Case: 16-51069 Document: 00514172535 Page: 1 Date Filed: 09/27/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-51069 FILED September 27, 2017 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. CARLOS GERARDO GALVAN ESCOBAR, also known as Carlos Galvan, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas Before WIENER, HIGGINSON, and COSTA, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge: Carlos Gerardo Galvan Escobar pleaded guilty to unlawful reentry following removal. See 8 U.S.C. § 1326(a). At sentencing, he argued that his mental health and drug abuse issues warranted leniency. The district court agreed. So it announced a below-Guidelines sentence. Escobar responded that he might not be eligible for mental health or drug abuse treatment programs in prison. The court again agreed. It therefore expressed hope Galvan Escobar could get help—and even recommended treatment—but conceded the sentence might be too brief for him to join a prison rehabilitation program. Galvan Escobar now argues on appeal that the district court, by doing what he asked and knowingly imposing a sentence likely too short for rehab, improperly Case: 16-51069 Document: 00514172535 Page: 2 Date Filed: 09/27/2017 No. 16-51069 imposed or lengthened the sentence to promote rehab. See Tapia v. United States, 564 U.S. 319 (2011). We AFFIRM. I. Galvan Escobar, a citizen of Mexico, pleaded guilty to one count of violating 8 U.S.C. § 1326(a), which generally makes it unlawful for a non- citizen previously deported or removed from the United States to enter or be found in the country without the Attorney General’s consent. Because he had several prior convictions, Galvan Escobar’s Guidelines range was 37 to 46 months’ imprisonment. At sentencing, defense counsel urged the district court to impose a below- Guidelines sentence because Galvan Escobar had grown up in the United States and suffered from mental health and substance abuse issues. Specifically, counsel argued that the Guidelines range was “excessive, given his history, given his mental health,” and thus asked the sentencing court to “consider imposing a sentence below the guideline range in this case . . . with that in mind.” During allocution, Galvan Escobar conveyed his plan not to return to the United States and to work instead at a resort in Mazatlán. He closed by saying, “I need to make my mental state stable, so I’m going to try to find medication, that way I don’t have to self-medicate and just—I ask for your mercy, Your Honor.” The government stuck to the Guidelines, urging the district court to impose a 40- to 42-month sentence. The government acknowledged this case involved “sympathetic elements,” and that Galvan Escobar did have “mental” and “substance abuse issues” that needed considering. But the prosecutor asserted that Galvan Escobar’s “extensive” criminal history “cannot be ignored,” and thus suggested the district court “combine” Galvan Escobar’s “criminal history with those other issues that he has and the rehabilitative nature that [the government] ...
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