           Case: 17-10890   Date Filed: 05/24/2018   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10890
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:16-cr-00143-VMC-TGW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

PEDRO GARCIA,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 24, 2018)

Before MARTIN, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM:
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       Pedro Garcia appeals his 78-month sentence after pleading guilty to a single

count of being a felon in possession of a firearm. Garcia raises three arguments on

appeal. First, he contends that the district court erred in adopting a guidelines

calculation that assigned him three criminal history points based on a June 2001

offense for which he received a four-year youthful-offender sentence that was later

modified to probation. Second, he argues that his sentence was both procedurally

and substantively unreasonable because it was based on erroneous facts and failed

to account for mitigating factors. Finally, he asserts that 18 U.S.C. § 922(g) is

unconstitutional both on its face and as applied to him. We address each argument

in turn.

                                          I.

       On March 31, 2016, Garcia was charged in a one-count indictment with

knowingly possessing a firearm after a felony conviction in violation of 18 U.S.C.

§§ 922(g)(1) and (924)(a). The government later filed a superseding indictment,

which added language charging him with possession of ammunition as well.

       On November 1, 2016, Garcia pled guilty, without a written plea agreement,

to the original indictment. Because the original indictment did not charge

possession of ammunition, the magistrate judge accepting the plea did not ask

Garcia about any ammunition. Nevertheless, the government asked that it be

considered relevant conduct at sentencing. Garcia admitted during the plea hearing


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that the firearm was made outside of Florida, and therefore must have traveled

across state lines to Florida.

      The probation office prepared a presentence investigation report (“PSR”)

which recommended a criminal history score of 14. This score included three

criminal history points for a 2001 conviction for robbery and aggravated battery.

The PSR noted that Garcia had been sentenced as a youthful offender to four years

imprisonment, followed by two years of probation. In 2004, his probation for this

sentence was revoked, and Garcia was sentenced to 11 months and 29 days

imprisonment. The PSR also listed criminal convictions for armed vehicular

burglary, possession of cocaine, racketeering, and a previous conviction for

possession of a firearm by a convicted felon.

      Based on this criminal history and the relevant offense level, the PSR

recommended an advisory sentence guideline range of 63 to 78 months

imprisonment. The PSR also stated that “[t]he defendant suffers from significant

mental health problems,” and noted that Garcia had allegedly been sexually

assaulted as a minor and had attempted suicide. The PSR mentioned Garcia’s

“significant substance abuse problems associated with cocaine and marijuana.”

      Neither party objected to the facts contained in the PSR or to the application

of the sentencing guidelines. At sentencing, the district court adopted the findings




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of fact in the PSR and concluded that the advisory guideline range was 63 to 78

months.

      The government argued for a sentence in the middle of the guideline range.

The district court asked “Why do you think a sentence in the mid-range is your

recommendation? He didn’t plead with a plea agreement. He just pled, right?”

The government agreed. The district court again asked why a mid-range sentence

would be appropriate, stating:

      Why would you cut someone some slack and say middle of the range?
      When you have somebody with this kind of history, why wouldn’t
      you go for the high end of the guidelines? You already let him plead
      to the initial indictment as opposed to the Superseding Indictment.
      Isn’t that enough of a benefit? And he didn’t even sign a plea
      agreement.

The district court stated it was “a little surprised” by the government’s position,

and that it was “kind of taken aback that’s what you’ve asked for because I think

this is somebody with a very significant criminal history.” After the government

finished its argument, the district court remarked:

      I think what you have said supports a sentence at the high end, not at
      the middle of the range. . . . I’m surprised that’s what you’re asking
      for. And I’ve been sentencing at the bottom of the range and I’ve
      been departing downwards quite a few times, but this gentleman has a
      very significant criminal history. I’m thinking about the safety of the
      public.

      Garcia’s counsel argued for a sentence “towards the low end.” He

highlighted mitigating factors such as substance abuse and “some issues that


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happened to Mr. Garcia when he was younger,” apparently alluding to the PSR’s

statement that Garcia had been sexually assaulted in his youth. He also argued that

Garcia had merely allowed a friend to store the firearm in his house, and that it did

not belong to Garcia.

      The district court told Garcia that it had “reevaluated” how it sentenced

defendants and that it had been “imposing lower sentences” where possible.

However, given Garcia’s criminal history, the court said “I just feel that if I don’t

give a significant sentence, I’m not doing my job to protect the public.” After

hearing a statement from Garcia, the district court sentenced him to 78 months

imprisonment. The district court reached its decision “[a]fter considering the

Advisory Sentencing Guidelines and all of the factors identified in [18 U.S.C.

§ 3553(a)].” Finally, the district court explained to Garcia, “I have given

consideration to your mental health problems, your personal characteristics, but

your extensive criminal conduct does not warrant and downward variance and,

furthermore, warrants a sentence at the highest end of the guidelines.” Neither

party objected to the sentence.

      Garcia appealed.

                                          II.

      We ordinarily review a district court’s interpretation of the sentencing

guidelines de novo and its factual determinations for clear error. See United States


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v. Monzo, 852 F.3d 1343, 1348 (11th Cir. 2017). An argument raised for the first

time on appeal, however, is reviewed for plain error. United States v. Clark, 274

F.3d 1325, 1326 (11th Cir. 2001) (per curiam). A “plain error” is any deviation

from a legal rule that is “clearly established at the time the case is reviewed on

direct appeal.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (per

curiam). “[W]here the explicit language of a statute or rule does not specifically

resolve an issue, there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,

319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam). The error must “affect

substantial rights,” meaning “[i]t must have affected the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770,

1777–78 (1993) (quotation omitted and alteration adopted). We may correct the

error if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. McKinley, 732 F.3d 1291, 1296 (11th Cir. 2013)

(per curiam) (quotation omitted).

                                           III.

       Garcia argues the district court erred by assigning three criminal history

points to his 2001 conviction for robbery and aggravated battery because his

sentence was reduced to probation when he completed a youthful offender

program.


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      In calculating a defendant’s criminal history category, three points are

assigned “for each prior sentence of imprisonment exceeding one year and one

month.” United States Sentencing Guidelines § 4A1.1(a). “[C]riminal history

points are based on the sentence pronounced, not the length of time actually

served.” Id. § 4A1.2 cmt. n.2. All sentences imposed within ten years of the

offense of conviction are counted, as are any sentences imposed or served within

fifteen years of the offense if the sentence exceeded thirteen months imprisonment.

Id. § 4A1.2(e)(1)–(2). Any sentence falling outside these time periods is not

counted. Id. § 4A1.2(e)(3).

      Where a sentence is imposed as the result of a probation violation, the

guidelines instruct as follows: “[A]dd the original term of imprisonment to any

term of imprisonment imposed upon revocation. The resulting total is used to

compute the criminal history points . . . .” Id. § 4A1.2(k)(1). That is, instead of

counting the original sentence and sentence after revocation separately, “the

sentence given upon revocation should be added to the original sentence of

imprisonment . . . and the total should be counted as if it were one sentence.” Id.

§ 4A1.2 cmt. n.11.

      Under Florida law, defendants sentenced as youthful offenders can

participate in a basic training program lasting at least 120 days, not counting time

served prior to the program. Fla. Stat. § 958.045(1), (5)(c). “If the youthful


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offender’s performance is satisfactory, the court shall issue an order modifying the

sentence imposed and place the offender on probation subject to the offender

successfully completing the remainder of the basic training program.” Id.

§ 958.045(5)(c). We have not addressed how a Florida youthful-offender sentence

modified to probation upon completion of a training program impacts a

defendant’s criminal history score. We have, however, held that other youthful-

offender convictions count toward a defendant’s criminal history score and

sentencing enhancements. See United States v. Wilks, 464 F.3d 1240, 1242–44

(11th Cir. 2006) (holding that Florida youthful-offender convictions “can qualify

as a predicate offenses for sentence enhancement[s]”); United States v. Pinion, 4

F.3d 941, 945 (11th Cir. 1993) (discussing South Carolina’s youthful-offender

program).

      The district court did not plainly err in adopting a guideline calculation that

assigned Garcia three criminal history points for the June 2001 offense. The

guidelines do not specifically address, and no binding precedent holds, that once a

Florida youthful-offender sentence is modified to probation, the probationary

sentence replaces the original sentence of imprisonment for purposes of calculating

a defendant’s criminal history score. See Lejarde-Rada, 319 F.3d at 1291. If the

original sentence remains valid, then application of the guidelines is clear: Garcia’s

original four-year sentence—plus a 364-day term imposed when Garcia’s


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probation was later revoked—was in excess of thirteen months, and imposed

within fifteen years of the offense of conviction, so it is assigned three criminal

history points. See USSG §§ 4A1.1(a), 4A1.2(e)(1), (k)(1). Therefore the district

court did not plainly err in assigning three criminal history points to this

conviction.

                                          IV.

      Garcia next argues his sentence was procedurally and substantively

unreasonable.

                                          A.

      In examining procedural reasonableness, we must “ensure that the district

court committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall

v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “A factual finding is

clearly erroneous when, although there is evidence to support it, we are left with

the definite and firm conviction, after review of the entire evidence, that a mistake

has been made.” United States v. Hill, 783 F.3d 842, 846 (11th Cir. 2015) (per

curiam).




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      Garcia argues the sentence was procedurally unreasonable because the

district court relied on three erroneous facts, namely: (1) that he received a benefit

by entering a guilty plea without having to sign a plea agreement; (2) that he

received a benefit from pleading to the original indictment and not the superseding

indictment; and (3) that he received a benefit from being prosecuted in federal

court, rather than state court. We are not persuaded. The district court’s

statements were accurate. Garcia did plead guilty to the original federal

indictment, without signing a plea agreement. Indeed, this did benefit Garcia in a

couple of ways. First, by pleading without a plea agreement he did not waive any

appellate rights. Also, by pleading to the original indictment he did not have to

admit that he possessed ammunition. Finally, the district court did not characterize

his federal prosecution as a benefit. At sentencing, the district court said: “I’m

looking here at protecting the public. It’s just paramount in this kind of case. It’s

why the U.S. Attorney’s Office took this case as opposed to letting the state handle

it, where he would have gotten a less significant sentence.” Because the district

court did not characterize Garcia’s federal prosecution as a benefit to him, this

argument fails as well.

      Additionally, Garcia has not shown that any perceived “benefit” from these

facts influenced the district court’s decision. The district court repeatedly stressed




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that the motivating factor behind the sentence was Garcia’s criminal history and

the need to protect the public.

      Viewing the sentencing record as a whole, Garcia has not shown plain error

in the procedure that resulted in his sentence.

                                           B.

      In reviewing a sentence for substantive reasonableness, we consider the

totality of the circumstances and will remand for resentencing only when “left with

the definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted). The

district court must impose a sentence that is “sufficient, but not greater than

necessary, to comply with the purposes” of § 3553(a)(2), including the need to

reflect the seriousness of the offense, provide just punishment, deter criminal

conduct, and protect the public. 18 U.S.C. § 3553(a)(2). It must also consider “the

nature and circumstances of the offense and the history and characteristics of the

defendant.” Id. § 3553(a)(1). The weight given to any particular factor “is a

matter committed to the sound discretion of the district court,” and the court’s

failure to discuss mitigating evidence does not mean that the court ignored or failed

to consider it. United States v. Amedeo, 487 F.3d 823, 832–33 (11th Cir. 2007)


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(quotation omitted). Nevertheless, a district court abuses its discretion when it “(1)

fails to afford consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or (3) commits a

clear error of judgment in considering the proper factors.” United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted).

      Garcia first argues that the sentence is substantively unreasonable for the

same reasons he says it is procedurally unreasonable. That is, he says the court

relied on clearly erroneous facts. However, as discussed above, the sentence is not

procedurally unreasonable, and hence this argument fails.

      Garcia next argues the district court failed to afford weight to mitigating

factors, such as his mental health problems, his history of substance abuse, and the

sexual assault he suffered as a minor. But, to the contrary, the district court

expressly told Garcia that it had “given consideration to your mental health

problems, your personal characteristics.” The court ultimately decided that “your

extensive criminal conduct does not warrant a downward variance and,

furthermore, warrants a sentence at the highest end of the guidelines.” The district

court also indicated that it reached its decision “[a]fter considering the Advisory

Sentencing Guidelines and all of the factors identified in [18 U.S.C. § 3553(a)].”

Based on these statements, it appears the district court properly considered all of

the relevant §3553(a) factors, and we cannot say that it clearly erred in weighing


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each factor. Therefore Garcia has not shown plain error in the substantive

reasonableness of his sentence.

                                           V.

      Finally, Garcia challenges the constitutionality of 18 U.S.C. § 922(g), both

on its face and as applied to him.

      “We have repeatedly held that Section 922(g)(1) is not a facially

unconstitutional exercise of Congress’s power under the Commerce Clause

because it contains an express jurisdictional requirement” that is satisfied when the

firearm involved in the offense has at least “minimal nexus” to interstate

commerce. United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011)

(quotation omitted). The “minimal nexus” requirement is met where the

government demonstrates that the firearm in question has traveled in interstate

commerce. Id. Here, the government submitted a factual basis, and Garcia

admitted at the change of plea hearing, that the firearm in question was

manufactured outside Florida, establishing the minimal nexus to interstate

commerce. Therefore Section 922(g)(1) is not unconstitutional as applied to

Garcia.

      AFFIRMED.




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