United States v. Sanchez , 536 F. App'x 827 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
September 27, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 13-2050
v. (D.Ct. No. 2:12-CR-02315-JGC-1)
(D. N.M.)
PAUL SANCHEZ,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
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.
Appellant Paul Sanchez pled guilty to one count of escape from government
custody in violation of 18 U.S.C. § 751(a). He now appeals his sentence on
*
This order and judgment is not binding precedent except under the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.
grounds the district court improperly applied a five-level sentencing enhancement
for making a threat of force against another after he escaped a halfway house. In
support of his argument, he claims the district court inappropriately relied on
hearsay in determining he made such a threat and improperly considered his
escape to be a continuing offense. We exercise jurisdiction pursuant to 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Sanchez’s sentence.
I. Factual and Procedural Background
On January 9, 2006, Mr. Sanchez received a seventy-two-month sentence
for distribution of cocaine. After serving six years in a federal prison, authorities
transferred him to a halfway house in Las Cruces, New Mexico, to serve out his
sentence. On March 24, 2012, Mr. Sanchez signed out for work but did not
return. Two days later, United States Marshals interviewed his ex-girlfriend, Ms.
Smith, who stated Mr. Sanchez contacted her, stating he was drunk and asking for
a ride to a local motel to sleep it off; she explained she drove him there but had
not since heard from him. At the motel, the marshals learned Ms. Smith had paid
for his room and Mr. Sanchez left the next day. On further inquiry, Ms. Smith
admitted she paid for the room but she had not told them more because she was
afraid of Mr. Sanchez hurting her. She then played for them a voice mail message
from Mr. Sanchez, telling her to help him leave town or he would “burn her shop
down.” The parties agree this message came two days after she dropped Mr.
Sanchez at the motel. The marshals arrested Mr. Sanchez several weeks later in
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Carlsbad, New Mexico.
Following the district court’s acceptance of Mr. Sanchez’s guilty plea
agreement, a probation officer prepared a presentence report, calculating his
sentence under the applicable 2012 United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”). The probation officer set Mr. Sanchez’s base
offense level at 13, pursuant to U.S.S.G. § 2P1.1, for his escape offense and
increased it five levels, pursuant to U.S.S.G. § 2P1.1(b)(1), for his threat of force
against Ms. Smith. He then reduced the five-level offense increase by four levels
under U.S.S.G. § 2P1.1(b)(3), because his escape involved his leaving a non-
secure halfway house, and further reduced his offense level by two levels for
acceptance of responsibility, resulting in a total offense level of 12. An offense
level of 12, together with a criminal history category of VI, resulted in a
recommended Guidelines range of thirty to thirty-seven months imprisonment.
Mr. Sanchez filed a sentencing memorandum, objecting only to the five-
level increase in his offense level in conjunction with § 2P1.1(b)(1) for threat of
force during his escape, claiming he never threatened Ms. Smith and she
exaggerated the truth when speaking to the authorities. He also requested a
variant sentence of twelve months, contending his criminal history over-
represented the seriousness of his past criminal conduct and pointing to his
personal history and characteristics, including his unstable childhood.
At sentencing, Mr. Sanchez’s counsel again objected to the five-level
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offense increase but explained an evidentiary hearing might not be warranted,
stating, “[w]hat I can proffer to the Court is that on the 24th of March of last year
Ms. Smith gave a ride to Mr. Sanchez away from the ... Halfway House.
Subsequent to that time, Ms. Smith received a recording in her voice mail of a
threatening nature from Mr. Sanchez.” His counsel then argued the five-level
increase should not apply for this threat because he did not make the threat to
achieve escape, which had already occurred when he left the halfway house, and
because he did not threaten someone at the halfway house to aid in his escape.
In overruling the objection, the district court determined “escape” is a
continuing offense; Mr. Sanchez clearly threatened Ms. Smith; and U.S.S.G.
§ 2P1.1(b)(1) covers any threat made during an ongoing escape, including the one
he made to gain her assistance while at large. After hearing Mr. Sanchez’s
allocution, the district court imposed a below-Guidelines-range sentence of
twenty months incarceration in conjunction with the 18 U.S.C. § 3553(a)
sentencing factors.
II. Discussion
In his appeal, Mr. Sanchez continues to claim the district court improperly
applied a five-level sentencing enhancement under U.S.S.G. § 2P1.1(b)(1) for
making a threat of force against another during his escape. In support, he
continues to argue the district court improperly considered his escape to be a
continuing offense and, for the first time on appeal, contends it inappropriately
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relied on hearsay contained in the presentence report, which included the erased
voice mail tape and the statements of marshals on its content who were not
available to testify at the sentencing hearing. The government opposes the
appeal.
We review a sentence for reasonableness, giving deference to the district
court under an abuse of discretion standard. See United States v. Smart, 518 F.3d
800, 802-03, 805 (10th Cir. 2008). “Our appellate review for reasonableness
includes both a procedural component ... as well as a substantive component,
which relates to the length of the resulting sentence.” Id. at 803. Procedural
reasonableness addresses, in part, whether the district court incorrectly calculated
the Guidelines sentence and relied on clearly erroneous facts. See United States
v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). In determining whether the
district court properly calculated a defendant’s sentence, we generally review its
legal conclusions de novo and its factual findings for clear error. See United
States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
Applying these principles, we must determine if the district court
improperly calculated Mr. Sanchez’s sentence by applying the five-level
enhancement under § 2P1.1(b)(1), thereby affecting the calculation of his
Guidelines range and resulting in a procedurally unreasonable sentence. Section
2P1.1, titled “Escape, Instigating or Assisting Escape,” recommends an offense
level increase of five “[i]f the use or the threat of force against any person was
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involved.” U.S.S.G. § 2P1.1(b)(1). Both we and the Supreme Court have held
“escape” is a continuing offense until the escapee is returned to custody. See
United States v. Bailey, 444 U.S. 394, 413 (1980); United States v. Brown, 314
F.3d 1216, 1224 (10th Cir. 2003). As such, Mr. Sanchez was still in the course of
committing the offense of escape when he contacted and threatened Ms. Smith.
This is particularly applicable, not only because escape is considered a continuing
offense while Mr. Sanchez remained at large, but because, in this instance, he not
only asked Ms. Smith to help him leave the halfway house but called her again to
help him continue his escape in leaving the city of Las Cruces, where he must
have known authorities were looking for him. As a result, our de novo review
establishes the district court made the proper legal conclusion with respect to the
ongoing nature of Mr. Sanchez’s escape.
As to the hearsay evidence supporting Mr. Sanchez’s threat of force against
Ms. Smith, we note Mr. Sanchez and his counsel did not object to such hearsay
evidence as contained in the presentence report nor make a contemporaneous
objection after the district court discussed the hearsay nature of the evidence
supporting the threat of force enhancement. While we review a district court’s
legal conclusions de novo and its factual findings for clear error, see Kristl, 437
F.3d at 1054, we review for plain error when, like here, a defendant fails to raise
an argument in the district court, see United State v. Ventura-Perez, 666 F.3d 670,
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674 (10th Cir. 2012). 1
However, regardless of whether we apply clear or plain error review, Mr.
Sanchez cannot prevail. First, the circumstances surrounding the voice mail,
including the marshals’ verification of the threat to Ms. Smith after listening to
the recording, were in the presentence report, to which Mr. Sanchez did not
object. Further, at the sentencing hearing, his counsel suggested an evidentiary
hearing was unnecessary based on a proffer that two days after giving Mr.
Sanchez a ride to the motel, “Ms. Smith received a recording in her voice mail of
a threatening nature from Mr. Sanchez.” A sentencing court may rely on a wide
array of relevant information, including hearsay evidence containing a minimal
indicia of reliability, see United States v. Browning, 61 F.3d 752, 755 (10th Cir.
1995), as well as un-objected-to facts in a presentence report, see United States v.
Delossantos, 680 F.3d 1217, 1219 n.1 (10th Cir. 2012). Accordingly, while the
threat on the erased voice mail, as verified by unavailable marshals, may
constitute hearsay evidence, Mr. Sanchez’s failure to object to such evidence in
the presentence report, together with his counsel’s verification such a threat was
made, gives it the requisite indicia of reliability for the district court to rely on it
for the purpose of applying the five-level enhancement. As a result, the district
1
To establish plain error, the defendant has the burden of establishing: (1)
an error occurred; (2) that was plain; and (3) which affected his substantial rights.
Id. If these conditions are met, he must show the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings. See Ventura-
Perez, 666 F.3d at 674.
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court reasonably concluded Mr. Sanchez made a threat of force during his
ongoing or continuing escape, supporting a five-level enhancement under
U.S.S.G. § 2P1.1(b)(1). Because the district court properly calculated Mr.
Sanchez’s sentence and sentenced him within the applicable Guidelines range, his
sentence is presumptively reasonable, and he has not otherwise rebutted this
presumption by demonstrating his sentence is unreasonable in light of the
sentencing factors in § 3553(a). See Kristl, 437 F.3d at 1053-54.
III. Conclusion
For these reasons, we AFFIRM Mr. Sanchez’s sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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