United States v. Gutierrez-Hernandez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 3 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4208
(D.C. No. 00-CR-217)
FELIPE GUTIERREZ-HERNANDEZ, (D. Utah)
also known as David
Gutierrez-Hernandez,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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.
Appellant Felipe Gutierrez-Hernandez was convicted of illegal reentry after
deportation, in violation of 8 U.S.C. § 1326. Because appellant had previously
been convicted of an aggravated felony, the district court determined the
maximum sentence under the statute to be twenty years’ imprisonment rather than
two-years’ imprisonment. See 8 U.S.C. §§ 1101(a)(43), 1326(b)(2). After
appellant was given credit for acceptance of responsibility, the court determined
the guideline sentencing range to be seventy to eighty-seven months’
imprisonment. The district court denied appellant’s request for a downward
departure and sentenced him to seventy months’ imprisonment.
Appellant originally filed this appeal to challenge the district court’s
discretionary decision to deny a downward departure from the guideline
sentencing range. After conceding that this court lacks jurisdiction to consider
that issue, see United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998),
appellant filed an amended docketing statement to raise two new arguments.
First, he contends that his sentence improperly exceeds the statutory two-year
maximum under § 1326(a) because the government did not allege his prior
aggravated felony conviction in the indictment. Second, he asserts that his
seventy-month sentence is excessive and disproportionate to the crime and
therefore violates the Fifth and Eighth Amendments.
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The Supreme Court has held that an illegal alien’s prior aggravated felony
conviction is a sentencing factor rather than an element of 8 U.S.C. § 1326, and it
need not be alleged in the indictment. Almendarez-Torres v. United States ,
523 U.S. 224, 228-35 (1998). The Court expressly declined to revisit or overrule
Almendarez-Torres in Apprendi v. New Jersey , 530 U.S. 466 (2000). United
States v. Martinez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000). Therefore,
we are still bound by Almendarez-Torres and appellant’s first argument is
without merit.
Appellant also argues that his sentence is disproportionate to his crime.
The Eighth Amendment prohibits a sentence that is disproportionate to the crime.
Hawkins v. Hargett , 200 F.3d 1279, 1281-82 (10th Cir. 1999) (reviewing Supreme
Court jurisprudence on proportionality), cert. denied , 121 S. Ct. 83 (2000).
However, “‘successful challenges to the proportionality of particular sentences
should be exceedingly rare.’” Id. at 1281 (quoting Rummel v. Estelle , 445 U.S.
263, 272 (1980)). We make a threshold comparison of the crime committed and
the sentence imposed to determine if the sentence is grossly disproportionate. Id.
at 1282 (discussing Harmelin v. Michigan , 501 U.S. 957 (1991)). If it is not, then
we do not consider how appellant’s sentence compares to sentences imposed for
other crimes in the same jurisdiction, or to sentences imposed by other
jurisdictions for the same crime. Id. at 1281-82.
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Further, “[w]e must ‘grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of
punishments for crimes, as well as to the discretion that trial courts possess in
sentencing convicted criminals.’” United States v. Jones , 213 F.3d 1253, 1262
(10th Cir. 2000) (quoting Solem v. Helm , 463 U.S. 277, 290 (1983)). Under this
standard, we do not find appellant’s sentence to be grossly disproportionate for
the crime charged under 8 U.S.C. § 1326. His seventy-month sentence was well
below the statutory maximum and was the minimum sentence within the
applicable guideline range.
AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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