United States v. Solis-Alvarez , 563 F. App'x 622 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 30, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-1485
(D.C. No. 1:13-CR-00188-MSK-1)
VICTOR SOLIS-ALVAREZ, (D. Colo.)
Defendant - Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Appellant Victor Solis-Alvarez pled guilty to illegal reentry of a removed
alien subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
(b)(1), and guilty to violating the terms of his supervised release with respect to
another conviction. He received a thirty-month sentence for both convictions,
which he now appeals, contesting its procedural and substantive reasonableness.
We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291
and affirm.
I. Background
Mr. Solis-Alvarez is a Mexican citizen who illegally entered this country at
the age of seven. He accumulated a substantial juvenile criminal record and, in
2009, at the age of eighteen, received a felony conviction for first-degree trespass
and was deported later that year. He illegally reentered this country in early 2010
and was thereafter convicted of illegal reentry of a removed alien subsequent to a
felony conviction and sentenced, in part, to thirty-six months supervised release.
He was again deported in February 2011. In 2013, he illegally reentered this
country and ultimately pled guilty to both the charge for his instant conviction
and violation of his supervised release on his prior conviction.
A probation officer prepared a presentence report for both the instant
conviction and his supervised release violation. For the latter, the probation
officer recommended a within-Guidelines-range sentence of twelve to eighteen
months imprisonment following revocation of his supervised release. With
respect to his reentry conviction, he recommended a Guidelines range of fifteen to
twenty-one months imprisonment. With regard to factors related to a variance,
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the probation officer pointed out: 1) Mr. Solis-Alvarez has a criminal record
involving three adult felony convictions, two deportations, two juvenile felony
offenses, and multiple other juvenile offenses, and has been involved with the
criminal justice system since age fourteen; 2) a likelihood exists he will return to
this country again because he has been here since 1997 and his mother and
siblings live in Denver, Colorado; and 3) his intent to relocate to Baja, Mexico,
for safety reasons when next deported, due to his fear of returning to Zacatecas,
Mexico, after Los Zetas gang members kidnaped his male cousins, killing one of
them.
Mr. Solis-Alvarez did not file any objections to the presentence report,
including the findings of fact and calculation of his sentence. At the sentencing
hearing, his counsel expressly stated Mr. Solis-Alvarez was not requesting a
downward departure or variance, other than asking for concurrent sentences for
his conviction and revocation of supervised release. Both parties requested
concurrent sentences of twenty months imprisonment. Mr. Solis-Alvarez’s
counsel pointed out Mr. Solis-Alvarez came back into this country because of the
encouragement of his family and the kidnaping and death of his male relatives,
and, since he feared returning to his familial home in Zacatecas, Mexico, because
of the Los Zetas gang members, he intended to go to Baja, Mexico, after
deportation where he would escape any threat against him and start a restaurant.
While the government also sought concurrent twenty-month sentences, it pointed
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out, in part, Mr. Solis-Alvarez: 1) has a fairly significant juvenile record and
adult felony convictions, including conviction for illegal reentry; 2) entered the
country illegally three times, including while on supervised release; 3) was not
deterred from continuing to violate the law and reenter the country despite the
wide variety of punishments and sanctions imposed on him; and 4) is a high-risk
candidate for illegal reentry because he maintains no ties to Baja, Mexico, is close
to his family in the Denver area, and has been in the United States since age
seven.
After expressly listing the sentencing factors under 18 U.S.C. § 3553,
acknowledging the lack of objections to the facts and calculations in the
presentence report, and explaining the advisory nature of the Guidelines, the
district court announced its intent to impose a single sentence for the instant
conviction and violation of supervised release and impose an above-Guidelines
sentence, noting Mr. Solis-Alvarez’s reentry conviction did not take into account
his extensive juvenile history or his unsuccessful completion of every sentence
imposed. It stated:
It’s worth noting ... his criminal history–that he illegally entered the
country first when he was a child ... at age 7. By age 14, he had
juvenile adjudications of battery, assault, disorderly conduct, and
fighting, motor vehicle theft, [and] spent some time in the
Department of Youth Corrections because his probation was revoked
and terminated. Ultimately, he was paroled. Then he had theft and
shoplifting, a felony trespass at 15. Again, his probation was
revoked, re-granted, revoked, terminated. Then he had a discharge of
a weapon within city limits at age 16. And his first adult conviction
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was at age 18, driving without a license, with a defective vehicle,
followed by an attempted trespass, one that was an attempt to break
into a vehicle, it was another felony conviction. He was sentenced to
6 months in the Colorado Department of Corrections. He was
released subject to an immigration detainer. He was deported to
Mexico. He then reenters the United States illegally, and he is
convicted in the Western District of Texas for illegal reentry,
sentenced to 15 months of imprisonment and 36 months of
supervised release. The supervised release term commenced on
February 4, 2011. He reenters the United States illegally and is
before this court now.
It also noted Mr. Solis-Alvarez’s defiant attitude and the likelihood he would
attempt to illegally reenter this country again given: 1) he had no realistic plans
after his deportation because he has no contacts in Baja or skills to start a
restaurant; 2) “his close family is located here in Colorado”; 3) his willingness in
the past to come back into the country illegally; 4) his apparent failure to
understand what he has done wrong or commit to changing his behavior; and 5)
he was not deterred by his prior sentences. It then imposed a thirty-month
sentence followed by a three-year term of supervised release. Mr. Solis-Alvarez’s
counsel then requested the district court reconsider and impose a lower sentence,
stating that while Mr. Solis-Alvarez made a lot of mistakes as a juvenile, he is
now an adult “ready to act as an adult person, intelligent man should, and he
realizes that.” The district court responded, stating,
I remain convinced that an upward variance is appropriate in this
case and that 30 months is a period of incarceration which reflects a
sentence that is sufficient but not greater than necessary to satisfy the
sentencing objectives. I note the previous sentence imposed for
illegal reentry did little to deter this defendant’s behavior.
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After announcing the thirty-month sentence, the district court asked, “Is there
anything further to bring before the court?” to which Mr. Solis-Alvarez’s counsel
responded, “No, Your Honor. Other than just to state for the record our
disagreement with the sentence.”
II. Discussion
Mr. Solis-Alvarez now appeals his thirty-month sentence. He contends his
sentence is unreasonable because the district court failed to address or ignored
issues relating to his lack of personal safety in Mexico and family ties to the
United States and, instead, based his sentence largely on his criminal history,
inability to abide by previous sentences, persistent refusal to stay in Mexico,
seeming defiance, and dim prospects for success in Mexico. He contends these
“cited factors cannot bear such a large variance on their own” and are “even less
justified” and “much more unreasonable” when taken into consideration with his
personal safety concerns in returning to Mexico, including “his fear of being
murdered by a powerful drug cartel” and “his desire to be with his family in the
United States, where he has lived since he was seven years old.” He also argues a
thirty-month variant Guidelines sentence is substantively unreasonable because it
is “nearly 50% higher than the top of his guideline range,” thereby suggesting his
sentence is impermissibly disparate from others who are sentenced within the
Guidelines range. In response, the government argues the district court did not
abuse its discretion or otherwise err in imposing the thirty-month sentence.
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We review a sentence for reasonableness, giving deference to the district
court under an abuse of discretion standard. See United States v. Smart, 518 F.3d
800, 802-03, 805 (10 th Cir. 2008). Thus, we review “‘all sentences–whether
inside, just outside, or significantly outside the Guidelines range–under a
deferential abuse-of-discretion standard,’” in which we “afford substantial
deference to district courts.” Id. at 806 (quoting Gall v. United States, 552 U.S.
38, 41 (2007)). “Our appellate review for reasonableness includes both a
procedural component ... as well as a substantive component, which relates to the
length of the resulting sentence.” Id. at 803. “Procedural reasonableness
addresses whether the district court incorrectly calculated or failed to calculate
the Guidelines sentence, treated the Guidelines as mandatory, failed to consider
the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately
explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317 (10 th Cir.
2008). In determining whether the district court properly calculated a sentence,
we review its legal conclusions de novo and its factual findings for clear error.
See United States v. Kristl, 437 F.3d 1050, 1054 (10 th Cir. 2006) (per curiam).
However, when a defendant fails to raise an objection to the district court’s
calculation, failure to consider the § 3553(a) sentencing factors, or explanation of
a sentence, we review the district court’s determination only for plain error. See
United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10 th Cir. 2007).
In turn, substantive reasonableness addresses whether the sentence length is
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reasonable given all the circumstances of the case in light of the § 3553(a)
factors. See Huckins, 529 F.3d at 1317. Generally, an argument the district court
gave undue weight to one factor over another challenges the substantive
reasonableness of a sentence. See Smart, 518 F.3d at 805, 808. In reviewing the
substantive reasonableness of a sentence, “[w]e may not examine the weight a
district court assigns to various § 3553(a) factors, and its ultimate assessment of
the balance between them,” but must “give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Id. (internal quotation marks omitted). “Although the degree of variance from the
Guidelines range remains a consideration on appeal, it may not define our
threshold standard of review.” Id. at 807 (internal citation omitted).
In this case, Mr. Solis-Alvarez argues the district court impermissibly based
his sentence largely on his criminal history, unsuccessful sentence completions,
multiple reentries, and personal characteristics of defiance and inability to
succeed in Mexico, rather than mentioning, addressing, or giving weight to
personal characteristics, such as his personal safety concerns and desire to be with
his family in the United States. To the extent Mr. Solis-Alvarez is suggesting the
district court failed to consider these additional factors by failing to expressly
mention them or to otherwise explain his sentence, we review for procedural
unreasonableness under a plain error standard because he failed to raise an
objection on these specific grounds. To the extent he is contending it failed to
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give meaningful consideration to the § 3553(a) factors by giving undue weight to
some factors over others, failed to provide sufficient reasons for the variance, or
imposed an inordinate degree of variance, he is challenging the substantive
reasonableness of his sentence which we review for an abuse of discretion. See
Smart, 518 F.3d at 806-08.
In conducting our review of the record, we reject Mr. Solis-Alvarez’s claim
the district court failed to consider issues relating to his personal safety and
family connections or ties to the United States or adequately explain his sentence.
In varying upward and expressly considering the § 3553(a) sentencing factors, it
relied not only on the unopposed presentence report, which repeatedly noted Mr.
Solis-Alvarez’s personal safety concerns and family ties to the United States, but
his counsel’s argument at sentencing on the same issues. In addition, in
explaining its belief Mr. Solis-Alvarez would again return to this country, the
district court expressly noted “his close family is located here in Colorado” and
explicitly recognized his intent to go to Baja, Mexico, rather than his familial
home. It also expressly listed the reasons why it was imposing a thirty-month
sentence. Given these circumstances, it is clear the district court was aware of
and considered the safety and family factors in conjunction with the other
§ 3553(a) sentencing factors, including his criminal history; explained its reasons
for a thirty-month sentence; and determined such a sentence was reasonable given
the factors as a whole. Thus, the district court imposed a procedurally reasonable
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sentence and did not commit plain error.
With regard to the substantive reasonableness of the sentence, not only did
the district court consider the relevant sentencing factors, but, as previously
explained, we may not examine the weight it assigned to those factors or its
ultimate assessment of the balance between them; rather, we give due deference
to its decision that the § 3553(a) factors, on a whole, justify the variance. See
Smart, 518 F.3d at 802, 808. Moreover, while a district court is required to
provide reasons sufficient to support the chosen variance, it is not required to
provide extraordinary facts to justify the statutorily permissible sentencing
variance or give mathematical precision to the § 3553(a) factors for the purpose
of reaching some specific level of evidentiary weight. Id. at 807. Here, the
district court provided reasons sufficient to support the variant sentence.
As to the degree of variance in Mr. Solis-Alvarez’s sentence from those
sentenced within the Guidelines range, which he complains is fifty percent higher,
we do not require a district court to distinguish the defendant’s characteristics and
history from those of the ordinary offender contemplated by the Guidelines, nor
do we require facts demonstrating the existence of extraordinary defendant
characteristics and history. See id. at 806-08. “While similar offenders engaged
in similar conduct should be sentenced equivalently, disparate sentences are
allowed where the disparity is explicable by the facts on the record.” United
States v. Davis, 437 F.3d 989, 997 (10 th Cir. 2006) (internal quotation marks
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omitted). In this case, the variance is explicable by the facts presented in the
record on appeal, and the district court’s reasons for imposing it are sufficiently
compelling. In sum, Mr. Solis-Alvarez has not demonstrated his upward variant
sentence is either procedurally or substantively unreasonable for the purpose of
warranting reversal on appeal.
III. Conclusion
Accordingly, we AFFIRM Mr. Solis-Alvarez’s thirty-month term of
imprisonment.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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