United States v. Cardenas-Michel , 262 F. App'x 109 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 24, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-2005
v. D. N.M.
LUIS ENRIQUE CARDENAS- (D.C. No. CR-05-1339-WPJ)
MICHEL,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, EBEL, and O’BRIEN, Circuit Judges.
Luis Enrique Cardenas-Michel was charged with unlawfully re-entering the
United States after deportation following a conviction for an aggravated felony.
Pursuant to a plea agreement, Cardenas-Michel pled guilty in exchange for the
government’s agreement it would not oppose a sentence at the low end of the
United States Sentencing Guidelines range. The district court sentenced
Cardenas-Michel to a 46 month term of imprisonment, a term at the low end of
*
This order and judgment is not binding precedent except under the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.
the guideline range (46-57 months). He appeals from that sentence. We affirm.
I. BACKGROUND
In late February 2005, Cardenas-Michel was found in New Mexico after
being deported in 1998 subsequent to his conviction for escape following his
arrest for being a felon in possession of a firearm. Immigration agents discovered
he had also been deported in 1994 after serving a two-year sentence for
possession or purchase of a controlled substance. On August 1, 2005, Cardenas-
Michel pled guilty to illegal re-entry after an aggravated felony conviction in
violation of 8 U.S.C. § 1326(a)(1) & (2) and § 1326(b)(2). The probation office
prepared a presentence report (PSR) using the 2004 edition of the guidelines
manual. It determined his base offense level was 8. See USSG §2L1.2(a).
Because Cardenas-Michel was previously deported after being convicted of a drug
trafficking offense for which the sentence imposed exceeded 13 months, the
probation office increased his offense level by 16. See USSG
§2L1.2(b)(1)(A)(C). After a 3-level reduction for accepting responsibility under
USSG § 3E1.1, his total offense level was 21. With a Criminal History Category
of III, the guidelines range was 46 to 57 months imprisonment.
Cardenas-Michel objected to the PSR. He did not claim the guideline
calculations were erroneous, but requested a substantial downward variance 1
1
A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1
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under the factors in 18 U.S.C. § 3553(a). 2 He explained he initially entered into
the United States to escape his impoverished circumstances in Mexico. The only
reason he returned after his deportations was to support and nurture his wife and
three children who reside in California. He claimed he pled guilty to the charge
of possession of a controlled substance only to protect his family and younger
brother from possible arrest or harm from others. The escape charge was not an
escape from a correctional facility. Rather, he just walked out of a hospital while
he was being treated for his injuries from the shooting that led to his felon in
(10th Cir. 2007). A variance occurs “when a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” Id.
2
Under section 3553(a), the sentencing court must consider:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [by the
guidelines];
(5) any pertinent policy statement [issued by the Sentencing
Commission] . . .;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
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possession arrest. Given the extenuating circumstances and the passage of time
since his indiscretions, he argued the 16-level enhancement over-represented the
likelihood of recidivism and his danger to the community. He proposed a
sentence of 21 months would promote the sentencing objectives found in
18 U.S.C. § 3553(a). The district court was not persuaded and sentenced
Cardenas-Michel to 46 months imprisonment.
II. DISCUSSION
On appeal, Cardenas-Michel asserts his 46 month sentence is unreasonable
because it is greater than necessary to advance the sentencing goals set forth in
18 U.S.C. § 3553(a)(2). Because Cardenas-Michel concedes his sentence is
procedurally correct, we review the district court’s sentencing determination for
an abuse of discretion. United States v. Gall, 128 S.Ct. 586, 594 (2007) (“Our
explanation of ‘reasonableness' review in the Booker opinion made it pellucidly
clear that the familiar abuse-of-discretion standard of review now applies to
appellate review of sentencing decisions.”); United States v. Garcia-Lara, 499
F.3d 1133, 1135-36 (10th Cir. 2007). A sentence within the properly calculated
Guidelines range is presumptively reasonable on appeal. Rita v. United States,
127 S.Ct. 2456, 2462 (2007).
Cardenas-Michel contends “[t]here is no reasonable justification for the
district court’s inflexible adherence to a merely advisory guideline,” and “[t]he
sentencing court failed to articulate any rationale for the sentence imposed, other
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than its statement that the guidelines are presumed to be correct and reasonable.”
(Appellant’s Br. at 11.) After a careful review of the record, we find this
statement to be incorrect. The sentencing court noted Cardenas-Michel’s
arguments as well as other factors considered by the court. A decision to simply
apply the guidelines to a particular case, “will not necessarily require lengthy
explanation. Circumstances may well make clear that the judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence is a proper
sentence.” United States v. Angel-Guzman, 506 F.3d 1007, 1016 (10th Cir. 2007)
(quoting Rita, 127 S.Ct. at 2468). “After settling on the appropriate sentence,
[the district court] must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.”
Gall, 128 S.Ct. at 597 (citing Rita, 127 S.Ct. at 2456). We are satisfied that the
district court properly considered the § 3553 factors here and imposed a
reasonable sentence. We discern no abuse of discretion.
AFFIRMED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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