United States v. Sicairos , 601 F. App'x 752 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 1, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1460
(D.C. No. 1:14-CR-00076-JLK-4)
CRISTIAN RAZO SICAIROS, a/k/a (D. Colo.)
Cristian Sicairos Razo,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
Defendant-Appellant Cristian Razo Sicairos pled guilty to conspiracy to distribute
methamphetamine. He appeals his sentence.
At the sentencing hearing, the district court
(1) calculated his United States Sentencing Guidelines range as 188 to 235
months;
(2) varied downward the equivalent of two offense levels; and
(3) sentenced him to 188 months.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
ROA, Vol. III at 26-30. The court failed to calculate the post-variance Guidelines range
(which would have been 151 to 188 months) or explain the sentence imposed. Id. It then
entered a written judgment indicating the sentence was below the Guidelines range. See
ROA, Vol. I at 79, 80. Defense counsel did not object to the foregoing; our review is
therefore for plain error. United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).
Mr. Sicairos argues, and the Government agrees, that the sentence is procedurally
unreasonable under Gall v. United States, 552 U.S. 38 (2007), and constitutes plain error.
We agree. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we
vacate Mr. Sicairos’s sentence and remand for resentencing.1
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
1
At the sentencing hearing, the court and counsel for both sides seemed to
understand that a prospective amendment to the United States Sentencing Guideline
(“U.S.S.G.”) § 2D1.1 would have reduced the defendant’s base offense level by two,
and recognized the amendment would not be effective until November 1, 2014, the
next month. ROA, Vol. III at 23-24, 27. We note that the Probation Office
determined Mr. Sicairos was responsible for 11.59 kilograms of “ice.” ROA, Vol. II
at 10. This amount would appear to result in the same base offense level—38—both
before and after the 2014 amendment to U.S.S.G. § 2D.1.1.
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