United States v. Soto-Lopez

FILED
United States Court of Appeals
Tenth Circuit
March 19, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-3209
v. (D.Ct. No. 6:12-CR-10043-MLB-1)
(D. Kan.)
JOSE SOTO-LOPEZ,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Appellant Jose Soto-Lopez pled guilty to a one-count indictment charging
*
This order and judgment is not binding precedent except under the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.
him with illegal reentry of a deported alien subsequent to an aggravated felony
conviction in violation of 8 U.S.C. § 1326(a) and (b). He now appeals his sixty-
three-month downward variant sentence, claiming United States Sentencing
Guidelines (“Guidelines” or “U.S.S.G.”) § 2L1.2(b)(1)(A)(ii), which applies a
sixteen-level enhancement to previously convicted aliens like himself, is
defective, unusually severe, and otherwise facially invalid, resulting in an
unreasonable sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291 and affirm Mr. Soto-Lopez’s sentence.
I. Factual and Procedural Background
Mr. Soto-Lopez was deported in 2007 following his 2006 felony conviction
for burglary of a dwelling. In 2010, while incarcerated in the Seward County,
Kansas jail, authorities discovered, and Mr. Soto-Lopez admitted, that he entered
the United States illegally following his 2007 deportation. After Mr. Soto-Lopez
pled guilty to illegal reentry of a deported alien subsequent to an aggravated
felony conviction in violation of 8 U.S.C. § 1326(a) and (b), a probation officer
prepared a presentence report calculating his sentence under the applicable 2011
Guidelines.
The probation officer set Mr. Soto-Lopez’s base offense level at eight,
pursuant to U.S.S.G. § 2L1.2(a), and increased it sixteen levels, pursuant to
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§ 2L1.2(b)(1)(A)(ii), for his prior deportation following his 2006 felony burglary
conviction which, as he admits on appeal, is a crime of violence under application
note 1(B)(iii) to U.S.S.G. § 2L1.2(b). The probation officer also calculated a
three-level reduction for acceptance of responsibility, resulting in a total offense
level of twenty-one. The presentence report also set Mr. Soto-Lopez’s criminal
history category at VI, which, together with an offense level of twenty-one,
resulted in a recommended Guidelines range of seventy-seven to ninety-six
months imprisonment.
Even though Mr. Soto-Lopez stated he had no objection to the presentence
report, he filed a formal motion requesting a downward departure for cultural
assimilation and a downward variance pursuant to 18 U.S.C. § 3553(a) based on
his history and characteristics, including his cultural assimilation to the United
States and the “excessive nature” and “unusual severity” of the sixteen-level
enhancement under § 2L1.2(b), which, he argued in part, allows impermissible
double counting of prior convictions. Similarly, at the sentencing hearing, Mr.
Soto-Lopez acknowledged he did not object to the presentence report or
calculation of his sentence but renewed his request for a downward departure
based on the issue of cultural assimilation and downward variance based on the
§ 3553(a) factors previously raised and his argument that no empirical data or
logical explanation supported the promulgation of a sixteen-level enhancement
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under U.S.S.G. § 2L1.2(b). The government opposed both a downward departure
and variance and, in so doing, suggested Mr. Soto-Lopez’s cultural assimilation
consisted of a consistent criminal record over many years which showed a blatant
disregard for the law and that his character was marred by his failure to spend
time with, or pay child support for, his four children, his spotty employment
history, and his problems with drinking and driving.
In denying Mr. Soto-Lopez’s request for a downward departure, the district
court expressly considered the circumstances surrounding his cultural
assimilation, including the fact he came to the United States as a child, and his
criminal history, noting that while much of it was relatively minor compared to
criminals with a similar history category, Mr. Soto-Lopez had committed multiple
crimes and failed to comply with the laws of the United States and the State of
Kansas. It also acknowledged it must give § 2L1.2(b) respectful consideration,
regardless of whether it disagreed with the premise of a sixteen-level
enhancement, and explained no impermissible double counting occurred involving
Mr. Soto-Lopez’s prior felony burglary conviction.
After denying a downward departure, the district court granted Mr. Soto-
Lopez’s request for a downward variance. It explained it had considered the
§ 3553(a) sentencing factors, including the requirement his sentence be sufficient
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but not greater than necessary to comply with those factors; the nature and
circumstances of the serious offense of unlawful reentry; Mr. Soto-Lopez’s
unfavorable history and characteristics, including his failure to both maintain
contact with or care for his family or gain substantial employment over the years;
his lack of respect for the laws of the United States and failure to be deterred,
now or in the future, by the possibility of being convicted or serving a long
sentence; and the need to protect the public from a defendant, like Mr. Soto-
Lopez, who commits other crimes while illegally in the United States. However,
despite these circumstances, it explained it was imposing a below-Guidelines
sentence of sixty-three months, which it premised on the issue of cultural
assimilation and a reduction in the sixteen-level increase under § 2L1.2(b), for
which it stated it would “give him a little bit of a break.” When asked what
portion of the variance it credited to the sixteen-level enhancement or the other
§ 3553(a) factors, the district court declined to quantify how much of the variance
it attributed to each.
II. Discussion
In appealing his sixty-three-month downward variant sentence, Mr. Soto-
Lopez claims the variance unfairly amounted to the equivalent of only a two-level
reduction and that the sixteen-level enhancement under U.S.S.G. § 2L1.2(b) is
itself defective, unusually severe, or otherwise invalid, resulting in unreasonable
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sentences for defendants like him. In support of this argument, Mr. Soto-Lopez
provides a comprehensive discussion of why the promulgation of § 2L1.2(b)
demonstrates a lack of sound policy rationale, including his claim it is not based
on empirical research and is inexplicably severe, resulting in disproportionate
sentences, double counting of prior felonies, and otherwise punishes those, like
him, who have committed non-violent, non-drug-related “status crime[s]” by
imposing sentences similar to those imposed for far more serious crimes, such as
sex trafficking of children, bombings of airports or mass transit facilities, and
robbery with a dangerous weapon causing serious bodily injury. In making this
argument, Mr. Soto-Lopez concedes our decision in United States v. Algarate-
Valencia, 550 F.3d 1238, 1245 (10th Cir. 2008), upholds the issue of double
counting with respect to prior convictions for the purpose of calculating both an
enhancement under § 2L1.2(b) and a defendant’s criminal history, but he asks us
to reexamine our holding in light of the arguments he presents on appeal. The
government opposes his appeal.
We review a sentencing court’s factual findings under the Guidelines for
clear error and its legal determinations de novo. United States v. Kristl, 437 F.3d
1050, 1054 (10th Cir. 2006). We review for reasonableness the sentence
imposed, including “the length of the sentence, as well as the method by which
the sentence was calculated.” Id. at 1055. A sentence properly calculated under
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the Guidelines is entitled to a rebuttable presumption of reasonableness, and the
defendant bears the burden of rebutting that presumption “by demonstrating that
the sentence is unreasonable in light of the other sentencing factors laid out in
§ 3553(a).” Id.
With respect to U.S.S.G. § 2L1.2(b), it is clear the Guidelines are advisory
rather than mandatory. See United States v. Booker, 543 U.S. 220, 264 (2006).
However, as the district court indicated, they are still a factor to be considered in
imposing a sentence, which means that district courts “‘must consult those
Guidelines and take them into account when sentencing.’” Kristl, 437 F.3d at
1053 (quoting Booker, 543 U.S. at 264). Moreover, we have “routinely upheld as
reasonable the use of prior convictions to calculate both the criminal history
category and a sentence enhancement where, as here, the Guidelines authorize it.”
United States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007). In that
regard, U.S.S.G. § 2L1.2(b) permits the double counting of a prior conviction for
the purpose of both applying a sixteen-level enhancement and calculating a
defendant’s criminal history. See U.S.S.G. § 2L1.2 cmt. n.6.
Based on these legal principles and provisions, we reject Mr. Soto-Lopez’s
claim of impermissible double counting, either as applied to him or in contesting
the enhancement on its face. Clearly, U.S.S.G. § 2L1.2(b)(1)(A)(ii) recommends
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application of a sixteen-level sentencing enhancement if the defendant is deported
after committing a violent crime, which, in this case, occurred after Mr. Soto-
Lopez’s 2006 felony conviction for burglary of a dwelling. Under § 2L1.2(b), his
prior conviction may be used to calculate both the sixteen-level enhancement and
his criminal history, and we will not overturn our clear and long-held precedent
upholding as reasonable the use of such a prior conviction where the Guidelines
authorize it. Indeed, until the Supreme Court or this court overrules such
precedent, we are bound by it. See United States v. Castellanos-Barba, 648 F.3d
1130, 1133 (10th Cir. 2011), cert. denied, 132 S. Ct. 1740 (2012).
We also reject Mr. Soto-Lopez’s argument the crime of illegal reentry is
not a serious offense for the purpose of supporting his argument that the
promulgation of the sixteen-level enhancement under § 2L1.2(b) lacks sound
policy rationale and is otherwise facially defective, unusually severe, or invalid.
Not only is his prior felony for burglary of a dwelling considered a serious crime,
so is the crime of illegal reentry by ex-felons into this country, for which
Congress has imposed a statutory maximum sentence of ten to twenty years,
depending on whether the prior conviction, like here, is for an aggravated felony.
See 8 U.S.C. § 1326(b)(1), (2). In viewing the penalties prescribed by Congress,
we have held a sentence within the statutory limits, like Mr. Soto-Lopez’s,
generally will not be found to be unconstitutionally cruel and unusual. See
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United States v. Newsome, 898 F.2d 119, 122 (10th Cir. 1990). In addition, the
United States Sentencing Commission makes clear, through its promulgation of
U.S.S.G. § 2L1.2(b), that it considers the illegal reentry of an alien who has
committed a violent crime, such as burglary of a dwelling, to be as serious as the
illegal reentry of aliens who have committed other crimes of violence and are
subject to the same advisory sixteen-level enhancement of which Mr. Soto-Lopez
complains. 1 We have consistently applied the sixteen-level enhancement under
§ 2L1.2(b) on multiple occasions to criminal sentences and decline at this time to
declare it categorically invalid, defective, or unusually severe on its face or under
the circumstances presented in this case.
Finally, other than his arguments with respect to § 2L1.2(b), Mr. Soto-
Lopez does not suggest his sentence is incorrectly calculated in conjunction with
application of the advisory Guidelines. However, even if we consider the
calculation of his sentence under our deferential abuse of discretion standard, see
United States v. Smart, 518 F.3d 800, 802, 805-06 (10th Cir. 2008), we find
nothing in the record to persuade us his sentence is procedurally unreasonable.
1
See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii) (explaining violent
crimes for the purpose of the Guidelines include “[m]urder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, ..., statutory rape, sexual
abuse of a minor, robbery, arson, ..., burglary of a dwelling, or any other offense
... that has as an element the use, attempted use, or threatened use of physical
force against the person of another”) (emphasis added).
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The record does not reveal any errors in its calculation, and the district court in
this case explicitly explained the sentencing factors it considered in granting the
requested variance. As a result, his below-Guidelines sentence is presumptively
reasonable.
As to the substantive reasonableness of his below-Guidelines sentence, the
fact Mr. Soto-Lopez did not receive the degree of variance he desired is, without
more, insufficient to carry his burden. In this case, the district court considered
the circumstances surrounding the variance, including those weighing in favor
and against it, and we may not examine the weight it assigned to the various
§ 3553(a) factors, or its ultimate assessment of the balance between them, but
must “give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Id. at 808 (internal
quotation marks omitted). “Although the degree of variance from the Guidelines
range remains a consideration on appeal, it may not define our threshold standard
of review,” nor do we “seek a certain mathematical precision by requiring that
§ 3553(a) factors reach some specific level of evidentiary weight.” Id. at 807
(internal citation omitted).
Applying such a review, it is clear the district court considered Mr. Soto-
Lopez’s claims regarding the severity of the application of the § 2L1.2(b)
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enhancement and his cultural assimilation and granted a variance based on those
grounds. We do not consider the degree of variance unreasonable under the
circumstances presented, especially where Mr. Soto-Lopez committed a multitude
of crimes over many years, including one as serious as burglary of a dwelling,
even if many of the other crimes were minor. The degree of variance is further
supported by the district court’s consideration of the nature and circumstances of
the serious offense of unlawful reentry, Mr. Soto-Lopez’s unfavorable history and
characteristics, and the issues of deterrence and the need to protect the public
from Mr. Soto-Lopez committing other crimes in the United States. Having failed
to sufficiently rebut the presumptive reasonableness of his sentence, Mr. Soto-
Lopez has failed to show his below-Guidelines sentence is substantively
unreasonable.
III. Conclusion
For these reasons, we AFFIRM Mr. Soto-Lopez’s sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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