United States v. Mariano Garcia

Case: 17-40821 Document: 00514666599 Page: 1 Date Filed: 10/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40821
FILED
October 3, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIANO EBERTH GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-1612-4
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Mariano Eberth Garcia pleaded guilty to making false statements or
representations with regards to firearm records. He was sentenced below the
advisory guidelines range to 50 months of imprisonment and three years of
supervised release. As special conditions of supervised release, the district
court orally ordered at sentencing that Garcia participate in a drug and alcohol
treatment program “as deemed necessary by the probation officer.” The
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40821 Document: 00514666599 Page: 2 Date Filed: 10/03/2018
No. 17-40821
written judgment reflects that Garcia’s participation in substance-abuse and
alcohol-abuse treatment programs is mandatory, subject to the supervision of
the probation officer. The written judgment also included a special condition
of supervised release prohibiting the use or possession of alcohol. Garcia now
appeals, challenging the orally pronounced treatment requirements and the
written alcohol prohibition.
We review for plain error Garcia’s unpreserved objection to the
treatment conditions on the basis that it is ambiguous whether they
impermissibly delegate sentencing authority to the probation officer. See
United States v. Barber, 865 F.3d 837, 839 (5th Cir. 2017). Garcia’s
presentence report (PSR) reflects a history of drug and alcohol use. His
substance abuse was discussed at sentencing, and his counsel requested that
Garcia receive drug treatment while incarcerated. Based on this record, we
conclude that the district judge intended that drug and alcohol treatment be
mandatory and permissibly delegated the details of that treatment to the
probation officer. See United States v. Guerra, 856 F.3d 368, 369 (5th Cir.
2017); see also Barber, 865 F.3d at 840 n.1.
We review Garcia’s challenge to the discrepancy between the oral
pronouncement of sentence and the written judgment for abuse of discretion.
See United States v. Morin, 832 F.3d 513, 518-19 (5th Cir. 2016). Based on the
record evidence of Garcia’s history of alcohol use and the orally pronounced
supervised release condition requiring him to participate in an alcohol-abuse
treatment, we conclude that the alcohol prohibition in the written judgment
does not conflict with the oral pronouncement of sentence. See United States
v. Mireles, 471 F.3d 551, 557-58 (5th Cir. 2006); see also United States v.
Rodriguez-Barajas, 483 F. App’x 934, 935 (5th Cir. 2012).
AFFIRMED.
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