United States v. Gomez-Castillo

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-4139
v. (D. Utah)
HERIBERTO GOMEZ-CASTILLO, (D.C. No. 1:04-CR-173-01-DB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, 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.
*
This order and judgment is not binding precedent, except under the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.
Defendant-Appellant Heriberto Gomez-Castillo pled guilty to one count of
illegal reentry by an alien who had been previously deported, in violation of
8 U.S.C. § 1326(a). He was sentenced to forty-six months’ imprisonment,
followed by thirty-six months of supervised release. He appeals his sentence,
which we affirm.
BACKGROUND
Gomez-Castillo, a native and citizen of Mexico, was arrested on drug and
weapons offense charges in Box Elder County, Utah, on October 19, 2004. On
November 29, 2004, Bureau of Immigration and Customs Enforcement (“BICE”)
agents met with Gomez-Castillo in the Box Elder County jail and discovered that
he was in the United States illegally and that he had been deported twice before,
most recently in 2001. Gomez-Castillo was accordingly indicted on one count of
reentry of a previously deported alien, in violation of 8 U.S.C. § 1326(a).
On December 17, 2004, the government filed a Notice of Sentencing
Enhancement, based upon Gomez-Castillo’s prior conviction for an aggravated
felony, which made him eligible for the more severe penalties provided in
8 U.S.C. §§ 1326(b)(2) and 1101(a)(43). 1 On January 31, 2005, Gomez-Castillo
1
Under §§ 1326(b)(2) and 1101(a)(43), Gomez-Castillo could be imprisoned
for up to twenty years and fined $250,000 or both.
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pled guilty pursuant to a written plea agreement. In exchange for Gomez-
Castillo’s guilty plea, the government agreed to recommend a reduction in his
sentence for acceptance of responsibility, provided Gomez-Castillo continued to
display such acceptance.
Following Gomez-Castillo’s guilty plea, the Probation Office prepared a
presentence report (“PSR”). It calculated a recommended sentence under the
United States Sentencing Commission, Guidelines Manual (“USSG”) (Nov.
2004). The PSR assigned Gomez-Castillo a base offense level of eight, which it
then increased by sixteen levels because he had been previously deported after
being convicted for a felony that was a crime of violence. USSG
§2L1.2(b)(1)(A)(ii). After deducting three levels for acceptance of responsibility
pursuant to §3E1.1, the PSR arrived at a total offense level of twenty-one. With a
criminal history of category III, the Guideline sentencing range was forty-six to
fifty-seven months.
Gomez-Castillo filed a Sentencing Memorandum, in which he made no
objections to the PSR, but argued mitigating factors should lead to a lower
sentence than that suggested by the Guidelines. Specifically, he argued that the
nonviolent nature of his offense of reentry, coupled with the fact that his wife,
step-daughter, father and two siblings lived in Utah and that he, his father and his
siblings worked in Utah to support family members remaining in Mexico, merit a
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“[v]ariance from the Guideline [r]ange.” Sentencing Mem. at 3, R. Vol. I, doc.
21. Gomez-Castillo also argued that USSG §2L1.2 “unreasonably assesses a level
of dangerousness to [him] that is not warranted,” Sentencing Mem. at 4, R. Vol. I,
and that it double counts his prior felony conviction, since it both enhances his
base offense level and counts towards his criminal history. Finally, he argued that
the existence of disparities between sentences imposed in districts where “fast-
track” programs exist for aliens accused of illegal reentry and in districts, like
Utah, where no such “fast-track” program exists merits a lower sentence under the
sentencing factors of 18 U.S.C. § 3553(a). The government responded to the
Sentencing Memorandum, arguing for imposition of a sentence consistent with the
Guideline range.
At his sentencing proceeding, Gomez-Castillo informed the court that his
family had left Utah to return to Mexico and will “never come back here.” Tr. of
Sentencing at 6, R. Vol. III. The district court then imposed a sentence of forty-
six months. The court stated that the sixteen-point enhancement was appropriate
“because [Gomez-Castillo] has the kind of criminal history that warrants the 16
point enhancement.” Id. at 7. The court noted that such an enhancement serves
“a simple desire . . . to keep the streets of America safe.” Id. With respect to the
disparity between sentences imposed in districts with “fast-track” programs and
those without such programs, the court stated:
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I have commented on this disparity between the fast track
programs on the borders and the sentences we routinely hand down
. . . for two or three years now. I don’t apologize for it nor
encourage any change in the system. I have only represented to an
Assistant U.S. Attorney from time to time that I wonder if the
Attorney General of the United States has really thought this through,
and is employing a system in a way they think is fair.
There is no equal protection argument, there is no argument of
any kind. The law has long had as a factor in terms of punishment
and prosecution where a person gets caught and there are disparities.
There is disparity between state and federal systems, and some
disparity between federal to federal systems, in spite of the
sentencing guidelines effort to make the sentences similar for similar
crimes. There is nothing in this particular case that warrants a
departure from that guideline system, and that will be the sentence.
....
Mr. Gomez, you even have pending charges before you now in
the United States involving drug crimes. You have come to this
country and committed the kinds of crimes that make this country
extremely interested in keeping you out.
Id. at 7-8. This appeal followed. Gomez-Castillo argues (1) the district court
“applied an incorrect legal standard at sentencing by requiring Mr. Gomez-
Castillo to make a showing that downward departure was warranted,” Appellant’s
Op. Br. at 4, and (2) the district court’s “categorical refusal” to take into account
the undisputed sentencing disparities caused by the existence of “fast-track”
programs in some districts was legal error resulting in an unreasonable sentence.
Id. at 14.
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DISCUSSION
Following the United States Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), the Guidelines are advisory rather than mandatory.
Nonetheless, because sentencing courts are required to “consider” the properly-
calculated Guidelines sentencing range, United States v. Gonzalez-Huerta, 403
F.3d 727, 748-49 (10th Cir.) (en banc) (internal quotation omitted), cert. denied,
126 S. Ct. 495 (2005), we continue to review the sentencing court’s factual
findings under the Guidelines for clear error and its legal determinations de novo.
United States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). We review for
reasonableness the ultimate sentence imposed, Booker, 543 U.S. at 261-62
(Breyer, J.), “guided by the factors set forth in 18 U.S.C. § 3553(a).” United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam).
We have recently explained how we conduct that reasonableness review.
We have joined several other circuits in concluding that “a sentence that is
properly calculated under the Guidelines is entitled to a rebuttable presumption of
reasonableness.” Kristl, 437 F.3d at 1054. Accordingly, when conducting
reasonableness review of a sentenced imposed post-Booker, we employ a “two-
step approach[,] . . . [f]irst . . . determin[ing] whether the district court considered
the applicable Guidelines range,” and correctly calculated it. Id. at 1055. If the
court sentenced the defendant within that range, the defendant may then rebut that
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presumptively reasonable sentence “by demonstrating that the sentence is
unreasonable in light of the other sentencing factors laid out in § 3553(a).” Id.
That is “a deferential standard.” Id. at 1054.
I. Standard used by district court
Gomez-Castillo focuses on the district court’s statement that “[t]here is
nothing in this particular case that warrants a departure from that guideline
system,” Tr. of Sentencing at 8, R. Vol. III, and argues that statement
demonstrates that the district court “applied a legal standard that no longer exists”
after Booker. Appellant’s Op. Br. at 5. “By requiring Mr. Gomez-Castillo to
meet some unspecified burden in order to avoid a guideline sentence, the court
appears to be re-imposing the same burden which Booker clearly remove[d].” Id.
at 8. We disagree.
As we indicated in Kristl, the starting point for the district court’s
calculation of a sentence is the Guideline sentence, which is presumptively
reasonable. That is what the district court first calculated in this case. It then
becomes the defendant’s burden to rebut the presumptive reasonableness of that
sentence by pointing to other factors in § 3553(a). Kristl, 437 F.3d at 1055; see
United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)
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(finding defendant failed to show that the existence of fast-track disparities
warranted a sentence below the presumptively reasonable Guideline sentence, and
stating “[a]s with departures, the proponent of a factor that would work in the
proponent’s favor has to provide the basis to support it”). The fact that the
district court used the word “departure” does not, by itself, convince us that the
court failed to apply the standards announced in Booker. “Even in the post-
Booker legal landscape, we can expect judges to employ the familiar terminology
of the Guidelines.” United States v. Galarza-Payan, 441 F.3d 885, 888 (10th Cir.
2006). It is clear that the district court understood that the Guideline sentence
was no longer to be mandatorily imposed, but, rather, provided a starting point
from which the court would determine a sentence after considering the 18 U.S.C.
§ 3553(a) factors.
Further, we find no error in the court’s application of those factors.
Section 3553(a) includes as sentencing factors the nature of the offense of
conviction, the characteristics of the defendant, the need for the sentence to
reflect the seriousness of the crime, to provide adequate deterrence, to protect the
public, and to provide any needed treatment for the defendant, as well as the need
to avoid unwarranted disparities among similarly situated defendants committing
similar crimes. The only factors Gomez-Castillo argued were the nonviolent
nature of the crime of reentry, the fact that his family lived in Utah, the degree of
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severity of his criminal history, and the disparities created by the existence of
fast-track districts.
Gomez-Castillo’s argument about the nonviolent nature of the crime of
reentry is just a generalized attack on sentences established for the offense of
illegal reentry and provides no basis for leniency in his particular case. With
respect to his argument about his personal circumstances, Gomez-Castillo did not
develop any particular argument that the fact of his family being in Utah
suggested the need for a sentence below the Guideline one. Moreover, by the
time of sentencing, he had completely flipped this argument and asserted that
because his family had gone back to Mexico, he would have no incentive in the
future to return to the United States. The district court rightly concluded that
neither of these factors assisted Gomez-Castillo in rebutting the presumptively
reasonable Guideline sentence.
With respect to the implications of the severity of Gomez-Castillo’s
criminal history, the district court’s statements at sentencing indicated that it
placed considerable weight on the need for the sentence imposed to protect the
public and to provide adequate deterrence. The court noted Gomez-Castillo’s not
insignificant criminal history, and his pending charges involving drugs. While
Gomez-Castillo would have us look instead at the nonviolent nature of his offense
of conviction (illegal reentry), he cannot ignore his serious criminal history and
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repeated efforts to reenter and remain illegally in this country. The district court
clearly felt that the Guideline sentence was appropriate and reasonable, because it
felt Gomez-Castillo’s criminal history was significant and his sentence therefore
needed to provide adequate deterrence and protection of society.
II. Fast-track disparities
The final § 3553(a) factor which Gomez-Castillo would have us give
determinative effect is the undisputed existence of sentencing disparities between
illegal aliens sentenced in districts containing fast-track programs and districts
without such programs. Section 3553(a)(6) states that, in sentencing defendants,
courts must consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.”
Gomez-Castillo argues that the disparities created by fast-track programs are
unwarranted and that the district court erred in refusing to consider those
disparities and/or refusing to sentence Gomez-Castillo below the Guideline range.
Fast-track programs originally were confined largely to states bordering
Mexico, where federal prosecutors were “faced with increasing numbers of illegal
reentry and other immigration cases.” United States v. Morales-Chaires, 430 F.3d
1124, 1127 (10th Cir. 2005). These programs permit “defendants accused of
certain immigration offenses [to] plead guilty early in the process and waive their
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rights to file certain motions and to appeal, in exchange for a shorter sentence.”
Id. Congress endorsed the concept in 2003 via the Prosecutorial Remedies and
Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”),
Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified in scattered sections of 18, 28
and 42 U.S.C.), and the Sentencing Commission added a new Guideline section
authorizing departures up to four levels for defendants participating in a fast-track
program. See USSG §5K3.1, p.s. Jurisdictions seeking to implement a fast-track
program must obtain authorization from the Attorney General. At the time
Gomez-Castillo was sentenced, Utah did not have a fast-track program, although a
number of other jurisdictions did. In Morales-Chaires we described more fully
the history of fast-track programs and the split among district courts, primarily,
on whether sentencing disparities created by the existence of such programs in
certain districts should lead to reduced sentences for defendants in districts
without such programs. 430 F. 3d at 1127-28, 1130-31.
The defendant in Morales-Chaires made the identical argument Gomez-
Castillo does here. We held in that case that we did not “need [to] resolve
whether sentencing disparities caused by the existence of fast-track programs in
some jurisdictions are or are not, or may be in certain circumstances, considered
unwarranted under § 3553(a)(6).” Id. at 1131. That was because § 3553(a)(6) “is
but one of several factors for a court to consider in determining a reasonable
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sentence.” Id. We held that a consideration of all the § 3553(a) factors indicated
the sentence imposed in that case was reasonable.
Since our decision in Morales-Chaires, the Eighth Circuit has held that “the
sentencing disparities arising from fast-track programs [do not] make[] th[e]
[defendant’s] sentence unreasonable.” United States v. Sebastian, 436 F.3d 913,
916 (8th Cir. 2006). 2 Similarly, the Seventh Circuit has held that any disparity
between the defendant’s sentence and those available to or imposed in fast-track
jurisdictions “was considered appropriately as a single, and not controlling,
factor” and that the defendant’s sentence was not unreasonable. United States v.
Martinez-Martinez, 442 F.3d 539, 543 (7th Cir. 2006); see also United States v.
Montes-Pineda, No. 05-4411, __ F.3d __, 2006 WL 1062154, at *4 (4th Cir. Apr.
24, 2006) (“[W]e hold that merely pointing out the existence of such [fast-track]
disparities, with no reference to the characteristics of the particular defendant,
does not render a within-Guidelines sentence unreasonable.”); United States v.
2
As the Eighth Circuit stated:
to require the district court to vary from the advisory guidelines
based solely on the existence of early disposition programs in other
districts would conflict with the decision of Congress to limit the
availability of such sentence reductions to select geographical areas,
and with the Attorney General’s exercise of prosecutorial discretion
to refrain from authorizing early disposition agreements in [certain
jurisdictions].
Sebastian, 436 F.3d at 916.
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Martinez-Flores, 428 F.3d 22, 30 n.3 (1st Cir. 2005) (stating in dicta “[i]t is
arguable that even post-Booker, it would never be reasonable to depart downward
based on disparities between fast-track and non-fast-track jurisdictions given
Congress’ clear (if implied) statement in the PROTECT Act provision that such
disparities are acceptable”), cert. denied, 126 S. Ct. 1449 (2006); Jimenez-Beltre,
440 F.3d at 519 (noting its dicta in Martinez-Flores, and finding that in the case
before it, the defendant “had not furnished a factual basis for assessing the extent
of the [fast-track] disparities or provided a reason why to take them into
account[,] . . . [so] [i]n declining to alter the sentence on this ground, the district
court did not act unreasonably” (citation omitted)).
Gomez-Castillo argues that the district court “categorically” refused to
consider the disparities caused by fast-track programs. We disagree. The district
court acknowledged the existence of those disparities, and noted that disparities
were an inevitable result to some degree in the criminal justice system. The court
evidently believed that fast-track disparities are not unwarranted under
§ 3553(a)(6). Moreover, consistent with our decision in Morales-Chaires, the
court found that those disparities did not trump the remaining § 3553(a)
sentencing factors; rather, disparities are a factor, to be considered along with the
remaining § 3553(a) factors. In this case, the district court correctly found that
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the remaining sentencing factors supported the imposition of the Guideline
sentence.
Finally, we acknowledge that the district court’s explanation for its
sentencing decision was not lengthy, nor did it specifically reference § 3553(a) or
meticulously go through each factor. 3 But, it need not have.
The sentencing court is not required to consider individually each
factor listed in § 3553(a) before issuing a sentence, and we will not
demand that the district court recite any magic words to show us that
it fulfilled its responsibility to be mindful of the factors that
Congress has instructed it to consider.
Galarza-Payan, 441 F.3d at 888-89 (quoting United States v. Contreras-Martinez,
409 F.3d 1236, 1242 (10th Cir. 2005) (further quotation, citations, and alteration
marks omitted). “[T]he record plainly shows that it considered the relevant
§ 3553(a) factors in reaching its conclusions as to an appropriate sentence.” Id. at
889. In sum, we conclude that the sentence imposed was reasonable.
CONCLUSION
For the foregoing reasons, we AFFIRM Gomez-Castillo’s sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
3
Of course, we encourage district courts to specifically discuss the
§ 3553(a) factors, so that the rationale behind the sentence imposed is clear both
to the defendant and to the appellate court.
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