                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          December 12, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2025
                                                    (D.C. No. 1:17-CR-02242-RJ-1)
 LUCIANO GARCIA,                                               (D. N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before McHUGH, MORITZ, and EID, Circuit Judges.
                 _________________________________


      Luciano Garcia appeals his 135-month sentence for possessing with intent to

distribute 500 grams or more of methamphetamine. Exercising jurisdiction under

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

                                     BACKGROUND

      Garcia was arrested in August 2017 after he and two associates attempted to sell

two pounds of methamphetamine to a confidential source who had been in contact with


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The 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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
the Drug Enforcement Administration. Garcia pled guilty and accepted responsibility for

his crime.

       A probation officer prepared a presentence investigation report (PSR) and

calculated a sentencing Guidelines range of 168 to 210 months. That range reflected a

total offense level of 33 (a base offense level of 34; a two-level firearm enhancement; and

a three-level reduction for acceptance of responsibility) and a category III criminal

history (based on convictions dating from 2002 for, among other things, drug trafficking,

heroin possession, and drug-paraphernalia possession). The probation officer further

stated that a “downward variance outside the advisory guideline range may be warranted”

based on a consideration of the 18 U.S.C. § 3553(a) sentencing factors1 and Garcia’s

traumatic upbringing, health issues, and drug dependency. R., Vol. II at 28.

       In line with that recommendation, Garcia argued in his presentencing

memorandum that “[t]he factors set forth in 18 U.S.C. § 3553(a)(1)-(7) support a variance

and a sentence of one hundred twenty . . . months.” Id., Vol. I at 19. He also objected to

the firearm enhancement, stating he was unaware that one of his co-defendants had

brought a gun to the transaction.

       At the sentencing hearing, the district court first sustained Garcia’s objection to

the firearm enhancement, bringing the applicable sentencing range down to 135 to 168


       1
        Those factors include: the nature and circumstances of the offense; the
defendant’s history and characteristics; the need to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment; deterrence;
incapacitation; the need to provide training, medical care, or other correctional
treatment; the sentencing range and any pertinent policy statements; and the need to
avoid unwarranted sentence disparities. 18 U.S.C. § 3553(a).
                                              2
months. The district court next turned to the PSR, “find[ing] [it] accurate and correct,

with the exception of the [firearm enhancement].” Id., Vol. III at 10.

       The court then heard arguments from counsel concerning a downward variance.

Defense counsel reiterated that Garcia had “a very difficult childhood,” suffered from “an

opiate addiction,” and that “most importantly of all the [§] 3553(a) factors, at least as a

concern to my client’s history and characteristics, my client suffers from very poor

health.” Id. at 12-14. Defense counsel then concluded:

               So when you look at the arc of Mr. Garcia’s life from his childhood,
       getting through high school, and getting involved in the criminal justice
       system, it’s a striking story, but I don’t believe it’s a typical story. I believe
       Mr. Garcia’s case does fall out of the heartland of cases, if we want to use
       the old nomenclature of the Guidelines. But I guess the question for the
       Court this morning is what is sufficient, but not greater than necessary.
       Assuming we’re starting from the range of 135 to 168 months, I’d ask the
       Court to vary downward to 120 months. That would be the statutory
       minimum that my client’s facing. And I think under any metric, 120
       months is a significant sentence. It’s far, far greater than any sentence my
       client has ever received. It certainly has a significant deterrent value. It
       significantly aids in the protection of the public and promotes respect for
       the law. Any additional time beyond that 120 months really isn’t going to
       appreciably promote any of the other goals of sentencing to justify that
       additional time. Whether it’s 135, 168, or even the 210 months that [the
       prosecutor] had advocated for in his writings.

Id. at 14-15.

       The prosecutor responded by “recommen[ding] the high-end sentence of 168

months for all the reasons that were incorporated into the United States’ Sentencing

Memorandum.” Id. at 16. In that document, the government urged the Court to consider

the § 3553(a) factors. In particular, the prosecutor argued that Garcia was an experienced




                                               3
drug trafficker who had not been dissuaded from criminality by a prior three-year prison

sentence:

               Defendant’s extensive criminal history and dangerous multiple-
       pound-level drug trafficking in this case merit a very substantial sentence.
       Defendant’s prior multiple-year sentence for trafficking less than two
       ounces of crack cocaine has clearly done nothing to dissuade him from
       escalating his criminal behavior beyond ounce-level trafficking to
       multiple-pound level transactions. Defendant has shown by his continued
       criminal conduct that he requires much more severe punishment to deter
       future drug trafficking behavior.
               In addition to escalating the size and monetary value of his drug
       trafficking, Defendant has escalated his behavior to include counter-
       espionage, security details (or “backup”), and firearms. Groups of
       offenders, operating in the community using clandestine meetings,
       defended by firearms, are exactly the sort of thing that disrupts the peace
       and tranquility of local communities. For those reasons, the United States
       respectfully submits that a sentence that would be sufficient to deter this
       Defendant[’]s escalating pattern of criminal behavior, to safeguard the
       community, and to promote respect for the law, would be a sentence at the
       high end of his advisory guidelines[.]

Id., Vol. I at 32-33.

       The court then denied a variance and imposed a sentence at the bottom of the

applicable sentencing range, stating:

       I’m not departing from the recommended sentence. Pursuant to the
       Sentencing Reform Act of 1984, which I have considered in an advisory
       capacity, and the sentencing factors set forth in 18 United States Code
       Section 3553(a), which I have considered in light of the original sentence
       and I do find the Guideline range to be fair and reasonable, the following
       sentence is imposed. Luciano Garcia is placed into custody in the U.S.
       Bureau of Prisons to serve a term of imprisonment of 135 months.

Id., Vol. III at 17. The court concluded the hearing by addressing various administrative

matters, including the particular correctional facility where Garcia would serve his

sentence and the terms of supervised release. In doing so, the court directed that while in


                                             4
prison, Garcia should “get medical treatment,” undergo counseling for mental-health and

anger-management issues, and participate in a drug-treatment program. Id. at 17.

Further, because the court was “concerned about [Garcia’s] use of prescription

medication as set forth in [the] [PSR],” id. at 18, the court ordered that upon Garcia’s

release, he would be required to notify his probation officer of any prescription-

medication use. Despite being offered an opportunity for further comment, defense

counsel raised no further objections or concerns.

       Garcia now appeals, arguing that his sentence is procedurally and substantively

unreasonable.

                                       DISCUSSION
                                 I. Standards of Review

       We review sentences for reasonableness—“a two-step process comprising a

procedural and a substantive component.” United States v. Friedman, 554 F.3d 1301,

1307 (10th Cir. 2009) (internal quotation marks omitted).

               Procedural reasonableness addresses whether the district court
       incorrectly calculated or failed to calculate the Guidelines sentence, treated
       the Guidelines as mandatory, failed to consider the § 3553(a) factors, relied
       on clearly erroneous facts, or failed to adequately explain the sentence.
       Substantive reasonableness review broadly looks to whether the district
       court abused its discretion in weighing permissible § 3553(a) factors in
       light of the totality of the circumstances.
United States v. Vigil, 696 F.3d 997, 1001-02 (10th Cir. 2012) (brackets, citation, and

internal quotation marks omitted).

       “[W]hile a defendant need not object after pronouncement of sentence based on

substantive reasonableness,” United States v. Romero, 491 F.3d 1173, 1177 (10th Cir.


                                             5
2007), to preserve a procedural error at sentencing, he “must specifically object to the

district court’s procedure,” United States v. Mendoza, 543 F.3d 1186, 1191 (10th Cir.

2008). In the absence of a necessary objection, we will review only for plain error, which

requires “(1) error, (2) that is plain, [that] (3) affects substantial rights, and [that]

(4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Wireman, 849 F.3d 956, 962 (10th Cir. 2017) (internal quotation marks

omitted); see, e.g., id. at 961 (declining to apply de novo review where the defendant, like

Garcia, had “submitt[ed] [a] memorandum for a downward variance,” because “even if a

district court is fully apprised of a defendant’s arguments for a below-Guidelines

sentence, the defendant must still contemporaneously object in the district court to the

method by which the district court arrived at a sentence, including arguments that the

sentencing court failed to explain adequately the sentence imposed, if he or she hopes to

avoid plain error review on appeal of any alleged procedural flaw” (emphasis and internal

quotation marks omitted)).

                               II. Procedural Reasonableness

       Garcia advances two procedural challenges to his sentence: (1) the district court

erroneously treated the Guidelines as mandatory; and (2) the district court inadequately

explained its sentence. Because Garcia failed to object after the district court announced

his sentence, we review only for plain error.

A.     Guidelines—Advisory versus Mandatory

       Garcia argues that the district court impermissibly treated the Guidelines as

mandatory by finding that the 135-to-168 month range was “fair and reasonable,” R.,

                                                6
Vol. III at 17. Granted, a district court commits error by applying a “presumption of

reasonableness to the advisory guidelines when sentencing.” United States v. Conlan,

500 F.3d 1167, 1169 (10th Cir. 2007). But the district court here did no such thing.

Rather, the district court specifically justified its within-Guidelines sentence based on a

consideration of the § 3553(a) sentencing factors and the advisory nature of the

Guidelines.2 Because that dual consideration ultimately led the district court to find the

Guidelines sentence “fair and reasonable,” the court did not apply a presumption of

reasonableness.

       Nevertheless, Garcia suggests that a reasonableness presumption is inherent in any

district court sentence not “arrived at . . . in a manner that is truly independent of the

Guidelines.” Aplt. Opening Br. at 11. That suggestion is simply untenable. As the

Supreme Court has explained, a Guidelines sentence is “the starting point and the initial

benchmark” against which a district court must “consider all of the § 3553(a) factors.”

Gall v. United States, 552 U.S. 38, 49-50 (2007). Indeed, “[f]ederal [district] courts

understand that they must begin their analysis with the Guidelines and remain cognizant




       2
         When the district court referenced the “Sentencing Reform Act,” rather than the
Guidelines themselves, as being advisory, the court clearly misspoke. The Sentencing
Reform Act established the Sentencing Commission and directed it to promulgate
sentencing guidelines. See Mistretta v. United States, 488 U.S. 361, 367-68 (1989). The
Supreme Court later rendered those guidelines advisory by invalidating certain provisions
of the Sentencing Reform Act. See United States v. Booker, 543 U.S. 220, 259 (2005).
Despite the district court’s imprecise statement, the court clearly understood that it wasn’t
required to issue a sentence within the guideline range.

                                               7
of them throughout the sentencing process.” Molina-Martinez v. United States,

136 S. Ct. 1338, 1345 (2016) (internal quotation marks omitted).

B.     Explanation of the Sentence

       Next, Garcia complains that the district court “failed to address [his] principal

sentencing argument that a variance was warranted to offset an upbringing and its

consequences that were outside of his control.” Aplt. Opening Br. at 15. This complaint

appears to have two components—a failure to acknowledge that “a variance was

possible” and a “fail[ure] to explain why . . . a non-frivolous argument for a downward

variance” was denied. Id. at 17, 18. As we explain below, both components lack merit.

       We turn to the record to determine whether the district court acknowledged the

possibility of a variance from the Guidelines range. During the sentencing hearing, the

district court expressly entertained arguments concerning Garcia’s request for a variance,

and the court specifically denied the request, explaining that it had considered the

§ 3553(a) factors and found that a sentence within the Guidelines range was fair and

reasonable. Further, when addressing the terms of Garcia’s incarceration and supervised

release, the district court referenced his poor health and drug addiction—conditions that

Garcia had asserted in support of a variance. Quite simply, the record on appeal belies

Garcia’s assertion that the district court “utter[ly] fail[ed] to consider [his variance]

argument,” Aplt. Opening Br. at 13.

       As for the cursory nature of the denial, we note that where, as here, “a district

court imposes a within-Guidelines sentence, the court must provide only a general

statement of its reasons, and need not explicitly refer to either the § 3553(a) factors or

                                               8
respond to every argument for leniency that it rejects in arriving at a reasonable

sentence.” United States v. Lente, 647 F.3d 1021, 1034 (10th Cir. 2011) (internal

quotation marks omitted). In particular, “[t]he sentencing court . . . is not required to

consider individually each factor listed in § 3553(a), nor is it required to recite any magic

words to show us that it fulfilled its responsibility to be mindful of the factors.” United

States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010).

       In this regard, we find our decision in United States v. Ruiz-Terrazas, 477 F.3d

1196 (10th Cir. 2007) instructive. There, the district court denied the defendant’s request

for a variance without “specifically address[ing] the [§] 3553(a) arguments [he] pursued

in his [sentencing] brief or at oral argument.” Id. at 1199. Instead, the district court

merely

       stated that it had reviewed the [PSR’s] factual findings[;] considered the
       guideline applications, and the factors set forth in . . . [§] 3553(a)(1)
       through (7); [and] . . . noted that the defendant reentered the United States
       subsequent to being convicted of an aggravated felony, and its belief that
       the sentence advised by the Guidelines was reasonable.
Id. (brackets and internal quotation marks omitted). The defendant didn’t object to the

district court’s cursory explanation. On appeal, we reviewed for plain error and found

“no error at all,” given that a district court need not “specific[ally] expla[in] . . . a

sentence falling within the Guidelines range.” Id. at 1199, 1201.

       Here, as in Ruiz-Terrazas, the district court indicated that it had reviewed the PSR,

considered the § 3553(a) sentencing factors, and found the Guidelines range to be

reasonable. While “a more detailed sentencing explanation” might have been desirable,

id. at 1202, it wasn’t required. See Wireman, 849 F.3d at 958-59 (observing that “if the

                                                9
defendant’s sentence is within the applicable Guidelines range, the district court may

satisfy its obligation to explain its reasons for rejecting the defendant’s arguments for a

below-Guidelines sentence by entertaining the defendant’s arguments, and then somehow

indicating that it did not rest on the guidelines alone, but considered whether the

guideline sentence actually conforms, in the circumstances, to the 18 U.S.C. § 3553(a)

statutory factors” (brackets, citation, emphasis, ellipsis, and internal quotation marks

omitted)).

       Garcia’s reliance on United States v. Rose, 185 F.3d 1108 (10th Cir. 1999), is

misplaced. Rose involved “the district court[’s] fail[ure] to state on the record its reason

for imposing consecutive sentences.” Id. at 1112 (emphasis added). Rose didn’t address

the explanation necessary for imposing a within-Guidelines sentence. That distinction is

critical, because different levels of specificity are required for explaining sentences that

fall within the Guidelines range versus sentences that fall outside that range. See Ruiz-

Terrazas, 477 F.3d at 1199-1200 (observing that within-Guidelines sentences require

“only a general statement” of reasons, whereas sentences outside the Guidelines require

“reasons . . . stated with specificity” (emphasis and internal quotation marks omitted)).3



       3
         Garcia also claims that United States v. Hall, 473 F.3d 1295 (10th Cir. 2007),
and United States v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), require a more
detailed sentencing explanation whenever a defendant requests a downward variance.
But this court distinguished both of those cases in Ruiz-Terrazas while pointing out
that the salient feature guiding a sentencing court’s explanation is whether the court
imposes a within-Guidelines sentence. See Ruiz-Terrazas, 477 F.3d at 1200 (noting
that in Hall the sentencing court “depart[ed] by more than 30% from [the] Guidelines
range”); id. at 1202-03 (noting that “the problem in Sanchez-Juarez was that (i) there
was no indication by the district court that it had considered the [§] 3553(a) factors,
                                             10
       We acknowledge that the PSR stated that a downward variance from the

Guidelines range might be warranted. But a PSR isn’t binding on the district court.

United States v. Belgard, 894 F.2d 1092, 1097 (9th Cir. 1990). Indeed, “[t]he [PSR]

explains the basis for the Probation Office’s calculations and sets out the sentencing

options under the applicable statutes and Guidelines.” Molina-Martinez, 136 S. Ct. at

1342. Garcia doesn’t cite, and we haven’t independently found, any authority requiring a

more detailed sentencing explanation when the district court declines to follow a PSR’s

suggestion.

       In any event, even if the district court erred by not providing a more detailed

explanation for Garcia’s sentence, the remaining plain-error requirements are beyond his

reach. First, given the similar sentencing explanation approved in Ruiz-Terrazas, we

can’t say that any error the district court might have committed in this case was plain.

See United States v. Wolfname, 835 F.3d 1214, 1221 (10th Cir. 2016) (explaining that

“[a]n error is plain if it is clear or obvious under current, well-settled law” (internal

quotation marks omitted)).

       Second, even if there was error, and that error was plain, Garcia’s substantial

rights wouldn’t have been affected, because there is no “reasonable probability that, but

for the error claimed, the result of the [sentencing] proceeding would have been

different.” Id. at 1222 (internal quotation marks omitted). Specifically, despite “the

perceived inadequacy of the district court’s recitation of its reasons, the district court’s


and (ii) we were otherwise unable ourselves to discern a clear explanation of the
sentence in the record” (internal quotation marks omitted)).
                                              11
sentencing decision was amply supported by evidence the government proffered at

sentencing.” United States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir. 2009).

Contrary to defense counsel’s sentencing-hearing assertion that a variance down to 120

months would have “deterrent value” and “aid[ ] in the protection of the public,” R., Vol.

III at 14, the government in its sentencing memorandum noted that (1) Garcia had an

extensive criminal history; (2) Garcia’s prior prison sentence for drug trafficking had no

deterrent effect; and (3) Garcia had in this case employed tactics of a dangerous drug

trafficker. While defense counsel stressed Garcia’s health problems and difficult

childhood as reasons for a variance, we can’t say that, but for the district court’s claimed

error in cursorily explaining the need for a within-Guidelines sentence, Garcia’s sentence

would have been any different. Uscanga-Mora, 562 F.3d at 1295; see, e.g., Ruiz-

Terrazas, 477 F.3d at 1203 (concluding that district court’s failure to provide a more

detailed explanation of its reasons for denying a downward variance “did not affect [the

defendant’s] substantial rights or the fairness, integrity, or public reputation of judicial

proceedings,” given evidence supporting the within-Guidelines sentence).

       Garcia has not shown reversible error in the district court’s explanation of his

sentence.

                             III. Substantive Reasonableness

       Garcia next asserts a challenge to the substantive reasonableness of his sentence.

Substantive review of a sentence focuses on “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a),” United States v. Craig, 808 F.3d 1249, 1261 (10th Cir. 2015) (internal

                                              12
quotation marks omitted). Yet in asserting this challenge, Garcia continues to attack his

sentence as inadequately explained—a challenge we reject above.

         Nevertheless, Garcia also argues that “nothing in the record shows why 135

months is the least punishment possible to achieve the goals of sentencing.” Aplt.

Opening Br. at 28. That argument, however, misapprehends the nature of substantive-

reasonableness review. On appeal, we presume that Garcia’s “within-guidelines sentence

is . . . reasonable.” United States v. Harry, 816 F.3d 1268, 1284 (10th Cir. 2016). He

bears “the burden of rebutting the presumption,” id., by “showing that the § 3553(a)

factors justify a lower sentence,” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.

2008).

         Regarding the § 3553(a) factors, Garcia mentions “the traumatic impact of his

upbringing,” his need for “addiction and mental health treatment,” and his “getting a high

school diploma despite the adversities,” as well as the “mitigating evidence” and “the

context within which the offense took place.” Aplt. Opening Br. at 28. But Garcia

notably fails to recognize the existence of other compelling circumstances justifying a

longer sentence, including Garcia’s history of criminality, his failure to be deterred by a

prior prison sentence, and his use of experienced drug-trafficking tactics. On this record,

Garcia fails to rebut the presumption that his within guideline sentence was substantively

reasonable. See United States v. Barnes, 890 F.3d 910, 915 (10th Cir. 2018) (“We will

reverse only if the sentence imposed was arbitrary, capricious, whimsical, or manifestly

unreasonable.” (internal quotation marks omitted)).



                                             13
                             CONCLUSION

Accordingly, we affirm Garcia’s sentence.
                                    Entered for the Court


                                    Nancy L. Moritz
                                    Circuit Judge




                                   14
