from the United States District Court for the Western
District of Oklahoma D.C. No. 5:17-CR-00106-HE-1
C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver,
Colorado, for Defendant-Appellant.
W. Creager, Assistant United States Attorney (Robert J.
Troester, Acting United States Attorney, and Jacquelyn M.
Hutzell, Assistant United States Attorney, with him on the
brief), Office of the United States Attorney, Western
District of Oklahoma, Oklahoma City, Oklahoma, for
HARTZ, HOLMES, and CARSON, Circuit Judges.
HOLMES, Circuit Judge
Davon Garcia seeks review of a sentence of ninety-six
months' imprisonment imposed after he pleaded guilty to
being a felon in possession of a firearm. He claims that the
district court erred in considering his earlier possession of
two handguns as relevant conduct and that the sentence the
court imposed on him is substantively unreasonable.
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a), we reject Mr. Garcia's challenges. We review Mr.
Garcia's relevant-conduct argument for plain error and
conclude that the district court did not plainly err in
treating his prior incident of handgun possession as relevant
conduct as to his offense of conviction. We also conclude
that the district court's sentence is not substantively
unreasonable. We therefore affirm. More
specifically, Judge Hartz concurs in the judgment and joins
the following opinion except for Part II.
2017, a federal grand jury sitting in the Western District of
Oklahoma returned an indictment alleging that, on or about
April 21, 2017, in Oklahoma City, Oklahoma, Mr. Garcia
violated 18 U.S.C. § 922(g)(1) by possessing a firearm
after having previously been convicted of a felony. Mr.
Garcia pleaded guilty to the Indictment's sole count
without a plea agreement.
Probation Office then prepared a Presentence Report
("PSR"). In describing Mr. Garcia's offense
conduct, the PSR observed that, on April 24, 2016-nearly a
year before the April 2017 firearm possession, which formed
the basis of his offense of conviction-officers from the
Oklahoma City Police Department ("OCPD")
encountered Mr. Garcia and his girlfriend at a gas station in
a high-crime area, started talking to him, requested his
identification, and asked whether he was carrying any
weapons. Mr. Garcia disclosed that he was carrying a gun, and
an officer found two loaded handguns in Mr. Garcia's
waistband. The officer arrested Mr. Garcia on an outstanding
warrant, and he was later charged in state court with being a
felon in possession of a firearm.
also described the events directly giving rise to Mr.
Garcia's current conviction: Specifically, in April 2017,
OCPD officers were called to a high school and spoke to the
daughter of Mr. Garcia's girlfriend. The daughter
reported that her mother (i.e., Mr. Garcia's girlfriend)
had locked herself in a bedroom to "get away from"
Mr. Garcia, who "was agitated" and "had his
rifle out." R., Vol. II, ¶ 8, at 6 (PSR, originally
filed Nov. 22, 2017, revised Dec. 18, 2017). Other officers
went to the house where Mr. Garcia's girlfriend was
located and convinced her to leave with them. Officers later
interviewed her, and she stated that Mr. Garcia
"suddenly became upset with her and hit her with an
unknown object" and "punched her in the leg."
Id. Officers saw a "fresh wound with
blood" on her leg. Id.
Garcia's girlfriend had told officers that he "had
his rifle out" during the incident at the house, but she
later told them that she had not seen him "get the rifle
out in six months." Id. Officers noted that she
seemed frightened about what Mr. Garcia might do to her and
seemed reluctant to tell them "the whole truth."
Id. She also expressed concern that Mr. Garcia would
commit "suicide by cop" rather than go back to
jail. Id. The girlfriend gave consent to search the
house, and officers discovered a loaded rifle under Mr.
Garcia's bed and 108 rounds of ammunition throughout the
calculated a total offense level of twenty-one. In doing so,
it applied a two-level enhancement under §
2K2.1(b)(1)(A) of the United States Sentencing Guidelines
Manual ("U.S.S.G." or "Guidelines") for
an offense involving three or more firearms; the number
comprises the rifle forming the basis for the conviction and
the two handguns discovered in the April 2016 firearms
incident. The PSR observed that the April 2016 incident and
the April 2017 offense of conviction occurred a little less
than a year apart.
then set forth Mr. Garcia's criminal history. Mr. Garcia
has a long criminal record, consisting of mostly state
offenses that date back to when he was a juvenile. His record
includes a 1993 juvenile adjudication for possessing a weapon
(i.e., an unloaded pistol) on school property when Mr. Garcia
was sixteen years old. His record also includes subsequent
adult convictions for, inter alia, burglary and
attempted automobile burglary, as well as discharging a
firearm from a motor vehicle (in 1994, when he was seventeen
years old); pointing a firearm at another (in 1996, when he
was nineteen years old); domestic abuse (in 2002, when he was
twenty-five years old); and unlawful possession of marijuana,
methamphetamine, and drug paraphernalia, as well as unlawful
shipment, transfer, receipt, or possession of stolen firearms
(in 2008, when he was thirty-one years old). Notably, the PSR
did not assign criminal-history points to over a dozen of Mr.
Garcia's prior convictions because they were not
countable, for various reasons, under the Guidelines-a
majority of them merely because they were too old.
to the PSR, Mr. Garcia's subtotal criminal history score
was three, and one of those criminal-history points stemmed
from a 2007 conviction for possession of methamphetamine for
which he received a five-year suspended sentence in June
2011. The PSR added two points to his subtotal
criminal-history score, pursuant to Guidelines §
4A1.1(d), because Mr. Garcia "committed the instant
offense while under a criminal justice sentence"
resulting from the 2007 conviction. Id., ¶ 52,
at 19. This calculation yielded a total of five
criminal-history points, placing Mr. Garcia in
criminal-history category III. Based on a total offense level
of twenty-one and a criminal-history category of III, the PSR
found that the Guidelines range was forty-six to fifty-seven
months' imprisonment. Id., ¶ 96, at 28.
also identified factors that might warrant a non-Guidelines
sentence. In particular, when discussing whether an upward
variance would be justified, the PSR generally stated the
Based on the nature and circumstances of the offense, the
history and characteristics of the defendant, the need for
the sentence imposed to reflect the seriousness of the
offense, the need to afford adequate deterrence to criminal
conduct, and the need to protect the public from further
crimes of the defendant, an upward variance may be warranted.
Id., ¶ 119, at 31. In particular, the PSR
commented as follows:
The defendant sustained his first felony conviction shortly
after he turned 18; for essentially his entire adult life it
has been unlawful for him to possess firearms. However, he
has repeatedly continued to disregard the law both with
respect to firearms and other criminal activity. . . . The
defendant's possession of a firearm is particularly
concerning - more so than the "average" felon in
possession case - because of his history involving pointing
and discharging firearms. This concern is further increased
because of the defendant's apparently unstable mental
state and his ongoing involvement in domestic violence.
Id., ¶ 120, at 31-32.
urging the court to consider imposing an upward variance, the
Probation Office stressed that the Guidelines range did not
adequately take into account the seriousness and longstanding
nature of Mr. Garcia's criminal conduct. Underscoring the
seriousness of his criminal record, the PSR noted that Mr.
Garcia was only one qualifying conviction short of the three
required to subject him to a sentence under the Armed Career
Criminal Act ("ACCA"), which requires courts to
impose a fifteen-year mandatory-minimum prison term on
regarding the concern posed by Mr. Garcia's mental state,
the PSR reported, among other indicators of significant
mental instability, that Mr. Garcia had been diagnosed on two
prior occasions as suffering from "Antisocial
Personality Disorder," that he had previously noted
"his own weaknesses as hurting those he cares about and
feeling no pain," and that currently he "reported
experiencing visual and auditory hallucinations."
Id., ¶¶ 72-73, at 24.
Garcia filed objections to the PSR's Guidelines
computations, arguing in pertinent part that the two
additional criminal-history points had been improperly
assessed, pursuant to Guidelines § 4A1.1(d), because his
five-year suspended sentence for methamphetamine possession
expired in June 2016, "prior to the allegations in the
case before the [district] [c]ourt"-that is, the April
2017 unlawful firearm-possession offense. Id. at 33
(Addendum to PSR, filed Dec. 18, 2017).
Probation Office responded that, in April 2016, prior
to the expiration of his suspended sentence, Mr. Garcia
had unlawfully possessed two handguns, and this possession
was relevant conduct with respect to his subsequent April
2017 offense of conviction. Therefore, it reasoned that
adding the two points for committing "the instant
offense while under any criminal justice sentence" was
appropriate. U.S.S.G. § 4A1.1(d). More specifically,
referencing the Guidelines commentary, the Probation Office
explained that the "instant offense," which §
4A1.1(d) contemplates, is not limited to just the crime of
conviction-which admittedly occurred in April 2017, after his
suspended sentence expired. Rather, this term, said the
Office, encompasses relevant conduct, such as his April 2016
incident involving the unlawful possession of firearms. R.,
Vol. II, 34. Thus, at the time of that incident (i.e., in
April 2016) Mr. Garcia was still under a "criminal
justice sentence" and thus two additional
criminal-history points were properly attributed to him.
district court considered Mr. Garcia's objections during
a sentencing hearing. Defense counsel initially said that he
would stand on his written objections, while the government
stated that it agreed with the Probation Office's
assessment. As relevant here, defense counsel subsequently
reiterated that Mr. Garcia was not "subject to any
criminal indictment, supervision, or probation at the time
this offense occurred," such that "that [§
4A1.1(d)] enhancement would not apply." Id.,
Vol. III, at 56 (Sentencing Tr., filed Apr. 6, 2018).
Notably, Mr. Garcia did not specifically object to the
Probation Office's predicate finding that the April 2016
incident was relevant conduct as to the April 2017 offense of
the government agreed with this relevant-conduct finding and
made it the centerpiece of its argument. It emphasized that
the April 2016 incident was relevant conduct because Mr.
Garcia's actions were "just a continuing set of
circumstances where [he] was repeatedly and continuously
possessing firearms as a felon." Id. at 57. The
district court asked whether defense counsel had
"[a]nything . . . to add to" the government's
analysis, and defense counsel responded, "[n]o."
Id. at 57-58.
district court stated that the relevant-conduct question was
"close" due to the "the amount of time that
elapsed between" the April 2016 incident and the April
2017 offense of conviction, but it ultimately overruled Mr.
Garcia's objection because there was "a more or less
continuous course of conduct over an extended period of time
involving possession of firearms by [Mr. Garcia] in various
contexts." Id. at 58. The district court
ultimately adopted the PSR's Guidelines computations.
Garcia and counsel made statements prior to sentencing.
Defense counsel contended that Mr. Garcia had "made it
as painless as can be for the [g]overnment" by pleading
guilty, and counsel urged the court to consider that Mr.
Garcia had been in custody "for in excess of eight
months" based on the instant offense with "no
misconducts." Id. at 59. Mr. Garcia stated that
he had "time to think about a lot of things" while
in custody and would not exercise similar "poor
judgment" in the future. Id. at 59-60. The
government requested a sentence at the high end of the
Guidelines range. Specifically, the government noted Mr.
Garcia's "lifetime of criminal activity," which
had been "virtually nonstop" since he was sixteen.
Id. at 60-62.
district court, however, elected to vary upward instead from
the Guidelines sentencing range and imposed a term of
ninety-six months' imprisonment. After noting its duty to
consider the Guidelines and relevant statutory factors, it
offered a rationale for its decision:
The things that the statute requires me to consider include
the nature and circumstances of the offense.
Here, of course, I've considered the fact that [Mr.
Garcia] was picked up apparently during a relatively violent
episode where the rifle was present.
There was at least some suggestion in the [PSR] that he had
access to it in connection with this dispute with his
that triggered the immediate inquiry from law enforcement.
It appears that - from the condition and circumstances of the
house, that [Mr. Garcia] was, if not planning for a shootout,
at least equipped for one.
And so that, coupled with the fact that we have had multiple
instances of [Mr. Garcia] dealing with guns over an extended
period of time and all subsequent to an early felony
conviction many years ago, suggests to me that we have a very
serious set of circumstances here because, as counsel for the
[g]overnment has suggested, there has been a long, more
or less continuous history of law-breaking by [Mr.
But it appears that throughout virtually the entire period of
his adult life, when he's committed these other
crimes, he's also had guns around. So this
circumstance here is, in my view, a very serious offense.
I'm required to consider [Mr. Garcia's history]. The
most pertinent thing, of course, is that he does have a long,
pretty much continuous history of breaking the law, criminal
convictions for one thing or another.
At least some of those convictions are for violent conduct,
both in terms of the domestic abuse, and I recall one, I
think, was a drive-by shooting or something equivalent to
So we have a very serious streak of violent conduct as a part
of the broader range of criminal activity ...