NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0256n.06
No. 22-3354
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 07, 2023
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
LUIS GARZA, ) OHIO
Defendant-Appellant. )
) OPINION
Before: KETHLEDGE, STRANCH, and MATHIS, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Defendant Luis Garza was pulled over for
speeding, and a series of searches of his car and house uncovered drugs and a firearm. He pled
guilty to a two-count indictment but objected to his offense level under the United States
Sentencing Guidelines and moved for a departure based on time served on a state parole violation
related to the same incident. The district court overruled both objections and declined the motion
for a departure; Garza challenges those rulings on appeal. Finding no error, we AFFIRM.
I. INTRODUCTION
On October 24, 2019, law enforcement officers stopped Garza for speeding in Indiana and
found a small amount of marijuana in the car’s glovebox. They discovered that Garza was on
parole in Ohio for aggravated robbery and arrested him. Officers searched Garza’s house in Ohio
and found controlled substances, including carfentanil, fentanyl, and methamphetamine; they also
found a handgun and over $1,000 cash in a jewelry cabinet in the master bedroom. Garza admitted
No. 22-3354, United States v. Garza
that the methamphetamine and gun belonged to him. A subsequent search of Garza’s car
uncovered more drugs—this time, “pure” methamphetamine.
A grand jury indicted Garza in the Southern District of Ohio on one count of possession
with intent to distribute methamphetamine, carfentanil, and fentanyl and one count of possession
of a firearm by a felon, and he pled guilty on both counts. The Presentence Investigation Report
(PSR) held Garza responsible for a total converted drug weight of 16,679.71 kilograms—nearly
all of which related to the 811.9 grams of “pure” or “actual” methamphetamine found in his car.
The PSR recommended a two-level enhancement for possession of a firearm in connection with a
drug-trafficking offense and a three-level reduction for acceptance of responsibility, resulting in a
total offense level of 33.
Garza made several objections to the PSR, but only two are relevant to this appeal. First,
he objected to the drug weight calculation. He did not dispute that the converted drug weight was
calculated in accordance with the relevant Guideline § 2D1.1(c); rather, he asked the district court
to depart from the Guidelines on policy grounds, arguing that the disparate treatment of
“Methamphetamine (Actual)” and “Methamphetamine” warranted a four-level downward
variance. Second, Garza contended that the two-level enhancement under Guideline § 2D1.1(b)(1)
for possession of a firearm in connection with a drug-trafficking crime was not applicable. Garza
also moved for a departure under Guideline § 5K2.23 to account for the time he served in state
custody for the parole violation resulting from the charges.
At sentencing, the district court overruled both objections and denied the motion for
a departure. It calculated a Guidelines range of 188 to 235 months and imposed a sentence of
188 months’ imprisonment.
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II. ANALYSIS
Garza appeals the judgment in his case, raising three issues. First, he argues that the district
court’s sentence was procedurally unreasonable because the court chose not to adopt his policy
argument regarding the proper converted-drug-weight calculation and failed to adequately explain
that choice. Second, he argues that the district court clearly erred in applying the two-level
enhancement under § 2D 1.1(b)(1). Finally, Garza contends that the district court abused its
discretion in declining to depart downward under § 5K2.23 to allow credit for his time served in
state custody. We take each in turn.
A. Procedural Reasonableness
We review the procedural reasonableness of a sentence for abuse of discretion. United
States v. Kamper, 748 F.3d 728, 739 (6th Cir. 2014). A sentence is procedurally reasonable where
“the trial court follows proper procedures and gives adequate consideration to [the § 3553(a)]
factors[.]” Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020). Within-Guidelines
sentences are afforded a rebuttable presumption of reasonableness. United States v. Boucher, 937
F.3d 702, 707 (6th Cir. 2019).
Garza argues that the district court abused its discretion by refusing to vary downward
based on his policy argument concerning the Guidelines’ treatment of pure methamphetamine.
When calculating a converted drug weight, the Guidelines treat pure or “actual” methamphetamine
ten times more severely than methamphetamine mixtures. See USSG § 2D1.1 comment. (n.8(D)).
For example, in this case, the 811.9 grams of pure methamphetamine converted to 16,238
kilograms of converted drug weight; the same amount of methamphetamine mixture would convert
to only 1,623 kilograms. Garza raises policy arguments supporting his claim that courts should
depart from the Guidelines’ disparate treatment of pure methamphetamine. But the district court
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did “not find this policy argument persuasive,” and overruled Garza’s objection, citing our decision
in United States v. Alonzo, which held that a district court did not impose a procedurally
unreasonable sentence in rejecting the same policy argument. 811 F. App’x 301, 305-06 (6th Cir.
2020).
In Alonzo, we noted that “[t]he fact that a district court may disagree with a Guideline for
policy reasons and may reject the Guidelines range because of that disagreement does not mean
that the court must disagree with that Guideline or that it must reject the Guidelines range if it
disagrees.” Id. at 306 (quoting United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011)) (original
emphasis in Brooks); United States v. Lynde, 926 F.3d 275, 280 (6th Cir. 2019) (“[A] district court
cannot be said to have abused its discretion merely because it followed [the Guidelines] (and agreed
with its policies).”). A problem does arise, however, when a district court “‘fail[s] to appreciate
the scope of its discretion’ and ‘indicates that policy disagreements are not a proper basis to vary.’”
Kamper, 748 F.3d at 742 (quoting United States v. Johnson, 407 F. App’x 8, 10 (6th Cir. 2010)).
That error did not occur here. The district court demonstrated an understanding of Garza’s policy
argument and rejected the argument—not because it was bound to but because it expressly found
the argument unpersuasive.
Nor did the court inadequately explain its rejection of this argument. It did not need
to respond “point-by-point” to defend the Guidelines treatment of pure methamphetamine.
See United States v. Gunter, 620 F.3d 642, 646 (6th Cir. 2010). Review of the record shows that
the district court “conduct[ed] a meaningful sentencing hearing and truly consider[ed]” Garza’s
arguments. Id.
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B. Firearm Enhancement
We review findings of fact at sentencing under the clear-error standard, which requires a
“definite and firm conviction that a mistake has been committed” for reversal. United States
v. West, 962 F.3d 183, 187 (6th Cir. 2020) (quoting United States v. Orlando, 363 F.3d 596, 603
(6th Cir. 2004)). Guideline § 2D1.1(b)(1) provides a two-level enhancement for possessing a
firearm during the commission of a drug offense. Constructive possession is sufficient. See id.
The Government bears the initial burden of proving these facts by a preponderance of the evidence;
if it is successful, there is a presumption that the firearm was “connected with the offense of
conviction.” Id. at 187-88. The enhancement then applies unless the defendant can demonstrate
that it is “clearly improbable that the weapon was connected with the offense.” Id. at 188 (quoting
USSG § 2D1.1 comment. (n.11(A)).
Garza contends that the district court clearly erred in finding that the Government met its
burden to show he possessed a firearm during the commission of a drug offense. The court
overruled Garza’s objection and applied the enhancement because, based on the “uncontested facts
. . . in the PSR,” it found Garza constructively possessed the firearm “at the time the narcotics were
recovered,” and had failed to show it was “clearly improbable” that the weapon was connected
with the drug-possession offense. Garza does not challenge the finding that he constructively
possessed the firearm; rather, he disputes that his possession occurred during the commission of a
drug offense.
Garza pled guilty to possessing with intent to distribute drugs, some of which were found
in his basement and his shed when law enforcement searched his home. During the search, officers
found a firearm in a cabinet drawer in the master bedroom. Garza is correct that we have affirmed
a district court’s refusal to apply this enhancement to similar facts, see United States v. Peters,
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15 F.3d 540, 542 (6th Cir. 1994), but that decision only underscored “our deferential stance with
respect to application of the Sentencing Guidelines to the particular facts of a case,” id. at 546.
Such deference applies here, and review of the record shows that the district court did not clearly
err in finding that Garza had constructive possession during the commission of a drug offense. See
United States v. Snyder, 913 F.2d 300, 303-04 (6th Cir. 1990) (affirming application of
enhancement where defendant constructively possessed firearms in bedroom nightstand and drugs
were found in basement).
C. Departure for Time Served
Our review of a district court’s decision not to grant a downward departure is limited to
where “the record shows that the district court was unaware of, or did not understand, its discretion
to make such a departure,” and “we presume that the district court understood its discretion, absent
clear evidence to the contrary.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008).
Garza argues that the district court forfeited its discretion to consider a downward departure under
Guideline § 5K2.23 for time served on his state parole violation.
Guideline § 5G1.3 advises district courts on how to account for prior undischarged terms
of imprisonment when sentencing a defendant on the instant offense. Section 5G1.3(b) requires
an adjustment to be made for “any period of imprisonment already served on [an] undischarged
term” where that term “resulted from another offense that is relevant conduct to the instant
offense.” USSG § 5G1.3(b). Section 5G1.3(d) provides that in any case involving an
undischarged term of imprisonment that is not covered by subsections (a)-(c), a district court has
discretion to impose the sentence for the instant offense to run “concurrently, partially
concurrently, or consecutively.” USSG § 5G1.3(d). Relevant here, Section 5K2.23 provides a
district court with discretion to depart downward for discharged, i.e., completed, terms of
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imprisonment where § 5G1.3(b) “would have provided an adjustment had that completed term of
imprisonment been undischarged at the time of sentencing for the instant offense.” USSG
§ 5K2.23.
In addition to the federal offenses at issue in this case, Garza’s conduct violated his state
parole in Ohio. Because of that violation, he served and discharged an approximately 270-day
state prison sentence before being indicted in federal court. Garza moved for a downward
departure pursuant to § 5K2.23 for this discharged term of imprisonment. The district court denied
the departure because it found that Garza’s term of imprisonment for a state parole violation was
governed by § 5G1.3 subsection (d), not subsection (b), and therefore, § 5K2.23 was not
implicated.
The district court did not err. The Guidelines commentary indicates that “[s]ubsection (d)
applies in cases in which the defendant was on . . . [state parole] . . . at the time of the instant
offense and has had such [] parole . . . revoked,” not subsection (b). USSG § 5G1.3 comment.
(n.4(C)) (emphasis added). Therefore, § 5K2.23 was not implicated by Garza’s discharged term
of imprisonment for a state parole violation, and there is no “clear evidence” that the district court
otherwise misunderstood its discretion in fashioning Garza’s sentence. See Santillana, 540 F.3d
at 431.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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