United States v. Abraham Ceron-Lopez

United States Court of Appeals
For the Eighth Circuit
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No. 12-3167
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Abraham Ceron-Lopez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 11, 2013
Filed: March 15, 2013
[Unpublished]
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Before LOKEN, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Abraham Ceron-Lopez, a citizen of Mexico illegally present in the United
States, challenges the forty-five-month sentence imposed by the District Court1 after
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
he pleaded guilty to three counts involving the possession and creation of fraudulent
visas, permits, and other documents. See 18 U.S.C. § 1546(a). We affirm.
Based on a tip from a confidential informant, agents from the Department of
Homeland Security (DHS) confronted Ceron-Lopez in a grocery-store parking lot and
obtained consent to search his vehicle and, later, his residence. The searches resulted
in the seizure of thousands of completed, partially completed, and blank identification-
, employment-, and immigration-related documents and materials along with computer
equipment, a card-cutting machine, and a laminating machine. The Presentence
Investigation Report (PSR), to which Ceron-Lopez did not object, noted that 2,990
actual documents were recovered, namely:
301 permanent resident alien cards; 8 social security cards; 39 state
identification/driver’s licenses; 211 Mexican identification cards; 5 blank
Mexican birth certificates; 2 Missouri 30-day car tags; 124 other cards
(with optical memory stripe, wrapped and unopened) and 2,300 blank
cards.
PSR ¶ 15. The PSR calculated a sentencing range of twenty-four to thirty months’
imprisonment, and again Ceron-Lopez did not object. At Ceron-Lopez’s sentencing
hearing, a DHS agent testified that in addition to the 2,990 actual documents, 2,907
virtual documents were recovered from the computer equipment and storage devices
seized from Ceron-Lopez’s vehicle and residence. Because the offense involved an
exceptionally large number of documents, the government requested an upward
departure to a sentencing range of thirty-seven to forty-six months’ imprisonment. See
U.S. Sentencing Guidelines Manual § 2L2.1 cmt. n.5 (“If the offense involved
substantially more than 100 documents, an upward departure may be warranted.”).
In the alternative, the government requested an upward variance to a minimum
sentence of forty months. Ceron-Lopez argued for a sentence below the advisory
Guidelines range, citing his age, lack of criminal history, cooperation with law
enforcement, acceptance of responsibility, and likely deportation.
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The District Court sentenced Ceron-Lopez to forty-five months’ imprisonment,
electing to impose an upward variance rather than an upward departure. On appeal,
Ceron-Lopez argues that the District Court committed both procedural and substantive
sentencing error.
We review the imposition of a sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A district court abuses its
discretion when it fails to consider a relevant factor, gives significant weight to an
irrelevant or improper factor, or considers only appropriate factors but nevertheless
commits a clear error of judgment . . . .” United States v. Jones, 509 F.3d 911, 913
(8th Cir. 2007), cert. denied, 553 U.S. 1088 (2008)). We first determine whether the
district court committed any significant procedural error, “such as failing to calculate
(or improperly calculating) the Guidelines range, . . . failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. Although a court commits
procedural error if it fails to consider the § 3553(a) factors, it is not required to recite
each of the factors on the record, nor is it required to address each argument raised by
the defendant. United States v. Barron, 557 F.3d 866, 868 (8th Cir. 2009). If the
district court committed no procedural error, we then determine whether the sentence
is substantively reasonable. Gall, 552 U.S. at 51. It is “the unusual case when we
reverse a district court sentence—whether within, above, or below the applicable
Guidelines range—as substantively unreasonable.” United States v. Feemster, 572
F.3d 455, 464 (8th Cir. 2009) (en banc) (quotation marks and citation to quoted case
omitted).
The District Court committed no procedural error in sentencing Ceron-Lopez.
After considering the undisputed Guidelines range, the unobjected-to facts outlined
in the PSR, the testimony and evidence received at the sentencing hearing, and the
parties’ sentencing arguments, the court found that the Guidelines range did not
adequately account for the “vast number of documents” involved in the offense, and
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it departed upward to a sentence of forty-five months’ imprisonment. Sent. Tr. at 44.
Citing § 3553(a), the court reasoned that the chosen sentence was necessary to address
the “seriousness of th[e] offense” and to “afford adequate deterrence to” Ceron-Lopez
and others. Id. The court also specifically noted that Ceron-Lopez’s cooperation with
authorities was a significant factor in the court’s decision not to impose the statutory
maximum sentence of ten years’ imprisonment.
Ceron-Lopez also argues that the District Court clearly erred by relying on an
erroneous calculation of the number of documents involved in the offense. See
Feemster, 572 at 461 (noting that “procedural error” includes, among other things,
selecting a sentence based on clearly erroneous facts). Ceron-Lopez did not, however,
object to the PSR’s description of the 2,990 actual documents involved in the offense.
Accordingly, he is deemed to have admitted that his offense involved at least this
number of documents. See United States v. Cullen, 432 F.3d 903, 905 (8th Cir. 2006).
The court noted that even if it considered only this number of documents, the advisory
Guidelines sentence was inadequate and an upward variance was appropriate. See
Sent. Tr. at 44 (stating that a Guidelines sentence was “inadequate” even if only the
“actual documents” were considered).
In sum, the District Court committed no procedural sentencing error. The court
did not rely on clearly erroneous facts; it adequately considered the § 3553(a) factors
and explained its reasons for the term imposed; and nothing in the record indicates
that the court failed to consider a relevant sentencing factor, gave significant weight
to an improper or irrelevant factor, or committed a clear error of judgment in weighing
the relevant factors. See Feemster, 572 F.3d at 461.
Ceron-Lopez also argues that the District Court abused its discretion by
imposing a sentence that is substantively unreasonable. Specifically, he argues that
the court failed to perform its duty to avoid unwarranted sentencing disparities
because it sentenced him more harshly than other similarly situated defendants. In
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support of this argument, Ceron-Lopez cites several cases from other circuits and
argues that those defendants received shorter sentences for offenses that involved a
greater number of documents. We reject Ceron-Lopez’s argument because he does
not explain how the defendants in the cases cited were similarly situated in terms of
conduct, criminal history, acceptance of responsibility, or other relevant factors. See
United States v. Boneshirt, 662 F.3d 509, 519 (8th Cir. 2011) (noting that a sentencing
court is not prohibited from finding that a sentencing disparity is warranted), cert.
denied, 132 S. Ct. 1613 (2012). That the District Court’s evaluation of the facts and
circumstances presented in this case resulted in a lengthier sentence than Ceron-Lopez
had hoped for does not constitute an abuse of discretion. The District Court did not
impose a substantively unreasonable sentence.
For the foregoing reasons, we affirm the judgment of the District Court.
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