United States v. Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 11, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-40963
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REYNALDO GARCIA, also known as Chucky,

Defendant-Appellant.

______________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-169-2
______________________

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Reynaldo Garcia appeals his sentence following his guilty-plea

to conspiracy to possess with intent to distribute more than 1,000

kilograms of marijuana in violation of 21 U.S.C. §§ 846 and

841(a)(1), (b)(1)(A). The district court calculated Garcia’s base

offense level based on relevant conduct involving 48,651.7

kilograms of marijuana. Garcia argues, inter alia, that the

district court’s drug quantity finding violated the Sixth Amendment

and United States v. Booker1 because he did not plea or admit to

1
125 S. Ct. 738 (2005).
the relevant conduct and it was not found by a jury.

In Booker, the Supreme Court held that “[a]ny fact (other than

a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.”2 Booker struck down

18 U.S.C. § 3553(b)(1), thus rendering the Guidelines advisory.3

Garcia did not expressly object in the district court based on

Booker or the Sixth Amendment. Consequently, our review is for

plain error only.4 We may correct an error that the appellant

failed to raise in the district court only if there is “(1) error,

(2) that is plain, and (3) that affect[s] substantial rights.”5 If

these conditions are met, we may exercise our discretion to notice

a forfeited error only if “the error seriously affect[s] the

fairness, integrity, or public reputation of judicial

proceedings.”6

The first two prongs of the plain error test are clearly met

in this case.7 In order to satisfy the third prong, Garcia must

2
Id. at 756.
3
Id. at 764-65.
4
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
5
United States v. Cotton, 122 S. Ct. 1781, 1785 (2002) (internal quotation
marks and citations omitted).
6
Id. (internal quotation marks and citations omitted).
7
See Mares, 402 F.3d at 520-21.

2
demonstrate that “the sentencing judge--sentencing under an

advisory scheme rather than a mandatory one--would have reached a

significantly different result.”8 Although we have held that an

appellant has a “difficult burden to establish that the error

affected his substantial rights,”9 we are persuaded that Garcia has

done so in the present case.

At Garcia’s sentencing, the court discussed at length the

difficulties of long prison sentences and their affect on families.

The court noted that Garcia was a husband and father of small

children, and opined: “You [Garcia] are a young man and I would

prefer to sentence you to a lesser sentence than required under the

guidelines but I’m going to follow the law and assess punishment

appropriately based on the circumstances that are presented before

me.” The court then proceeding to sentence Garcia to 262 months’

imprisonment--at the very bottom of the applicable Guidelines

range. We have held that this type of evidence indicates a

likelihood that the district court would have imposed a lesser

sentence under an advisory Guidelines regime.10 Furthermore, we

find that Garcia has carried his burden under the fourth prong of

8
Id. at 521.

9
United States v. Pennell,---F.3d----, 2005 WL 1030123, at *5 (5th Cir.
May 4, 2005).
10
See id.

3
the plain error test.11 Accordingly, Garcia’s sentence must be

vacated and remanded for resentencing.

Because the district court’s drug quantity determination

requires resentencing, we do no reach Garcia’s other claimed

sentencing errors and leave to the district court’s discretion

whether it will impose the same sentence with the same departures

or enhancements.12 Garcia’s argument that a greater sentence at

resentencing would implicate ex post facto concerns is premature,

and we do not address it.13

VACATED AND REMANDED.

11
See id. (sentencing error that results in a dramatic increase in the
recommended imprisonment range “seriously affects the fairness, integrity, or
public reputation of the judicial proceedings” (quoting United States v. Gracia-
Cantu, 302 F.3d 308, 313 (5th Cir. 2002))).

12
See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

13
See Amar v. Whitley, 100 F.3d 22, 23 (5th Cir. 1996) (finding that we
lack the “jurisdiction and the judicial resources to issue an advisory opinion”).