11-237-cr
United States v. Garcia

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
of February, two thousand twelve.

Present:
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
                     Circuit Judges,
         JANE A. RESTANI,
                     Judge.*
________________________________________________

UNITED STATES OF AMERICA,

                      Appellee,

                      v.                                        No. 11-237-cr

JUAN CARLOS GARCIA, AKA Lut. Hailey,

                      Defendant-Appellant.

________________________________________________


For Defendant-Appellant:                     ROBERT J. BOYLE, New York, N.Y.



        *
          The Honorable Jane A. Restani, of the United States Court of International Trade,
sitting by designation.
For Appellee:                             ANDREA L. SURRATT, Assistant United States Attorney,
                                          of counsel (Andrew L. Fish, Assistant United States
                                          Attorney of counsel) for Preet Bharara, United States
                                          Attorney for the Southern District of New York


        Appeal from the United States District Court for the Southern District of New York
(Baer, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Defendant-Appellant Juan Carlos Garcia appeals a January 13, 2011 judgment of

conviction entered by the Southern District of New York (Baer, J.) following his guilty plea to a

three counts of a five-count indictment charging him with: (1) possessing and conspiring to

possess telecommunications instruments that had been modified and altered to obtain

unauthorized use of telecommunications services, in violation of 18 U.S.C. § 371; (2)

possessing telecommunications instruments that had been modified and altered to obtain

unauthorized use of telecommunications services, in violation of 18 U.S.C. §§ 1029(a)(5) and 2;

and (3) possessing a scanning receiver and hardware and software used for altering and

modifying telecommunications instruments to obtain unauthorized access to telecommunications

services, in violation of 18 U.S.C. §§ 1029(a)(6) and 2. On January 7, 2011, the district court

sentenced Garcia to, principally, a thirty-three month term of imprisonment. On appeal, Garcia

contends that the district court’s sentence is substantively unreasonable under the standards set

forth in 18 U.S.C. § 3553(a). We presume the parties’ familiarity with the facts and procedural

history of this case.




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       “We review the reasonableness of a district court’s sentence under a deferential abuse of

discretion standard.” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir. 2010). In assessing

the substantive reasonableness of a sentence, we set aside a district court’s sentence “only in

exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)

(internal quotation marks omitted), cert. denied, 129 S. Ct. 2735 (2009). “We recognize that in

the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad

range of sentences that would be reasonable in the particular circumstances.” United States v.

Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Vacatur for substantive unreasonableness is

warranted where “the sentence imposed was shockingly high, shockingly low, or otherwise

unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d. Cir. 2009).

       Upon careful review of the record, we conclude that the district court’s sentence of a

thirty-three month term of imprisonment, the low end of the applicable guidelines range, was

substantively reasonable. The district court reasonably concluded that Garcia committed “a

serious crime,” given that his and his co-defendants’ offense conduct resulted in “a loss [amount]

of close to three-quarters of a million dollars.” App. 67-68. Moreover, in light of the fact that

sentencing courts are to weigh the “need for the sentence imposed . . . to promote respect for the

law,” 18 U.S.C. § 3553(a)(2)(A), the district court did not abuse its discretion in taking into

account the fact that, after being released on bail, Garcia broke his electronic monitoring bracelet

and fled from justice for over fourteen years. As to Garcia’s argument that his co-defendants

received shorter terms of imprisonment, see 18 U.S.C. § 3553(a)(6) (sentencing courts should

consider “the need to avoid unwarranted sentence disparities among defendants with similar


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records”), we have held that sentencing disparities are not unwarranted where defendants are not

“similarly situated.” Fernandez, 443 F.3d at 32. Here, Garcia was not similarly situated to his

co-defendants in that his co-defendants all pled guilty in advance of trial and immediately served

their sentences, whereas Garcia fled from justice for fourteen years before being apprehended

attempting to reenter the United States.

       We have considered Garcia’s other arguments on appeal and find them to be without

merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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