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United States v. Garcia

United States Court of Appeals, Tenth Circuit

January 7, 2020

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JASON DAVON GARCIA, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Oklahoma D.C. No. 5:17-CR-00106-HE-1

          Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for Defendant-Appellant.

          Steven 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 Plaintiff-Appellee.

          Before HARTZ, HOLMES, and CARSON, Circuit Judges.

          HOLMES, Circuit Judge

         Jason 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.

         Exercising 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.


         In May 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.

         The Probation Office then prepared a Presentence Report ("PSR").[1] 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.

         The PSR 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.

         Mr. 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 house.

         The PSR 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.

         The PSR 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.

         According 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.

         The PSR 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 following:

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.

         In 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 eligible offenders.[2]

         And, 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.

         Mr. 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).

         The 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.

         The 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 conviction.

         However, 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.

         The 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.

         Mr. 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.

         The 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 wife[3] 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. Garcia].
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 that.
So we have a very serious streak of violent conduct as a part of the broader range of criminal activity ...

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