United States v. Cruz-Perez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30343
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00212-RHW
RENE CRUZ-PEREZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Submitted January 23, 2009*
Seattle, Washington
Filed June 10, 2009
Before: Robert R. Beezer, Richard C. Tallman and
Milan D. Smith, Jr., Circuit Judges.
*The panel unanimously finds this case suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2).
6953
UNITED STATES v. CRUZ-PEREZ 6955
COUNSEL
Kathleen Moran, Assistant Federal Public Defender, Federal
Defenders of Eastern Washington & Idaho, Spokane, Wash-
ington, for defendant-appellant Rene Cruz-Perez.
Pamela J. Byerly, Assistant United States Attorney, James A.
McDevitt, United States Attorney for the Eastern District of
Washington, Spokane, Washington, for plaintiff-appellee
United States of America.
OPINION
TALLMAN, Circuit Judge:
Defendant-Appellant Rene Cruz-Perez (“Cruz-Perez”), a
citizen of Mexico, appeals his 48-month sentence after his
conviction for illegal reentry into the United States following
a prior deportation. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
I
Cruz-Perez entered a plea of guilty in the Eastern District
of Washington to a single count of being an alien in the
United States after deportation in violation of 8 U.S.C.
§ 1326. In doing so, he acknowledged that the statutory maxi-
mum sentence was 20 years and that the district court was not
bound by the advisory Sentencing Guidelines (“Guidelines”).
This is his third conviction for the same federal offense. Cruz-
Perez has been deported from the United States on three pre-
6956 UNITED STATES v. CRUZ-PEREZ
vious occasions, and he has two prior federal convictions for
illegally reentering the United States—one in the Western
District of Washington and one in the District of Montana—
for which he served two separate 24-month sentences.
A presentence investigation report (“PSR”) was prepared
and circulated to the parties. The PSR calculated an adjusted
offense level of 17, which included an enhancement based on
a prior California state drug offense, and a criminal history
category of V. Thus, the Office of Probation calculated a
Guidelines sentence range of 46 to 57 months. The PSR iden-
tified Cruz-Perez’s criminal history as a factor “that may war-
rant a sentence outside the Guideline system.”
Cruz-Perez’s sentencing submissions addressed among
other things his criminal record, including his multiple con-
victions for the same reentry offense. The Government con-
curred with the PSR’s recommendation and, responding in
part to Cruz-Perez’s objections, stated: “Considering the fact
the Defendant has committed this crime on more than one
occasion, a sentence any lower than the advisory guideline
range”—i.e., between 46 and 57 months—“is not appropri-
ate.” Cruz-Perez was thus on notice that the Government
sought a term of no less than 46 months.
After several continuances, the sentencing hearing took
place on May 26, 2006. Applying a Taylor categorical analy-
sis, Taylor v. United States, 495 U.S. 575, 599-602 (1990),
the district court concluded that an enhancement for Cruz-
Perez’s California drug offense was improper. This conclu-
sion resulted in an adjusted offense level of 10 and an advi-
sory Guidelines range of 21 to 27 months, substantially below
that calculated in the PSR. The district court then stated that
it did not deem a sentence within this Guidelines range appro-
priate in Cruz-Perez’s case and indicated that it was contem-
plating a longer sentence than the Guidelines proposed based
on Cruz-Perez’s undeterred recidivism. At the outset of the
UNITED STATES v. CRUZ-PEREZ 6957
hearing, the sentencing judge specifically sought argument
from counsel on this point:
But I look at this case, and the man has been
deported three times. He’s served two sentences for
this same offense, both of them for 24 months, and
came back immediately. I don’t believe he came
back just to see his family. And I don’t think a 24-
month sentence or a guideline sentence is appropri-
ate to deter him from coming back. So I’m apt to go
higher. So I just wanted to tell you that so that you
can address your remarks in that direction . . . .
The two 24-month sentences he had did not deter
him, and I don’t think I am going to do that a third
time.
Without objecting or moving for a continuance, defense coun-
sel then delivered her argument, which directly addressed
Cruz-Perez’s pattern of immediately returning to the country
despite incarceration and deportation, as well as other 18
U.S.C. § 3553(a) factors.
After considering the parties’ arguments, the district court
concluded that a sentence above the Guidelines range was jus-
tified:
His offense is being in the United States, and he’s
done that twice after being prosecuted for two 24-
month sentences. He also was deported a third time
that didn’t result in a prison term. It seems to me I
have to fashion a sentence that I believe is enough
but not too much to deter him from coming back,
which will then protect the public from both the
criminal conduct he’s incurred, plus, to the extent
that the public is harmed by his presence here, to
prevent him from coming back. I find that the appro-
priate sentence, because of those considerations—for
6958 UNITED STATES v. CRUZ-PEREZ
instance, the Western District of Washington sen-
tence was imposed on the 8th of July of ‘99; the one
in Montana was the 24th of April of 2002; and we’re
back in this situation not too long after he would
have completed that second sentence—that a sen-
tence of 48 months is appropriate.
The court imposed a 48-month sentence, followed by three
years of supervised release. Defense counsel was given an
opportunity to comment before the final sentence was pro-
nounced, but made no mention of deficient notice. This
appeal followed.
II
Cruz-Perez argues that the district court erred in imposing
a sentence above the Guidelines range without providing him
adequate prior notice under Federal Rule of Criminal Proce-
dure 32(h). Rule 32(h) states:
Before the court may depart from the applicable sen-
tencing range on a ground not identified for depar-
ture either in the presentence report or in a party’s
prehearing submission, the court must give the par-
ties reasonable notice that it is contemplating such a
departure. The notice must specify any ground on
which the court is contemplating departure.
FED. R. CRIM. P. 32(h). “[W]hat constitutes reasonable notice
will vary depending on the circumstances of the particular
case.” United States v. Erpenbeck, 532 F.3d 423, 443 (6th Cir.
2008). Because Cruz-Perez failed to object at sentencing to
the adequacy of notice, his claim is reviewed for plain error.
United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th
Cir. 2008).1
1
Plain error is (1) error, (2) that is plain, and (3) that affects substantial
rights. United States v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006). “If
UNITED STATES v. CRUZ-PEREZ 6959
There is an initial question whether Cruz-Perez’s 48-month
sentence constitutes a “variance” from or, as Cruz-Perez
maintains, a “departure” within the Guidelines scheme. A
“departure” is typically a change from the final sentencing
range computed by examining the provisions of the Guide-
lines themselves. See, e.g., U.S. Sentencing Guidelines Man-
ual (“U.S.S.G.”) § 5K2.0. It is frequently triggered by a
prosecution request to reward cooperation, see U.S.S.G.
§ 5K1.1, or by other factors that take the case “outside the
heartland” contemplated by the Sentencing Commission when
it drafted the Guidelines for a typical offense. See United
States v. You, 382 F.3d 958, 967 (9th Cir. 2004). A “vari-
ance,” by contrast, occurs when a judge imposes a sentence
above or below the otherwise properly calculated final sen-
tencing range based on application of the other statutory fac-
tors in 18 U.S.C. § 3553(a). See United States v. Autery, 555
F.3d 864, 872 n.7 (9th Cir. 2009) (quoting United States v.
Smith, 474 F.3d 888, 896 n.3 (6th Cir. 2007) (Gibbons, J.,
concurring)).
The Supreme Court in United States v. Irizarry, 128 S. Ct.
2198 (2008), held that, if a sentence is a “variance,” the dis-
trict court is not required by Rule 32(h) to give advance notice
before imposing a sentence outside of the advisory Guidelines
range. United States v. Orlando, 553 F.3d 1235, 1238 (9th
Cir. 2009) (citing Irizarry, 128 S. Ct. at 2203); see United
States v. Blackie, 548 F.3d 395, 403-04 (6th Cir. 2008)
(“Here, the district court imposed a non-Guidelines sentence
—a variance. Therefore, pursuant to Irizarry, Rule 32(h) does
not apply to Blackie’s sentence.” (citation omitted)). Rule
32(h) was first promulgated to reflect the Court’s decision in
Burns v. United States, 501 U.S. 129 (1991), which was
all three conditions are met, an appellate court may then exercise its dis-
cretion to notice a forfeited error, but only if (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id.(quoting United States v. Maciel-Vasquez, 458 F.3d 994, 996 n.3 (9th Cir.
2006)).
6960 UNITED STATES v. CRUZ-PEREZ
decided in the era of mandatory Sentencing Guidelines. See
Irizarry, 128 S. Ct. at 2205 (Breyer, J., dissenting) (citing
Advisory Committee’s Notes on Fed. R. Crim. P. 32, 18
U.S.C. App. 1141 (2000 ed., Supp. II)). In refusing to extend
the rule to “variances,” the Court in Irizarry made clear that
“[a]ny expectation subject to due process protection at the
time we decided Burns that a criminal defendant would
receive a sentence within the presumptively applicable guide-
line range did not survive [the Court’s] decision in United
States v. Booker,” 543 U.S. 220 (2005) (invalidating the man-
datory feature of the Guidelines). Irizarry, 128 S. Ct. at 2202.
Therefore, whether “notice [of a contemplated non-Guidelines
sentence] in this setting is mandated by the Due Process
Clause” is no longer a question we need to confront. Id. While
“Rule 32(h) remains in effect today[,] . . . the justification for
[the Court’s] decision in Burns no longer exists.” Id. at 2203.
In the instant case, it matters not whether we characterize
what occurred here as a “variance” or a “departure.” “The
purpose of Rule 32 is to provide ‘full adversary testing of the
issues relevant to a Guideline sentence’ . . . [and] ‘to ensure
that issues with the potential to impact sentencing are fully
aired.’ ” United States v. Hahn, 557 F.3d 1099, 1102 (9th Cir.
2009) (quoting Evans-Martinez, 530 F.3d at 1168). Under the
plain language of Rule 32(h), for example, “[t]he district court
itself is required to give notice of its intent to depart only
when the PSR and the parties’ prehearing submissions fail to
identify the ground for departure.” Id.Applying this principle to the current case, Cruz-Perez can-
not credibly argue that, because of a lack of notice, he did not
have an opportunity to prepare arguments against the sentence
imposed. He does not point to any undisclosed ground upon
which the court relied in imposing an above-Guidelines sen-
tence. He also had ample notice that the court would consider
his lengthy criminal record—namely, his repeated illegal
reentries into the United States, undeterred by multiple prior
convictions, incarcerations, and deportations—when fashion-
UNITED STATES v. CRUZ-PEREZ 6961
ing an appropriate sentence. “Garden variety considerations of
culpability, criminal history, likelihood of re-offense, serious-
ness of the crime, nature of the conduct and so forth should
not generally come as a surprise to trial lawyers who have
prepared for sentencing.” Irizarry, 128 S. Ct. at 2203 (quoting
United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008)).
Cruz-Perez’s due process rights are not at issue. Neverthe-
less, “[s]ound practice dictates that judges in all cases should
make sure that the information provided to the parties in
advance of the hearing, and in the hearing itself, has given
them an adequate opportunity to confront and debate the rele-
vant issues.” Id. That occurred here. Cruz-Perez was well
apprised of the grounds that might lead to a sentence outside
of the advisory Guidelines range. The PSR stated as much
and, moreover, proposed a 46-to-57-month sentence. The
Government’s prehearing submissions asserted that, given
Cruz-Perez’s criminal history, any sentence below 46 months
was inadequate. The sentencing judge also expressly informed
the parties at the outset of sentencing that he was inclined to
impose a sentence greater than Cruz-Perez’s two prior 24-
month terms and the final calculated Guidelines range based
on his persistent and undeterred reentries into the United
States. Cruz-Perez and his lawyer had ample opportunity to
comment on all grounds material to the sentencing determina-
tion and the precise issue was fully aired and tested in the
adversarial process.
III
The district court appropriately exercised its discretion
when it sentenced Cruz-Perez to 48 months, a sentence above
the applicable Guidelines range. The grounds for the district
court’s imposition of this above-Guidelines sentence were
clearly presented in the PSR and explored by the parties in
both their written submissions and oral arguments. No objec-
tion for untimely notice or request for continuance was made.
Even assuming that the sentence imposed was subject to Rule
6962 UNITED STATES v. CRUZ-PEREZ
32(h), Cruz-Perez received sufficient advance notice of the
factors that warranted the sentence imposed.
AFFIRMED.