United States v. Rodriguez-Castro , 492 F. App'x 137 ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1670
UNITED STATES OF AMERICA,
Appellee,
v.
SEBASTIAN RODRIGUEZ-CASTRO, a/k/a Sotero Mojica,
a/k/a Sotero Mojica-Laureano,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Boudin, Stahl, and Howard, Circuit Judges.
Patricia A. Garrity, Assistant Federal Public Defender, with
whom Héctor E. Guzmán, Jr., Federal Public Defender, was on brief
for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief for appellee.
September 7, 2012
STAHL, Circuit Judge. After being convicted of alien
smuggling and deported from the United States, defendant Sebastian
Rodriguez-Castro (Rodriguez) unlawfully reentered this country and
received a forty-six-month sentence under 8 U.S.C. §§ 1326(a) and
(b)(2). We find the sentence procedurally and substantively
reasonable and therefore affirm.
I. Facts & Background
Rodriguez, a native and citizen of the Dominican
Republic, first came to Puerto Rico in 1996 and was deported in
2003. On March 25, 2008, the United States Coast Guard apprehended
Rodriguez, along with nine other undocumented immigrants, traveling
on the open ocean toward Puerto Rico, on a nineteen-foot wooden
yawl. Rodriguez admitted to being the captain of the ship but
maintained that he had not made the trip for profit. Rather, he
said, he and his fellow passengers had pooled funds in order to
sail the ship to the United States. A series of sworn statements
from Rodriguez’s fellow passengers, taken by officers from the
Department of Homeland Security (DHS) and produced during
discovery, generally corroborated Rodriguez’s claims.
Rodriguez pled guilty to bringing in and harboring
aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(i), and to aiding
and abetting illegal entry, in violation of 8 U.S.C. § 1325.
Rodriguez’s Presentence Investigation Report (PSR), dated July 29,
2008, recommended a three-level reduction in Rodriguez’s offense
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level because he had not committed the alien smuggling offense for
profit.1 See U.S.S.G. § 2L1.1(b)(1). Rodriguez received a
sentence of ten months’ imprisonment for the alien smuggling count
and a sentence of six months’ imprisonment for the aiding and
abetting illegal entry count, to be served concurrently, along with
three years of supervised release. On February 12, 2009, Rodriguez
was again deported from the United States.
On October 12, 2010, United States Immigration and
Customs Enforcement agents conducted an immigration check at a
barber shop in San Juan, Puerto Rico and found Rodriguez there. He
was detained and charged with unlawful reentry after having been
deported for an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Rodriguez pled guilty, without a plea
agreement. A subsequent PSR recommended a base offense level of
eight, see U.S.S.G. § 2L1.2(a), and a sixteen-level enhancement
because Rodriguez had previously been convicted of alien smuggling,
see id. § 2L1.2(b)(1)(A)(vii). The PSR also recommended a three-
1
Rodriguez has not provided us with the transcript from his
sentencing hearing for the 2008 alien smuggling offense, so we do
not know whether the district court ultimately applied the three-
level reduction. Nor has he made clear whether he submitted a copy
of that transcript or a copy of the 2008 PSR to the district judge
who sentenced him for the 2010 unlawful reentry offense. Thus, we
do not know whether the sentencing judge for the 2010 unlawful
reentry offense was aware that the Probation Office had recommended
the three-level reduction in the 2008 alien smuggling case.
Rodriguez did submit, both to us and to the sentencing judge for
the 2010 unlawful reentry offense, the sworn statements from his
fellow passengers taken by DHS.
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level downward adjustment for acceptance of responsibility, see id.
§ 3E1.1, resulting in a total offense level of twenty-one. The PSR
assigned Rodriguez two criminal history points for the prior alien
smuggling conviction, see id. § 4A1.1(b), and another two points
because he had committed the unlawful reentry offense while on
supervised release, see id. § 4A1.1(d). That yielded a Criminal
History Category of III, which, when combined with the offense
level of twenty-one, resulted in a guideline sentencing range of
forty-six to fifty-seven months. On May 10, 2011, the district
court imposed a forty-six-month sentence and three years of
supervised release.
II. Discussion
We review Rodriguez’s challenge to that sentence for
procedural and substantive reasonableness. See, e.g., United
States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012). We begin by
determining whether the district court committed any procedural
errors, “such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain
the chosen sentence--including an explanation for any deviation
from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). Our overall review of the district court’s sentencing
procedure is for abuse of discretion, but we review the court’s
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interpretation of the sentencing guidelines de novo and its factual
findings for clear error. See, e.g., Leahy, 668 F.3d at 21. If we
determine that the district court followed the correct procedure,
we will uphold the sentence “unless it ‘falls outside the expansive
boundaries’ of the universe of reasonable sentences.” United
States v. Zapata, 589 F.3d 475, 486 (1st Cir. 2009) (quoting United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).
A. Procedural reasonableness
Rodriguez essentially raises three claims of procedural
error, all predicated upon the court’s decision to apply section
2L1.2(b)(1)(A)(vii) of the federal sentencing guidelines, which
recommends a sixteen-level enhancement “[i]f the defendant
previously was deported, or unlawfully remained in the United
States, after . . . a conviction for a felony that is . . . an
alien smuggling offense.” U.S.S.G. § 2L1.2(b)(1)(A)(vii).
Rodriguez’s first argument is that the district court
treated section 2L1.2(b)(1)(A)(vii) as mandatory, or at the very
least as presumptively reasonable, in violation of Gall, 552 U.S.
38, and United States v. Booker, 543 U.S. 220 (2005). The record
belies that claim. The court gave Rodriguez’s counsel ample
opportunity to press his arguments and made a variety of statements
that indicated a clear awareness that it was not bound by the
guideline. For example, the court asked Rodriguez’s counsel to
explain why “the 16 points should not be considered, even
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advisory?” (emphasis added). The court also said things like “I
think that [Rodriguez] should be treated like an alien smuggler,
and the 16 points should be added,” and “We’re going to [apply the
enhancement] . . . I’m sorry,” and “I am going to grant the 16
points.” As we read the sentencing transcript, the court
understood its discretion to depart or vary from the guideline but
felt that the guideline was reasonable in this particular case.
Rodriguez’s second (and related) claim is that the
district court specifically failed to acknowledge its discretion to
disagree with section 2L1.2(b)(1)(A)(vii)’s sixteen-level
enhancement on policy grounds. Before the district court,
Rodriguez did make a somewhat cursory argument that section
2L1.2(b)(1)(A)(vii) was not the product of empirical research by
the United States Sentencing Commission and that the court
therefore should not follow it pursuant to Kimbrough v. United
States, 552 U.S. 85 (2007), which “makes manifest that sentencing
courts possess sufficient discretion under section 3553(a) to
consider requests for variant sentences premised on disagreements
with the manner in which the sentencing guidelines operate,” United
States v. Rodríguez, 527 F.3d 221, 231 (1st Cir. 2008). See also
United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009) (“[A]fter
Kimbrough, a district court makes a procedural error when it fails
to recognize its discretion to vary from the guideline range based
on a categorical policy disagreement with a guideline.”). Section
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2L1.2 is not without its critics,2 but “the mere fact that a
sentencing court has the discretion to disagree with the guidelines
on policy grounds does not mean that it is required to do so.”
United States v. Ekasala, 596 F.3d 74, 76 (1st Cir. 2010) (internal
citation omitted); see also Stone, 575 F.3d at 90 (“[T]he district
court’s broad discretion obviously includes the power to agree with
the guidelines.”). The district court here made no “clear
statement showing Kimbrough error”; in other words, the court never
expressed a belief that it lacked discretion to disagree with the
guideline on policy grounds. Stone, 575 F.3d at 91. We therefore
“review the record as a whole to assess the district court’s
sentencing process.” Id.Though Rodriguez put little emphasis on his Kimbrough
argument at the sentencing hearing,3 the record indicates that the
district court considered his argument and instead chose to agree
with the guideline, which was within its discretion. Id. at 90.
The court articulated a clear belief that the sixteen-level
enhancement was proper not just as a general policy matter but also
in Rodriguez’s particular case. For example, when Rodriguez’s
2
See, e.g., United States v. Torres-Gomez, No. 11–CR–237,
2012 WL 1424705, at *3 (E.D. Wis. Apr. 24, 2012) (collecting
cases).
3
As discussed below, Rodriguez’s primary argument at
sentencing was that the district court should ignore the guideline
entirely, or grant a downward departure, because Rodriguez had not
committed the prior alien smuggling offense for profit.
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counsel complained that section 2L1.2(b)(1)(A)(vii) was “really
stiff,” the court responded, “It’s meant to be stiff.” When
Rodriguez’s counsel suggested that the enhancement overstated the
seriousness of Rodriguez’s prior offense, the court responded, “I
don’t think so. I think that what happened before was pretty
serious.” We find no evidence that the district court failed to
appreciate its Kimbrough power. Stone, 575 F.3d at 90-93.
Rodriguez’s third broad claim of procedural error is that
the district court failed to follow the strictures of 18 U.S.C.
§ 3553 in imposing his forty-six-month sentence. Specifically, he
argues that the court did not offer an adequate explanation for his
sentence or consider non-frivolous arguments in favor of a downward
departure.
We begin with the court’s explanation of Rodriguez’s
sentence, which, while not a model of thoroughness, was adequate.
The court described the prior alien smuggling offense as “pretty
serious,” emphasized that Rodriguez had been given what the court
considered “a very light sentence” for that offense, and expressed
particular concern about the fact that, when Rodriguez unlawfully
reentered the United States in 2010, he was still on supervised
release for the 2008 offense, which the court viewed as “another
confirmation of the fact that you have little respect for the law.”
The court ultimately imposed a sentence at the bottom of the
guideline range, describing that as “the fair thing to do,” but
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emphasized that the “case would have easily, easily allowed for a
57 month sentence,” at the top of the range. Particularly where a
defendant receives a sentence within the guideline range, as was
the case here, the district court’s explanation of the sentence
need not “be precise to the point of pedantry,” United States v.
Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006), and “brevity is
not to be confused with inattention,” id. at 42. See also Rita v.
United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge decides
simply to apply the Guidelines to a particular case, doing so will
not necessarily require lengthy explanation.”). The fact that the
district court did not explicitly mention the 18 U.S.C. § 3553(a)
sentencing factors is not a ground for reversal, since the court
clearly considered those factors and provided an adequate rationale
for the sentence. See, e.g., United States v. Brandao, 539 F.3d
44, 65 (1st Cir. 2008).
The district court’s above-described findings at
sentencing also demonstrate that the court considered Rodriguez’s
arguments in favor of a downward departure under Application Note
7 to section 2L1.2, which provides that “[t]here may be cases in
which the applicable offense level substantially overstates or
understates the seriousness of a prior conviction” and that a
departure might be warranted in such an instance. U.S.S.G. § 2L1.2
cmt. n.7. The court spent a good deal of time listening to
Rodriguez’s arguments in favor of a downward departure but
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ultimately denied the request, concluding: “I see the point, but I
don’t see anything in this record that would allow me to say that
what happened previously overstates the seriousness of what indeed
happened.” The court expressed its belief that Rodriguez’s prior
crime was a serious one, that he had not been adequately punished
for it, that he had demonstrated “little respect for the law” by
unlawfully reentering while on supervised release, and that section
2L1.2(b)(1)(A)(vii)’s “stiff” punishment was appropriate. The
court’s discretionary decision not to depart was reasonable.
United States v. Battle, 637 F.3d 44, 51-52 (1st Cir. 2011).
We pause, however, to note one misstep on the district
court’s part. Rodriguez’s main argument in favor of a downward
departure was that he had not committed the 2008 alien smuggling
offense for profit and thus that his offense level substantially
overstated the seriousness of his prior conviction.4 See U.S.S.G.
4
Rodriguez also argued below that the district court should
not follow section 2L1.2(b)(1)(A)(vii) in the first place, because
the United States Sentencing Commission did not intend for the
sixteen-level enhancement to apply to individuals who commit an
alien smuggling offense not-for-profit. Rodriguez has not squarely
raised that argument on appeal, so we need not address it here, but
we note that the plain language of the guideline does not make such
a distinction. Though a defendant who has committed an alien
smuggling offense “other than for profit” receives a three-level
reduction in his base offense level under U.S.S.G. § 2L1.1(b)(1),
he does not appear to be eligible for any special treatment if he
later unlawfully reenters the country and finds himself subject to
section 2L1.2(b)(1)(A)(vii). Section 2L1.2(b)(1)(A)(vii) directs
the district court to apply the sixteen-level enhancement if the
defendant was previously convicted of any alien smuggling offense
that was not committed for the purpose of assisting a spouse,
child, or parent. See id. § 2L1.2(b)(1)(A)(vii) (prescribing a
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§ 2L1.2 cmt. n.7. The court responded, in part, by rejecting the
mere possibility that Rodriguez might not have been paid for his
role in the alien smuggling operation, repeatedly making statements
like, “Money’s always involved when you have these ventures.” The
court should not have made such an assumption, well-founded though
it may have been, especially given that Rodriguez had submitted the
sworn statements prepared by DHS in support of his claims that he
had not committed the offense for profit, that multiple individuals
had taken turns operating the vessel, and that he and the other
passengers had pooled their money to pay for the trip. The court
was free to find Rodriguez’s evidence insufficient,5 but it was not
appropriate for the court to seemingly disregard that evidence in
favor of generalizations about Rodriguez’s prior crime.
But we need not decide whether that misstep constituted
a “clear error,” see, e.g., Leahy, 668 F.3d at 21, or, in other
words, whether based “on the entirety of the evidence, we are left
with the definite and firm conviction that a mistake has been
sixteen-level increase for “an alien smuggling offense”); id. cmt.
n.1(B)(i) (describing an “alien smuggling offense” as having “the
meaning given that term in section 101(a)(43)(N) of the Immigration
and Nationality Act”); 8 U.S.C. § 1101(a)(43)(N) (defining the term
“aggravated felony” to include any alien smuggling offense
described in 8 U.S.C. §§ 1324(a)(1)(A) or (a)(2) “except . . . a
first offense for which the alien has affirmatively shown that the
alien committed the offense for the purpose of assisting, abetting,
or aiding only the alien’s spouse, child, or parent (and no other
individual) to violate a provision of this chapter”).
5
See supra note 1.
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committed,” United States v. Valdivia, 680 F.3d 33, 53 (1st Cir.
2012). Even assuming arguendo that a clear error occurred here,
there is no need for reversal, because there is no evidence that
the district court denied the downward departure or otherwise
formulated the sentence in reliance on its assumption that
Rodriguez had committed the alien smuggling offense for profit.
Rather, as discussed above, the record indicates that the court
chose the within-guideline sentence and denied the downward
departure based on Rodriguez’s recidivism and apparent lack of
respect for the law. Any error did not affect the district court’s
selection of the sentence and was therefore harmless. See, e.g.,
United States v. McGhee, 651 F.3d 153, 158 (1st Cir. 2011); cf.
United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010) (“[I]f
the judge makes incorrect findings but the record still supports
the end result, the error is harmless and no remand is needed.”).
B. Substantive reasonableness
Rodriguez’s final claim is that his sentence is
substantively unreasonable because the district court reached it by
applying section 2L1.2(b)(1)(A)(vii), which Rodriguez alleges was
developed without a proper empirical basis, treats broad classes of
crimes the same way, produces unwarranted sentencing disparities,
and is unduly harsh. That is a Kimbrough argument dressed up as a
claim of substantive unreasonableness, and we will not consider it.
Rodriguez presented his Kimbrough argument to the district court,
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and the court agreed with the guideline, which was within its
discretion. Stone, 575 F.3d at 90. Kimbrough gives district
courts the leeway to disagree with a sentencing guideline on policy
grounds should they so choose; it “does not force district or
appellate courts into a piece-by-piece analysis of the empirical
grounding behind each part of the sentencing guidelines.” United
States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009); cf. United
States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (holding that
“the discretion to vary under Kimbrough is not tantamount to an
obligation to do so”).
To be sure, section 2L1.2(b)(1)(A)(vii)’s enhancement
resulted in a lengthy sentence for Rodriguez, particularly given
that he had received only ten months for the prior alien smuggling
offense and that there was some evidence that he had not committed
that offense for profit. Sitting as a court of first instance, we
might not have imposed the same sentence, but that is not a basis
for reversal. United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st
Cir. 2011). The district court followed the correct sentencing
procedure, and the within-guideline sentence that the court
ultimately chose was not “outside the expansive boundaries of the
universe of reasonable sentences.” Zapata, 589 F.3d at 486.
III. Conclusion
Finding no reversible error, we affirm.
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