362 F. App'x 293

UNITED STATES of America v. Arthur GARCIA, Appellant.

No. 07-3798.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) Jan. 12, 2010.

Opinion filed: Jan. 26, 2010.

*294James T. Clancy, Esq., Office of United States Attorney, Harrisburg, PA, for United States of America.

Gerald A. Lord, Esq., Miller, Poole & Lord, York, PA, for Appellant.

Before: AMBRO, CHAGARES, Circuit Judges and JONES,* District Judge.

OPINION

AMBRO, Circuit Judge.

Arthur Garcia pled guilty to using a facility of interstate commerce to entice a minor to engage in sexual activity and traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor. He was sentenced to 83 months’ imprisonment, and now appeals that sentence. We affirm.1

I.

In September 2003, Garcia, who was 56 years old and living in California at the *295time, began exchanging instant messages over the Internet with a 14-year-old girl living in Pennsylvania. During the course of their sexually explicit conversations, Garcia misrepresented both his identity and his age, and expressed his desire to travel to Pennsylvania to have sex with her.

In January 2004, Garcia flew to Pennsylvania, rented a ear, and drove to the victim’s school bus stop to meet her. Garcia gave her $100 and a cell phone that he used to communicate with her over the next week. Later that week, Garcia picked the victim up from her school bus stop and, posing as the girl’s father, called her school and reported that she would be absent from school that day. Garcia then took the victim to his hotel room, where he had sexual intercourse with her multiple times. Garcia dropped the victim off at a friend’s house the following day, and was arrested as he was returning his rental car at the airport.

In August 2005, Garcia pled guilty to one count of using a facility of interstate commerce to persuade, induce, entice, or coerce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). With an offense level of 25 and a criminal history category of I, Garcia’s Guidelines range was 60 to 71 months’ imprisonment.2

In January 2006, the District Court sentenced Garcia to 100 months’ imprisonment after applying a four-level upward departure based on. “an aggravating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission” that took Garcia’s case out of the “heartland of typical cases.” *296United States v. Garcia, 225 Fed.Appx. 47, 49 (3d Cir.2007). In April 2007, we vacated that sentence and remanded for resentencing because the Court had applied an upward departure without notice to Garcia. Id.; see also Fed.R.Crim.P. 32(h).

On remand, the District Court imposed a twelve-month upward variance from the Guidelines range, and sentenced Garcia to 83 months’ imprisonment. He timely appealed.

II.

“Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). Our review proceeds in two stages. First, we “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 § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we consider the totality of the circumstances to determine whether the sentence is substantively reasonable. Tomko, 562 F.3d at 567. “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568.

We do not “presume that a sentence is unreasonable simply because it falls outside the” Guidelines range. Id. at 567. Rather, “[w]here ... a distinct court decides to vary from the Guidelines’ recommendations, we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. at 561 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586).

III.

Garcia argues that the District Court’s sentence was procedurally unreasonable for two reasons: (1) the Court failed to take into account the period Garcia spent on home confinement while awaiting his sentencing; and (2) it relied on impermissible factors in imposing an upward variance. We address each argument in turn.

Garcia first argues that the District Court failed to consider that he had been under home confinement for 14 months prior to his sentencing, which involved “severe restrictions on his freedom” that weighed in favor of a within-Guidelines sentence.3 We disagree. The record confirms that the Court considered this argument, which Garcia made both in his sentencing memorandum and during argument immediately before the Court imposed its sentence. That the Court did not specifically mention Garcia’s home confinement in explaining the reasons for its sentence does not make that sentence procedurally unreasonable. See Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (explaining that a brief statement of reasons can be sufficient where a district court is presented with “straightforward, conceptually simple arguments”).

*297Garcia next argues that the District Court impermissibly considered his age, education, marital status, and number of children in imposing its sentence. In support, he relies on a single sentence from the Court’s lengthy statement of reasons, where it described Garcia as “an educated, married, 56-year-old man with four children” who had engaged in “extensive predatory conduct” and had exercised “extreme influence” over a 14-year-old child.

We discern no procedural error. The District Court was simply describing “the nature and circumstances of the offense and the history and characteristics of the defendant,” factors which it was required to consider.4 18 U.S.C. § 8553(a)(1). In particular, we believe it was appropriate for the Court to comment on Garcia’s age and education level in explaining why his “grooming and cultivation of the victim” was “particularly troubling” and warranted a sentence above the Guidelines range.5

In sum, our review of the record confirms that the District Court gave “rational and meaningful” consideration to the relevant § 3553(a) factors in imposing its sentence. United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en bane). Accordingly, we affirm that sentence.6

United States v. Garcia
362 F. App'x 293

Case Details

Name
United States v. Garcia
Decision Date
Jan 26, 2010
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362 F. App'x 293

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