United States v. Marcos Serafin Arroyo ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-4524
____________
UNITED STATES OF AMERICA
v.
MARCOS SERAFIN-ARROYO,
a/k/a MARCO ANTONIO SERAFIN ARROYO,
a/k/a ACEVEDO MURILLO-CLEOFAS,
a/k/a JUAN M. HERNANDEZ ARROYO,
a/k/a JOHN DOE
Marcos Serafin-Arroyo,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No. 1-13-cr-00033-001)
District Judge: Honorable Maurice B. Cohill, Jr.
Submitted under Third Circuit LAR 34.1 (a)
on July 11, 2014
(Opinion filed: August 5, 2014)
Before: RENDELL, CHAGARES and JORDAN, Circuit Judges
OPINION
RENDELL, Circuit Judge:
Marcos Serafin-Arroyo pled guilty to one count of Reentry of a Removed Alien, in
violation of 8 U.S.C. § 1326. The District Court sentenced him to 41 months
imprisonment, within the Guideline range. Serafin-Arroyo now appeals his sentence,
arguing that the District Court committed a procedural error by failing to give a sufficient
explanation for denying his request for a variance from the Guideline range. We will
affirm the District Court’s sentence.
I. Background
Serafin-Arroyo was driving on I-90 when he was pulled over for having a
defective temporary tag on his car. Serafin-Arroyo admitted to the apprehending officer
that he was in the country illegally, and as a result, was arrested. Serafin-Arroyo had
previously been deported due to a drug trafficking conviction in Nevada. He also has an
extensive criminal history, including multiple drug and drunk driving related offenses.
Serafin-Arroyo’s base level offense was 8, but based on his more than 13 month
sentence for the Nevada drug conviction, he received a 16 level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A). His offense level was reduced by 3 for acceptance of
responsibility, bringing his total offense level to 21. His 3 criminal history points resulted
in a criminal history category of II. Accordingly, his Sentencing Guideline range was 41-
51 months imprisonment.
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At the sentencing hearing, Serafin-Arroyo did not contest the calculation of his
Guidelines range, but instead offered a policy argument to justify a downward variance.
He suggested that the District Court question the Sentencing Commission’s decision to
recommend the 16-level enhancement, and come to its own conclusion as to whether or
not there were good reasons for such an enhancement. Referencing Kimbrough v. United
States, Serafin-Arroyo asserted that a district court has the authority to vary from a
Guidelines range for policy reasons. 552 U.S. 85, 101 (2007). According to Serafin-
Arroyo, the fact that the Commission never offered any reasoning to support this 16-level
enhancement justified the Court’s rejecting it. He urged that someone who reenters the
country illegally is not as dangerous as a “convicted felon who has a gun,” who would
only get a 6-level enhancement, thus further demonstrating the unjust nature of this
enhancement. (Serafin-Arroyo App. 43.)
In response, the Government pointed to this Court’s holding in United States v.
Lopez-Reyes that interprets Kimbrough to allow for such a rejection of the Guidelines, but
does not require it. United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009). The
Government further argued that Lopez-Reyes makes clear that the district court should not
have to delve into the history of the Guidelines to satisfy itself that they make sense, but
instead, can defer to the institutional authority of the Commission. Consequently, the
government urged, the District Court should accept the enhancement, because it is
appropriate in light of the criminal history of this Defendant.
Following these arguments, the Court said it “ha[d] to agree with the government.”
(Serafin-Arroyo App. 50.) The Court sentenced Serafin-Arroyo to 41 months
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imprisonment, a sentence within the Guidelines range. The District Court gave particular
weight to Serafin-Arroyo’s repeated illegal reentries and his extensive criminal history,
explaining that this sentence was calculated to “discourage him from any attempted
reentries.” (Serafin-Arroyo App. 52.)
II. Discussion
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We review a
district court’s sentence for abuse-of-discretion. Gall v. United States, 552 U.S. 38, 51
(2007). In United States v. Tomko, we recognized that it is not an abuse of discretion for a
district court at sentencing to hear extensive argument on an issue and then to rely on and
reference such arguments when immediately thereafter announcing the sentence. 562
F.3d 558, 568-69 (3d Cir. 2009)(en banc).
On appeal, Serafin-Arroyo argues that the District Court committed the procedural
error of “failing to adequately explain the chosen sentence” by not specifically stating its
reason for refusing the variance request in addition to the explanation offered for the
sentence itself. (Appellant’s Br. at 17.) Serafin-Arroyo urges that the District Court’s
“very brief ruling makes it unclear that the [D]istrict [C]ourt properly understood the
request for a variance” from the Guidelines range. (Appellant’s Br. at 3.)
There is nothing in the record to suggest that the District Court failed to consider
or understand the request for a variance. Indeed, the Court listened to arguments on the
variance issue from both parties before stating it agreed with the Government. Moreover,
the Court specifically stated that it came to the sentence after “considering the parties’
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arguments and statements here today.” (Serafin-Arroyo App. 51.) This acknowledgement
does not suggest that the District Court did not “consider[] the parties’ arguments [or]
ha[ve] a reasoned basis for exercising his own legal decisionmaking authority.”
(Appellant’s Br. at 17. (quoting Rita v. United States, 551 U.S. 338, 356 (2007))) To the
contrary, it is clear that the District Court fully understood the variance request and then
addressed it by agreeing with the Government’s position and citing Serafin-Arroyo’s
criminal history as the reason for choosing a within-range sentence. Accordingly, we find
that the District Court did not abuse its discretion.
III. Conclusion
For the foregoing reasons, the District Court’s sentence is affirmed.
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