United States v. Sanchez , 536 F. App'x 827 ( 2013 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    September 27, 2013
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    __________________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 13-2050
    v.                                          (D.Ct. No. 2:12-CR-02315-JGC-1)
    (D. N.M.)
    PAUL SANCHEZ,
    Defendant-Appellant.
    ______________________________
    ORDER AND JUDGMENT *
    Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
    Circuit Judge.
    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.
    Appellant Paul Sanchez pled guilty to one count of escape from government
    custody in violation of 
    18 U.S.C. § 751
    (a). He now appeals his sentence on
    *
    This order and judgment is not binding precedent except under the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.
    grounds the district court improperly applied a five-level sentencing enhancement
    for making a threat of force against another after he escaped a halfway house. In
    support of his argument, he claims the district court inappropriately relied on
    hearsay in determining he made such a threat and improperly considered his
    escape to be a continuing offense. We exercise jurisdiction pursuant to 
    18 U.S.C. § 3742
    (a) and 
    28 U.S.C. § 1291
     and affirm Mr. Sanchez’s sentence.
    I. Factual and Procedural Background
    On January 9, 2006, Mr. Sanchez received a seventy-two-month sentence
    for distribution of cocaine. After serving six years in a federal prison, authorities
    transferred him to a halfway house in Las Cruces, New Mexico, to serve out his
    sentence. On March 24, 2012, Mr. Sanchez signed out for work but did not
    return. Two days later, United States Marshals interviewed his ex-girlfriend, Ms.
    Smith, who stated Mr. Sanchez contacted her, stating he was drunk and asking for
    a ride to a local motel to sleep it off; she explained she drove him there but had
    not since heard from him. At the motel, the marshals learned Ms. Smith had paid
    for his room and Mr. Sanchez left the next day. On further inquiry, Ms. Smith
    admitted she paid for the room but she had not told them more because she was
    afraid of Mr. Sanchez hurting her. She then played for them a voice mail message
    from Mr. Sanchez, telling her to help him leave town or he would “burn her shop
    down.” The parties agree this message came two days after she dropped Mr.
    Sanchez at the motel. The marshals arrested Mr. Sanchez several weeks later in
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    Carlsbad, New Mexico.
    Following the district court’s acceptance of Mr. Sanchez’s guilty plea
    agreement, a probation officer prepared a presentence report, calculating his
    sentence under the applicable 2012 United States Sentencing Guidelines
    (“U.S.S.G.” or “Guidelines”). The probation officer set Mr. Sanchez’s base
    offense level at 13, pursuant to U.S.S.G. § 2P1.1, for his escape offense and
    increased it five levels, pursuant to U.S.S.G. § 2P1.1(b)(1), for his threat of force
    against Ms. Smith. He then reduced the five-level offense increase by four levels
    under U.S.S.G. § 2P1.1(b)(3), because his escape involved his leaving a non-
    secure halfway house, and further reduced his offense level by two levels for
    acceptance of responsibility, resulting in a total offense level of 12. An offense
    level of 12, together with a criminal history category of VI, resulted in a
    recommended Guidelines range of thirty to thirty-seven months imprisonment.
    Mr. Sanchez filed a sentencing memorandum, objecting only to the five-
    level increase in his offense level in conjunction with § 2P1.1(b)(1) for threat of
    force during his escape, claiming he never threatened Ms. Smith and she
    exaggerated the truth when speaking to the authorities. He also requested a
    variant sentence of twelve months, contending his criminal history over-
    represented the seriousness of his past criminal conduct and pointing to his
    personal history and characteristics, including his unstable childhood.
    At sentencing, Mr. Sanchez’s counsel again objected to the five-level
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    offense increase but explained an evidentiary hearing might not be warranted,
    stating, “[w]hat I can proffer to the Court is that on the 24th of March of last year
    Ms. Smith gave a ride to Mr. Sanchez away from the ... Halfway House.
    Subsequent to that time, Ms. Smith received a recording in her voice mail of a
    threatening nature from Mr. Sanchez.” His counsel then argued the five-level
    increase should not apply for this threat because he did not make the threat to
    achieve escape, which had already occurred when he left the halfway house, and
    because he did not threaten someone at the halfway house to aid in his escape.
    In overruling the objection, the district court determined “escape” is a
    continuing offense; Mr. Sanchez clearly threatened Ms. Smith; and U.S.S.G.
    § 2P1.1(b)(1) covers any threat made during an ongoing escape, including the one
    he made to gain her assistance while at large. After hearing Mr. Sanchez’s
    allocution, the district court imposed a below-Guidelines-range sentence of
    twenty months incarceration in conjunction with the 
    18 U.S.C. § 3553
    (a)
    sentencing factors.
    II. Discussion
    In his appeal, Mr. Sanchez continues to claim the district court improperly
    applied a five-level sentencing enhancement under U.S.S.G. § 2P1.1(b)(1) for
    making a threat of force against another during his escape. In support, he
    continues to argue the district court improperly considered his escape to be a
    continuing offense and, for the first time on appeal, contends it inappropriately
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    relied on hearsay contained in the presentence report, which included the erased
    voice mail tape and the statements of marshals on its content who were not
    available to testify at the sentencing hearing. The government opposes the
    appeal.
    We review a sentence for reasonableness, giving deference to the district
    court under an abuse of discretion standard. See United States v. Smart, 
    518 F.3d 800
    , 802-03, 805 (10th Cir. 2008). “Our appellate review for reasonableness
    includes both a procedural component ... as well as a substantive component,
    which relates to the length of the resulting sentence.” 
    Id. at 803
    . Procedural
    reasonableness addresses, in part, whether the district court incorrectly calculated
    the Guidelines sentence and relied on clearly erroneous facts. See United States
    v. Huckins, 
    529 F.3d 1312
    , 1317 (10th Cir. 2008). In determining whether the
    district court properly calculated a defendant’s sentence, we generally review its
    legal conclusions de novo and its factual findings for clear error. See United
    States v. Kristl, 
    437 F.3d 1050
    , 1054 (10th Cir. 2006) (per curiam).
    Applying these principles, we must determine if the district court
    improperly calculated Mr. Sanchez’s sentence by applying the five-level
    enhancement under § 2P1.1(b)(1), thereby affecting the calculation of his
    Guidelines range and resulting in a procedurally unreasonable sentence. Section
    2P1.1, titled “Escape, Instigating or Assisting Escape,” recommends an offense
    level increase of five “[i]f the use or the threat of force against any person was
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    involved.” U.S.S.G. § 2P1.1(b)(1). Both we and the Supreme Court have held
    “escape” is a continuing offense until the escapee is returned to custody. See
    United States v. Bailey, 
    444 U.S. 394
    , 413 (1980); United States v. Brown, 
    314 F.3d 1216
    , 1224 (10th Cir. 2003). As such, Mr. Sanchez was still in the course of
    committing the offense of escape when he contacted and threatened Ms. Smith.
    This is particularly applicable, not only because escape is considered a continuing
    offense while Mr. Sanchez remained at large, but because, in this instance, he not
    only asked Ms. Smith to help him leave the halfway house but called her again to
    help him continue his escape in leaving the city of Las Cruces, where he must
    have known authorities were looking for him. As a result, our de novo review
    establishes the district court made the proper legal conclusion with respect to the
    ongoing nature of Mr. Sanchez’s escape.
    As to the hearsay evidence supporting Mr. Sanchez’s threat of force against
    Ms. Smith, we note Mr. Sanchez and his counsel did not object to such hearsay
    evidence as contained in the presentence report nor make a contemporaneous
    objection after the district court discussed the hearsay nature of the evidence
    supporting the threat of force enhancement. While we review a district court’s
    legal conclusions de novo and its factual findings for clear error, see Kristl, 
    437 F.3d at 1054
    , we review for plain error when, like here, a defendant fails to raise
    an argument in the district court, see United State v. Ventura-Perez, 
    666 F.3d 670
    ,
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    674 (10th Cir. 2012). 1
    However, regardless of whether we apply clear or plain error review, Mr.
    Sanchez cannot prevail. First, the circumstances surrounding the voice mail,
    including the marshals’ verification of the threat to Ms. Smith after listening to
    the recording, were in the presentence report, to which Mr. Sanchez did not
    object. Further, at the sentencing hearing, his counsel suggested an evidentiary
    hearing was unnecessary based on a proffer that two days after giving Mr.
    Sanchez a ride to the motel, “Ms. Smith received a recording in her voice mail of
    a threatening nature from Mr. Sanchez.” A sentencing court may rely on a wide
    array of relevant information, including hearsay evidence containing a minimal
    indicia of reliability, see United States v. Browning, 
    61 F.3d 752
    , 755 (10th Cir.
    1995), as well as un-objected-to facts in a presentence report, see United States v.
    Delossantos, 
    680 F.3d 1217
    , 1219 n.1 (10th Cir. 2012). Accordingly, while the
    threat on the erased voice mail, as verified by unavailable marshals, may
    constitute hearsay evidence, Mr. Sanchez’s failure to object to such evidence in
    the presentence report, together with his counsel’s verification such a threat was
    made, gives it the requisite indicia of reliability for the district court to rely on it
    for the purpose of applying the five-level enhancement. As a result, the district
    1
    To establish plain error, the defendant has the burden of establishing: (1)
    an error occurred; (2) that was plain; and (3) which affected his substantial rights.
    
    Id.
     If these conditions are met, he must show the error seriously affected the
    fairness, integrity, or public reputation of judicial proceedings. See Ventura-
    Perez, 666 F.3d at 674.
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    court reasonably concluded Mr. Sanchez made a threat of force during his
    ongoing or continuing escape, supporting a five-level enhancement under
    U.S.S.G. § 2P1.1(b)(1). Because the district court properly calculated Mr.
    Sanchez’s sentence and sentenced him within the applicable Guidelines range, his
    sentence is presumptively reasonable, and he has not otherwise rebutted this
    presumption by demonstrating his sentence is unreasonable in light of the
    sentencing factors in § 3553(a). See Kristl, 
    437 F.3d at 1053-54
    .
    III. Conclusion
    For these reasons, we AFFIRM Mr. Sanchez’s sentence.
    Entered by the Court:
    WADE BRORBY
    United States Circuit Judge
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