United States v. Rodriguez Escobedo , 427 F. App'x 676 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 6, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-1495
v. (D. Colorado)
JUAN CARLOS RODRIGUEZ (D.C. No. 1:10-CR-00217-LTB-1)
ESCOBEDO, also known as Christopher
Alvaro Suazo, also known as Juan Eduardo
Perez, also known as Carlos Navarro, also
known as Juan Carlos Escalante-Martinez,
also known as Juan Carlos Esparza, also
known as John Doe, also known as
Christophe Alvado Suaza, also known as
Christophe Suavecito, also known as
Christophe Alvado Smooth, also known as
Eduardo Silva-Perez, also known as
Alejandro Andres Ortiz, also known as
Andrez Soto, also known as Rogelio Solis,
also known as Juan Rodriguez-Esc, also
known as Juan Carlos Escalande, also
known as Juan Rodriguez, also known as
Andres Soto, also known as Christopher
Smooth, also known as Juan Martinez
Escala Esparza, also known as Juan Carlos
Martinez, also known as Juan C.
Rodriguez-Escobledo, also known as J.
Carlos Rodriguez-Escobledo-Rodriguez,
Defendant - Appellant.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent except under the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,
(continued...)
Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.
I. Introduction
Appellant Juan Carlos Rodriguez Escobedo pleaded guilty to one count of
illegal reentry after deportation subsequent to a felony conviction, in violation of
8 U.S.C. § 1326(a) and (b)(1). The district court sentenced him to thirty months’
imprisonment, the high end of the advisory guidelines range. Escobedo now
appeals the sentence imposed by the district court, arguing it is substantively
unreasonable because the court failed to properly weigh the factors set forth in 18
U.S.C. § 3553(a). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm Escobedo’s sentence.
II. Background
In 2010, while incarcerated in the Arapahoe County Jail on unrelated
charges, Escobedo was referred to Immigration and Customs Enforcement
(“ICE”). After ICE confirmed Escobedo had been deported to Mexico in 2009
and had not received permission to reenter the United States, a detainer was filed
to prevent his release from incarceration. Escobedo was subsequently charged
*
(...continued)
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
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with the federal crime of illegal reentry by a deported alien previously convicted
of a felony. See 8 U.S.C. § 1326(a), (b)(1). He entered into a written plea
agreement with the Government, pleading guilty to the single charge contained in
the indictment.
Subsequent to the guilty plea, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”). The PSR calculated Escobedo’s base
offense level at eight and increased it four levels pursuant to USSG
§ 2L1.2(b)(1)(D) because Escobedo had a prior felony conviction. The offense
level was then reduced by two levels for acceptance of responsibility pursuant to
USSG § 3E1.1, yielding a total offense level of ten. Escobedo’s Category VI
criminal history was based on five prior felony convictions and eight
misdemeanor convictions. 1 His combined offense level and criminal history
category resulted in an advisory guidelines sentencing range of twenty-four to
thirty months’ imprisonment.
Escobedo filed a sentencing statement, asserting that a sentence at the
bottom of the advisory guidelines range was appropriate based on an
individualized assessment of the factors set forth in 18 U.S.C. § 3553(a).
Escobedo based his argument on his history and characteristics; the nature of the
offense of conviction; and the seriousness of the crime, the need to provide
1
The PSR also noted that Escobedo had previously been deported or
removed four times.
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adequate deterrence, and the need to protect the public. See 18 U.S.C. § 3553(a).
With respect to his history and characteristics, Escobedo took the position they
warranted a lower sentence because he first came to the United States when he
was sixteen years old. During the time he lived in Colorado, he supported his
wife and four children by working in the construction industry and refurbishing
vehicles. Escobedo also asserted his offense was less serious because he illegally
reentered the country in order to support his family and escape gang violence in
Mexico. Finally, he argued he had never previously served a sentence longer than
sixteen months and, therefore, a sentence of twenty-four months for the offense of
conviction would represent “a graduated approach to sentencing, which in turn
effectuates deterrence.”
At the sentencing hearing, the district court considered Escobedo’s
arguments but concluded they did not support a sentence at the bottom of the
advisory guidelines range. The court acknowledged the violence in Mexico but
reiterated that Escobedo was prohibited from fleeing it by illegally reentering the
United States. The district court then expressed concern that Escobedo had
twenty-two aliases, had been removed or deported four times, had eight
misdemeanor convictions, and had previously been convicted of five felonies,
three of which were for possession of a controlled substance and one of which
had indications of drug trafficking. The court interpreted this history, coupled
with Escobedo’s assertion that he reentered the United States to provide for his
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family, as indicating Escobedo was likely to again return to the United States
illegally and continue to engage in criminal conduct. The court noted that
Escobedo could use his skills at repairing automobiles to find employment in
Mexico, undermining his argument that he needed to return to the United States to
support his family. Finally, the district court characterized Escobedo’s argument
that he has never served more than sixteen months in prison as “curious.” The
court found the short sentences did not excuse Escobedo’s criminal behavior and,
if anything, indicated he “should have served more jail time in the past.” In
short, the district court concluded that the reasons Escobedo relied on as support
for a lower sentence, in fact, supported the imposition of a higher sentence.
Based on its consideration of the § 3553(a) factors, the district court
determined that a sentence at the top of the advisory guidelines range was
appropriate and sentenced Escobedo to thirty months’ imprisonment.
III. Discussion
Escobedo challenges only the substantive reasonableness of his sentence, a
matter this court reviews under a deferential abuse of discretion standard. Rita v.
United States, 551 U.S. 338, 351 (2007). “Substantive reasonableness involves
whether the length of the sentence is reasonable given all the circumstances of the
case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v.
Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007). Those factors “include the nature
of the offense and characteristics of the defendant, as well as the need for the
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sentence to reflect the seriousness of the crime, to provide adequate deterrence,
[and] to protect the public.” United States v. Kristl, 437 F.3d 1050, 1053 (10th
Cir. 2006). Because Escobedo’s sentence falls within a properly calculated
guidelines range, it is entitled to a rebuttable presumption of substantive
reasonableness. Id. at 1054. On appeal, Escobedo bears the burden of
demonstrating his sentence is outside the range of sentences the record can “fairly
support.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).
Escobedo asserts his sentence is unreasonable in light of the § 3553(a)
factors because the district court placed too much weight on his criminal history
and not enough on his personal characteristics. See United States v. Sayad, 589
F.3d 1110, 1118 (10th Cir. 2009) (“[S]ubstantive reasonableness review broadly
looks to whether the district court abused its discretion in weighing permissible
§ 3553(a) factors in light of the totality of the circumstances.” (quotation
omitted)). We discern no error in the district court’s analysis of the § 3553(a)
factors. The court considered each one, disagreeing with Escobedo over whether
his personal history and the nature of the offense supported a sentence at the low
end of the advisory guidelines range. The record reveals the district court did not
fail to weigh the factors, as Escobedo argues. Instead, the court concluded the
factors weighed in favor of a higher sentence, not a lower sentence.
Having reviewed and considered Escobedo’s appellate argument, we
conclude he has failed to rebut the presumption his sentence is reasonable. The
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district court fully considered the arguments Escobedo presented in support of his
request for a bottom-of-the-range sentence. It weighed the factors and imposed a
sentence at the top of the correctly calculated advisory guidelines range.
IV. Conclusion
The sentence imposed by the district court is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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