     Case: 10-41023     Document: 00511530231         Page: 1     Date Filed: 07/05/2011




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

                                                                            FILED
                                                                            July 5, 2011
                                     No. 10-41023
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee

v.

ELEAZAR GARCIA-FLORES,

                                                  Defendant–Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10–CR–457–1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Eleazar Garcia-Flores pleaded guilty to one count of possessing more than
50 grams of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A).         At sentencing, the district court granted the
Government’s motion for a downward departure under 18 U.S.C. § 3553(e) and
U.S.S.G. § 5K1.1, and sentenced Garcia-Flores to 108 months of imprisonment
and three years of supervised release. Garcia-Flores appeals, challenging the
procedural and substantive reasonableness of his sentence. We AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41023

                                             I
       After United States v. Booker, 543 U.S. 220 (2005), we review sentencing
decisions in two steps. See Gall v. United States, 552 U.S. 38, 46 (2007). We
first consider whether the district court committed any significant procedural
error, “such as . . . failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines
range.” Id. at 51. If the district court’s sentencing decision is procedurally
sound, we then consider the substantive reasonableness of the sentence under
an abuse-of-discretion standard. Id.; United States v. Mondragon-Santiago, 564
F.3d 357, 360 (5th Cir. 2009).
       Garcia-Flores raises three assignments of error relating to his sentence:
(1) the district court committed procedural error by failing to independently
assess the downward departure awarded under U.S.S.G. § 5K1.1; (2) the district
court committed procedural error by failing to adequately explain the reasons
for its sentence; and (3) the district court’s sentence is substantively
unreasonable.1
                                             A
       Garcia-Flores first contends that the district court committed procedural
error by failing to independently assess the sentence reduction warranted under
§ 5K1.1. Garcia-Flores did not preserve this issue in the district court and so we
review for plain error. See Mondragon-Santiago, 564 F.3d at 361. To show plain
error, an appellant must show a forfeited error that is plain or obvious and that
affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009).    Even if the appellant makes such a showing, this court has the




       1
       Garcia-Flores also contends that his points of error warrant reversal when considered
cumulatively. We find this argument to be without merit.

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                                  No. 10-41023

discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      At sentencing, the Government moved for a two-level reduction in Garcia-
Flores’s total offense level based on his substantial assistance to authorities
regarding his criminal offense and other illegal activity. The Government noted
that the reduction would place Garcia-Flores’s Guidelines imprisonment range
at between 108 and 135 months, and it recommended a 108-month sentence. In
response, Garcia-Flores’s trial counsel stated that, “[T]here are no objections
filed because I know what the law is and . . . the precedents about the various
forms of downward departure.” The district court summarily granted the
Government’s motion and sentenced Garcia-Flores to 108 months’ imprisonment.
Garcia-Flores now contends that this case should be remanded because it is
unclear whether the district court complied with its duty to independently assess
the extent of the sentencing reduction warranted under § 5K1.1.
      Here, although it is not apparent from the record whether the district
court conducted an independent inquiry before awarding the two-level
departure, Garcia-Flores cannot show reversible error because he has not
demonstrated an effect on his substantial rights under plain error review. To
make such a showing, Garcia-Flores must demonstrate a reasonable probability
that he would have received a lesser sentence but for error by the district court.
See, e.g., United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010);
Mondragon-Santiago, 564 F.3d at 364–65. Garcia-Flores has not made such a
showing. He does not argue that the district court’s further consideration of his
assistance to the Government would have resulted in a lesser sentence. Nor
does the record suggest that the district court would have granted a greater
downward departure under § 5K1.1 but for some misunderstanding of its
authority to deviate from the Government’s recommendation.             The mere
possibility of a lesser sentence is insufficient under plain error review. Garcia-
Flores has failed to satisfy his burden on this issue.

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                                          B
      Next, Garcia-Flores contends that the district court committed procedural
error by failing to adequately explain its reasons for the sentence imposed. He
claims that the district court’s explanation insufficiently addressed the factors
he raised in support of a lesser sentence, including his strong family ties; his
prior employment history and work ethic; the fact that he was gradually drawn
into illegal activity through a job he initially believed to be legitimate; and his
argument that the Guidelines are grossly excessive for methamphetamine in
general, and especially so for defendants, like him, who were unaware of the
type or quantity of drugs being transported.
      “The district court must adequately explain the sentence ‘to allow for
meaningful appellate review and to promote the perception of fair sentencing.’”
Mondragon-Santiago, 564 F.3d at 360 (quoting Gall, 552 U.S. at 50). “[W]hen
a judge decides simply to apply the Guidelines to a particular case, doing so will
not necessarily require lengthy explanation.” Rita v. United States, 551 U.S.
338, 356 (2007). However, “more than a brief statement may be required when
a district court is presented with nonfrivolous arguments for a sentence outside
the Guidelines.” United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
In such cases, a district court’s explanation is not sufficient where it merely
recites the guidelines calculation and does not at least acknowledge the § 3553(a)
factors. See Mondragon-Santiago, 564 F.3d at 362–64. On the other hand, a
district court’s explanation is sufficient where the record reflects that the district
court listened to and considered the defendant’s arguments for a below-
Guidelines sentence, and indicated that a sentence within the Guidelines was
appropriate. See Rita, 551 U.S. at 356; Rodriguez, 523 F.3d at 525–26.
      Here, the record shows that the district court considered Garcia-Flores’s
arguments for a lesser sentence and provided a sufficient explanation of its
reasons for imposing the sentence that it did.          Regarding the Guidelines’
treatment of a defendant who lacked knowledge that his conduct involved

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                                  No. 10-41023

methamphetamine, the district court explained that a courier’s voluntary
ignorance could be used advantageously in a narcotics operation, and that in
determining an appropriate sentence, the court was concerned with protecting
the public.    With respect to Garcia-Flores’s personal work habits and
employment history, the court explicitly considered his lack of a criminal record,
noting that these characteristics were not uncommon among similarly situated
defendants, and that Garcia-Flores had ultimately placed himself and his family
in this situation through his criminal conduct.
      The sentencing judge need only “set forth enough to satisfy the appellate
court that [she] has considered the parties’ arguments and has a reasoned basis
for exercising [her] own legal decision making authority.” Rita, 551 U.S. at 356.
The district court provided adequate reasons for its sentence here.
                                        C
      Last, Garcia-Flores contends that his 108-month sentence is substantively
unreasonable because the district court failed to give sufficient weight to his
arguments that the Guidelines pertaining to methamphetamine offenses produce
excessive sentences, especially in cases like this, where the defendant merely
served as a courier without knowledge of the specific drug he was transporting.
Garcia-Flores also contends that the district court overemphasized the quantity
of methamphetamine involved, given his ignorance of the type and quantity of
drug that he was transporting. According to Garcia-Flores, the district court
also failed to adequately consider that his criminal conduct was an aberration
from an otherwise law-abiding and productive life.
      As discussed above, the district court considered Garcia-Flores’s argument
that the Guidelines concerning methamphetamine were excessive under his
circumstances.    The court explicitly rejected this argument, indicating its
concern with protecting the public and the possibility that a courier’s knowing
ignorance could be used to the advantage of the drug courier and the supplier.
In addition, the district court took account of the quantity of methamphetamine

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                                 No. 10-41023

involved, and it acknowledged that although Garcia-Flores’s lack of a criminal
history and difficult family circumstances made this a difficult case, the court
was unpersuaded by his arguments for a sentence less than 108 months of
imprisonment. “[T]he sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) with respect to a particular defendant.”
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The
district court’s reasons for imposing the 108-month sentence in this case do not
amount to an abuse of discretion.
                                       II
      The district court’s judgment is AFFIRMED.




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