United States v. Villa-Chavez ( 2022 )

Appellate Case: 22-2065 Document: 010110750309 Date Filed: 10/07/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 7, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2065
(D.C. No. 2:22-CR-00132-MIS-1)
JOSE ROSARIO VILLA-CHAVEZ, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
After Jose Villa-Chavez pleaded guilty to unlawfully reentering the United
States for a third time, the district court sentenced him to 41 months in prison—the
bottom of the recommended sentencing range under the United States Sentencing
Guidelines. Villa-Chavez appeals, arguing that the district court erred in refusing to
grant a downward variance and in imposing a substantively unreasonable sentence.
For the reasons discussed below, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The 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 This order and judgment is not binding precedent,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.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R.
32.1(A).
Appellate Case: 22-2065 Document: 010110750309 Date Filed: 10/07/2022 Page: 2
Background
Villa-Chavez, a Mexican citizen, first entered the United States at age 17 in
1998. Over the next two decades, authorities located him in the United States and
removed him to Mexico multiple times, including in 2002 following a conviction for
unlawful entry. In 2019, he pleaded guilty to unlawful reentry, served seven months
in prison, and was removed to Mexico. Approximately two months after this removal,
authorities again discovered him in the United States. He pleaded guilty to unlawful
reentry for a second time, receiving an 18-month prison sentence and a one-year term
of supervised release. He completed this prison sentence in October 2021 and began
his supervised-release term. The government removed him to Mexico the next day.
In addition to these convictions for unlawful entry and reentry, Villa-Chavez
sustained several alcohol-related convictions during his time in the United States. For
instance, he has six convictions for driving under the influence. And in 2016, he was
convicted of fourth-degree domestic violence, an offense he committed while
intoxicated.
In December 2021, Villa-Chavez committed the offense underlying this
appeal, reentering the United States and then pleading guilty to unlawful reentry for
the third time. Based on a total offense level of 15 and a criminal-history category of
VI, Villa-Chavez’s Guidelines range was 41 to 51 months. Villa-Chavez requested a
downward departure or variance to 21 months, arguing in part that his Guidelines
range substantially overstated the seriousness of his prior convictions and that the
main reason for his most recent return to the United States was to escape gang
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violence in Mexico. But the district court rejected Villa-Chavez’s arguments and
sentenced him to 41 months in prison. It also imposed a concurrent 12-month
revocation sentence because Villa-Chavez committed this third unlawful-reentry
offense while on supervised release for his second unlawful-reentry offense.
Villa-Chavez appeals, arguing that the district court erred by rejecting his
request for a variance to 21 months and that his 41-month sentence is substantively
unreasonable.1
Analysis
We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 41 (2007). “Review for substantive reasonableness
focuses on whether 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).”
United States v. Sample, 901 F.3d 1196, 1199 (10th Cir. 2018) (quoting United States
v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)). A district court abuses its
discretion only if it imposes a sentence that is “arbitrary, capricious, whimsical, or
manifestly unreasonable.” Id. (quoting United States v. Sayad, 589 F.3d 1110, 1116
(10th Cir. 2009)). Put differently, a sentencing decision is substantively unreasonable
if it “‘exceed[s] the bounds of permissible choice,’ given the facts and the applicable
law.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting
1
Villa-Chavez does not challenge the district court’s discretionary decision to
deny a downward departure, nor could he: We “lack jurisdiction to review the
discretionary denial of a downward departure.” United States v. Fonseca, 473 F.3d
1109, 1112 (10th Cir. 2007).
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United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). Because Villa-
Chavez’s sentence falls within the Guidelines range, we begin with the presumption
that his sentence is reasonable. See United States v. Chavez, 723 F.3d 1226, 1233
(10th Cir. 2013).
Seeking to overcome that presumption, Villa-Chavez argues that the district
court should have granted a variance because his Guidelines range, although
correctly calculated, overstated the seriousness of his prior convictions. In his view,
the 41-month sentence the district court imposed is “excessively harsh” given the
offense conduct and his history and characteristics. Aplt. Br. 14.
But on this record, we cannot say that the district court abused its discretion
when it declined to grant a variance and instead imposed a sentence at the bottom of
Villa-Chavez’s Guidelines range. Villa-Chavez’s numerous unlawful reentries and
prior convictions show a propensity for recidivism and a repeated disregard for the
law. Moreover, Villa-Chavez committed the unlawful-reentry offense at issue only
two months into his supervised-release term for his previous unlawful-reentry
conviction. The rapidity with which he reentered the United States demonstrates that
the previous 18-month sentence he had just served was insufficient to deter him from
reoffending. The district court could therefore reasonably consider a 41-month, low-
end Guidelines sentence appropriate to achieve the sentencing goals of deterring
criminal conduct and promoting respect for the law. See § 3553(a)(2)(A)–(B).
Although Villa-Chavez would have preferred that the district court place less
weight on his criminal history and attach more weight to other mitigating factors,
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such as his history and characteristics, this court has made clear that “[t]he district
court need not afford equal weight to each of the [§ 3553(a)] factors.” United States
v. Sanchez-Leon, 764 F.3d 1248, 1267 (10th Cir. 2014). And when, as here, “the
balance struck by the district court among the factors set out in § 3553(a) is not
arbitrary, capricious, or manifestly unreasonable, we must defer to that decision even
if we would not have struck the same balance in the first instance.” United States v.
Sells, 541 F.3d 1227, 1239 (10th Cir. 2008).
As a final matter, to the extent Villa-Chavez argues that he was entitled to a
variance because he reentered the United States to escape gang violence in Mexico,
we reject that argument. Nothing in the record suggests that Villa-Chavez’s unlawful
reentry into the United States to flee gang violence constituted circumstances
“special enough that, in light of § 3553(a), they require[d] a sentence lower than the
sentence the Guidelines provide.” Rita v. United States, 551 U.S. 338, 360 (2007).
Indeed, Villa-Chavez told the district court that “he could have fled to another part of
Mexico,” rather than the United States. R. vol. 1, 12. Under these circumstances, we
cannot say it was an abuse of discretion for the district court to decline to grant a
variance. See United States v. Navarrete-Medina, 554 F.3d 1312, 1313 (10th Cir.
2009) (describing caselaw finding “no abuse of discretion where district courts have
refused to grant a downward variance based on [a noncitizen’s] noncriminal
motivation for re-entering the country”).
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Conclusion
In sum, Villa-Chavez has not carried his heavy burden to overcome the
presumption that his low-end Guidelines sentence is substantively reasonable, and the
district court did not abuse its discretion in imposing his sentence. We therefore
affirm the district court’s judgment.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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