     Case: 15-40817      Document: 00514096834         Page: 1    Date Filed: 08/01/2017




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

                                      No. 15-40817                                FILED
                                                                             August 1, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                     Plaintiff - Appellee

v.

RICHARD DANIEL GARCIA,

                     Defendant - Appellant



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:09-CR-297-1


Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
       Richard Daniel Garcia was eligible for a sentence reduction as a result
of Amendment 782 to the Sentencing Guidelines. The district court denied his
18 U.S.C. § 3582(c)(2) motion citing public safety concerns. Garcia appeals
that order on two principal bases—that the language used insufficiently
mirrored the language of 18 U.S.C. § 3553(a)(2)(C) and that the district court’s
assessment of the evidence was clearly erroneous. For the following reasons,
we REMAND.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40817
                                       I.
      Richard Daniel Garcia, federal prisoner # 43129-279, pleaded guilty to
conspiracy to possess with intent to deliver more than five kilograms of cocaine.
Based on the amount of cocaine and other factors, the advisory guidelines
range of imprisonment was 151 to 188 months. The Government requested,
and the district court granted, a downward departure based on Garcia’s
substantial assistance, resulting in a sentence of 130 months in prison and five
years of supervised release. Garcia did not appeal the judgment.
      In 2015, Garcia filed a pro se § 3582(c)(2) motion based on Amendment
782 to the Sentencing Guidelines, which would reduce his base offense level
from 32 to 30 and lower his advisory guidelines range. Garcia noted that he
had enrolled voluntarily in the prison’s drug prevention program and was
“taking the necessary steps to change his life.” He requested a new sentence
at the statutory minimum, 120 months in prison.
      In an addendum to Garcia’s PSR, a probation officer observed Garcia was
eligible for a sentence reduction because his guidelines range would be lowered
to 130 to 162 months and with an 18-month reduction to reflect the departure,
he was eligible for a sentence of 112 months in prison. According to the
probation officer “[t]he court shall consider the nature and seriousness of the
danger to any person or the community that may be posed by a reduction in
the defendant’s term of imprisonment.” Garcia’s presentence report showed
that he had prior convictions for possession of a controlled substance, theft
from a person, burglary of a building, possession of a prohibited weapon, and
robbery.   According to Bureau of Prisons (BOP) records, Garcia’s post-
sentencing conduct indicated he had two disciplinary infractions involving
tattooing or self-mutilating and one for failing to stand for count; he is
participating in prison drug education courses and treatment; and he is
considered a high level security risk. On April 16, 2015, district court denied
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                                  No. 15-40817
the § 3582(c)(2) motion stating that it had “denie[d] any reduction based on the
further need to protect the community.”
      Notice was originally mailed to Garcia at the United States Penitentiary
in Beaumont, Texas (USP Beaumont), but was returned on May 26, 2015, with
a notation that Garcia was no longer at that address. On May 27, 2015, a
docket entry noted that the “[d]atabase contained [an] incorrect BOP #” for
Garcia and that a copy of the district court’s order had been remailed to Garcia.
In a motion dated June 1, 2015, and mailed from USP Beaumont, Garcia asked
the court to clarify its order with reasons for its denial of his § 3582(c)(2)
motion. He then filed a notice of appeal that he dated June 11, 2015, and
mailed from USP Beaumont.           The district court denied the motion for
clarification, noting that Garcia was eligible for a sentence reduction but that
the court had denied it.
      Garcia then moved for leave to proceed IFP on appeal. The district court
found that Garcia’s June 11 notice of appeal, which it also construed as a
motion for an extension, was filed after the expiration of both the 14-day and
30-day periods for filing or seeking an extension of time to file a notice of appeal
from its order entered on April 16, 2015. “The [c]ourt acknowledge[d] that
Garcia’s notice of appeal was too late by the time he received notice of the
order,” however, failure by the Clerk to give notice did not relieve Garcia of his
obligation to timely file his notice of appeal. See Fed. R. Crim. P. 49(c). The
court denied Garcia’s IFP motion “because his construed motion to extend the
time to file a notice of appeal was filed too late.” This court granted IFP.
      Garcia raises two issues on appeal: (1) whether his notice of appeal was
untimely under Federal Rule of Criminal Procedure 4(b), and (2) whether the
district court abused its discretion in denying his § 3582(c)(2) motion.




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                                  No. 15-40817
                                        II.
      Garcia asserts that his June 11 notice of appeal was timely because he
completed and mailed it from USP Beaumont within 14 days after he received
notice of the order denying his § 3582(c)(2) motion on June 1. He concedes that
his notice of appeal was filed after the Rule 4(b) time periods had expired but
questions how he could have known to file his notice of appeal within those
periods when he had not received notice of the denial of his § 3582(c)(2) motion.
In reviewing his motion to proceed IFP, this court liberally construed this
argument as seeking some kind of equitable relief from Rule 4(b)’s deadlines.
      The time limits set forth in Rule 4(b), while mandatory, are not
jurisdictional and may be waived. United States v. Martinez, 496 F.3d 387,
388-89 (5th Cir. 2007). In light of the Government’s express waiver, this court
may consider the merits of Garcia’s appeal. Id. This obviates any need to
address whether this court should grant equitable relief from the district
court’s enforcement of the Rule 4(b) time limits.
                                        III.
      Garcia argues that the district court abused its discretion by denying his
§ 3582(c)(2) motion based on an error of law and based on a clearly erroneous
assessment of the evidence.
      “This court reviews a district court’s decision whether to reduce a
sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion, its
interpretation of the Guidelines de novo, and its findings of fact for clear error.”
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal
quotation marks, modification, and citation omitted). “[T]he decision whether
to ultimately grant a modification is left to the sound discretion of the trial
court.” United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). “A
district court abuses its discretion if it bases its decision on an error of law or


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                                  No. 15-40817
a clearly erroneous assessment of the evidence.” Henderson, 636 F.3d at 717.
(internal quotation marks and citation omitted).
                                       A.
      Garcia asserts that the district court abused its discretion by denying his
motion for a reason not listed under § 3553(a) as a sentencing factor to be
considered by the court in denying or granting a § 3582(c)(2) motion, and that,
therefore, the district court had no authority to rely on “the further need to
protect the community” as grounds to deny his motion. Garcia argues that
§ 3582(c)(2) requires courts to consider only the § 3553(a) factors in deciding
whether to grant a reduction.
      The Government asserts that § 3582(c)(2) requires the district court to
consider the § 3553(a) factors, which include the public safety consideration set
forth in § 1B1.10, comment, and that in denying Garcia’s motion, the district
court appropriately considered the need “to protect the public from further
crimes of the defendant,” as stated in § 3553(a)(2)(B). Garcia argues there is a
material difference between § 3553(a)(2)(B)’s stated need to protect the public
from further crimes of the defendant and the district court’s stated need to
further protect the community. This is a distinction without a difference.
      “[T]he district court need not engage in robotic incantations . . . and
therefore a checklist recitation of the section 3553(a) factors is neither
necessary nor sufficient for a sentence to be reasonable.” United States v.
Fraga, 704 F.3d 432, 439 (5th Cir. 2013) (quotations omitted). The district
court here appears to have considered the need to protect the public from
further crimes of the defendant and relied upon that factor when determining
to deny the motion based on “the further need to protect the community.”
Therefore, the district court did not abuse its discretion.




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                                  No. 15-40817
                                       B.
      Garcia next argues that he is no more of a threat to the community now
than he was at the time of his original sentencing. He notes that his PSR
indicated that there was no victim of his crime. He claims the district court
abused its discretion in denying his § 3582(c)(2) motion based on a “clearly
erroneous assessment of the evidence.” See Henderson, 636 F.3d at 717. The
Government argues that the district court did not abuse its discretion in
denying a sentence reduction in light of the fact that: (1) Garcia was convicted
of a drug trafficking offense involving over 11 kilograms of cocaine, (2) he
scored at the highest criminal history category based on his five prior
convictions/sentences for possession of a controlled substance, theft from
person, burglary of a building, possession of prohibited weapons, and robbery,
(3) he committed the instant offense while on parole and less than two years
after his release from custody, (4) his post-sentencing conduct included three
disciplinary infractions, and (5) he was considered a high level security risk.
      Garcia argues not only that he poses no greater threat to the community
now than he did when he was originally sentenced, but that he actually poses
less of a threat because he has changed his ways, as shown by his conduct in
prison. He points to: (1) his having been downgraded to a medium security
risk, (2) that his disciplinary cases were for conduct at least four years old,
(3) that he participated in the drug treatment program, was asked to be a
mentor, and has successfully completed other programs, and (4) that prison
staff officers are willing to provide character references for him.
      Even assuming the district court relied in large part on the probation
officer’s recitation of Garcia’s postsentencing conduct in a Sealed Addendum,
it has the discretion to do just that, if the court also notifies the defendant of
the addendum’s contents.


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                                No. 15-40817
      The district court certainly has the discretion to consider a PSR
      addendum in resolving a § 3582(c)(2) motion if it determines that
      such an addendum would be helpful. However, a defendant must
      have notice of the contents of the addendum and notice that the
      court is considering it such that he will have the opportunity to
      respond to or contest it.

United States v. Mueller, 168 F.3d 186, 189 (5th Cir. 1999). There is no
indication in the record that Garcia was given notice of this sealed document’s
contents or afforded an opportunity to respond to or address its contents until
he replied to the government’s appellate brief. As the § 3582(c)(2) Addendum
set forth new evidence, if the court considered it without affording Garcia an
opportunity to respond, this would be error. We cannot determine whether the
error is harmless without knowing the extent to which the court relied on
it. Consequently, we order a limited remand in which the court should either
(a) advise that the Sealed Addendum played no role in its denial of a
Sec. 3582(c)(2) sentence reduction; or (b) reconsider the sentence reduction
request after Garcia has an opportunity to view and respond in the district
court to the Sealed Addendum.
                               CONCLUSION
      For the foregoing reasons we REMAND to the district court for further
proceedings consistent with this opinion.




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