United States v. De Jesus-Gomez , 263 F. App'x 707 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
February 5, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-2086
MAGDALENO DE JESUS-GOMEZ, (D.C. No. CR-05-2198-WPJ)
(D. New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and McCONNELL, 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, submitted without oral argument.
Magdaleno De Jesus-Gomez appeals his sentence of forty-six months’
imprisonment for illegally reentering the United States after having been
*
This order and judgment is not binding precedent, except under the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.
convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2),
and (b)(2). The sentence was at the bottom of the range calculated under the
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). De Jesus-
Gomez argues that the district court erred in applying a presumption of
reasonableness to the sentence calculated under the Guidelines. He also contends
that his sentence was substantively unreasonable in light of the factors listed in 18
U.S.C. § 3553(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and
remand with directions to vacate De Jesus-Gomez’s sentence and resentence.
I.
De Jesus-Gomez is thirty-nine years old and a citizen of Mexico. In 1996,
he pled guilty in Colorado state court to sexual assault on a child and was
sentenced to eight years in prison. After serving his sentence, De Jesus-Gomez
was deported to Mexico.
On March 31, 2005, United States Border Patrol agents apprehended De
Jesus-Gomez near Columbus, New Mexico. He subsequently pled guilty to
reentry of a deported alien previously convicted of an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). The probation office then
prepared a presentence report in advance of sentencing. It recommended a base
offense level of eight, pursuant to U.S.S.G. § 2L1.2(a), as well as a sixteen-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because of his previous conviction
for sexual assault on a child, which the presentence report concluded was “a
2
crime of violence.” It also recommended a three-level reduction for acceptance
of responsibility, pursuant to U.S.S.G. § 3E1.1. After these adjustments, De
Jesus-Gomez’s final offense level was twenty-one, which, when combined with a
criminal history category of III, resulted in a Guidelines sentencing range of
forty-six to fifty-seven months’ imprisonment. See U.S.S.G. § 4A1.1; id. ch. 5,
pt. A. 1
On February 8, 2007, De Jesus-Gomez filed a sentencing memorandum, in
which he requested a sentence of time served. 2 He explained that he fled southern
Mexico because of a contentious land dispute that had resulted in threats to his
life, and he fled to the United States to avoid the poverty in northern Mexico.
The government filed a response on February 12, 2007, arguing that De Jesus-
Gomez’s circumstances did not merit a departure or variance, and urging the
district court to adhere to the Guidelines range. In its argument, the government
contended that “the applicable guideline range has a presumption of
reasonableness for the district court, and is not just an appellate review standard.”
Government Response at 2. On appeal, the government admits that its argument
was incorrect.
At the sentencing hearing on March 6, 2007, the district court adopted the
1
De Jesus-Gomez conceded at the sentencing hearing—and does not
contest on appeal—that this was the proper calculation under the Guidelines.
2
By the time of the sentencing hearing, De Jesus-Gomez had served
approximately twenty-four months’ imprisonment.
3
presentence report without change. The district court found no basis for a
departure under the Guidelines, or a variance under the factors listed in 18 U.S.C.
§ 3553(a). The district court stated that “a sentence within a correctly calculated
guideline range is a presumptively reasonable sentence,” and that “[a] defendant
may rebut the presumption of reasonableness by showing that the sentence is
unreasonable when viewed against the factors delineated in 18 U.S.C. 3553(a).”
Sentencing Transcript at 11. In analyzing De Jesus-Gomez’s sentence under
those factors, the court explained that, under § 3553(a)(6), “the guideline sentence
. . . avoids unwarranted sentencing disparities among defendants with similar
records.” Id. Under § 3553(a)(1), moreover, the conviction for sexual assault on
a child was “a serious offense” and “was the reason for the 16-level increase.” Id.
at 12. Also, under § 3553(a)(2), the court concluded:
So the guideline sentence in this case, in my view, correctly reflects
the seriousness of the offense; that is, the illegal reentry into this
country after the defendant’s prior deportation for an aggravated
felony offense. The guideline sentence also will promote respect for
the law and provide just punishment for the offense. The guideline
sentence in this case, I will find, affords adequate deterrence to
criminal conduct and will also protect the public from further crimes
of the defendant.
Id. at 13. As for the problems De Jesus-Gomez faced in Mexico, the district court
“simply [did not] consider that a basis for granting a sentencing variance under
the sentencing guidelines.” Id. Finally, the district court explained that “the
presumption of reasonableness has not been overcome, and I will find that the
4
guideline sentence in this case is a reasonable sentence taking into account the
sentencing factors of 18 U.S.C. 3553(a).” Id. The court denied De Jesus-
Gomez’s request for a variance and sentenced him to forty-six months’
imprisonment.
II.
On appeal, De Jesus-Gomez claims that his sentence is both procedurally
and substantively unreasonable. “When reviewing a sentencing challenge, we
evaluate sentences imposed by the district court for reasonableness.” United
States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007) (citing United States v.
Booker, 543 U.S. 220 (2005); United States v. Kristl, 437 F.3d 1050, 1053 (10th
Cir. 2006)); see also Gall v. United States, --- U.S. ---, 128 S. Ct. 586, 594 (2007)
(“[A]ppellate review of sentencing decisions is limited to determining whether
they are ‘reasonable.’”). This inquiry includes both procedural and substantive
components, and we “review the sentence under an abuse-of-discretion standard.”
Gall, 128 S. Ct. at 597. “Procedural reasonableness involves using the proper
method to calculate the sentence. 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).” Conlan, 500 F.3d at 1169(citations omitted).
5
Procedural reasonableness
De Jesus-Gomez first contends that his sentence is procedurally
unreasonable because the district court erroneously believed that the
“presumption of reasonableness” applied at the district court level. The
government correctly concedes that the district court erred and that the
presumption of reasonableness only applies at the appellate level. See Gall, 128
S. Ct. at 596-97; Rita v. United States, --- U.S. ---, 127 S. Ct. 2456, 2464-65
(2007); United States v. Arrevalo-Olvera, 495 F.3d 1211, 1213 (10th Cir. 2007);
United States v. Begay, 470 F.3d 964, 975-76 (10th Cir. 2006). The government
argues, however, that the district court’s procedural error was harmless.
The government concedes that our harmless error standard applies here, so
we will review the district court’s procedural error under that standard. United
States v. Montgomery, 439 F.3d 1260, 1263 n.3 (10th Cir. 2006) (reviewing for
harmless error where “both parties agree the harmless error standard applies,”
even though we might otherwise have reviewed for plain error). But see United
States v. Brown, 316 F.3d 1151, 1155 n.1 (10th Cir. 2003) (reviewing for plain
error even though “[t]he government argues that we should apply harmless error
analysis rather than plain error analysis”). “Harmless error is that which did not
affect the district court’s selection of the sentence imposed.” Montgomery, 439
F.3d at 1263. The government has the burden of proving that the district court’s
sentencing error was harmless. See id.6
The government has not shown that the district court’s error was harmless.
De Jesus-Gomez correctly notes that, in several cases where the district court
erroneously applied a presumption of reasonableness and then sentenced a
defendant at the bottom of the Guidelines range, we have reversed and remanded
for resentencing. See, e.g., Conlan, 500 F.3d at 1170 (“Mr. Conlan was sentenced
at the very bottom of his advisory guideline range, a sign we have taken in the
past to indicate that the court may have done something differently had it not felt
mistakenly bound by the guidelines.”); Begay, 470 F.3d at 976-77 (“But the
government fails to argue harmless error. Nor could it do so successfully. The
sentence imposed was at the bottom of the Guidelines range. We cannot say
whether the district court would have imposed the same sentence if it had
properly understood the post-Booker legal landscape.”); see also Arrevalo-Olvera,
495 F.3d at 1214 (“The district court’s imposition of a sentence above the low
end of the guideline range also makes Arrevalo-Olvera’s case distinguishable
from Begay.”). This case is no different. The district court, after erroneously
applying a presumption of reasonableness, and further stating that De Jesus-
Gomez had not overcome that presumption, imposed a sentence at the very
bottom of the Guidelines range. Under our precedent, “remand is required so that
the district court can determine whether it should impose a lower sentence, even
though a sentence within the Guidelines range may indeed be reasonable.”
7
Begay, 470 F.3d at 976. We therefore REMAND with directions to vacate De
Jesus-Gomez’s sentence and resentence. 3
Entered for the Court
Mary Beck Briscoe
Circuit Judge
3
Because we are remanding De Jesus-Gomez’s sentence for resentencing
based on procedural error, we need not address his contention that his sentence is
substantively unreasonable. Conlan, 500 F.3d at 1170 n.*.
8