United States v. Velazquez-Aguilera ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 19, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-1107
v. (D.C. No. 1:18-CR-00327-RBJ-2)
(D. Colo.)
SERGIO VELAZQUEZ-AGUILERA,
a/k/a Luis Alberto Aguilera-Velazquez,
Defendant - Appellant,
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
Sergio Velazquez-Aguilera appeals the mandatory minimum 120-month prison
sentence imposed following his guilty plea for conspiracy to distribute or possess
with the intent to distribute fifty grams or more of methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. Exercising jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent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.
I
This appeal addresses two disputes that arose at Velazquez-Aguilera’s
sentencing: (1) whether the district court should apply the base offense level for
methamphetamine actual or methamphetamine mixture and (2) whether the district
court had authority to impose a sentence below the mandatory minimum.
The Sentencing Guideline for methamphetamine is based on the purity of the
substance and results in a ten-to-one ratio for crimes involving methamphetamine
actual versus methamphetamine mixture. See U.S. Sent’g Guidelines Manual
(U.S.S.G.) § 2D1.1(a)(5), (c) & Note (B) to Drug Quantity Table (U.S. Sent’g
Comm’n 2018). It sets a base offense level of thirty-four for crimes involving
between five and fifteen kilograms of methamphetamine mixture and a base offense
level of thirty-eight for crimes involving 4.5 kilograms or more of methamphetamine
actual. See id. § 2D1.1(c)(1), (3).
The Presentence Investigation Report recommended a base offense level of
thirty-eight because Velazquez-Aguilera was found to be in possession of over nine
kilograms of methamphetamine actual. Velazquez-Aguilera objected and asked the
court to use the lower base offense level for methamphetamine mixture instead of the
one for methamphetamine actual. He contended that the distinction between
methamphetamine mixture and methamphetamine actual is not based on empirical
evidence and results in unwarranted sentencing disparities between
methamphetamine and other equally harmful drugs. He cited to United States v.
Pereda, in which another judge in the same district used the base offense level for
2
methamphetamine mixture when sentencing a defendant convicted of a crime
involving methamphetamine actual based on these policy disagreements and disparity
concerns. No. 18-CR-00228-CMA, 2019 WL 463027, at *3-5 (D. Colo. Feb. 6,
2019). He argued that the court should not create within-district sentencing
disparities by using the higher base offense level.
The district court overruled Velazquez-Aguilera’s objection and used the
higher base offense level, noting that he pled guilty to a crime involving
methamphetamine actual. The court indicated it would not “lightly” depart from the
Sentencing Commission’s distinction between mixture and actual. It explained why
it disagreed with Velazquez-Aguilera’s argument for rejecting what it concluded was
a “valid” distinction and “applaud[ed]” the Guideline treatment of offenses involving
methamphetamine more harshly than those involving other drugs because it is “a
terribly addictive and destructive narcotic.” Finally, the court acknowledged Pereda,
but “respectfully disagree[d] with” the judge’s decision in that case and declined to
use the lower base offense level in determining Velazquez-Aguilera’s sentence.
After ruling on the parties’ other motions, including the government’s motion
for a downward departure under U.S.S.G. § 5K1.1, the court turned to Velazquez-
Aguilera’s request that the court impose a sentence below the statutory minimum
based on the sentencing factors set forth in 18 U.S.C. § 3553(a). Velazquez-Aguilera
argued the court had authority to grant a downward variance based on the § 3553(a)
factors before granting a § 5K1.1 departure to arrive at a below-minimum sentence.
Relying on United States v. A.B., 529 F.3d 1275, 1285 (10th Cir. 2008) and
3
18 U.S.C. § 3553(e), the court concluded it lacked authority to impose a sentence
below the mandatory minimum without the government’s agreement.
Velazquez-Aguilera filed this timely appeal arguing that his sentence is
procedurally and substantively unreasonable and that the district court erred in
concluding that it lacked authority under A.B. to impose a sentence below the
mandatory minimum.
II
The government argues that the appeal waiver in Velazquez-Aguilera’s plea
agreement bars him from appealing the substantive reasonableness of his sentence
and whether the district court had the authority to sentence him below the mandatory
minimum. Based on the plain language of the agreement, we conclude that
Velazquez-Aguilera did not waive his right to challenge the substantive
reasonableness of his sentence but did waive his right to appeal the mandatory
minimum issue.
When the government seeks to enforce a waiver, we must determine “whether
the disputed appeal falls within the scope of the waiver of appellate rights.” United
States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam).
“Waivers of appellate rights in a plea agreement are to be construed narrowly” and
“[i]n determining their scope, any ambiguity will be read against the government and
in favor of the defendant’s appellate rights.” United States v. Porter, 905 F.3d 1175,
1178-79 (10th Cir. 2018) (brackets and quotation omitted).
4
The appeal waiver in Velazquez-Aguilera’s plea agreement bars an appeal of
his sentence, including the manner in which it was determined. The agreement
carves out several exceptions to the appeal waiver, however, and one of them
provides that the government “agrees that, in the event the [district court] applies the
Base Offense Level applicable to methamphetamine actual, the defendant reserves
the right to appeal the issue to the 10th Circuit Court of Appeals.” The government
contends that this agreement permits Velazquez-Aguilera to challenge whether the
district court erred in deciding to use the higher base offense level, but not whether
doing so resulted in sentencing disparities that rendered his sentence substantively
unreasonable. We disagree. The reservation of rights does not parse which issues
related to the base-offense-level determination are appealable and which are not—it
simply states that Velazquez-Aguilera retained the right to appeal the court’s
application of the base offense level for methamphetamine actual. Because
Velazquez-Aguilera’s argument that application of the higher base offense level
resulted in unwarranted sentencing disparities necessarily stems from the court’s
base-offense-level determination, the reservation of rights covers that issue.
We agree with the government, however, that the appeal waiver bars
Velazquez-Aguilera’s challenge to the district court’s conclusion that it lacked
authority to impose a sentence below the mandatory minimum. That issue is not
related to the court’s base-offense-level determination, so it is not covered by the
reservation of rights, and Velazquez-Aguilera does not point to any other exception
5
to the appeal waiver that might apply to the mandatory-minimum issue. Accordingly,
the issue is barred, and we will not consider it.
III
Velazquez-Aguilera argues that his sentence was (1) procedurally
unreasonable because the district court used the higher base offense level in
calculating his applicable Guidelines range and (2) substantively unreasonable
because the district court thereby created unwarranted sentencing disparities,
including with another judge in the same district. See Pereda, 2019 WL 463027, at
*3-5.
We review the reasonableness of sentences for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). A court abuses its discretion when the
judgment rendered “is arbitrary, capricious, whimsical, or manifestly unreasonable.”
United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quotation omitted).
Procedural reasonableness involves “whether the district court committed any error
in calculating or explaining the sentence.” Id. “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 . . . § 3553(a).” United States v. Conlan, 500
F.3d 1167, 1169 (10th Cir. 2007).
Velazquez-Aguilera’s sentence was procedurally reasonable. Though the
district court had the discretion to vary from the Guidelines based on the policy
considerations raised by Velazquez-Aguilera, it was not required to do so. See
Kimbrough v. United States, 552 U.S. 85, 101 (2007) (Sentencing courts “may vary
6
from Guidelines ranges based solely on policy considerations, including
disagreements with the Guidelines” (brackets and quotation omitted)). As we held in
a similar context, “a sentence is not rendered unreasonable merely because of a
district court’s refusal to deviate from the advisory guideline range” based on
disagreements with the policies underlying a particular Guideline provision. United
States v. McCullough, 457 F.3d 1150, 1171 (10th Cir. 2006) (rejecting a challenge to
a sentence based on a policy disagreement with Guidelines’ distinction between crack
and powder cocaine); see also United States v. Wilken, 498 F.3d 1160, 1172 (10th Cir.
2007) (holding that unless Congress “remove[s] prior drug offenses as qualifiers for the
career offender provision,” a district court does not abuse its discretion by refusing to
deviate from the advisory guideline range based on a policy disagreement). Here, the
district court considered the policy considerations raised by Velazquez-Aguilera and
explained its reasons for declining to grant a downward variance. Velazquez-Aguilera’s
disagreement with the court’s discretionary decision does not establish that the court
“committed any error in calculating or explaining [its] sentence.” Friedman, 554 F.3d at
1307. Accordingly, Velazquez-Aguilera’s sentence was procedurally reasonable.
Velazquez-Aguilera’s sentence was also substantively reasonable, even though
it conflicted with the decision of another judge in the same district. Section
3553(a)(6) of the Guidelines directs sentencing courts to avoid “unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” However, the desire to avoid sentencing disparities is
only one of the factors courts must balance in arriving at an appropriate sentence,
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United States v. Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010), and “disparate
sentences are allowed where the disparity is explicable by the facts on the record.”
United States v. Davis, 437 F.3d 989, 997 (10th Cir. 2006) (quotation omitted). 1
Moreover, as noted above, though sentencing courts are allowed to deviate from the
Guidelines based on policy considerations, they are not required to do so simply
because other judges in the same district have. See United States v. Heim, 941 F.3d
338, 340-41 (8th Cir. 2019) (rejecting procedural and substantive reasonableness
challenges to district court’s decision not to grant a downward variance based on policy
disagreements with the methamphetamine actual/mixture disparity despite other judges in
same judicial district having done so); see also Kimbrough, 552 U.S. at 107-08(recognizing that while “uniformity remains an important goal of sentencing,” some
“variations among district courts” is inevitable). For these reasons, the district
court’s decision to follow the Guidelines rather than Pereda did not render the
imposed sentence substantively unreasonable.
IV
For the foregoing reasons, the sentence is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
Velazquez-Aguilera’s disparity argument is based solely on the
methamphetamine actual/mixture distinction. He does not attempt to establish that
he and any other defendant whose sentence was calculated using the lower base
offense level, including the defendant in Pereda, had similar factual circumstances.
8