United States v. Carrillo-Rodriguez ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
December 15, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-1067
v. (D. of Colo.)
JOSE ANGEL CARRILLO- (D.C. No. 10-CR-00218-REB)
RODRIGUEZ, a/k/a Angel
Garcia-Perea, a/k/a Angel Garcia
Pereira,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Mr. Carrillo-Rodriguez pleaded guilty to the offense of illegal reentry after
deportation subsequent to an aggravated felony conviction. At sentencing, he
moved for a downward variance from the applicable United States Sentencing
Guidelines (USSG) range based on the staleness of his prior felony. The district
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
court declined to grant it, instead sentencing Carillo-Rodriguez at the bottom of
the applicable guidelines range. He appeals his sentence, arguing that it is
substantively unreasonable.
Exercising our jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we AFFIRM the decision of the district court.
I. BACKGROUND
The record shows Carrillo-Rodriguez is approximately 40 years old and
was born in Mexico. He first entered the United States when he was 14 years old.
In 1995, he was convicted in Colorado on state charges of possession of heroin
with intent to distribute, and sentenced to 4 years imprisonment. In 1996, he was
deported to Mexico. At some point after removal, he reentered the United States.
He committed several more crimes, including reckless driving in 2002, shoplifting
in 2009, driving while impaired in 2009, and theft in 2010. In March 2010,
Colorado authorities released him to the custody of U.S. Immigrations and
Customs Enforcement (ICE). He was charged with the present offense in April
2010, and pleaded guilty in September 2010 pursuant to a plea agreement.
Carrillo-Rodriguez’s offense carried a base offense level of 8 under the
Guidelines. But his offense level was increased to 24 pursuant to USSG
§ 2L1.2(b)(1)(A)(I), due to his 1995 drug conviction, which qualified as a drug
trafficking offense. After making the appropriate adjustments for Carrillo-
Rodriguez’s criminal history and acceptance of responsibility, the district court
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arrived at a guidelines range of 57 to 71 months imprisonment. Carrillo-
Rodriguez moved for a downward departure and variance, based on the staleness
of his 1995 conviction, which he characterized as his only “serious” prior
conviction. R., Vol. 2 at 42.
The district court denied Carillo-Rodriguez’s motion. It acknowledged that
it had discretion to depart downward, but found that “the defendant’s criminal
record does not substantially overrepresent his criminal history category or the
likelihood of recidivism.” Id. at 49. In considering “the nature and
circumstances of the offense as committed by Mr. Carrillo,” id. at 50, the court
reasoned:
I distinguish between two groups of defendants; those whose
discovery in this country is fortuitous, bordering on the accidental,
and those whose illegal immigration status come to the attention of
ICE because while they are in the custody of state or local authorities
while detained or incarcerated on non-immigration related criminal
charges, they come to the attention of the authorities.
Mr. Carrillo falls squarely into the disfavored second
group. . . .
...
He certainly has reaped the benefits, privileges and advantages
afforded by this country. But to his detriment he has failed to
reciprocate.
While in this country, even illegally, Mr. Carrillo had the
simple duty and responsibility to live a law-abiding life. For reasons
best known to himself he has chosen to do otherwise.
He has been convicted of an aggravated felony which resulted
in his first removal. He reentered this country illegally, again with
the opportunity to lead a law-abiding life, and again for reasons best
known to himself, did not do so.
...
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He stands before the court frankly with a philosophy that
evinces to a disturbing extent a disrespect and disregard for state and
federal authority . . . and federal immigration authority.
Id. at 50–51. Based on this reasoning, the court sentenced Carrillo-Rodriguez to
57 months, the bottom of the guidelines range.
II. DISCUSSION
We review a claim of substantive unreasonableness for abuse of discretion.
United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010). “A district court
abuses its discretion when it renders a judgment that is arbitrary, capricious,
whimsical, or manifestly unreasonable.” Id. (internal quotation marks omitted).
A sentence “within the properly calculated guidelines range . . . is presumed
reasonable.” Id. “The defendant may rebut the presumption, however, by
demonstrating that the sentence is unreasonable when viewed against the other
factors delineated in [28 U.S.C.] § 3553(a).” Id. (internal quotation marks
omitted).
Section 3553(a) lists the factors a sentencing court must consider when
imposing a sentence. Carrillo-Rodriguez’s argument focuses on two of these
factors: “the nature and circumstances of the offense,” § 3553(a)(1), and “the
history and characteristics of the defendant,” § 3553(a)(2).
Carillo-Rodriguez argues that his sentence is unreasonable under § 3553
because of the staleness of his prior felony convictions. He urges that because his
prior felony was committed in 1995, and he has not had another felony conviction
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since then, the district court should have given less weight to the history of the
defendant, and more weight to the nature of the offense.
In support of his argument, Carillo-Rodriguez relies heavily on United
States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009). In that case, the
defendant, Amezcua-Vasquez, was convicted of attempted illegal reentry after
deportation for an aggravated felony. Id. at 1052. Amezcua-Vasquez had
originally moved to the United States in 1957, when he was two years old, and
became a permanent resident. Id. His aggravated felony was a 1981 conviction
for assault with great bodily injury related to a bar fight. Id. After his release in
1984, he was convicted of four other offenses: battery in 1987, violation of a
court order in 1993, driving under the influence in 1993, and “us[ing], or be[ing]
under the influence of any controlled substance” in 1999. Id. at 1052 & n.1. In
2006, he was deported based on his 1981 conviction, pursuant to the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, which expanded
the class of deportable felonies and applied retroactively. See id. at 1056 n.4.
Two weeks after being deported, he was apprehended entering the United States.
Id. at 1052.
Amezcua-Vasquez pleaded guilty to attempted illegal reentry after
deportation for an aggravated felony. At sentencing, he was sentenced to 52
months imprisonment, in the middle of the applicable guidelines range of 46 to 57
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months. Id. at 1053. He objected to the substantive reasonableness of his
sentence. Id.On appeal, the Ninth Circuit Court of Appeals found that his sentence was
substantively unreasonable, because the guidelines range gave too much weight to
his 1981 felony conviction. The court explained,
[a]lthough it may be reasonable to take some account of an
aggravated felony, no matter how stale, in assessing the seriousness
of an unlawful reentry into the country, it does not follow that it is
inevitably reasonable to assume that a decades-old prior conviction is
deserving of the same severe additional punishment as a recent one.
Id. at 1055. The court found that the aggravated felony was “unrepresentative of
[Defendant’s] characteristics,” because “there is no indication that he has
committed another offense listed in [USSG] Section 2L1.2 or has harmed another
person or the property of another for the past twenty years.” Id. at 1056. The
court also found it significant that Amezcua-Vasquez’s crime did not become a
deportable offense until 1996, 15 years after he committed it. Id. The court
noted that a below-guidelines sentence would not create “unwarranted sentencing
disparities” under § 3553(a)(6) due to the defendant’s “record of relative
harmlessness to others for the past twenty years.” Id. at 1058. Thus, it vacated
the defendant’s sentence and remanded for resentencing. Id.
Carrillo-Rodriguez argues he is in a position similar to Amezcua-Vasquez,
and should be sentenced accordingly. Of course, we are not bound by Ninth
Circuit sentencing jurisprudence, and our own approach to substantive
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reasonableness in sentencing differs in significant ways. For example, we apply a
presumption of reasonableness to a within-guidelines sentence, while the Ninth
Circuit does not. Compare Lewis, 594 F.3d at 1277, with Amezcua-Vasquez, 567
F.3d at 1055.
We recently considered, and rejected, a similar substantive reasonableness
claim based on Amezcua-Vasquez. In United States v. Vasquez-Alcarez, 647 F.3d
973, 975 (10th Cir. 2011), another illegal reentry case, the defendant’s sentencing
enhancement was based on an 11-year-old conviction for cocaine trafficking, and
the district court refused to grant a downward variance. We acknowledged “that
the staleness of an underlying conviction may, in certain instances, warrant a
below-Guidelines sentence.” Id. at 978 (quoting United States v. Chavez-Suarez,
597 F.3d 1137, 1138 (10th Cir. 2010)). But we found no unreasonableness
because the defendant trafficked a “serious drug,” and because the district court
fully considered the defendant’s “criminal history, his pattern of reentry, his
family situation, and his acceptance of responsibility.” Id. Here, the district
court did exactly the same, and Carrillo-Rodriguez’s prior felony was likewise for
a “serious drug” offense—possession of heroin with intent to distribute.
Even assuming for the sake of argument that Amezcua-Vasquez is
persuasive, many relevant differences exist between Carillo-Rodriguez and
Amezcua-Vasquez that illustrate why Carillo-Rodriguez’s sentence was
substantively reasonable. Furthermore, these differences are grounded in facts
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that the district court specifically relied upon in rejecting Carillo-Rodriguez’s
request for a downward variance.
First, Amezcua-Vasquez’s last conviction for any crime was seven years
prior to his arrest for illegal reentry. Here, in contrast, Carillo-Rodriguez was
convicted of theft and drunk driving immediately prior to his conviction for
illegal reentry. In fact, it was his arrest on larceny charges that led directly to the
instant case. As the district court noted, Carrillo-Rodriguez’s discovery by
immigration authorities was not “fortuitous, bordering on the accidental,” but was
a direct result of his arrest. R., Vol. 2, Doc. 36, at 50.
Second, the Amezcua-Vasquez court focused on what it considered to be the
less-serious nature of the defendant’s most recent prior conviction, which was for
“us[ing], or be[ing] under the influence of any controlled substance.” Amezcua-
Vasquez, 567 F.3d at 1052. The court explained that “although [Amezcua-
Vasquez] has evidently struggled with a substance addiction, there is no
indication that he . . . has harmed or attempted to harm another person or the
property of another for the past twenty years.” Id. at 1056. Here, in contrast,
Carillo-Rodriguez was convicted for theft, an intentional property crime. While
we do not here endorse the view that crimes related to substance abuse are
unserious, even if we were to adopt that view, it would not excuse Carillo-
Rodriguez’s choice to steal from others on at least two recent occasions.
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Third, Amezcua-Vasquez was arrested during his attempted reentry. In
contrast, Carillo-Rodriguez was arrested many years after he reentered the United
States. Thus, Carillo-Rodriguez, unlike Amezcua-Vasquez, had an opportunity to
demonstrate his “relative harmlessness to others” after reentering. Amezcua-
Vasquez, 567 F.3d at 1058. But, as the district court emphasized, after reentering
Carillo-Rodriguez had “the opportunity to lead a law-abiding life, and again for
reasons best known to himself, did not do so.” R., Vol. 2, Doc. 36 at 50. His
continued engagement in criminal activity heightens the contrast between him and
Amezcua-Vasquez and further illustrates the appropriateness of a within-
guidelines sentence.
Fourth, at the time of Amezcua-Vasquez’s aggravated assault conviction in
1981 (which formed the basis for his deportation in 2006), aggravated assault was
not considered an “aggravated felony” for purposes of deportation. See Amezcua-
Vasquez, 567 F.3d at 1056. In addition, Amezcua-Vasquez was a legal permanent
resident prior to his deportation. Thus, Amezcua-Vasquez was not ‘on notice’ in
1981 that his conviction for aggravated assault would result in deportation. In
contrast, Carillo-Rodriguez was not a legal resident, and even if he had been,
heroin possession with intent to distribute was a deportable offense at the time he
committed it. See 8 U.S.C. § 1251(a)(2)(B) (1994). Thus, Carillo-Rodriguez was
not taken unawares by a subsequent legislative change that made him eligible for
deportation.
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The district court considered the § 3553(a) factors, including Carillo-
Rodriguez’s specific characteristics. Based on Carillo-Rodriguez’s persistent
involvement in crime, the court declined to grant a downward variance, and
instead imposed a sentence at the bottom of the guidelines range. The district
court clearly acted within “‘the range of rationally permissible choices’ before it.”
Chavez-Suarez, 597 F.3d at 1139 (quoting United States v. McComb, 519 F.3d
1049, 1053 (10th Cir. 2007)).
III. CONCLUSION
Because the district court did not abuse its discretion in declining to grant
Carillo-Rodriguez’s request for a downward variance, we AFFIRM the judgment
of the district court.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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