     Case: 17-10979       Document: 00514491770         Page: 1     Date Filed: 05/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                     No. 17-10979                                FILED
                                   Summary Calendar                          May 30, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JAIME SHAKUR GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:15-CR-105-2


Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
       Jaime Shakur Garcia challenges his guilty-plea convictions and
sentences for interference with interstate commerce by robbery (Hobbs Act
robbery) and possession of a firearm in connection with a crime of violence, in
violation of 18 U.S.C. §§ 1951(a) and 924(c). On resentencing following remand
by this court, Garcia was sentenced to the top of the advisory Sentencing




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                 No. 17-10979

Guidelines range of 51 months’ imprisonment for the Hobbs Act robbery and
to the statutorily-mandated ten years’ imprisonment for the firearm charge.
      Garcia contests his conviction on the § 924(c) charge, claiming Hobbs Act
robbery is not a qualifying crime of violence that can support such a charge.
Because Garcia did not preserve this issue in district court, review is only for
plain error. United States v. Buck, 847 F.3d 267, 274 (5th Cir. 2017), cert.
denied sub nom. Allen v. United States, 137 S. Ct. 2231 (2017), and cert. denied,
138 S. Ct. 149 (2017), reh’g denied, 138 S. Ct. 536 (2017).
      Under that standard, Garcia must show a forfeited plain error (clear or
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct such reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      In any event, and as Garcia concedes, our court held in Buck, 847 F.3d
at 274–75, that Hobbs Act robbery qualifies as a crime of violence under the
use of force clause of § 924(c)(3)(A). Even assuming this claim is not barred by
the mandate rule, Garcia raises it only to preserve it for further review.
      Concerning his sentence, Garcia claims it is both procedurally and
substantively unreasonable.      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, 48–51 (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



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                                  No. 17-10979

de novo; its factual findings, only for clear error.       E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Garcia, however, did not
preserve these issues in district court; therefore, review is again only for plain
error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
        Regarding the claimed procedural error, at re-sentencing, Garcia
presented bases for a lower sentence, including: his youth, his remorse, his
cooperation with authorities, his fear as he committed the offense, and his
efforts to ameliorate himself while in prison. The court also heard from two of
the victims.     The court acknowledged Garcia’s assertions, the witnesses’
statements, and Garcia’s apology.
        After announcing the sentence, the court reiterated its belief the
sentence appropriately addressed the 18 U.S.C. § 3553(a) sentencing factors of
punishment and deterrence. Even if the court “might have said more”, the
record makes clear the court considered “the evidence and arguments”, and its
statement of reasons for the sentence imposed was “legally sufficient”. Rita v.
United States, 551 U.S. 338, 358–59 (2007). Garcia has not shown the requisite
clear or obvious error with respect to the claimed procedural error concerning
the adequacy of the reasons for the imposed sentence. Id.; Puckett, 556 U.S. at
135.
        Likewise, regarding the claimed substantive unreasonableness of the
sentence, Garcia fails to show the court committed clear or obvious error by
giving weight to an improper or irrelevant factor, or failing to consider a factor
that should have received significant weight in sentencing him for the Hobbs
Act robbery. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The
court acknowledged the assertions regarding the decrease in the advisory
Guidelines sentencing range, the Government’s recommendation for a
sentence at the low end of that range, and Garcia’s cooperation with



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                                  No. 17-10979

authorities.   The court explained that sentence served the need for just
punishment and deterrence, both § 3553(a) factors.
      We   therefore    presume    Garcia’s    within-Guidelines    sentence    is
substantively reasonable. United States v. Campos-Maldonado, 531 F.3d 337,
339 (5th Cir. 2008). Garcia essentially requests we reweigh the § 3553(a)
factors, which is not within the scope of our review. Gall, 552 U.S. at 51. In
short, he has not shown plain error as to the substantive reasonableness of his
sentence. States v. Whitelaw, 580 F.3d 256, 259–60.
      AFFIRMED.




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