                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      July 27, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 05-2371
          v.                                       District of New M exico
 D A N IEL R EN E G A RC IA ,                   (D.C. No. CR-04-2249 W PJ)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Defendant-Appellant Daniel G arcia pleaded guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He filed a motion

for a downward departure, which the district court denied. His criminal history

category was VI and his offense level 21, resulting in an advisory guideline range



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
of 77 to 96 months. He was sentenced to 77 months’ imprisonment, at the low

end of the guidelines range. Relying on the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005), and the criteria in 18 U.S.C. § 3553(a),

M r. Garcia objected to the sentence and claimed that a reduction was warranted

because his sentence was unreasonably calculated for two reasons: (1) his

possession of the gun should be considered a lesser harm because the gun

belonged to his wife and was inadvertently left in the truck that he took to work;

and (2) the court failed to consider his family circumstances, namely that his

presence is required to take care of his ill wife and her three children. Exercising

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

                                 I. Background

      M r. Garcia claims the gun belonged to his then girlfriend Anna Lara, who

married M r. Garcia at the conclusion of sentencing. M r. Garcia discovered the

gun had been left in his truck and called M s. Lara to come and retrieve it.

However, she was the only employee at work and was unable to leave. Later that

day, M r. Garcia was suspected w hen money went missing from M r. Garcia’s boss.

M r. Garcia gave the police consent to search his truck, warning the police in

advance that his wife’s gun was inside and that he was a felon. M r. Garcia was

arrested. He told the police that he had handled the gun a couple of days before

the arrest when he saw the gun in M s. Lara’s home and moved it out of reach of

the children.

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      M r. Garcia also alleges that since his incarceration M s. Lara has been ill

and unable “to maintain their home.” A ppellant’s O pening Br. 24. As a result

she has moved in “with her elderly parents, upon whom the responsibilities of a

daughter and her three children works a tremendous hardship.” Id. In addition,

M r. Garcia claims he has a relationship w ith M s. Lara’s children, in particular,

her oldest son, who has a learning disability.

      Agent Francisco Ortega testified at the sentencing hearing that he spoke to

two individuals, Crusita Gonzales, the Garcia’s apartment manager, and David

Labuda, M r. Garcia’s boss. Both of these individuals had told Agent Ortega that

M r. Garcia had mentioned that he had a gun and that he “just gotta be careful”

about being caught with it.

      The district court denied the motion for a downward departure and found

that a sentence w ithin the guidelines would be reasonable. The district court

stated that M r. Garcia “w as candid in his testimony that he knew he w asn’t

supposed to be around firearms” and found that there was no “bas[is] for

departure under the sentencing guidelines.” R. Vol. V, pp. 120-21. Furthermore,

the district court found that M r. Garcia, as a step-father, did not demonstrate

extraordinary family circumstances that would require a reduced sentence. M r.

Garcia appeals.




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                                 II. Discussion

      A sentence properly calculated within the advisory sentencing guidelines is

entitled to a presumption of reasonableness. United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006). The defendant is required to show that the sentence

is unreasonable when viewed against factors in § 3553(a). Id. On appeal, to

determine whether the sentence is reasonable we first examine whether the

guidelines were properly applied. United States v. Hernandez-C astillo, 449 F.3d

1127, 1129 (10th Cir. 2006). The district court’s sentence is reviewed de novo and

the factual findings for clear error. Id. If the district court’s application of the

guidelines was correct or any errors harmless, then we decide whether the

sentence was reasonable. Id. at 1129-30.

1. § 5K2.11

      M r. Garcia challenges the reasonableness of the sentence that was imposed

by the district court because his inadvertent possession of M s. Lara’s gun “fits the

lesser harms rationale articulated in U .S.S.G § 5K2.11.” A ppellant’s Opening Br.

at 17. A downward departure is appropriate under § 5K2.11, “provided that the

circumstances significantly diminish society’s interest in punishing the conduct,”

or when the “conduct does not cause or threaten the harm or evil sought to be

prevented by the law proscribing the offense at issue.” U .S.S.G § 5K2.11. M r.

Garcia argues that his possession of the gun was not for an unlawful purpose.

However, we have held that the lesser harm provision of the guidelines should be

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interpreted narrowly. United States v. Warner, 43 F.3d 1335, 1338 (10th Cir.

1994) (reversing the district court’s downward departure for a war veteran in

possession of a machine gun). Congress designed § 922(g) to sweep broadly, and

the statute draws the criminal line at possession rather than illicit purpose. See

United States v. Riley, 376 F.3d 1160, 1166-67 (D.C. Cir. 2004). To violate §

922(g), the felon has to possess the gun knowingly. 18 U.S.C. § 924(a)(2).

Because M r. Garcia possessed the gun knowingly, “the mere absence of an

unlawful purpose does not warrant a departure under § 5K2.11.” Riley, 376 F.3d

1167.

2. Family Circumstances

        M r. Garcia also argues that the dependency of his ill wife and her three

children on his economic support should have led to a lower sentence. Under the

sentencing guidelines, “[f]amily ties and responsibilities and community ties are

not ordinarily relevant in determining whether a departure may be warranted.”

U.S.S.G. § 5H1.6. Indeed, family circumstances are only considered in the most

extraordinary situations. United States v. Jones, 158 F.3d 492, 499 (10th Cir.

1998); United States v. Rodriguez-Velarde, 127 F.3d 966, 968 (10th Cir. 1997)

(“To justify a departure, a defendant must demonstrate that the period of

incarceration set by the Guidelines w ould have an effect on the family or family

members beyond the disruption to family and parental relationships that would be

present in the usual case.”) (internal quotation marks omitted). M r. Garcia has

                                           -5-
not demonstrated that his imprisonment has imposed a greater hardship on his

family than a similar sentence would on any other imprisoned defendant’s family.

See United States v. Sierra-Castillo, 405 F.3d 932, 938 (10th Cir. 2005) (holding

that the defendant’s ill wife and need for emotional and financial support was not

sufficient to constitute a downward departure in sentencing); United States v.

M cClatchey, 316 F.3d 1122, 1130 (10th Cir. 2003) (“The fact that a defendant

cares for a family member with a mental and physical disability is not by itself

sufficient to make the circumstances ‘exceptional.’”). Therefore, the district

court did not err in denying M r. G arcia’s request for a downward departure.

3. 3553(a) Reasonableness

      The district court correctly calculated the guidelines range, carefully

considered the factors of 18 U.S.C. § 3553(a), and found a sentence at the bottom

of the range reasonable. The first factor in 18 U.S.C. § 3553(a) requires the

district court to consider “the nature and circumstances of the offense and the

history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Because

M r. Garcia has an extensive criminal history, admitted to being a felon-in-

possession of the gun, and stated that there were other instances where he had

contact with the gun, the district court found that the sentence was warranted

under the facts of the case. The second factor in deciding whether the sentence

was reasonable is “the need for the sentence imposed . . . to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

                                          -6-
punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). The district court found

that “the sentencing guideline range comports with that factor.” The last factor

discussed by the district court was “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” 18 U.S.C. § 3553 (a)(6). The district court found that other

defendants with M r. Garcia’s criminal history are not given a sentence below the

sentencing guideline range and to do so for M r. Garcia w ould give him “a benefit

or a break that other similarly situated defendants do not receive.”

      M r. Garcia argues strenuously that the circumstances under which he

possessed a firearm were unusually innocuous and warranted a lesser sentence. If

the district court had credited M r. Garcia’s account and had rendered a below-

guidelines sentence, we might well agree that a reduction was reasonable and

appropriate under these facts. But the Supreme Court’s Booker decision was not

intended to give appellate courts the freedom to determine sentences in accord

with our sense of justice. It was to give district courts the latitude to do justice in

the individual case, without being bound to mandatory and inflexible “guidelines”

that were, in fact, dictates. Appellate review is limited to determining whether

guidelines ranges were properly calculated and sentences within the bounds of

reasonableness. After reviewing the record we do not think that the district

court’s judgment regarding an appropriate sentence in this case exceeded those

bounds.

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     The judgment of the United States District Court for the District of New

M exico is AFFIRM ED.

                                             Entered for the Court,

                                             M ichael W . M cConnell
                                             Circuit Judge




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