United States v. Hugo Gutierrez-Sanchez ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50254
Plaintiff-Appellee, D.C. No.
v.  3:08-cr-00759-LAB-
HUGO GUTIERREZ-SANCHEZ, 1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted February 13, 2009*
Pasadena, California
Filed March 23, 2009
Before: Carlos T. Bea, Daniel M. Friedman,** and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Friedman
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**Daniel M. Friedman, United States Circuit Judge for the Federal Cir-
cuit, sitting by designation.
3693
UNITED STATES v. GUTIERREZ-SANCHEZ 3695
COUNSEL
Norma A. Aguilar, Federal Defenders of San Diego, Inc., San
Diego, California, for appellant Hugo Gutierrez-Sanchez.
Karen P. Hewitt, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, Chief Appellate Section,
Criminal Division; Douglas Keehn and Mark R. Rehe, Assis-
tant United States Attorneys, San Diego, California, for appel-
lee United States of America.
3696 UNITED STATES v. GUTIERREZ-SANCHEZ
OPINION
FRIEDMAN, Circuit Judge:
The appellant Hugo Gutierrez-Sanchez challenges his sen-
tence primarily because, although he pleaded guilty to an
offense for which the United States Sentencing Guidelines
(“the Guidelines”) recommended a particular sentence, he was
given a more severe sentence that the Guidelines recom-
mended for a related, more serious offense. The Guidelines,
however, provide that if a plea agreement “specifically estab-
lishes the commission of additional offense(s),” it shall be
“treated as if the defendant had been convicted of additional
count(s) charging those offense(s).” U.S.S.G. § 1B1.2(c).
Since in his plea agreement Gutierrez admitted facts that
established the more serious offense on which his sentence
was based, the district court did not err in its calculation of the
Guidelines recommended sentence. The sentence actually
imposed also was substantively reasonable. We therefore
affirm.
I
Prior to his present difficulties, Gutierrez twelve times had
entered the United States illegally from Mexico and been
removed to Mexico. While in the United States during this
period, he was thrice criminally convicted.
In the present case, Gutierrez was apprehended hiding in
dense brush several hundred yards north of the United States
- Mexican border. He was arrested and charged with being a
deported alien found in the United States, in violation of 8
U.S.C. § 1326. Gutierrez entered into a so-called “fast-track”
arrangement with the government, under which he agreed to
plead guilty to a lesser offense and waived various rights. He
signed a written agreement in which he pleaded guilty to mak-
ing a false statement to a federal official, in violation of 18
U.S.C. § 1001, namely, that in 2004, after having illegally
UNITED STATES v. GUTIERREZ-SANCHEZ 3697
entered the country, he told a federal officer “that his name
was Salvador Beltran-Bera.”
Gutierrez and the government agreed upon his offense level
and criminal history under the Guidelines calculations, which
produced a Guidelines range sentence of 6-12 months impris-
onment. The parties agreed to recommend a sentence of 9
months imprisonment. In the plea agreement, Gutierrez also
stated that he “understands that the sentence is within the sole
discretion of the sentencing judge” and that “the recommen-
dation made by the Government is not binding on the Court,
and defendant’s actual sentence remains uncertain at this
time.”
The district court accepted Gutierrez’ guilty plea but
rejected the recommended 9 months imprisonment sentence.
The court stated that it was “inclined to sentence within what
I think is the applicable guideline range for the real offense,
which is coming back over here.” After hearing Gutierrez’
objections, the court “f[ou]nd that the real offense here, the
one that the Guideline calculations should be predicated upon,
is a[n 8 U.S.C. §] 1326.” The court calculated the Guidelines
range for this offense at 10-16 months imprisonment (which
calculation Gutierrez does not challenge) and, after consider-
ing the specified sentencing factors under 18 U.S.C.
§ 3553(a), sentenced Gutierrez to 16 months imprisonment.
II
A. On appeal, this court “first consider[s] whether the dis-
trict court committed significant procedural error, then . . .
consider[s] the substantive reasonableness of the sentence.”
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). In Carty, we held that
[i]t would be procedural error for a district court to
fail to calculate — or to calculate incorrectly — the
Guidelines range; to treat the Guidelines as manda-
3698 UNITED STATES v. GUTIERREZ-SANCHEZ
tory instead of advisory; to fail to consider the
§ 3553(a) factors; to choose a sentence based on
clearly erroneous facts; or to fail adequately to
explain the sentence selected, including any devia-
tion from the Guidelines range.
Id.
Gutierrez contends that the district court committed proce-
dural error by not calculating the Guidelines recommended
sentence for his violation of 18 U.S.C. § 1001, but instead cal-
culating his sentence based on a violation of 18 U.S.C.
§ 1326. Gutierrez alternatively argues that the district court
gave undue weight to one of the § 3553(a) sentencing factors,
deterrence, and that this resulted in a substantively unreason-
able sentence.
[1] B. As noted, the Guidelines provide:
A plea agreement (written or made orally on the
record) containing a stipulation that specifically
establishes the commission of additional offense(s)
shall be treated as if the defendant had been con-
victed of additional count(s) charging those offen-
se(s).
U.S.S.G. § 1B1.2(c).
The Guidelines further provide that “in the case of a stipu-
lation to the commission of additional offense(s), the guide-
lines are to be applied as if the defendant had been convicted
of an additional count for each of the offenses stipulated.”
U.S.S.G. § 1B1.2 cmt. n.3.
In his written plea agreement, after admitting that in 2004
he had made a false statement to a federal official, Gutierrez
stated in the next paragraph:
UNITED STATES v. GUTIERREZ-SANCHEZ 3699
Defendant agrees further that the offense involved a
violation of a prior, specific administrative order
because defendant is an unlawful alien who was law-
fully deported on February 22, 2004[,] prior to the
instant offense and as part of that deportation, defen-
dant was ordered by the immigration judge not to
reenter the United States without requesting and
obtaining permission from the Attorney General or
designated successor, and that this fact results in the
increase in offense level set forth in paragraph 5
below.
[2] Under the Guidelines, Gutierrez’ statement in his plea
agreement constituted a “stipulation that specifically estab-
lish[ed] the commission of [the] additional offense” of an
alien illegally present in the United States, in violation of 8
U.S.C. § 1326. Gutierrez admitted all the elements of the lat-
ter offense: that (1) he was an alien who (2) had been lawfully
deported and (3) had returned to the United States (4) without
the permission of the Attorney General and (5) had the requi-
site general intent, i.e., he knew he was illegally in the United
States when he lied to the federal officers about his immigra-
tion status. See United States v. Covain-Sandoval, 462 F.3d
1090, 1093, 1094 n.1 (9th Cir. 2006). Because Gutierrez’ plea
agreement establishes the mens rea necessary for a “found in”
offense under § 1326, we need not address his argument that
his plea agreement did not establish the specific intent needed
to violate the prohibition in § 1326 against attempted reentry.
United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th
Cir. 2000) (en banc).
[3] The district court properly treated these statements by
Gutierrez as establishing a conviction under the illegal alien
presence provision of 8 U.S.C. § 1326 for the purposes of cal-
culating Gutierrez’ Guidelines recommended sentence. The
court’s action was in accord with the “grouping” provisions
of the Guidelines governing convictions under multiple
counts, which provide that “in the case of a stipulation to the
3700 UNITED STATES v. GUTIERREZ-SANCHEZ
commission of additional offense(s), the guidelines are to be
applied as if the defendant had been convicted of an addi-
tional count for each of the offenses stipulated,” and that in
that situation the offense level used to calculate the defen-
dant’s sentence “is the offense level . . . for the most serious
of the counts comprising the Group, i.e., the highest offense
level of the counts in the Group.” U.S.S.G. 1B1.2, cmt. n.3;
U.S.S.G. § 3D1.3(a); see also U.S.S.G. § 3D1.3 cmt. n.2
(“When counts are grouped . . . the highest offense level of
the counts in the group is used.”).
C. Since we hold that the district court properly calcu-
lated Gutierrez recommended Guidelines sentence under
§ 1326, the remaining question is whether the within-
Guidelines sentence of 16 months’ imprisonment was sub-
stantively reasonable. The answer is “yes.”
[4] The district court fully explained the reasons why a
more severe sentence than the guideline range under the false
statement statute of 6-12 months imprisonment was appropri-
ate. The court twice stated that the “real offense,” “the one
that the Guideline calculations should be predicated upon,”
was 8 U.S.C. § 1326, which relates to a removed alien’s ille-
gal presence in the United States. The court also noted Gutier-
rez’ two prior felony convictions (for which he was
imprisoned) and his 12 illegal re-entries after he had been
removed, and stated that
it’s incumbent upon me to fashion some kind of sen-
tence which will tell him “we mean business. When
we say ‘don’t come back,’ it’s not just some mantra
that a guy in a black robe waves in front of you or
words that are repeated. We mean it. Don’t come
back. Bad things are going to happen to you if you
come back. You’re going to spend a lot of time in an
American jail, which has got to be worse than your
country.”
UNITED STATES v. GUTIERREZ-SANCHEZ 3701
[5] The district court also considered the factors that 18
U.S.C. § 3553(a) required it to “consider . . . in determining
the particular sentence to be imposed.” The court stated that
it had “reviewed,” “looked at” and “considered” “these [18
U.S.C. § 3553] factors.” One of those factors is “the need for
the sentence imposed to afford adequate deterrence to crimi-
nal conduct.” 18 U.S.C. § 3553(a)(2)(B). As noted, deterrence
was one factor the court considered in determining the sen-
tence. Contrary to Gutierrez’ contention, the court did not
give that factor impermissible weight or ignore or downplay
the other factors. “The district court need not tick off each of
the § 3553(a) factors to show that it has considered them.”
Carty, 520 F.3d at 992. The weight to be given the various
factors in a particular case is for the discretion of the district
court. Cf. id. at 993. The district court did not abuse its discre-
tion in applying those factors in determining Gutierrez’ sen-
tence and the sentence was substantively reasonable.
AFFIRMED.