United States v. Medellin-Munoz

FILED
United States Court of Appeals
Tenth Circuit
May 8, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-2073
v.
(D.C. No. 2:06-CR-1574-BB)
(D.N.M.)
JOSE MANUEL MEDELLIN-
MUNOZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
Defendant-Appellant Jose Manuel Medellin-Munoz (“Medellin”) pled
guilty to a one-count information charging him with Reentry of a Deported Alien
Previously Convicted of an Aggravated Felony. See 8 U.S.C. § 1326(a)(1)-(2) &
(b)(2). The district court sentenced Medellin to a 41-month term of
*
After examining appellant’s 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order and judgment is not binding precedent, except under the doctrines of law of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.
imprisonment. Medellin appeals, arguing that the sentence offends 18 U.S.C. §
3553(a)’s parsimony principle. 1 However, Medellin’s counsel filed a brief
averring that he was unable to unearth any support for Medellin’s position. See
Anders v. California, 386 U.S. 738 (1967). Having independently scrutinized the
record, we agree with Medellin’s counsel. We exercise jurisdiction under 28
U.S.C. § 1291 and affirm.
I. Background
U.S. Border Patrol agents apprehended Medellin, a Mexican citizen, during
a traffic stop near Deming, New Mexico, on April 19, 2006. Immigration records
revealed that Medellin had previously been deported as a consequence of a
Nevada state court conviction for Battery with Substantial Bodily Harm in
September 1998; moreover, Medellin had not been granted permission to re-enter
the United States. Accordingly, Medellin was detained for prosecution and
charged with a violation of 8 U.S.C. § 1326(a)(1)-(2), (b)(2). Medellin pled
guilty on July 24, 2006.
The U.S. Probation Office prepared a presentence report (“PSR”). 2 In
accordance with U.S.S.G. § 2L1.2(a), the PSR set Medellin’s base offense level at
1
Title 18, section 3553(a) directs “[t]he court [to] impose a sentence
sufficient, but not greater than necessary, to comply with” the sentencing
objectives set forth therein.
2
The Probation Office used the 2005 edition of the United States
Sentencing Guidelines (“U.S.S.G.”).
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8, but added a 16-level enhancement because of his prior conviction for a violent
felony. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). 3 The PSR credited Medellin for
accepting responsibility for his crime of reentry. See U.S.S.G. § 3E1.1. In sum,
Medellin’s total offense level was 21. After tabulating Medellin’s prior
convictions and arrests, the Probation Office placed Medellin in criminal history
category II. Taken together with his offense level, this criminal history category
resulted in an advisory guideline sentencing range of 41 to 51 months in prison.
At his sentencing hearing, Medellin assented both to the PSR’s statement of
facts and its calculation of his guideline range. Yet Medellin, through counsel,
argued that the court should vary downward from the guideline range because the
16-level enhancement overstated the seriousness of Medellin’s prior violent
felony. 4 The sentencing judge was skeptical: he noted that Medellin’s battery
conviction resulted from a situation where Medellin and two other men attacked a
security guard after he ejected them from a bar. The judge also alluded to the
PSR’s statement that the guard overheard the men discuss killing him so that he
3
In addition to the base offense level, the guidelines direct that “[i]f the
defendant previously was deported . . . after – (A) a conviction for a felony that is
. . . (ii) a crime of violence . . . increase by 16 levels.” U.S.S.G. § 2L1.2(b)(1).
4
Medellin’s counsel agreed that the battery conviction “fits within the
guideline definition of crime of violence.” Nevertheless, he argued for a
downward variance on the ground that the guidelines’ definition of “crime of
violence” is broad and Medellin’s crime was relatively less severe than other
violent crimes.
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could not identify them. Lastly, the judge referred to the PSR’s statement that
Medellin had later threatened the guard with harm if he testified.
Before imposing sentence, the court noted that it had reviewed the PSR’s
factual findings, the guidelines, the parties’ briefs, and the 18 U.S.C. § 3553(a)
factors. In light of those inputs, the judge stated:
The Court notes that defendant reentered the United States after having
previously been deported subsequent to an aggravated felony conviction
for battery, substantial bodily harm. And reflecting on the 3553 factors,
this is a serious offense. In order to provide adequate deterrence, given
the defendant’s prior arrest for a similar offense and [to] protect the
public from further crimes, it is my opinion that the guideline sentence
is appropriate in this case.
The court then imposed a sentence of 41 months, at the bottom end of the
advisory guideline range. Given the opportunity, neither the government nor
Medellin’s counsel offered any further objections.
II. Discussion
Medellin’s counsel filed an Anders brief, thereby triggering our duty to
conduct independently a “full examination of all the proceeding[s] to decide
whether the case is wholly frivolous.” United States v. Snitz, 342 F.3d 1154,
1158 (10th Cir. 2003) (quotations omitted). Having done so, we conclude that
Medellin lacks any meritorious reason to challenge his sentence.
We review a sentence imposed by the district court for its
“reasonableness.” United States v. Booker, 543 U.S. 220, 261-62 (2005); United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). As such, we set aside a
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sentence “only if it is procedurally or substantively unreasonable.” United States
v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). We presume the sentence is
reasonable if it falls within the advisory sentencing guidelines range. Kristl, 437
F.3d at 1054. Cf. Rita v. United States, 127 S. Ct. 2456, 2465-67 (2007).
A sentence is procedurally reasonable if it “reflects the sentencing court’s
calculation of the applicable advisory Guidelines range and its application of the
§ 3553(a) factors.” Geiner, 498 F.3d at 1107; United States v. Lopez-Flores, 444
F.3d 1218, 1220 (10th Cir. 2006), cert. denied, 127 S Ct. 3043 (2007) (stating that
procedural reasonableness aspect centers on the method by which the court
calculated the sentence).
At sentencing, Medellin’s counsel conceded that the PSR accurately stated
the pertinent facts and correctly calculated the advisory guideline range. “[W]here
a defendant raises no contemporaneous objection to the court’s” method for
calculating the sentence, “we may reverse the district court’s judgment only in the
presence of plain error.” United States v. Cereceres-Zavala, 499 F.3d 1211, 1217
(10th Cir. 2007); United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007),
cert. denied, 128 S. Ct. 319 (2007). A plain error is present “only when there is
(1) error, (2) that is plain, (3) which affects substantial rights, and (4) which
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Romero, 491 F.3d at 1178.
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Medellin’s counsel dutifully acknowledged in his Anders brief that no non-
frivolous grounds exist to challenge the procedural reasonableness of Medellin’s
sentence. And our review of the record revealed no procedural error. Without
error there is no plain error. We may turn now to the substantive prong of our
reasonableness analysis.
“A substantively reasonable sentence ultimately reflects the gravity of the
crime and the § 3553(a) factors as applied to the case.” United States v. Atencio,
476 F.3d 1099, 1102 (10th Cir. 2007). Thus, we must simply inquire whether the
“sentence is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). Fulfilling
our obligation under Anders, we conclude that Medellin cannot offer any
colorable argument that his sentence is substantively unreasonable.
During the attack on the security guard, Medellin and two other men
punched and kicked the man and also beat him with his baton. They also
apparently considered killing the security guard to silence him. Thereafter, they
repeatedly menaced him with threats of retaliation. As the sentencing court
noted, the Nevada battery conviction was a “serious offense” mandating a
sentence that would deter subsequent conduct of the same sort and, in the
meantime, protect the public. Moreover, the Probation Office asserted that “there
are no circumstances that take the defendant’s case away from the heartland of
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similarly situated defendants.” We have identified nothing in the record that
persuades us otherwise.
III. Conclusion
For the foregoing reasons, we AFFIRM Medellin’s sentence and GRANT
his counsel’s motion to withdraw.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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