United States Court of Appeals
UNITED STATES COURT OF APPEALS May 14, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
v. (D.Ct. No. 2:05-CR-280-DAK)
ORLIN MIZAEL GARCIA,
ORDER AND JUDGMENT *
Before TACHA, Circuit Judge, and ANDERSON and BRORBY, Senior Circuit
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Orlin Mizael Garcia pled guilty to one count of possession of
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
He now appeals his 210-month sentence, contending the district court erred in
applying a two-level enhancement for his alleged management role in the offense
under United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.")
§ 3B1.1(c). We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291 and affirm Mr. Garcia's sentence.
I. Factual and Procedural Background
On March 14, 2005, a Utah Highway Patrol officer initiated a traffic stop of
Mr. Garcia, who possessed a California driver's license but told the officer he
worked in Des Moines, Iowa, and was driving a friend's vehicle, a green Ford
Focus, back to Iowa. Eventually, Mr. Garcia consented to a search of the vehicle,
where the officer discovered 1,636.9 grams, or 1.64 kilograms, of
methamphetamine in a tire in the trunk of the vehicle.
Following his indictment, Mr. Garcia pled guilty to possession with intent
to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1). Prior to sentencing, a probation officer prepared a presentence report
calculating Mr. Garcia's base offense level at 38 and reducing it two levels for a
safety valve reduction and three levels for acceptance of responsibility, for a total
offense level of 33. A total offense level of 33, together with a criminal history
[End Page 2]
category of I, resulted in an advisory Guidelines range of 135 to 168 months
imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
The government objected to application of the two-level safety valve
reduction, contending evidence showed Mr. Garcia was a "leader/organizer" in a
drug trafficking organization in Des Moines, Iowa, and providing additional
discovery evidence in support of its objection. Based on this information, the
probation officer amended the presentence report by removing the two-level
safety valve reduction, resulting in a total offense level of 35, for an advisory
Guidelines range of 168 to 210 months imprisonment, and leaving the decision on
whether to apply the safety valve reduction to the district court.
Following its objection to the safety valve reduction, the government
advised the district court it intended to seek a two-level upward departure under
U.S.S.G. § 3B1.1 for Mr. Garcia's role as a leader, organizer, or supervisor in the
criminal activity involving the methamphetamine for which he was charged. At
the sentencing hearing, the government presented the testimony of Drug
Enforcement Administration Special Agent Lonny Namanny who testified as to
his experience and specialized training in drug trafficking organizations. He also
testified as to his involvement in the investigation of the Des Moines drug
trafficking operation involving Mr. Garcia, as well as his review of numerous
[End Page 3]
reports detailing that investigation, his interviews with each of the law
enforcement officers who prepared those reports, and his and other law
enforcement officers' interviews with cooperating participants in the drug
To begin, Special Agent Namanny testified as to his interview of the law
enforcement officer who interviewed Gerrardo Valdovinos â€" a participant in the
Des Moines drug organization â€" as well as his own review of that officer's report.
In the officer's report and interview, Mr. Valdovinos admitted he trafficked
methamphetamine and in August 2002 went with two other individuals, Carlos
Gutierez and Jaime Lopez, to Omaha, Nebraska, where they met with Mr. Garcia,
who rented hotel rooms for the purpose of their meeting. At that meeting, Mr.
Gutierez and Mr. Lopez paid Mr. Garcia $25,000 to $30,000 for a previous
shipment of methamphetamine. Mr. Garcia also indicated he was waiting for
others to deliver money to him at the hotel and told Mr. Valdovinos he could also
supply him with methamphetamine but specified all deliveries would be made in
Des Moines where Mr. Gutierez would act as the middleman for those deliveries.
Within ten days, Mr. Gutierez and Mr. Lopez obtained eleven pounds of
methamphetamine from Mr. Garcia, of which three pounds were earmarked for
Mr. Valdovinos, who later met with Mr. Garcia in Des Moines and made a partial
payment of between $15,000 and $20,000.
[End Page 4]
Initially, as instructed by Mr. Garcia, Mr. Valdovinos received
methamphetamine from Mr. Gutierez, but made payments to Mr. Garcia.
Eventually, Mr. Valdovinos arranged to make his cash payments to and pick up of
methamphetamine shipments directly from Mr. Garcia every three weeks at
various locations in Des Moines or Omaha. Mr. Valdovinos indicated he obtained
pure methamphetamine from Mr. Garcia which he then resold. 1 At the time of his
interview, Mr. Valdovinos had in his possession a piece of paper listing a
southern California telephone number for "Primo," which he admitted was Mr.
Garcia's telephone number. He also correctly identified Mr. Lopez, Mr. Gutierez,
and Mr. Garcia from photographs.
Special Agent Namanny also testified regarding Mr. Garcia's Utah arrest in
the instant offense. During a search of the vehicle, officers not only found
methamphetamine in the spare tire, but also discovered three cell phones,
including one with an Iowa area code and two with southern California area
codes; one cell phone contained the phone number for another drug organization
participant, Marin Chevez, in its phone book application. Special Agent
According to the presentence report, Mr. Valdovinos admitted to
purchasing a total of thirty to forty pounds of pure methamphetamine from Mr.
Garcia from August 2002 to February 2003, which "they" cut with MSM and
converted into sixty to ninety pounds of methamphetamine for street distribution.
Nothing in the record on appeal indicates who cut the methamphetamine with Mr.
[End Page 5]
Namanny obtained information showing the green Ford Focus Mr. Garcia was
driving at the time of his arrest had been the subject of surveillance a month
earlier when authorities observed Mr. Chevez apparently using it to make a
methamphetamine delivery. 2
Following Mr. Garcia's March 2005 arrest for the instant offense and
release on bail, agents placed a GPS tracking device in another green vehicle â€" a
Honda â€" they suspected was being used in the drug trafficking activity under
investigation. The tracking device showed the Honda left Long Beach,
California, and headed westbound to Memphis, Tennessee; at that time, Agent
Namanny contacted the Memphis police and requested a stop in order to identify
the occupants, who turned out to be Mr. Garcia as the driver, who provided a
California driver's license, and Elber Alexander-Espinoza as a passenger. After
the vehicle left Memphis, the tracking device showed it traveled to a suburb of
Kansas City, Missouri, and then returned to Memphis, where it was stopped
again; this time, Mr. Alexander-Espinoza was the only occupant. The tracking
device then showed the Honda returned to Long Beach, which correlated with
information later obtained from Mr. Chevez that he and his girlfriend traveled
with Mr. Garcia to Long Beach at the same time to pick up five pounds of
The vehicle was registered in the name of "Arturo Rodriguez."
[End Page 6]
On April 19, 2005, Mr. Chevez was arrested in Des Moines after driving
the same green Honda from Long Beach, as confirmed by the GPS tracking
device; he admitted possessing the five pounds of methamphetamine found in the
vehicle, which he indicated he and Mr. Garcia had picked up in Long Beach.
Special Agent Namanny interviewed Mr. Chevez's girlfriend while another agent
interviewed Mr. Chevez. Later, Special Agent Namanny interviewed that officer
and reviewed his report showing Mr. Chevez told him the green Honda was
provided by "Primo" from California, that he had been instructed by "Primo" to
drive to Des Moines, and that "Primo" would fly in from California to pick up the
car. Subsequently, Mr. Chevez admitted Mr. Garcia had given him the green
Honda and he was involved in a conspiracy to distribute methamphetamine with
Mr. Garcia, which included the five pounds of methamphetamine in his
possession. During an interview conducted by Special Agent Namanny, Mr.
Chevez also identified Mr. Garcia as "Primo" and again stated Mr. Garcia gave
him the car he drove to Des Moines.
In May 2005, Long Beach authorities made a traffic stop and again arrested
Mr. Garcia on a warrant in conjunction with the instant offense. Evidence
obtained from that vehicle included a receipt from a Los Angeles store in Mr.
Garcia's name listing his address as Long Beach, California, and showing a
$5,800 purchase of a Motorola repeater and five portable Motorola hand-held
[End Page 7]
radios. Later, Special Agent Namanny contacted the store and learned the radios
were used for "covering a substantial distance in communication"; he testified
that based on his training and experience such radios were commonly used to
communicate in drug trafficking. During the same May 2005 traffic stop, Long
Beach authorities also discovered a one-way airline ticket in Mr. Garcia's name
for travel from Long Beach through Phoenix to Des Moines. Subsequent
interviews with Mr. Valdovinos and another organization participant,
MelanVerjer-Flores, established that "Primo," or Mr. Garcia, often flew to Des
Moines to pick up money and then traveled back to California in a vehicle with
On August 1, 2006, and October 4, 2006, Special Agent Namanny
conducted interviews with Mr. Verjer-Flores, a participant in the same drug
trafficking organization. Mr. Verjer-Flores first stated Mr. Chevez was "Primo,"
and then later recanted and said Mr. Garcia was "Primo," identified him in a
photo, and stated he personally observed Mr. Garcia deliver pound quantities of
methamphetamine to two individuals in Des Moines at Mr. Chevez's house, and
that those individuals paid Mr. Garcia cash for the delivery.
Special Agent Namanny testified that, based on his training and experience,
the large amounts of cash and methamphetamine Mr. Garcia trafficked in were
[End Page 8]
indicative of a drug trafficking organization. He also testified, based on
information from the investigation, including statements of the cooperating
participants and independent corroboration, that he believed Mr. Garcia was a
manager in the organization, as evidenced by his residing in California but
managing individuals in Des Moines, Iowa, who were actually distributing the
methamphetamine he was supplying, and also based on the fact he was in Des
Moines on a frequent basis to collect the proceeds from those sales.
During Special Agent Namanny's testimony, Mr. Garcia's counsel made a
continuing objection concerning the admissibility of his double or multiple
hearsay statements to support the two-level enhancement for Mr. Garcia's role in
the drug trafficking organization. The district court recognized those objections
and overruled them. At the conclusion of the sentencing hearing, Mr. Garcia's
counsel conceded that the court could consider such hearsay evidence if it had a
"minimum indicia of reliability," but argued there was "insufficient evidence
presented to ... justify ... the two-level increase ...." Apt. App. at 110-11, 114.
The court rejected Mr. Garcia's argument and imposed a two-level enhancement
for Mr. Garcia's role in the offense, stating:
[O]bviously, I'm somewhat troubled by the double hearsay, but the
volume of evidence is fairly compelling ... the government has
proven by a preponderance, that the defendant did direct others; Mr.
Valdovinos, Mr. Gutierez, Mr. Chevez, and that his movement and
activity here do suggest a management role in the trafficking
[End Page 9]
operation in terms of drugs and money.
Apt. App. at 117. The two-level enhancement under U.S.S.G. § 3B1.1 resulted in
a total offense level of 37, which, together with the criminal history category of I,
resulted in an advisory Guidelines range of 210 to 262 months imprisonment. See
U.S.S.G. Chap. 5, Pt. A (Sentencing Table). The district court then sentenced Mr.
Garcia at the low end of the Guidelines range to 210 months imprisonment.
On appeal, Mr. Garcia argues the district court erred in applying the two-
level enhancement under U.S.S.G.§ 3B1.1(c) for his alleged management role in
the offense because: (1) it failed to make specific and detailed findings to support
the enhancement; and (2) the testimony on which it based the enhancement was
unreliable. In support of his unreliable evidence argument, he claims none of
Special Agent Namanny's testimony was based on personal knowledge but,
instead, on summarized reports and interviews with other law enforcement
officials who conducted interviews with others and that the information provided
was not sufficiently corroborated by other evidence. In regard to the lack of
corroborating evidence, Mr. Garcia suggests the fact Mr. Valdovinos had Mr.
Garcia's California phone number and allegedly identified him in a photo was not
enough to corroborate either any drug deal or the incriminating evidence obtained
during his interview. Similarly, Mr. Garcia suggests nothing confirms it was him
[End Page 10]
driving the Honda in Memphis instead of another person using his name as an
alias or that the Honda being driven to Memphis had anything to do with drugs.
He also points out Mr. Verjer-Flores initially identified Mr. Chevez as "Primo"
before he identified Mr. Garcia as "Primo," and contends it is significant Mr.
Verjer-Flores paid Mr. Garcia for the drugs while at Mr. Chevez's house in Des
Moines. He also suggests Mr. Chevez may be the manager trying to "pin" the
manager/supervisor role on Mr. Garcia, rather than himself, given he received a
reduced sentence for his admission in conspiring to traffic drugs with Mr. Garcia.
While his argument implicates the procedural reasonableness of his sentence, he
does not challenge the substantive reasonableness of his sentence.
Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220
(2005), we review sentences for reasonableness. See United States v.
Kristl, 437 F.3d 1050
, 1053 (10th Cir. 2006). "Our appellate review for
reasonableness includes both a procedural component, encompassing the method
by which a sentence was calculated, as well as a substantive component, which
relates to the length of the resulting sentence." United States v. Smart, 518 F.3d 800
, 803 (10th Cir. 2008). Regarding the former, a sentence is not reasonable if
the method by which it was determined was unreasonable or, in other words, if it
was based on an improper determination of the applicable Guidelines range. See
Kristl, 437 F.3d at 1055. In determining whether the district court correctly
[End Page 11]
calculated the recommended Guidelines range through application of the
Guidelines, we review de novo the district court's legal conclusions and any
factual findings for clear error, giving due deference to the district court's
application of the Guidelines to the facts. See United States v. Wolfe, 435 F.3d 1289
, 1295 (10th Cir. 2006).
With these standards of review in mind, we turn to the principles relevant
in applying U.S.S.G. § 3B1.1 to Mr. Garcia's sentence. Section 3B1.1(c)
provides for a two-level increase in the defendant's offense level "[i]f the
defendant was an organizer, leader, manager, or supervisor in any criminal
activity ...." U.S.S.G. § 3B1.1(c). "According to the Guidelines commentary,
â€˜[t]o qualify for an adjustment under this section, the defendant must have been
the organizer, leader, manager, or supervisor of one or more other participants.'"
United States v. Pena-Hermosillo,
, 2008 WL 1723664, at *4
(10th Cir. Apr. 15, 2008) (slip op.) (relying on U.S.S.G. § 3B1.1, cmt. 2). Thus,
the supervisor or manager prong of § 3B1.1(c) suggests an element of control
over others and therefore "applies to a defendant who exercised some degree of
control or organizational authority over someone subordinate to him in the drug
distribution scheme." United States v. Valdez-Arieta, 127 F.3d 1267
, 1271 (10th
Cir. 1997) (quotation marks and citations omitted). In turn, "[w]e have held ...
the defendant's supervisory or managerial status is not sufficiently proved by
[End Page 12]
indicating a mere buyer/seller relationship between the defendant and the alleged
group or network participants." United States v. Reid, 911 F.2d 1456
, 1465 (10th
Cir. 1990) (quotation marks and citation omitted), overruled on other grounds by
United States v. Cruz Camacho, 137 F.3d 1220
, 1224 n.3 (10th Cir. 1998).
When the government seeks to increase a defendant's sentence under
§ 3B1.1, as it did here, it bears the burden of proving by a preponderance of the
evidence the increase is justified. See United States v. Torres, 53 F.3d 1129
1142 (10th Cir. 1995). Because the Federal Rules of Evidence do not apply at
sentencing hearings, we have long held hearsay statements may be used at
sentencing so long as they possess some "minimum indicia of reliability." United
States v. Browning, 61 F.3d 752
, 754-55 (10th Cir. 1995). Corroborating
evidence is a means of establishing the necessary indicia of reliability of out-of-
court hearsay statements presented at sentencing. See United States v. Ortiz, 993 F.2d 204
, 207 (10th Cir. 1993). In applying a management or supervisor role
enhancement, we have made it clear "[a] district court must make specific
findings and advance a factual basis to support an enhancement under U.S.S.G.
§ 3B1.1." United States v. Chisum, 502 F.3d 1237
, 1242 (10th Cir. 2007)
(quotation marks and citation omitted), cert. denied, 128 S. Ct. 1290
appellate review should not be hindered by a district court's failure to articulate
specific findings to support its decision which results in "the absence of a clear
[End Page 13]
picture of the reasoning employed" and leaving us to "flounder in the zone of
speculation." United States v. Pelliere, 57 F.3d 936
, 940 (10th Cir. 1995).
We begin with Mr. Garcia's claim the district court failed to make
sufficiently specific and detailed findings to support the enhancement. In
support, Mr. Garcia relies heavily on our decision in Pelliere where the district
court determined three individuals' statements that the defendant was second in
command were sufficient to find he occupied a managerial or supervisory role,
even though other witnesses testified that another individual was second in
command. 57 F.3d at 943. We remanded, holding the district court's failure to
articulate specific findings to support its decision "hindered" our appellate
review, leaving us to "flounder in the zone of speculation.'" Id. at 940.
Admittedly, in this case, the district court's reasoning for applying the
§ 3B1.1 enhancement for Mr. Garcia's management role was brief, but it
explicitly stated, in part, that the government had proven by a preponderance that
Mr. Garcia directed Mr. Chevez. In regard to Mr. Chevez, it is not difficult to
ascertain the facts on which the district court relied. Mr. Chevez's account was
that (1) he was involved in a conspiracy with Mr. Garcia, (2) whom he verified
was "Primo," (3) to distribute methamphetamine, including the five pounds of
methamphetamine they obtained together in Long Beach found in the green
[End Page 14]
Honda Mr. Chevez was driving at the time of his arrest, which (4) Mr. Garcia
provided him, and (5) instructed him to use to transport the methamphetamine to
Des Moines, where (6) Mr. Garcia would fly to obtain the car from him. As a
result, although the district court's reasoning was brief, our review has not been
hindered by such brevity nor are we left to "flounder in the zone of speculation."
Mr. Chevez's account sufficiently establishes Mr. Garcia had control or
organizational authority over him for the purpose of warranting the two-level
managerial role enhancement under § 3B1.1. 3
As to the other participants the district court determined were controlled by
Mr. Garcia â€" namely, Mr. Gutierez and Mr. Valdovinos â€" it is less clear what
evidence the district court relied on. While the record establishes Mr. Garcia
provided them and others with pound quantities of methamphetamine for which
he received payment, those sales alone do not necessarily establish the required
Contrary to Mr. Garcia's contention, the fact Mr. Chevez received a
lesser sentence following his account of the drug trafficking organization, and, in
particular, Mr. Garcia's role therein, does not inherently render his statements
inadmissible, unreliable, or otherwise non-credible. See United States v.
Singleton, 165 F.3d 1297
, 1301 (10th Cir. 1999) (en banc) (relying on proposition
that "no practice is more ingrained in our criminal justice system than the practice
of the government calling a witness who is an accessory to the crime for which
the defendant is charged and having that witness testify under a plea bargain that
promises him a reduced sentence"). It is evident from a review of the record the
district court was aware Mr. Chevez was a cooperating participant who benefitted
from providing information about Mr. Garcia and the drug trafficking
organization, and it nonetheless found his account, as corroborated by other
evidence, reliable for the purpose of applying the managerial role enhancement.
[End Page 15]
control or organizational authority over a subordinate in the drug distribution
scheme. See Valdez-Arieta, 127 F.3d at 1271. In addition, while the evidence
suggests Mr. Gutierez may have initially acted as a middleman between Mr.
Garcia and Mr. Valdovinos for the purpose of selling Mr. Valdovinos
methamphetamine, without further explanation we cannot readily ascertain the
facts the district court relied on in determining Mr. Garcia exercised the requisite
managerial control over either Mr. Gutierez or Mr. Valdovinos, and we will not
speculate further on what evidence might support such a determination. Our
conclusion, however, requires no remand given our holding concerning at least
one participant, Mr. Chevez, is sufficient for application of the enhancement.
Turning to Mr. Garcia's next contention concerning the reliability of the
hearsay evidence presented in support of the enhancement, we turn to the issue of
Special Agent Namanny's testimony, concentrating on the evidence establishing
Mr. Garcia's management or control over Mr. Chevez. In this case, Special Agent
Namanny was directly involved in the investigation of the drug trafficking
organization in which Mr. Garcia participated. As part of that investigation, he
participated in an interview of Mr. Chevez and also conducted two interviews
with Mr. Verjer-Flores, another participant in the organization. While those
individuals did not testify, and Special Agent Namanny did not himself interview
Mr. Valdovinos or participate in the other interview with Mr. Chevez, he gave his
[End Page 16]
hearsay accounts of those interviews at the sentencing hearing. As previously
noted, hearsay statements may be used at sentencing so long as they possess some
"minimum indicia of reliability" in the record.
As to the reliability of Special Agent Namanny's testimony, the record
demonstrates he comprehensively interviewed the law enforcement officers who
conducted interviews of the organization's participants as well as thoroughly
reviewed their reports as a part of his investigation into the drug trafficking
organization. Nothing in the record suggests his account of any of the interviews
or subsequent reports was incorrect or otherwise unreliable. We also note Mr.
Garcia does not question the reliability of the other law enforcement officers'
accounts of their interviews with the drug organization participants. Instead, he
focuses on the unreliability of the drug organization participants themselves,
stating their interview statements were uncorroborated. We disagree.
Again, we concentrate on the reliability of Mr. Chevez's statements, as
corroborated by other evidence. Two other participants separately identified Mr.
Garcia as "Primo," which is sufficient to corroborate Mr. Chevez's identification
of Mr. Garcia as "Primo" in the organization. In addition, Mr. Garcia was
stopped in the Memphis area driving the same green Honda Mr. Chevez stated
Mr. Garcia provided him just days later in Long Beach with instructions for him
[End Page 17]
to take it and the five pounds of methamphetamine to Des Moines. Despite Mr.
Garcia's contentions otherwise, he has not countered the government's evidence
by showing it was someone else and not him driving the vehicle when it was
stopped in Memphis and the driver provided a California driver's license for Orlin
Furthermore, Mr. Chevez's testimony Mr. Garcia told him he would fly
from California to meet Mr. Chevez in Des Moines corresponds with Mr.
Valdovinos's and Mr. Verjer-Flores's statements Mr. Garcia often flew from
California to Des Moines to pick up money from his drug sales and then traveled
back to California in a vehicle with the money. The one-way airline ticket in Mr.
Garcia's name and possession for a flight from Long Beach to Des Moines lends
further support to these statements. In addition, surveillance established Mr.
Chevez used another vehicle, a green Ford Focus, for the purpose of an apparent
methamphetamine delivery, which was the vehicle Mr. Garcia was stopped in at
the time of his arrest in the instant offense, further illustrating that on at least one
other occasion Mr. Chevez used a vehicle connected with Mr. Garcia. Further
corroborating Mr. Chevez's account, for the purpose of illustrating Mr. Garcia's
management role in the drug trafficking organization, was Mr. Garcia's $5,800
purchase of a repeater and five portable hand-held radios, which Special Agent
Namanny testified are commonly used to communicate in drug trafficking
[End Page 18]
organizations. If Mr. Garcia was merely a participant in the drug organization, it
is unlikely he would have either needed or purchased this quantity of equipment.
While this purchase alone might not directly implicate Mr. Garcia, it, together
with the other evidence, supports Mr. Chevez's statements implicating Mr. Garcia
as a manager in the drug trafficking organization.
Thus, we hold sufficient evidence corroborated Mr. Chevez's statements
concerning Mr. Garcia's management role in the drug trafficking organization,
lending those statements the indicia of reliability required. Consequently, no
error occurred in the district court's application of the two-level enhancement
under § 3B1.1 for the purpose of demonstrating his sentence is procedurally
unreasonable. Because Mr. Garcia has not raised an argument on appeal that his
sentence is substantively unreasonable, we need not address that issue, other than
to point out that because the district court correctly applied the relevant
Guidelines range and sentenced Mr. Garcia within that range, his sentence is
presumptively reasonable, and Mr. Garcia has not carried his burden in
demonstrating his sentence is unreasonable under the § 3553(a) sentencing
factors. Kristl, 437 F.3d at 1053-55; see also Rita v. United States,
, 127 S. Ct. 2456
, 2462, 2465 (2007).
[End Page 19]
For these reasons, we AFFIRM Mr. Garcia's sentence.
Entered by the Court:
United States Circuit Judge
[End Page 20]