11-237-cr
United States v. Garcia
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
of February, two thousand twelve.
Present:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges,
JANE A. RESTANI,
Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 11-237-cr
JUAN CARLOS GARCIA, AKA Lut. Hailey,
Defendant-Appellant.
________________________________________________
For Defendant-Appellant: ROBERT J. BOYLE, New York, N.Y.
*
The Honorable Jane A. Restani, of the United States Court of International Trade,
sitting by designation.
For Appellee: ANDREA L. SURRATT, Assistant United States Attorney,
of counsel (Andrew L. Fish, Assistant United States
Attorney of counsel) for Preet Bharara, United States
Attorney for the Southern District of New York
Appeal from the United States District Court for the Southern District of New York
(Baer, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-Appellant Juan Carlos Garcia appeals a January 13, 2011 judgment of
conviction entered by the Southern District of New York (Baer, J.) following his guilty plea to a
three counts of a five-count indictment charging him with: (1) possessing and conspiring to
possess telecommunications instruments that had been modified and altered to obtain
unauthorized use of telecommunications services, in violation of 18 U.S.C. § 371; (2)
possessing telecommunications instruments that had been modified and altered to obtain
unauthorized use of telecommunications services, in violation of 18 U.S.C. §§ 1029(a)(5) and 2;
and (3) possessing a scanning receiver and hardware and software used for altering and
modifying telecommunications instruments to obtain unauthorized access to telecommunications
services, in violation of 18 U.S.C. §§ 1029(a)(6) and 2. On January 7, 2011, the district court
sentenced Garcia to, principally, a thirty-three month term of imprisonment. On appeal, Garcia
contends that the district court’s sentence is substantively unreasonable under the standards set
forth in 18 U.S.C. § 3553(a). We presume the parties’ familiarity with the facts and procedural
history of this case.
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“We review the reasonableness of a district court’s sentence under a deferential abuse of
discretion standard.” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir. 2010). In assessing
the substantive reasonableness of a sentence, we set aside a district court’s sentence “only in
exceptional cases where the trial court’s decision cannot be located within the range of
permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)
(internal quotation marks omitted), cert. denied, 129 S. Ct. 2735 (2009). “We recognize that in
the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad
range of sentences that would be reasonable in the particular circumstances.” United States v.
Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Vacatur for substantive unreasonableness is
warranted where “the sentence imposed was shockingly high, shockingly low, or otherwise
unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d. Cir. 2009).
Upon careful review of the record, we conclude that the district court’s sentence of a
thirty-three month term of imprisonment, the low end of the applicable guidelines range, was
substantively reasonable. The district court reasonably concluded that Garcia committed “a
serious crime,” given that his and his co-defendants’ offense conduct resulted in “a loss [amount]
of close to three-quarters of a million dollars.” App. 67-68. Moreover, in light of the fact that
sentencing courts are to weigh the “need for the sentence imposed . . . to promote respect for the
law,” 18 U.S.C. § 3553(a)(2)(A), the district court did not abuse its discretion in taking into
account the fact that, after being released on bail, Garcia broke his electronic monitoring bracelet
and fled from justice for over fourteen years. As to Garcia’s argument that his co-defendants
received shorter terms of imprisonment, see 18 U.S.C. § 3553(a)(6) (sentencing courts should
consider “the need to avoid unwarranted sentence disparities among defendants with similar
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records”), we have held that sentencing disparities are not unwarranted where defendants are not
“similarly situated.” Fernandez, 443 F.3d at 32. Here, Garcia was not similarly situated to his
co-defendants in that his co-defendants all pled guilty in advance of trial and immediately served
their sentences, whereas Garcia fled from justice for fourteen years before being apprehended
attempting to reenter the United States.
We have considered Garcia’s other arguments on appeal and find them to be without
merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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