United States v. Jerry Cruz-Lopez , 472 F. App'x 478 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50522
Plaintiff - Appellee, D.C. No. 3:10-cr-01676-GT-1
v.
MEMORANDUM *
JERRY LUIS CRUZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Submitted March 9, 2012 **
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
Jerry Luis Cruz-Lopez appeals his above-Guidelines sentence of 36 months’
imprisonment for using false documents to obtain entry into the United States in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 18 U.S.C. § 1546(a). We have jurisdiction under 28 U.S.C. § 1291 and
affirm.
The United States charged Cruz with unlawful entry after deportation in
violation of 8 U.S.C. §§ 1326(a) and (b). It then filed a superseding information
charging Cruz with using false documents to obtain entry in violation of 18 U.S.C.
§ 1546(a). Cruz pled guilty to the § 1546(a) charge.
A probation officer prepared a presentence report detailing Cruz’s lengthy
criminal and immigration history. Cruz had 21 criminal history points, which
translated to a criminal history category of VI—the highest in the U.S. Sentencing
Guidelines table. U.S.S.G. Ch. 5, Pt. A. The Guidelines’ recommended range of
imprisonment was 18 to 24 months. See U.S.S.G. § 2L2.2. The presentence report
then addressed “factors that may warrant departure.” It noted that Cruz “was
originally charged with a violation of 8 U.S.C. § 1326, and had he been convicted
of that offense, his guideline range of imprisonment would have been 77 to 96
months.” In calculating this hypothetical sentence, the presentence report
apparently relied on the assumption that Cruz, if he had been convicted of and
sentenced for violating § 1326, would have received a 16-level enhancement under
the unlawful entry Guideline for deportation after a “drug trafficking” conviction.
See U.S.S.G. § 2L1.2(b)(1)(A)(I). The report recommended a four-point upward
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departure for uncharged conduct under Guidelines § 5K2.21, resulting in a
recommended range of 30 to 37 months’ imprisonment.
At the sentencing hearing, the judge stated that he had considered the
document fraud Guideline’s recommended range, the 18 U.S.C. § 3553(a) factors,
and all the factors discussed in the presentence report in determining the sentence.
He expressed agreement with the report’s upward departure recommendation. The
government then clarified for the judge that the documents justifying the 16-point
enhancement in the hypothetical § 1326 sentence were not available. The probation
officer in turn explained that the judge could alternatively achieve the above-
Guidelines sentence through an upward variance.
The judge said, “All right,” and then read out loud the sections of the
presentence report stating that the § 1546 offense was Cruz’s second consecutive
federal offense; that he committed it within days of his release from prison; that he
had 21 criminal history points; that he has a history of committing a serious
offense, being ordered removed, and then committing another serious offense; that
the justice system has not instilled in Cruz an adequate level of deterrence; and that
the Guidelines range of 18 to 24 months did not capture the full scope of the
offense and was not likely to meet the § 3553(a) objectives. He expressed
agreement and ordered a four-point upward departure and a 36-month sentence.
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On appeal, Cruz argues that the district court committed procedural error by
making reference to, and giving “undue weight to,” the hypothetical unlawful entry
sentence of 77 to 96 months, which was based on “unsupported assumptions,” and
which the court “used to . . . justify a substantial upward departure” from the
document fraud Guideline range. We do not review the kind of error Cruz alleges
here as part of our review for procedural error. Where, as here, “a district court has
framed its analysis in terms of a downward or upward departure, we will treat such
so-called departures as an exercise of post-Booker discretion to sentence a
defendant outside of the applicable [G]uidelines range,” which is “subject to a
unitary review for [substantive] reasonableness, no matter how the district court
styles its sentencing decision.” United States v. Mohamed, 459 F.3d 979, 987 (9th
Cir. 2006); see also United States v. Lichtenberg, 631 F.3d 1021, 1027 n.8 (9th Cir.
2011); United States v. Ellis, 641 F.3d 411, 420-21 (9th Cir. 2011); United States
v. Tankersley, 537 F.3d 1100, 1113-14 (9th Cir. 2008).
“[T]he substantive reasonableness of a sentence—whether objected to or not
at sentencing—is reviewed for abuse of discretion.” United States v. Autery, 555
F.3d 864, 871 (9th Cir. 2009). “For a non-Guidelines sentence, we are to ‘give due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance,’” and “[w]e may not reverse just because we
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think a different sentence is appropriate.” United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
In determining a sentence’s substantive reasonableness, we consider “the totality of
the circumstances, including the degree of variance for a sentence imposed outside
the [G]uidelines range.” Id. “A substantively reasonable sentence is one that is
‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing
goals.’” United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009) (quoting
§ 3553(a)).
As in Ellis, here, “[u]ltimately, [Cruz]’s . . . objections to the reasons the
district court gave for ‘departing’ upward are beside the point. The question for our
purposes is whether a moderately above-Guidelines sentence for a defendant who”
committed his second consecutive federal offense within days of his release from
federal prison, who has a history of committing serious offenses and being ordered
removed, only to be arrested on another serious offense, who had 21 criminal
history points—well above the number needed to put him in the highest criminal
history category—and in whom the criminal justice system has evidently not yet
instilled an adequate level of deterrence “is reasonable under the broad discretion
afforded the district court.” Ellis, 641 F.3d at 423. It is. The district judge did not
abuse his discretion in concluding that a shorter term of 18 to 24 months would not
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meet the sentencing objectives of § 3553(a)—specifically, “to promote respect for
the law” and “to afford adequate deterrence to criminal conduct.” 18 U.S.C.
§ 3553(a)(2)(A), (a)(2)(B). A review of the record does not generate “a definite
and firm conviction that the district court committed a clear error of judgment in
the conclusion it reached upon weighing the relevant factors.” United States v.
Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).
AFFIRMED.
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