United States v. Victorino F. Chavez , 265 F. App'x 821 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 15, 2008
THOMAS K. KAHN
No. 07-12724
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-20800-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTORINO F. CHAVEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 15, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Victorino Chavez appeals his 48-month sentence for illegal reentry into the
United States by a deported alien. Chavez argues that his Fifth and Sixth
Amendment rights were violated when the district court used prior convictions not
alleged in the indictment or proven to a jury beyond a reasonable doubt to enhance
his sentence. He also argues that his sentence is unreasonable because the district
court weighed the nature of this prior conviction too heavily, failing sufficiently to
consider the other factors set out in 18 U.S.C. § 3553(a). We AFFIRM.
I. BACKGROUND
A federal grand jury indicted Chavez on one count of illegal reentry after
deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Chavez initially pled
not guilty, but ultimately changed his plea. At the change of plea hearing, after
Chavez stated that he was “pleading guilty to the indictment,” the magistrate judge
informed him that he had “been charged that on or about November 17th, after
having previously been removed from the United States on July 27, 2000, [he had
been] found here in the United States and [he] had not previously obtained
approval from the attorney general to return to the United States.” R3 at 9. The
magistrate judge then asked the government what facts it would have proved had
the case gone to trial. The government stated that it would have proved that
Chavez had been deported after previously having been “convicted of one count of
incest and 3 counts of unlawful sexual activity with a minor.” Id. at 10. Chavez
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admitted that the government’s recitation of these facts was accurate. Id.In preparation for sentencing, the probation office confirmed that Chavez
had been physically removed from the United States in July 2000 following
convictions on one count of incest and three counts of unlawful sexual activity
with his 17-year-old niece, who had thereby become pregnant; and that he had
illegally reentered the United States at some point after that, without inspection by
an immigration officer. In November 2006, Chavez was found at the Miami-Dade
County Jail. An Immigration and Customs Enforcement (“ICE”) officer
interviewed Chavez, who waived his Miranda rights and admitted that he had
entered the country without permission. Chavez’s fingerprints matched those on a
warrant of deportation dated 1 May 2000.
The probation officer assigned Chavez a base offense level of 8, pursuant to
U.S.S.G. § 2L1.2(a) (Nov. 2006). Chavez received a 16-level enhancement
because his conviction for unlawful sexual activity counted as a crime of violence
for the purpose of U.S.S.G. § 2L1.2(b)(1)(A). He received a three-level reduction
for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) and (b). The
probation officer assigned Chavez a criminal history category of III based on his
prior convictions. Chavez’s total offense level of 21 and criminal history category
of III resulted in a sentencing range of 46-57 months of imprisonment. No
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objections were filed to the presentence investigation report.
At the sentencing hearing, the district court adopted the probation officer’s
calculations since neither party had any objections. The court then heard argument
from each side as to an appropriate sentence. The government, anticipating
Chavez’s request for a below-Guidelines sentence, requested a sentence at least at
the low end of the Guidelines range and reminded the court of the nature of
Chavez’s criminal history.
Chavez offered a number of reasons for a sentence below the Guidelines
range. He explained that his prior conviction had arisen out of a consensual
relationship with his 17-year old niece. He pointed out that his 16-level
enhancement was identical to the enhancement that an individual who had illegally
reentered the United States with a prior conviction for rape or murder would have
received. He argued that his prior convictions had been accounted for by both the
16-level enhancement and a higher criminal history category, and that he had
already been punished for his prior offenses in the first place.
Chavez then explained that he had 13-year old twins living in the United
States, and that he had returned to the United States because he wanted to provide
support and be a part of their lives. Chavez personally addressed the court,
apologizing for his return and requesting the lowest possible sentence.
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After stating that it had considered the statements of both parties, the
presentence investigation report, the advisory guidelines, and the statutory factors,
the court sentenced Chavez to 48 months in prison. In response to a question from
the court, Chavez stated that he had no objections to the sentence or to the manner
in which it had been imposed; however, he has timely appealed his sentence.
II. DISCUSSION
Because Chavez did not raise any objection in the district court, we review
only for plain error. United States v. Day, 465 F.3d 1262, 1264 (11th Cir. 2006)
(per curiam). “An appellate court may not correct an error the defendant failed to
raise in the district court unless there is: (1) error, (2) that is plain, and (3) that
affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005) (quotation omitted). Once these conditions have been met, we may
notice a forfeited error only when that “error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. An error is not plain “if
it is not clear under current law.” United States v. Chau, 426 F.3d 1318, 1322
(11th Cir. 2005) (per curiam) (quotation omitted).
The Supreme Court has held that the government need not allege in its
indictment or prove beyond a reasonable doubt that a defendant had prior
convictions in order for the district court to use those convictions for the purpose
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of enhancing a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 243-
47, 118 S. Ct. 1219, 1230-33 (1998). The Court also clarified that 8 U.S.C. §
1326(b)(2) sets forth a sentencing factor as to the offense described in § 1326(a)
and “not a separate criminal offense.” Id. at 235, 118 S. Ct. at 1226. We have
noted that, “although recent decisions, including Shepard v. United States, 544
U.S. 13, 125 S. Ct. 1254 (2005), may arguably cast doubt on the future prospects
of Almendarez-Torres[,] . . . the Supreme Court has not explicitly overruled [it].”
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005) (per
curiam). Supreme Court “decisions remain binding precedent until [the Court]
see[s] fit to reconsider them, regardless of whether subsequent cases have raised
doubts about their continuing vitality.” Hohn v. United States, 524 U.S. 236,
252-53, 118 S. Ct. 1969, 1978 (1998).
Accordingly, Chavez’s argument that the district court violated his Fifth and
Sixth Amendment rights by using a prior conviction neither alleged in the
indictment nor proven beyond a reasonable doubt is foreclosed by Supreme Court
precedent. The increase in Chavez’s guideline offense level was made under an
advisory guidelines scheme and, thus, is not constitutional error. Chau, 426 F.3d
1318, 1323 (11th Cir. 2005) (noting that United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005) made the Sentencing Guidelines advisory and rejected the
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proposition that the Sixth Amendment was violated when the sentencing court
made factual determinations beyond the defendant’s admissions under an advisory
guidelines scheme). Therefore, the district court did not err, let alone plainly err, in
utilizing Chavez’s prior convictions to increase his guideline offense level
Next, Chavez argues that his sentence was unreasonable because the district
court relied upon a single factor, his prior conviction for a sexual offense, to
determine his sentence and, thus, that his sentence was greater than necessary to
comply with the statutory goals of sentencing. We review a final sentence imposed
by a district court for reasonableness. United States v. Winingear, 422 F.3d 1241,
1244 (11th Cir. 2005) (per curiam). “Our review for reasonableness is
deferential.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)
(quotation omitted). Accordingly, as the Supreme Court has clarified, we review
for abuse of discretion. Gall v. United States, __ U.S.__, __, 128 S. Ct. 586, 591
(2007).
After Booker, a sentencing court must first correctly calculate the advisory
guideline range and then consider the factors set out in 18 U.S.C. § 3553(a).
United States v. Valnor, 451 F.3d 744, 749 (11th Cir. 2006). The § 3553(a)
factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
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(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [by the
Guidelines] . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims of the offense.
§ 3553(a)(1)-(7). In reviewing a sentence for reasonableness, we consider these
factors and the reasons offered by the district court for imposing a particular
sentence. United States v. Williams, 435 F.3d 1350, 1355 (11th Cir. 2006) (per
curiam). “[T]here is a range of reasonable sentences from which the district court
may choose,” and the burden of establishing that the sentence is unreasonable in
light of the record and the § 3553(a) factors lies with the party challenging the
sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).
“The weight to be afforded any given argument made pursuant to one of the §
3553(a) factors is a matter firmly committed to the discretion of the sentencing
judge and is beyond our review.” See United States v. Fernandez, 443 F.3d 19, 32
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(2d Cir. 2006); see also Talley, 431 F.3d at 788. “[A]n acknowledgment by the
district [court] that [it] has considered the § 3553(a) factors” satisfies its
obligations under Booker. United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir.), cert. denied, 128 S. Ct. 671 (2007).
We do not presume reasonable a sentence within the properly calculated
guidelines range. See United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir. 2006).
The Supreme Court has, however, upheld other circuits’ decisions affording such a
presumption, noting that a sentence, independently calculated by the district court
in accordance with Booker, that falls within the properly calculated guidelines
range “significantly increases the likelihood that the sentence is a reasonable one.”
Rita v. United States, __ U.S. __, 127 S. Ct. 2456, 2463 (2007). Accordingly, the
district court need not provide a “lengthy explanation” when imposing a within-
guidelines sentence as long as the record establishes that the district court
considered the § 3553(a) factors and the parties’ arguments. United States v.
Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (per curiam).
Here, the district court stated that it had considered the advisory guideline
range, the parties’ arguments, and the statutory factors. See Amedeo, 487 F.3d at
832. The district court’s acknowledgment of the statutory factors was cursory, but
it did hear argument from Chavez regarding his desire to take care of his children,
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his remorse for his actions, and his arguments regarding the nature of his offense
and the calculation of his sentence. Finally, the sentence imposed was within the
Guidelines range. For all of these reasons, we find no abuse of discretion. The
sentence was not unreasonable.1
III. CONCLUSION
Chavez appeals his 48-month sentence for illegal reentry into the United
States. Because we find that the district court did not err in enhancing his sentence
based on a prior conviction not specifically alleged in the indictment or proven to a
jury, and because we find the sentence imposed not to have been unreasonable, we
AFFIRM.
1
Chavez cites United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006), in support of his
argument. Crisp dealt with the improper consideration of a single § 3553(a) factor, restitution, in
connection with a significant downward departure from the Guidelines range. See id. at 1292.
Because the sentence imposed here was within the Guidelines range and because Chavez has not
shown that the district court failed to consider the other § 3553(a) factors, Crisp is inapplicable.
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