United States v. Perez-Amaya , 135 F. App'x 134 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 17 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-4118
v. (D.C. No. 2:04-CR-49-PGC)
SILVESTER PEREZ-AMAYA aka (D. Utah)
Marcos Servantes aka Silvestre Perez
aka Israel Perez,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Defendant Silvester Perez-Amaya pleaded guilty to the charge of illegal
reentry by a deported alien. See 8 U.S.C. § 1326. On February 5, 2004, before
Defendant’s plea agreement, the Government filed a notice of sentencing
enhancement stating that Defendant’s sentence would be enhanced under
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 1326(b) because he had a prior felony drug conviction in California. The plea
agreement, signed by Defendant and his counsel, acknowledged the truth of the
following statement:
5. My previous convictions include, but may not be limited to,
the following:
On 9/18/92, Superior Court, Ventura District Court, Ventura
County, Convicted of Distribution of a Controlled Substance,
case number CR-34205; On 8/22/94, Superior Court, Ventura
District Court, Ventura County, convicted of Distribution of a
Controlled Substance, case number CR-30350.
R. Vol. I, Doc. 12, at 8-9. At his sentencing hearing Defendant again admitted
both of the prior convictions.
The Presentence Report (PSR) concluded that Defendant’s base-offense
level of eight—the level for violating § 1326(a)—was subject to a 16-level
enhancement because of the prior felony drug conviction. See U.S. Sentencing
Guidelines Manual § 2L1.2(b)(1)(A)(i) (2003). It also concluded that Defendant
had 11 total criminal history points and thus belonged in category V. Two points
were included in the 11-point total because Defendant was on probation at the
time he committed the charged offense. See USSG § 4A1.1(d).
Defendant did not tender written objections to the sentencing
recommendation in the PSR, but he raised an objection at the sentencing hearing
to the two-point addition. The court overruled the objection and accepted the
PSR’s recommendation. The Court also denied Defendant’s motion for downward
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departure based on over-representation of his criminal history, stating: “[T]he
facts of this case do not justify such a departure. It’s not outside the heartland or
not outside the standard kind of case that’s covered by a criminal history category
V that would be the most [felicitous] choice of words here.” R. Vol. III at 20-21.
The court sentenced Defendant at the bottom of the applicable guidelines range:
70 months’ imprisonment followed by 36 months of supervised release.
On appeal Defendant’s counsel filed an Anders brief, see Anders v.
California, 386 U.S. 738 (1967), and moved for leave to withdraw as counsel. In
compliance with Anders, counsel provided Defendant with a copy of his appellate
brief and Defendant filed a pro se reply brief raising Blakely v. Washington, 124
S. Ct. 2531 (2004). Defendant’s counsel also filed a supplemental brief after the
Supreme Court handed down United States v. Booker, 125 S. Ct. 738 (2005).
The briefs raise three objections to the sentence. Defendant first argues
that the two-point addition to his criminal history, added because he committed
the charged offense while on probation, was incorrectly applied. He also argues
that in light of Booker the use of mandatory guidelines in determining his
sentence was plain error. Finally, Defendant argues that the district court erred
when it denied his oral motion for downward departure.
The first argument is foreclosed by circuit precedent. Defendant asserts
that the charged offense—illegal reentry into the United States—was committed
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when he crossed the border. The 36-month probation underlying the enhancement
was imposed by a California court on September 25, 2002, which was after the
illegal reentry. Defendant argues that he was not on probation at the time he
committed the charged offense of illegal reentry. But this argument fails because
the offense of illegal reentry as defined by § 1326(a) is a continuing offense and
not necessarily complete at the time of the entry.
The plain language of § 1326(a) establishes that a previously
deported alien who illegally enters and remains in the United States
can violate the statute at three different points in time, namely, when
the alien (1) enters, (2) attempts to enter, or (3) is at any time found
in the United States. . . . For an alien to be found, the government
must have knowledge of the illegality of his presence, through the
exercise of diligence typical of law enforcement authorities.
United States v. Rosales-Garay, 283 F.3d 1200, 1202-1203 (10th Cir. 2002)
(internal quotation marks and brackets omitted). The federal authorities found
Defendant in the United States on December 10, 2003, well within his 36-month
probation period.
Defendant’s second argument—that sentencing under a mandatory
guidelines regime is itself plain error—also fails. We recently noted that although
mandatory application of the guidelines is Booker error, it is not plain error
requiring a remand for resentencing unless the error was “a particularly egregious
one that would result in a miscarriage of justice or otherwise call the judiciary
into disrepute unless we remanded.” United States v. Gonzalez-Huerta, No.
-4-
04-2045, slip. op. at 24 (10th Cir. Apr. 8, 2005). In Gonzalez-Huerta the
defendant pleaded guilty to illegal reentry by a deported alien following an
aggravated felony, the same crime at issue in this case. Id. at 2-3. He appealed
his sentence, arguing that the mandatory application of the guidelines was
reversible plain error. Id. at 4. We held that the mandatory application of the
guidelines was neither “particularly egregious” nor a “miscarriage of justice”
because the resulting sentence was within the national norms established by the
guidelines and the record was devoid of any evidence indicating a lower sentence
was appropriate. Id. at 20-22. Because Defendant, like the Gonzalez-Huerta
defendant, admitted to all the facts underlying his sentence, his case involves non-
constitutional Booker error. The record likewise lacks evidence that indicates a
lower sentence is appropriate. Defendant’s case is thus indistinguishable from
Gonzalez-Huerta and we conclude that he has failed to show that the mandatory
application of the guidelines is plain error in his case.
Finally, Defendant claims that the district court erred when it denied his
motion for downward departure. Denying the motion, the court stated: “I’m
aware that I have the discretion to depart downward if the facts show that
downward departure is appropriate, and I don’t see that this case is outside of the
heartland.” R. Vol. III at 17. Pre-Booker we had jurisdiction to review a district
court’s refusal to depart downward only when the district court stated that it had
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no authority to depart. United States v. Dias-Ramos, 384 F.3d 1240, 1242-43
(10th Cir. 2004). The district court’s decision to deny the motion after
acknowledging its discretion to grant it would have been unreviewable. Even if
Booker now requires us to review the failure to depart for reasonableness, the
district court’s decision easily meets that standard.
Defendant’s sentence is AFFIRMED. Counsel’s Anders motion to
withdraw is GRANTED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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