United States v. Douglas Jose Cadenas ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1450
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Douglas Jose Cadenas, also known *
as Jose Ramiro Marin-Ramirez, *
*
Defendant - Appellant. *
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Submitted: January 9, 2006
Filed: April 26, 2006
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Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Douglas Jose Cadenas pled guilty to unlawfully re-entering the United States
after being removed for an aggravated felony conviction in violation of 8 U.S.C. §
1326(a) and (b)(2). On appeal he argues that his sentence of 46 months' imprisonment
was unreasonable because the district court1 should have given more weight to several
of the factors listed in 18 U.S.C. § 3553(a) and less to the advisory guideline range of
46 to 57 months. We affirm.
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
Appellant was born as Jose Ramiro Marin-Ramirez in Sopetran, Antioquia,
Colombia in 1953. He first entered the United States in 1980 on a visitor’s visa, but
eventually received lawful permanent residence status under the name Marin-Ramirez
after marrying his first wife. In 1991, appellant was arrested and charged with money
laundering and conspiracy to possess with intent to distribute cocaine. In connection
with the arrest, appellant provided Drug Enforcement Administration agents with false
information including that his name was Douglas Jose Cadenas. He pled guilty to the
drug charge under that name and was sentenced to 97 months' imprisonment and a
five-year term of supervised release. Appellant had discharged his term of
imprisonment by the end of 1998, and he was transferred to immigration custody to
be deported as an aggravated felon. At that time, federal officials notified him that he
was prohibited from entering, attempting to enter, or being in the United States at any
time following his removal.
Appellant returned to Medellin, Colombia with his wife and the couple's
children, all of whom were United States citizens, except for appellant. There, the
couple obtained a business license to operate a liquor store, but shortly after opening,
local guerillas began threatening to kidnap and kill the children unless they received
payments of $1,000 a month. According to appellant and his wife, the guerillas
believed they were wealthy due to their recent arrival from the United States, the fact
that they were United States citizens, and the fact that they owned a business. Fearing
for her safety, the couple sent their oldest daughter back to the United States. In order
to care for their daughter and earn money to send back home to Colombia, appellant's
wife also returned to the United States.
Although appellant remained in Colombia with his son for the next eighteen
months, he eventually applied for a visa to enter Mexico. The application was denied,
but Mexican officials informed appellant that he could re-apply for admission in
ninety days. Instead, appellant left Colombia with his son and re-entered the United
States through Newark, New Jersey. While his son was able to use his American
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passport to re-enter, appellant used the passport and resident alien card he had been
issued under his true name, Jose Ramiro Marin-Ramirez. Reunited, the family
traveled to Waterloo, Iowa, where appellant and his wife opened a bar and restaurant
called the Tequila Club.
In 2004, a cooperating federal defendant alerted agents of the Iowa Division
of Narcotics Enforcement that an individual named "Jose," the owner of the Tequila
Club in Waterloo, had previously been convicted of cocaine charges and deported to
Colombia. A review of the Tequila Club's Iowa liquor license revealed that the
business was owned by appellant's wife, with "Jose Marin" listed as the contact name.
Further investigation confirmed that the driver's license photograph for Jose Ramiro
Marin-Ramirez appeared to be the same as that of the individual deported as an
aggravated felon under the name Douglas Cadenas. A search of appellant's residence
following his arrest uncovered photocopies of the passport and resident alien card
bearing the name Jose Ramiro Marin-Ramirez that appellant had used to re-enter the
United States, and a fingerprint analysis subsequently confirmed that appellant was
the individual previously deported as Douglas Jose Cadenas.
Appellant was indicted and later pled guilty to unlawful re-entry into the United
States after having been previously removed following conviction for an aggravated
felony offense in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced on
January 26, 2005, shortly after the United States Supreme Court issued its decision in
United States v. Booker, 543 U.S. 220 (2005). In light of Booker, the district court
informed the parties that, in deciding what sentence to impose, it would be guided by
the advisory guidelines range of 46 to 57 months' imprisonment and "all the factors
set forth at 18 United States Code Section 3553(a)(1) through (7)."
At sentencing, appellant presented the testimony of his wife and introduced
several exhibits, including the 2001 United States Department of State Country Report
on Human Rights Practices in Colombia. He argued that this evidence demonstrated
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that he and his family had returned to the United States under coercion and duress,
circumstances justifying a sentence below the applicable guidelines range. After
considering the evidence,2 the court sentenced appellant to 46 months' imprisonment
followed by a two-year term of supervised release, along with a $100 assessment.
This appeal followed.
I.
We review appellant's sentence for reasonableness.3 United States v. Hadash,
408 F.3d 1080, 1083 (8th Cir. 2005) (equating "unreasonableness" with an "abuse of
discretion"). In doing so we, like the district court, begin with the applicable
guidelines sentencing range. United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.
2005), cert. denied, 126 S. Ct. 276 (2005). Although a sentence within that range is
presumed reasonable, United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005),
2
In this regard the court stated:
[T]he Court finds that there are no facts or circumstances that would take
this case out of the heartland of cases because, as I said, when you boil
it down, it is the common situation where you have family members in
two countries, and the one parent, because of prior criminal conduct in
the United States, is not allowed in the United States legally. So I just
don't see that this is really a common – an uncommon situation. I decline
to depart as urged by defense counsel for those reasons. And so the
guidelines sentence, which is only one factor that the Court takes into
consideration, remains as it is, forty-six to fifty-seven months.
3
Initially, the government argues that we lack jurisdiction under 18 U.S.C. §
3742(a) to hear this appeal. As appellant correctly points out, we have previously
rejected this argument. United States v. Mickelson, 433 F.3d 1050, 1055 (8th Cir.
2006); United States v. Frokjer, 415 F.3d 865, 875 n.3 (8th Cir. 2005); United States
v. McCully, 407 F.3d 931, 933 n.2 (8th Cir. 2005), cert. denied, 126 S. Ct. 305 (2005).
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cert. denied, 126 S. Ct. 840 (2005), that presumption may be rebutted by reference to
the factors listed in § 3553(a). Mickelson, 433 F.3d at 1055. Thus, "if the district
court failed to consider a relevant factor that should have received significant weight,
gave significant weight to an improper or irrelevant factor, or considered only
appropriate factors but nevertheless committed a clear error of judgment," even a
sentence within the guidelines range may be unreasonable. United States v. Walker,
439 F.3d 890, 892 (8th Cir. 2006) (citing Hadash, 408 F.3d at 1084). In addition,
while we do not require the district court to mechanically recite each of the § 3553(a)
factors, it must be clear from the record that it actually considered them in determining
the appropriate sentence. Id. (quoting United States v. Dieken, 432 F.3d 906, 909 (8th
Cir. 2006)).
Here, the district court calculated the applicable guidelines range, considered
defendant's circumstances in reference to the § 3553(a) factors, and then imposed a
sentence at the bottom of the guidelines range.4 Thus, the sentence is clothed with a
presumption of reasonableness. Lincoln, 413 F.3d at 717. Appellant advances three
arguments in an attempt to rebut this presumption. We find none to be persuasive.
First, appellant contends that the district court gave inadequate weight to the
"extraordinary circumstances" surrounding his re-entry into the United States.
Although "[a] criminal trial for the felony of illegal reentry after deportation . . . is not
the proper forum to argue a case for political asylum," United States v. Polanco-
Gomez, 841 F.2d 235, 238 (8th Cir. 1988), appellant's evidence of the conditions in
4
Guideline § 2L1.2 sets a base offense level of 8 for a violation of 8 U.S.C. §
1326. Appellant received a sixteen-level increase under Guideline § 2L1.2(b)(1)(A)(i)
because he was deported following conviction for a drug trafficking offense, and a
three-point reduction for timely acceptance of responsibility under Guideline §
3E1.1(b). After these adjustments, appellant's offense level was 21 with a criminal
history category of III based on his 1991 drug offense and his commission of the
instant offense while on supervised release. Based on these calculations, the
applicable guideline range was between 46 and 57 months.
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Colombia and his reasons for leaving that country were properly considered by the
sentencing court in evaluating the "nature and circumstances of the offense" as well
as the "history and characteristics of the defendant." See 18 U.S.C. § 3553(a)(1).
Nonetheless, it was for the court to determine the appropriate weight of this evidence
in the overall sentencing balance. In doing so, the court expressed doubts about the
credibility of appellant's claims of duress, recognizing the lack of corroborating
evidence, his failure to apply for asylum upon re-entry, and the fact that appellant's
family, as American citizens, could travel freely into the United States to avoid any
danger in Colombia. However, the court went on to conclude that, even if all of
appellant's evidence of duress were true, it would not warrant a sentence below the
guidelines range because appellant's separation from his family was not "an
uncommon situation." Such a conclusion was reasonable and within the sentencing
court's discretion.
Next, appellant argues that his willingness to stipulate to deportation
demonstrated his "respect for the law," see 18 U.S.C. § 3553(a)(2)(A), and thereby
justified a sentence below the applicable guideline range. The district court
specifically considered appellant's offer to stipulate at sentencing. However, it
recognized that the stipulation would be largely redundant as removal was "a foregone
conclusion under the facts of this case." While the court could have concluded that
his offer to stipulate to deportation warranted a sentence below the guidelines range,
see United States v. Jauregui, 314 F.3d 961, 963-64 (8th Cir. 2003) (holding, pre-
Booker, that departure for waiving resistance to deportation is within sentencing
court's discretion), it was not unreasonable for it to decline to do so.
Lastly, appellant argues that the record is unclear as to the manner in which the
district court weighed the remaining § 3553(a) factors in determining his sentence.
While not making explicit findings with respect to each, the record reflects that the
district court recognized its obligation to consider the § 3553(a) factors and did
actually consider them in determining the appropriate sentence. See Walker, 439 F.3d
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at 892. The district court stated on several occasions during the hearing that its
sentencing determination would be guided by the advisory guidelines and "all other
factors set forth at 18 United States Code Section 3553(a)(1) through (7)." Indeed, the
court permitted defense counsel to summarize the evidence relevant to each applicable
factor before reaching its conclusion that none of the "facts or circumstances"
presented justified a sentence below the applicable guidelines range. From this
record, we are satisfied that the district court actually considered each factor in
determining an appropriate sentence.
The judgment of the district court is affirmed.
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