United States v. Gavilanez

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-13-2007
USA v. Gavilanez
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3720
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"USA v. Gavilanez" (2007). 2007 Decisions. Paper 771.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 06-3720
______________
UNITED STATES OF AMERICA
v.
ROGELIO GUTIERREZ GAVILANEZ
a/k/a
Domingo Gutierrez Gavilanez,
Rogelio Gutierrez Gavilanez,
Appellant.
___________
On Appeal From the United States District Court
for the District of New Jersey
(No. 06-cr-00185)
District Judge: Honorable Dickinson R. Debevoise
Submitted Under Third Circuit LAR 34.1(a)
Tuesday, June 19, 2007
Before: McKEE, FISHER, and CHAGARES, Circuit Judges.
(Filed July 13, 2007 )
__________________
OPINION OF THE COURT
__________________
CHAGARES, Circuit Judge.
Rogelio Gutierrez Gavilanez pleaded guilty to one count of attempted entry into
the United States after deportation, 8 U.S.C. § 1326(a), (b)(2). At sentencing, the District
Court calculated an advisory Guidelines range of 70-to-87 months in prison. Gavilanez
sought a downward departure or downward variance, but the court imposed a within-
Guidelines sentence of 70 months. Gavilanez appeals. For the reasons that follow, we
will affirm.
I.
Since we write only for the parties, we will not state the facts separately. The
District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Batista, 483 F.3d 193, 196
(3d Cir. 2007). We review the District Court’s sentence for reasonableness, a standard
akin to abuse of discretion. See United States v. Booker, 543 U.S. 220, 260-61 (2005);
Rita v. United States, No. 06-484, 551 U.S. ---, 2007 WL 1772146, *9 (June 21, 2007)
(appellate “reasonableness” review merely asks whether the trial court abused its
discretion). A sentencing court acts reasonably when it meaningfully considers and
rationally applies the factors set forth at 18 U.S.C. § 3553(a). See United States v.
Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006); United States v. Cooper, 437 F.3d 324,
329-30 (3d Cir. 2006). In United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), we
outlined a three-step process for district courts to follow in imposing sentences after
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Booker:
(1) Courts must continue to calculate a defendant’s Guidelines sentence
precisely as they would have before Booker.
(2) In doing so, they must formally rule on the motions of both parties and
state on the record whether they are granting a departure and how that
departure affects the Guidelines calculation, and take into account our
Circuit’s pre-Booker case law, which continues to have advisory force.
(3) Finally, they are required to exercise their discretion by considering the
relevant § 3553(a) factors in setting the sentence they impose regardless
whether it varies from the sentence calculated under the Guidelines.
Id. at 247 (internal citations and quotations marks omitted).
Heretofore, we have declined “to adopt a rebuttable presumption of reasonableness
for within-guidelines sentences.” Cooper, 437 F.3d at 331-32. “Although a
within-guidelines range sentence is more likely to be reasonable than one that lies outside
the advisory guidelines range, a within-guidelines sentence is not necessarily reasonable
per se.” Id. at 331.*
*
The Supreme Court’s recent decision in Rita v. United States holds that appellate
courts may (but apparently need not) adopt a rebuttable presumption of reasonableness for
within-Guidelines sentences. See Rita, 551 U.S. at ---, 2007 WL 1772146 , *3 (stating
that the question presented “is whether the law permits the courts of appeals to use” a
presumption of reasonableness) (emphasis added); id. at *6 (concluding that “a court of
appeals may apply a presumption of reasonableness” to a within-Guidelines sentence)
(emphasis added). Because Gavilanez’s sentence is reasonable even in the absence of
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II.
Gavilanez first argues that the District Court should have imposed a downward
departure (at Gunter’s step two) or a downward variance (at step three) based on “cultural
assimilation.” Gavilanez originally came to this country when he was just seven-years
old. He was raised here, educated here, and he started a family here. The body of
Gavilanez’s late son—whose grave he has never seen—is buried here, and Gavilanez’s
young grandson—whom he has never met—lives here. The theory is that a defendant
like Gavilanez, who illegally reentered based on cultural and familial ties to the United
States, is less blameworthy than a person who illegally reentered for an economic or
criminal purpose. See generally Blair T. Westover, Note, Cultural Assimilation as a
Mitigating Factor to Immigration Offenses under the Federal Sentencing Guidelines, 10 J.
Gender Race & Just. 349 (2007).
As to the step-two argument, “[w]e have previously held that discretionary
departures are not reviewable unless the District Court refused such a departure in
violation of law.” Batista, 483 F.3d at 199. Here, the District Court understood its
authority to depart based on cultural assimilation, but declined to do so. As a result, we
are without authority to review the District Court’s decision. See id.The step-three argument requires further discussion. Among the relevant
sentencing factors are “the history and characteristics of the defendant.” § 3553(a)(1).
such a presumption, we leave for another day the question of Rita’s effect on Cooper.
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Gavilanez’s personal “history” includes the cultural and familial ties that bind him to the
United States. See Rita, 551 U.S. at ---, 2007 WL 1772146 , *17 (Stevens, J., concurring)
(noting “that § 3553(a) authorizes the sentencing judge to consider” a defendant’s “family
ties”). Moreover, Gavilanez’s motives for reentering the United States—a desire to
mourn his dead son and to hold his baby grandson—may well make him less culpable
than, say, a drug mule. We therefore agree with Gavilanez that a sentencing court in an
illegal-reentry case properly considers “cultural assimilation” as part of the § 3553(a)
calculus. See, e.g., United States v. Roche-Martinez, 467 F.3d 591, 595 (7th Cir. 2006);
United States v. Galarza-Payan, 441 F.3d 885, 889-90 (10th Cir. 2006).
In this case, the District Court did consider cultural assimilation as a relevant
sentencing factor. The court, however, found this factor to be “counterbalanced” by
Gavilanez’s extensive criminal record. Appendix (“App.”) 22. The District Court also
noted that Gavilanez had repeatedly reentered illegally, and as a result “general and
individual deterrence require[d] [a] relatively severe sentence.” App. 23. After weighing
all these factors, the court settled on a sentence at the very bottom of the advisory
Guidelines range. This thoughtful balancing of the § 3553(a) factors was entirely
reasonable.
III.
Gavilanez also argues that the District Court should have imposed a downward
variance “on the ground that his guideline range suggested a sentence that was extremely
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harsh in comparison with the types of sentences received by illegal re-entry defendants in
‘fast track’ districts.” Gavilanez Brief 16. Our decision in United States v. Vargas, 477
F.3d 94 (3d Cir. 2007), forecloses this argument. There, we held that “a district court’s
refusal to adjust a sentence to compensate for the absence of a fast-track program does
not make a sentence unreasonable.” Id. at 99. On the authority of Vargas, we must reject
Gavilanez’s fast-track argument.
IV.
For these reasons, the District Court’s sentence was reasonable. We will affirm its
judgment.
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