United States v. Beltran-Lopez , 252 F. App'x 928 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
October 31, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 06-1530
(D.C. No. 06-cr-209-EW N)
ELADIO BELTRAN-LOPEZ, a/k/a (D . Colo.)
Eladio Lopez Beltran,
Defendant - Appellant.
OR DER AND JUDGM ENT *
Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.
Defendant-Appellant Eladio Beltran-Lopez appeals the 125-month sentence
the district court imposed for his conviction for unlawfully reentering the United
States, after having previously been deported and after a previous aggravated
felony conviction. Beltran-Lopez argues that his sentence is both procedurally
and substantively unreasonable. Having jurisdiction to consider his appeal
*
After examining the parties’ briefs and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we disagree and AFFIR M .
I. Background
A jury convicted Beltran-Lopez of unlawfully reentering the United States
after having previously been deported, in violation of 8 U.S.C. § 1326(a), and
after having previously been convicted of an aggravated felony, see id.§ 1326(b). 1 The presentence report (“PSR”), in calculating Beltran-Lopez’s
1
Section 1326(a) provides:
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order
of exclusion, deportation, or removal is outstanding, and
thereafter
(2) enters, attempts to enter, or is at any time found in, the
United States, unless (A ) prior to his reembarkation at a
place outside the United States from foreign contiguous
territory, the Attorney General has expressly consented to
such alien’s reapplying for admission; or (B) with respect
to an alien’s previously denied admission and removal,
unless such alien shall establish that he was not required
to obtain such advance consent under this chapter or any
prior Act
shall be fined under Title 18, or imprisoned not more than 2 years, or
both.
8 U.S.C. § 1326(b) increases the statutory maximum penalty for such an
offense from two to twenty years in prison if the defendant has had a prior
aggravated felony conviction: “Notwithstanding subsection (a) of this section, in the
case of any alien described in such subsection . . . whose removal was subsequent
to a conviction for commission of an aggravated felony, such alien shall be fined
(continued...)
2
offense level, started with a base offense level of eight, to which the PSR added
sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(i) because Beltran-Lopez had a
prior drug trafficking conviction— a 1988 California conviction for selling
marijuana, stemming from Beltran-Lopez’s involvement as the middleman in a
ten-dollar sale of marijuana to an undercover police officer. Section
2L1.2(b)(1)(A)(i) provides for this sixteen-level enhancement“[i]f the defendant
previously was deported, or unlawfully remained in the United States, after . . . a
conviction for a felony that is . . . a drug trafficking offense for which the
sentence imposed exceeded 13 months.” 2 Although the California court originally
1
(...continued)
under Title 18, imprisoned not more than 20 years, or both.” 8 U.S.C. § 1326(b)(2).
In this case, the G overnment charged that Beltran-Lopez had three prior aggravated
felony convictions: (1) a California conviction for selling marijuana; 2) a California
conviction for involuntary manslaughter; and 3) a California conviction for
manufacturing deceptive identification documents.
2
The PSR used the 2005 sentencing guidelines to calculate Beltran-Lopez’s
advisory sentencing range. That version of § 2L1.2 provides:
Unlaw fully Entering or Remaining in the United States
(a) Base Offense Level: 8
(b) Specific O ffense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or
unlawfully remained in the United States,
after —
(continued...)
3
sentenced Beltran-Lopez to 240 days in jail and three years’ probation for this
drug trafficking offense, his probation was later revoked when Beltran-Lopez was
convicted of involuntary manslaughter in 1992. 3 As a result of the probation
revocation, a California court sentenced Beltran-Lopez to two years in prison on
the drug trafficking conviction, to run concurrent with his involuntary
2
(...continued)
(A) a conviction for a felony that is (i) a drug
trafficking offense for which the sentence
imposed exceeded 13 months; (ii) a crime of
violence; (iii) a firearms offense; (iv) a child
pornography offense; (v) a national security
or terrorism offense; (vi) a human trafficking
offense; or (vii) an alien smuggling offense,
increase by 16 levels;
(B) a conviction for a felony drug trafficking
offense for which the sentence imposed w as
13 months or less, increase by 12 levels;
(C) a conviction for an aggravated felony,
increase by 8 levels;
(D) a conviction for any other felony,
increase by 4 levels; or
(E) three or m ore convictions for
misdem eanors that are crimes of violence or
drug trafficking offenses, increase by 4
levels.
3
The PSR indicates that Beltran-Lopez pleaded nolo contendere to the drug
trafficking offense in 1988. Because he failed to appear again in court on this
matter, he was not sentenced on the drug trafficking conviction until 1990, after
having been arrested on traffic charges. Therefore, he remained on probation at
the time of his 1992 involuntary manslaughter conviction.
4
manslaughter conviction. 4
W ith the sixteen-level enhancement under § 2L1.2(b)(1)(A)(i),
Beltran-Lopez’s total offense level was twenty-four. Combined with his criminal
history category VI, this offense level produced an advisory guideline range of
between 100 and 125 months. Beltran-Lopez does not challenge the accuracy of
these calculations.
At sentencing, however, Beltran-Lopez requested a downward variance to a
seventy-seven-month sentence, arguing the sixteen-level enhancement under
§ 2L1.2(b)(1)(A)(i) overstated the seriousness of his prior drug trafficking offense
and produced an unwarranted sentencing disparity between his sentence and the
sentences of those defendants whose prior drug trafficking convictions were for
much more serious conduct. The district court implicitly rejected the requested
variance and instead imposed a sentence at the top of the advisory guideline
range, 125 months. Beltran-Lopez appeals from that sentence.
II. M erits
W e review the District Court’s sentencing determination under
a reasonableness standard, which is guided by the statutory factors
delineated in 18 U.S.C. § 3553(a). Reasonableness review has both
procedural and substantive components. In other w ords, the
4
Section 2L1.2(b)(1)(A)(i) provides for a sixteen-level enhancement based
upon “a conviction for a felony that is (i) a drug trafficking offense for which the
sentence imposed exceeded 13 months.” “The length of the sentence imposed
includes any term or imprisonment given upon revocation of probation, parole, or
supervised release.” U .S.S.G. § 2L1.2, app. n. 1(B)(vii).
5
reasonableness standard set forth in B ooker 5 necessarily encompasses
both the reasonableness of the length of the sentence, as well as the
method by which the sentence was calculated.
United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir. 2007) (citations,
quotations omitted; footnote added). The factors in 18 U.S.C. § 3553(a) that
guide the sentencing determination include the
(1) offense and offender characteristics; (2) the need for a sentence to
reflect the basic aims of sentencing, namely (a) “just punishment”
(retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation;
(3) the sentences legally available; (4) the Sentencing Guidelines;
(5) Sentencing Commission policy statements; (6) the need to avoid
unwarranted disparities; and (7) the need for restitution. The provision
also tells the sentencing judge to “impose a sentence sufficient, but not
greater than necessary, to comply with” the basic aims of sentencing as
set out above.
Rita v. United States, 127 S. Ct. 2456, 2463 (2007) (quoting 18 U.S.C.
§ 3553(a)). In this appeal, Beltran-Lopez asserts his sentence is both procedurally
and substantively unreasonable.
A. Procedural unreasonableness
“To impose a procedurally reasonable sentence, a district court must
calculate the proper advisory Guidelines range and apply the factors set forth in
§ 3553(a).” Hildreth, 485 F.3d at 1127 (quotation omitted). Although
Beltran-Lopez does not challenge the calculation of his advisory sentencing range
under the guidelines, he asserts that his sentence is procedurally unreasonable in
5
United States v. Booker, 543 U.S. 220 (2005).
6
two other w ays: 1) the district court did not adequately consider Beltran-Lopez’s
argument, made under 18 U.S.C. § 3553(a)(6), for a downward variance in order
to avoid an unwarranted sentencing disparity; and 2) the district court erred in
treating the advisory guideline range as presumptively reasonable.
1. Request for dow nw ard variance to avoid unw arranted
sentencing disparity
a. Standard or review
Beltran-Lopez argues that the district court erred in failing to explain why
it rejected his request for a downward variance under 18 U.S.C. § 3553(a)(6). 6
Although Beltran-Lopez “argued for a sentence below the [advisory] Guidelines
range at the sentencing hearing, he did not raise the procedural objection he now
asserts”— that the sentencing court failed to explain why it rejected his argument
for a downward variance— “after the district court imposed sentence.” United
States v. Romero, 491 F.3d 1173, 1174, 1176 (10th Cir. 2007), cert. denied, 2007
W L 2300385 (U.S. Oct. 1, 2007) (N o. 07-5790). W e, therefore, review this
argument for plain error. See id. at 1174, 1177-78 (reviewing defendant’s
appellate argument that district court failed to address his request for a
below-guideline sentence for plain error when defendant did not object at the
6
Beltran-Lopez expressly requested a downward departure. But when, as
here, a defendant requests a below-guidelines sentence based upon the 18 U.S.C.
§ 3553(a) factors, we refer to that request as one seeking a downward variance.
See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007).
7
sentencing proceeding, after the court imposed a w ithin-guidelines sentence). 7
Beltran-Lopez, therefore, will be entitled to relief only if “there is (1) error,
(2) that is plain, (3) which affects substantial rights, and (4) w hich seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at
1178. It is Beltran-Lopez’s burden to show that he has satisfied this plain-error
standard. See id. at 1178-79.
b. M erits
Beltran-Lopez’s argument fails at the first plain-error inquiry because the
district court did not err in this case. Although 18 U.S.C. § 3553(c) requires the
court to “state in open court the reasons for its imposition of the particular
sentence,” that statutory provision “requires the court to provide only a general
statement” of those reasons. United States v. Cereceres-Zavala, 499 F.3d 1211,
1216-17 (10th Cir. 2007) (quotations omitted); see also United States v.
7
Beltran-Lopez argues that plain-error review is “inappropriate, given the
nature of the procedural error in this case. W hen both written and oral arguments
are made in the district court, counsel should not be required to object when the
judge, as in this case, does not address such arguments prior to imposing
sentence.” This panel, however, is bound by prior Tenth Circuit precedent,
“absent en banc reconsideration or a superseding contrary decision by the
Supreme Court.” U nited States v. Ladeaux, 454 F.3d 1107, 1111 n.4 (10th Cir.
2006) (quotation omitted). Further, this court has recognized there are benefits to
requiring that the defendant object to the procedure by which the district court
imposed a sentence, immediately after the court imposes that sentence. See
Romero, 491 F.3d at 1177-78. Those benefits include the fact that “a timely
objection to the method used to calculate the sentence can alert the district court
and opposing counsel, so that a potential error can be corrected, obviating any
need for an appeal.” Id. at 1177 (quotation, alterations omitted).
8
Ruiz-Terrazas, 477 F.3d 1196, 1199, 1202 (10th Cir. 2007), cert. denied, 2007
W L 1579417 (U.S. Oct. 1, 2007) (No. 06-11540). “[T]his general statement need
involve no ritualistic incantation to establish consideration of a legal issue, nor do
we demand that the district court recite any magic w ords to prove that it
considered the various factors Congress instructed it to consider.” Ruiz-Terrazas,
477 F.3d at 1202 (quotation omitted). This is because we “traditionally presume”
that “trial judges . . . know the law and apply it in making their decisions.” Id. at
1201 (quotation omitted). W e will, therefore, only “step in and find error when
the record gives us reason to think that our ordinary . . . presumption that the
district court knew and applied the law is misplaced.” Id. at 1202; see also
United States v. Pruitt, No. 06-3152, 2007 W L 2430125, at *5 (10th Cir. Aug. 29,
2007) (on reh’g) (noting “we will not presume that the district court fulfilled its
duty [to consider 18 U.S.C. § 3553(a) factors] if the record provides no indication
that it did so and no clear explanation of the sentence imposed”). This is true
even when, as in this case, the district court did not expressly address a
defendant’s arguments for a below-guideline sentence. See Cereceres-Zavala,
499 F.3d at 1213, 1217-18; United States v. Jarrillo-Luna, 478 F.3d 1226, 1230
(10th Cir. 2007); Ruiz-Terrazas, 477 F.3d at 1199-1201.
There is nothing in the record in this case that suggests that the district
court did not consider the 18 U.S.C. § 3553(a) factors before imposing a
within-Guideline sentence. The district court entertained Beltran-Lopez’s
9
arguments for a downward variance, made both in writing before sentencing and
verbally during sentencing. See Ruiz-Terrazas, 477 F.3d at 1202-03 (considering
this factor in upholding procedure by which court imposed within-Guideline
sentence, despite defendant’s request for a below -guidelines sentence). The court
further indicated that it had considered the 18 U.S.C. § 3553(a) factors. In fact,
the sentencing court specifically focused on Beltran-Lopez’s history and
characteristics, id. § 3553(a)(1), addressing Beltran-Lopez’s extensive criminal
history in some detail, 8 as well as expressly mentioning the nature and
circumstances of the crime for which the court was imposing sentence, the kinds
of sentences available for this offense, the advisory guideline range, the need to
protect the public from future crimes Beltran-Lopez might comm it, and the need
to deter him, an offender who had three times entered the United States illegally,
twice after being deported, id. § 3553(a)(2). The court also explained the
8
The PSR indicated that, in addition to his 1988 California drug trafficking
conviction, Beltran-Lopez also had a 1992 California involuntary manslaughter
conviction, resulting from an incident where, during a holiday party for the
employees and friends of his “counterfeit identification ring,” he got into a
physical confrontation with one of his employees, knocked the employee to the
ground and kicked him in the head numerous times, inflicting injuries from which
the employee later died; a 1995 California conviction for battering his spouse; a
1997 California conviction for manufacturing deceptive identification documents;
and a 2004 Colorado conviction for possessing cocaine. Courts have revoked his
probation or suspended sentences on several different occasions. Beltran-Lopez
has also been convicted of numerous traffic infractions. He was deported in 1993
and again in 1998. He was most recently discovered unlawfully in the United
States when authorities apprehended him for cocaine possession.
10
guideline calculations underlying the advisory guideline range on which it relied.
Id. § 3553(a)(4); see Ruiz-Terrazas, 477 F.3d at 1203; see also Cereceres-Zavala,
499 F.3d at 1217 (concluding there was no error w here the district court cited to
the PSR’s calculations; noting “[c]ontext and the record make clear the district
court’s reasoning for rejecting [the defendant’s] arguments”) (quotation omitted).
The record reflects that the district court did not rely solely on the advisory
guideline range, but instead properly considered whether the 18 U.S.C. § 3553(a)
factors supported imposing a within-guideline sentence in this case. Therefore,
Beltran-Lopez has failed to establish that there was any procedural error in this
regard. See Cereceres-Zavala, 499 F.3d at 1217-18; Ruiz-Terrazas, 477 U.S. at
1200.
Even if we were to assume that in this case the district court’s failure to
explain why it rejected a downward variance was plain error, however, that error
did not affect Beltran-Lopez’s substantial rights. “For an error to have affected
substantial rights, the error must have been prejudicial: It must have affected the
outcome of the district court proceedings.” United States v. Bradford, 423 F.3d
1149, 1161 (10th Cir. 2005) (quotation omitted). Beltran-Lopez fails to explain
how the district court’s failure to explain why it rejected his argument for a
downward variance affected the outcome of this sentencing proceeding. See
Romero, 491 F.3d at 1179; see also Ruiz-Terrazas, 477 F.3d at 1203 (in dicta;
asking whether any error, resulting from the district court’s failure to explain,
11
with greater specificity, the sentence the court imposed, would have affected the
outcome of the sentencing proceeding).
2. Treating the advisory guidelines range as presumptively
reasonable
In a single statement made during the sentencing hearing, the district court
referred to the advisory guideline range calculated by the PSR as the
“presumptive imprisonment range.” Beltran-Lopez argues that the district court
erred procedurally by treating the advisory guidelines range as presumptively
reasonable.
a. Standard of review
Beltran-Lopez did not object, during sentencing, to the district court’s
reference to the advisory guideline range as the “presumptive imprisonment
range.” Therefore, this court would ordinarily review this argument for plain
error. See United States v. Begay, 470 F.3d 964, 976 (10th Cir. 2006), petition
for cert. granted, 2007 W L 1579420 (U.S. Sept. 25, 2007) (No. 06-11543); see
also United States v. Conlan, No. 06-1510, 2007 W L 2538047, at *3 (10th Cir.
Sept. 6, 2007) (considering whether to apply plain-error review to similar
argument, but concluding that the defendant in that case had adequately preserved
the issue during sentencing); cf. United States v. Chaheine, No. 07-2052, 2007
W L 2561822, at *2 (10th Cir. Sept. 5, 2007) (unpublished) (reviewing district
court’s error in referring to the sentence that the court imposed as reasonable for
12
plain error, w here defendant did not object to that reference during sentencing).
Nevertheless, we decline to do so in this particular case.
A month after Beltran-Lopez’s sentencing, this court recognized a similar
procedural sentencing error in Begay, 470 F.3d at 976-77. There, “we held it was
error for the district court to apply the appellate presumption of reasonableness to
the advisory guidelines when sentencing.” Conlan, 2007 W L 2538047, at *2.
Specifically, in Begay, the district court erred in concluding that it did not have
discretion to impose a sentence outside the advisory guideline range unless it first
determined that a within-guideline sentence would be unreasonable. See Begay,
470 F.3d at 975. W hile noting that we w ould ordinarily review such an error,
unobjected-to during sentencing, for plain error, this court declined to do so in
that case, concluding there was no reason for the defendant in that case to have
anticipated such an error. See id. at 976. That same reasoning would apply in
this case. There was no reason, before this court’s Begay decision, for
Beltran-Lopez to have objected to the district court’s reference to the advisory
guideline range as the “presumptive imprisonment range.” 9 Therefore, in this
case, we will review the district court’s legal conclusions de novo and any factual
findings for clear error. See United States v. Chavez-Calderon, 494 F.3d 1266,
9
The G overnment, arguing against Beltran-Lopez’s request for a downward
variance, also asserted that a w ithin-guidelines sentence would be presumptively
reasonable.
13
1268 (10th Cir. 2007).
b. M erits
The district court erred in treating the advisory guideline range as
presumptively reasonable. See Rita, 127 S. Ct. at 2465 (noting presumption of
reasonableness of a within-guidelines sentence “applies only on appellate
review”); see also Conlan, 2007 W L 2538047, at *3. But in this case that error
was harmless; that is, the “error did not affect the district court’s selection of the
sentence imposed.” U nited States v. Arrevalo-Olvera, 495 F.3d 1211, 1213 (10th
Cir. 2007) (quotation omitted); see Begay, 470 F.3d at 976-77 (reviewing similar
error for harmlessness under Fed. R. Crim. P. 52(a) 10 ).
It is clear that the district court in this case realized that it had discretion to
impose a lower sentence that still fell within the advisory guideline range, but the
court chose not to do so and instead imposed a sentence at the very top of that
advisory range. See Arrevalo-Olvera, 495 F.3d at 1213-14. The court further
indicated that it had been inclined to impose a sentence above that range, but
ultimately the court did not do so. Therefore, “we have no reason to think that,”
if this court remanded with instructions to resentence Beltran-Lopez without
treating the advisory guideline range as presumptively reasonable, “the district
10
Rule 52(a) provides that “[a]ny error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.” The G overnment bears
the burden of establishing, by a preponderance of the evidence, that an error is
harmless. See Arrevalo-O lvera, 495 F.3d at 1213.
14
court would impose a different sentence.” Id. at 1214 (quotation omitted). Under
these circumstances, the district court’s error in referring to the advisory range as
the “presumptive imprisonment range” was harmless.
3. Conclusion
For these reasons, the 125-month sentence the district court imposed was
not procedurally unreasonable.
B. Substantive unreasonableness
1. Standard of review
W e do not require that the defendant object at sentencing to the length of
the sentence after the district court imposes it, so long as he made the argument
for a lesser sentence before the district court sentenced him. See United States v.
M ancera-Perez, No. 06-2059, 2007 W L 2823479, at *2-*4 (10th Cir. Oct. 1,
2007). In this case, therefore, Beltran-Lopez adequately preserved this issue for
review. W e will review the length of his sentence for substantive reasonableness,
“a standard which the Supreme Court has recently equated with review for an
abuse of the sentencing court’s discretion.” Id. at *3 (citing Rita, 127 S. Ct. at
2465). “A sentence within the advisory Guidelines range,” such as the one
imposed in this case, “is afforded a rebuttable presumption of reasonableness
during the process of appellate review that either the defendant or the government
may rebut by demonstrating that the sentence is unreasonable when viewed
15
against the other factors delineated in § 3553(a).” 11 Id. (quotation omitted).
2. M erits
“Substantive reasonableness involves w hether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth
in 18 U .S.C. § 3553(a).” Conlan, 2007 W L 2538047, at *2. “In any given case
there could be a range of reasonable sentences that includes sentences both within
and outside the [advisory] Guidelines range.” Begay, 470 F.3d at 975. The
question presented here, then, is not whether the district court could have justified
a downward variance under the circumstances of this case, but rather whether the
125-month within-guidelines sentence that the court imposed was reasonable, see
Pruitt, 2007 W L 2430125, at *9.
Beltran-Lopez argues that his 125-month sentence is unreasonably long
because it creates an unwarranted sentencing disparity. See 18 U.S.C.
§ 3553(a)(6) (directing the sentencing court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct”). Beltran-Lopez asserts that he received the
same sentence, based upon his almost twenty-year-old California drug trafficking
conviction involving the sale of ten dollars of marijuana to an undercover police
11
Rita forecloses Beltran-Lopez’s argument that it is error for this court to
afford a within-guidelines sentence a rebuttable presumption of reasonableness on
appeal. See Rita, 127 S. Ct. at 2459, 2462-65.
16
officer, as a similarly convicted defendant who had a much more serious prior
drug trafficking conviction would have received. Beltran-Lopez specifically
points to three reasons why his sentence is thus unreasonable.
First, he argues that the conduct underlying this drug trafficking offense
was minor. W hile this court has suggested this might be a factor that induces a
district court to impose a sentence below the guideline range, see United States v.
Hernandez-Castillo, 449 F.3d 1127, 1132 (10th Cir. 2006), cert. denied, 127
S. Ct. 936 (2007); see also United States v. Trujillo-Terrazas, 405 F.3d 814,
819-20 (10th Cir. 2005), this does not make the within-guidelines sentence
imposed in this case unreasonable.
Second, Beltran-Lopez points to the fact that the California court sentenced
him to only 204 days in jail and three years’ probation on the drug trafficking
offense. He contends that this sentence, therefore, did not qualify as a drug
trafficking conviction that would support a sixteen-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(i) until his probation was revoked (after he was later
convicted of involuntary manslaughter, and he was sentenced to two years in
prison for the probation revocation). But this argument bolsters the district
court’s concern with Beltran-Lopez’s extensive criminal history. And it would be
an anomalous result if Beltran-Lopez’s drug trafficking conviction should be
treated less seriously because he violated his probation, and did so by engaging in
a course of conduct resulting in an involuntary manslaughter conviction. In this
17
case, Beltran-Lopez’s criminal activity, which has continued over the past twenty
years, is a valid justification for the district court’s decision not to vary
downward, despite the minor nature of the criminal conduct underlying the drug
trafficking conviction used to enhance his offense level.
Third, Beltran-Lopez reiterates that his 1988 drug trafficking conviction
was based upon criminal conduct occurring twenty years ago, in 1987. Cf.
U.S.S.G. § 2L1.2 app. n. 1(B)(vii) (indicating the relevant “sentence imposed,”
for determining the application of an enhancement under § 2L1.2, is “without
regard to the date of conviction”). For the same reasons discussed above, this
factor is insufficient to rebut the presumptive reasonableness of the 125-month,
within-guidelines sentence the district court imposed.
Beltran-Lopez’s prior drug trafficking conviction qualifies for a
sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). He does not argue
that it does not. In imposing a within-guideline sentence, the court considered
whether the 18 U .S.C. § 3553(a) factors would support such a sentence. Those
factors obligated the court to consider, among other things, Beltran-Lopez’s
characteristics and history, and the need for his sentence to reflect the seriousness
of the offense, to afford adequate deterrence, and to protect the public from
further crimes the defendant might comm it. See 18 U.S.C. § 3553(a)(1), (2). The
court did consider those factors, concluding that a sentence w ithin-the advisory
guideline range was “sufficient, but not greater than necessary” to meet the
18
sentencing purposes set forth in § 3553(a)(2). The court did not abuse its
discretion in imposing such a sentence.
III. Conclusion
For the foregoing reasons, we conclude Beltran-Lopez’s 125-month
sentence was reasonable and AFFIRM .
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge
19