United States v. Pedro Escobar-Marroquin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4419
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PEDRO ANTONIO ESCOBAR−MARROQUIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virgina, at Richmond. John A. Gibney, Jr., District
Judge. (3:11-cr-00305-JAG-1)
Argued: March 22, 2013 Decided: May 8, 2013
Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Mary E. Maguire,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pedro Antonio Escobar-Marroquin pled guilty to illegal
reentry and received a 60-month term of imprisonment, which
represented a 14-month variance above the top end of the
applicable sentencing range. He now challenges the substantive
reasonableness of his sentence. We affirm.
I.
The defendant is a Salvadoran citizen who, according to the
parties’ agreed upon Statement of Facts, entered the United
States illegally for the first time in 1987. * Some time around
1988, he returned to El Salvador to marry and subsequently
reentered the United States. In 2009, the defendant was
convicted in state court of possession with intent to distribute
cocaine. He served approximately six months of a five-year
sentence and was removed in October 2009. The defendant
reentered the United States in January or February 2010, was
arrested in August 2010 for possession with intent to distribute
cocaine, and was convicted in state court and sentenced to seven
years’ imprisonment. While serving that sentence, the defendant
was federally indicted for illegal reentry following an
*
We note that there is also evidence in the record that
the defendant’s first illegal entry into the United States may
have been in 1983. The exact date on which the defendant
initially entered the United States is not relevant to our
disposition on appeal.
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aggravated felony, in violation of 8 U.S.C. § 1326. He
subsequently pled guilty to the illegal reentry charge.
According to the presentence report (“PSR”), the
defendant’s offense level of 17 and criminal history category of
IV resulted in an advisory guideline range of 37 to 46 months’
imprisonment. At sentencing, the defendant sought a downward
variance for three reasons. He first emphasized that the MS-13
gang in El Salvador was demanding payments for the protection of
his family; that he worked in the United States to satisfy these
extortion demands and to protect his wife, children, and family
members in El Salvador; and that the MS-13 gang had already
killed his uncle and father because he was unable to pay them
enough money. Second, he noted that he rehabilitated himself
while in prison by completing a Bible study course and getting
baptized and by graduating from a drug treatment program. And
finally, he argued that his 2009 state drug conviction was
unfairly counted three separate times in the calculation of his
offense level under the guidelines.
The government sought a 92-month sentence, arguing that
the defendant reentered the United States shortly after he was
removed and began selling drugs again. The district court
sentenced the defendant to 60 months’ imprisonment, a 14-month
variance above the guidelines range.
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II.
The defendant challenges the reasonableness of his
sentence, which we review under “a deferential abuse-of-
discretion standard.” United States v. Rivera-Santana, 668 F.3d
95, 100 (4th Cir. 2012) (internal quotation marks omitted). We
normally begin our evaluation by considering the procedural
reasonableness of the sentence, see United States v. Morace, 594
F.3d 340, 345 (4th Cir. 2010), but the defendant does not
challenge the procedural reasonableness of his sentence.
Rather, the defendant’s sole contention on appeal is that his
sentence was substantively unreasonable.
With regard to the substantive reasonableness of the
defendant’s sentence,
we must determine . . . whether the District Judge
abused his discretion in determining that the [18
U.S.C. §] 3553(a) factors supported the sentence and
justified a substantial deviation from the Guidelines
range. We also must take into account the totality of
the circumstances, including the extent of any
variance from the Guidelines range. If the sentence
is outside the Guidelines range, the court may not
apply a presumption of unreasonableness. It may
consider the extent of the deviation, but must give
due deference to the district court’s decision that
the [18 U.S.C. §] 3553(a) factors, on a whole, justify
the extent of the variance. The fact that the
appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to
justify reversal of the district court.
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United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir.
2011) (alterations, citations, and internal quotation marks
omitted).
A.
The defendant’s first argument is that the district court
abused its discretion by placing too much weight on his criminal
history. Other than the illegal reentry underlying this case,
the defendant’s criminal history consists of a conviction for
“Profanely Curse/Public Intoxication,” a traffic offense, and
two state convictions for possession with intent to distribute
cocaine. The defendant emphasizes that each drug offense
involved less than one gram, and he argues that these offenses
were fully taken into account in calculating his guideline
range.
The district court did rely on the defendant’s criminal
history in imposing an above-guideline sentence, but the court
relied on other factors as well. Consistent with its obligation
to impose a sentence in accordance with the factors set forth at
18 U.S.C. § 3553(a), the court noted the defendant’s
circumstances and lack of respect for the law by emphasizing
that he returned to the United States shortly after being
removed in order to sell cocaine. The court also mentioned its
view that the defendant’s “histrionic[]” conduct before the
court, J.A. 120, in which he begged for mercy from his hands and
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knees, was an attempt to manipulate the court. And finally, the
court discussed the seriousness of the offense and the need to
provide deterrence given that the defendant had twice been
caught selling cocaine in the United States and that drug
dealing is not a victimless crime. We are satisfied that the
court’s consideration and application of the § 3553(a) factors
justified the variance in this case. Accordingly, the court did
not abuse its discretion by placing too much weight on the
defendant’s criminal history.
B.
The defendant also contends that his sentence was
substantively unreasonable because the district court relied on
several factually inaccurate assertions made by the government.
In its sentencing memorandum, the government stated that the
defendant “began selling heroin and then later cocaine.” J.A.
46. But there is no evidence in the record that the defendant
ever sold heroin. Similarly, the government asserted that the
defendant had “12 years of schooling.” J.A. 54. But he only
underwent four years of education.
At oral argument before us, the attorney for the government
apologized profusely for these factual inaccuracies, explaining
that he used a brief from an unrelated case as the basis for his
sentencing memorandum in this case and, because he was
overworked at the time, he simply did a poor job of editing. We
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appreciate the government’s candor and accept that the inclusion
of these statements was an oversight. Nonetheless, counsel for
the government is an officer of the court who is expected to be
truthful and accurate in all representations made to the court.
We trust that the government will take steps to ensure that
problems of this nature will not recur.
While we do not condone the government’s carelessness, its
misstatements would be prejudicial only insofar as the district
court relied on them in imposing the sentence. The defendant
contends that the “upward variance sentence” was imposed
“perhaps in partial reliance on one or more of these mistaken
assertions.” App. Brief at 8 n.2. We disagree. Having
reviewed the sentencing transcript and the PSR which the court
adopted, we are satisfied that the sentence imposed was not
affected by the government’s misstatements.
III.
For the foregoing reasons, we affirm.
AFFIRMED
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