United States v. De Paz , 200 F. App'x 791 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3013
v. District of Kansas
ERICK DE PAZ, (D.C. No. 05-20039-01-KHV)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Defendant-Appellant Erick De Paz pleaded guilty to kidnaping his 17-year-
old former girlfriend in violation of 18 U .S.C. § 1201(a), a crime which carries a
mandatory minimum sentence of twenty years. At sentencing, defense counsel
indicated to the court that he was in negotiations with the Assistant United States
Attorney for a U.S. Sentencing Guidelines M anual § 5K1 motion that would allow
*
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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
the judge to sentence below the statutory mandatory minimum for providing
substantial assistance to the government. The judge explained to M r. De Paz that
without the § 5K1 motion she would be required to impose a 20-year sentence.
After a brief conversation with counsel, M r. De Paz plead guilty. Although M r.
De Paz and the Assistant United States Attorney engaged in lengthy negotiations
concerning the § 5K 1 motion, no terms were reached and no motion was filed. A s
a result, the district court judge sentenced M r. De Paz to 20 years as required by
18 U.S.C. § 1201(g).
M r. D e Paz did not object to his sentence in the district court, so we
review for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th
Cir. 2005) (en banc), cert. denied, 126 S. Ct. 495 (2005). To establish plain error,
M r. De Paz must first demonstrate that there was an error in determining his
sentence.
Although M r. De Paz’s sentence was determined by statute and not the
Federal Sentencing Guidelines, he argues that the district court violated Booker
by treating the statutory minimum sentence as mandatory. He claims that under
18 U.S.C. § 3553(a), the sentencing court was required to consider several
mitigating factors which would have likely resulted in a lower sentence.
However, when a defendant pleads guilty to a crime that carries a mandatory
minimum sentence, the court has no discretion to do anything other than impose
the sentence required by the statute. United States v. Cherry, 433 F.3d 698, 702
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(10th Cir. 2005) (citing United States v. Payton, 405 F.3d 1168, 1173 (10th Cir.
2005)). The district court did not err in imposing the statutory minimum
sentence.
Therefore, the judgment of the United States District Court for the District
of K ansas, is AFFIRM ED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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