United States v. Teran

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED June 11, 2007
June 7, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-40895
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFTON TERAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-722-6
Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.
PER CURIAM:*
Clifton Teran appeals a non-Guidelines statutory maximum
sentence imposed by the district court following his guilty plea
conviction for conspiracy to bring undocumented aliens into the
United States for private financial gain, in violation of 8 U.S.C.
§ 1324(a)(2)(B)(ii) and (a)(1)(A)(v)(I). Teran challenges several
sentencing enhancements used to determine his offense level and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
also argues that his sentence at the statutory maximum was
unreasonable. We affirm.
Teran’s challenges to the correctness of the court’s
guidelines calculation may be readily disposed of. First, Teran
contends that the district court erroneously applied an enhancement
under U.S.S.G. § 2L1.1(b)(2)(C) for more than one hundred aliens
being involved in the offense because the court included aliens
that were trafficked prior to his joining the conspiracy. The
presentence report (PSR) shows, however, that at least one hundred
one aliens were actually apprehended during the time period alleged
in the indictment. Further, ledgers found in stash houses
referenced one hundred eighty-eight aliens who were harbored during
that time frame. There is no clear error by the district court.
See United States v. Angeles-Mendoza, 407 F.3d 742, 750 (5th Cir.
2005); see also § 2L1.1(b)(2)(C).
Teran also argues that the district court erroneously
applied an enhancement under § 2L1.1(b)(5) for intentionally or
recklessly creating a substantial risk of death or serious bodily
injury to another person. The PSR and testimony at sentencing
showed, however, that at least sixty-nine aliens were kept in
severely overcrowded conditions in two rear bedrooms of a stash
house without running water or air conditioning, allowed to use
restroom facilities and given water only once per day from a hose
extended from a nearby residence, and threatened and beaten for
making noise. The evidence at sentencing also showed that many of
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the aliens had been transported to the stash houses in the beds of
pickup trucks. The severely overcrowded conditions and dangerous
transportation of the aliens created a substantial risk of serious
bodily injury, and the district court did not err. See Angeles-
Mendoza, 407 F.3d at 750-51; United States v. Cuyler, 298 F.3d 387,
390-91 (5th Cir. 2002); § 2L1.1, comment. (n.6).
Teran next argues that he should not have received an
enhancement under § 2L1.1(b)(6) for bodily injury from a sexual
assault because there was no evidence that any women were sexually
assaulted. The district court relied on facts in the PSR and
testimony at sentencing from an investigating agent detailing both
physical and sexual abuse of the aliens. Material witnesses and
codefendants provided statements that support the district court’s
finding that sexual abuse occurred.
Teran also argues that the district court erroneously
applied an enhancement for being an organizer or leader. Teran
admitted at his rearraignment that he recruited at least one
codefendant to act in the conspiracy. Further, evidence from the
investigating agent and the PSR also show that Teran recruited and
supervised other participants, arranged for stash houses, made and
received financial payments for the organization, and claimed a
larger share of the proceeds from the criminal venture. There is
no error in the organizer or leader enhancement. See § 3B1.1(a) &
comment. (n.4).
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Overarching his guidelines calculation challenges, Teran
contends that his one hundred twenty-month sentence, equal to the
statutory maximum and exceeding the advisory guideline range of
seventy-eight to ninety-seven months, was unreasonable. He asserts
that the district court failed to thoroughly articulate its reasons
for the sentence, failed to account for a factor that should have
received significant weight (i.e., that he had zero criminal
history points), and committed a clear error of judgment in
balancing the sentencing factors.
The district court may impose a non-guideline sentence
that is higher or lower than the relevant Guidelines provide.
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Because
the court here did not indicate that it was upwardly departing or
reference a Guidelines upward departure provision, this court
treats the sentence as a non-guidelines sentence. See United
States v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006). When
a district court deviates from the Guidelines, this court conducts
its reasonableness review “through an abuse-of-discretion lens,
paying particular attention to the specific reasons” for the
deviation. Id. at 358.
Before imposing a non-guideline sentence, a district
court must consider the Guidelines and “should utilize the appro-
priate Guideline range as a frame of reference.” Smith, 440 F.3d
at 707 (internal quotation marks and citation omitted). “[T]he
district court must more thoroughly articulate its reasons when it
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imposes a non-Guideline sentence than when it imposes a sentence
under authority of the Sentencing Guidelines.” Id. The district
court’s reasons must be fact specific and consistent with the
§ 3553(a) factors;1 however, a checklist recitation of the
§ 3553(a) factors is not necessary for a non-guideline sentence to
be reasonable. Id. “A non-Guideline sentence unreasonably fails
to reflect the statutory sentencing factors where it (1) does not
account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor,
or (3) represents a clear error of judgment in balancing the
sentencing factors.” Id. at 708.
As discussed above, the district court properly
calculated the guideline range. The court also expressly noted
that the guidelines are advisory, and it used the range as a frame
of reference. See Smith, 440 F.3d at 707. The court’s discussion
of its deviation from the Guidelines was brief but adequate to
explain its reasoning. The court noted the “extreme nature of this
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 for the sentence to (A) reflect
the seriousness of the offense, promote respect for the law, and
provide just punishment for the offense, (B) afford adequate
deterrence to criminal conduct, (C) protect the public from
further crimes, and (D) provide the defendant with needed medical
care or other correctional treatment; (3) the kinds of sentences
available; (4) the kinds of sentence and the sentencing range
established in the applicable guidelines; (5) any pertinent
policy statements; and (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct. See § 3553(a).
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crime” and “the impact it’s had on so many hundreds of victims.”
The court thus considered the nature and circumstances of the
offense and the need for the sentence to reflect the seriousness of
the conduct. See § 3553(a)(1), (a)(2)(A). The court also stated
“that this gentleman also has significant un-prosecuted conduct
because of his juvenile status.” The PSR showed that Teran and his
family members had been apprehended twenty-six times without
prosecution because of their juvenile status at the time. The
district court explicitly acknowledged Teran’s past criminal
history and the need for the sentence to provide just punishment
and promote respect for the law. See § 3553(a)(3); Smith, 440 F.3d
at 709 (court properly considered defendant’s criminal history and
juvenile convictions unaccounted for in the guideline sentence).
As further justification for its sentence, the district court
referred to the “pervasive nature of the crime,” and it expressly
referenced the § 3553(a) factors given “the Court’s desire . . . to
provide for adequate deterrence, protect the public from further
crimes, to reflect the seriousness of this offense and to promote
respect for the law and to provide just punishment.” Finally, the
degree of the district court’s twenty-three-month deviation from
the maximum guideline range was not unreasonable.2 See Smith, 440
F.3d at 708 n.5, 709-10 (sentence at the statutory maximum of
2
Teran makes no argument that his sentence was unreasonable
because of an unwarranted sentence disparity among his
codefendants. See Blue brief, 39-41.
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sixty-month sentence, which was more than double the guidelines
range, was reasonable).
Teran fails to show that the district court did not account
for a factor that should have received great weight, gave
significant weight to an irrelevant factor, or committed a clear
error of judgment in balancing the sentencing factors. See id. at
708. Because the district court “committed no legal error in the
sentencing procedure . . . the sentence must be given great
deference.” Id. at 710.
For the foregoing reasons, the district court’s judgment
is AFFIRMED.
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