     Case: 14-50002      Document: 00512895169         Page: 1    Date Filed: 01/08/2015




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

                                      No. 14-50002                                FILED
                                                                            January 8, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

TOMMY GARCIA,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                               No. 3:13-CR-1512-1




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Tommy Garcia appeals his 63-month sentence for importing and possess-
ing marihuana with intent to distribute. He urges that the court plainly erred


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50002
in assessing criminal history points for convictions that occurred more than
ten years before the instant offense and therefore should not have been consid-
ered. Because the circumstances do not qualify for plain-error relief, we affirm.


                                       I.
      In May 2003, Garcia pleaded guilty of assault and domestic violence and
was sentenced to 180 days in jail, suspended in favor of one year of probation.
Later that month, he pleaded guilty of driving while impaired and was sen-
tenced to another suspended 180 days. In September 2006, both probationary
terms were revoked, and Garcia received concurrent 90-day jail terms.
      Garcia committed the instant offense in June 2013. The presentence
investigation report included four criminal history points for the 2003 convic-
tions, yielding a guidelines range of 63 to 78 months. At sentencing, Garcia
did not challenge the assessment of those points. The court imposed concur-
rent 63-month sentences. In explaining its decision, the court made the follow-
ing comments regarding Garcia’s criminal history:
      The problem is that when you decided to come down here―and this
   offense was committed down here and it’s a federal offense—it puts you
   in a position of being a long distance from your mother, from your
   family.
      And you know, all I can do—though I appreciate the difficulties—
   and hopefully, while you’re incarcerated, you’ll get some help, and I’m
   going to recommend that—you know, various kinds of help. But I I—
   hopefully, you’ll get—and I can recommend a facility close to where
   your mother is located. But you’re looking—I mean, you have a long
   criminal history. The combination of this offense and your long crim-
   inal history puts you in a—in a bad situation.
      ....
      Based on the information provided, the circumstances of this case,
   your particular circumstances, in keeping with the factors of 3553(a),
   the goals of the sentencing guidelines, . . . a fair and reasonable sen-
   tence in this case is . . . 63 months of incarceration.

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                                        No. 14-50002
           Now, I’m going to have it run concurrently on both counts. I know
    there were some objections regarding the criminal history scoring,[ 1]
    but I have to say to you that given your criminal history, given the deci-
    sion to get involved in this, I certainly think that the 63 months is fair
    and reasonable and appropriate under your circumstances.


                                               II.
       Plain-error review applies because Garcia raised his claim for the first
time on appeal. United States v. Duque-Hernandez, 710 F.3d 296, 298 (5th
Cir.), cert. denied, 134 S. Ct. 450 (2013). There are four requirements:
    (1) there must be an error or defect—some sort of [d]eviation from a
    legal rule—that has not been intentionally relinquished or abandoned;
    (2) the legal error must be clear or obvious, rather than subject to rea-
    sonable dispute; (3) the error must have affected the appellant’s sub-
    stantial rights; and (4) if the above three prongs are satisfied, the court
    of appeals has the discretion to remedy the error—discretion which
    ought to be exercised only if the error seriously affect[s] the fairness,
    integrity or public reputation of judicial proceedings.[ 2]
       Garcia has satisfied the first prong: A sentence is counted for criminal-
history purposes if, inter alia, it “was imposed within ten years of the defen-
dant’s commencement of the instant offense.” U.S. SENTENCING GUIDELINES
MANUAL § 4A1.2(e)(2) (2013). In the case of a revocation of probation, the date
on which the sentence was “imposed” is “the date of the original sentence”
where the term of imprisonment was one year and one month or less, and the
defendant committed the offense on or after his eighteenth birthday.                         Id.
§ 4A1.2(k)(2). Because Garcia’s sentences were imposed in May 2003, more
than ten years before his commission of the instant offense in June 2013, the
court erred in considering them.



       1   The objections mentioned here are unrelated to this appeal.
       2 United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alter-
ations in original) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)) (internal quota-
tion marks omitted).
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                                             No. 14-50002
          Garcia has also satisfied the second prong. We have held that this type
of miscalculation constitutes plain error, 3 and those precedents control.
          Garcia has not satisfied the third prong, however. “A sentencing error
affected a defendant’s substantial rights if there is a ‘reasonable probability
that, but for the district court’s misapplication of the Guidelines, he would have
received a lesser sentence.’” 4 “Where . . . the sentence . . . falls inside both the
correct and incorrect guidelines ranges, ‘we have shown considerable reluc-
tance in finding a reasonable probability that the district court would have
settled on a lower sentence.’” 5 In that situation, “we do not assume, in the
absence of additional evidence, that the sentence affects a defendant’s substan-
tial rights.” Id. Although such evidence exists if the court “indicat[ed] that the
Guidelines range calculated . . . was a primary factor in the selection of the . . .
sentence,” 6 mere “casual statements,” 7 “vague and ambiguous” comments, 8 or
“evidence . . . of ambiguous or uncertain effect” 9 is insufficient.
          The 63-month sentence is within both the correct range of 57 to 71
months and the incorrect range of 63 to 78 months. Accordingly, Garcia must
show that the court indicated the range was a primary factor in its decision; he
has not done so, nor could he: The court told him that “[t]he combination of



         United States v. Avalos-Martinez, 700 F.3d 148, 153 (5th Cir. 2012) (per curiam),
          3

cert. denied, 133 S. Ct. 1276 (2013); United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.
2006).
         Avalos-Martinez, 700 F.3d at 153 (quoting United States v. John, 597 F.3d 263, 285
          4

(5th Cir. 2010)).
        United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (per curiam) (quoting
          5

United States v. Campo-Ramirez, 379 F. App’x 405, 409 (5th Cir. 2010) (per curiam)).
          6   United States v. Pratt, 728 F.3d 463, 482 (5th Cir. 2013), cert. denied, 134 S. Ct. 1328
(2014).
          7   Id.
          8   United States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011) (per curiam).
          9   Campo-Ramirez, 379 F. App’x at 409.
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                                       No. 14-50002
this offense and your long criminal history puts you in a—in a bad situation”
and that “given your criminal history, given the decision to get involved in this,
I certainly think that the 63 months is fair and reasonable and appropriate
under your circumstances.” Those comments demonstrate that the court con-
sidered Garcia’s criminal history, but they do not clearly show that the range
was a primary factor. Instead, they are similar to the ambiguous statements
that we have found inadequate. 10
       The same is true of the other evidence Garcia identifies: the court’s
consideration of mitigating circumstances and the fact that the sentence was
at the bottom of the incorrect range. Garcia is correct that “sentences falling
at the absolute minimum of the Guidelines provide the strongest support for
the argument that the judge would have imposed a lesser sentence.” United
States v. Rodriguez-Gutierrez, 428 F.3d 201, 205 (5th Cir. 2005).                        But
“[a]lthough we do not hold that this fact alone will establish that the . . . error
affected the defendant’s substantial rights, we do consider it to be highly proba-
tive, when taken together with relevant statements by the sentencing judge indi-
cating disagreement with the sentence imposed.” Id. (emphasis added).
       There is no suggestion of such a disagreement here. The court analyzed
the mitigating circumstances and imposed a sentence at the low margin of the
identified range, but it also emphasized Garcia’s criminal history and decision
to commit yet another crime. That evidence does not clearly show that the
guideline range was a primary factor, so Garcia has not established that the
error affected his substantial rights.
       AFFIRMED.




       10See, e.g., Blocker, 612 F.3d at 416 (in which court noted it was sentencing defendant
to “about the middle of the guidelines range”); Campo-Ramirez, 379 F. App’x at 407 (explain-
ing “that a sentence at the low end of the range is appropriate”).
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