NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50058
Plaintiff-Appellee, D.C. No.
5:14-cr-00136-VAP-1
v.
HECTOR GARCIA, AKA Hector Armando MEMORANDUM*
Garcia,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted March 4, 2019**
Pasadena, California
Before: FERNANDEZ and OWENS, Circuit Judges, and DONATO,*** District
Judge.
Hector Garcia appeals from his 144-month sentence imposed at resentencing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
for his convictions for two counts of being a felon in possession of firearms or
ammunition, in violation of 18 U.S.C. § 922(g)(1). As the parties are familiar with
the facts, we do not recount them here. We affirm.1
1. Garcia argues that the district court violated his due process right to a
fair tribunal by creating the appearance at resentencing that it had prejudged the 18
U.S.C. § 3553(a) factors before considering any new mitigating information.
See Williams v. Pennsylvania, 136 S. Ct. 1899, 1909 (2016) (“Both the appearance
and reality of impartial justice are necessary to the public legitimacy of judicial
pronouncements and thus to the rule of law itself.”). However, the district court’s
comments and actions relied on by Garcia are insufficient to demonstrate a due
process violation. See Liteky v. United States, 510 U.S. 540, 555 (1994) (noting
that, in the absence of any evidence of some extrajudicial source or bias, “judicial
remarks during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge”). The record reflects that the district court considered new
mitigating information and did not limit its analysis at resentencing to its prior
findings at the original sentencing.
2. Garcia also challenges his enhancements under the Sentencing
Guidelines based on firearms and marijuana found in the garage at a house in
1
We grant Garcia’s motion to supplement his opening brief. Dkt. No. 33.
2
Riverside. However, the district court did not clearly err in finding that Garcia
constructively possessed the firearms and marijuana. See United States v. Gasca-
Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc) (stating that factual findings at
sentencing are reviewed for clear error). “To demonstrate constructive possession
the government must prove a sufficient connection between the defendant and the
contraband to support the inference that the defendant exercised dominion and
control over the [contraband].” United States v. Cazares, 121 F.3d 1241, 1245 (9th
Cir. 1997) (citation omitted). Despite Garcia’s contention that he and his family
had recently moved out of the Riverside house, the district court did not clearly err
in finding that Garcia was still living at the Riverside house at the time of the
search revealing the contraband. The district court also did not clearly err in
inferring that Garcia had dominion and control over the firearms and marijuana
found in the garage.
3. Garcia argues that the district court failed to adequately explain his
sentence and consider his new mitigating evidence at resentencing. However, the
district court’s explanation for Garcia’s within-Guidelines 144-month sentence was
legally sufficient, and the court was not required to more explicitly address
Garcia’s mitigating arguments. See United States v. Sandoval-Orellana, 714 F.3d
1174, 1181 (9th Cir. 2013) (“If the record ‘makes clear that the sentencing judge
listened to each argument’ and ‘considered the supporting evidence,’ the district
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court’s statement of reasons for the sentence, although brief, will be ‘legally
sufficient.’” (quoting Rita v. United States, 551 U.S 338, 358 (2007))).
Further, contrary to Garcia’s contention, the district court did not base his
sentence on any clearly erroneous facts. See Gall v. United States, 552 U.S. 38, 51
(2007) (listing “selecting a sentence based on clearly erroneous facts” as a
“significant procedural error”). For example, the court’s statement that “[t]he guns
and the ammunition were scattered throughout the house along with children’s
toys” is supported by the record.
As Garcia concedes, his Apprendi argument is barred by controlling
precedent, but he preserves it for further review. See United States v. Fitch, 659
F.3d 788, 794-95 (9th Cir. 2011).
AFFIRMED.
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