[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10890

Non-Argument Calendar

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D.C. Docket No. 8:16-cr-00143-VMC-TGW-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

PEDRO GARCIA, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

________________________

(May 24, 2018)

Before MARTIN, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM: 

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Pedro Garcia appeals his 78-month sentence after pleading guilty to a single 

count of being a felon in possession of a firearm. Garcia raises three arguments on 

appeal. First, he contends that the district court erred in adopting a guidelines 

calculation that assigned him three criminal history points based on a June 2001 

offense for which he received a four-year youthful-offender sentence that was later 

modified to probation. Second, he argues that his sentence was both procedurally 

and substantively unreasonable because it was based on erroneous facts and failed 

to account for mitigating factors. Finally, he asserts that 18 U.S.C. § 922(g) is 

unconstitutional both on its face and as applied to him. We address each argument 

in turn.

I.

On March 31, 2016, Garcia was charged in a one-count indictment with 

knowingly possessing a firearm after a felony conviction in violation of 18 U.S.C. 

§§ 922(g)(1) and (924)(a). The government later filed a superseding indictment, 

which added language charging him with possession of ammunition as well. 

On November 1, 2016, Garcia pled guilty, without a written plea agreement, 

to the original indictment. Because the original indictment did not charge 

possession of ammunition, the magistrate judge accepting the plea did not ask

Garcia about any ammunition. Nevertheless, the government asked that it be 

considered relevant conduct at sentencing. Garcia admitted during the plea hearing 

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that the firearm was made outside of Florida, and therefore must have traveled 

across state lines to Florida. 

The probation office prepared a presentence investigation report (“PSR”) 

which recommended a criminal history score of 14. This score included three 

criminal history points for a 2001 conviction for robbery and aggravated battery. 

The PSR noted that Garcia had been sentenced as a youthful offender to four years 

imprisonment, followed by two years of probation. In 2004, his probation for this 

sentence was revoked, and Garcia was sentenced to 11 months and 29 days 

imprisonment. The PSR also listed criminal convictions for armed vehicular 

burglary, possession of cocaine, racketeering, and a previous conviction for 

possession of a firearm by a convicted felon.

Based on this criminal history and the relevant offense level, the PSR 

recommended an advisory sentence guideline range of 63 to 78 months 

imprisonment. The PSR also stated that “[t]he defendant suffers from significant 

mental health problems,” and noted that Garcia had allegedly been sexually 

assaulted as a minor and had attempted suicide. The PSR mentioned Garcia’s

“significant substance abuse problems associated with cocaine and marijuana.”

Neither party objected to the facts contained in the PSR or to the application 

of the sentencing guidelines. At sentencing, the district court adopted the findings 

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of fact in the PSR and concluded that the advisory guideline range was 63 to 78 

months.

The government argued for a sentence in the middle of the guideline range. 

The district court asked “Why do you think a sentence in the mid-range is your 

recommendation? He didn’t plead with a plea agreement. He just pled, right?” 

The government agreed. The district court again asked why a mid-range sentence 

would be appropriate, stating:

Why would you cut someone some slack and say middle of the range? 

When you have somebody with this kind of history, why wouldn’t 

you go for the high end of the guidelines? You already let him plead 

to the initial indictment as opposed to the Superseding Indictment. 

Isn’t that enough of a benefit? And he didn’t even sign a plea 

agreement.

The district court stated it was “a little surprised” by the government’s position, 

and that it was “kind of taken aback that’s what you’ve asked for because I think 

this is somebody with a very significant criminal history.” After the government 

finished its argument, the district court remarked: 

I think what you have said supports a sentence at the high end, not at

the middle of the range. . . . I’m surprised that’s what you’re asking 

for. And I’ve been sentencing at the bottom of the range and I’ve 

been departing downwards quite a few times, but this gentleman has a 

very significant criminal history. I’m thinking about the safety of the 

public.

Garcia’s counsel argued for a sentence “towards the low end.” He 

highlighted mitigating factors such as substance abuse and “some issues that 

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happened to Mr. Garcia when he was younger,” apparently alluding to the PSR’s 

statement that Garcia had been sexually assaulted in his youth. He also argued that 

Garcia had merely allowed a friend to store the firearm in his house, and that it did 

not belong to Garcia.

The district court told Garcia that it had “reevaluated” how it sentenced 

defendants and that it had been “imposing lower sentences” where possible. 

However, given Garcia’s criminal history, the court said “I just feel that if I don’t 

give a significant sentence, I’m not doing my job to protect the public.” After 

hearing a statement from Garcia, the district court sentenced him to 78 months 

imprisonment. The district court reached its decision “[a]fter considering the 

Advisory Sentencing Guidelines and all of the factors identified in [18 U.S.C. 

§ 3553(a)].” Finally, the district court explained to Garcia, “I have given 

consideration to your mental health problems, your personal characteristics, but 

your extensive criminal conduct does not warrant and downward variance and, 

furthermore, warrants a sentence at the highest end of the guidelines.” Neither 

party objected to the sentence.

Garcia appealed.

II.

We ordinarily review a district court’s interpretation of the sentencing 

guidelines de novo and its factual determinations for clear error. See United States 

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v. Monzo, 852 F.3d 1343, 1348 (11th Cir. 2017). An argument raised for the first 

time on appeal, however, is reviewed for plain error. United States v. Clark, 274 

F.3d 1325, 1326 (11th Cir. 2001) (per curiam). A “plain error” is any deviation

from a legal rule that is “clearly established at the time the case is reviewed on 

direct appeal.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (per 

curiam). “[W]here the explicit language of a statute or rule does not specifically 

resolve an issue, there can be no plain error where there is no precedent from the 

Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada, 

319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam). The error must “affect 

substantial rights,” meaning “[i]t must have affected the outcome of the district 

court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 

1777–78 (1993) (quotation omitted and alteration adopted). We may correct the 

error if it “seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. McKinley, 732 F.3d 1291, 1296 (11th Cir. 2013)

(per curiam) (quotation omitted).

III.

Garcia argues the district court erred by assigning three criminal history 

points to his 2001 conviction for robbery and aggravated battery because his 

sentence was reduced to probation when he completed a youthful offender 

program.

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In calculating a defendant’s criminal history category, three points are 

assigned “for each prior sentence of imprisonment exceeding one year and one 

month.” United States Sentencing Guidelines § 4A1.1(a). “[C]riminal history 

points are based on the sentence pronounced, not the length of time actually 

served.” Id. § 4A1.2 cmt. n.2. All sentences imposed within ten years of the 

offense of conviction are counted, as are any sentences imposed or served within 

fifteen years of the offense if the sentence exceeded thirteen months imprisonment. 

Id. § 4A1.2(e)(1)–(2). Any sentence falling outside these time periods is not

counted. Id. § 4A1.2(e)(3). 

Where a sentence is imposed as the result of a probation violation, the 

guidelines instruct as follows: “[A]dd the original term of imprisonment to any 

term of imprisonment imposed upon revocation. The resulting total is used to 

compute the criminal history points . . . .” Id. § 4A1.2(k)(1). That is, instead of 

counting the original sentence and sentence after revocation separately, “the 

sentence given upon revocation should be added to the original sentence of 

imprisonment . . . and the total should be counted as if it were one sentence.” Id.

§ 4A1.2 cmt. n.11. 

Under Florida law, defendants sentenced as youthful offenders can 

participate in a basic training program lasting at least 120 days, not counting time 

served prior to the program. Fla. Stat. § 958.045(1), (5)(c). “If the youthful 

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offender’s performance is satisfactory, the court shall issue an order modifying the 

sentence imposed and place the offender on probation subject to the offender 

successfully completing the remainder of the basic training program.” Id.

§ 958.045(5)(c). We have not addressed how a Florida youthful-offender sentence 

modified to probation upon completion of a training program impacts a 

defendant’s criminal history score. We have, however, held that other youthfuloffender convictions count toward a defendant’s criminal history score and 

sentencing enhancements. See United States v. Wilks, 464 F.3d 1240, 1242–44

(11th Cir. 2006) (holding that Florida youthful-offender convictions “can qualify 

as a predicate offenses for sentence enhancement[s]”); United States v. Pinion, 4 

F.3d 941, 945 (11th Cir. 1993) (discussing South Carolina’s youthful-offender 

program).

The district court did not plainly err in adopting a guideline calculation that 

assigned Garcia three criminal history points for the June 2001 offense. The 

guidelines do not specifically address, and no binding precedent holds, that once a 

Florida youthful-offender sentence is modified to probation, the probationary 

sentence replaces the original sentence of imprisonment for purposes of calculating 

a defendant’s criminal history score. See Lejarde-Rada, 319 F.3d at 1291. If the 

original sentence remains valid, then application of the guidelines is clear: Garcia’s

original four-year sentence—plus a 364-day term imposed when Garcia’s 

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probation was later revoked—was in excess of thirteen months, and imposed 

within fifteen years of the offense of conviction, so it is assigned three criminal 

history points. See USSG §§ 4A1.1(a), 4A1.2(e)(1), (k)(1). Therefore the district 

court did not plainly err in assigning three criminal history points to this

conviction.

IV.

Garcia next argues his sentence was procedurally and substantively 

unreasonable.

A.

In examining procedural reasonableness, we must “ensure that the district 

court committed no significant procedural error, such as failing to calculate (or 

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, 

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on 

clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall 

v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “A factual finding is 

clearly erroneous when, although there is evidence to support it, we are left with 

the definite and firm conviction, after review of the entire evidence, that a mistake 

has been made.” United States v. Hill, 783 F.3d 842, 846 (11th Cir. 2015) (per 

curiam). 

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Garcia argues the sentence was procedurally unreasonable because the 

district court relied on three erroneous facts, namely: (1) that he received a benefit 

by entering a guilty plea without having to sign a plea agreement; (2) that he 

received a benefit from pleading to the original indictment and not the superseding 

indictment; and (3) that he received a benefit from being prosecuted in federal 

court, rather than state court. We are not persuaded. The district court’s 

statements were accurate. Garcia did plead guilty to the original federal 

indictment, without signing a plea agreement. Indeed, this did benefit Garcia in a 

couple of ways. First, by pleading without a plea agreement he did not waive any 

appellate rights. Also, by pleading to the original indictment he did not have to 

admit that he possessed ammunition. Finally, the district court did not characterize 

his federal prosecution as a benefit. At sentencing, the district court said: “I’m 

looking here at protecting the public. It’s just paramount in this kind of case. It’s 

why the U.S. Attorney’s Office took this case as opposed to letting the state handle 

it, where he would have gotten a less significant sentence.” Because the district 

court did not characterize Garcia’s federal prosecution as a benefit to him, this 

argument fails as well. 

Additionally, Garcia has not shown that any perceived “benefit” from these 

facts influenced the district court’s decision. The district court repeatedly stressed 

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that the motivating factor behind the sentence was Garcia’s criminal history and 

the need to protect the public. 

Viewing the sentencing record as a whole, Garcia has not shown plain error 

in the procedure that resulted in his sentence.

B.

In reviewing a sentence for substantive reasonableness, we consider the 

totality of the circumstances and will remand for resentencing only when “left with 

the definite and firm conviction that the district court committed a clear error of 

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies 

outside the range of reasonable sentences dictated by the facts of the case.” United 

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted). The 

district court must impose a sentence that is “sufficient, but not greater than 

necessary, to comply with the purposes” of § 3553(a)(2), including the need to 

reflect the seriousness of the offense, provide just punishment, deter criminal 

conduct, and protect the public. 18 U.S.C. § 3553(a)(2). It must also consider “the 

nature and circumstances of the offense and the history and characteristics of the 

defendant.” Id. § 3553(a)(1). The weight given to any particular factor “is a 

matter committed to the sound discretion of the district court,” and the court’s 

failure to discuss mitigating evidence does not mean that the court ignored or failed 

to consider it. United States v. Amedeo, 487 F.3d 823, 832–33 (11th Cir. 2007)

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(quotation omitted). Nevertheless, a district court abuses its discretion when it “(1) 

fails to afford consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or (3) commits a 

clear error of judgment in considering the proper factors.” United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted). 

Garcia first argues that the sentence is substantively unreasonable for the 

same reasons he says it is procedurally unreasonable. That is, he says the court 

relied on clearly erroneous facts. However, as discussed above, the sentence is not 

procedurally unreasonable, and hence this argument fails.

Garcia next argues the district court failed to afford weight to mitigating 

factors, such as his mental health problems, his history of substance abuse, and the 

sexual assault he suffered as a minor. But, to the contrary, the district court 

expressly told Garcia that it had “given consideration to your mental health 

problems, your personal characteristics.” The court ultimately decided that “your 

extensive criminal conduct does not warrant a downward variance and, 

furthermore, warrants a sentence at the highest end of the guidelines.” The district 

court also indicated that it reached its decision “[a]fter considering the Advisory 

Sentencing Guidelines and all of the factors identified in [18 U.S.C. § 3553(a)].” 

Based on these statements, it appears the district court properly considered all of 

the relevant §3553(a) factors, and we cannot say that it clearly erred in weighing 

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each factor. Therefore Garcia has not shown plain error in the substantive 

reasonableness of his sentence.

V.

Finally, Garcia challenges the constitutionality of 18 U.S.C. § 922(g), both 

on its face and as applied to him.

“We have repeatedly held that Section 922(g)(1) is not a facially 

unconstitutional exercise of Congress’s power under the Commerce Clause 

because it contains an express jurisdictional requirement” that is satisfied when the 

firearm involved in the offense has at least “minimal nexus” to interstate 

commerce. United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011) 

(quotation omitted). The “minimal nexus” requirement is met where the 

government demonstrates that the firearm in question has traveled in interstate 

commerce. Id. Here, the government submitted a factual basis, and Garcia 

admitted at the change of plea hearing, that the firearm in question was 

manufactured outside Florida, establishing the minimal nexus to interstate 

commerce. Therefore Section 922(g)(1) is not unconstitutional as applied to 

Garcia.

AFFIRMED.

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