United States v. Garcia ( 2023 )

Case: 21-51065 Document: 00516599073 Page: 1 Date Filed: 01/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 5, 2023
No. 21-51065 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Luis Garcia, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:20-CR-1917-1
Before Higginbotham, Jones, and Oldham, Circuit Judges.
Per Curiam:*
A jury convicted Jose Luis Garcia, Jr., on one count of dealing firearms
without a license. See 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D). The district
court varied upward from the guidelines range by eight months and
sentenced Garcia to 41 months of imprisonment and three years of
supervised release. On appeal, Garcia argues that the evidence was
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-51065
insufficient to support his conviction and that his sentence was substantively
unreasonable. This court affirms.
The sufficiency-of-the-evidence challenge fails. Garcia concedes that
he did not preserve this argument, so our review is for plain error. United
States v. Huntsberry, 956 F.3d 270, 282 (5th Cir. 2020). Under the plain-error
standard, reversal is justified if there was “(1) an error, that was (2) plain,
that (3) affected the defendant’s substantial rights, and (4) seriously affected
the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Vasquez, 677 F.3d 685, 693 (5th Cir. 2012) (per curiam). “[W]e have
summarized the plain-error test’s application to unpreserved insufficiency
claims by stating that the court will reverse only if there is a manifest
miscarriage of justice.” United States v. Delgado, 672 F.3d 320, 331 (5th Cir.
2012) (en banc) (quotation omitted). This occurs where “the record is
devoid of evidence pointing to guilt” or where “the evidence is so tenuous
that a conviction would be shocking.” United States v. Smith, 878 F.3d 498,
503 (5th Cir. 2017) (quotation omitted).
Garcia’s only developed sufficiency-of-the-evidence challenge on
appeal is that the Government failed to prove that he was “engaged in the
business” of dealing firearms. See 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D).
Under the applicable statutory definition, the Government needed to show
that Garcia dealt “in firearms as a regular course of trade or business to
predominately earn a profit.” Id. § 921(a)(21)(C) (emphases added). In an
interview with law enforcement, Garcia admitted that he purchased and
resold firearms “for profit.” In addition, the evidence showed that Garcia
dealt in firearms regularly because he (1) purchased and resold a large
quantity of firearms over a period of several months, (2) was experienced in
buying and selling firearms, (3) was knowledgeable about current prices, and
(4) was familiar with laws governing the sale of firearms. Given that the
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record is not wholly “devoid of evidence” that Garcia was “engaged in the
business” of dealing firearms, his sufficiency-of-the-evidence challenge fails.
Garcia’s challenge to the substantive reasonableness of his sentence
fares no better. Here, we review for abuse of discretion. See United States v.
Vargas, 21 F.4th 332, 334 (5th Cir. 2021). “A district court abuses its
discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” United States v. Teuschler, 689 F.3d 397, 399
(5th Cir. 2012) (quotation omitted). A district court’s factual findings are
clearly erroneous if, when viewing the record as a whole, we are “left with
the definite and firm conviction that a mistake” was made. United States v.
Khan, 997 F.3d 242, 247 (5th Cir. 2021) (quotation omitted). A sentence
outside the guidelines range is substantively unreasonable if it “(1) does not
account for a[n] [18 U.S.C. § 3553(a)] factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
[§ 3553(a)] factor, or (3) represents a clear error of judgment in balancing the
[§ 3553(a)] factors.” United States v. Nguyen, 854 F.3d 276, 283 (5th Cir.
2017) (quotation omitted).
The district court stated that Garcia’s sentence was based on (1) its
determination that the firearms he purchased were destined for Mexico and
(2) the “peculiarly aggravating circumstance” that he committed the offense
in a border community. First, the district court did not clearly err in finding
that the firearms Garcia bought and sold were destined for Mexico. The
evidence showed that Garcia frequently entered the United States,
purchased firearms, and returned to Mexico—sometimes all within a few
hours. And other evidence showed Garcia inside a store photographing
firearms, sending messages with his cell phone, and purchasing multiple
identical firearms, which are actions consistent with those of a straw
purchaser. Second, the district court did not abuse its discretion by
considering the fact that Garcia committed his offense in a border community
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as an “aggravating circumstance” that warranted an upward variance. This
reflects the district court’s concern about several of the relevant § 3553(a)
factors, including the nature and circumstances of the offense, the need for
adequate deterrence, and the need to protect the public. See Nguyen,
854 F.3d at 283–84. Given that the district court made no clearly erroneous
factual findings and adequately accounted for the relevant § 3553(a) factors
in varying Garcia’s sentence upward by eight months, it did not abuse its
discretion.
AFFIRMED.
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