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

                                                                            FILED
                                                                           May 19, 2008
                                     No. 07-50207
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

DAVID JACOB GARCIA

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:05-CR-212-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       David Jacob Garcia appeals his consecutive 160-month and 120-month
sentences imposed for bank robbery and possessing a firearm during the
commission of a crime of violence.              See 18 U.S.C. § 2113(a); 18 U.S.C.
§ 924(c)(1)(A)(i). Specifically, Garcia argues that the district court erred by
upwardly departing and sentencing him to a term of imprisonment for the
robbery offense that exceeded the top of the guideline range by 55 months.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-50207

      In reviewing the reasonableness of an upward departure, we employ an
abuse-of-discretion standard. See United States v. Saldana, 427 F.3d 298, 308
(5th Cir. 2005); see also Gall v. United States, 128 S. Ct. 586, 597 (2007) (holding
that appellate courts should employ an abuse-of-discretion standard in reviewing
sentences both inside and outside the Guidelines). Following United States v.
Booker, 543 U.S. 220 (2005), this court has concluded that a sentencing court
does not abuse its discretion in deciding to upwardly depart when its reasons for
doing so advance the objectives set forth in 18 U.S.C. § 3553(a)(2), and those
reasons are justified by the facts of the case.            See United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S. Ct. 2954 (2006).
The Supreme Court has rejected the argument, raised by Garcia, that the
district court’s departure must be justified by “extraordinary facts.” See Gall 128
S. Ct. at 591, 595.
      Pursuant to UNITED STATES SENTENCING GUIDELINES MANUAL (“USSG”)
§§ 4A1.3(a) & 5K2.0(a)(2), and relying upon facts contained in the presentence
report (“PSR”), the district court upwardly departed by 55 months in sentencing
Peoples. Section 4A1.3(a) allows the district court to upwardly depart where
reliable information indicates that the defendant’s criminal history category does
not adequately reflect the defendant’s past criminal conduct or the likelihood
that the defendant will commit other crimes. Section 5K2.0(a)(2) allows the
district court to upwardly depart “in the exceptional case where there is present
a circumstance that the Commission has not identified in the guidelines but that
nevertheless is relevant to determining the appropriate sentence.”           USSG
§ 5K2.0(a)(2). The facts from the PSR relevant to the district court’s upward
departure under these subsections are as follows: 1) both the getaway vehicle
and the shotgun used in the commission of the robbery were stolen; 2) at the
time that Garcia was arrested, he was on bond and pending trial on state
charges for being a felon in possession of a firearm, evading arrest, possession
of marijuana, and failure to identify; and 3) following his conviction on related

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                                    No. 07-50207

state charges, Garcia committed numerous disciplinary infractions, including
injuring another prisoner with a shank made from a toothbrush, which in turn
lead to his being charged with the felony offense of carrying a deadly weapon in
a penal institution. Garcia has submitted no evidence to support his assertion
that the PSR’s facts are unreliable, and the district court was therefore entitled
to rely upon them. See United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
Because the upward departure at issue is justified by the facts of the case and
advances the objectives of §3553(a)(2), the district court did not abuse its
discretion by departing. See Zuniga-Peralta, 442 F.3d at 347. Nor has Garcia
shown that the district court abused its discretion with regard to the extent of
its departure. See id. at 347-48.
      Accordingly, we AFFIRM the district court’s sentence.




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