United States v. Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41580
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEBASTIAN GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-03-CR-209-1
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Before SMITH, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Sebastian Garcia appeals the sentence he received following
entry of his guilty plea to a charge of possession with intent to
distribute more than fifty kilograms of marijuana. The district
court upwardly departed from the applicable Sentencing Guideline
range and sentenced Garcia to 240 months of imprisonment and six
years of supervised release.
*
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that this opinion should not be published and is not precedent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.
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Garcia argues that the upward departure was an abuse of
discretion. He contends that the district court “removed itself
from the position of impartial fact-finder,” assumed the role of an
advocate, demonstrated a lack of impartiality, and encouraged the
Assistant United States Attorney to “back away from her earlier
[sentencing] recommendation of 151 months.” He does not challenge
as unacceptable the district court’s stated reasons for the
departure, nor does he challenge the extent of the upward departure
as unreasonable.
Because Garcia did not object in the district court to the
upward departure, our review is limited to plain error. See United
States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). Garcia must
show an error that is plain and that affected his substantial
rights. Ravitch, 128 F.3d at 869. If Garcia makes this showing,
we may exercise discretion and correct the forfeited error if the
error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citations omitted).
The district court should “never evince or appear to evince
partiality to one side over the other.” United States v. Davis,
285 F.3d 378, 381 (5th Cir. 2002). A review of the record reflects
that the presentence report alerted the district court that an
upward departure was warranted. The district court relied on the
grounds identified in the presentence report to justify the
departure, which Garcia verified were correct. The district court
did not encourage the Government to abandon its sentencing
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recommendation; the Government changed its position when it
realized that Garcia’s plea agreement did not obligate it with
respect to the sentence. Garcia has not shown error, much less
plain error, concerning the upward departure to 240 months of
imprisonment. See Ravitch, 128 F.3d at 869.
“[A] defendant with no prior felony drug conviction is
‘required to receive a supervised release term of not less than nor
more than three years.’” United States v. McWaine, 290 F.3d 269,
277 (5th Cir. 2002) (citation omitted); see 21 U.S.C.
§ 841(b)(1)(C). Although Garcia did not raise this issue, we have
the discretion to sua sponte modify the term of supervised release.
McWaine, 290 F.3d at 277. Accordingly, Garcia’s term of supervised
release is MODIFIED to three years.
The conviction and sentence are AFFIRMED AS MODIFIED.
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