United States v. Irazoqui-Leyva

FILED
United States Court of Appeals
Tenth Circuit
October 18, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-4196
(D.C. No. 1:09-CR-00063-TC-1)
MARIA GUADALUPE IRAZOQUI- (D. Utah)
LEYVA, a/k/a Maria Leyva, a/k/a
Maria Guadalupe Leyva, a/k/a Maria
Guadalupe Irazoquie-De La Rosa,
a/k/a Maria Irazoqui-Layva, a/k/a
Maria Irazoqui,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
Defendant-Appellant Maria Guadalupe Irazoqui-Leyva pled guilty to illegal
reentry to the United States, 8 U.S.C. § 1326, and was sentenced to 37 months’
imprisonment to be followed by 36 months’ supervised release. She now appeals,
contending her sentence is procedurally and substantively unreasonable. Ms.
Irazoqui concedes that she cannot prevail on her procedural reasonableness claim
*
This order and judgment is not binding precedent, except under the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.
under our plain error standard, however, and raises it only to preserve the issue
for future review. Aplt. Br. at 7-8; see United States v. Poe, 556 F.3d 1113, 1128
(10th Cir. 2009). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a) and we affirm.
Background
On August 18, 2009, Ms. Irazoqui-Leyva consented to a presentence
investigation in advance of a plea. 1. Supp. R. at 7. The resulting presentence
report (PSR) calculated Ms. Irazoqui-Leyva’s advisory guidelines imprisonment
range as 37 to 46 months based on a total offense level of 17 and a criminal
history category of IV. 2 R. at 15. The government determined that Ms.
Irazoqui-Leyva met the eligibility requirements for the “fast track” benefit. 1.
Supp. R. at 8. Had she entered into a fast-track plea agreement she would have
been eligible for a two-level downward departure upon a government motion
pursuant to United States Sentencing Guideline (USSG) § 5K3.1, resulting in a
range of imprisonment from 30 to 37 months. 2 R. at 16. See United States v.
Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005) (“In jurisdictions where
fast-track programs have been authorized by the Attorney General, defendants
must ‘agree to the factual basis [of the criminal charge] and waive the rights to
file pretrial motions, to appeal, and to seek collateral relief (except for ineffective
assistance of counsel).’” (alteration in original) (quoting United States v.
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Melendez-Torres, 420 F.3d 45, 52 (1st Cir. 2005))). In addition to the potential
for a fast-track departure, the PSR noted Ms. Irazoqui-Leyva’s need to care for
six children currently in the custody of her mother, who suffers from health
problems, as a mitigating factor that could justify a sentence below the guideline
range. 2 R. at 18.
Ms. Irazoqui-Leyva entered a plea of guilty without a plea agreement on
October 13, 2009. She did not enter into a fast-track plea agreement, hoping for
an even lower sentence. 3 R. at 14-15. At the sentencing hearing which
immediately followed the plea, Ms. Irazoqui-Leyva requested that the district
court vary not only from the bottom of the Guideline range (37-46 months) but
also from the range that would have applied had she been sentenced after entering
a plea pursuant to the fast-track program (30-37 months). 3 R. at 19.
Discussion
We review the district court’s sentence for reasonableness under an abuse
of discretion standard. United States v. Booker, 543 U.S. 220, 261 (2005); Gall
v. United States, 552 U.S. 38, 51 (2007). In examining the reasonableness of a
sentence, we review the district court’s factual findings for clear error and legal
determinations de novo. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.
2006).
Ms. Irazoqui-Leyva does really not dispute the district court’s application
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of the guidelines; therefore the sentence imposed is presumptively reasonable.
See id. at 1055 (“If [] the district court properly considers the relevant Guidelines
range and sentences the defendant within that range, the sentence is
presumptively reasonable. 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).”). She asserts that the sentence overcomes the
presumption of reasonableness because (a) USSG § 2L1.2 overstates the
significance of her conduct and (b) the Guideline range fails to account for
numerous mitigating facts. See Aplt Br. at 10-13 (discussing United States v.
Paul, 561 F.3d 970 (9th Cir. 2009) (mitigating facts) and United States v.
Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (overstatement of prior
criminal record)); id. at 5 (arguing that a sentence within the guideline range be
evaluated for substantive reasonableness based upon (1) whether a guideline
overstates relevant conduct and (2) whether the applicable guideline range does
not account for the numerous factors that should be considered at sentencing).
Ms. Irazoqui-Leyva asserts that § 2L1.2 overstates the significance of her
prior criminal record because it double counts her prior convictions and the
enhancement is unnecessarily high and not empirically based. Aplt. Br. at 13.
However, we routinely uphold the practice of taking a conviction into account in
both the computation of the offense level enhancement and of the criminal history
points where authorized by the Guidelines. See USSG § 2L1.2(b)(1), cmt. n. 6
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(“A conviction taken into account under subsection (b)(1) is not excluded from
consideration of whether that conviction receives criminal history points pursuant
to Chapter Four, Part A (Criminal History).”); United States v. Ruiz-Terrazas, 477
F.3d 1196, 1204 (10th Cir. 2007). Her argument that the enhancement is too high
and not empirically based is not a challenge to the district court’s exercise of
discretion but a challenge to the Guideline itself. See United States v.
Aguilar-Huerta, 576 F.3d 365, 368 (7th Cir. 2009) (“But what is the space
between invalidating a guideline and refusing ever to apply it because it’s no
good? We don’t think there is any, and therefore there would be little point in
remanding for resentencing so that the defendant could argue invalidity–which is
what his argument amounts to, though not labeled as such–to the district judge.”).
And, as Ms. Irazoqui-Leyva aptly recognizes, Aplt. Br. 21, there are
circumstances in which it is appropriate for a sentencing court to impose a
sentence below a guideline but in which it is not required to do so. While the
district court would have had substantial leeway to accept Ms. Irazoqui-Leyva’s
argument that the enhancement is excessive, it was not required to. Accord
United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009) (“[A] district
court is not required to engage in ‘independent analysis’ of the empirical
justifications and deliberative undertakings that led to a particular Guideline.”);
Aguilar-Huerta, 576 F.3d at 367-68 (“[W]e do not think a judge is required to
consider, not a nonfrivolous argument that a guideline produces an unsound
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sentence in the particular circumstances of the case, but an argument that a
guideline is unworthy of application in any case because it was promulgated
without adequate deliberation.”); United States v. Mondragon-Santiago, 564 F.3d
357, 367 (5th Cir. 2009) (“In appropriate cases, district courts certainly may
disagree with the Guidelines for policy reasons and may adjust a sentence
accordingly. But if they do not, we will not second-guess their decisions under a
more lenient standard simply because the particular Guideline is not
empirically-based.”).
In support for the second portion of her argument, as examples of numerous
mitigating facts in her case, Ms. Irazoqui-Leyva asserts both her cultural
assimilation to the United States and her substantial compliance with Utah’s fast-
track program, in which she opted not to participate. Aplt. Br. 22, 29. With
respect to cultural assimilation she cites departure language recently promulgated
by the Sentencing Commission that is slated to go into effect November 1, 2010.
Aplt. Rep. Br. 14. This language was not in effect at the time of Ms. Irazoqui-
Leyva’s sentencing and therefore we need not consider its impact on the outcome
of this case. However, we may consider Ms. Irazoqui-Leyva’s cultural
assimilation as part of our review of the district court’s sentence for abuse of
discretion. See United States v. Galarza-Payan, 441 F.3d 885, 889-90 (10th Cir.
2006) (“The extensiveness of ‘family and cultural ties,’ however the factor is
characterized, will still be part of tailoring an appropriate sentence. But it is also
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clear in assessing the reasonableness of a sentence that a particular defendant’s
cultural ties must be weighed against other factors such as (1) sentencing
disparities among defendants with similar backgrounds and characteristics, and
(2) the need for the sentence to reflect the seriousness of the crime and promote
respect for the law.”).
With respect to her compliance with the fast-track program, Ms. Irazoqui-
Leyva directs our attention to the split among the circuits that has emerged
regarding whether sentencing courts in non-fast-track districts have discretion to
grant below-Guidelines sentences to mitigate disparity with sentences in fast-
track districts. Aplt. Br. 30-31. In United States v. Martinez-Trujillo this circuit
answered in the negative the question “whether sentencing disparities caused by
the existence of fast-track programs are or are not, or may be in certain
circumstances, considered unwarranted under § 3553(a)(6).” 468 F.3d 1266, 1268
(10th Cir. 2006). But this case does not present an inter-district disparity caused
by the unavailability of a fast-track option. Instead it concerns intra-district
disparity among those defendants who participate in the fast-track program,
waiving their attendant rights, and those who, like Ms. Irazoqui-Leyva, forgo the
conditions and benefits of fast track. Ms. Irazoqui-Leyva in effect argues that her
eligibility for the fast-track program should entitle her to its benefits, which is
surely not the case. See id. at 1269 (“[T]he decision that a defendant be
‘fast-tracked’ is not made by the defendant but by the United States Attorney.”
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(citing USSG § 5K3.1)).
18 U.S.C. § 3553(a) instructs sentencing courts to take into account factors
including “the nature and circumstances of the offense and the history and
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), as well as “the need for
the sentence imposed (A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; and (C) to protect the public from
further crimes of the defendant.” Id. § 3553(a)(2). Ms. Irazoqui-Leyva had three
misdemeanor convictions, in 2001, 2005, and 2006, of possession of drug
paraphernalia, and two felony convictions of possession of cocaine,
methamphetamine, and marijuana with intent to distribute in 2006 and 2007. 2 R.
at 1. Her drug convictions particularly concerned the court, despite her
compelling personal circumstances. 3 R. at 30. In sentencing her to 37 months in
custody, the low end of the Guideline range, the district court balanced her
serious and extensive criminal history with her difficult circumstances, desire to
care for her children, and feasible plans for the future. 3 R. at 30.
We hold that Ms. Irazoqui-Leyva’s 37-month sentence is within the range
of rationally permissible choices, and the district court did not abuse its discretion
in rejecting a further downward departure or variance from the Guidelines. See
United States v. Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010). Because
Ms. Irazoqui-Leyva’s sentence was procedurally and substantively reasonable, the
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judgment must be
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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