United States Court of Appeals

for the Fifth Circuit

No. 22-10060

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Juan Armando Mendez Garcia, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CR-635-1

Before Barksdale, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

Juan Armando Mendez Garcia pleaded guilty to illegal reentry after 

removal, in violation of 8 U.S.C. § 1326(a), and was sentenced to, inter alia, 

25 months’ imprisonment. He contends his sentence is substantively 

unreasonable. 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2022

Lyle W. Cayce

Clerk

Case: 22-10060 Document: 00516405921 Page: 1 Date Filed: 07/25/2022
No. 22-10060

2

Although post-Booker, the Sentencing Guidelines are advisory only, 

the district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 46, 51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence, such as Garcia’s, is reviewed for 

substantive reasonableness under an abuse-of-discretion standard. Id. at 51; 

United States v. Delgado-Martinez, 564 F.3d 750, 751-53 (5th Cir. 2009). In 

that respect, for issues preserved in district court, as in this instance, its 

application of the Guidelines is reviewed de novo; its factual findings, only for 

clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th 

Cir. 2008). As reflected above, Garcia does not claim procedural error.

To the extent Garcia asserts the court abused its discretion by failing 

to account for the time he spent in state custody before being prosecuted for 

illegal reentry, he fails to rebut the presumption of reasonableness that 

applies to his within-Sentencing Guidelines term of imprisonment. See 

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (noting presumption 

of reasonableness applies “to a properly calculated, within-[G]uidelines 

sentence” and “is rebutted only upon a showing that the sentence does not 

account for a factor that should receive significant weight, it gives significant 

weight to an irrelevant or improper factor, or it represents a clear error of 

judgment in balancing sentencing factors”). Especially in the light of 

Garcia’s criminal history and three prior removals, which the court stated it 

had reviewed, and its stated concern about Garcia’s committing another 

felony if he reentered again, the court did not abuse its discretion in rejecting 

Garcia’s assertion that he should have received credit for time spent in state 

custody. See Guideline § 2L1.2, cmt. n.7 (noting time-served-in-statecustody departure “should be considered only in cases where the departure 

is not likely to increase the risk to the public from further crimes of the 

defendant”). 

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No. 22-10060

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To the extent Garcia contends his sentence is substantively 

unreasonable based solely on the district court’s failure to grant a downward 

departure, our court “lack[s] jurisdiction to review the denial . . . unless [it]

resulted from a mistaken belief [it did not have] authority to depart” under 

the Guidelines. United States v. Tuma, 738 F.3d 681, 691 (5th Cir. 2013). 

That exception is not applicable here. 

AFFIRMED.

Case: 22-10060 Document: 00516405921 Page: 3 Date Filed: 07/25/2022