United States v. Oscar Juarez

FILED
NOT FOR PUBLICATION OCT 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50524
Plaintiff - Appellee, D.C. No. 2:11-cr-00205-R-1
v.
MEMORANDUM*
OSCAR JUAREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted August 28, 2013
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.**
Oscar Juarez appeals his 57-month sentence, imposed by the district court
following a guilty plea to one count of conspiracy to interfere with commerce by
robbery, in violation of 18 U.S.C. § 1951(a) (“Count Two”). His sentence under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ivan L.R. Lemelle, District Judge for the United States
District Court for the Eastern District of Louisiana, sitting by designation.
Count Two runs consecutively to a mandatory 60-month sentence under Count
Three,1 which Juarez does not challenge on appeal. We have jurisdiction pursuant
to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
Juarez first argues that the district court improperly applied a four-level role
enhancement to his offense level after determining that he was “an organizer or
leader of a criminal activity that involved five or more participants.” U.S.
Sentencing Guidelines Manual § 3B1.1(a). We review the district court’s finding
that Juarez was an “organizer or leader” for clear error. United States v. Yi, 704
F.3d 800, 807 (9th Cir. 2013). We review the district court’s application of the
Sentencing Guidelines for abuse of discretion. United States v. White Eagle, 721
F.3d 1108, 1121 (9th Cir. 2013). The district court calculated the Sentencing
Guidelines as suggested by the pre-sentence report (“PSR”), to which Juarez gave
no additions or corrections. The PSR recommended a four-level role enhancement
because Juarez 1) was the sole contact person between his co-conspirators and the
undercover agents; 2) recruited other participants for the crime; 3) referred
repeatedly to his “boys” and his “crew” and their experience at committing home
invasion robberies; and 4) met with the agents four times to plan the robbery.
1
Juarez also pled guilty to one count of carrying and using a firearm during
and in relation to—and possession of a firearm in furtherance of—a drug
trafficking crime and a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).
2
Further, Juarez provided firearms to his co-conspirators, decided how the drugs
would be distributed among them, and convinced one of them to take the blame for
the guns. While Juarez denied “running the show,” and there is no evidence that
he would have received a larger share of the stolen drugs than his co-conspirators,
we cannot say that it was clear error for the district court to find that Juarez was a
leader or organizer. Nor did the district court abuse its discretion when it applied a
four-level role enhancement under the Sentencing Guidelines.
Juarez also argues that in sentencing him to 57 months under Count Two,
the district court erred in upwardly departing from the Guidelines, which
recommended a sentence of between 41-51 months based on criminal history
category I and offense level 22. He further contends that the district court failed to
sufficiently explain its reasoning for the sentence, which Juarez argues is
substantively unreasonable. If we determine that the district court’s sentencing
decision is “procedurally sound,” we review the substantive reasonableness of the
sentence for abuse of discretion. United States v. Henderson, 649 F.3d 955, 958
(9th Cir. 2011). “[W]e must defer ‘to the District Court’s reasoned and reasonable
decision that the [18 U.S.C.] § 3553(a) factors, on the whole, justified the
sentence.’” United States v. Ruff, 535 F.3d 999, 1003 (9th Cir. 2008) (quoting Gall
v. United States, 552 U.S. 38, 59-60 (2007)). The abuse of discretion standard
3
applies “[r]egardless of whether the sentence imposed is inside or outside the
Guidelines range.” Gall, 552 U.S. at 51.
Juarez mistakenly argues that the district court followed the government’s
recommendation to place him in criminal history category II. The government had
recommended an upward departure to criminal history category II, but the district
court did not adopt that recommendation, and it explicitly sentenced Juarez in light
of “a criminal history of I.” The “upward departure” that Juarez contends is in
error was not the result of an elevated criminal history category; rather, it was a
six-month upward variance imposed by the district court pursuant to its authority
under United States v. Booker, 543 U.S. 220 (2005), “to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment for the
offense.” 18 U.S.C. § 3553(a). The district court’s sentencing decision was
procedurally sound.
With respect to the substantive reasonableness of Juarez’s sentence, the
district court property calculated the Sentencing Guidelines range and decided that
the upward variance was appropriate under Booker given the facts of the case. The
district court was “in a superior position” to judge those facts than are we, United
States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008) (per curiam) (quoting Gall,
552 U.S. at 51), and we cannot say that the district court abused its discretion by
4
imposing a six-month upward variance under Booker and the 18 U.S.C. § 3553(a)
factors, or by sentencing Juarez to 57 months under Count Two.
Moreover, the district court’s expressed reasoning, while limited at the
sentencing hearing, could be adequately inferred from the PSR and from the
record. See United States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010).
Finally, Juarez argues that the district court violated Federal Rule of
Criminal Procedure 32(i)(3) (“Rule 32”) by failing to resolve controverted facts in
the record. Here, however, there were no disputed factual issues for the district
court to resolve at the sentencing hearing; Juarez submitted on his briefs and did
not make any additions or corrections to the PSR. We conclude that the district
court did not violate Rule 32.
AFFIRMED.2
2
Because we affirm the district court, we need not address Juarez’s request
that the case be reassigned to a different judge on remand.
5