United States v. Luis Orozco , 393 F. App'x 899 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
No. 08-2422
UNITED STATES OF AMERICA
v.
LUIS ALVARO OROZCO,
Appellant.
__________________
Appeal from the United States District Court
for the District of New Jersey
Case No. 2-03-cr-00698-001
(Honorable William H. Walls)
__________________
Submitted pursuant to Third Circuit LAR 34.1
May 27, 2010
Before McKee, Chief Judge, Rendell, Stapleton, Circuit Judges
(Opinion Filed: September 16, 2010)
OPINION OF THE COURT
McKee, Chief Judge:
Luis Alvaro Orozco appeals the sentence of 135 months incarceration that was
imposed following his guilty plea. For the reasons set forth below, we will affirm the
sentence. However, we will remand for the limited purpose of allowing the district court
1
to clarify the amount of credit the court intended to give Orozco for the time he spent in
jail before he was sentenced.1
I.
Since we are writing primarily for the parties who are familiar with this case, we
need only briefly recite the factual and procedural background. Luis Alvaro Orozco is a
career offender who has repeatedly engaged in illegal cocaine trafficking between
Colombia and the United States. He was convicted of possession of cocaine with intent to
distribute in 1983. While on supervised release in 1989, he was once again convicted of
cocaine distribution. He entered this guilty plea in 2007, pleading guilty to Count One of
an indictment charging him with conspiracy to import five kilograms or more of cocaine
into the United States in violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B), and 963. The
district court adopted the recommendations of the Pre-Sentence Report (“PSR”). Orozco
had a total offense level of 29 and a Criminal History Category of III. That resulted in a
recommended incarceration range of 108-135 months. However, since his offense carries
a mandatory minimum sentence of 120 months, his Guidelines range became 120-135
months. U.S.S.G. § 5G1.1, PSR ¶¶ 103-104.
The district court rejected Orozco’s request for the mandatory minimum sentence
and instead sentenced him to 135 months imprisonment. However, the court credited
1
We have appellate jurisdiction to review the district court’s sentence under 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
2
Orozco with all of the time he had been confined in both Colombia’s Combita Prison and
New Jersey’s Passaic County Jail, because of this indictment. Appendix (“A”) 119:3-16.2
II.
The sole issues on appeal are whether Orozco’s sentence of 135 months
imprisonment was reasonable and whether the district court complied with 18 U.S.C. §
3553(a) in deciding upon that sentence. We review a district court’s factual findings for
clear error and the reasonableness of the final sentence in light of the factors codified at 18
U.S.C. § 3553(a) for abuse of discretion. United States v. King, 454 F.3d 187, 194-196
(3d Cir. 2006) (applying United States v. Booker, 543 U.S. 220 (2005)); United States v.
Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
In evaluating the reasonableness of Orozco’s sentence, we first look to the record to
see if the district court gave “meaningful consideration” to the sentencing factors
contained in 18 U.S.C. § 3553(a) and to any non-frivolous arguments properly raised by
the parties. Tomko, 562 F.3d at 567; United States v. Vargas, 477 F.3d 94, 101-102 (3d
Cir. 2007). We review a district court’s application of the § 3553(a) factors deferentially
and only inquire into whether the court’s reasons for imposing a given sentence is
consistent with those factors.3
2
Orozco served 11 months in Combita Prison awaiting extradition (March 2004-January
2005) and almost 39 months in pre-sentence detention in Passaic County (January 2005-
March 2008). A119:3-16.
3
The factors a sentencing court should consider under 18 U.S.C. § 3553(a) are: (1) the
nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence to reflect the seriousness of the crime, promote
3
Our review of the record convinces us that Orozco’s sentence is reasonable and that
the court duly considered the 3553(a) factors. Contrary to Orozco’s arguments, the district
court considered his pre-sentence confinement, A95:14-19, A97:6-98:14, as well as his
argument that he was coerced into committing this offense. A99:12-100:11. The record
also demonstrates that the district court properly weighed Orozco’s arguments in light of §
3553(a) factors, A114:2-A119:2, as post-Booker precedent requires. See United States v.
Booker, 543 U.S. 220 (2005).
Orozco claims that the district court erroneously believed that it lacked the
authority to consider pre-sentence confinement conditions in determining the sentence.
However, the court “[took] note of Passaic County’s alleged conditions,” but determined
that reducing the sentence in light of those conditions was “not necessarily appropriate.”
A95:14-19. Similarly, the court heard arguments about the severe conditions in Combita
Prison but could not verify Orozco’s account. A97:6-7.
Orozco argues coercion in order to establish that he was somehow forced to commit
this crime. The record shows that the sentencing judge considered Orozco’s account of his
kidnaping but was skeptical about it. A99:21-24. The court noted that this involuntariness
respect for the law, provide just punishment, afford adequate deterrence, protect the
public, and provide the defendant with needed correctional treatment; (3) the kinds of
sentences available; (4) the applicable Guidelines sentence; (5) the pertinent policy
statements of the Sentencing Commission; (6) the need to avoid unwarranted sentencing
disparities; and (7) the need to provide restitution to victims.
4
argument was not raised in the plea stage and that Orozco had conceded that he voluntarily
committed the instant offense during his change of plea colloquy. A113:9-114:1.
Orozco also challenges the reasonableness of the court’s 135 month sentence. The
court adequately explained why it thought a sentence of that length was consistent with the
factors articulated in § 3553(a). The court emphasized that this is Orozco’s third felony
conviction and that the “nature of [his] criminal activity . . . is of unabated . . . drug
activity.” A117:16-19.
We recognize that a strong argument can be made that, since Orozco is now 60
years old, the mandatory minimum would have been sufficient punishment. However, we
are not charged with imposing sentence in the first instance. Rather, we merely review the
sentence that was imposed to determine if it was reasonable. Given all of the factors here,
including Orozco’s willingness to once again enter the world of international drug
transactions despite his chronological maturity, we will not second guess the district
court’s decision to impose a sentence that was greater than the mandatory minimum. See
Tomko, 562 F.3d 558, 561 (3d Cir. 2009) (en banc) (“‘the fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.’”) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)).
We are convinced that the district court fairly and thoroughly considered the nature
and circumstances of Orozco’s offense, and concluded that the mandatory minimum
sentence was not sufficient. 18 U.S.C. § 3553(a) requires that the sentencing court weigh
5
the seriousness of the crime, the need to deter others, and the interest of society as a whole.
The district court did that. See A118:4-9, A118:19-119:1. It then determined that 135
months incarceration was appropriate. We do not require that a district court “discuss and
make findings as to each of the § 3553(a) factors if the record makes clear the court took
the factors into account in sentencing.” Vargas, 477 F.3d at 101; see A114:2-A119:2.
We are, however, concerned about what appears to be a clerical error on page 2 of
the Judgment the court entered on April 1, 2008. That Judgment only credits Orozco with
the 11 months he served in Combita Prison. A8. However, the transcript from the
sentencing hearing clearly shows that the district court credited Orozco with the prison
time he served in Passaic County Jail (almost 39 months) in addition to the time he served
awaiting extradition in Colombia. A109:23-25, A119:11-16. The court stated: “I direct
that the B.O.P. give him credit for the time he spent in . . . Combita [Prison], as well as in
Passaic County Jail.” A109:23-25.
Accordingly, we will remand for the sole purpose of allowing the sentencing court
to clarify this apparent clerical error so that Orozco can receive all the credit that the
district court intended to give him. See Fed. R. Crim. P. 36.4
III.
4
Fed. R. Crim. P. 36 provides: “After giving any notice it considers appropriate, the
court may at any time correct a clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from oversight or omission.”
6
For the reasons set forth above, we affirm the district court’s sentence but remand
this case so that the district court can correct any misunderstanding about the jail time
credit it intended Orozco to have.
7