United States v. Garcia-Vela ( 2023 )

Case: 23-10173 Document: 00516904839 Page: 1 Date Filed: 09/22/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10173
Summary Calendar FILED
____________ September 22, 2023
Lyle W. Cayce
United States of America, Clerk
Petitioner—Appellee,
versus
Alfonso Garcia-Vela,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-265-1
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Alfonso Garcia-Vela pleaded guilty to illegally reentering the United
States after having been previously deported, in violation of 8 U.S.C. § 1326.
He was sentenced to 82 months of imprisonment, which the district court
stated was the result of an upward departure, pursuant to U.S.S.G.
§ 4A1.3(a), or, alternatively, an upward variance under 18 U.S.C. § 3553(a).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10173 Document: 00516904839 Page: 2 Date Filed: 09/22/2023
No. 23-10173
On appeal, Garcia contends that his above-guidelines sentence was
substantively unreasonable. His appellate argument is perfunctory and
conclusory, consisting of a single paragraph in which he complains that the
district court erroneously relied on facts surrounding his criminal history
which were already accounted for in the guideline calculations and that the
upward variance represented a clear error of judgment in balancing the
sentencing factors.
Although he acknowledges that his sentence was the result of
a guidelines-authorized upward departure or, alternatively, an upward
variance, Garcia briefs no argument challenging his sentence as an upward
departure under § 4A1.3(a). He has therefore abandoned any such challenge.
See United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996); Beasley
v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
Even were that not so, and assuming that his perfunctory briefing is
sufficient to preserve an appellate substantive reasonableness challenge, cf.
Fed. R. App. P. 28(a)(8)(A); United States v. Scroggins, 599 F.3d 433, 446-
47 (5th Cir. 2010); Beasley, 798 F.2d at 118, Garcia fails to demonstrate any
abuse of discretion on the district court’s part. See United States v. Cano,
981 F.3d 422, 427 (5th Cir. 2020). His argument to the contrary
notwithstanding, the district court was permitted to consider factors already
incorporated by the Guidelines—including criminal history—in concluding
that an upward variance was appropriate. See United States v. Brantley,
537 F.3d 347, 350 (5th Cir. 2008); United States v. Williams, 517 F.3d 801,
809 (5th Cir. 2008). Here, the district court cited Garcia’s lengthy and
violent criminal history which had not been deterred by prior prison terms to
conclude that a variance was warranted based on the need to protect the
public and provide adequate deterrence, which are appropriate factors under
§ 3553(a).
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Case: 23-10173 Document: 00516904839 Page: 3 Date Filed: 09/22/2023
No. 23-10173
Garcia’s complaint that the district court committed a clear error of
judgment in balancing the § 3553(a) factors is no more than a request to have
this court reweigh those factors and conclude that a different sentence was
appropriate, which this court will not do. See Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Heard, 709 F.3d 413, 435 (5th Cir. 2013). His
disagreement with the district court’s assessment of the factors and the
selected sentence does not show that his sentence is substantively
unreasonable. See United States v. Gutierrez, 635 F.3d 148, 154 (5th Cir.
2011).
For the first time on appeal, Garcia also challenges the enhancement
of his sentence pursuant to § 1326(b). He contends that his sentence exceeds
the statutory maximum and is therefore unconstitutional because it was
enhanced based on facts that were neither alleged in the indictment nor found
by a jury beyond a reasonable doubt. He acknowledges this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
seeks to preserve it for possible Supreme Court review. Garcia is correct that
his argument is foreclosed. See United States v. Pervis, 937 F.3d 546, 553-54
(5th Cir. 2019).
The district court’s judgment is AFFIRMED.
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