United States v. Flores-Santos

FILED
United States Court of Appeals
Tenth Circuit
June 8, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff -Appellee, No. 10-1261
v. D. of Colo.
EVELIO FLORES-SANTOS, (D.C. No. 09-CR-378-PAB)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges. **
Evelio Flores-Santos pleaded guilty to illegally reentering the United States
after a prior deportation, following a conviction for an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). His prior felony for transporting
illegal immigrants resulted in a 16-level enhancement to his offense level under
the United States Sentencing Guidelines (USSG). The district court sentenced
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel determined unanimously that oral argument would not be of material
assistance in the determination of this appeal and on March 25, 2011 ordered the
case to be submitted on the briefs. See Fed. R. App. P. 34(a); 10th Cir. R.
34.1(G).
Flores-Santos to 46 months’ imprisonment, followed by 3 years of supervised
release.
On appeal, Flores-Santos challenges the substantive reasonableness of his
sentence. He contends the district court should have applied a downward
variance because of the relatively benign nature of his prior felony in comparison
to other offenses that trigger the 16-level enhancement.
We disagree and conclude the district court imposed a reasonable sentence
within a properly calculated guidelines range. Exercising jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742, we AFFIRM.
I. Background
Flores-Santos, a native and citizen of Mexico by birth, first entered the
United States illegally in 2001, when he was 15 years old. In 2005, he was
convicted of transporting eight illegal immigrants to Chicago, in violation of 8
U.S.C. § 1324(a). This was an aggravated felony conviction, and Flores-Santos
was sentenced to 18 months’ imprisonment and 24 months’ supervised release. In
August 2006, he was released from prison and deported to Mexico.
Less than three years later, in June 2009—while still subject to supervised
release—Flores-Santos illegally reentered the United States. Soon thereafter, he
was stopped by the Colorado State Patrol for driving under the influence. After
he was taken into custody, he was advised of his rights in Spanish. He waived his
right to have an attorney present, and he admitted his identity and that he (1) was
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a citizen of Mexico, (2) had been removed from the United States approximately
three years before, (3) reentered the United States in 2009, (4) was not inspected
and admitted by an immigration officer when he reentered the United States, and
(5) had never applied for permission from the United States Attorney General to
reenter the United States after his deportation.
Based on these facts, Flores-Santos was indicted for illegally reentering the
United States after a prior deportation, following an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). He pleaded guilty. Flores-Santos’s
presentence investigation report (PSR) calculated that, under the USSG, he was
subject to a base offense level of 8 and a criminal history category of III. In
addition, however, the PSR calculated that Flores-Santos was subject to a 16-level
enhancement for his 2005 felony conviction, see USSG § 2L1.2(b)(1)(A), and that
he was entitled to a 3-level reduction for acceptance of responsibility, see id.
§ 3E1.1. The resulting total offense level was 21, and the advisory guideline
sentencing range was 46 to 57 months. Flores-Santos did not object to the facts
as set forth in the PSR, and the district court accepted its findings and guidelines
calculation.
At the sentencing hearing, Flores-Santos moved for a downward variance.
He contended the 16-level enhancement for his 2005 conviction was
unreasonable. The district court considered the factors under 18 U.S.C.
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§ 3553(a), rejected Flores-Santos’s arguments, and imposed a sentence of 46
months’ imprisonment—the bottom of the guidelines range.
II. Discussion
Flores-Santos challenges the substantive reasonableness of his sentence,
contending the district court misapplied the § 3553(a) factors. He maintains the
nature of his 2005 felony conviction—the offense was nonviolent, he was 19
years old at the time, and he had no significant criminal history—did not support
his 46-month sentence.
We review the substantive reasonableness of a defendant’s sentence for
abuse of discretion. See United States v. Mancera-Perez, 505 F.3d 1054, 1058
(10th Cir. 2007). Under this deferential standard, we may overturn Flores-
Santos’s sentence only if the district court’s decision was “arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Friedman, 554 F.3d
1301, 1307 (10th Cir. 2009) (quotation omitted). In this regard, we assess
whether the sentence is reasonable “given all the circumstances of the case in
light of the factors set forth in 18 U.S.C. § 3553(a).” Id. (quotation omitted).
Because Flores-Santos’s sentence was within the correctly calculated
guidelines range—in fact, at the bottom of the guidelines range—we presume it to
be reasonable. United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir.
2008). Flores-Santos bears the burden of rebutting the presumption of
reasonableness by “demonstrating that [his] sentence is unreasonable in light of
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the other sentencing factors laid out in § 3553(a).” United States v. Kristl, 437
F.3d 1050, 1055 (10th Cir. 2006). He cannot overcome this burden.
A. The Sentence
Flores-Santos’s total offense level was based on the application of USSG
§ 2L1.2, which specifies that individuals convicted of unlawfully entering the
United States are subject to certain enhancements. Specifically, § 2L1.2 provides
[i]f the defendant previously was deported . . . after (A) a
conviction for a felony that is (i) a drug trafficking offense for
which the sentence imposed exceeded 13 months; (ii) a crime of
violence; (iii) a firearms offense; (iv) a child pornography
offense; (v) a national security or terrorism offense; (vi) a human
trafficking offense; or (vii) an alien smuggling offense, increase
by 16 levels.
USSG § 2L1.2(b)(1)(A) (emphasis added). Because Flores-Santos’s 2005 felony
was an alien smuggling offense, he was subject to a 16-level enhancement under
the express terms of § 2L1.2. Thus, his total offense level of 21 and criminal
history category of III indicated a guidelines sentencing range of 46 to 57 months.
At sentencing, Flores-Santos moved for a downward variance and requested
a 24-month sentence. He contended the 16-level enhancement was unwarranted
because (1) he had a very limited criminal history, and (2) he was only 19 years
old in 2005. In response, the government argued that “to deviate nearly 50
percent below the bottom of the guidelines range that is set as a result of that 16-
level enhancement would be to disregard both Congress’ statement about the
severity of those transporting illegal alien offenses and the Sentencing
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Commission’s statements about the severity of those offenses . . . .” R., Vol. II at
22. The government also pointed to the short time between Flores-Santos’s
reentry into the United States and his arrest, and it highlighted the need to avoid
unwarranted sentencing disparities between Flores-Santos and other defendants
convicted of alien smuggling and trafficking offenses.
The district court rejected Flores-Santos’s arguments and refused to grant
him a variance. In doing so, the court explicitly considered Flores-Santos’s
criminal history and determined his conviction for transporting illegal aliens was
a serious offense—Congress had classified it as an aggravated felony—that
supported the guidelines range. The district court also placed great weight on the
link between Flores-Santos’s prior immigration-related conviction and the later
illegal reentry. The court asserted that Flores-Santos’s 2005 conviction was
“serious because in a lot of cases where there is an aggravated felony, . . . the
nature of the conviction may be different from the conviction before the Court.”
R., Vol. II at 26. The court explained that in Flores-Santos’s case, however,
“there [was] a relationship between the two [crimes],” as each was “an
immigration offense.” Id. Emphasizing that the trafficking crime was an offense
that facilitated illegal conduct by others, the district court decided varying
downward “would [have] create[d] an unwarranted sentence disparity” because
Flores-Santos’s prior conviction was “related to immigration offenses.” Id. at 27.
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In other words, the district court found variances should rarely be granted
in illegal reentry cases where the defendant has previously committed an
aggravated immigration-related felony of the sort contemplated by § 2L1.2.
Accordingly, the district court sentenced Flores-Santos to 46 months’
imprisonment—the bottom of the guidelines range.
B. Substantive Reasonableness
Flores-Santos now contends the district court abused its discretion by
assigning undue significance to the relationship between his two felonies.
Specifically, he argues his 2005 crime should not be deemed more serious by the
fact that his 2009 illegal reentry also was immigration related. Nor, he contends,
does his minimal criminal history support a guidelines-range sentence. In
essence, Flores-Santos contends the Guidelines’ calculations effectively
overstated, through imposition of a 16-level enhancement, the seriousness of his
prior alien smuggling conviction.
While not without some force, these arguments for a variance do not
mandate reversal. Although there may have been legitimate reasons for the
district court to vary downward, it did not abuse its discretion by refusing to do
so.
The record reveals Flores-Santos’s sentence was based on a conscientious
consideration of the § 3553(a) factors by the district court. The court
appropriately assessed the nature of Flores-Santos’s prior offense, his criminal
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history, and the fact that his prior and current offense reflected a pattern of
conduct—all of which are appropriate considerations under § 3553(a). Contrary
to Flores-Santos’s assertion, the district court did not err in assigning significance
to the relationship between Flores-Santos’s illegal reentry crime and his alien
smuggling offense.
Our cases support the district court’s approach. In other circumstances, we
have held that repetition of similar offenses, especially while on parole or
supervised release from a previous conviction, may support upward variances or
departures. See, e.g., United States v. Proffit, 304 F.3d 1001, 1012 (10th Cir.
2002) (“Because Defendant’s prior conduct was extremely similar to the crime he
is currently being sentenced for . . . he merits an upward adjustment to his
criminal history category.”); United States v. Akers, 215 F.3d 1089, 1104–05
(10th Cir. 2000) (affirming upward departure based on pattern of criminal conduct
similar to the relevant charge); United States v. Still, 249 F. App’x 30, 36 (10th
Cir. 2007) (“[C]onstant repetition of similar offenses . . . can justify an upward
variance [under § 3553(a)], even [if the] offenses [are] not violent”).
Accordingly, it was not an abuse of discretion for the district court to consider
Flores-Santos’s pattern of conduct in arriving at a bottom-of-the-guidelines
sentence while applying § 3553(a).
More consequentially, Flores-Santos simply does not demonstrate that any
of the § 3553(a) factors required a downward variance, such that his sentence is
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substantively unreasonable. This conclusion is buttressed by our reasoning in
United States v. Chavez-Suarez, 597 F.3d 1137, 1138 (10th Cir. 2010), cert.
denied, 131 S. Ct. 286 (2010), where we affirmed a district court’s refusal to
grant a downward variance in an illegal reentry case substantially similar to
Flores-Santos’s appeal. In Chavez-Suarez, the defendant challenged the
application of a 16-level enhancement under § 2L1.2. Id. We found the
defendant’s sentence reasonable and explained that “the nature of a prior
conviction may bear on the reasonableness of a sentence that is based on
[§ 2L1.2’s] 16-level enhancement.” Id. We issued this holding despite the fact
that the Chavez-Suarez defendant had only a single prior, nonviolent felony
conviction—attempted distribution of marijuana—when he was questioned for
driving without insurance and ultimately found to have reentered the country
illegally. Id.
The upshot is that although a downward variance may occasionally be
“warranted based on the relatively benign nature of a particular offense in
comparison to other offenses triggering the same enhancement,” such a variance
is not mandatory—and accordingly, a downward variance is not required here. Id.
Like the defendant in Chavez-Suarez, Flores-Santos’s 2005 crime was “in itself
not nearly as serious a crime as murder, human trafficking, child molestation, and
other felonies triggering the sixteen-level enhancement.” Id. at 1139. But like in
Chavez-Suarez, we must affirm the district court’s sentence. Indeed, the district
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court had no strong reason to deem Flores-Santos’s alien smuggling offense any
less serious than other alien smuggling offenses warranting 16-level
enhancements. For this reason, the district court was correct that varying Flores-
Santos’s sentence would have risked creating unwarranted sentencing disparities
and thus run afoul of § 3553(a)(6), which strives to achieve uniform sentences for
defendants with similar patterns of conduct.
We also note Flores-Santos’s case is very different from cases where we
have suggested that sentences predicated on § 2L1.2 enhancements may have been
excessive under the § 3553(a) factors. For example, in United States v.
Hernandez-Castillo, 449 F.3d 1127, 1131–32 (10th Cir. 2006), we observed that
an enhanced sentence may have been too serious, given that the enhancement was
based not on a typical crime of violence, but rather stemmed from the defendant’s
“consensual sexual relationship . . . with a younger girl many years ago, with
parental consent, when both were teenagers[,] [where the defendant] continue[d]
to support and maintain contact with the child, who [was then] six years old, and
also (apparently) maintain[ed] contact with the mother.” Similarly, in United
States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005), we found that the
“relatively trivial nature” of the defendant’s prior felony conviction—a third-
degree arson offense that carried a penalty of only $35 restitution—suggested the
defendant did not deserve to be punished to the same degree as a defendant
convicted of serious arson. Unlike in these cases, Flores-Santos’s prior
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conviction was a typical, yet serious, alien smuggling conviction, for which he
was imprisoned 18 months. Flores-Santos gives us no reason to believe his
criminal conduct was significantly more benign than that of other defendants
subject to § 2L1.2’s enhancement for prior immigration-related felony
convictions, such that the district court abused its discretion.
In the end, the question is not whether we would have imposed a lower
sentence in the first instance. Rather, the question is whether the district court’s
judgment fell outside the “range[] of rationally permissible choices.” United
States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quotation omitted).
Under this standard—and in light of the evidence in the record and Flores-
Santos’s prior, immigration-related criminal conduct—the imposition of a
guidelines-range sentence in this case did not manifest a clear error of judgment
by the district court.
III. Conclusion
Flores-Santos’s within-guidelines sentence was reasonable and based on the
district court’s conscientious consideration of the § 3553(a) factors. Accordingly,
for the reasons stated above, we AFFIRM Flores-Santos’s sentence.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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