United States v. Jose Pineda-Parada ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0424n.06
No. 12-5924 FILED
Apr 26, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
JOSE ELIGIO PINEDA-PARADA, aka )
Alfredo Gallardo-Parada, aka Marlon )
Quinones-Bonilla, )
)
Defendant-Appellant. )
)
BEFORE: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.*
PER CURIAM. Jose Eligio Pineda-Parada appeals his ninety-two month sentence for illegal
reentry into the United States. Because Pineda-Parada’s sentence is procedurally and substantively
reasonable, we affirm the district court’s judgment.
After a one-day trial, a jury convicted Pineda-Parada, a native and citizen of El Salvador, of
illegal reentry by an alien who had been deported from the United States subsequent to an aggravated
felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). Pineda-Parada’s presentence report
set forth an advisory sentencing guidelines range of ninety-two to 115 months of imprisonment, after
a sixteen-level enhancement for his 1991 conviction for aggravated assault pursuant to USSG
*
The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
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§ 2L1.2(b)(1)(A). Pineda-Parada did not object to the sentencing guidelines calculation, but filed
a sentencing memorandum requesting a sentence below that range pursuant to 18 U.S.C. § 3553(a).
Pineda-Parada urged the district court to consider the age of his aggravated assault conviction, the
social and economic conditions from which he fled El Salvador, and his alcoholism, which led to
his many arrests for alcohol-related offenses. Pineda-Parada further argued that the sentencing
guidelines range overrepresented his criminal history, citing the staleness of his aggravated assault
conviction and his lack of additional violent offenses. He also asserted that the sixteen-level
enhancement pursuant to § 2L1.2(b)(1)(A) was unreasonable. At sentencing, the district court
rejected Pineda-Parada’s request for a below-guidelines sentence and sentenced him to ninety-two
months of imprisonment.
In this timely appeal, Pineda-Parada contends that his sentence is procedurally and
substantively unreasonable. We review criminal sentences for procedural and substantive
reasonableness “under the deferential abuse-of-discretion standard.” United States v. Battaglia, 624
F.3d 348, 350 (6th Cir. 2010).
We “must first ensure that the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51
(2007). Pineda-Parada argues that his sentence is procedurally unreasonable because the district
court failed to address all of his arguments for a below-guidelines sentence and failed to fully address
all of the § 3553(a) factors. Because Pineda-Parada failed to challenge the adequacy of the district
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court’s explanation for his sentence when he had the opportunity to do so, we review his argument
for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).
The district court expressly considered Pineda-Parada’s staleness argument, noting that his
aggravated assault conviction “is quite old.” The district court also acknowledged a case cited by
Pineda-Parada as questioning the sixteen-level enhancement under § 2L1.2(b)(1)(A) by stating that
the judge in that case “has a distinctly different view of the guidelines than I do.” After listing the
relevant § 3553(a) factors, the district court stated:
I look at the defendant’s history, and I see that in Del Rio, Texas, back in . . . 2001,
he reentered the United States after being deported for an aggravated felony and
received a sentence of forty-six months.
That . . . should have given the defendant a fair warning that a reentry again . . .
would be dealt with severely.
The – but after – after being deported, the defendant comes back into the country.
Not only does he come back into the country, he has been charged and convicted of
drinking in a public place, operating a motor vehicle under the influence of drugs or
alcohol, solicitation of prostitution, another operating the vehicle under the influence
of drugs or alcohol and then again relatively minor thing of no registration plates.
He only knew what he was facing when he came back in, but he ended up getting
involved with the law again.
So I have to think about promoting respect for the law and to provide just punishment
for the offense while to defer [sic] criminal conduct and with all these driving
offenses to protect the public from – from the defendant.
In sum, I believe a sentence at the bottom end of the guidelines will be sufficient but
not greater than necessary to comply with the purposes of Section 3553A.
By discussing Pineda-Parada’s prior reentry conviction and his criminal offenses subsequent
to that conviction, the district court addressed his arguments regarding the overrepresentation of his
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criminal history “and rejected the merits of those arguments by logical implication.” United States
v. Chiolo, 643 F.3d 177, 184 (6th Cir. 2011). Where, as here, the district court “addressed the
relevant factors in reaching its conclusion, the court need not explicitly consider each of the
§ 3553(a) factors or engage in a rote listing or some other ritualistic incantation of the factors.”
United States v. Kirchhof, 505 F.3d 409, 413 (6th Cir. 2007). The district court committed no
procedural error, plain or otherwise, in explaining the chosen sentence.
A procedurally reasonable sentence “may be substantively unreasonable if the district court
chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or unreasonably
weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011). We afford
Pineda-Parada’s within-guidelines sentence a rebuttable presumption of substantive reasonableness.
Id.
Pineda-Parada contends that his sentence is substantively unreasonable because the district
court imposed a sentence within the sentencing guidelines range without allowing for the age of his
aggravated assault conviction. In the cases cited by Pineda-Parada, United States v. Amezcua-
Vasquez, 567 F.3d 1050, 1056 (9th Cir. 2009), and United States v. Chavez-Suarez, 597 F.3d 1137,
1138–39 (10th Cir. 2010), the Ninth and Tenth Circuits held that the staleness of an underlying
conviction may, under certain circumstances, warrant a below-guidelines sentence. As the district
court specifically noted, Pineda-Parada’s aggravated assault conviction “is quite old,” but the
conviction is not so old that it did not receive criminal history points. See USSG § 4A1.2(e)(1).
Since Pineda-Parada’s aggravated assault conviction, he has been deported four times; convicted of
illegal reentry and sentenced to 46 months of imprisonment; and convicted of several other criminal
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offenses. Under these circumstances, the district court did not abuse its discretion in imposing a
within-guidelines sentence.
Pineda-Parada further argues that the district court abused its discretion in failing to account
for unwarranted sentencing discrepancies in illegal reentry cases among various federal districts.
Pineda-Parada concedes that the 2002 article cited in support of this argument attributes the
discrepancy, in part, to “fast track” programs, which were not available to him because he did not
plead guilty. In any event, we have held that avoiding unwarranted sentence disparities is an
“unconventional ground for challenging a within-guidelines sentence,” such as Pineda-Parada’s
ninety-two month sentence, because “[t]he point of the guidelines is to decrease sentencing
disparities, an objective furthered by a within-guidelines sentence, as opposed to a sentence that
varies above or below the advisory guidelines range.” United States v. Swafford, 639 F.3d 265, 270
(6th Cir. 2011) (emphasis in original).
Finally, Pineda-Parada contends that the sixteen-level enhancement under § 2L1.2(b)(1)(A)
is itself unreasonable, not only for failing to consider the staleness of a defendant’s predicate
conviction, but also for requiring such a severe enhancement in the absence of any empirical
evidence that such an enhancement serves § 3553’s sentencing goals. Although the district court
could reject the sentencing guidelines range based on a policy disagreement with the sixteen-level
enhancement, “the fact that a district court may disagree with a Guideline for policy reasons and may
reject the Guidelines range because of that disagreement does not mean that the court must disagree
with that Guideline or that it must reject the Guidelines range if it disagrees.” Brooks, 628 F.3d at
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800 (emphasis in original). Pineda-Parada has failed to overcome the presumption of substantive
reasonableness of his within-guidelines sentence.
For the foregoing reasons, the district court’s judgment is affirmed.
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