                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2125
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                    Richard Garcia

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Arkansas - Fayetteville
                                  ____________

                              Submitted: April 15, 2019
                                Filed: July 18, 2019
                                   [Unpublished]
                                   ____________

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
                         ____________

PER CURIAM.

       After arguing with his wife, Richard Garcia walked from their home with a
firearm, fired it into the ground, pointed the gun at his wife’s departing vehicle, and
pointed the gun at the car of a bystander who had called 911. Police officers arrived
at the residence, found a bullet casing near the front curb, and persuaded Garcia to
exit the residence. A warrant search uncovered two firearms in a bedroom closet,
ammunition in the garage and in Garcia’s automobile, and evidence of
methamphetamine use on the kitchen cabinet. Garcia pleaded guilty to being a felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

      At sentencing, the district court1 determined, without objection, that Garcia’s
advisory guidelines sentencing range was 41 to 51 months’ imprisonment. The court
explained at length its consideration of the 18 U.S.C. § 3553(a) sentencing factors
and detailed specific aggravating factors the court found relevant:

      the defendant’s possession of a firearm despite having committed eight
      prior felony offenses; the egregious offense conduct, which included the
      defendant discharging a firearm in his wife’s vicinity and then aiming
      it at his wife’s vehicle as she was leaving the scene, and pointing a
      firearm in the direction of an innocent bystander; the defendant’s
      noncompliance with law enforcement during apprehension; the
      defendant’s history of lying to law enforcement; the defendant’s
      significant lack of respect for the law as demonstrated by his 55 criminal
      convictions in the past 18 years, 24 of which involved failing to comply
      with court orders; the defendant’s extensive criminal history that
      included drug and alcohol-related offenses, violent offenses, and the
      offense of endangering the welfare of a minor; and the fact that
      methamphetamine residue, drug paraphernalia, weapons, and
      ammunition were all present in the defendant’s residence, where his
      young children were residing at the time.

After reviewing relevant mitigating factors, the court stated that it was varying
upward because “the aggravating facts and circumstances that I mentioned
significantly outweigh the mitigating.” It imposed a 66-month sentence.




      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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       On appeal, Garcia argues the district court abused its discretion and imposed
a substantively unreasonable sentence when it varied upward based on giving undue
weight to aggravating factors already reflected in the advisory guidelines sentencing
range and not properly considering mitigating factors. We disagree. Regarding the
aggravating factors, we reiterate: “factors that have already been taken into account
in calculating the advisory Guidelines range can nevertheless form the basis of a
variance.” United States v. David, 682 F.3d 1074, 1077 (8th Cir. 2012); see United
States v. Barrett, 552 F.3d 724, 727 (8th Cir. 2009) (“a court may vary upward based
on criminal history even though that history has already been accounted for in the
Guidelines”). Regarding the mitigating circumstances emphasized by Garcia on
appeal, the district court in its extensive explanation identified and weighed each one.

       The district court thoroughly explained why it concluded that an upward
variance of fifteen months was warranted. After careful review of the sentencing
record, we conclude the court did not abuse its “substantial sentencing discretion.”
United States v. Abrica-Sanchez, 808 F.3d 330, 335 (8th Cir. 2015). This is not the
“unusual case when we reverse a district court sentence -- whether within, above, or
below the applicable Guidelines range -- as substantively unreasonable.” United
States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quotation omitted).

      The judgment of the district court is affirmed.
                     ______________________________




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