                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS December 27, 2007
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 07-2126
          v.                                           (D. New Mexico)
 RAY GARCIA-SALAS,                                (D.C. No. CR-06-2259-JP)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HOLMES, Circuit Judge.


      Having interpreted this court’s precedents as virtually foreclosing variances

from the United States Sentencing Guidelines, the district court imposed a

sentence at the bottom of the Guidelines range. We might disagree with that

interpretation but it is unnecessary to revisit our precedents. Under the Supreme

Court’s recent decisions in Gall v. United States, No. 06-7949, 2007 WL 4292116

(S. Ct. Dec. 10, 2007), and Kimbrough v. United States, No. 06-6330, 2007 WL

4292040 (S. Ct. Dec. 10, 2007), it is clear that the district court had greater


      *
        This order and judgment is not binding precedent except under the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.
sentencing discretion than it thought it did. Accordingly, we reverse and remand

for resentencing.

I.    BACKGROUND

      On November 29, 2005, Albuquerque police officers recovered a duffle bag

containing two handguns and over 40 rounds of ammunition at the home of Ray

Garcia-Salas. He had previously been convicted of felony battery on a police

officer in New Mexico state court. On January 29, 2007, he pleaded guilty in the

United States District Court for the District of New Mexico to one count of being

a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). He

was 21 at the time.

      The probation office prepared a presentence report (PSR). His base offense

level under the Sentencing Guidelines was 20 because he committed the present

offense following a felony conviction of a crime of violence. See USSG

§ 2K2.1(a)(4)(A). After a three-level reduction for accepting responsibility under

USSG § 3E1.1, his total offense level was 17. Four criminal-history points—one

for a prior juvenile adjudication for unauthorized graffiti, one for a conviction of

battery of a peace officer, and two for committing the present offense while on

probation—placed him in criminal history category III. His Guidelines

sentencing range was therefore 30 to 37 months’ imprisonment. The PSR

proposed that he participate in and complete a substance-abuse treatment program

as a special condition of release.

                                         -2-
      Before the sentencing hearing Mr. Garcia-Salas filed a motion for a

downward departure under the Guidelines. First, he sought a downward departure

under § 5H1.4 because of an extraordinary physical impairment or condition.

When he was four years old he was hit by a train, which resulted in the

amputation of his left leg below the knee. He now wears a prosthetic limb. He

argued (1) that his condition would severely limit his ability to participate in

physical activity in prison and make him more vulnerable to attack and (2) that

accommodating his physical condition would increase the cost of his

imprisonment. Next he sought a downward departure under § 5H1.6 for

extraordinary family ties and responsibilities. Mr. Garcia-Salas fathered children

when he was 15 and 19 and became their primary caretaker, a stay-at-home father,

while the mother of the younger child worked. Also, he was active in the New

Mexico Young Fathers Project, through which “he has led groups, lectured at

schools . . ., and . . . participated on local and national panels.” R. Vol. I,

Doc. 18 at 4 (Def.’s Mot. for Downward Departure, Apr. 17, 2007). Finally, he

sought a downward departure under § 5H1.3 because of his mental and emotional

condition. In addition to losing his leg, he had suffered other traumatic

experiences, including abandonment by his mother when he was an infant and the

suicide of his stepmother in the family home on his tenth birthday. Mr. Garcia-

Salas asserted that these factors, both individually and in the aggregate, supported




                                          -3-
a departure. The government opposed the motion and the probation office

concluded that the facts did not justify a downward departure.

      At the sentencing hearing the district court acknowledged the government’s

opposition to Mr. Garcia-Salas’s motion and agreed that “individually and in

combination the grounds asserted do not take this case outside of the heartland of

cases thereby justifying a downward departure.” R. Vol. III at 5. Mr. Garcia-

Salas then urged the court to grant him a downward variance under 18 U.S.C.

§ 3553(a). He argued that under United States v. Booker, 543 U.S. 220 (2005),

the court could consider the “whole person” and vary from the Guidelines

accordingly. Id. The court responded that its discretion to vary was limited:

      [T]he recent rulings of the Tenth Circuit . . . make it very difficult
      for a sentencing judge to sentence under 18 [U.S.C. §] 3553(a). The
      guideline sentencing range is presumptively reasonable, and a
      sentence in that range would be virtually automatically affirmed.
      Any sentence outside that range would have a very difficult time of
      standing given the opposition of the government. . . . Theoretically,
      I have discretion, but the recent opinions make it very difficult to
      exercise that.

R. Vol. III at 6–7. The court then asked whether the government would “oppose

an 18-month sentence under 3553(a),” and the government responded that it

would. Id. at 8. After further argument by Mr. Garcia-Salas the court denied the

request to vary:

      I think I feel constrained to stay within the guidelines. As I already
      indicated, I don’t think the facts present a case outside the heartland
      of cases. Even though I might be inclined otherwise to sentence


                                         -4-
      under 3553(a) below the 30 months, I think that would invite a high
      risk of reversal.

Id. at 9. The court sentenced Mr. Garcia-Salas to 30 months’ imprisonment, the

bottom of the Guidelines range.

      The district court also ordered that Mr. Garcia-Salas “participate in and

successfully complete a substance abuse treatment program.” Id. at 12–13. In

response Mr. Garcia-Salas asserted that “there is no evidence at all that [he] has

any substance abuse problem at all.” Id. at 14. The court replied: “It’s a

condition recommended by probation and it’s within the discretion of probation

whether to require it or not. . . . There would be a required one-time urinalysis,

so if it’s negative, then probation could just disregard it.” Id. at 14–15. The

court’s judgment, however, contained no language conditioning the treatment on

failing a urinalysis. Mr. Garcia-Salas appeals both the prison sentence and the

drug-treatment condition of release.

II.   DISCUSSION

      Under Booker “we review sentencing decisions for reasonableness, which

has both procedural and substantive components.” United States v. Atencio, 476

F.3d 1099, 1102 (10th Cir. 2007). Procedural reasonableness relates to the

manner in which the court arrives at its sentence. “In setting a procedurally

reasonable sentence, a district court must calculate the proper advisory Guidelines

range and apply the factors set forth in § 3553(a).” Substantive reasonableness


                                         -5-
relates to the length of the sentence. “A substantively reasonable sentence

ultimately reflects the gravity of the crime and the § 3553(a) factors as applied to

the case.” Id. We have stated that within-Guidelines sentences are, with respect

to substantive reasonableness, “presumptively reasonable.” United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). That presumption was upheld by

the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2462 (2007).

      Only a few weeks ago, however, did the Supreme Court provide further

guidance on review of sentences not within the Guidelines range. In Gall and

Kimbrough the Supreme Court explained that such a sentence can be set aside

only for an abuse of discretion. In particular, the Court held “impermissible” any

“presumption of unreasonableness for sentences outside the Guidelines range.”

Gall, 2007 WL 4292116, at *5. This is not to say that the district court is free to

impose any sentence whatsoever on remand. But there is undoubtedly some room

below the Guidelines minimum for a “reasonable” sentence.

      Because we remand for resentencing, we need not address the propriety of

the special condition of release imposed on Mr. Garcia-Salas, as the issue may

well not arise at resentencing.




                                         -6-
      We REVERSE Mr. Garcia-Salas’s sentence and REMAND for

resentencing.

      Judge McWilliams dissents.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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