United States v. Jorge Garcia

Case: 19-41035 Document: 00515452479 Page: 1 Date Filed: 06/15/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-41035 June 15, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JORGE LUIS GARCIA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-1832-1
Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Jorge Luis Garcia pleaded guilty to possession, with intent to distribute,
approximately 115 kilograms of marihuana, in violation of 21 U.S.C.
§ 841(a)(1), and was sentenced to, inter alia, 42 months’ imprisonment, six
months to run consecutively to the sentence imposed in another drug case. He
contends the district court erred by applying Sentencing Guideline § 3C1.2’s
enhancement, applicable where “defendant recklessly created a substantial
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 19-41035 Document: 00515452479 Page: 2 Date Filed: 06/15/2020
No. 19-41035
risk of death or serious bodily injury to another person in the course of fleeing
from a law enforcement officer”. U.S.S.G. § 3C1.2. Garcia contends, primarily,
that the “substantial risk” element was lacking.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
The decision to apply Guideline § 3C1.2 is reviewed for clear error and
will be upheld if plausible in the light of the record as a whole. United States
v. Gould, 529 F.3d 274, 276 (5th Cir. 2008) (citation omitted). There was no
clear error. Among other things, Garcia attempted to evade law enforcement
by driving 50 miles per hour in a 30 mile-per-hour zone in evening traffic for
two miles; committed a traffic violation by failing to yield at an intersection;
and traveled for one-block on the shoulder of the road while passing other
vehicles. See id.
AFFIRMED.
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