United States v. Leyva-Ortiz ( 2009 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    May 21, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                 No. 07-2229
    (D. N.M.)
    JOSE LUIS LEYVA-ORTIZ,                       (D.C. No. CR-07-997-JC)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before HENRY, Chief Judge, and MCKAY and McCONNELL, Circuit Judges.
    After Jose Luis Leyva-Ortiz pleaded guilty to violating 
    8 U.S.C. § 1326
    (a)
    and (b) by re-entering the United States after having been deported, the district
    court sentenced him to a term of forty-six months’ imprisonment. Mr. Leyva-
    Ortiz now contends that the district court made two procedural errors in
    determining his sentence: (1) it improperly afforded a presumption of
    reasonableness to a within-Guidelines sentence; and (2) it failed to adequately
    *
    This order and judgment is not binding precedent except under the doctrines of
    law of the case, res judicata and collateral estoppel. It may be cited, however, for
    its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    explain the sentence that it imposed. He also argues that (3) the sentence was
    substantively unreasonable.
    We are not persuaded that the alleged procedural errors warrant
    resentencing. The district court did err in applying a presumption of
    reasonableness to a within-Guideline sentence (understandably, given the shifting
    sands of sentencing jurisprudence over the past few years). However, Mr.
    Leyva-Ortiz did not object to the presumption in the district court proceedings,
    and he has failed to establish that he is entitled to resentencing under the plain
    error doctrine. Moreover, the district court’s explanation of the reasons for the
    sentence, although brief, was sufficient under our precedent.
    Nevertheless, as to substantive reasonableness, we hold that in light of
    Supreme Court and Tenth Circuit decisions issued after the district court
    sentenced Mr. Leyva-Ortiz on August 23, 2007, the district court may not have
    understood the scope of its discretion to vary from the Guidelines. For that
    reason, we remand for resentencing.
    I. BACKGROUND
    On April 3, 2007, United States Border Patrol agents arrested Mr. Leyva-
    Ortiz near the Columbus, New Mexico Port of Entry. Mr. Leyva-Ortiz admitted
    that he was a Mexican citizen. Immigration records established that he had been
    previously deported on March 1, 2007.
    -2-
    Prior to his deportation, Mr. Leyva-Ortiz was convicted in a New Mexico
    state court of two counts of aggravated assault with a deadly weapon (a fourth-
    degree felony) and one count of battery with a deadly weapon (a third-degree
    felony). The state court sentenced him to six years’ incarceration with five years
    suspended.
    In May 2007, Mr. Leyva-Ortiz pleaded guilty to an information alleging
    that he had reentered the United States after having been convicted of a felony, in
    violation of 
    8 U.S.C. § 1326
    (a) and (b). Under the Guidelines, the district court
    calculated the offense level at twenty-one, applying a base offense level of eight,
    a sixteen-point enhancement under USSG § 2L1.2(b)(1)(A)(ii) (because Mr.
    Leyva-Ortiz had been convicted of “a felony that is . . . a crime of violence”), and
    a three-point reduction for acceptance of responsibility. The court placed Mr.
    Leyva-Ortiz in criminal history category III, resulting in a Guideline range of 46
    to 57 months.
    Mr. Leyva-Ortiz then filed a sentencing memorandum seeking a variance
    from the advisory guideline range. He first argued that the sixteen-level
    enhancement authorized by § 2L1.2(b)(1)(A)(ii) is unreasonable because it results
    in an offense level for unlawful reentry crimes that is equal to or greater than the
    offense level for many violent crimes. Second, he contended that this provision
    unreasonably “double counts prior convictions by including them in both [a
    -3-
    defendant’s] criminal history category and offense level.” Rec. vol. I, doc. 17, at
    4 (Sentencing Memorandum, filed Aug. 2, 2007).
    Mr. Leyva-Ortiz also argued that the sentencing factors set forth in 
    18 U.S.C. § 3553
     supported a sentence considerably lower than the advisory
    Guideline range. In his view, the unlawful reentry offense was a nonviolent
    crime because the “offense conduct itself is akin to trespass.” 
    Id. at 11
    .
    Moreover, his 2006 convictions were the result of a single incident. Because he
    had no other convictions, he maintained, an 18-to-24 month sentence would
    sufficiently protect the public, deter him from committing other crimes, and
    promote respect for the law.
    At the sentencing hearing, the district court heard arguments regarding the
    requested downward variance. Mr. Levya-Ortiz’s counsel contended that the case
    “cries out for a Booker type variance” and asked the court to impose a sentence of
    18 months. Rec. vol. III, at 2 (Tr. of Sentencing Hr’g on Aug. 23, 2007).
    The district court rejected Mr. Leyva-Ortiz’s request:
    The Court has reviewed the presentence report factual findings
    and has considered the sentencing guideline applications and the factors
    set forth in 18 United States Code [§] 3553(a)(1) through (7).
    I’ve thoroughly considered defendant’s sentencing memorandum
    and find nothing in there to convince me that the presumptively
    reasonable guideline is anything other than an accurate reflection of the
    factors I am required to consider.
    The offense level is 21. The criminal history category is III. The
    guideline imprisonment range is 46 to 57 months.
    -4-
    The Court notes the defendant reentered the United States after
    being removed subsequent to a conviction for an aggravated felony.
    Id. at 3-4 (emphasis added). Accordingly, the court imposed a sentence of 46
    months’ imprisonment.
    II. DISCUSSION
    On appeal, Mr. Leyva-Ortiz raises two procedural challenges: (1) that the
    district court erred in affording a presumption of reasonableness to a within-
    Guideline sentence; and (2) that it failed to provide an adequate explanation for
    the 46-month sentence that it imposed. He then argues that the sentence is
    substantively unreasonable.
    In reviewing sentencing challenges, we generally apply a deferential abuse
    of discretion standard. United States v. Parker, 
    551 F.3d 1167
    , 1173 (10th Cir.
    2008). The review “consists of component parts, affording greater deference to
    findings of fact (clearly erroneous) than to conclusions of law (erroneous).”
    United States v. McComb, 
    519 F.3d 1049
    , 1054 n.4 (10th Cir. 2007), cert. denied,
    
    128 S. Ct. 1917
     (2008). When a defendant fails to preserve an objection to the
    procedural reasonableness of his sentence, we generally review only for plain
    error. United States v. Mendoza, 
    543 F.3d 1186
    , 1190-91 (10th Cir. 2008)
    (discussing plain error review). In such instances, resentencing is warranted only
    if (1) there was an error; (2) that was plain; (3) that affected substantial rights;
    -5-
    and (4) that “seriously affects the fairness, integrity, or public reputation of
    judicial proceedings.” 
    Id. at 1190
    .
    A.     Because Mr. Leyva-Ortiz did not object to the district court’s
    application of a presumption of reasonableness to a within-Guideline
    sentence, he is not entitled to resentencing under the plain error
    doctrine.
    The district court stated at sentencing that it had “thoroughly considered
    defendant’s sentencing memorandum and [found] nothing in there to convince me
    that the presumptively reasonable guideline is anything other than an accurate
    reflection of the factors I am required to consider.” Rec. vol. III, at 3-4
    (emphasis added). The government concedes, as it must, that this statement was
    erroneous: a district court may not afford a presumption of reasonableness to a
    within-Guideline sentence. See United States v. Conlan, 
    500 F.3d 1167
    , 1169
    (10th Cir. 2007) (“Rita [v. United States, 
    551 U.S. 338
     (2007)] thus makes clear
    that the presumption of reasonableness applies only at the appellate level.”).
    However, during the district court proceedings, Mr. Leyva-Ortiz did not object to
    the application of this presumption. “Ordinarily, . . . . [w]hen the party alleging
    error [in the district court’s sentencing procedure] has not objected in the court
    below, . . . we review only for plain error.” Mendoza, 
    543 F.3d at 1190
    .
    Mr. Leyva-Ortiz does not contend that he has established the elements of
    plain error. Instead, he maintains that the plain error standard is inapplicable in
    light of the Supreme Court’s decision in Gall v. United States, 
    128 S. Ct. 586
    -6-
    (2007). In his view, “[Gall] set out the standards for review by the appellate
    courts. . . . [T]he Supreme Court held that there is a single standard for review of
    sentences on appeal: [a]buse of discretion.” Aplt’s Reply Br. at 2-3 (citing Gall,
    
    128 S. Ct. at 597
    ). According to Mr. Leyva-Ortiz, Gall holds that a defendant
    need no longer object to sentencing procedures in order to avoid the deferential
    plain error standard of review.
    We disagree with Mr. Leyva-Ortiz’s reading of Gall. The Supreme Court’s
    decision holds that “[r]egardless of whether the sentence imposed is inside or
    outside the Guidelines range, the appellate court must review the sentence under
    an abuse-of-discretion standard.” Gall, 
    128 S. Ct. at 597
    . However, Gall does
    not address the extent to which various objections to sentencing rulings and
    procedures must be preserved in order for the defendant to avoid plain error
    review.
    Moreover, contrary to Mr. Leyva-Ortiz’s argument, in post-Gall cases, this
    circuit has continued to apply the principle that objections to the procedures used
    in determining a sentence must be made before the district court and that, if no
    objections are made, our review is only for plain error. See, e.g., United States v.
    Martinez-Barragan, 
    545 F.3d 894
    , 899 (10th Cir. 2008) (“As a general rule, when
    a defendant fails to preserve an objection to the procedural reasonableness of his
    sentence, we review only for plain error.” citing United States v. Romero, 491
    -7-
    F.3d 1173, 1176-77 (10th Cir.), cert. denied, 
    128 S. Ct. 319
     (2007)); see also
    Mendoza, 
    543 F.3d at 1190
     (same).
    Accordingly, we may review the district court’s application of a
    presumption of reasonableness of a within-Guideline sentence only for plain
    error. Under this standard, Mr. Leyva-Ortiz is not entitled to relief. He does not
    argue that he can establish the required elements, and, on this record, we see no
    indication that the district court’s statement that it afforded a presumption of
    reasonableness to a within-Guideline sentence affected either his substantial
    rights or the fairness, integrity, or public reputation of judicial proceedings.
    Mendoza, 
    543 F.3d at 1190-91
    .
    B.    The district court did not commit procedural error in explaining the
    reasons for the 46-month sentence.
    Mr. Leyva-Ortiz also argues that the district court committed a second
    procedural error by failing to provide an adequate explanation for the 46-month
    sentence. Again, Mr. Levya-Ortiz did not raise this procedural objection in the
    district court, and we therefore review only for plain error. See United States v.
    Ruiz-Terrazas, 
    477 F.3d 1196
    , 1199 (10th Cir. 2007) (reviewing the district
    court’s alleged failure to provide specific reasons for a sentence for plain error).
    Mr. Leyva-Ortiz’s arguments do not persuade. In our view, in explaining
    the reasons for his sentence, the district court did not commit error at all, much
    -8-
    less error that warrants relief under the plain error doctrine. That conclusion
    follows from the applicable statutes and our precedent.
    In particular, 
    18 U.S.C. § 3553
    (c)(1) provides that, when the district court
    imposes a within-Guidelines sentence, it must state “the reason for imposing a
    sentence at a particular point within the range.” 
    18 U.S.C. § 3553
    (c)(1). As a
    general rule, Ҥ 3553(c)(1) does not impose upon district courts a duty to engage
    in . . . particularized analysis . . . .” United States v. A.B., 
    529 F.3d 1275
    , 1289-
    90 (10th Cir.) (collecting cases), cert. denied, 
    129 S. Ct. 440
     (2008). Instead, the
    statute requires only a “general statement noting the appropriate guideline range
    and how it was calculated.” United States v. Cereceres-Zavala, 
    499 F.3d 1211
    ,
    1217 (10th Cir. 2007) (quoting Ruiz-Terrazas, 
    477 F.3d at 1202
    ). We do not
    require “a ritualistic incantation” or any “magic words” to show us that the
    district court fulfilled its responsibility to consider the relevant sentencing
    factors. United States v. Lopez-Flores, 
    444 F.3d 1218
    , 1222 (10th Cir. 2006)
    (citation omitted).
    In contrast, sentences outside the Guideline range require a more specific
    explanation. In Ruiz-Terrazas, we observed that, under § 3553(c)(2), the
    sentencing court must state “the specific reason for the imposition of a sentence
    [outside the Guideline range] . . . which reasons must also be stated with
    specificity in the written order of judgment and commitment.” Id.
    -9-
    But, even when a non-Guideline sentence is requested, the district court’s
    explanation of the reasons for its decision need not be extensive. For example, in
    Ruiz-Terrazas, 
    477 F.3d at 1198
    , the defendant argued for a below-Guideline
    sentence for an unlawful reentry conviction under 
    8 U.S.C. § 1326
    (a)(1), (a)(2),
    and (b)(2) on the grounds that the applicable Guideline provision treated the
    offense as harshly as more serious crimes. The district court rejected that
    argument, explaining that it had “reviewed the presentence report[’s] factual
    findings[,] . . . considered the guideline applications[,] and the factors set forth in
    18 United States Code [§] 3553(a)(1) through (7)” and noting that “the defendant
    reentered the United States subsequent to being convicted of an aggravated
    felony.” Id. at 1199. The court added that the sentence recommended by the
    Guidelines was reasonable. However, it did not address the defendant’s specific
    arguments for a downward variance.
    In our view, that explanation was sufficient. The record in Ruiz-Terrazas
    established that the district court had entertained the defendant’s downward
    variance arguments at length, indicated on the record that it had considered the §
    3553(a) factors, and “proceeded to explain its reliance on the range suggested by
    the Guidelines.” 
    477 F.3d at 1203
    .
    Here, as in Ruiz-Terrazas, the district court heard arguments at the
    sentencing hearing regarding Mr. Leyva-Ortiz’s request for a downward variance.
    The court explained that it had read his sentencing memorandum and that it found
    -10-
    nothing in it to support a sentence below the Guideline range. The court adopted
    the presentence report’s calculation of Mr. Leyva-Ortiz’s offense level and
    criminal history and noted that he had reentered the United States after being
    removed subsequent to a conviction for an aggravated felony. “[N]o more is
    required by statute or our precedents.” Ruiz-Terrazas, 
    477 F.3d at 1203
    .
    C.    Because the record does not establish that the district court
    understood its discretion to impose a non-Guidelines sentence, we
    remand the case for further proceedings.
    Finally, Mr. Leyva-Ortiz argues that his 46-month sentence is
    substantively unreasonable. He repeats the contentions he made to the district
    court: (1) that USSG § 2L1.2’s sixteen-level enhancement is unreasonable
    because it establishes an offense level for a nonviolent offense that is equal to or
    greater than the levels for many violent offenses and because it double counts
    prior convictions by including them in the calculation of defendants’ criminal
    histories and offense levels; and (2) that the § 3553(a) factors warrant a below-
    Guidelines sentence.
    Mr. Leyva-Ortiz was sentenced on August 23, 2007. At that time, the
    district court’s authority to impose a non-Guideline sentence based on a policy
    disagreement with Guidelines was quite limited: we had stated that “a sentencing
    court may not ignore the Guidelines calculation for the ordinary defendant and
    instead adopt its own sentencing philosophy.” United States v. Garcia-Lara, 499
    -11-
    F.3d 1133, 1141 (10th Cir. 2007) (citing United States v. Hildreth, 
    485 F.3d 1120
    ,
    1129 (10th Cir. 2007)), vacated, 
    128 S. Ct. 2089
     (2008). However, subsequent
    decisions have expanded the district court’s discretion. In light of those
    decisions, we conclude that the case should be remanded for further proceedings.
    In particular, in December 2007, the Supreme Court issued Gall and
    Kimbrough v. United States, 
    128 S. Ct. 558
     (2007). In Gall, the Court reinstated
    a variance imposed by a district court, holding that the Eighth Circuit had failed
    to employ an abuse of discretion standard. In Kimbrough, it held that the district
    court had discretion to refuse to adopt the Guidelines’ 100:1 crack-to-powder-
    cocaine sentencing ratio. See 128 S. Ct. at 575.
    The Kimbrough Court explained that, in the ordinary case, the Guidelines’
    sentencing range will “reflect a rough approximation of sentences that might
    achieve § 3553(a)’s objectives.” Id. at 574 (quoting Rita v. United States, 
    127 S. Ct. 2456
    , 2465 (2007)). On the other hand, “[t]he sentencing judge . . . has
    greater familiarity with . . . the individual case and the individual defendant
    before him than the Commission or the appeals court.” 
    Id.
     (quoting Rita, 
    127 S. Ct. at 2469
    ). The sentencing judge is thus “‘in a superior position to find facts
    and judge their import under § [3553](a)’ in each particular case.” Id. (quoting
    Gall, 
    128 S.Ct. at 597
    ) (other internal quotation marks omitted). Thus, “[i]n light
    of these discrete institutional strengths, a district court’s decision to vary from the
    advisory Guidelines may attract greatest respect when the sentencing judge finds
    -12-
    a particular case ‘outside the ‘heartland’ to which the Commission intends
    individual Guidelines to apply.’” Id. at 574-75 (quoting Rita, 
    127 S. Ct., at 2465
    ). Nevertheless, “closer [appellate] review may be in order when the
    sentencing judge varies from the Guidelines based solely on the judge’s view that
    the Guidelines range fails properly to reflect § 3553(a) considerations even in a
    mine-run case.” Id. (internal quotation marks omitted).
    In considering the crack cocaine Guidelines, the Kimbrough Court further
    observed that there was “no occasion for elaborative discussion of this matter
    because those Guidelines do not exemplify the Commission’s exercise of its
    characteristic institutional role.” Id. Instead, in formulating those provisions, the
    Commission looked to the mandatory minimum sentences set forth in a 1986
    statute and “‘did not take account of empirical data and national experience.’” Id.
    (quoting United States v. Pruitt, 
    502 F.3d 1154
    , 1171 (10th Cir. 2007)
    (McConnell, J., concurring)). Additionally, the Sentencing Commission itself had
    unsuccessfully recommended revising the crack cocaine provisions of the
    Guidelines because they did not reflect the purposes of sentencing set forth in §
    3553(a).
    Examining Gall and Kimbrough, we have concluded that those cases cannot
    be reconciled with prior circuit cases regarding non-Guideline sentences. See
    United States v. Smart, 
    518 F.3d 800
    , 806-08 (10th Cir. 2008) (discussing the
    abrogation of Garcia-Lara, 
    499 F.3d at 1140-41
    ). Now, “[w]e may not conclude
    -13-
    that simply by diverging from the Guidelines, a district court has disregarded the
    policy considerations which led the Commission to create a particular Guideline.”
    Id. at 809 (emphasis added). The district courts are authorized to “contextually
    evaluate each § 3553(a) factor, including those factors that the relevant
    guideline(s) already purport to take into account, even if the facts of the case are
    less than extraordinary.” Id. at 808. A district court does not abuse its discretion
    merely by balancing the Guidelines with the § 3553(a) factors, striking a different
    balance than the Guidelines and imposing a variance. Id. at 809. Nevertheless,
    following the Supreme Court’s observation in Kimbrough, we have recognized
    that “in a mine-run case” a “closer review” may be warranted when the district
    court varies from the Guidelines solely because the Guidelines range fails
    properly to reflect § 3553(a) considerations. Id. at 808 n.5 (quoting Kimbrough,
    
    128 S. Ct. at 575
    ).
    These developments have led this court, as well as others, to remand cases
    for reconsideration of a defendant’s request for a downward variance when
    (a) the defendant was sentenced before the Supreme Court issued Gall and
    Kimbrough; (b) a direct appeal of the sentence had not been finally resolved when
    those opinions were issued; and (c) the record indicated that the district court may
    not have fully comprehended its discretion to impose a non-Guidelines sentence,
    See, e.g., United States v. Trotter, 
    518 F.3d 773
    , 774 (10th Cir. 2008) (remanding
    to the district court “to clarify why it rejected [the defendant’s] request for a
    -14-
    variance based on the crack/powder disparity” and stating that, if the court
    “rejected this request based on a belief that it did not have discretion to
    specifically consider whether the disparity resulted in a disproportionately harsh
    sentence, [it] is to conduct resentencing in light of Kimbrough”); see also United
    States v. Vanvliet, 
    542 F.3d 259
    , 271 (1st Cir. 2008) (observing that “the
    government correctly points out that [the defendant’s] sentence must be vacated
    in light of Kimbrough” when the district court expressed disagreement with “the
    Guidelines policy to enhance a sentence for his use of a computer” but when the
    district court further stated that a disagreement with a Guidelines policy would
    not support a below-Guidelines sentence and adding that “[Kimbrough] was not
    available to the district court when it made its sentencing decision”); United
    States v. Padilla, 
    520 F.3d 766
    , 774 (7th Cir. 2008) (stating that “[b]ecause we
    cannot ascertain with any exacting degree of certainty whether the sentencing
    judge would have imposed the same term of incarceration in the wake of
    Kimbrough, and because we find that the issue was adequately preserved, a
    remand is appropriate”).
    Here, when it sentenced Mr. Leyva-Ortiz, the district court did not have the
    benefit of Gall, Kimbrough, or this circuit’s decision in Smart, which read those
    Supreme Court decisions to expand the discretion to impose a non-Guidelines
    sentence “even if the facts are less than extraordinary.” Smart, 
    518 F.3d at 808
    .
    Moreover, as we have noted, the district court appears to have improperly
    -15-
    afforded a presumption of reasonableness to a within-Guidelines sentence. Thus,
    when Mr. Leyva-Ortiz argued in his sentencing memorandum that USSG §
    2L1.2’s 16-level enhancement was unreasonable, the district court may not have
    fully understood its discretion to grant a downward variance.
    III. CONCLUSION
    Accordingly, we conclude that a remand is warranted so that the district
    court may reconsider Mr. Leyva-Ortiz’s request for a downward variance in light
    of those recent decisions. On remand the district court should exercise its
    discretion to balance the § 3553(a) factors and the Guidelines. See Smart, 
    518 F. 3d at 807-09
    .
    Following the decisions of our sister circuits, “[w]e signal no criticism of
    the able and conscientious district judge. Nor do we express any view as to what
    sentence [Mr. Leyva-Ortiz] should receive on remand or whether it should fall
    within or outside his Guidelines range.” United States v. Jones, 
    531 F.3d 163
    ,
    182 (2d Cir. 2008); see United States v. Boardman, 
    528 F.3d 86
    , 88 (1st Cir.
    2008) (“Nothing in our decision is intended to suggest that a lesser sentence be
    imposed . . . .”). On remand, the district court should choose an appropriate
    sentence and explain the reasons for it.
    -16-
    We therefore REMAND this case to the district court with instructions to
    resentence Mr. Leyva-Ortiz after considering his request for a below Guideline
    sentence in a manner consistent with this order and judgment.
    Entered for the Court,
    Robert H. Henry
    Chief Judge
    -17-