IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2008
No. 07-41154
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL GARZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 2:07-CR-189-1
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Daniel Garza pleaded guilty to one count of possession with intent to dis-
tribute more than 1000 kilograms of marihuana. The advisory guideline range
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-41154
was 70 to 87 months of imprisonment. The district court granted a downward
departure of six months from the low end of the guidelines range and sentenced
Garza to 64 months.
Garza challenges his sentence as procedurally and substantively unreason-
able. He asserts that the district court misapplied the criteria to determine sub-
stantial assistance under U.S.S.G. § 5K1.1. He contends that instead of evaluat-
ing his assistance to the Government, the district court utilized the criteria for
the application of the safety valve provision. He argues that the error affected
the extent of the departure.
Because Garza did not object on these specific grounds in the district court,
review is for plain error only. See United States v. Hernandez-Martinez, 485
F.3d 270, 272 (5th Cir.), cert. denied, 128 S. Ct. 325 (2007); United States v.
Jones, 489 F.3d 679, 681 (5th Cir. 2007). Under plain-error review, even if there
is obvious error that affects substantial rights, we need not correct the error un-
less failure to do so would seriously affect the fairness, integrity, or public repu-
tation of judicial proceedings. Jones, 489 F.3d at 681.
A district court has discretion to choose the appropriate sentence within
the advisory range and to determine “the appropriate extent of a departure.”
United States v. Alvarez, 51 F.3d 36, 39 (5th Cir.1995); see also United States v.
Desselle, 450 F. 3d 179, 183 (5th Cir. 2006). Despite the latitude courts are given
under § 5K1.1, a judicial inquiry into each individual case is required to ensure
an independent determination of the propriety and extent of any sentencing de-
parture. United States v. Johnson, 33 F.3d 8, 10 (5th Cir.1994). “[T]he court is
free to deny departure or to grant a departure which is greater or smaller than
that recommended by the government.” Johnson, 33 F.3d at 9-10.
The assessment of a departure begins with the factors enumerated in
§ 5K1.1, but a district court may consider additional factors “related to deter-
mining the nature, extent, and significance of assistance.” Desselle, 450 F.3d at
182. The extent of a § 5K1.1 departure “must be based solely on assistance-re-
2
No. 07-41154
lated concerns.” Id.
The record demonstrates that the district court considered the nature and
extent of Garza’s assistance in the investigation of other criminal activity and
the usefulness of his assistance. Because the court based its departure decision
on at least two of the § 5K1.1 factors, Garza cannot establish that it committed
a violation of law by granting a six-month downward departure rather than the
departure recommended by the parties. See Johnson, 33 F.3d at 9-10.
Garza’s argument, that the district court misapplied the criteria to deter-
mine a departure under § 5K1.1 because the court believed that Garza was re-
quired to provide more information than what he had already disclosed to quali-
fy for the safety-valve, is unavailing. The downward departure of six months in-
dicates that the court believed that Garza provided some assistance in excess of
that taken into account by the safety-valve provision. Garza has not shown an
error that is plain or that affects his substantial rights. See Jones, 489 F.3d at
681.
Garza avers that the district court erroneously reduced the extent of the
downward departure in anticipation of a potential future reduction under FED.
R. CRIM. P. 35(b) and that that error is a violation of law. Because Garza pre-
served the objection, we review for abuse of discretion. Desselle, 450 F.3d at 182.
“A district court abuses its discretion if it departs on the basis of legally unac-
ceptable reasons or if the degree of the departure is unreasonable.” Id. (internal
quotation marks and citation omitted).
The district court considered appropriate factors in making the downward
departure and did not abuse its discretion by considering future Rule 35 down-
ward departure recommendations in determining the extent of the departure.
See Alvarez, 51 F. 3d at 36 n.5. Accordingly, Garza has not shown abuse of dis-
cretion. Desselle, 450 F.3d at 182.
Garza contends the district court’s failure to grant the extent of the down-
ward departure requested by the government resulted in an unreasonable sen-
3
No. 07-41154
tence. Once an appellate court has decided that there has been 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,” that court then con-
siders “the substantive reasonableness of the sentence.” Gall v. United States,
128 S. Ct. 586, 594 (2007). Because Garza did not object to reasonableness in the
district court, review is for plain error. See Hernandez-Martinez, 485 F.3d at
272; Jones, 489 F.3d at 681.
The district court based its sentencing decision on the seriousness of the
offense, the need to provide just punishment and respect for the law, and the
need to protect the public. Garza has not shown error, much less plain error,
with respect to substantive reasonableness. See Jones, 489 F.3d at 681.
The judgment is AFFIRMED.
4