Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2007

USA v. Garcia
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1411




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1411


                           UNITED STATES OF AMERICA

                                            v.

                                  ARTHUR GARCIA,

                                                              Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Crim. No. 04-cr-00301-1)
                    Honorable Christopher C. Conner, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                   March 15, 2007

          BEFORE: FUENTES, GREENBERG, and LOURIE,* Circuit Judges

                                  (Filed: April 4, 2007)


                              OPINION OF THE COURT




*Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit, sitting by
designation.
GREENBERG, Circuit Judge.

       This matter comes on before the court on an appeal from a judgment of conviction

and sentence entered on January 27, 2006, in which the appellant, Arthur Garcia, was

indicted in two counts for violations of 18 U.S.C. §§ 2422(b) (use of mail or facility of

interstate or foreign commerce for coercion and enticement of minor for sexual activity)

and 2423(b) (travel act). Garcia pleaded guilty to both counts without a written plea

agreement. The district court sentenced Garcia to concurrent custodial terms of 100

months on each count to be followed by five-year concurrent periods of supervised

release. In addition, the court fined Garcia $500 on each count and imposed a special

assessment of $100 on each count. Garcia then filed a timely appeal. The district court

had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a).

       On this appeal Garcia raises three issues all relating solely to his sentence. In

particular, he contends that: (1) the district court upwardly departed from the sentencing

guidelines without giving him reasonable notice of its intention to do so; (2) the sentence

imposed was unreasonable because the court failed to consider adequately all of the

sentencing factors set forth in 18 U.S.C. § 3553(a); and (3) the court erroneously applied

a specific offense characteristic to calculate a 2-level sentencing level increase under

U.S.S.G. § 2A3.2(b)(3).1 While usually we review a criminal sentence on an abuse of


  1
   We are using the 2003 Edition of the Guidelines Manual in this case as did the
probation officer as neither party suggests that a different edition should have been used.
                                              2
discretion basis, see United States v. Lloyd, 

, 321 (3d Cir. 2006), in this case

our review is plenary because we are concerned with assertions that the district court

made errors of law. 

are well known to the parties and thus we only need to summarize them.

Garcia, when 56 years old, through the use of the Internet to which he gained access with

his computer in California, made contact with the victim, a 14-year old girl, in York

County, Pennsylvania. Their long distance contact extended over a period of several

months and involved numerous Internet messages. Ultimately Garcia flew to

Pennsylvania where he met the victim and had sexual relations with her. His arrest

followed.

       The court calculated Garcia’s adjusted offense level before it departed as 25. In

making this calculation the court included a 2-level increase for the use of a computer as

provided in U.S.S.G. § 2A3.2(b)(3). Garcia objected to this increase on the ground that

“[i]t is the use of the internet that brings [his] case within the ambit” of section 2422(b),

one of the offenses to which he pleaded guilty. Appellant’s br. at 32. He further

explained that his base level under U.S.S.G. § 2A3.2(a)(1) was calculated “for

committing an act that involved using a computer to violate [section] 2422(b).” 

his view, the 2-level increase was what the courts and attorneys call a “double dip,” as

the use of the computer was factored into the base offense level.

       After argument at the sentencing hearing, the district court departed upwards from

the sentencing level that it had calculated by 4 levels. It made this departure without

                                               3
having given Garcia prior notice that it contemplated doing so. The court indicated that

an upward departure was “warranted” because there was “an aggravating circumstance of

a kind or to a degree not adequately taken into consideration by the sentencing

commission” that took this case out of the “heartland of typical cases.” App. at 57. The

court explained in detail its reasons for reaching that conclusion in the course of which it

described the victim, Garcia, and Garcia’s conduct. The 4-level upwards departure

increased Garcia’s total offense level to 29 yielding a sentencing range of 87 to 108

months.2

       We are satisfied that the district court must resentence Garcia because it departed

from the sentencing guidelines without giving him notice that it contemplated doing so. It

is true, as the government points out, that in United States v. Vampire Nation, 

, 195 (3d Cir 2006), we drew a distinction between a variance from a guideline range

and a departure from a guideline range. A court varies from a guideline range when it

imposes a sentence outside of the range by considering the list of factors set forth in 18

U.S.C. § 3553(a) of which the application of the now advisory guidelines, see United

States v. Booker, 

, 

(2005), are but one component. See United

States v. Colon, 

, 99-100 (3d Cir. 2007). But if a court calculates a

sentencing level by expressly departing, as it did here, then it cannot be said that it has

varied from the range, particularly when, as here, it relies heavily on the guideline



  2
   Garcia’s criminal history category was I.
                                               4
calculations in imposing the sentence. Though we do not doubt that cases will arise in

which it is difficult to determine if a court has varied or departed from the guideline range

this is not one of them as the court in the clearest possible language said it was departing

upwards by 4 levels and then increased the sentencing level from 25 to 29.

       Inasmuch as the court departed from the guideline range, Fed. R. Crim. P. 32(h)

was applicable. The rule provides:

       Before the court may depart from the applicable sentencing range on a
       ground not identified for departure either in the presentence report or in a
       party’s prehearing submission, the court must give the parties reasonable
       notice that it is contemplating such a departure. The notice must specify
       any ground on which the court is contemplating a departure.

       Garcia correctly asserts in his brief that there was no suggestion either in the

presentence report or in the government’s presentence submissions that the court should

depart from the guideline range in this case. Indeed, quite to the contrary, the presentence

report indicated that “[t]he probation officer has identified no factors warranting a

departure,” presentence report at 16. Moreover, the government did not object to that

conclusion. Accordingly, Garcia contends that the court should resentence him.

       In the circumstances, the government does not have a real answer to Garcia’s

contention that he should be resentenced. Rather, it points out that the presentence report

recommended that the court determine the offense level to be a level 32, a calculation

yielding a sentencing range of 121-151 months whereas even with the departure the court




                                              5
settled on a lower total offense level of 29 with a range of 87-108 months.3 The

government contends that the fact that the presentence report recommended a sentencing

range beyond the range that the court adopted gave Garcia “constructive notice” that there

could be a departure.

       The government’s argument clearly misses the mark as the fact that the court does

not accept a sentencing range proposed in a presentence report does not mean that it can

then depart without notice so as to go part or all of the way back to the rejected proposed

total offense level without giving notice of the ground for the contemplated departure.

After all, though the recommendations in a presentence report are important, the court and

not the probation office determines a defendant’s offense level. Finally, we point out that

the government itself demonstrates that its position is incorrect by the way it frames the

notice question: “The notice of the potential sentence was adequate.” Government’s br.

at 16. Clearly, the notice that had to be given was of the contemplated departure not of

the “potential sentence.”4

       In this regard we point out that the purpose of giving notice of a contemplated

departure is to allow the parties to know why the court is contemplating departing so that

the defendant or the government, as the case may be, may attempt to refute the reasons

  3
   The government has not cross-appealed from the court’s calculation of Garcia’s
offense level.
  4
   The concept of constructive notice does not apply here even assuming that it ever
could be applicable in situations like the one here. A defendant is not put on constructive
notice that there may be a departure by a presentence report that recites that the
“probation officer has identified no factors warranting a departure.”
                                             6
that might support a departure. There can be no doubt but that no matter what the court

determines the offense level to be before a departure, the importance of giving notice of a

contemplated departure remains.

       The government also contends, citing and quoting United States v. Himler, 

, 742 (3d Cir. 2004), that if there was a failure to give notice of a contemplated

departure here, the oversight was harmless. We disagree as we are satisfied that Garcia

has articulated what he would have done had he known that a departure was contemplated

and we cannot reject his argument on the point out of hand. Maybe he will not be

persuasive on a resentencing if the court again contemplates departing upwards over his

objection but he should be given the opportunity to present his arguments against

departure to the district court.

       Inasmuch as we are vacating the sentence and remanding for resentencing we need

not address Garcia’s second argument, i.e., that the court did not adequately consider all

the sentencing factors in 18 U.S.C. § 3553(a). The court imposed the original sentence in

this case more than one year ago. Since that time we have issued numerous opinions

dealing with application of the section 3553(a) sentencing factors, see, e.g., 

, and we are certain that the district court will consider theses cases in

resentencing.

       We do consider, however, Garcia’s U.S.S.G. § 2A3.2(b)(3) argument. Garcia was

indicted for violating section 18 U.S.C. § 2422(b) which broadly involves, as germane

here, the use of “any facility or means of interstate or foreign commerce” for the

                                              7
statutorily interdicted purposes and, on a defendant’s conviction for its violation, triggers

application of U.S.S.C. § 2A3.2(a)(1) to establish the base offense level. On the other

hand, guidelines section 2A3.2(b)(3) is specific to the use of computers and Internet-

access devices. Clearly, there was no “double dipping” here as the guideline specifically

addresses particular types of instrumentalities requiring a sentencing level enhancement

only in a subset of section 2422(b) cases. Accordingly, we are not confronted with a

situation in which the base offense level for a crime is predicated on the same set of

factors in the guideline used for the contested enhancement of the sentencing level.

Consequently, the application of guidelines section 2A3.2(b)(3) when a computer is used

in a section 2422(b) offense does not mean that there will be an enhancement in every

case that comes within the base guidelines level, U.S.S.G. § 2A3.2(a)(1), for section

2422(b) offenses.

       For the foregoing reasons the judgment of conviction and sentence entered January

27, 2006, will, with respect to the sentence only, be vacated and the matter will be

remanded to the district court for resentencing.




                                              8