “not precluded meaningful
3
The government argues that this Court has jurisdiction to consider only the district
court’s decision on Garcia’s motion for clarification because that is the only order referenced in
the notice of appeal. Garcia filed two notices of appeal, however, each specifically identifying
one of the district court’s orders. Thus, both orders are properly before this Court. See Fed. R.
App. P. 3(c)(1)(B).
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appellate review.” See United States v. Villarino, 930 F.2d 1527, 1529 (11th Cir.
1991) (quoting United States v. Wise, 881 F.2d 970, 973 (11th Cir. 1989)). After
examining the record, we conclude that the summary disposition of Garcia’s
motions has not precluded meaningful review.
A. Denial of 18 U.S.C. § 3582(c)(2) Motion
“We review the district court’s denial of a motion for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion” and the district court’s
“legal conclusions regarding the scope of its authority under the Sentencing
Guidelines” de novo. United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009).
18 U.S.C. § 3582(c)(2) provides that an individual “who has been sentenced to a
term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission” may move the district court to reduce his
term of imprisonment.
Garcia argues that he is entitled to a sentence reduction under § 3582(c)(2)
based on Amendment 664 to the Sentencing Guidelines. Amendment 664 defines
“distribution” for purposes of U.S.S.G. § 2G2.2 as:
any act, including possession with intent to distribute, production,
advertisement, and transportation, related to the transfer of obscene
matter. Accordingly, distribution includes posting material involving
the sexual exploitation of a minor on a website for public viewing but
does not include the mere solicitation of such material by a defendant.
U.S.S.G. App. C, Amend. 664. The problem for Garcia is that Amendment 664
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was enacted in 2004, id., about ten years before he was sentenced. The sentencing
guideline range based on which he was sentenced has thus not “subsequently been
lowered by the Sentencing Commission” and he is not entitled to relief under 18
U.S.C. § 3582(c)(2). Moreover, U.S.S.G. § 1B.10(a)(1) provides that a sentence
may be reduced pursuant to § 3582(c)(2) only if the amendment that reduced the
sentencing range is one listed in U.S.S.G. § 1B1.10(d), and Amendment 664 is not
listed in U.S.S.G. § 1B.10(d).
To the extent that Garcia is challenging the district court’s application of the
§ 2G2.2(b)(3)(F) enhancement to his sentence, such a challenge is untimely. An
individual who wishes to appeal the final judgment entered in a criminal case must
do so no later than 14 days after the district court enters its judgment, unless the
time for filing has been tolled. Fed. R. App. P. (4)(b)(1)(A). Such final judgment
includes the sentence in a criminal case. United States v. Curry, 760 F.2d 1079,
1079 (11th Cir. 1985). Because Garcia filed his motion more than 14 days after his
judgment was entered and has not filed a motion to toll the time for filing, any
challenge to the district court’s decision to enhance Garcia’s sentence under
§ 2G2.2(b)(3)(F) is untimely. Thus, whether construed as a § 3582(c)(2) motion or
as a direct challenge to the imposition of the sentence enhancement, Garcia’s
motion fails.
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B. Motion for Clarification
Garcia argues that the district court erred in denying his motion for
clarification of the conditions of his supervised release because it was obligated to
provide a reason for each of his conditions of supervised release at sentencing. We
review the district court’s denial of a motion to modify or clarify a condition of
supervised release for abuse of discretion. See United States v. Serrapio, 754 F.3d
1312, 1318 (11th Cir. 2014). 4
As an initial matter, as noted above, there is no requirement that the district
court provide a reason for each of its sentencing decisions. Second, under 18
U.S.C. § 3583(e)(2), a district court may “modify, reduce, or enlarge the conditions
of supervised release, at any time prior to the expiration or termination of the term
of supervised release.” This Court has recognized that a person on supervised
release may move under Rule 32.1 of the Federal Rules of Criminal Procedure for
modification or clarification of the conditions of supervised release. See United
States v. Dempsey, 180 F.3d 1325, 1325–26 (11th Cir. 1999); see also Fed. R.
Crim. P. 32.1(b) Advisory Committee Note (“The probationer should have the
4
Although Serrapio involved the modification of probation, the Federal Rules of
Criminal Procedure treat probation and supervised release similarly. United States v. Frazier, 26
F.3d 110, 113 (11th Cir. 1994).
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right to apply to the sentencing court for a clarification or change of conditions . . .
[and] be able to obtain resolution over a dispute over an ambiguous term or the
meaning of a condition without first having to violate it.”). 5 Garcia has not filed
such a motion. He has not identified a dispute over an ambiguous term in his
conditions of supervised release or requested an explanation of the meaning of one
of those conditions. As Garcia’s purported motion is clearly without basis, the
district court did not abuse its discretion in denying summarily his motion for
clarification. See Villarino, 930 F.2d at 1529.
Finally, to the extent that Garcia challenges the imposition of the conditions
of supervised release, such appeal is untimely. Appeal of a final judgment must be
filed within 14 days after the entry of judgment. Fed. R. App. P. (4)(b)(1)(A). “The
district court’s sentence, of which the conditions of supervised release are a part, is
a final judgment immediately appealable to this Court.” United States v. Zinn, 321
F.3d 1084, 1088 (11th Cir. 2003). Accordingly, any challenge to the imposition of
his sentence, including the conditions of supervised release, is untimely.
It is plain from the record that Garcia’s motion for clarification of supervised
release fails, whether construed as a motion for clarification under Rule 32.1 of the
5
The text of a given rule is what is authoritative. Nevertheless, “[h]aving been prepared
by a body of experts, the Notes are assuredly persuasive scholarly commentaries—ordinarily the
most persuasive—concerning the meaning of the Rules.” Tome v. United States, 513 U.S. 150,
167 (1995) (Scalia, J., concurring in part and concurring in the judgment).
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Federal Rules of Criminal Procedure or a challenge to the imposition of his
sentence. Accordingly, we affirm the district court’s denial of the motion.
III. CONCLUSION
The district court did not err in denying Garcia’s motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2) or his motion for clarification of
supervised release. The judgment of the district court is AFFIRMED.
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