693 F.2d 412 (5th Cir. 1982), 82-2237, United States v. Garcia

Docket Nº:82-2237
Citation:693 F.2d 412
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Reynaldo GARCIA, Defendant-Appellant.
Case Date:November 26, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 412

693 F.2d 412 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,


Reynaldo GARCIA, Defendant-Appellant.

No. 82-2237

United States Court of Appeals, Fifth Circuit

November 26, 1982

Page 413

        L. Aron Pena, Edinburg, Tex., for defendant-appellant.

        John M. Potter, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

        Before BROWN, REAVLEY and JOLLY, Circuit Judges.

        E. GRADY JOLLY, Circuit Judge.


        Appellant Reynaldo Garcia was indicted on five counts of conspiring to distribute and distributing a total of 119.1 grams of heroin between February 17, 1981, and March 23, 1981, in violation of 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2. On February 1, 1982, Garcia's plea of guilty to one count of distributing .4 grams of heroin was accepted, and on motion of the government the other four counts were dismissed. The district judge sentenced Garcia to a term of ten years with a special parole term of five years and refused Garcia's request for voluntary surrender. Garcia filed a timely motion for reduction in sentence under Fed.R.Crim.P. 35, and a hearing was held on April 23, 1982. After hearing the

Page 414

evidence and "[considering] the nature of the offense and Defendant's involvement as shown by the testimony of the witnesses at the hearing," the trial judge reduced Garcia's sentence to eight years. Garcia appeals from that order and requests this court to vacate the sentence and remand the case to a different presiding judge. Because we find that the sentence is within the statutory limits and that there is no showing that the sentence was imposed in an arbitrary or capricious manner, we affirm the district court's order.

       II. FACTS

        After pleading guilty to one count of distributing .4 grams of heroin, Reynaldo Garcia was given a hearing prior to sentencing. At that time the judge asked Garcia if there was anything he would like to say, and he answered that he had read the presentence investigation (PSI) report and disagreed with it because "I am not that kind of person." Garcia's counsel stated that Garcia did not have a criminal record, that he was only the middle-man in the transaction, and that the codefendant Efrain Lopez-Garcia who actually supplied the heroin had received a probated sentence the day before. Although the presentence report noted that his name had "come up in a number of transactions," Garcia stated that he had never been involved in any heroin transactions aside from the one to which he had pleaded guilty.

        The court, stating that "I won't take into consideration these matters that you have taken issue with," then sentenced Garcia to the Attorney General's custody for ten years with a special parole term of five years. At that time Garcia's counsel told the judge that he thought that the court had been influenced by the PSI report which "we submit is false." The court responded that the nature of the crime (selling heroin) and the damage resulting from the offense were such that he was not very sympathetic and he did not consider such an offense a probation case except under the most extenuating circumstances "which I don't find here." As for the probated sentence of Garcia's codefendant, the judge stated that he did not know the facts and circumstances of the other case and that he could not base his own sentencing on what other defendants or other judges did. He then invited Garcia to file a motion to reduce at which time he would "look at it again."

        Garcia's counsel accepted the judge's invitation, filed a motion to reduce Garcia's sentence, and a hearing was held on that motion on April 23, 1982.

        At the hearing, the district judge stated that he was particularly concerned...

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