United States v. Mancillas , 180 F. App'x 820 ( 2006 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    May 18, 2006
    TENTH CIRCUIT                    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                  No. 05-3328
    (D. Ct. No. 02-CR-10140-20-MLB)
    VICTOR MANCILLAS,                                             (D. Colo.)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.
    After examining the briefs and the appellate record, this three-judge panel has
    determined unanimously that oral argument would not be of material assistance 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.
    In 2002, Defendant-Appellant Victor Mancillas was convicted of various drug
    offenses stemming from his role in a twenty-seven person conspiracy. He now appeals
    his 97-month sentence on the ground that the District Court did not meaningfully consider
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. This court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    the sentencing factors set forth in 
    18 U.S.C. § 3553
    (a) when it imposed that particular
    sentence. We take jurisdiction under 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a) and
    AFFIRM.
    I. BACKGROUND
    Mr. Mancillas was charged by a superseding indictment with one count of
    conspiracy to distribute 500 grams or more of a substance containing a detectible amount
    of cocaine, see 
    21 U.S.C. § 846
    , one count of distribution and aiding and abetting the
    distribution of approximately 218 grams or more of a substance containing a detectible
    amount of methamphetamine, see 
    21 U.S.C. § 841
    (a)(1), and eight counts of using a
    communication facility to facilitate the distribution of a controlled substance, see 
    21 U.S.C. § 843
    (b). After a jury trial, Mr. Mancillas was convicted on all counts and
    sentenced to 120 months’ imprisonment based on the District Court’s conclusion that 
    21 U.S.C. § 841
    (b)(1)(A) mandated a ten-year minimum sentence. On appeal, we remanded
    Mr. Mancillas’s case for resentencing because he had not been convicted of distributing at
    least five kilograms of a substance containing cocaine or at least 500 grams of a substance
    containing methamphetamine as required to trigger application of the statutory ten-year
    minimum. United States v. Mancillas, 132 Fed. App’x 780 (10th Cir. 2005)
    (unpublished).
    At resentencing on August 15, 2005, the District Court considered the findings of
    the Presentence Investigation Report (“PSR”), which calculated the drug quantities
    attributable to Mr. Mancillas as 1,505.6 grams of a substance containing a detectible
    -2-
    amount of cocaine and 218.8 grams of a substance containing a detectible amount of
    methamphetamine. Because more than one drug was involved in the crime, the
    substances were converted to their marijuana equivalent, which the PSR calculated as
    738.72 kilograms. This resulted in a base offense level of 30, see United States
    Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) § 2D1.1(c)(5), which
    coupled with Mr. Mancillas’s criminal history category of I produced an advisory
    sentencing guideline range of 97–121 months.
    Mr. Mancillas objected to the PSR’s calculation of the drug quantities based on
    fact that the jury had attributed only 500 grams of cocaine to him. According to Mr.
    Mancillas, his base offense level should be 28, with a resulting advisory sentencing range
    of 78–97 months. Mr. Mancillas also filed a sentencing memorandum, arguing that a
    number of factors set forth in 
    18 U.S.C. § 3553
    (a)1 warranted a sentence at the bottom of
    this range.
    At sentencing, the District Court sustained Mr. Mancillas’s objection as to the
    1
    Under § 3553(a), a district court must consider:
    (1) the nature and circumstances of the offense and the history and
    characteristics of the defendant; (2) the need for the sentence imposed [] to
    reflect the seriousness of the offense, to promote respect for the law, and to
    provide just punishment for the offense; [] to afford adequate deterrence to
    criminal conduct; [] to protect the public from further crimes of the
    defendant; and [] to provide the defendant with needed educational or
    vocational training, medical care, or other correctional treatment in the most
    effective manner; (3) the kinds of sentences available . . . [and] (6) the need
    to avoid unwarranted sentence disparities among defendants with similar
    records who have been found guilty of similar conduct . . . .
    -3-
    assessment of the cocaine quantity but sentenced him to 97 months’ imprisonment—the
    top of the applicable advisory range. Explaining the sentence, the District Court stated,
    “Now, I’ve considered your case not only in light of the so-called advisory guidelines, but
    in light of the statutory factors. Mr. Hepperly [defense counsel] covered those in his
    submissions on your behalf.” The court then explained that co-conspirators who pleaded
    guilty received lesser sentences based on credit for acceptance of responsibility, see
    U.S.S.G. § 3E1.1, but that because Mr. Mancillas was convicted by a jury he was not
    entitled to such credit. The District Court concluded that:
    The Court determines that the presentence report as corrected to reflect Mr.
    Hepperly’s objection [relating to the cocaine quantity] is accurate and
    orders those findings to be incorporated into the following sentence.
    Pursuant to the Sentencing Reform Act of 1984 it is the judgment of the
    Court that the Defendant, Victor Mancillas, is committed to the custody of
    the Bureau of Prisons to be imprisoned for a term of 97 months . . . .
    Mr. Mancillas timely appeals his sentence, arguing that the District Court did not
    meaningfully consider the § 3553(a) factors.
    II. DISCUSSION
    “We review sentences imposed by the district court for reasonableness.” United
    States v. Galarza-Payan, 
    441 F.3d 885
    , 887 (10th Cir. 2006). In undertaking this review,
    we consider whether the district court correctly applied the Guidelines, and whether the
    ultimate sentence is reasonable in light of the factors present in 
    18 U.S.C. § 3553
    (a). See
    United States v. Kristl, 
    437 F.3d 1050
    , 1053–54 (10th Cir. 2006). A sentence imposed
    within the properly-calculated Guidelines range is “‘entitled to a rebuttable presumption
    -4-
    of reasonableness.’” Galarza-Payan, 
    441 F.3d at 889
     (quoting Kristl, 
    437 F.3d at 1054
    ).
    It is without question, however, “that[] in addition to guiding our reasonableness
    review on appeal, the sentencing factors set forth in 
    18 U.S.C. § 3553
    (a) must be
    considered by the district court itself when imposing a sentence.” Sanchez-Juarez, —
    F.3d —, 
    2006 WL 1165967
     at *4 (10th Cir. 2006). While the district court need not
    “recite any magic words to show us that it fulfilled its responsibility to be mindful of the
    factors that Congress has instructed it to consider,” United States v. Contreras-Martinez,
    
    409 F.3d 1236
    , 1242 (10th Cir. 2005), we recently emphasized that the court must state
    reasons for imposing a particular sentence when the defendant makes an argument based
    on § 3553(a) and that argument is not “clearly without merit.” Sanchez-Juarez, — F.3d at
    —; see also United States v. Lopez-Flores, — F.3d —, 
    2006 WL 1000810
     at *4 (10th Cir.
    2006) (holding that a district court need not respond to “run-of-the-mill contentions”).
    In this case, however, Mr. Mancillas does not identify any facts that might justify a
    lower sentence in light of the § 3553(a) factors that the District Court did not consider.
    Rather, he simply makes the conclusory assertion that “the district court should have
    made some finding that either expressly considered at least some of the factors, or at least
    showed a meaningful consideration of the factors in general.” Without specific reference
    to facts, however, we cannot conclude whether the District Court erred. Accordingly, we
    AFFIRM.
    -5-
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM.
    ENTERED FOR THE COURT,
    Deanell Reece Tacha
    Chief Circuit Judge
    -6-
    

Document Info

Docket Number: 17-4134

Citation Numbers: 180 F. App'x 820

Filed Date: 5/18/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023