United States v. Jose Garcia-Quintanilla , 429 F. App'x 414 ( 2011 )

Case: 10-50766 Document: 00511515794 Page: 1 Date Filed: 06/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 21, 2011
No. 10-50766
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE RENE GARCIA-QUINTANILLA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-3487-1
Before GARWOOD, SOUTHWICK and HAYNES, Circuit Judges.
PER CURIAM:*
In 2007, Jose Rene Garcia-Quintanilla (Garcia), a native and citizen of
El Salvador, was ordered removed from the United States. Because Garcia
failed to cooperate in his removal proceedings, Garcia was charged and
convicted of failure to make timely application in good faith for travel and
departure, a violation of 8 U.S.C. § 1253. This was Garcia’s second conviction
for a violation of § 1253. The district court imposed an upward variance to 30
months of imprisonment, which Garcia challenges only as being substantively
*
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 R. 47.5, the court has determined that this opinion should not be published and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: 10-50766 Document: 00511515794 Page: 2 Date Filed: 06/21/2011
unreasonable.
The 30-month sentence challenged by Garcia was the result of an
upward variance from the Guidelines (the guideline range is 15 to 21 months;
the statutory maximum is four years). See United States v. Brantley, 537
F.3d 347, 349 (5th Cir. 2008).
Following United States v. Booker, 543 U.S. 220 (2005), our review of
sentences is for reasonableness in light of the sentencing factors set forth in
18 U.S.C. § 3553(a). See United States v. Mares, 402 F.3d 511, 518-19 (5th
Cir. 2005). Generally, we “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 51 (2007). At sentencing, however, Garcia did not
advance the arguments he now raises on appeal and only made a general
objection following the imposition of his sentence. “To preserve error, an
objection must be sufficiently specific to alert the district court to the nature
of the alleged error and to provide an opportunity for correction.” United
States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Thus, arguably Garcia did
not preserve his error and review is subject to plain error. See id.; see also
United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). Nevertheless,
this court need not determine whether plain error review is appropriate in
this case because, as shown below, Garcia is not entitled to relief even
assuming he preserved the issue. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
The record indicates that the district court properly considered the
§ 3553(a) factors. The 30-month sentence reflected the seriousness of Garcia’s
offense, Garcia’s history and characteristics, the need to promote respect for
2
Case: 10-50766 Document: 00511515794 Page: 3 Date Filed: 06/21/2011
the law, and the need to deter future criminal conduct.1 The sentence
imposed “was reasonable under the totality of the relevant statutory factors.”
Brantley, 537 F.3d at 349 (quotation marks omitted); see also United States v.
Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Accordingly, the
judgment of the district court is AFFIRMED. See Gall, 552 U.S. at 51.
1
Garcia was ordered deported to El Salvador in January 2007, and, following his refusal to make
timely application in good faith for travel and departure, was charged with and convicted of violating 8
U.S.C. § 1253 in April 2008, for which he was ultimately sentenced to 24 months’ imprisonment. As we
previously noted in that case, United States v. Garcia-Quintanilla, 574 F.3d 295 (5th Cir. 2009), “[u]p until
the eve of trial, the Government offered to drop the charges if Garcia-Quintanilla would cooperate in his
removal. Garcia-Quintanilla refused these offers, and the jury later found him guilty.” Id. at 297. The
instant conviction and sentence is for Carcia’s repeated refusal, from October 26, 2009 up to and including
December 3, 2009, to make timely application in good faith for travel and departure pursuant to his said
January 2007 order of deportation to El Salvador.
3