United States v. Franklin Garcia , 472 F. App'x 316 ( 2012 )

Case: 11-10287 Document: 00511910318 Page: 1 Date Filed: 07/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 5, 2012
No. 11-10287 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANKLIN GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-15-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
This court affirmed the district court’s consideration of Defendant
Franklin Garcia’s rehabilitative needs when imposing a term of imprisonment
after revocation of Garcia’s supervised release. We did so based on then-valid
circuit precedent. See United States v. Breland, 647 F.3d 284 (5th Cir. 2011),
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-10287 Document: 00511910318 Page: 2 Date Filed: 07/05/2012
No. 11-10287
vacated by 132 S. Ct. 1096 (Jan. 17, 2012). Consistent with its decision to vacate
in Breland, the Supreme Court vacated and remanded the judgment in the
present case, instructing that we reconsider in light of the Government’s change
in position as described in its brief to the Supreme Court. Garcia v. United
States, No. 11-8728, 2012 WL 425216 (May 14, 2012).
In its Supreme Court brief, the Government stated that “in light of the
disposition of the petition for certiorari in Breland and the position asserted by
the Solicitor General in his brief for the United States filed in that case, this
Court should, as in Breland, grant the petition, vacate the judgment, and
remand to the court of appeals for further consideration.” Brief for the United
States, Garcia v. United States, 2012 WL 1743230, at *11 (April 11, 2012). The
Government’s position accords with how the First Circuit, Eighth Circuit, and
the Ninth Circuit have resolved this issue. United States v. Molignaro, 649 F.3d
1, 5 (1st Cir. 2011); United States v. Taylor, 679 F.3d 1005, 1006-07 (8th Cir.
2012); United States v. Grant, 664 F.3d 276, 282 (9th Cir. 2011).
Accordingly, this matter is REMANDED to the district court for
resentencing in accordance with this order.
2