United States v. Chapman , 209 F. App'x 3 ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.1.0
United States Court of Appeals
For the First Circuit
No. 05-2752
UNITED STATES OF AMERICA,
Appellee,
v.
DENSIL TREVOR CHAPMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Maria Soledad Ramirez-Becerra and Maria Soledad Ramirez-
Becerra Law Office on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa and Germán A. Rieckehoff, Assistant United States
Attorneys, on brief for appellee.
December 22, 2006
Per Curiam. A federal grand jury sitting in the District
of Puerto Rico indicted defendant-appellant Densil Trevor Chapman
on a single count charging that he, being an alien previously
deported from the United States subsequent to a conviction for an
aggravated felony, attempted to reenter without having obtained
express consent from the Attorney General. See 8 U.S.C. § 1326.
The defendant moved for relief from the indictment on the ground
that his original deportation was carried out in violation of his
due process rights. The district court, accepting the recommended
decision of a magistrate judge, denied the motion.
Subsequently, the defendant entered an unconditional
guilty plea to the single count of the indictment. The presentence
investigation report (PSI Report) suggested a guideline sentencing
range (GSR) of 70-87 months. The defendant did not object to this
calculation.
At the disposition hearing, held on October 18, 2005, the
defendant argued that imposing a sentence within the GSR would be
harsher punishment than necessary. In this regard, he cited a
plethora of factors, such as his family history and background, his
prior military service, the relatively compressed span of his
previous criminal activity, his belief that he would be deported
upon his release from immurement (thereby blunting any need to
incarcerate him for a lengthy period), and the fact that he
presented no danger to society. After listening to the defendant's
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importunings, the district court accepted the PSI Report's
guideline calculations and sentenced him to a 40-month
incarcerative term. This timely appeal followed.
We need not tarry. The Supreme Court's landmark decision
in United States v. Booker, 543 U.S. 220, 245 (2005), rendered the
federal sentencing guidelines advisory. Post-Booker, we review
sentences for reasonableness. Id. at 261. That standard of review
obtains whether the sentence imposed falls inside or outside the
GSR. See United States v. Turbides-Leonardo, ___ F.3d ___, ___
(1st Cir. 2006) [No. 05-2374, slip op. at 12-13]; United States v.
Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir. 2006) (en banc).
"In constructing a sentence under an advisory guidelines
regime, a sentencing court ordinarily should begin by calculating
the applicable guideline sentencing range; then determine whether
or not any departures are in order; then mull the factors
delineated in 18 U.S.C. § 3553(a) as well as any other relevant
considerations; and, finally, determine what sentence, whether
within, above, or below the guideline sentencing range, appears
appropriate." United States v. Pelletier, ___ F.3d ___, ___ (1st
Cir. 2006) [No. 06-1287, slip op. at 20]. Here, the defendant
concedes the correctness of the calculated GSR (70-87 months). See
Appellant's Br. at 11. By like token, he advances no argument
anent the sentencing court's eschewal of a departure. He posits,
rather, that the sentencing court failed to attach appropriate
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weight either to the various mitigating factors enumerated above or
to irregularities in his original deportation proceeding.
This argument is meritless. The transcript of the
disposition hearing makes manifest that the lower court considered
the factors limned in 18 U.S.C. § 3553(a), mulled the various
proffers made by the defendant in mitigation, and gave the
defendant a huge discount — sentencing him to a term of
imprisonment of 40 months. That sentence is roughly 43% below the
nadir of the applicable GSR.
The sentencing transcript and the PSI Report make the
district court's rationale for the length of the sentence
abundantly clear. That rationale is "plausible." Jiménez-Beltre,
440 F.3d at 519. The resulting sentence is not unreasonably
harsh.1 No more is exigible.
There are two final points. First, the fact that the
sentencing court did not address the section 3553(a) factors one by
one in explicating its sentencing decision in no way undermines the
reasonableness of the sentence imposed. See United States v.
Dixon, 449 F.3d 194, 205 (1st Cir. 2006); United States v.
Scherrer, 444 F.3d 91, 94 (1st Cir. 2006) (en banc).
Second, the defendant devotes much of his brief to the
thesis that the district court should have extended him even
1
As the government has not cross-appealed, we need not
consider whether the sentence is unreasonably lenient.
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greater largesse because of the dubious constitutionality of his
earlier deportation proceeding. This contention is waived: the
transcript of the disposition hearing discloses that, instead of
asking the district court to consider his collateral attack on the
constitutionality of the original deportation proceeding, the
defendant told the court, through counsel, that he would not press
that argument but, rather, would "throw [himself] on the mercy of
the Court." That was a waiver, pure and simple.2 See United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). Unlike a
forfeited issue (which can be reviewed on appeal for plain error),
a waived issue cannot be reviewed at all. See id.We need go no further. For the reasons elucidated above,
we uphold the sentence. Our ruling is without prejudice, of
course, to the defendant's right, if he so elects, to raise an
ineffective assistance of counsel claim under 28 U.S.C. § 2255.
Affirmed.
2
We do not disparage the substance of this claim. Were it not
for the combination of three events — this waiver, the
unconditional guilty plea that preceded it, and the defendant's
failure to press an appeal of the original removal order to the
Board of Immigration Appeals — the result might well have been
different.
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