United States v. Garcia-Servin

Case: 20-20296     Document: 00515849433         Page: 1      Date Filed: 05/05/2021

              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                          May 5, 2021
                                  No. 20-20296
                                                                        Lyle W. Cayce

   United States of America,



   Rafael Garcia-Servin,


                  Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 4:20-CR-75-1

   Before Ho, Oldham, and Wilson, Circuit Judges.
   Per Curiam:*
          Rafael Garcia-Servin pled guilty to one count of illegal reentry after
   deportation, in violation of 8 U.S.C. § 1326(a), and was sentenced to an
   above-guidelines sentence of twenty-four months of imprisonment followed
   by one year of supervised release. Garcia-Servin now appeals, contending his
   sentence is procedurally and substantively unreasonable.

            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20296         Document: 00515849433              Page: 2       Date Filed: 05/05/2021

                                          No. 20-20296

           We review sentencing decisions using a “bifurcated review process,”
   first examining “whether the district court committed any significant
   procedural error,” then considering “the substantive reasonableness of the
   sentence.” United States v. Nguyen, 

854 F.3d 276

, 280 (5th Cir. 2017) (citing
   Gall v. United States, 

552 U.S. 38

, 51 (2007)).
           First, Garcia-Servin argues that the district court committed a
   significant procedural error when it misinterpreted his presentence report to
   construe that he had three prior removals, as opposed to two, and relied on
   that misinterpretation in imposing an upward variance on his sentence. For
   a preserved challenge to the procedural reasonableness of a sentence, we
   review the district court’s application of the guidelines de novo and its
   findings of fact for clear error.

Id. However, if a

defendant fails to preserve
   a claim of procedural error in the district court, plain error review applies.
   United States v. Williams, 

620 F.3d 483

, 493 (5th Cir. 2010); see also Puckett
   v. United States, 

556 U.S. 129

, 135 (2009). Here, we review Garcia-Servin’s
   challenge for plain error, as he has failed to preserve the error for appeal. 1 See

Williams, 620 F.3d at 493

. Garcia-Servin’s passing statement about having
   been “kicked out twice,” in response to the district court’s question during
   his sentencing hearing about his intentions to remain in Mexico, did not give
   the district court notice about the potential issue for appeal. See United States
   v. Dominguez-Alvarado, 

695 F.3d 324

, 327–28 (5th Cir. 2012) (observing that

              It appears Garcia-Servin affirmatively waived this point of error, rather than
   merely forfeited it. “Waived errors are entirely unreviewable, unlike forfeited errors, which
   are reviewable for plain error.” United States v. Musquiz, 

45 F.3d 927

, 931 (5th Cir. 1995).
   Here, defense counsel agreed during the sentencing hearing that “Yes, your Honor . . . the
   [c]ourt is correct” that Garcia-Servin was thrice removed. That is more than a sufficient
   basis to find waiver. In this case, however, the district court and defense counsel premised
   their agreement on an ambiguity in the PSR, and Garcia-Servin himself independently
   commented on the error during his sentencing hearing. We therefore give Garcia-Servin
   the benefit of the doubt and apply plain-error review.

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                                     No. 20-20296

   “objections that are too vague are reviewed on appeal for plain error because
   they cannot alert the court to the legal argument the party now presents”)
   (quotation omitted).
          “Plain error review requires four determinations: whether there was
   error at all; whether it was plain or obvious; whether the error affected the
   defendant’s substantial rights; and whether the court should exercise its
   discretion to correct the error,” which it will do “only if the error seriously
   affects the fairness, integrity, or public reputation of judicial proceedings.”

Id. at 328

(quotation omitted).
          Garcia-Servin can show that the district court committed an error that
   was plain or obvious when it found that he had been previously removed three
   times, instead of only twice as was actually the case. But he fails to show that
   the error affected his substantial rights, i.e., that it affected the outcome of
   the district court’s sentencing decision. See 

Puckett, 556 U.S. at 135

. In this
   regard, we ask “whether the error increased the term of a sentence, such that
   there is a reasonable probability of a lower sentence on remand.” United
   States v. Escalante-Reyes, 

689 F.3d 415

, 424 (5th Cir. 2012) (en banc) (internal
   quotation marks and citation omitted). In Escalante-Reyes, we held that a
   defendant’s substantial rights were affected where the district court
   considered an erroneous or improper factor that was “a central part” of the
   district court’s reasoning for imposing a sentence. See

id. Conversely, we

also held that a defendant’s substantial rights were not affected where
   the district court gave significant weight to valid factors and did not give
   undue weight to the improper factor. See 

Williams, 620 F.3d at 495

          Garcia-Servin argues that the district court’s consideration of the
   incorrect number of prior removals affected his substantial rights because the
   court mentioned the erroneous finding as its first factor in sentencing, and
   because the court’s reasoning for the sentence was otherwise brief.

Case: 20-20296        Document: 00515849433          Page: 4   Date Filed: 05/05/2021

                                      No. 20-20296

   However, he fails to show that the incorrect number of prior removals was
   “a central part” of the district court’s reasoning because the court indicated
   at sentencing that it felt an upward variance was appropriate based on the 18
   U.S.C. § 3553(a) factors and other concerns. See 

Escalante-Reyes, 689 F.3d at

–26. Although the district court mentioned the erroneous fact as one of
   the reasons for imposing an upward variance, the court also cited to Garcia-
   Servin’s convictions for his driving offenses and his criminal history category
   of IV as reasons for imposing the above-guidelines sentence. There is no
   reasonably probable indication that the district court’s reliance on only two
   prior removals, instead of three, would have resulted in a lesser sentence in
   the instant case. See 

Williams, 620 F.3d at 494

. Accordingly, Garcia-Servin
   fails to show a reasonable probability that he would have received a lesser
   sentence and thus fails to show reversible plain error. See 

Puckett, 556 U.S.
at 135

             Second, Garcia-Servin argues that his sentence was substantively
   unreasonable because the district court imposed the sentence by giving
   significant weight to a clearly erroneous fact, i.e., the incorrect number of
   prior removals, and by failing to consider his health conditions, his plan to
   remain in Mexico, and the fact that he had never been prosecuted for an
   immigration violation prior to the current offense. We review Garcia-
   Servin’s preserved challenge to the substantive reasonableness of a sentence
   under the abuse-of-discretion standard. See Holguin-Hernandez v. United

140 S. Ct. 762

, 766 (2020); United States v. Diehl, 

775 F.3d 714

, 724
   (5th Cir. 2015).
             The record does not show that the district court failed to account for
   a factor that should have received significant weight, gave significant weight
   to an irrelevant or improper factor, or committed a clear error of judgment in
   balancing the § 3553(a) factors. See United States v. Smith, 

440 F.3d 704

, 708
   (5th Cir. 2006). Instead, the record clearly shows that the district court in

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                                      No. 20-20296

   fact considered Garcia-Servin’s mitigating factors in its sentencing decision.
   Additionally, as noted above, the district court did not give significant weight
   to the number of prior removals. The court indicated that an upward
   variance was appropriate due to a variety of factors, such as Garcia-Servin’s
   criminal history, and not solely due to the number of his prior removals.
          In essence, Garcia-Servin’s arguments amount to no more than a
   request for this court to reweigh the statutory sentencing factors, which we
   will not do, as the district court is “in a better position to find facts and judge
   their import under the § 3553(a) factors with respect to a particular
   defendant.” United States v. Fraga, 

704 F.3d 432

, 439 (5th Cir. 2013)
   (internal quotation marks and footnote omitted). Under the totality of
   circumstances, including the significant deference that is given to the district
   court’s consideration of the § 3553(a) factors, the extent of the variance, and
   the district court’s reasons for its sentencing decision, Garcia-Servin’s
   sentence was reasonable. See

id. at 439–40.

          The judgment of the district court is AFFIRMED.


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