United States v. Abraham Ceron-Lopez ( 2013 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 12-3167
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Abraham Ceron-Lopez
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: February 11, 2013
    Filed: March 15, 2013
    [Unpublished]
    ____________
    Before LOKEN, BOWMAN, and SHEPHERD, Circuit Judges.
    ____________
    PER CURIAM.
    Abraham Ceron-Lopez, a citizen of Mexico illegally present in the United
    States, challenges the forty-five-month sentence imposed by the District Court1 after
    1
    The Honorable Dean Whipple, United States District Judge for the Western
    District of Missouri.
    he pleaded guilty to three counts involving the possession and creation of fraudulent
    visas, permits, and other documents. See 
    18 U.S.C. § 1546
    (a). We affirm.
    Based on a tip from a confidential informant, agents from the Department of
    Homeland Security (DHS) confronted Ceron-Lopez in a grocery-store parking lot and
    obtained consent to search his vehicle and, later, his residence. The searches resulted
    in the seizure of thousands of completed, partially completed, and blank identification-
    , employment-, and immigration-related documents and materials along with computer
    equipment, a card-cutting machine, and a laminating machine. The Presentence
    Investigation Report (PSR), to which Ceron-Lopez did not object, noted that 2,990
    actual documents were recovered, namely:
    301 permanent resident alien cards; 8 social security cards; 39 state
    identification/driver’s licenses; 211 Mexican identification cards; 5 blank
    Mexican birth certificates; 2 Missouri 30-day car tags; 124 other cards
    (with optical memory stripe, wrapped and unopened) and 2,300 blank
    cards.
    PSR ¶ 15. The PSR calculated a sentencing range of twenty-four to thirty months’
    imprisonment, and again Ceron-Lopez did not object. At Ceron-Lopez’s sentencing
    hearing, a DHS agent testified that in addition to the 2,990 actual documents, 2,907
    virtual documents were recovered from the computer equipment and storage devices
    seized from Ceron-Lopez’s vehicle and residence. Because the offense involved an
    exceptionally large number of documents, the government requested an upward
    departure to a sentencing range of thirty-seven to forty-six months’ imprisonment. See
    U.S. Sentencing Guidelines Manual § 2L2.1 cmt. n.5 (“If the offense involved
    substantially more than 100 documents, an upward departure may be warranted.”).
    In the alternative, the government requested an upward variance to a minimum
    sentence of forty months. Ceron-Lopez argued for a sentence below the advisory
    Guidelines range, citing his age, lack of criminal history, cooperation with law
    enforcement, acceptance of responsibility, and likely deportation.
    -2-
    The District Court sentenced Ceron-Lopez to forty-five months’ imprisonment,
    electing to impose an upward variance rather than an upward departure. On appeal,
    Ceron-Lopez argues that the District Court committed both procedural and substantive
    sentencing error.
    We review the imposition of a sentence under a deferential abuse-of-discretion
    standard. Gall v. United States, 
    552 U.S. 38
    , 51 (2007). “A district court abuses its
    discretion when it fails to consider a relevant factor, gives significant weight to an
    irrelevant or improper factor, or considers only appropriate factors but nevertheless
    commits a clear error of judgment . . . .” United States v. Jones, 
    509 F.3d 911
    , 913
    (8th Cir. 2007), cert. denied, 
    553 U.S. 1088
     (2008)). We first determine whether the
    district court committed any significant procedural error, “such as failing to calculate
    (or improperly calculating) the Guidelines range, . . . failing to consider the § 3553(a)
    factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
    explain the chosen sentence.” Gall, 
    552 U.S. at 51
    . Although a court commits
    procedural error if it fails to consider the § 3553(a) factors, it is not required to recite
    each of the factors on the record, nor is it required to address each argument raised by
    the defendant. United States v. Barron, 
    557 F.3d 866
    , 868 (8th Cir. 2009). If the
    district court committed no procedural error, we then determine whether the sentence
    is substantively reasonable. Gall, 
    552 U.S. at 51
    . It is “the unusual case when we
    reverse a district court sentence—whether within, above, or below the applicable
    Guidelines range—as substantively unreasonable.” United States v. Feemster, 
    572 F.3d 455
    , 464 (8th Cir. 2009) (en banc) (quotation marks and citation to quoted case
    omitted).
    The District Court committed no procedural error in sentencing Ceron-Lopez.
    After considering the undisputed Guidelines range, the unobjected-to facts outlined
    in the PSR, the testimony and evidence received at the sentencing hearing, and the
    parties’ sentencing arguments, the court found that the Guidelines range did not
    adequately account for the “vast number of documents” involved in the offense, and
    -3-
    it departed upward to a sentence of forty-five months’ imprisonment. Sent. Tr. at 44.
    Citing § 3553(a), the court reasoned that the chosen sentence was necessary to address
    the “seriousness of th[e] offense” and to “afford adequate deterrence to” Ceron-Lopez
    and others. Id. The court also specifically noted that Ceron-Lopez’s cooperation with
    authorities was a significant factor in the court’s decision not to impose the statutory
    maximum sentence of ten years’ imprisonment.
    Ceron-Lopez also argues that the District Court clearly erred by relying on an
    erroneous calculation of the number of documents involved in the offense. See
    Feemster, 572 at 461 (noting that “procedural error” includes, among other things,
    selecting a sentence based on clearly erroneous facts). Ceron-Lopez did not, however,
    object to the PSR’s description of the 2,990 actual documents involved in the offense.
    Accordingly, he is deemed to have admitted that his offense involved at least this
    number of documents. See United States v. Cullen, 
    432 F.3d 903
    , 905 (8th Cir. 2006).
    The court noted that even if it considered only this number of documents, the advisory
    Guidelines sentence was inadequate and an upward variance was appropriate. See
    Sent. Tr. at 44 (stating that a Guidelines sentence was “inadequate” even if only the
    “actual documents” were considered).
    In sum, the District Court committed no procedural sentencing error. The court
    did not rely on clearly erroneous facts; it adequately considered the § 3553(a) factors
    and explained its reasons for the term imposed; and nothing in the record indicates
    that the court failed to consider a relevant sentencing factor, gave significant weight
    to an improper or irrelevant factor, or committed a clear error of judgment in weighing
    the relevant factors. See Feemster, 
    572 F.3d at 461
    .
    Ceron-Lopez also argues that the District Court abused its discretion by
    imposing a sentence that is substantively unreasonable. Specifically, he argues that
    the court failed to perform its duty to avoid unwarranted sentencing disparities
    because it sentenced him more harshly than other similarly situated defendants. In
    -4-
    support of this argument, Ceron-Lopez cites several cases from other circuits and
    argues that those defendants received shorter sentences for offenses that involved a
    greater number of documents. We reject Ceron-Lopez’s argument because he does
    not explain how the defendants in the cases cited were similarly situated in terms of
    conduct, criminal history, acceptance of responsibility, or other relevant factors. See
    United States v. Boneshirt, 
    662 F.3d 509
    , 519 (8th Cir. 2011) (noting that a sentencing
    court is not prohibited from finding that a sentencing disparity is warranted), cert.
    denied, 
    132 S. Ct. 1613
     (2012). That the District Court’s evaluation of the facts and
    circumstances presented in this case resulted in a lengthier sentence than Ceron-Lopez
    had hoped for does not constitute an abuse of discretion. The District Court did not
    impose a substantively unreasonable sentence.
    For the foregoing reasons, we affirm the judgment of the District Court.
    ______________________________
    -5-
    

Document Info

Docket Number: 12-3167

Judges: Loken, Bowman, Shepherd

Filed Date: 3/15/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024