United States v. Hernandez-Martinez ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 18, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 06-40271
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN HERNANDEZ-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:
Appellant Juan Hernandez-Martinez (“Martinez”) appeals
his revocation sentence, arguing inter alia that the district court
improperly based his sentence on the Guideline for illegal reentry
to the United States, a crime he committed but was not charged
with. Under the applicable plain error standard of review,
Martinez cannot establish that the district court used an improper
sentencing consideration, and his sentence is AFFIRMED.
I. BACKGROUND
Hernandez’s first appearance before the district court
occurred in 1999, when he pled guilty to one count of possession
with intent to distribute cocaine, an offense that carried a
statutory penalty of one hundred twenty months. Hernandez’s
criminal history made him safety-valve eligible, reducing the
applicable Guidelines range to seventy to eighty-seven months.
Based on his substantial assistance to the Government, however, the
court granted a significant downward departure and sentenced
Hernandez to only forty-eight months imprisonment, to be followed
by five years’ supervised release. Among the conditions of super-
vised release were that: (1) Hernandez was not to commit another
federal, state, or local crime; (2) if deported, Hernandez was not
to reenter the United States illegally; and (3) if Hernandez
returned to the United States, he was to report to the nearest
United States Probation Office.
After completing his sentence, Hernandez was released
from prison in May 2002, and deported to his home country of
Mexico. His homecoming was short-lived. Hernandez returned to the
United States illegally approximately a year and a half after his
deportation and began working in a mattress factory in Chicago,
Illinois. In 2005, he was arrested for shoplifting from a
JC Penney store. Hernandez was released on bond, but after he was
detained following a traffic stop, the Probation Office was
notified of the arrest. Hernandez was not charged in Illinois with
either theft or illegal reentry, but the United States Government
sought to revoke his supervised release for three separate
violations: (1) committing theft; (2) unlawfully reentering the
United States; and (3) failing to report to the Probation Office
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upon reentry. Hernandez was sent from Illinois to Texas for
revocation proceedings.
At the revocation hearing, Hernandez appeared before the
same judge who had granted him a significant downward departure in
his cocaine possession sentence, and he pleaded true to the three
violations. The court expressed displeasure that Hernandez had
blatantly disregarded the provisions surrounding his supervised
release and that the prior sentence had not deterred his criminal
activity. The court also expressed frustration with the failure of
the U.S. Attorney’s office in Chicago to prosecute Hernandez, and
others similarly situated, for illegal reentry into the United
States, instead sending them to the Southern District of Texas for
revocation proceedings. After discussing with counsel Hernandez’s
violations, the prior downward departure, and the lack of an
illegal reentry prosecution, the court inquired what the Guidelines
sentence for illegal reentry would have been. The Probation
Officer advised the court that Hernandez would have faced forty-six
to fifty-seven months imprisonment had he been prosecuted in
Illinois for illegal reentry. Concluding that the revocation
Guideline of four to ten months did not adequately address this
type of violation and that the prior sentence had served as an
insufficient deterrent, the court sentenced Hernandez to forty-six
months — significantly above the Guidelines range but well below
the statutory maximum of five years for revocation.
3
Hernandez appeals, asserting that he was impermissibly
sentenced for his uncharged illegal reentry rather than for his
underlying drug offense, and that his sentence is thus unreason-
able, plainly unreasonable, and an abuse of discretion.
II. DISCUSSION
A. Preservation of Error
The Government argues that Hernandez raises his reason-
ableness objection for the first time on appeal, and we therefore
should review only for plain error. See FED. R. CRIM. P. 52(b);
United States v. Olano, 507 U.S. 725, 732-34, 113 S. Ct. 1770,
1776-78 (1993). Hernandez, however, asserts that he preserved his
objection below by requesting a sentence at the low end of the four
to ten month Guidelines range. He contends that this request
preserves all claims of sentencing error generally, and that he can
now present any argument in support thereof.
Hernandez is incorrect that simply asking the court to
sentence him within the Guidelines preserves an argument of
specific legal error. Nowhere before the district court did
Hernandez object that the sentence was unreasonable, nor did he
alert the court to the legal argument he now presents that the
court considered an inappropriate factor and impinged on
prosecutorial discretion.1 Were a generalized request for a
1
That Hernandez presents a specific legal error distinguishes this
case from those that have held that the defendant need not specifically object
that a sentence is “unreasonable” to preserve a reasonableness objection on
appeal. Compare United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir.
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sentence within the Guidelines sufficient, a district court would
not be given an opportunity to clarify its reasoning or correct any
potential errors in its understanding of the law at sentencing, and
its efforts to reach a correct judgment could be nullified on
appeal. See United States v. Reyes, 102 F.3d 1361, 1365 (5th Cir.
1996) (“[A] contrary decision . . . would encourage the kind of
sandbagging that the plain error rule is, in part, designed to
prevent”).
Here, the district court expressed frustration both at
the failure of the Government to charge illegal reentry and the
fact that Hernandez had not taken the opportunity arising from a
lenient sentence to stay within the law. It did not specify which
of these was its motivating factor, nor was it asked to do so by
Hernandez. Similarly, as the court was not on notice that its
statements were being construed in the manner in which Hernandez
now characterizes them, it is unclear whether, by questioning the
Government as to its failure to charge reentry, the district court
was using that as a basis on which to sentence Hernandez, or simply
expressing displeasure at the Government’s charging practices.
Had the defense objected at sentencing, the court easily
could have clarified or, if necessary, corrected itself. Cf. id.(“[I]f Reyes had objected to the district court’s instructions, the
court would certainly have corrected its error”). Because it was
2006) with United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005).
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not on notice of the arguments Hernandez now presents, however, it
was not given that opportunity. We therefore review the case only
for plain error. See United States v. Dominguez Benitez, 542 U.S.
74, 82, 124 S. Ct. 2333, 2340 (2004) (policy behind plain error
standard is “to encourage timely objections and reduce wasteful
reversals by demanding strenuous exertion to get relief for
unpreserved error”). To prevail, Hernandez must establish: (1) an
error; (2) that is clear and obvious; and (3) that affected his
substantial rights. Olano, 507 U.S. at 732-34, 113 S. Ct. at
1776-78. If these conditions are met, this court can exercise its
discretion to notice the forfeited error only if “the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 732, 113 S. Ct. at 1776 (internal
quotation marks omitted).
B. Reasonableness
Before United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005), revocation sentences were reviewed under the “plainly
unreasonable” standard set forth in 18 U.S.C. § 3742(e)(4). See
United States v. Moody, 277 F.3d 719, 720 (5th Cir. 2001). In
Booker, however, the Supreme Court excised 18 U.S.C. § 3742(e) and
instructed appellate courts to review criminal sentences, no longer
controlled by the sentencing Guidelines, for reasonableness. See
Booker, 543 U.S at 260-61, 125 S. Ct. at 764-66. The parties
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dispute whether this reasonableness standard of review applies to
revocation sentences.
According to Hernandez, the reasonableness standard
should apply to any non-Guidelines sentences, whether original or
revocation. Thus, we would consider whether the sentence:
(1) fails to account for a factor that should have received
significant weight; (2) gives significant weight to an irrelevant
or improper factor; or (3) represents a clear error of judgment in
balancing the sentencing factors. See United States v. Duhon, 440
F.3d 711, 715 (5th Cir. 2006). Four circuits agree with Hernandez
and have applied Booker’s reasonableness standard to revocation
sentences.2 Courts have also observed that because this test is
substantially equivalent to the plainly unreasonable standard,
little has changed post-Booker. See Sweeting, 437 F.3d at 1106;
Tedford, 405 F.3d at 1161; Cotton, 399 F.3d at 916.
In contrast, the Government advocates adherence to the
pre-Booker plainly unreasonable standard. Unlike the Guidelines
applicable to original sentences, the Guidelines for revocation
sentences have always been advisory. See United States v.
Escamilla, 70 F.3d 835, 835 (5th Cir. 1995) (per curiam).
Logically, Booker’s ripple effects should not extend to the
revocation context. The Fourth Circuit persuasively reasons that
2
See United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006)(per curiam); United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.
2005); United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005); United States
v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005).
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§ 3742(a)(4), which authorizes the “plainly unreasonable” standard
for revocation sentences, was not invalidated by Booker. United
States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). While that
provision does not create a standard of review, the court noted, it
would be “incongruous that a defendant limited to asserting that
his revocation sentence is ‘plainly unreasonable,’ would be allowed
to argue that his sentence should be reversed because it is
‘unreasonable.’” Id. Additionally, the Guidelines commentary and
statutory provisions “suggest that revocation sentences should not
be treated exactly the same as original sentences,” because the
context of sentencing differs in each instance. Id. The goal of
a revocation sentence is to punish the defendant for the violation
of supervised release, not the underlying offense. Id. (citing
United States Sentencing Commission, Guidelines Manual, ch. 7,
pt. A, introductory cmt. 3(b)).
There are other indications that the same standard of
review should not apply to revocation and original sentences. For
example, the Sentencing Commission “chose to promulgate less
precise, nonbinding policy statements” for revocation sentences.
Id. at 438. Additionally, in § 3583(e), which governs revocation
sentences, Congress provided that only some of the factors set
forth in § 3553(a), which are to be considered when imposing a
sentence, also apply in revocation proceedings. Id. Finally,
Congress used both the terms “unreasonable” and “plainly
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unreasonable” in § 3742(e), suggesting it intended the two terms to
be distinct, and “plainly” was not mere surplusage. Id.
Ultimately, any difference between the two proffered
standards of review for a revocation sentence would not affect
Hernandez’s fate. The plain error standard of review clearly
forecloses appellate relief. Although the district court expressed
displeasure at the Government’s failure to charge Hernandez with
illegal reentry, it is not evident that it based his sentence on
that ground; it is equally or more plausible that the court based
his sentence on the fact that it gave Hernandez a significant
downward departure in his original sentence. Thus, if there was
any error, it is not plain. Because Hernandez did not object at
sentencing and give the court an opportunity to clarify itself, we
are unable to conclude that the court based his sentence on an
impermissible factor. Moreover, that the forty-six month sentence
is significantly below the statutory five-year maximum on
revocation strongly counsels against its being held reversible on
plain error review.
III. CONCLUSION
For the foregoing reasons, Hernandez’s sentence is
AFFIRMED.
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