United States v. Mejia-Melgar

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 18, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1274
(D.C. No. 1:15-CR-00100-LTB-1)
MARIO ERNESTO MEJIA-MELGAR, (D. Colo.)
a/k/a Mario Ernest Melgar,
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
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Mario Ernesto Mejia-Melgar pleaded guilty to violating 8 U.S.C. § 1326(a)
and (b)(2) by reentering the United States after having already been removed from
the country following an aggravated felony conviction. The district court sentenced
him to 46 months’ imprisonment—the low end of the advisory sentencing range
under the United States Sentencing Guidelines. Mejia-Melgar appeals, arguing that
his 46-month sentence is substantively unreasonable because it is primarily driven by
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
an eight-year-old offense that effectively doubled his Guidelines range. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Mejia-Melgar—born on July 10, 1987, in San Salvador, El Salvador—first
entered the United States when he was five years old. In 2008, he pleaded guilty to
possession of a controlled substance (cocaine) with the intent to distribute it. After
violating the terms of his probation, he was sentenced to 90 days in jail and was
deported on November 11, 2009.
On July 26, 2011, after having illegally returned to the United States, Mejia-
Melgar pleaded guilty to possession of a controlled substance (cocaine) and was
sentenced to one year’s imprisonment. On November 28, 2011, he was released to
immigration authorities and pleaded guilty to illegally reentering the United States
after being convicted of an aggravated felony. For this federal offense, he was
sentenced to 22 months in prison and was deported again on January 17, 2014.
On January 8, 2015, having illegally reentered the United States yet again,
Mejia-Melgar pleaded guilty to possession of a controlled substance (cocaine) and
was sentenced to nine months in jail. On March 11, 2015, the federal government
indicted Mejia-Melgar for illegally reentering the United States after having been
previously removed for an aggravated felony conviction, to which he pleaded guilty.
This offense is the basis for the present action.
Under the 2014 United States Sentencing Guidelines, Mejia-Melgar’s
Presentence Investigation Report (PSR) calculated his total offense level as 17. This
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total offense level had the following components: (1) a base offense level of 8,
U.S.S.G. § 2L1.2; (2) a twelve-level enhancement because Mejia-Melgar had
previously been convicted of a drug-trafficking offense carrying a sentence less than
13 months, U.S.S.G. § 2L1.2(b)(1)(B); (3) a two-level decrease for acceptance of
responsibility for his offense, U.S.S.G. § 3E1.1(a); and (4) a one-level decrease for
timely notifying authorities of his intention to enter a guilty plea, U.S.S.G.
§ 3E1.1(b). Because Mejia-Melgar had amassed ten criminal-history points, he was in
criminal-history category V. The advisory Guidelines range for a total offense level
of 17 and a criminal-history category of V was 46–57 months.
In the district court, Mejia-Melgar filed a motion for a downward departure
from the recommended Guidelines range. Specifically, he argued for a downward
departure under U.S.S.G. § 2L1.2 Application Note 9, which, under stated
circumstances, allows for a downward departure on the basis of cultural assimilation.
Additionally, Mejia-Melgar argued for a downward departure based on his view that
his Guidelines calculation too heavily emphasized his eight-year-old conviction for
possession, with intent to distribute, a controlled substance. The district court
rejected both arguments and sentenced Mejia-Melgar to 46 months’ imprisonment.
Mejia-Melgar timely appealed.
DISCUSSION
“We review sentences for reasonableness under a deferential abuse of
discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).
While our review encompasses both the procedural and substantive soundness of the
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district court’s decision, see id., Mejia-Melgar challenges only the substantive
reasonableness of his sentence. “A sentence is substantively unreasonable if the
length of the sentence is unreasonable given the totality of the circumstances in light
of the 18 U.S.C. § 3553(a) factors.” Id. In other words, “[w]e find an abuse of
discretion only if the district court was ‘arbitrary, capricious, whimsical, or
manifestly unreasonable’ when it weighed ‘the permissible § 3553(a) factors in light
of the totality of the circumstances.’” United States v. Sanchez-Leon, 764 F.3d 1248,
1267 (10th Cir. 2014) (quoting United States v. Sayad, 589 F.3d 1110, 1116, 1118
(10th Cir. 2009)).
“Sentences imposed within the correctly calculated Guidelines range . . . may
be presumed reasonable on appeal.” Haley, 529 F.3d at 1311. Here, the district court
imposed a sentence at the low end of the recommended Guidelines range, and Mejia-
Melgar does not contend that the PSR incorrectly calculated the Guidelines range.
Therefore, we presume that Mejia-Melgar’s sentence is reasonable.
Mejia-Melgar fails to rebut the presumption of reasonableness. He fails to
show that the district court abused its discretion in weighing the § 3553(a) factors.
On appeal, Mejia-Melgar has abandoned his cultural-assimilation argument, choosing
to focus instead on his other argument that—apparently because he was 20 years old
when he committed his felony drug-trafficking crime—“the district court failed to
give due consideration to the outsized effect that Mr. Mejia’s 2007 [possession-with-
intent-to-distribute] offense had on his advisory guideline range.” Appellant’s
Opening Br. at 8. Even so, in the midst of this argument, Mejia-Melgar concedes that
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“[o]f course, this is not to say that the district court should have ignored the
[possession-with-intent-to-distribute] offense altogether.” Id. at 10. We note that
Mejia-Melgar cites no authority supporting his argument that a district court abuses
its discretion by applying the terms set by U.S.S.G. § 2L1.2(b)(1)(B) in his
circumstances.
We also note that the district court properly considered the § 3553(a) factors
and concluded that a 46-month sentence was appropriate. Specifically, the district
court concluded that Mejia-Melgar’s offense was particularly serious because Mejia-
Melgar had essentially “been in a revolving door” of crime. R. vol. 3 at 57. As
evidenced by his criminal history, his behavior follows a well-established pattern of
violating the drug laws, being deported, illegally reentering the United States, and
violating the drug laws again. The district court acknowledged his cocaine addiction,
but noted that it did “not believe that any sentence” imposed would “deter . . .
[Mejia-Melgar] from illegally reentering this country again.” Id. The district court
concluded by noting that “[a]ll of what you tell me in arguing for a more lenient
sentence leads me to conclude that your sentence should be at the bottom of the
guideline range rather than higher.” Id. at 58. The district court was well within its
discretion to conclude as much, and we certainly cannot say it abused its discretion in
imposing a 46-month sentence in this case.
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CONCLUSION
For the foregoing reasons, we affirm.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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