United States v. Perez-Perez ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30341
Plaintiff-Appellee, D.C. No.
v. CR-06-00054-001-
JLR
AROLDO PEREZ-PEREZ,
Defendant-Appellant.  ORDER
AMENDING
OPINION AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
September 26, 2007—Seattle, Washington
Filed October 22, 2007
Amended January 4, 2008
Before: Betty Binns Fletcher, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
113
114 UNITED STATES v. PEREZ-PEREZ
COUNSEL
Jay W. Stansell, Assistant Federal Public Defender, Seattle,
Washington, for appellant Aroldo Perez-Perez.
UNITED STATES v. PEREZ-PEREZ 115
John McKay, United States Attorney, and Donald M. Reno,
Jr., Special Assistant United States Attorney, Seattle, Wash-
ington, for appellee United States of America.
ORDER
The opinion filed on October 22, 2007 and published at 506
F.3d 736 is AMENDED as follows.
The first sentence in the third full paragraph on page 738
states:
Here, the sentencing judge expressly based the
within-guidelines sentence on the defendant’s exten-
sive criminal history and the need for deterrence,
while apparently considering—without explicit
reference—Perez-Perez’s mitigation arguments.
Immediately following this sentence, add the following
sentence:
That the defense’s arguments were considered is
clear from the transcript of the sentencing proceed-
ing, during which the district court actively ques-
tioned and engaged the defense.
Footnote 1 states:
However, specific articulation of the judge’s con-
sideration of the § 3553(a) factors, including those
argued by the sentenced defendant, is helpful to the
reviewing court.
Immediately following this sentence, add the following
sentence:
116 UNITED STATES v. PEREZ-PEREZ
See Rita, 127 S.Ct. at 2468 (“Where the defendant
. . . presents nonfrivolous reasons for imposing a dif-
ferent sentence . . . the judge will normally . . .
explain why he has rejected those arguments.”); cf.
Gall v. United States, 552 U.S. ____ (2007), No. 06-
7949, slip op. at 15 (Dec. 10, 2007) (noting that the
sentencing judge is not required to “raise every con-
ceivable relevant issue on his own initiative” but
might be required to address any issue raised by the
prosecutor).
The panel, as constituted above, has unanimously voted to
deny the petition for panel rehearing. Judge Kleinfeld and
Judge Gould voted to deny the petition for rehearing en banc,
and Judge Fletcher has so recommended.
The petition for en banc rehearing has been circulated to
the full court, and no judge has requested a vote on whether
to rehear the matter en banc. Fed. R. App. P. 35(b).
The petition for panel rehearing and the petition for rehear-
ing en banc are denied. No further petitions for rehearing or
rehearing en banc will be accepted.
IT IS SO ORDERED.
OPINION
GOULD, Circuit Judge:
Aroldo Perez-Perez was arrested in Seattle, Washington on
February 7, 2006, and charged with illegal re-entry after being
deported in violation of 8 U.S.C. § 1326(a). Perez-Perez
waived indictment and pleaded guilty on March 8, 2006. In
his plea agreement, he acknowledged that a previous convic-
tion for possession with intent to distribute cocaine was an
UNITED STATES v. PEREZ-PEREZ 117
aggravated felony subjecting him to a twenty-year enhance-
ment of the maximum potential sentence under 8 U.S.C.
§ 1326(a)(2). Perez-Perez also admitted that he had been
deported from the United States on two previous occasions,
most recently on or about January 4, 2005, after serving his
sentence for eluding examination and inspection by immigra-
tion officers in violation of 8 U.S.C. § 1325(a)(2). The record
also shows that Appellant has previous convictions for the
possession or sale of cocaine in California and Washington
State.
The district court conducted a sentencing hearing on June
5, 2006. The U.S. Probation Office recommended a sentence
of 63-78 months based on the base offense level, Perez-
Perez’s criminal history and acceptance of responsibility, and
a downward departure for Perez-Perez’s participation in the
district’s immigration “fast track” program. The probation
office’s final recommendation was for 62 months and two
weeks, reflecting a bottom-of-the-guideline sentence of 63
months minus two weeks for time served. Perez-Perez con-
curred in the calculation as a part of his plea agreement.
In his Sentencing Memorandum, Perez-Perez requested that
the district court reduce the sentence to within a range of 46-
57 months in light of several factors that he claimed were rel-
evant under 18 U.S.C. § 3553(a). Specifically, Perez-Perez
argued that his prior felony drug offense was de minimis in
nature, that his current arrest was improper under the Fourth
Amendment because of alleged racial profiling, that he had
recovered from drug addiction—which he alleged to be the
cause of his prior criminal activity—and that he was moti-
vated to return to the U.S. because his family was located
here.
The district court sentenced Perez-Perez to 62 months and
two weeks. In stating the reasons for the sentence, the district
court stressed Perez-Perez’s extensive criminal history and
the need for deterrence in light of Perez-Perez’s prompt reen-
118 UNITED STATES v. PEREZ-PEREZ
try into the U.S. following his prior deportations. Despite jus-
tifying the sentence under these 18 U.S.C. § 3553(a) factors,
the sentencing judge did not expressly address the defendant’s
specific arguments. Perez-Perez argues that in so doing the
district court failed to comply with § 3553(a) and (c).
This Court has jurisdiction to review Perez-Perez’s within-
guideline sentence, United States v. Plouffe, 445 F.3d 1126,
1130 (9th Cir. 2006) (as amended), and does so to determine
whether the sentence was unreasonable, United States v.
Booker, 543 U.S. 220, 260 (2005). We conclude that it was
not.
[1] A district court must only state the reasons for the sen-
tence imposed. See Rita v. United States, 127 S. Ct. 2456,
2468 (2007) (“The sentencing judge should set forth enough
to satisfy the appellate court that he has considered the par-
ties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.”); see also Plouffe, 445
F.3d at 1131 (“[S]entencing courts are to consider how the
sentencing factors apply to each defendant and determine
whether an individualized sentence is warranted.”).
[2] Here, the sentencing judge expressly based the within-
guidelines sentence on the defendant’s extensive criminal his-
tory and the need for deterrence, while apparently considering
—without explicit reference—Perez-Perez’s mitigation argu-
ments. That the defense’s arguments were considered is clear
from the transcript of the sentencing proceeding, during
which the district court actively questioned and engaged the
defense. This is sufficient under the Supreme Court’s decision
in Rita and this Court’s earlier authority.1 See Rita, 127 S. Ct.
1However, specific articulation of the judge’s consideration of the
§ 3553(a) factors, including those argued by the sentenced defendant, is
helpful to the reviewing court. See Rita, 127 S.Ct. at 2468 (“Where the
defendant . . . presents nonfrivolous reasons for imposing a different sen-
tence . . . the judge will normally . . . explain why he has rejected those
arguments.”); cf. Gall v. United States, 552 U.S. ____ (2007), No. 06-
7949, slip op. at 15 (Dec. 10, 2007) (noting that the sentencing judge is
not required to “raise every conceivable relevant issue on his own initia-
tive” but might be required to address any issue raised by the prosecutor).
UNITED STATES v. PEREZ-PEREZ 119
at 2469 (affirming district court where it “considered” defen-
dant’s arguments by listening to defendant’s claims of physi-
cal ailments, prior commendable work experience and lengthy
military service and determined, without further comment,
that a lower sentence was “inappropriate” despite these miti-
gating factors); see also United States v. Knows His Gun, 438
F.3d 913, 918 (9th Cir. 2006) (holding that Section 3553(a)
“does not necessitate a specific articulation of each factor sep-
arately”). We conclude that the district court reached a rea-
sonable conclusion after properly considering the § 3553(a)
factors, and that it articulated its reasoning to the degree
required for meaningful appellate review.
AFFIRMED.