United States v. Lopez-Urbina

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 2, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2136
(D.C. No. 2:18-CR-01368-RB-1)
BONIFACIO LOPEZ-URBINA, (D. N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.
Bonifacio Lopez-Urbina pleaded guilty without a plea agreement to illegal
reentry after deportation in violation of 8 U.S.C. § 1326. The district court
followed the recommendation of the probation officer and departed two criminal
history levels downward from the United States Sentencing Guidelines (USSG).
Lopez-Urbina then moved for an additional downward departure of three offense
*
This order and judgment is not binding precedent except under the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.
levels on the ground that his offense level overrepresented his actual criminal
history.
The district court denied Lopez-Urbina’s motion for downward departure
and sentenced him to 57 months in prison, the bottom of the guideline range.
Lopez-Urbina now challenges the district court’s sentencing determination—both
the denial of the motion to depart downward and the substantive reasonableness
of the sentence. We conclude, however, this court lacks jurisdiction to review the
district court’s discretionary decision to deny Lopez-Urbina’s motion for
downward departure. Our review is thus cabined to the substantive
reasonableness of the imposed sentence. And we AFFIRM because the 57-month
sentence is reasonable.
I. Background
Border patrol agents apprehended Lopez-Urbina in Santa Teresa, New
Mexico, shortly after he crossed the United States-Mexico border. He was
arrested for violating 8 U.S.C. §§ 1326(a)(1) and (b)(2), which prohibit a
previously removed alien from reentering the United States without authorization.
His extensive criminal history resulted in an offense level of 21 and a criminal
history category of VI. Lopez-Urbina already had a conviction for illegal reentry
(having been deported from the United States four times) and had additional
felony convictions both before and after his illegal reentry conviction.
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Lopez-Urbina’s base offense level of eight increased four levels for having
a prior conviction for illegal reentry. USSG § 2L1.2(b)(1)(A). He received an
additional four-level enhancement for his DWI conviction in 2011—charged as a
felony because he had two previous DWI convictions. Id. § 2L1.2(b)(2)(D). And
finally, Lopez-Urbina received an eight-level enhancement under USSG
§ 2L1.2(b)(3)(B) for a domestic-violence conviction in 2016—also charged as a
felony because he had a previous conviction for domestic violence. After a three-
level reduction for acceptance of responsibility, Lopez-Urbina’s total offense
level was 21, with a resulting guideline range of 77 to 96 months.
The probation officer recommended the district court depart downward two
criminal history categories under USSG § 4A1.3(b)(1) on the ground that criminal
history category VI “substantially over-represents the seriousness of the
defendant’s criminal history.” The district court concurred in that assessment and
varied down two levels. Lopez-Urbina then moved for a further downward
departure under USSG § 2L1.2, Application Note 5, maintaining that “the offense
level provided by [the] enhancement . . . substantially understates or overstates
the seriousness of the conduct underlying the prior offense.” 1 Lopez-Urbina
1
We refer to Application Note 5 even though—after Lopez-Urbina’s
sentencing—USSG § 2L1.2, Application Note 5 was amended and redesignated as
Note 6. The Note reads:
(continued...)
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argued he received those enhancements only because Texas’s recidivist statutes
categorize third DWI and second domestic-abuse offenses as felonies. He
contended that in many states, including New Mexico, his third DWI and second
domestic-violence incident would have been charged as misdemeanors. This
created, Lopez-Urbina argued, a disparity between the guideline range for him
and the range for similarly situated defendants in states without such strict
recidivist statutes.
The district court concluded Lopez-Urbina’s circumstances did not warrant
a further downward departure. The guideline range therefore remained at 57 to
77 months—accounting for the downward departure of two criminal history levels
based on the probation officer’s recommendation. The district court then
sentenced the defendant to 57 months.
Lopez-Urbina appeals that sentence.
1
(...continued)
There may be cases in which the offense level provided by an
enhancement in subsection (b)(2) or (b)(3) substantially understates or
overstates the seriousness of the conduct underlying the prior offense,
because (A) the length of the sentence imposed does not reflect the
seriousness of the prior offense; (B) the prior conviction is too remote
to receive criminal history points (see § 4A1.2(e)); or (C) the time
actually served was substantially less than the length of the sentence
imposed for the prior offense. In such a case, a departure may be
warranted.
USSG § 2L1.2, Application Note 5.
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II. Analysis
Lopez-Urbina challenges two aspects of the district court’s sentencing
decision, arguing the district court erred by denying his motion for downward
departure and by imposing a substantively unreasonable sentence. We lack
jurisdiction to review the district court’s denial of a motion for downward
departure, so our review is solely of the substantive reasonableness of Lopez-
Urbina’s sentence.
1. Motion for Downward Departure
This court has repeatedly held “we lack ‘jurisdiction . . . to review a district
court’s discretionary decision to deny a motion for downward departure on the
ground that a defendant’s circumstances do not warrant the departure.’” United
States v. Bergman, 599 F.3d 1142, 1150 (10th Cir. 2010) (quoting United States v.
Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005)). The only exception to this
rule is “if the denial is based on the sentencing court’s interpretation of the
Guidelines as depriving it of the legal authority to grant the departure.” United
States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007). Since Lopez-Urbina has
not argued the district court misinterpreted USSG § 2L1.2, Application Note 5, to
deprive the court of authority to grant the departure (and it is quite clear the
district court recognized this authority), the exception does not apply.
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Recognizing this authority, Lopez-Urbina changed direction at oral
argument, arguing not that the district court abused its discretion by denying
downward departure but that the district court failed to consider Application Note
5 at all. This argument is one of procedural reasonableness, however, and differs
significantly from the arguments Lopez-Urbina advanced in his briefing. See Gall
v. United States, 552 U.S. 38, 51 (2007) (explaining the scope of a procedural
reasonableness challenge). Thus, this argument is waived. Fed. Ins. Co. v. Tri-
State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998) (“Issues raised for the first time
at oral argument are considered waived.”).
We therefore do not review the district court’s decision to deny Lopez-
Urbina’s motion for downward departure or consider the argument that the district
court failed to apply Note 5.
2. Substantive Reasonableness
Lopez-Urbina also challenges the substantive reasonableness of his
57-month sentence. We review the substantive reasonableness of a defendant’s
sentence under an abuse of discretion standard. United States v. Chavez, 723 F.3d
1226, 1233 (10th Cir. 2013). Under this standard, a sentence is substantively
unreasonable only “if it exceeds the bounds of permissible choice, given the
facts” and “in light of the factors set forth in 18 U.S.C. § 3553(a).” Id.-6-
Sentences within the guideline range, like Lopez-Urbina’s, are presumed to be
reasonable, id., so the defendant carries a heavy burden.
Lopez-Urbina primarily contends his sentence is substantively unreasonable
because he received enhancements based on conduct occurring in Texas that, had
it occurred in other states, would not have been felonious. More specifically, he
argues that had he been charged with a third DWI or second domestic-violence
offense in New Mexico (where he was charged for this latest immigration
offense), he would not have received a sentence enhancement because both prior
offenses would have been misdemeanors. In Lopez-Urbina’s view, this creates a
disparity between his sentence and those of similarly situated individuals who, for
instance, commit multiple domestic-violence offenses in states with more
forgiving recidivist statutes.
The district court considered this argument and rejected it. The court noted
Lopez-Urbina’s “lengthy criminal history[] of putting people in our country at
risk: Driving while intoxicated multiple times, domestic violence multiple times.”
App. at 13–14. And before imposing the 57-month sentence, the bottom of the
guideline range, the court remarked, “Let’s just call it what it is. Some states
have chosen to punish, as felonious, misdemeanor conduct that puts people at
risk, misdemeanor conduct that hurts people. And that’s what happened here.”
App. at 14.
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Lopez-Urbina also argues that his sentence is more than two and half times
longer than his last illegal reentry sentence of 21 months. This in his view
demonstrates that the sentence was “greater than necessary[] to comply with the
purposes” of criminal punishment. 18 U.S.C. § 3553(a).
We disagree with both of Lopez-Urbina’s arguments. First, the district
court did not abuse its discretion in declining to credit how the sentence would
have differed if Lopez-Urbina had been driving drunk or physically assaulted his
wife in a state without a harsh recidivist statute. This is especially so because
Lopez-Urbina has identified only a minority of states—twenty—where “DWI is
never a felony, or becomes a felony after three prior convictions.” Aplt. Br. at
15. And he has identified only four states—New Mexico, Arizona, California,
and Nevada—where his second domestic-violence offense would have been a
misdemeanor. Moreover, the district court specifically mentioned that Lopez-
Urbina’s suggestion “he might be the victim at this point doesn’t help much in
terms of the argument.” App. at 14.
Second, the district court reasonably concluded a 57-month sentence was
not “greater than necessary” in order to “reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense.” 18
U.S.C. § 3553(a). Between the ages of 25 and 39, Lopez-Urbina was convicted of
three DWI offenses, two assaults on his wife, and two criminal immigration
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offenses—for a total of seven convictions. He also returned to the United States
soon after being deported each of the four times, once less than a week after he
had been deported to Mexico in September 2012.
Thus, considering Lopez-Urbina’s criminal history and the factors set forth
in 18 U.S.C. § 3553(a), we conclude that Lopez-Urbina has not rebutted the
presumption that his within-guideline sentence is substantively unreasonable.
III. Conclusion
We lack jurisdiction to review the district court’s discretionary decision to
deny Lopez-Urbina’s motion for a downward departure, and we conclude the
district court’s 57-month sentence is substantively reasonable. We therefore
AFFIRM Lopez-Urbina’s sentence.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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