United States v. Estrada-Lozano

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 28, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-1566
v. D. Colorado
R OBER TO ESTR AD A -LO ZA NO, (D.C. No. 05-CR -220-PSF)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
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.
Roberto Estrada-Lozano pled guilty to illegal reentry after deportation
subsequent to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a),
(b)(2). He was sentenced to 57 months imprisonment. He appeals from his
*
This order and judgment is not binding precedent except under the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.
sentence. W e exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. §
1291 and AFFIRM .
I. Background
Estrada-Lozano is a citizen of M exico. W hen he was thirteen, he moved to
the United States w ith his mother. In M ay 1993 at age eighteen, he pled guilty to
misdemeanor use of a controlled substance and felony possession of cocaine for
sale in the State of California (Case No. 163403). He was sentenced to a
suspended sentence of 6 months imprisonment and 3 years probation. Three
months later he was arrested again in California for felony possession of
marijuana for sale (Case No. 167670). In November 1993, he pled guilty and was
sentenced to 16 months imprisonment. Simultaneously, his probation was
revoked in Case No. 163403 and he was sentenced to 2 years imprisonment, to
run concurrent with his 16-month sentence. As a result of his possession of
cocaine for sale conviction, Estrada-Lozano was deported on or about November
18, 1994.
His absence from the United States appears to have been short-lived. From
December 1995 through February 2002, he was convicted in the State of Colorado
of five misdemeanor driving-related offenses and one misdemeanor damage to
property offense. He also fathered the child of an American citizen in
approximately 1999. In August 2004, the police in W heat Ridge, Colorado,
arrested him after receiving a 911 call from his girlfriend (and mother of his
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child) after he entered her residence through a w indow in violation of a temporary
restraining order. That conduct led to a charge of first degree felony trespass of a
dwelling, to w hich he pled guilty and was eventually sentenced to 2 years
probation. In M ay 2005, the United States Bureau of Immigration and Customs
Enforcement took him into custody.
Estrada-Lozano was indicted for illegal reentry after deportation subsequent
to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a), (b)(2).
Pursuant to a plea agreement with the government, he pled guilty. In exchange,
the government agreed to recommend a sentence at the bottom of the applicable
advisory guideline range and agreed to a 3-point downward adjustment for
acceptance of responsibility. A presentence investigation report (PSR ) was
prepared.
The PSR determined Estrada-Lozano’s base offense level was 8 under the
applicable guideline USSG §2L1.2. 1 Because Estrada-Lozano had been
previously deported after a felony drug-trafficking conviction for which the
sentence imposed exceeded 13 months, the base offense level was increased 16
levels under U SSG §2L1.2(b)(1)(A). After applying a 3-level downward
adjustment for acceptance of responsibility, see USSG §3E1.1, the total offense
1
Estrada-Lozano was sentenced pursuant to the 2004 edition of the United
States Sentencing Commission Guidelines M anual. All citations to the guidelines
in this Order & Judgement refer to the 2004 guidelines unless otherwise
indicated.
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level was 21. Based on a Criminal History Category of IV, the sentencing
guideline range was 57-71 months imprisonment.
Estrada-Lozano did not object to the PSR’s factual statements or guideline
calculations. Instead, he filed a motion for downward departure or for a sentence
below the guideline range in light of the factors set forth in 18 U.S.C. § 3553(a).
He claimed a downward departure was warranted because, inter alia, (1) his tw o
most offensive prior convictions (possession for sale of marijuana and cocaine)
involved small amounts of drugs and occurred when he was a teenager living in a
community where many of his peers w ere involved in the use and sale of small
amounts of drugs, (2) he had not been involved w ith the sale of drugs since those
convictions, (3) the impact of those convictions has been disproportionate to the
size and scale of those offenses, 2 and (4) he is culturally assimilated to the United
States. Specifically, he has lived here since he was thirteen, has been educated in
American high schools, has worked and contributed to society as a window
washer, has been in a committed relationship with a United States citizen, who is
2
Estrada-Lozano claimed:
[He] was sentenced to a total of two years in prison, which was
proportionate to the offenses. B ut the peripheral impact of the
deportation and likely lifetime exile has been devastating beyond mere
punishment. Not only was he cast from these shores, but he is now
being punished because of those old mistakes by a very young man. He
is looking at an additional three years because of the old drug
convictions and the punishments received. It seems too much.
(R . Vol. I, Doc. 16 at 4.)
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also the mother of his child, has siblings who live in the United States and does
not know anyone in M exico. Based on the above factors, Estrada-Lozano argued
a 30-month sentence was appropriate. The government vigorously opposed the
motion.
At the sentencing hearing, the court asked defense counsel what facts
suggested Estrada-Lozano would not return to the United States. In reply, defense
counsel said Estrada-Lozano was now aware of the consequences of illegally re-
entering the United States and has a number of opportunities in M exico due to his
American education and fluency in both English and Spanish. Estrada-Lozano also
personally informed the court he was sorry for illegally re-entering the country and
“it will never happen again.” (R. Vol. III at 8.) After consulting the advisory
guidelines, considering the sentencing factors set forth in 18 U.S.C. § 3553(a) and
reviewing the “very capable and articulate briefing on the m otion to depart
downward or otherwise sentence below the [guideline] range,” the court adopted the
PSR ’s guideline calculations and sentenced Estrada-Lozano to 57 months
imprisonment. (Id. at 9.) W hile acknowledging it was a “tough sentence,” the
district court found no reason to depart from the guideline range or impose a
sentence of variance with the guidelines 3 , stating:
3
A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1
(10th Cir. 2007). A variance occurs “when a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” Id.
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This particular defendant was put in a tough position as a youth. And,
on the other hand, he has a criminal record that prevents him from
becoming a citizen and prevents him from getting a lower sentence.
And I do agree with the district judge in [United States v. M orales-
Chaires, 430 F.3d 1124 (10th Cir. 2005)] that a sentence not only has to
apply to this individual but it does have to fulfill the need to promote
respect for the law .
(Id. at 9-10.) Estrada-Lozano timely appealed.
II. Discussion
Estrada-Lozano argues his sentence was neither reasoned nor reasonable when
viewed against the sentencing factors set forth in 18 U .S.C. § 3553(a). He also
claims affording a presumption of reasonableness to sentences within the guideline
range is unwarranted and in conflict with United States v. Booker, 543 U.S. 220(2005).
A. Reasonableness of Sentence
Estrada-Lozano argues his sentence is unreasonable in light of the factors set
forth in § 3553(a) because the district court failed to consider his arguments
regarding (1) the deterrent effect prison had on him, i.e., he has not committed a
drug-related crime since his 1993 convictions, (2) his personal assurance he would
not re-enter the country illegally, and (3) his counsel’s assurance he would not
illegally return to the United States because he now understands the serious
consequences and has opportunities in M exico. Had the district court considered
these arguments, he claims, a lesser sentence w ould have been imposed because
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these facts adequately rebut the presumption of reasonableness accorded sentences
imposed within a properly calculated guideline range. Estrada-Lozano also asserts
the district court failed to provide reasons for rejecting his arguments. He alleges
such reasoning is necessary to assist this Court in its reasonableness review. 4
W e review sentences imposed post-Booker for reasonableness. United States
v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Reasonableness “necessarily
encompasses both the reasonableness of the length of the sentence, as well as the
method by which the sentence was calculated.” Id. at 1055; see also United States v.
M artinez, 455 F.3d 1127, 1132 (10th Cir.) (“[S]entences must be both substantively
and procedurally reasonable.”), cert. denied, 127 S.Ct. 570 (2006). In this case,
Estrada-Lozano is challenging both aspects of reasonableness. 5
4
Estrada-Lozano is not contesting the district court’s discretionary denial
of his motion for downward departure and rightly so because we do not have
jurisdiction to review it. United States v. Chavez-Diaz, 444 F.3d 1223, 1229
(10th Cir. 2006).
5
The government claims w e should review Estrada-Lozano’s arguments
under the plain-error standard. Relying on United States v. Lopez-Flores, it
claims that because Estrada-Lozano is challenging the method by which the
district court arrived at his sentence, as opposed to its length, his failure to object
to that method in the district court warrants plain-error review. 444 F.3d 1218,
1221-22 (10th Cir. 2006). Estrada-Lozano argues he is challenging both the
reasonableness of the method used by the district court to impose sentence and its
length. He further asserts Lopez-Flores has been limited by United States v.
Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), which did not apply plain error
review even though the defendant had not objected to the district court’s
sentencing method. W e agree with Estrada-Lozano that he is challenging both the
length of his sentence and the method used to impose it. However, we disagree
that Sanchez-Juarez limited the scope of Lopez-Flores. In Sanchez-Juarez, the
(continued...)
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As to the reasonableness of the length of his sentence, Estrada-Lozano does
not challenge the district court’s application of the guidelines or its calculation of the
guideline range. Thus, because he was sentenced within that range, his sentence is
entitled to a “rebuttable presumption of reasonableness.” Kristl, 437 F.3d at 1054(“[A] sentence that is properly calculated under the Guidelines is entitled to a
rebuttable presumption of reasonableness.”). “The defendant may rebut this
presumption by demonstrating that the sentence is unreasonable in light of the other
sentencing factors laid out in § 3553(a).” Id. at 1055. In rebuttal, Estrada-Lozano
claims the district court failed to consider his arguments and failed to provide
reasons for rejecting them. This argument requires us first to consider the
reasonableness of the method by which Estrada-Lozano’s sentence was imposed.
In Booker, the Supreme Court remedied the constitutional infirmity of the
guidelines by invalidating their mandatory nature, requiring the district court to
consult them in an advisory fashion but permitting the court to tailor the sentence in
light of other sentencing goals set forth in 18 U.S.C. § 3553(a). 543 U.S. at 245-46
(severing and excising 18 U.S.C. § 3553(b)(1)). W hile the district court is required
to consider § 3553(a)’s sentencing factors when imposing sentence, we have not
required it to expressly mention each factor in imposing sentence. See Martinez, 455
5
(...continued)
standard of review was never addressed. Nevertheless, we need not resolve the
issue. If the plain error standard of review does not apply, our conclusion would
be the same— the method used to arrive at the sentence as well as the length of
the sentence are reasonable.
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F.3d at 1131-32 (rejecting defendant’s argument that the district court erred by not
specifically considering § 3553(a) where the court consulted the guidelines in an
advisory fashion, exercised its discretion in sentencing below the guideline range,
heard multiple arguments regarding the appropriate sentencing range and was
familiar w ith the relevant facts); United States v. Rines, 419 F.3d 1104, 1107 (10th
Cir. 2005) (noting that we do not require the district court to “march through
§ 3553(a)’s sentencing factors” when imposing sentence; upholding sentence w here
the district court stated it “looked at the record in its entirety,” heard arguments
regarding the appropriate sentence, and concluded a 70 month sentence was
appropriate) (quotations omitted), cert. denied, 126 S.Ct. 1089 (2006).
In this case, the district court stated it had consulted the guidelines in an
advisory fashion and considered the § 3553(a) sentencing factors. 6 It further stated it
had reviewed the parties’ briefs on whether Estrada-Lozano should receive a
sentence below the advisory guideline range, which included the argument
concerning the deterrent effect prison life had on him. It also adopted the factual
statements and guideline applications in the PSR. The PSR contained a discussion of
6
Those factors include: the nature and circumstances of the offense; the
history and characteristics of the defendant; the need for the sentence imposed to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, afford adequate deterrence, protect the public, and
provide the defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner; pertinent
guidelines; pertinent policy statements; the need to avoid unwanted sentence
disparities; and the need to provide restitution. 18 U.S.C. § 3553(a).
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the § 3553(a) factors, focusing on Estrada-Lozano’s criminal history and the fact
previous probation and jail sentences had not deterred him from committing new
crimes, including first degree felony trespass of a dwelling. W hile the district court
did not expressly weigh each § 3553(a) factor, it did consider Estrada-Lozano’s
childhood and cultural assimilation to the United States, his criminal record, the
likelihood he would recidivate and, in particular, the need for the sentence to
promote respect for the law. Thus, the district court’s sentencing method was
proper.
Estrada-Lozano relies on United States v. Sanchez-Juarez for the proposition
that a district court is required to state reasons for rejecting a non-frivolous motion
for a sentence below the advisory guideline range. 446 F.3d 1109 (10th Cir. 2006).
There, Sanchez-Juarez pled guilty to illegal reentry after deportation subsequent to
an aggravated felony conviction. He did not object to the PSR’s guideline
calculation, instead filing a sentencing memorandum arguing for a sentence below
the advisory guideline range. He claimed a lower sentence was warranted based on
the relatively minor nature of his prior aggravated felony, his exceptional family
circumstances (i.e., his having to support a wife and two children), the harsher
restrictions alien inmates receive in prison compared to their non-alien counterparts
and the sentencing disparity caused by the existence of “fast-track” programs in
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some jurisdictions but not in others. 7 The government opposed a sentence below the
advisory guideline range, claiming there was nothing atypical about Sanchez-
Juarez’s background as many defendants have dependent spouses and children. It
also asserted his prior alien transporting conviction was expressly addressed in the
guidelines as a conviction warranting a 16-level enhancement. The district court
adopted the PSR’s guideline calculation range and sentenced Sanchez-Juarez to the
bottom of that range. Sanchez-Juarez appealed, claiming his sentence was
procedurally unreasonable because the district court failed to state reasons for the
sentence it imposed and to consider his arguments that the § 3553(a) factors
warranted a sentence below the applicable guideline range.
On appeal, we acknowledged that the district court’s decision to impose a
sentence at the bottom of the guideline range could be interpreted as a functional
rejection of Sanchez-Juarez’s arguments and a denial of his request for a below -
guideline sentence. Id. at 1115. However, because the court stated no reasons for
the sentence it imposed (other than citing Sanchez-Juarez’s offense conduct and
noting it had reviewed the PSR’s factual findings and considered the guideline
applications) and did not refer to the § 3553(a) factors, we concluded remand w as
appropriate. Id. at 1115, 1118. W hile we recognized that both before and after
Booker we have not demanded the district court to recite any magic words to show us
7
A “fast-track” program provides for reduced sentences in illegal reentry
cases where a defendant pleads guilty. Sanchez-Juarez, 446 F.3d at 1112.
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it considered the § 3553(a) factors, w e found this principle did not mean we could
presume the district court weighed the defendant’s arguments in light of § 3553(a)
where the record provides no indication it did so and no clear explanation of the
sentence imposed. Id. at 1115-16. W e also rejected the government’s argument that
the presumption of reasonableness we afford a sentence within the guideline range
renders moot any question concerning the adequacy of the district court’s sentencing
method. Id. at 1116-17. W e concluded that requiring the district court to state its
reasons for rejecting a party’s nonfrivolous motion for a sentence below the
guideline range was not incompatible with that presumption. Id. at 1117. In sum,
we held:
W e are therefore persuaded that our pre-Booker requirement that district
courts provide sufficient reasons to allow meaningful appellate review
of their discretionary sentencing decisions continues to apply in the
post-Booker context. In particular, where a defendant has raised a
nonfrivolous argument that the § 3553(a) factors w arrant a
below-Guidelines sentence and has expressly requested such a sentence,
we must be able to discern from the record that the sentencing judge did
not rest on the guidelines alone, but considered whether the guidelines
sentence actually conforms, in the circumstances, to the statutory
factors.
Id. at 1118 (quotations omitted).
Sanchez-Juarez is clearly distinguishable. U nlike the district court in
Sanchez-Juarez, the court in this case stated it had considered the § 3553(a)
sentencing factors. The court’s discussion at sentencing supports this, as it expressly
mentioned Estrada-Lozano’s background, criminal history and the need for the
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sentence to promote respect for the law. It further considered whether Lozano-
Juarez was likely to illegally re-enter the country, as evidenced by its inquiry to
defense counsel seeking assurances that Estrada-Lozano would not return to the
United States without permission. It is also clear from the record the reasons the
court rejected Estrada-Lozano’s motion for a below-guideline sentence, i.e., his
criminal history and the need for the sentence to promote respect for the law.
M oreover, the PSR, unlike the PSR in Sanchez-Juarez, contained a discussion of the
§ 3553(a) factors and made a sentencing recommendation based on those factors.
Compare Sanchez-Juarez, 446 F.3d at 1115 n.6 (noting PSR , unlike others we had
seen, did not refer to or discuss the § 3553(a) factors or make a sentencing
recommendation based on those factors). Thus, the record reflects the district court
“did not rest on the guidelines alone, but considered whether the guidelines sentence
actually conforms, in the circumstances, to the statutory factors.” Id. at 1118
(quotations omitted). 8
8
W e recently clarified a district court’s duty of explanation at sentencing.
United States v. Ruiz-Terrazas, -- F.3d --, No. 06-2138, 2007 W L 576034 (10th
Cir. Feb. 26, 2007). There, like here, the district court entertained extensive
§ 3553(a) argument and explained on the record it had considered the § 3553(a)
factors. Nevertheless, Ruiz-Terrazas claimed the district court comm itted
reversible error because it failed to specifically state why it rejected his § 3553(a)
arguments. Applying plain error review, we concluded the district court
committed no error. Id. at *2. W e noted that while § 3553(c)(2) requires a
district court to provide a specific statement of reasons when imposing a sentence
outside the guidelines, § 3553(c)(1) only requires the court to provide a general
statement of reasons when imposing a sentence falling within the guideline range.
Id. W e also cited to United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir.
(continued...)
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H aving found Estrada-Lozano’s sentence to be procedurally reasonable, w e
now turn to whether he has rebutted the presumption of reasonableness that attaches
to his correctly calculated guideline range sentence. He attempts to rebut the
presumption by pointing to the deterrent effect prison has had on him and his
assurances that he would not re-enter the country illegally. As to the former
argument, he claims he has not committed another drug-related crime since he was
released from prison in 1994. However, he has committed several non-drug related
crimes, including several driving-related misdemeanors, a damage to property
misdemeanor, a first degree felony trespass of a dwelling, and, of course, illegally
re-entering this country after being deported. W hile he downplays the seriousness of
these offenses, their commission demonstrate a disrespect for the law s of this
country. Indeed, one of the § 3553(a) factors the district court relied upon in
im posing sentence w as the need for the sentence to promote respect for the law .
8
(...continued)
2006), for the proposition that a district court need not recite any magic w ords to
prove it considered § 3553. Id. at *4 (quotations omitted). Lastly, we rejected
Ruiz-Terrazas’ reliance on Sanchez-Juarez. Id. at *5. W e concluded Sanchez-
Juarez and its progeny simply hold “we will step in and find error when the
record gives us reason to think that our ordinary (Lopez-Flores) presumption that
the district court knew and applied the law is misplaced.” Id. W e also
distinguished Sanchez-Juarez based on the fact there was no indication in
Sanchez-Juarez that the district court considered the § 3553(a) factors and we
could not discern a clear explanation for the sentence given. Id. Because the
district court had entertained Ruiz-Terranza’s § 3353(a) arguments, indicated on
the record it had considered the § 3553(a) factors and proceeded to explain its
reliance on sentencing guideline range, we determined Sanchez-Juarez’s
reasoning was inapplicable. The same is true here.
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W e similarly reject Estrada-Lozano’s argument that a below guideline range
sentence was appropriate because he (as well as his counsel) assured the court he
would not illegally re-enter the country. The district court obviously considered
these assurances (indeed it asked for them) but still found a sentence below the
guideline range was not warranted. 9 Notwithstanding Estrada-Lozano’s personal
assurances, the district court did not err in concluding such assurances did not
warrant a sentence below the advisory guideline range (the national norm) in this
case. United States v. Gonzalez-H uerta, 403 F.3d 727, 738 (10th Cir.) (en banc),
cert. denied, 126 S.Ct. 495 (2005). His bilingual abilities and American education
were present before he illegally re-entered the country after his 1994 deportation.
M oreover, we presume such assurances are standard fare in cases such as this. That
does not make them credible.
B. Rebuttable Presumption
Estrada-Lozano claims affording a presumption of reasonableness to sentences
within the guideline range is unwarranted and in conflict with Booker. At the same
time he recognizes our contrary precedent. Kristl, 437 F.3d at 1054-55. The
9
That consideration could, and should, be fleeting. This defendant’s
assurances that he has learned his lesson and is now irrevocably comm itted to a
law abiding life hardly resonates in the crucible of unremitting criminal behavior.
And it is, indeed, mystifying how anyone would think the echo of hollow
prom ises uttered by defense counsel could add credence to the incredible. No
court should ever be required to give lengthy or serious consideration to such
cultivated and dubious assertions. Past behavior is the best predictor of future
behavior.
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argument has been preserved for further review, which is Estrada-Lozano’s stated
purpose for raising it.
A FFIR ME D.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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