United States v. Castillo-Arellano

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 3, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1267
(D.C. No. 1:13-CR-00500-RBJ-1)
ADRIAN CASTILLO-ARELLANO, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Appellant Adrian Castillo-Arellano was convicted under 8 U.S.C. § 1326(a) and
(b)(2) for illegal reentry of a noncitizen previously removed after an aggravated felony.
The district court sentenced Mr. Castillo-Arellano to 41 months in prison, which is the
low end of the applicable United States Sentencing Guidelines (“Guidelines”) range.
*After examining the brief and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.
Mr. Castillo-Arellano appeals his sentence, arguing it is substantively
unreasonable. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,
we affirm.
I. BACKGROUND
Mr. Castillo-Arellano entered the United States without authorization on February
18, 2004. In early 2011, he was 25 years old when he met a 14-year-old girl at a house
party in Colorado. They had both consumed alcohol. The girl told Mr. Castillo-Arellano
she was 17 years old and would be turning 18 soon. As she later described, she then
“talked him into having sex with her.” ROA, Vol. II at 24.
Within weeks of the party, the girl learned she was pregnant. When she told Mr.
Castillo-Arellano about the pregnancy, he promised to support her and suggested she
move out of her parents’ home when she turned 18. The girl admitted she was only 14,
which upset Mr. Castillo-Arellano. The girl informed her mother of the pregnancy and
the sexual encounter with Mr. Castillo-Arellano, but she asked her mother not to notify
the police. Her mother reported the incident to Broomfield Police Department on March
19, 2011.
On July 18, 2011, two police officers located Mr. Castillo-Arellano, who provided
fake names to them before eventually providing his real name. He admitted having sex
with the 14-year-old girl and knowing she was pregnant. When the officers told Mr.
Castillo-Arellano he was under arrest, he attempted to flee. The officers pursued and
struggled to capture him. After Mr. Castillo-Arellano was stopped, he again fought to
-2-
escape, but the officers were able to restrain him. Neither officer was seriously injured.
Mr. Castillo-Arellano pled guilty to the Colorado state offenses of obstructing a
peace officer (a class 2 misdemeanor), negligent child abuse resulting in serious bodily
injury (a class 4 felony), and attempted sexual assault on a child (a class 5 felony). The
state district court sentenced him to four years of probation. He was removed to Mexico
on February 28, 2012.
Mr. Castillo-Arellano was unable to comply with his probation terms because he
was outside the United States. Broomfield County’s probation office requested and
received a warrant for Mr. Castillo-Arellano’s arrest for violating his probation.
On February 8, 2013, Mr. Castillo-Arellano presented himself at the Ysleta port of
entry in El Paso, Texas. When Customs and Border Patrol officers discovered the
outstanding arrest warrant, he was taken into custody, paroled into the United States, and
extradited to Colorado. On April 19, 2013, the state district court revoked and terminated
Mr. Castillo-Arellano’s probation, sentenced him to 200 days in jail, and gave him credit
for time served. The next day, Mr. Castillo-Arellano was again removed to Mexico.
Months later, Immigration and Customs Enforcement (“ICE”) learned Mr.
Castillo-Arellano had returned to Colorado and was residing with family in Boulder. On
November 22, 2013, ICE agents found Mr. Castillo-Arellano at his sister’s apartment in
Boulder. He provided his full name to the agents and admitted he had been removed to
Mexico in April. The agents arrested him and processed him for administrative removal.
On March 17, 2014, Mr. Castillo-Arellano pled guilty in federal district court to illegal
-3-
reentry under 8 U.S.C. § 1326(a) and (b)(2).
The U.S. Probation Office prepared a Presentence Report (“PSR”). It used the
2013 United States Sentencing Commission’s Guidelines Manual (“U.S.S.G.”) to
calculate the applicable guideline range of 41 to 51 months based on a total offense level
of 21 and a criminal history category of II.
The total offense level resulted from a base level of 8 under U.S.S.G. § 2L1.2(a), a
16-level enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) based on
Mr. Castillo-Arellano’s conviction for attempted sexual assault of a child,1 and a 3-level
reduction based on his acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b).
Mr. Castillo-Arellano’s criminal history category of II resulted from his prior jail
sentence from his 2011 convictions, which qualified him for two criminal history points
under U.S.S.G. § 4A1.1(b).
Mr. Castillo-Arellano was sentenced on June 24, 2014. He moved for a downward
variance to 13 months in prison followed by three years of supervised release. He argued
the Guidelines range was greater than necessary to achieve the objectives of the 18
U.S.C. § 3553(a) factors. First, he argued his prior conviction did not warrant imposing
both a 16-level enhancement and an increase in the criminal history category for the same
offense. Second, he contended the 16-level enhancement overstated the seriousness of
his prior conviction. Third, he asserted 13 months in prison would be adequate to deter
1
“Crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A) includes various
enumerated offenses, including statutory rape. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
-4-
future illegal reentries, and his removal after serving a 13-month sentence would
adequately protect the public.
The Government sought a sentence of 41 months in prison with no supervised
release. It noted the seriousness of Mr. Castillo-Arellano’s sexual encounter with a 14-
year-old and his attempt to resist arrest, and argued a lighter sentence would not
adequately deter future criminal conduct or protect the public.
The district court rejected Mr. Castillo-Arellano’s arguments about the prior
conviction, noting the 14-year-old girl’s supposed consent did not detract from the
seriousness of the offense. It discussed the need to impose a sentence that would deter
Mr. Castillo-Arellano from engaging in criminal conduct again, and the community
safety concerns associated with serious sex offenses. The court also explained its
concerns about Mr. Castillo-Arellano’s attempts to avoid arrest. Based on these
considerations, the court denied Mr. Castillo-Arellano’s motion for variance and imposed
a sentence at the bottom of the applicable Guidelines range—41 months in prison without
supervised release. Mr. Castillo-Arellano now appeals, arguing this sentence is
substantively unreasonable.
II. DISCUSSION
A. Standard of Review and Legal Background
We review sentences imposed by district courts under the abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007). “A district court abuses its
discretion when it renders a judgment that is arbitrary, capricious, whimsical, or
-5-
manifestly unreasonable.” United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010)
(quotations omitted).
“Reasonableness review is a two-step process comprising a procedural and a
substantive component.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214
(10th Cir. 2008) (quotations omitted). “[F]irst [we] 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, 552 U.S. at 51.
“In considering whether a defendant’s sentence is substantively reasonable, we
examine whether the length of the sentence is reasonable given all the circumstances of
the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Chavez,
723 F.3d 1226, 1233 (10th Cir. 2013) (quotations omitted). “We may not examine the
weight a district court assigns to various § 3553(a) factors, and its ultimate assessment of
the balance between them, as a legal conclusion to be reviewed de novo.” United States
v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). “[I]n many cases there will be a range of
possible outcomes the facts and law at issue can fairly support; rather than pick and
choose among them ourselves, we will defer to the district court’s judgment so long as it
falls within the realm of these rationally available choices.” United States v. McComb,
519 F.3d 1049, 1053 (10th Cir. 2007). Sentences within the Guidelines range are entitled
to a rebuttable presumption of reasonableness. United States v. Balbin-Mesa, 643 F.3d
-6-
783, 788 (10th Cir. 2011).
B. Analysis
Mr. Castillo-Arellano does not challenge the district court’s sentence on
procedural reasonableness grounds. Our review is therefore limited to substantive
reasonableness. Mr. Castillo-Arellano has not overcome the presumption of
reasonableness. We conclude the district court’s sentence fell within the realm of
rationally available choices.
The district court concluded 41 months in prison was sufficient, but not greater
than necessary, in light of Mr. Castillo-Arellano’s illegal reentry, prior convictions, and
resistance to arrest. First, the court explained the sentence would promote respect for the
law because “[Mr. Castillo-Arellano] got a break before, he took his chances, and
unfortunately for him, when he came back this latest time illegally, basically he stuck his
chin out and asked the system to whack him, and that’s what I think he deserves, quite
frankly.” ROA, Vol. III at 35. Second, the court concluded 41 months would deter
future criminal conduct by Mr. Castillo-Arellano because it would demonstrate to him the
serious consequences of such activity. Third, the court considered the public safety
concerns relating to individuals who have committed serious sex offenses or attempted to
evade or act aggressively toward police officers.
Mr. Castillo-Arellano points out we considered a similar situation in United States
v. Hernandez-Castillo, 449 F.3d 1127 (10th Cir. 2006), which also involved a noncitizen
convicted of illegal reentry who received a 16-level enhancement for a prior conviction
-7-
arising from a consensual sexual relationship between the defendant and a 14-year-old
girl. Id. at 1129, 1131. Although Mr. Hernandez-Castillo did not challenge the
reasonableness of his sentence, we suggested these circumstances could raise substantive
reasonableness concerns. Id. at 1131-32.
Hernandez-Castillo is distinguishable from this case. Mr. Hernandez-Castillo had
been convicted for statutory rape of a 14-year-old when he was 18. Id. at 1131. The
relationship produced a child. Id. At the time of sentencing, he had maintained support
and contact with the child and mother. Id. Mr. Castillo-Arellano, by contrast, was 25 at
the time of his sexual relationship with the 14-year-old, and the record does not show he
maintains support or contact with the child or mother. Additionally, Mr. Hernandez-
Castillo’s prior conviction could be classified as either a misdemeanor or a felony under
California law. Id. at 1130-31. But Mr. Castillo-Arellano’s prior conviction is classified
as only a felony under Colorado law. See Colo. Rev. Stat. §§ 18-2-101(4), 18-3-405(2).
Mr. Castillo-Arellano also attacks the district court’s sentence because statutory
rape results in the same enhancement as a prior conviction for murder. But the
enhancement applies to a wide range of convictions designated as crimes of violence by
U.S.S.G. § 2L1.2—statutory rape, murder, kidnapping, aggravated assault, sexual abuse
of a minor, robbery, arson, extortionate extension of credit, and more. U.S.S.G. § 2L1.2
cmt. n.1(B)(iii). Although downward variances may be “based on the relatively benign
nature of a particular offense in comparison to other offenses triggering the same
enhancement,” this decision is left to the sentencing court’s discretion. United States v.
-8-
Chavez-Suarez, 597 F.3d 1137, 1138-39 (10th Cir. 2010). The district court rejected a
downward variance after considering the nature of Mr. Castillo-Arellano’s prior
conviction, the circumstances surrounding his arrest in July 2011, and his decision to
reenter the United States without authorization. The district court weighed the § 3553(a)
factors. Mr. Castillo-Arellano cannot overcome the presumptive reasonableness of his
sentence under these circumstances.
III. CONCLUSION
For the foregoing reasons, we affirm Mr. Castillo-Arellano’s sentence.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
-9-