United States v. Vigil ( 2008 )


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  •                                                                         FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                      December 8, 2008
                                    TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
    
     UNITED STATES OF AMERICA,
    
                  Plaintiff - Appellee,
    
     v.                                                     No. 08-1038
                                                           (D. Colorado)
     ISAAC VIGIL,                                  (D.C. No. 01-CR-00192-LTB-1)
    
                  Defendant - Appellant.
    
    
                               ORDER AND JUDGMENT *
    
    
    Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
    
    
    
          After examining the briefs and appellate record, this panel has determined
    
    unanimously that oral argument would not materially assist in the determination
    
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    
    therefore ordered submitted without oral argument.
    
          Defendant Isaac Vigil appeals the district court’s written order of judgment
    
    and commitment. He argues the order fails to state the reasons for the district
    
    
    
          *
            This order and judgment is not binding precedent except under the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.
    court’s imposition of a sentence outside the range recommended by the federal
    
    sentencing guidelines and requests a correction of the order. Exercising
    
    jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM
    
    the sentence because the error does not meet the plain error standard and Vigil
    
    has not provided any prudential reason to remand in the absence of plain error.
    
                                       I. Background
    
          Vigil pleaded guilty in 2002 to one count of Possession of a Firearm by a
    
    Convicted Felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
    
    received a sentence of forty-eight months’ imprisonment followed by thirty-six
    
    months’ supervised release. After completing his prison term, Vigil began
    
    serving his term of supervised release. On May 14, 2007, Vigil admitted to five
    
    violations of the conditions of his supervised release. The district court declined
    
    to impose a prison sentence, choosing instead to modify the conditions of
    
    supervised release to include up to six months in a half-way house.
    
           Vigil subsequently fled from the half-way house and, in so doing, incurred
    
    two additional violations. On February 4, 2008, he admitted to those violations
    
    and the district court proceeded to sentence him to twenty months in prison with
    
    no supervised release. That sentence constituted a variance from the
    
    recommended sentence range of six to twelve months. U.S.S.G. § 7B1.4(a).
    
          Because the district court imposed a sentence outside the range set out in
    
    § 7B1.4(a), it was required to state its reasons for the imposition of the particular
    
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    sentence both in open court and in the written order of judgment and commitment.
    
    18 U.S.C. § 3553(c)(2); id. § 3553(a)(4)(B). The district court announced in open
    
    court its reasons for the variance: “I have a concern about risk to the public. And
    
    my concern is that if I sentence you simply within the [recommended range], it’s
    
    going to unduly depreciate the seriousness of your conduct and promote
    
    disrespect for the law.” The district court also announced that, in Vigil’s case,
    
    supervised release “just doesn’t work.” The written order of judgment and
    
    commitment, however, contained none of these reasons for the variance; indeed, it
    
    contained no reasons at all. Vigil did not ask the district court to correct the
    
    written order of judgment and commitment.
    
                                        II. Discussion
    
          Vigil does not contend his sentence is unreasonable despite its
    
    noncompliance with § 3553(c)(2). He is not requesting vacatur of the sentencing
    
    proceeding. Instead, he seeks a remand to the district court for the entry on the
    
    written order of judgment and commitment of the district court’s reasons for its
    
    variance from the guidelines recommendation.
    
          Vigil failed to raise this issue before the district court, and ordinarily such
    
    issues are reviewed for plain error. United States v. Mendoza, 
    543 F.3d 1186
    ,
    
    1190 (10th Cir. 2008). Under the plain error standard of review, the defendant
    
    must show: 1) error by the district court; 2) the error was plain; 3) the error
    
    affects his substantial rights; and, if those three elements are met, 4) the error
    
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    seriously affected the “fairness, integrity or public reputation of judicial
    
    proceedings.” United States v. Mozee, 
    405 F.3d 1082
    , 1090 (10th Cir. 2005)
    
    (quotation omitted). Here, however, Vigil urges the court to follow the Second
    
    Circuit, which has remanded such sentences for amendment even in the absence
    
    of plain error. See United States v. Verkhoglyad, 
    516 F.3d 122
    , 133–34 (2d. Cir.
    
    2008).
    
             Vigil asserts several general reasons why such sentences should be
    
    remanded as a matter of course. He argues written orders should be required to
    
    contain written reasons for sentence variances because such a requirement would
    
    provide reviewing courts, the Bureau of Prisons, and the Sentencing Commission
    
    with a convenient statement of the judge’s reasons for imposing a sentence
    
    outside of the guidelines. Mendoza, 543 F.3d at 1193; United States v. Jones, 
    460 F.3d 191
    , 197 (2d. Cir. 2006). This would obviously assist defendants seeking to
    
    overturn their sentences on appeal; it would also help the public learn why a
    
    defendant received a particular sentence and help “probation officers and prison
    
    officials in developing a program to meet the defendant’s needs.” United States
    
    v. Villafuerte, 
    502 F.3d 204
    , 210 (2d. Cir. 2007).
    
             In Mendoza, this court performed a plain error review in evaluating a
    
    government request for resentencing due to the district court’s noncompliance
    
    with § 3553(c)(2). 543 F.3d at 1191. The court left open the question presented
    
    here: whether remand would be appropriate in the absence of plain error when a
    
                                               -4-
    party seeks only the remedy of an amended written order and judgment. Id. at
    
    1197 n.9.
    
          In this case, Vigil has not provided any specific reasons why he
    
    individually would be affected by an amendment of the written order. He has not
    
    appealed the reasonableness of the sentence. The district court’s stated reasons
    
    for the variance were (1) Vigil’s risk to the public and (2) the district court’s
    
    conclusion that the guidelines sentence understated the seriousness of Vigil’s
    
    conduct and would promote disrespect for the law. Vigil has not suggested how
    
    the Bureau of Prisons might manage him differently if these reasons were present
    
    on his written order of judgment and confinement, and since he was not sentenced
    
    to supervised release, he cannot argue that such written reasons would affect his
    
    supervision.
    
          Since Vigil has not asserted the impairment of any individual interest, he
    
    surely cannot show the impairment of a substantial right necessary to establish
    
    plain error. Vigil urges the court to forego plain error review and remand the
    
    sentence for prudential reasons. The court need not decide whether a departure
    
    from the plain error standard is appropriate, however, because Vigil has not
    
    demonstrated he would benefit from remand, and therefore he has not shown a
    
    prudential reason for remand in this case.
    
    
    
    
                                              -5-
          Because the district court did not commit plain error and because Vigil has
    
    not demonstrated a prudential reason for remand in this case, the sentence is
    
    AFFIRMED.
    
                                          ENTERED FOR THE COURT
    
    
                                          Michael R. Murphy
                                          Circuit Judge
    
    
    
    
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