United States v. Jose De Jesus Sanchez-Cortes

Case: 14-12138 Date Filed: 12/31/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12138
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-00344-SCJ-RGV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DE JESUS SANCHEZ-CORTES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 31, 2014)
Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Case: 14-12138 Date Filed: 12/31/2014 Page: 2 of 5
After pleading guilty, Jose de Jesus Sanchez-Cortes appeals his sentence of
21 months and 24 days for illegally re-entering the United States after having
previously been deported, in violation of 8 U.S.C. § 1326(a) and (b)(2). Sanchez-
Cortes argues that his sentence is substantively unreasonable. After review, we
affirm.
We review the reasonableness of a sentence for an abuse of discretion using
a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
We look first at whether the district court committed any significant procedural
error and then at whether the sentence is substantively unreasonable in light of the
18 U.S.C. § 3553(a) factors and the totality of the circumstances. Id. On appeal,
Sanchez-Cortes argues only that his sentence is substantively unreasonable, and
thus has abandoned any claim of procedural unreasonableness. See United States
v. Dougherty, 754 F.3d 1353, 1358 (11th Cir. 2014).
The abuse of discretion standard “allows a range of choice for the district
court, “and we will vacate a sentence only if “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1189-90 (11th Cir. 2010) (en banc) (quotation marks omitted). The
party challenging the sentence bears the burden of showing that the sentence is
2
Case: 14-12138 Date Filed: 12/31/2014 Page: 3 of 5
unreasonable in light of the record and the § 3553(a) factors. United States v.
Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). 1
Here, Sanchez-Cortes’s sentence is two months below his advisory
guidelines range of 24 to 30 months’ imprisonment and well below the applicable
20-year statutory maximum. See 8 U.S.C. § 1326(b)(2). Sanchez-Cortes has not
met his burden to show his sentence is substantively unreasonable.
Born in Mexico, Sanchez-Cortes entered the United States illegally in 1984,
when his father brought him to the United States at the age of three. Sanchez-
Cortes grew up and went to school in Georgia, where most of his family lives.
In 1999, when Sanchez-Cortes was 17 years old, he pled guilty to felony
molestation of a child under the age of 16 and was sentenced to ten years’
probation. In 2003, when he was 21 years old, Sanchez-Cortes was removed from
the United States and deported to Mexico. Sanchez-Cortes did not speak Spanish
very well and did not know his relatives in Mexico. Within a few months,
Sanchez-Cortes illegally returned to the United States, and resumed living and
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
3
Case: 14-12138 Date Filed: 12/31/2014 Page: 4 of 5
working in Georgia. After returning to the United States, Sanchez-Cortes had two
children and one step-child, all of whom live in Georgia.
In 2009, Sanchez-Cortes was arrested for giving false identification to a
police officer. Those charges were not pursued, and Sanchez-Cortes was not
deported. In June 2013, Sanchez-Cortes again was arrested for providing a false
name and identification. This time, an Immigration and Customs Enforcement
(“ICE”) agent encountered Sanchez-Cortes at the Gwinnett County jail, which led
to this federal illegal re-entry conviction.
At sentencing, the district court varied downward by 66 days for the time
Sanchez-Cortes had spent in ICE custody. The district court acknowledged that
Sanchez-Cortes had culturally assimilated in the United States, but denied his
request to vary further downward on this basis. The district court concluded that
Sanchez-Cortes’s cultural assimilation was outweighed by the seriousness of
Sanchez-Cortes’s prior felony child molestation conviction and the need to deter
Sanchez-Cortes from again returning to the United States. 2
We cannot say the district court’s refusal to vary further downward was an
abuse of discretion. Sanchez-Cortes’s prior conviction, while over a decade old,
2
To the extent Sanchez-Cortes challenges the district court’s denial of his request for a
downward departure based on cultural assimilation pursuant to U.S.S.G. § 2L1.2, we lack
jurisdiction to review this claim because the district court denied Sanchez-Cortes’s departure
request as a matter of discretion and not because it mistakenly believed it lacked authority to
grant the departure. See United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).
4
Case: 14-12138 Date Filed: 12/31/2014 Page: 5 of 5
was for a very serious crime. Furthermore, Sanchez-Cortes previously had
returned to the United States within a matter of months of being deported, and his
strong family ties in the United States provided an incentive to try to return again.
Under the circumstances, the district court properly considered deterrence to be a
“very important” factor.
Given the record before us, we cannot say the district court committed a
clear error of judgment in weighing the § 3553(a) factors and imposing a sentence
of 21 months and 24 days for Sanchez-Cortes’s federal offense.
AFFIRMED.
5