United States v. Alejandro Burgos-Ortega

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50237
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-05168-BEN-1
ALEJANDRO BURGOS-ORTEGA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
December 8, 2014—Pasadena, California
Filed February 5, 2015
Before: Susan P. Graber, Ronald M. Gould,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
2 UNITED STATES V. BURGOS-ORTEGA
SUMMARY*
Criminal Law
The panel affirmed a sentence for illegal re-entry in a
case in which the district court applied a 12-level increase
pursuant to U.S.S.G. § 2L1.2(b)(1)(A) after determining that
the defendant’s 1992 conviction for delivery of heroin under
Revised Code of Washington § 69.50.401(a)(1)(i) was for a
“drug trafficking offense.”
The defendant argued that § 69.50.401 is categorically
overbroad because it criminalizes manufacturing, delivering,
or possessing with intent to manufacture or deliver a
controlled substance without containing an exemption for
“administering,” even though federal law exempts
“administering” from the definition of distribution. The panel
rejected this contention because the defendant has not shown
the realistic probability of prosecution for administering a
drug.
The panel held that the district court did not rest its
sentence on any clearly erroneous fact, and rejected the
defendant’s claim that his sentence was substantively
unreasonable.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BURGOS-ORTEGA 3
COUNSEL
Kent D. Young (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellant.
Laura E. Duffy, Bruce R. Castetter, Mark R. Rehe (argued),
Anne K. Perry, United States Attorney’s Office, San Diego,
California, for Plaintiff-Appellee.
OPINION
CALLAHAN, Circuit Judge:
Defendant-Appellant Alejandro Burgos-Ortega pled
guilty to illegal re-entry in violation of 8 U.S.C. § 1326 and
received a 46-month sentence. Burgos-Ortega challenges his
sentence on appeal, arguing that 1) the district court erred
when it applied a 12-level increase to his offense level based
on a Washington State drug conviction; 2) the district court
erred by basing its sentence on facts not in the record; and
3) his above-Sentencing Guidelines sentence was
substantively unreasonable. We have jurisdiction pursuant to
18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
I
Burgos-Ortega is a citizen of Mexico who crossed into the
United States near the San Ysidro Port of Entry on November
19, 2012. Burgos-Ortega was arrested the next day and
admitted that he was in the United States illegally. He later
pled guilty to illegal re-entry in violation of 8 U.S.C.
§ 1326(a) and (b).
4 UNITED STATES V. BURGOS-ORTEGA
Burgos-Ortega’s presentence report (“PSR”) calculated
his Guidelines range as 18 to 24 months and recommended a
24-month sentence. This recommendation resulted from a
base offense level of 8, a 12-level increase based on a prior
drug trafficking offense,1 a 3-level decrease based on
acceptance of responsibility, and a 4-level downward
departure based on his participation in a “fast track”
prosecution. The prior offense leading to the 12-level
increase was a 1992 Washington State conviction under
Revised Code of Washington (“RCW”) § 69.50.401(a)(1)(i)2
for “Delivery of Heroin.”3 The Guidelines range was based
on the total offense level of 13 and two prior criminal
convictions for illegal re-entry in 1998 and 2006, which
resulted in 70-month and 46-month sentences, respectively.4
1
U.S.S.G. § 2L1.2(b)(1)(A) provides for a 12-level increase in the
offense level if the defendant has a prior conviction for a felony drug
trafficking offense for which the sentence imposed exceeded 13 months.
2
RCW § 69.50.401(a) (1992) stated: “Except as authorized by this
chapter, it is unlawful for any person to manufacture, deliver, or possess
with intent to manufacture or deliver, a controlled substance.” Unless
otherwise noted, we refer to the 1992 version of the statute.
3
The PSR wrongly identified the date of this offense as November 13,
1996, though the parties agree that this offense occurred in 1992. The
PSR indicated that Burgos-Ortega also had felony convictions in Utah in
1994 and 1996. The PSR explained that these convictions were also
felony drug trafficking offenses triggering the 12-level increase pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(i), but that “only one such prior is needed”
to trigger the increase.
4
The PSR also indicated that Burgos-Ortega had been apprehended by
immigration agents seven times and had been deported three times.
UNITED STATES V. BURGOS-ORTEGA 5
At sentencing, the Government recommended, and
Burgos-Ortega requested, a 24-month sentence. Burgos-
Ortega’s counsel argued that while this proposed sentence
was shorter than what he had received in the past for illegal
re-entry, it was appropriate in light of a change in the
Guidelines and the staleness of Burgos-Ortega’s prior
convictions. Counsel pointed specifically to a 2011
amendment to the Guidelines. The amendment reduced the
offense level increase from 16 to 12 if the defendant’s prior
conviction was too old to receive criminal history points, as
was the case here with Burgos-Ortega’s 1992 Washington
heroin conviction.
Burgos-Ortega’s counsel also argued that he had a
“diminishing criminal history apart from the illegal entries”
and claimed that Burgos-Ortega’s criminal record in the
1990s was “driven by his substance abuse,” but he had been
clean since 1996. Finally, Burgos-Ortega’s counsel asserted
that a 24-month sentence was appropriate because Burgos-
Ortega had only come to the United States because he was
worried about his children. He argued that now that Burgos-
Ortega had reestablished contact with them, and given that his
children planned to continue their relationship with him,
including visiting him in Mexico, Burgos-Ortega had no
reason to return at this point.5
At sentencing, the district court stated that it would “vary
up” and impose an above-Guidelines sentence:
5
Burgos-Ortega’s attorney also argued that the court’s concerns about
deterrence could be allayed at least in part by imposing a term of
supervised release after his prison sentence.
6 UNITED STATES V. BURGOS-ORTEGA
Now I have reviewed this file pretty
carefully because I knew I was going to vary
up. And I’ve heard the reasons for coming
back into the United States. I’d be willing to
bet you dollars to donuts that if I went and I
got a transcript of the proceedings of his
previous 1326’s, he probably had a good
excuse for coming back into the United States.
Now I don’t have those transcripts. But, you
know, I do enough of these every Monday, I
probably do more sentencings than many,
many districts combined. And I hear it all the
time. There is always, you know, reason to
come back. They want to be with their family
or what have you. And the story never
changes in the sense that they come back.
The only thing that deters them from
coming back is a sentence. That is it, plain
and simple. And even that doesn’t necessarily
always work. So, you know, I have to
consider – obviously, I’ve considered the fact
that his prior conviction was stale. I’ve
considered that. I’ve considered the fact that
as a result of that, he gets a reduction in the
Guideline calculations. I’ve considered the
fact that in this district, because of the number
of these cases that we have, we also have a
fast-track program.
The district court also recounted Burgos-Ortega’s
criminal history, which included various drug charges and his
first illegal reentry conviction, which had resulted in a 70-
UNITED STATES V. BURGOS-ORTEGA 7
month sentence. The court then discussed his second illegal
re-entry conviction:
Then guess what, in 2006, he’s again
arrested for another 1326. And this time,
guess what, we did him a favor, and the favor
was, we reduced the sentence that he got. We
went from 70 months down to 46 months.
Now, his supervised release in this case
expired on July 29th, 2012. He was arrested
on November 20th, 2012. Now that’s
basically three months. Three months after
his supervised release expired, he came back
into the United States.
The court also expressed concern about Burgos-Ortega’s past
problems with substance abuse and its fear that Burgos-
Ortega would return to selling or using drugs again if he
returned to the United States after deportation.
In light of Burgos-Ortega’s history, the court determined
that a Guidelines-range sentence was not appropriate in this
case:
I see absolutely, absolutely no reason,
whatsoever, for why I would want to impose
a sentence that is less than the last sentence he
received. I mean, it makes no sense.
Logically, it makes absolutely no sense. I
might as well put him on probation if you ask
me to impose a lesser sentence, or maybe give
him a medal or certificate of achievement.
8 UNITED STATES V. BURGOS-ORTEGA
The fact of the matter is, 70 months didn’t
work; 46 months didn’t work. Now, frankly,
I’d be half tempted to go above the 46-month
sentence, but I’m not going to do that. I’m
going to give him the benefit of the doubt.
I’m going to impose the same sentence he
received the last time. I’ve considered the
Guidelines. I think the Guidelines in this case
under-represent both his criminal history and
fail to take into account the lack of deterrence
or the protection of the public.
The district court ultimately held that the 18- to 24-month
Guidelines-range sentence was inadequate and sentenced
Burgos-Ortega to 46 months’ imprisonment and a three-year
term of supervised release.
Burgos-Ortega’s attorney then objected, stating that the
court had not reviewed any conviction documents for his
1992 Washington drug trafficking conviction that was the
basis for the 12-level increase in his offense level. He also
asserted that the PSR was insufficient proof to show that the
1992 conviction was for delivery of heroin. Burgos-Ortega’s
attorney also argued that the court overemphasized the
deterrence aspect of 18 U.S.C. § 3553(a) and disregarded the
particularized facts of Burgos-Ortega’s case when it found
that only an increased or similar sentence to his prior illegal
re-entry convictions would be appropriate. Burgos-Ortega’s
attorney re-emphasized that Burgos-Ortega’s reason for
returning—to reunite with his family—meant that he was
unlikely to repeat his crime.
The district court noted that these arguments were “just
not very credible” because of the “holes and inconsistencies”
UNITED STATES V. BURGOS-ORTEGA 9
in Burgos-Ortega’s story. Burgos-Ortega’s counsel offered
to provide additional information, but the court explained:
Now, look, as I said before, if we got ahold
[sic] of the transcript of the prior two
convictions, I’m willing to bet you dollars to
donuts that he had a, quote, good excuse, end
of quote, for coming back into the United
States.
And I’d be willing to bet you dollars to
donuts that if we looked at those two prior
transcripts, there is probably something in
there that he said, I’m not going to come back,
judge, give me a chance, give me a break, and
yet he comes back.
What I was trying to point out is, you can
fabricate all sorts of excuses for why people
come back into the United States. I’m not
saying they’re not understandable. You
know, I mean, given the choice of living in
Mexico, living here, I’d much rather live here.
The fact of the matter is, it’s against the law.
He’s been told it’s against the law.
And I don’t know what else you could
have said, frankly, that would have changed
that. . . . [Burgos-Ortega’s desire to locate his
children] is not an excuse for him to come
back into the United States.
Burgos-Ortega renewed his objections to the sentence and
subsequently filed a timely notice of appeal.
10 UNITED STATES V. BURGOS-ORTEGA
II
We review a district court’s sentence for abuse of
discretion. United States v. Blinkinsop, 606 F.3d 1110, 1114
(9th Cir. 2010). A district court abuses its discretion when it
errs in its Guidelines calculation, imposes a sentence based on
clearly erroneous facts, or imposes a substantively
unreasonable sentence. United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc).
Burgos-Ortega first argues that the district court erred in
calculating his Guidelines range when it relied on his 1992
Washington drug trafficking conviction without referring to
any conviction documents. In his view, the statute that the
conviction was based on, RCW § 69.50.401, is categorically
overbroad because it criminalizes manufacturing, delivering,
or possessing with intent to manufacture or deliver a
controlled substance without containing an exemption for
“administering,” even though federal law exempts
“administering” from the definition of distribution.6 Given
the lack of this “administering” exception in the Washington
statute, Burgos-Ortega contends that the court was required
to apply the modified categorical approach to determine
whether Burgos-Ortega was in fact convicted for
administering heroin, relying on, among other things, our
unpublished decision in Le v. Holder, 480 F. App’x 864 (9th
Cir. 2012).
6
Because Burgos-Ortega’s arguments fail under de novo review, we
assume, without deciding, that Burgos-Ortega properly preserved his
argument that RCW § 69.50.401 is categorically overbroad based on its
failure to include an exception for administering.
UNITED STATES V. BURGOS-ORTEGA 11
In determining whether a prior conviction qualifies for an
enhancement under § 2L1.2, a sentencing court first applies
the “categorical approach” from Taylor v. United States,
495 U.S. 575 (1990). Under this approach,
courts look only to the fact of conviction and
the statutory definition of a prior offense to
determine whether that prior offense can be
used for a sentencing enhancement under the
federal Guidelines. If the state statute
criminalizes conduct that would not constitute
a drug trafficking offense under federal
sentencing law, then a prior conviction under
that statute does not categorically qualify as a
basis for enhancing a defendant’s sentence.
United States v. Valdavinos-Torres, 704 F.3d 679, 691 (9th
Cir. 2012) (citation and internal punctuation omitted). We
review de novo whether a prior conviction qualifies as a
“drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A).
Id.
There does not appear to be any published case examining
whether RCW § 69.50.401(a) is a categorical match for the
generic drug trafficking offense. However, we briefly
examined this statute in Le v. Holder, 480 F. App’x at
865–67.7 Contrary to the government’s contention, in Le we
7
We also examined this statute in United States v. Copas-Villegas,
566 F. App’x 556 (9th Cir. 2014) (unpublished). In Copas-Villegas, the
defendant argued the statute was overbroad because it proscribed
solicitation. We assumed for the purposes of argument that the statute was
categorically overbroad. We nevertheless concluded that the defendant’s
conviction was an aggravated felony under the modified categorical
approach, based on the defendant’s written allocution submitted with his
12 UNITED STATES V. BURGOS-ORTEGA
did not merely assume that the statute was overbroad. Rather,
we noted that RCW § 69.50.401(a) does not contain an
exception for administering, in contrast to the federal statute:
Le contends that conduct that falls under
“deliver” in the state statute is broader than
conduct that falls under “distribute” in the
federal statute, and so Le’s state conviction
for intent to deliver does not constitute intent
to distribute under [21 U.S.C.] § 841(a)(1).
He relies on the fact that the federal definition
for distribute “means to deliver (other than by
administering or dispensing) a controlled
substance or a listed chemical,” 21 U.S.C.
§ 802(11), but the state definition does not
contain those exceptions, so he could have
been convicted for dispensing or
administering – behavior not criminalized
under the federal generic statute.
Id. at 866.
However, Le, a non-binding unpublished memorandum
disposition, did not address whether Washington State had
actually ever obtained a conviction under RCW
§ 69.50.401(a) for delivery through a defendant’s
administration of the drug. In Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007), the Supreme Court explained that a
court must examine whether there was more than just a
theoretical possibility that a defendant could be prosecuted
for conduct that is outside of the federal generic statute:
guilty plea, in which he admitted that he possessed cocaine with the intent
to deliver. Id. at 557.
UNITED STATES V. BURGOS-ORTEGA 13
[I]n our view, to find that a state statute
creates a crime outside the generic definition
of a listed crime in a federal statute requires
more than the application of legal imagination
to a state statute’s language. It requires a
realistic probability, not a theoretical
possibility, that the State would apply its
statute to conduct that falls outside the generic
definition of a crime. To show that realistic
probability, an offender, of course, may show
that the statute was so applied in his own case.
But he must at least point to his own case or
other cases in which the state courts in fact
did apply the statute in the special
(nongeneric) manner for which he argues.
Id. at 193; see also Moncrieffe v. Holder, 133 S. Ct. 1678,
1684–85 (2013) (quoting Duenas-Alvarez, 549 U.S. at 193).
The Court noted that the defendant had failed to show a
realistic possibility of prosecution for conduct outside the
federal statute and concluded that the state statute at issue
was not overbroad. Duenas-Alvarez, 549 U.S. at 193–94.
We recently applied Duenas-Alvarez in examining
whether a state statute was categorically overbroad. In
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014), we
granted a petition for review after the Board of Immigration
Appeals (“BIA”) found the petitioner removable based on a
2005 California drug conviction for which he received a
firearm sentencing enhancement. We held that the BIA erred
when it found that the enhancement for carrying a firearm in
violation of California Penal Code § 12022(c) constituted a
categorical firearm offense, because the state statute that
defined “firearm” at the time of the defendant’s conviction
14 UNITED STATES V. BURGOS-ORTEGA
was overbroad. The state statute did not exempt antique
firearms—which are exempted from the generic federal
firearm offense—and recent California prosecutions
demonstrated a realistic probability that the state could obtain
a conviction even if the firearm was an antique. Id. at
1115–17; see also United States v. Aguilera-Rios, 769 F.3d
626 (9th Cir. 2014) (discussing prosecutions under Cal. Penal
Code § 12022(c) for possession of antique firearms).
In contrast, in the unpublished opinion United States v.
Villeda-Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per
curiam), the Fifth Circuit held that the defendant had not
shown a realistic probability that RCW § 69.50.401(a), the
statute before us in this appeal, was overbroad. Applying
plain error review, the Fifth Circuit explained:
Villeda-Mejia . . . argues that “delivery”
under the Washington statute (but not the
gui d el i nes enhancem ent) includes
“administering” such that he must prevail in
light of Moncrieffe v. Holder, 133 S. Ct. 1678(2013), and Descamps [v. United States,
133 S. Ct. 2276 (2013)]. Neither case
involved the same situation presented here.
Unlike those cases, here Villeda-Mejia has
not pointed to a Washington case applying
this statute in an “administering” situation.
Accordingly, it is far from clear that
the Washington statute encompasses
“administering.” We have previously held
that a “theoretical possibility” that a state
statute would encompass conduct that is not
part of the offense to which an enhancement
would apply is insufficient to avoid the
UNITED STATES V. BURGOS-ORTEGA 15
enhancement. United States v. Carrasco-
Tercero, 745 F.3d 192, 197–98 (5th Cir.
2014). Certainly the idea that delivery under
the Washington statute would encompass
“administering” is not “clear or obvious” as
required for plain error. We also conclude
that this “theoretical possibility” makes it
inappropriate for us to exercise our discretion
to correct any such error under the fourth
prong of plain error review.
Id. at 389.8 Accordingly, the Villeda-Mejia court affirmed the
defendant’s sentence, which was based in part on a
sentencing enhancement for his prior conviction under RCW
§ 69.50.401. Id. at 388–89. The Fifth Circuit later cited this
discussion in a published opinion holding that a Texas statute
was a categorical drug trafficking offense because the
defendant had not shown a realistic probability that the statute
criminalized conduct broader than the generic drug
trafficking offense. United States v. Teran-Salas, 767 F.3d
453, 460–61 (5th Cir. 2014), petition for cert. filed,
___U.S.L.W.___, (U.S. Dec. 15, 2014) (No. 14-7593).
We hold that Burgos-Ortega has not shown the realistic
probability of prosecution for administering a drug required
to establish that RCW § 69.50.401 is categorically overbroad.
Burgos-Ortega argues that it is theoretically possible that a
defendant could be prosecuted for administering a controlled
substance under RCW § 69.50.401, without pointing to any
8
The Villeda-Mejia court applied plain error review because the
defendant did not object to the district court’s determinations that his
prior state court conviction under RCW § 69.50.401 was a drug trafficking
offense and an aggravated felony. 359 F. App’x at 388.
16 UNITED STATES V. BURGOS-ORTEGA
case where a defendant was in fact prosecuted or convicted
for administering a drug under this statute. The fact that
Burgos-Ortega has not identified such a case suggests that
there is no realistic probability of prosecution under RCW
§ 69.50.401(a) for administering rather than delivering an
illegal drug.
In contrast, in Medina-Lara and Aguilera-Rios, we cited
several cases involving antique firearms convictions, which
established the required realistic probability that state courts
gave the applicable statute an overbroad interpretation. See
also Macias-Carreon v. Holder, 716 F.3d 1286, 1288 (9th
Cir. 2013) (rejecting petitioner’s claim that the state statute
prohibiting possession of marijuana for sale punished conduct
outside of the generic federal offense because this claim was
“facially implausible and unaccompanied by a single citation
to a case in which this has occurred”).
Burgos-Ortega, however, argues that pursuant to United
States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc),
and United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir.
2007) (en banc), he need not show that anyone was actually
convicted for administering under RCW § 69.50.401(a)
because the statute is “overbroad on its face.” These cases
are distinguishable because the state statute here does not
expressly include conduct not covered by the generic offense,
but rather is silent as to the existence of a parallel
administering exception. This is not, for example, a burglary
statute that expressly reaches non-buildings, as discussed in
Grisel. If Burgos-Ortega’s interpretation of Grisel and Vidal
were correct, in Medina-Lara, we would not have needed to
look at whether any felon-in-possession convictions in
California involved antique firearms.
UNITED STATES V. BURGOS-ORTEGA 17
Moreover, it appears unlikely that a statute that made it
illegal to “manufacture, deliver, or possess” a drug would be
interpreted by Washington courts as allowing prosecution for
administering a drug. Under the applicable federal statute,
“administer” is defined as:
[T]he direct application of a controlled
substance to the body of a patient or research
subject by—
(A) a practitioner (or, in his presence, by
his authorized agent), or
(B) the patient or research subject at the
direction and in the presence of the
practitioner, whether such application be by
injection, inhalation, ingestion, or any other
means.
21 U.S.C. § 802(2). The Washington statute is focused on the
production, sale, or possession of a drug, and it is implausible
that a doctor, patient, or research subject would be prosecuted
under RCW § 69.50.401(a) for administering a drug.
Thus, Burgos-Ortega’s contention that RCW § 69.50.401
is overbroad on its face is unavailing, and we reject his claim
of procedural error based on the 12-level increase for his
1992 Washington drug trafficking conviction.9
9
Given that Burgos-Ortega has not shown more than a theoretical
possibility that a defendant could be convicted of administering a drug
under RCW § 69.50.401, we do not address the government’s argument
that, under Washington law, one cannot “deliver” a drug by administering
it. We also do not address the government’s contention that Burgos-
18 UNITED STATES V. BURGOS-ORTEGA
III
Burgos-Ortega next argues that the district court clearly
erred because its sentence was based on facts not found in the
record. Specifically, Burgos-Ortega argues that the district
court improperly speculated that he had offered good reasons
for his prior two illegal re-entries when it rejected Burgos-
Ortega’s contention that he had no reason for returning to the
United States in the future. In his view, the district court
procedurally erred because there was no evidence in the
record on his justifications for his prior re-entries.
Burgos-Ortega’s argument is not persuasive. A district
court procedurally errs at sentencing if it imposes a sentence
based on “clearly erroneous facts,” and “[a] finding is clearly
erroneous if it is illogical, implausible, or without support in
the record.” United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc); United States v. Graf, 610 F.3d 1148,
1157 (9th Cir. 2010). Our review of the record reveals that
the district court’s comments played no role in its
determination of an appropriate sentence. The court
expressly recognized that it did not have the transcripts from
the earlier hearings before it and the court stated that, in its
view, Burgos-Ortega’s reasons for an illegal re-entry were
irrelevant. Viewing the record as a whole, the district court
did not rest its sentence on any clearly erroneous fact.
Ortega’s Utah convictions were sufficient bases for the 12-level offense
level increase, nor whether the modified categorical approach would be
applicable in this case had we determined that RCW § 69.50.401 was
categorically overbroad.
UNITED STATES V. BURGOS-ORTEGA 19
IV
Burgos-Ortega’s final argument is that his sentence was
substantively unreasonable because the district court failed to
account for the staleness of his 1992 Washington heroin
conviction, focused excessively on deterrence while
disregarding the nature and circumstances of his current
offense, and overlooked the other § 3553(a) factors.
In assessing the substantive reasonableness of a sentence,
courts consider the totality of the circumstances, including the
degree of variance from the Guidelines. United States v.
Gall, 552 U.S. 38, 49–51 (2007). “The weight to be given the
various factors in a particular case is for the discretion of the
district court.” United States v. Gutierrez-Sanchez, 587 F.3d
904, 908 (9th Cir. 2009) (citing Carty, 520 F.3d at 993). One
of the permissible § 3553(a) factors is “the need for the
sentence imposed . . . to afford adequate deterrence to
criminal conduct.” 18 U.S.C. § 3553(a)(2)(B).
Here, while the Guidelines-range sentence was 18 to 24
months, Burgos-Ortega had already received 70-month and
46-month sentences for his prior two illegal re-entry
convictions. Burgos-Ortega also had an extensive prior
criminal history aside from his illegal re-entries, including
seven drug and theft-related convictions from 1992 to 1996.
In addition, he had re-entered the country a mere four months
after finishing his 3-year term of supervised release for his
prior illegal re-entry conviction in 2012.10
10
Contrary to Burgos-Ortega’s assertion, the district court did not apply
a 16-level enhancement when it imposed a 46-month sentence, nor did it
“disregard” the 2011 Guidelines Amendment reducing the offense level
20 UNITED STATES V. BURGOS-ORTEGA
The district court discussed the totality of the
circumstances, including the staleness of Burgos-Ortega’s
prior convictions, Burgos-Ortega’s participation in the
Southern District of California’s “fast track” program, the
lack of any recent drug offenses, Burgos-Ortega’s acceptance
of responsibility, and his excuse for returning, specifically
that he wanted to reunite with his family. Nevertheless, the
district court reasonably concluded, citing Burgos-Ortega’s
extensive criminal history and prior illegal re-entry
convictions, that the need for deterrence under § 3553(a)(2)
outweighed any mitigating factors and required a sentence at
least equal to his last illegal re-entry sentence.
Burgos-Ortega relies on United States v. Amezcua-
Vasquez, 567 F.3d 1050 (9th Cir. 2009), in support of his
contention that his sentence was substantively unreasonable,
but that case is distinguishable. In Amezcua-Vasquez, a
defendant was convicted for illegal re-entry and sentenced to
a within-Guidelines sentence of 52 months based on a 16-
level enhancement for a prior aggravated felony, specifically
his 25-year-old convictions for assault with great bodily
injury and attempted voluntary manslaughter. We held that
although the Guidelines range was calculated correctly, the
defendant’s sentence was substantively unreasonable because
of “the staleness of [the defendant’s] prior conviction and his
subsequent history showing no convictions for harming
others or committing other crimes listed in Section 2L1.2 [of
the Guidelines].” Id. at 1055. However, we specifically
stated that our holding in Amezcua-Vasquez had a “limited
scope,” noting that we had made “no pronouncement” as to
the reasonableness of sentences based on more recent
increase from 16 to 12. Rather, the district court clearly stated that it was
varying upward from the Guidelines range.
UNITED STATES V. BURGOS-ORTEGA 21
convictions or the need for deterrence. Id. at 1058; see also
United States v. Valencia-Barragan, 608 F.3d 1103, 1108–09
(9th Cir. 2010) (discussing Amezcua-Vasquez’s limited
scope).
Here, Burgos-Ortega has a much longer criminal record,
his prior convictions are more recent, and he has been
convicted for illegal re-entry three times. See United States
v. Segura-Del Real, 83 F.3d 275, 277 (9th Cir. 1996)
(repetition of the same or similar offenses may warrant an
upward departure). Further, the staleness of Burgos-Ortega’s
triggering conviction was taken into account under the post-
Amezcua-Vasquez Guidelines amendment reducing the
increase for a prior felony not scored from 16 to 12. On this
record, the district court did not commit “a clear error of
judgment in the conclusion it reached upon weighing the
relevant factors.” See Amezcua-Vasquez, 567 F.3d at 1055.
We therefore reject Burgos-Ortega’s claim that his sentence
was substantively unreasonable.
V
The district court did not err in sentencing Burgos-Ortega.
It properly considered Burgos-Ortega’s 1992 Washington
state conviction for delivery of heroin. At most, he has
shown only a theoretical possibility that a defendant could be
convicted for administering rather than distributing a drug
under RCW § 69.50.401. The district court did not abuse its
discretion by relying on clearly erroneous facts. Finally,
Burgos-Ortega’s 46-month sentence was not substantively
unreasonable in light of his prior 70-month and 46-month
sentences for illegal re-entry. The district court reasonably
determined that a 46-month sentence was sufficient but not
greater than necessary. Because our standard of review
22 UNITED STATES V. BURGOS-ORTEGA
requires that we give district courts great latitude both in
choosing a sentence and in articulating reasons for the
sentence, Burgos-Ortega’s sentence is AFFIRMED.