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United States v. Garcia-Solis

United States Court of Appeals, Fifth Circuit

June 12, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
RAMON GARCIA-SOLIS, JR., Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before HAYNES, GRAVES, and DUNCAN, Circuit Judges

          HAYNES, CIRCUIT JUDGE

         Ramon Garcia-Solis, Jr., pleaded guilty to one count of conspiring to transport undocumented aliens within the United States and two counts of transporting undocumented aliens within the United States. The district court enhanced Garcia-Solis's sentence, concluding that he drove recklessly while transporting the aliens based upon information in the presentence report ("PSR"). Garcia-Solis claims that the district court should not have imposed the enhancement because the statements in the PSR did not establish he drove recklessly. He also claims the district court erred by refusing to allow him to testify at the sentencing hearing. For the reasons set forth below, we AFFIRM.

          I. Background

         In September 2017, United States Border Patrol ("USBP") agents began following a car driven by Garcia-Solis. According to the PSR, during the pursuit Garcia-Solis drove twenty miles over the speed limit, wove through traffic, and ran a red light. When the USBP agents drew closer to his car, he slowed and pulled to the shoulder of the road, only to then speed off and travel at speeds of up to 100 miles per hour through traffic. The USBP agents lost sight of the car due to its speed but later found it abandoned on the side of the road. Footprints led the USBP agents to nearby brush where Garcia-Solis was hiding with the four undocumented aliens he had been transporting.

         Garcia-Solis pleaded guilty to one count of conspiring to transport undocumented aliens within the United States and two counts of transporting undocumented aliens within the United States under 8 U.S.C. § 1324. But he objected to a proposed Sentencing Guidelines enhancement for reckless endangerment under U.S.S.G. § 2L1.1(b)(6). He filed written objections to the PSR, arguing that he traveled within the speed limits, changed lanes responsibly, and did not run a red light.

         At the sentencing hearing, he again objected to the factual allegations and also argued his actions were not reckless. During a back and forth discussion between the district judge and Garcia-Solis's counsel about what the evidence was and the basis of Garcia-Solis's challenge to the recklessness recommendation in the PSR, his counsel stated, "And if the Court would like, I could ask my client to testify about what happened that day," to which the district court responded, "Not right now." The discussion continued about whether the information in the PSR substantiated the claim of recklessness, with both sides' counsel pointing out aspects of the PSR. The district court was clearly aware of what Garcia-Solis contended the actual facts were and specifically noted that the court would have to accept Garcia-Solis's "testimony" and disregard the unequivocal statements of "objective" border patrols. After this lengthy discussion, the district court determined that the PSR, which included testimony from the USBP agents and two of the undocumented aliens, supported application of the enhancement. Thereafter, Garcia-Solis was given a full opportunity to allocute, during which he said nothing about the facts of the alien transport. After a further lengthy discussion of the prison sentence, location of serving the prison sentence, and supervised release, Garcia-Solis's attorney asked to be excused, never claiming that he was not given the opportunity to put on Garcia-Solis's testimony. The district court sentenced Garcia-Solis within the Guidelines to 34 months of imprisonment on the three counts, running concurrently, plus one year of supervised release. He timely appealed.

         II. Discussion

         Garcia-Solis argues that the district court erred by allegedly refusing to allow him to testify and by imposing the enhancement. We examine each argument and conclude that neither has merit.

         A. Whether the district court erred by allegedly refusing to allow Garcia-Solis to testify at the sentencing hearing.

         Garcia-Solis argues that the district court violated Federal Rule of Criminal Procedure 32(i) by refusing to allow him to testify. Because Garcia-Solis did not object to the district court's alleged denial, we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Under that standard, Garcia-Solis must show "(1) an error (2) that was clear or obvious (3) that affected his substantial rights." United States v. Avalos-Martinez, 700 F.3d 148, 153 (5th Cir. 2012) (per curiam). If he does, "we have the discretion to correct the error if it 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). Garcia-Solis has not shown the district court erred under this standard.

         Simply put, the district court did not prohibit Garcia-Solis from testifying. Instead, it declined his attorney's offer to have him testify "right now." Many pages of transcript ensue in which the district court clearly considered Garcia-Solis's statements via his attorney as "testimony" but determined that the border patrol officers were more objective and had no reason to lie. Garcia-Solis was given a full opportunity to allocute and said nothing about this. We thus conclude that there was no prohibition and, thus, no error, particularly given the deference owed to a district court in organizing the sentencing process. See generally United States v. Henderson, 19 F.3d 917, 927 (5th Cir. 1994) (noting that "a sentencing court must be given deference to determine whether a hearing is needed on particular sentencing issues"). We also conclude that, even if there were such a prohibition, it did not have a substantial effect on the decision because the district court considered the statements to which Garcia-Solis now says he would have testified. Thus, the district court did not commit plain error on this issue.

         B. Whether the district court erred by imposing an enhancement ...


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