United States v. Gonzalez-Lopez , 41 F. App'x 286 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 16 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-4231
(D.C. No. 2:00-CR-580-C)
FRANCISCO MANUEL (D. Utah)
GONZALEZ-LOPEZ, also known as
Francisco Manuel Gonzalez,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , ANDERSON , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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This order and judgment is not binding precedent, except under the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. 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.
Defendant Francisco Manuel Gonzalez-Lopez appeals from his forty-six
month sentence, asserting that the district court erroneously denied his motion for
a downward departure and, alternatively, that the district court improperly applied
an enhanced sentence based on factors that were not alleged in his indictment.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and
we affirm.
I.
Gonzalez-Lopez was deported to Mexico in 1999 after being convicted
in Utah of burglary and aggravated assault, aggravated felonies as defined under
8 U.S.C. § 1101(a)(43). On October 25, 2000, Gonzalez-Lopez was again
arrested in Utah and charged with three misdemeanors. After obtaining
information regarding Gonzalez-Lopez’s identity, the INS sought and received
an indictment charging him with illegal re-entry of a deported alien.
Gonzalez-Lopez was arrested on January 11, 2001.
Gonzalez-Lopez pled guilty to the charge, but moved the court for
a downward departure based on cultural assimilation. The court denied that
motion and sentenced Gonzalez-Lopez to forty-six months, based in large part
on a sixteen-level sentence enhancement stemming from his previous deportation
after a felony conviction. This appeal followed.
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II.
“Our review of a sentencing court’s refusal to grant a downward departure
is narrow.” United States v. Browning , 252 F.3d 1153, 1160 (10th Cir. 2001).
Indeed, “[a]bsent the trial court’s clear misunderstanding of its discretion to
depart, or its imposition of a sentence which violates the law or incorrectly
applies the guidelines, we have no jurisdiction to review a refusal to depart.”
United States v. Coddington , 118 F.3d 1439, 1441 (10th Cir. 1997) (quotation
omitted). As this court stated in Browning ,
[C]ourts of appeals cannot exercise jurisdiction to review a
sentencing court’s refusal to depart from the sentencing guidelines
except in the very rare circumstance that the district court states
that it does not have any authority to depart from the sentencing
guideline range for the entire class of circumstances proffered by
the defendant . . . . This exception does not apply when a sentencing
court concludes under the defendant’s particular circumstances that
it does not have the authority to depart.
Browning , 252 F.3d at 1160-61 (quotation omitted). Gonzalez-Lopez argues that
the district court erroneously believed it only had the authority to depart
downward based on cultural assimilation if Gonzalez-Lopez grew up in the United
States and had lived in the country for many years. To the contrary, the
sentencing transcript reveals that the district court recognized that it had the
authority to grant a downward departure based on cultural assimilation, but
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elected not to do so. 1
While the district court used, by example, other factual
situations to explain its decision that Mr. Gonzalez-Lopez’s situation was not
beyond the heartland of typical cases justifying a downward departure, it did not
limit itself to those particular factors as providing a bar to its discretionary
authority. The transcript contains a number of additional references to
Gonzalez-Lopez’s situation demonstrating that the court understood its authority
to grant a downward departure, if it chose to do so. Thus, this court does not
have jurisdiction to review the district court’s refusal to depart.
III.
Gonzalez-Lopez next argues that his prior felony conviction cannot be used
to enhance his sentence because it is not a part of the offense of conviction.
“We review the district court’s interpretation and application of the Sentencing
Guidelines de novo .” United States v. Martinez-Villalva , 232 F.3d 1329,
1
Gonzalez-Lopez urges downward departure under the authority of United
States v. Lipman , 133 F.3d 726, 730 (9th Cir. 1998), one of at least two decisions
specifically recognizing cultural assimilation as an allowable justification for
downward departure. See also United States v. Rodriguez-Montelongo , 263 F.3d
429, 433 (5th Cir. 2001) (“[W]e hold that cultural assimilation is a permissible
basis for downward departure.”). Each of these decisions, however, has
recognized that departures based on cultural assimilation are akin to consideration
of family and community ties, which are discouraged factors under § 5H1.6 of the
Guidelines, and which must be extraordinary before a departure may be justified.
See Rodriguez-Montelongo , 263 F.3d at 433-34; Lipman , 133 F.3d at 730; see
also United States v. Gallegos , 129 F.3d 1140, 1146 (10th Cir. 1997) (addressing
family circumstances).
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1332 (10th Cir. 2000). Specifically, Gonzalez-Lopez does not challenge the
sufficiency of the indictment, but instead argues “that his sentence exceeds the
maximum penalty for the offense of conviction.” Aplt. Br. at 8. We disagree.
Gonzalez-Lopez was indicted for, and pled guilty to a violation of 8 U.S.C.
§ 1326 prohibiting the re-entry of removed aliens. Subsection (b) of § 1326
increases the maximum penalty to twenty years in prison for any alien “whose
removal was subsequent to a conviction for commission of an aggravated felony.”
8 U.S.C. § 1326(b)(2). Gonzalez-Lopez’s conviction for burglary and assault
places him squarely within that subsection. Gonzalez-Lopez also correctly
concedes that his argument is negated by the Supreme Court’s decision in
Almendarez-Torres v. United States , 523 U.S. 224 (1998), which held that a prior
felony conviction under § 1326(b)(2) is merely a sentencing factor based on
recidivism. Almendarez-Torres , 523 U.S. at 235. Gonzalez-Lopez was clearly
aware of the potential maximum penalty when he signed his plea agreement,
and the district court did not err by enhancing his base offense level to an
amount that was well below that statutory maximum.
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The judgment of the United States District Court for the District of Utah
is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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