United States v. Solano-Lechuga , 358 F. App'x 16 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 22, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-1056
v.
(D.C. No. 1:08-CR-00221-MSK-1)
(D. Colo.)
ARMANDO SOLANO-LECHUGA,
a/k/a Armando Solano,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.
Mr. Solano-Lechuga pled guilty to re-entering the United States without
permission of the Attorney General after a previous deportation, in violation of 8
U.S.C. § 1326(a), (b)(2). On appeal, he claims that his sentence is substantively
unreasonable. We disagree, and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
The Pre-Sentence Report (“PSR”), to which Mr. Solano-Lechuga did not
object, placed his total offense level at 17 and his criminal history category at II,
for a resulting guideline range of 27-33 months. Mr. Solano-Lechuga filed a
motion seeking a variance from the guideline-recommended sentence. His motion
did not challenge the calculation of the guidelines, but instead argued that the
guidelines and applicable law were “unjust” as applied to him. See Aplt. Br. at
10. The district court acknowledged that his motion may have some merit from a
policy standpoint, but the court denied the motion and imposed a within-
guidelines sentence of twenty-seven months after examining the case in light of
Mr. Solano-Lechuga’s extensive criminal history. In so doing, the court
observed:
The total number of criminal history points is two, and that puts the
defendant in Criminal History Category II. However, this calculation
does not reflect the entirety of the defendant’s criminal history.
There are a number of convictions for which he receives no credit.
His first conviction was in 1986 at age 27. It was a felony
conviction for possession of marijuana for sale. This was followed
by a conviction at age 31 in 1990 of third-degree assault. This was
followed by a third-degree assault conviction in 1991, when the
defendant was 32. And this was followed by a motor vehicle
conviction, operating a vehicle without insurance, in 1992. In 1993,
the defendant was convicted of speeding 35-30–oh, 35 miles an hour
in a 30-mile an hour zone; and in 1994, he was convicted of being in
possession of marijuana, a felony conviction. In 19[9]5, he was
convicted of failure to present proof of insurance. In that same year,
he was convicted of driving under the influence. In 1996, he was
convicted of exceeding a reasonable and prudent speed. In 1996, he
was convicted of another felony, possession of 8 ounces of
marijuana.
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Feb. 2, 2009 Sentencing Transcript at 4-5.
The parties dispute the standard of review applicable to a portion of Mr.
Solano-Lechuga’s claims. Although they agree that an abuse of discretion
standard adheres to our review of the substantive reasonableness of Mr. Solano-
Lechuga’s sentence, the government contends that Mr. Solano-Lechuga’s brief
contains two procedural reasonableness challenges mistitled as “substantive.” See
Aple. Br. at 17. The government asserts that a heightened plain-error standard
applies to Mr. Solano-Lechuga’s challenges to the district court’s failure to
consider the presence of “fast-track” programs and in failing to consider the
“affect (sic) of deportation programs.” See id. at 17, 29. We need not engage in
an intense standard of review inquiry, however, because Mr. Solano-Lechuga’s
claims fail even under the more liberal abuse-of-discretion standard.
When we review the reasonableness of a sentence, our first step is
generally to “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
(2007). But Mr. Solano-Lechuga concedes he raised only a substantive
reasonableness challenge in the district court below and contends he challenges
only the substantive reasonableness of his sentence now. In light of Mr. Solano-
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Lechuga’s concession that no procedural reasonableness challenge has been made,
we apply a presumption of reasonableness to Mr. Solano-Lechuga’s within-
guidelines sentence. See Rita v. United States, 551 U.S. 338 (2007); United
States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). A defendant may rebut
this presumption by demonstrating that the sentence is unreasonable in light of
the other sentencing factors laid out in § 3553(a).
Mr. Solano-Lechuga asserts no specific challenge to the district court’s
application of the sentencing factors in § 3553(a); rather, he argues that given his
“unique circumstances” and the “structural defects marring sentencing in this area
generally (mainly, the unequal distribution of fast track) and U.S.S.G. §
2L1.2(b)(1)(B) in particular (its failure to make just and logical distinctions
among types and quantities of drugs),” he is entitled to a downward variance. See
Aplt. Br. at 12. More specifically, he contends that in light of his status as a
“fully assimilated American,” he will “experience the effects of . . . deportation
more harshly than other offenders in his shoes.” Id. at 10-11.
To be sure, “[r]easonable people differ on how lenient or harsh sentences
should be, both in general and for particular crimes and particular types of
offenders.” United States v. Wittig, 528 F.3d 1280, 1289 (10th Cir. 2008) (Hartz,
J., concurring). Nevertheless, we discern no abuse of discretion in the district
court’s application of the advisory sentencing guidelines and its adherence to the
laws applicable to this case. We have upheld the use of fast-track sentencing in
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some districts but not others against challenges based on the resulting sentencing
disparities. See United States v. Martinez-Trujillo, 468 F.3d 1266, 1268 (10th
Cir. 2006). We will not revisit that issue here. Nor are we persuaded the
sentence was unreasonable because the district court declined to consider
favorably the less-serious type of drugs involved in Mr. Solano-Lechuga’s
criminal history or the impact on him of the deportation that will occur when he
finishes his sentence. The district court’s sentence was within “the bounds of
permissible choice, given the facts and the applicable law and therefore a proper
exercise of its discretion.” United States v. McComb, 519 F.3d 1049, 1053 (10th
Cir. 2007) (quotations omitted).
Accordingly, we AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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