     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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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