United States v. Talavera-Rosas , 153 F. App'x 932 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 7, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-51103
United States of America
Plaintiff-Appellee,
versus
Luis Carlos Talavera-Rosas
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
( 3:04-CR-1075-ALL )
Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Luis Carlos Talavera-Rosas pled guilty to
an indictment charging that he illegally re-entered the United
States after having been deported in violation of 8 U.S.C. § 1326.
Prior to the entry of Talavera’s guilty plea, the government filed
a notice of intent to seek increased penalties under § 1326(b)(2),
which provides for an increased penalty when removal was
“subsequent to a conviction for commission of an aggravated
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
felony.”1 The indictment did not allege a prior conviction, and
Talavera objected, citing Apprendi v. New Jersey,2 to any sentence
in excess of the maximum set out in § 1326(a), which the district
court overruled.
At sentencing, Talavera argued that the prior conviction was
almost 14-years old and that it was his only drug trafficking
conviction. As the sentencing judge’s statements regarding
Talavera’s sentence are highly relevant in this case, they are
provided in full:
[Y]ou know, I was looking at the age of the convictions
and they are pretty old, but under the law they are still
available for the reasons that they are being used in
this case, and I think your lawyer pointed out every
possible reason that this Court should consider going
toward the bottom of the Guidelines, and certainly every
one of them is a valid consideration. You sometimes
wonder if you can ever escape your past and, I guess, the
United States Congress believes that under some
circumstances, I guess, you can't. Eventually [the
convictions] would be old enough where they could not be
scored, but the law is very, very strict. You now know
that there are stiff consequences to returning in light
of the history that you have, and maybe one of these days
they will change and they will make a little bit more
sense, but right now you need to always assume that they
are not going to change for the better just because you
want to protect against the very worst that might
possibly occur.
The judge imposed a sentence of 57 months, with a three-year term
of supervised release, the lowest possible sentence under the
1
8 U.S.C. § 1326(b)(2).
2
530 U.S. 466 (2000).
2
Guidelines. Talavera timely filed a notice of appeal, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
Talavera now argues that the district court erred when, in
light of United States v. Booker,3 it sentenced him under a
mandatory application of the United States Sentencing Guidelines.4
Talavera concedes that he is raising Booker error for the first
time on appeal; thus, his claim is reviewed for plain error.5
Likewise, the government concedes that the first two elements of
plain error are satisfied in this case: the district court plainly
erred in sentencing Talavera under the mandatory guidelines.6 The
issue for decision is whether Talavera can demonstrate that his
substantial rights were affected by the court’s error.7
3
125 S. Ct. 738 (2005).
4
To preserve the issue for Supreme Court review, Mendoza also challenges
the constitutionality of § 1326, but he correctly concedes that this argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). See, e.g., United States v. Alfraro, 408 F.3d 204, 210-
11 (5th Cir. 2005), cert. denied (Oct. 3, 2005) (No. 05-5604).
5
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). Under
plain error review, this Court has “a limited power to correct errors that were
forfeited because [they were] not timely raised in the district court.” United
States v. Olano, 507 U.S. 725, 731 (1993). We may not correct an error that the
defendant failed to raise in the district court unless there is “(1) error, (2)
that is plain, and (3) that affects substantial rights.” Mares, 402 F.3d at 520
(citing United States v. Cotton, 535 U.S. 625, 631 (2002)).
6
Mares, 402 F.3d at 520-21 (finding that a sentence imposed under the
mandatory Sentencing Guidelines is plain error).
7
To make such a showing, Talavera “bears the burden of demonstrating a
probality sufficient to undermine confidence in the outcome.” United States v.
Bringier, 405 F.3d 310, 317 (5th Cir. 2005). Specifically, the question is
whether Talavera can demonstrate “that the sentencing judge would have reached
a different result had it sentenced [him] under an advisory scheme rather than
a mandatory one.” Id.
3
In United States v. Rodriguez-Gutierrez, we summarized
existing case law and found two primary considerations for
determining whether a district court’s Booker error affected a
defendant’s substantial rights. First, we consider whether the
judge made any statements during sentencing indicating that had the
Guidelines been merely advisory, the defendant would have received
a lower sentence.8 Second, we consider the relationship between
the sentence imposed and the applicable Guidelines range, noting
that “sentences falling at the absolute minimum of the Guidelines
provide the strongest support for the argument that the judge would
have imposed a lesser sentence.”9
Here, both factors point toward a conclusion that Talavera’s
substantial rights were affected. During sentencing, the judge
stated, when considering Talavera’s prior conviction, that “the law
is very, very strict” and that the “United States Congress”
believes that you “cannot escape your past.” In addition, the
judge expressed hope that the “stiff consequences” of returning to
the United States would one day “change” and “make a little bit
more sense.” The judge also remarked that each reason provided by
Talavera’s counsel for a lower sentence was a “valid
consideration.” Finally, the judge sentenced Talavera at the
bottom of the applicable range (here, 57 months). Thus, we
8
United States v. Rodriguez-Gutierrez, ___ F.3d ___, 2005 WL 2447908, *1-2
(5th Cir. Oct. 5, 2005).
9
Id. at *2-3.
4
conclude that Talavera has shown that the district court’s Booker
error affected his substantial rights.
Accordingly, exercising our discretion under plain-error
review,10 we REMAND to the district court to allow the district
court to resentence Talavera if, in its discretion under the now-
advisory Guidelines, it chooses to do so.
10
“If all three conditions [of plain error] are met an appellate court may
then exercise its discretion to notice a forfeited error but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Mares, 402 F.3d at 520 (citing Cotton, 525 U.S. at 631); see also
United States v. Dunn, No. 04-20100, 2005 WL 1847210, *2 (5th Cir. Aug. 3, 2005)
(“Because the error likely increased his sentence, Dunn has shown that the error
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.”).
5