United States v. Elias Morales-Morale , 321 F. App'x 176 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-7-2009
USA v. Elias Morales-Morale
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2181
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2181
UNITED STATES OF AMERICA
v.
ELIAS MORALES-MORALES
a/k/a
Cruz Franco
a/k/a
Marlon Rivera
a/k/a
Franco Cruz
a/k/a
Evelio Rodesno
a/k/a
Cruz I. Franco
a/k/a
Efrain Hernandez-Rivera
a/k/a
Rogerlio I. Acevado
a/k/a
Rogelio Acevado,
Elias Morales-Morales,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 1-07-cr-00034-001)
District Judges: Honorable Sean J. McLaughlin
Submitted Under Third Circuit LAR 34.1(a)
March 27, 2009
Before: RENDELL, AMBRO, and JORDAN, Circuit Judges
(Opinion filed April 07, 2009)
OPINION
AMBRO, Circuit Judge
Elias Morales-Morales (hereinafter “Morales”) appeals his within-Guidelines
sentence of 90 months’ imprisonment for one count of illegal reentry of a removed alien,
in violation of 8 U.S.C. § 1326.1 He argues that his sentence is procedurally unreasonable
for three reasons: (1) it was longer than necessary to accomplish the sentencing goals set
forth in 18 U.S.C. § 3553(a); (2) the 16-level enhancement to his offense level under the
U.S. Sentencing Guidelines § 2L1.2 reflected impermissible double-counting; and (3) the
District Court improperly disregarded his motive for illegally reentering the United
States. For the following reasons, we affirm the District Court’s sentence.
I.
A. Background
Morales is a Mexican citizen who illegally reentered the United States in 2005
after being removed in 2004. He was caught two years later, in 2007, when the
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2
Pennsylvania State Police responded to the report of a fight at a campground, during
which Morales pulled a knife on another man. The police arrested Morales. While in
custody, he repeatedly lied to police about his name and nationality. His true identity was
confirmed only after he was fingerprinted. He also stated that he did not fear harm if
removed to Mexico. Thereafter, he was indicted in the Western District of Pennsylvania
for illegally reentering the United States.
Morales’s criminal history in the United States is lengthy, amounting to eight
convictions and several more arrests that date back to the late 1990s. He has repeatedly
violated parole, and his less serious criminal convictions include multiple counts of theft,
driving with a suspended license, reckless driving while under the influence, and giving
false identification to law enforcement. He also has a history of lying about his identity,
as is obvious by the long list of aliases included in the caption to this case.
His two most serious convictions involve resisting arrest by breaking the hand of
an officer who was trying to arrest him during a multi-vehicle hit-and-run episode in 2000
and committing a lewd and lascivious act upon a girl under the age of 14 (felony assault)
in 2002. For the former crime he was sentenced to three years in California state prison,
and for the latter crime he was sentenced to two years in prison. He did not serve the full
term for either conviction. When Morales was paroled in 2004, he was, as noted,
removed to Mexico.
B. Guilty Plea and Sentencing for Illegal Reentry
In 2008 the District Court held a change-of-plea hearing, during which Morales
3
pled guilty to illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326.
The Presentence Report prepared by the Probation Office (the “PSR”) included
Morales’s previous criminal convictions and his statement to Pennsylvania police officers
that he did not fear harm if removed to Mexico. It calculated his recommended
Sentencing Guidelines range between 77 and 96 months’ imprisonment, which included a
16-level increase to his offense level pursuant to Guidelines § 2L1.2 (“Unlawfully
Entering or Remaining in the United States”). Morales filed one objection to the PSR,
which he later withdrew at the sentencing hearing.
At that hearing, Morales conceded that the recommended Guidelines range set out
in the PSR was proper, but asserted that a sentence at the bottom of the range would be
“sufficient” to achieve the statutory sentencing goals. Morales also made a short
statement, indicating that he feared removal because of a “grudge against his family.” In
response, the Government noted that Morales had lied repeatedly to authorities. He also
offered no corroborating evidence beyond his statements and acknowledged that he had
lied about his identity when arrested. At the end of the colloquy, the Court adopted the
PSR and considered the applicable 18 U.S.C. § 3553(a) sentencing factors to determine
that 90 months’ imprisonment was an appropriate sentence.
II.
The Sentencing Guidelines are advisory, and no longer mandatory, following the
Supreme Court’s decision in United States v. Booker. See Gall v. United States, 128 S.Ct.
586, 594 (2007) (citing Booker, 543 U.S. 220 (2005)). We review a sentence under a
4
deferential “abuse of discretion” standard. Id. “[O]ur role is two-fold. We must first
ensure that the district court committed no significant procedural error in arriving at its
decision.” United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). Examples of
procedural errors include “‘failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.’” Id. (quoting Gall, 128 S.Ct. at 597). With respect to the
applicable § 3553(a) factors, the court need not “discuss and make findings as to each of
[them] if the record makes clear [it] took the factors into account in sentencing” and gave
them “meaningful consideration.” Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (internal
citations omitted). Instead, a sentencing judge “‘should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.’” United States v. Lessner, 498 F.3d
185, 203 (3d Cir. 2007) (quoting Rita v. United States, 551 U.S. 338, __, 127 S.Ct. 2456,
2468 (2007)).
If we conclude that a court committed no procedural error, we then review the
substantive reasonableness of the sentence. “As long as a sentence falls within the broad
range of possible sentences that can be considered reasonable in light of the § 3553(a)
factors, we must affirm.” Wise, 515 F.3d at 218 (citation omitted).
A. Severity of the Sentence
Morales argues that his sentence is greater than necessary to meet the sentencing
5
goals of punishment and deterrence. At the sentencing hearing, he argued that a sentence
at the bottom of the Guidelines range, or 77 months, would be more than six times longer
than any one of his previously served terms of imprisonment. He asserted that “this
dramatic increase in sentence is sufficient, but not greater than necessary[,] to punish [ ]
and deter him and others from illegally reentering the country.”
Although Morales claims that his sentence is procedurally unreasonable,
essentially he also challenges its substantive reasonableness. We do not view this solely
as a procedural issue because the District Court gave “meaningful consideration” to the
applicable § 3553(a) sentencing factors in fashioning his sentence. See Lessner, 498 F.3d
at 203. The Court specifically discussed the need to punish Morales for illegal reentry
and deter him from committing future offenses.2 It listed his prior convictions, noting the
more serious nature of the offenses over time and his “significant criminal history.”
Given this history, the Court stated that he “has proved to represent a danger to the
community, including children.” It also believed that he likely would try to reenter the
United States after removal, such that the punishment given was needed to protect the
public and provide some measure of deterrence so that he and others would “know that
there are serious consequences to [these actions].”
There is also no question that his sentence of 90 months’ imprisonment is
substantively reasonable. Given, among other things, his long and serious rap sheet,
2
We note that the authorities detected Morales’s illegal reentry only after he was
arrested for a violent assault involving a knife, although he was never indicted for the
latter crime.
6
repeated lies to authorities, lack of history of gainful employment or other productive
efforts in the United States, and failure of his previous periods of incarceration to provide
deterrence, this argument borders on disdainful.
B. Double-Counting
Morales next argues that the Guidelines range was flawed because Guidelines
§ 2L1.2, which is the sentencing companion to 8 U.S.C. § 1326, impermissibly double-
counts prior convictions in the offense level and the criminal history category when
calculating the Guidelines range. See U.S. Sentencing Commission Guidelines Manual
§ 2L1.2(b)(1)(c) (adding eight levels for the “specific offense characteristic” of a
“conviction for an aggravated felony” to the base offense level of eight, totaling 16). This
is a new legal argument on appeal. It was not presented before the District Court as a
formal objection to the PSR’s Guidelines calculations, nor was it argued at the sentencing
hearing. See Fed. R. Crim. Proc. 32(f) (“Within 14 days after receiving the presentence
report, the parties must state in writing any objections, including objections to material
information, sentencing guideline ranges, and policy statements contained in or omitted
from the report.”) (emphases added).
Prior to sentencing, Morales’s counsel only lodged one formal objection to the
PSR’s calculations under another Guidelines section and unrelated to his current
argument. In any event, he withdrew that objection at the sentencing hearing.
Consequently, neither the Court nor the Government could give this argument proper
consideration. Although we may have some discretion to consider a legal argument “‘not
7
raised in the district court when prompted by exceptional circumstances,’” this is not such
a situation, and thus we deem the argument waived. See Bagot v. Ashcroft, 398 F.3d 252,
256 (3d Cir. 2005) (quoting Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir.
1983)) (noting that “[i]t is well established that failure to raise an issue in the district court
constitutes a waiver of the argument in this Court,” but may be considered in an
“exceptional case”) (internal quotations and citations omitted); see also United States v.
Ausburn, 502 F.3d 313, 329 (3d Cir. 2007) (stating that a district court “must
acknowledge and respond to any properly presented sentencing argument which has
colorable legal merit and factual basis”) (emphasis added).
To the extent Morales’s argument also raises a procedural issue, we do not view
that remand is necessary here. At the hearing, counsel argued that Morales has a
“troubling” history of “priors,” but that the severity of the sentence is “due primarily to
the sixteen-level increase to his offense level for the prior conviction in California”
because
the way the guidelines function in this particular reentry situation is those
priors have not only been taken into account in the criminal history categories,
they’ve been taken into account very dramatically in the offense level. All of
that is proper under the calculations of the guidelines. But I do think that it is
important when you are trying to determine what ultimate sentence to impose,
that the point be made and be considered by the court.
Appellant’s App. 42–43. That short statement was the extent of counsel’s position, and it
conceded the propriety of the Guidelines calculations. Based on the record, counsel was
asking for leniency in sentencing, or some type of variance from the proper Guidelines
8
calculations in light of the perceived severity of the Guidelines range.
Although the Court did not address the double-counting issue explicitly, in
explaining Morales’s sentence it thoroughly explained why the within-Guidelines
sentence was proper under § 3553(a). Its reasoning was based in large part on Morales’
extensive criminal history, which crimes also underlie the double-counting argument (see
discussion in subpart A). In this context, we do not believe the Court committed
procedural error.3
C. Motive for Reentry
Morales also claims that his sentence is procedurally unreasonable because the
District Court did not discuss his alleged motive for reentry. He asserts that he illegally
reentered the United States because he fears for his life in Mexico. Although counsel did
not raise this argument for mitigation at sentencing, Morales himself stated as much at his
guilty plea and sentencing colloquies.4
This is a case where “the record makes clear that the [Court] considered the
evidence and arguments, [and] we do not believe the law requires [it] to write more
extensively.” Rita, 127 S.Ct at 2469. During the sentencing hearing, the Court listened to
3
We make no broad statement concerning double-counting and procedural error in
other sentencing cases. See, e.g., United States v. Robertson, No. 07-5904, 2009 WL
260705 (6th Cir. Feb. 4, 2009), a not-precedential opinion brought to our attention by
Morales’s Federal Rule of Appellate Procedure 28(j) letter.
4
During Morales’s guilty plea hearing, the District Court correctly noted that it was not
interested in his motive at that time. See United States v. Dyer, 325 F.3d 464, 471 (3d
Cir. 2003) (“It is evident from the language of 8 U.S.C. § 1326 that the motive of the
illegal entrant in reentry is irrelevant to the commission of the offense.”).
9
the parties’ arguments, including Morales’s short statement, and engaged both counsel
and Morales in discussion. “[It] then simply found these [mitigating] circumstances
insufficient to warrant a sentence” at the bottom of the Guidelines range. Id. It
thoroughly explained why the applicable § 3553(a) sentencing factors warranted a
sentence near the top of that suggested range. Specifically, it stated that Morales’s
situation was “distinctly different from a number of other illegal entry cases that have
come through here. And it is most notably different by the significant criminal history of
this defendant.” In the end, it adopted the PSR, which was not objected to by Morales’s
counsel.
*****
For the reasons stated above, we affirm the District Court’s within-Guidelines
sentence of 90 months’ imprisonment.
10