United States v. Garcia ( 2023 )

Case: 22-40397 Document: 00516678108 Page: 1 Date Filed: 03/15/2023
United States Court of Appeals
for the Fifth Circuit
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United States Court of Appeals
Fifth Circuit
No. 22-40397
FILED
Summary Calendar March 15, 2023
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Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Nancy Yvette Garcia,
Defendant—Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:21-CR-354-2
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Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Nancy Yvette Garcia pleaded guilty to threatening to kidnap with
intent to extort and injure another. The district court sentenced her to 188
months in prison. The district court applied a six-level sentencing
enhancement for use of a firearm pursuant to U.S.S.G. 2B3.2(b)(3)(A)(ii).
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40397 Document: 00516678108 Page: 2 Date Filed: 03/15/2023
No. 22-40397
On appeal, Garcia argues that the facts were insufficient to show she used a
gun during the commission of her crime.
The standard of review for the district court’s factual findings during
sentencing is clear error. United States v. Landreneau, 967 F.3d 443, 449 (5th
Cir. 2020). “A factual finding is not clearly erroneous if it is plausible in light
of the record read as a whole.” Id.First, Garcia does not dispute that her accomplice struck the victim
with a gun, and that this would still warrant the six-point enhancement. See
United States v. Hammond, 201 F.3d 346, 351 (5th Cir. 1999). Thus, she has
abandoned any challenge to the district court’s ruling on this ground. See,
e.g., Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
Second, the Presentence Report relied on two FBI interviews with the
victim who stated that Garcia pistol whipped him. While Garcia attacks the
credibility and consistency of the victim’s statements, she introduced no
countervailing evidence nor are her arguments sufficient to demonstrate the
PSR’s unreliability. See United States v. Zuniga, 720 F.3d 587, 590–91 (5th
Cir. 2013). Thus, she fails to show clear error in the district court’s
conclusion.
AFFIRMED.
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