United States v. Acuna-Valenzuela

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 25 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-2219
v. (D.C. No. CR-04-814-LH)
ANTONIO ACUÑA-VALENZUELA (D. New Mexico)
aka Antonio Valenzuela Acuña,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Defendant Antonio Acuña-Valenzuela pleaded guilty to illegal reentry by a
deported alien previously convicted of an aggravated felony. 8 U.S.C.
§ 1326(b)(2). At the sentencing hearing defense counsel told the court that
Defendant’s wife had severe medical problems and that Defendant’s sole purpose
*
After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
in illegally entering the United States was to earn money to pay her medical bills.
Defendant did not challenge anything in the presentence report. Nor did he
request a downward departure. The district court imposed a sentence of 41
months, the bottom of the Guidelines range of 41-51 months.
Defendant argues on appeal that he was entitled to a downward departure
because, as a result of his wife’s ill health and his reason for illegal reentry, his
conduct was “‘atypical’ and ‘significantly differ[ed] from the norm’ of conduct
covered by the guideline.” Aplt. Br. at 3 (quoting U.S.S.G. § 1A1.1 cmt. 4(b)
¶ 1). Defendant’s argument fails because “[c]ourts of appeals cannot exercise
jurisdiction to review a sentencing court’s refusal to depart from the Guidelines,
either upward or downward, unless the court refused to depart because it
interpreted the Guidelines to deprive it of the authority to do so.” United States v.
Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999). When the record contains only
ambiguous statements, we presume that the court “was aware of his or her legal
authority to depart but chose instead, in an exercise of discretion, not to depart.”
Id. Here, nothing in the record suggests that the district court thought it lacked
discretion to depart. Of course, the district court had no occasion to express its
view on the matter, because Defendant did not request a departure. But that just
means that Defendant forfeited the opportunity to obtain the court’s view for the
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record. Defendant should not be in a better position on appeal than if he had
raised the issue below and the court had responded.
Moreover, even if we reviewed the merits of Defendant’s claim, he would
not prevail. Because he did not raise the departure issue in district court, the
applicable standard of review is plain error. To prevail on plain-error review,
Defendant must show that the district court (1) committed error, (2) the error was
plain, and (3) the error affected his substantial rights. United States v. Cotton,
535 U.S. 625, 631 (2002). If those three conditions are satisfied, this court has
discretion to notice the error if “the error seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 631-32 (internal
quotation marks omitted).
There is no plain error here. Defendant’s circumstances are not the kind
that normally merit departure. “In sentencing a defendant . . ., family ties and
responsibilities are not ordinarily relevant in determining whether a departure may
be warranted.” U.S.S.G. § 5H1.6. Because “family circumstances and
responsibilities are a permissible but discouraged factor,” they merit departure
“only if the factor is present to an exceptional degree or in some other way makes
the case different from the ordinary case where the factor is present.”
United States v. Gauvin, 173 F.3d 798, 807 (10th Cir. 1999) (internal quotation
marks omitted). We have held that circumstances similar to Defendant’s did not
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merit such a departure. See United States v. Reyes-Rodriguez, 344 F.3d 1071,
1076 (10th Cir. 2003) (chronically ill mother and blind father); United States v.
Archuleta, 128 F.3d 1446, 1451 (10th Cir. 1997) (sole responsibility to care for
two children and diabetic mother). Failure to depart downward was probably not
error at all; it certainly was not plain error.
Finally, we need not address the effect of the Supreme Court’s recent
decision in United States v. Booker, 125 S. Ct. 738 (2005). Defendant’s brief was
filed November 29, 2004, after the Supreme Court had decided Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and had granted a writ of
certiorari in Booker on August 2, 2004. Indeed, both Blakely and the Supreme
Court’s grant of a writ of certiorari in Booker preceded Defendant’s August 17,
2004, sentencing hearing. Defendant did not raise a Booker issue either at his
hearing or on appeal. We decline to do so sua sponte.
We AFFIRM the judgment below.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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