United States v. Manual Sanchez-Rojas , 889 F.3d 950 ( 2018 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 16-3734
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Manuel Sanchez-Rojas
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Waterloo
    ____________
    Submitted: October 16, 2017
    Filed: May 11, 2018
    ____________
    Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.
    ____________
    WOLLMAN, Circuit Judge.
    Manuel Sanchez-Rojas pleaded guilty to unlawful reentry as a removed alien
    after an aggravated felony conviction in violation of 8 U.S.C. §§ 1326(a) and
    1326(b)(2). The district court1 determined that Sanchez-Rojas’s base offense level
    1
    The Honorable Leonard T. Strand, United States District Judge for the
    Northern District of Iowa.
    was eight under § 2L1.2(a) of the 2015 U.S. Sentencing Guidelines Manual
    (Guidelines or U.S.S.G.). After increasing the offense level by eight for previously
    having been deported after “a conviction for an aggravated felony,” U.S.S.G.
    § 2L1.2(b)(1)(C), and reducing the offense level by three for acceptance of
    responsibility, U.S.S.G. § 3E1.1, the court determined that Sanchez-Rojas’s total
    offense level was 13, his criminal history category was V, and his advisory
    Guidelines sentencing range was 30 to 37 months’ imprisonment.2 Sanchez-Rojas
    was sentenced to 37 months’ imprisonment.
    Sanchez-Rojas argues that the district court plainly erred in increasing his base
    offense level by eight under U.S.S.G. § 2L1.2(b)(1)(C). The enhancement was based
    on his previous burglary convictions in violation of California Penal Code § 459.
    Sanchez-Rojas argues that California burglary does not satisfy the Guidelines
    definition of “aggravated felony.” For purposes of the enhancement, “‘aggravated
    felony’ has the meaning given that term in section 101(a)(43) of the Immigration and
    Nationality Act (8 U.S.C. § 1101(a)(43)).” U.S.S.G. § 2L1.2 cmt. n.3. The Act
    defines “aggravated felony” to include “a crime of violence (as defined in section 16
    of Title 18, but not including a purely political offense) for which the term of
    imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). According to the
    government, Sanchez-Rojas’s California burglary convictions fall within the ambit
    of 18 U.S.C. § 16(b), which is known as the residual clause and which defines “crime
    of violence” as “any other offense that is a felony and that, by its nature, involves a
    2
    After Sanchez-Rojas was sentenced, the U.S. Sentencing Commission
    amended U.S.S.G. § 2L1.2. See U.S.S.G. app. C, amend. 802. The Guidelines
    citations set forth in this opinion are from the 2015 U.S. Sentencing Guidelines
    Manual, which was used to determine Sanchez-Rojas’s offense level.
    -2-
    substantial risk that physical force against the person or property of another may be
    used in the course of committing the offense.”3
    Sanchez-Rojas argued on appeal that § 16(b) should be struck down as
    unconstitutionally vague under the Fifth Amendment’s Due Process Clause. After
    his appeal was submitted to this panel, the Supreme Court declared § 16(b) void for
    vagueness. Sessions v. Dimaya, 
    138 S. Ct. 1204
    (2018). Sanchez-Rojas now argues
    that his case must be remanded for resentencing without the § 2L1.2(b)(1)(C)
    “aggravated felony” enhancement. We disagree.
    In Beckles v United States, 
    137 S. Ct. 886
    (2017), the Supreme Court upheld
    the residual clause used in U.S.S.G. § 4B1.2(a)(2), even though the Court had struck
    down as unconstitutionally vague the identically worded residual clause used in the
    Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). See Johnson v.
    United States, 
    135 S. Ct. 2551
    (2015). The Court reasoned:
    Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible
    range of sentences. To the contrary, they merely guide the exercise of
    a court’s discretion in choosing an appropriate sentence within the
    statutory range. Accordingly, the Guidelines are not subject to a
    vagueness challenge under the Due Process Clause.
    
    Beckles, 137 S. Ct. at 892
    . Applying the Beckles/Johnson reasoning here, Sanchez-
    Rojas cannot maintain his vagueness challenge against U.S.S.G. § 2L1.2(b)(1)(C).
    We see no meaningful difference between a Guidelines section that uses the same
    language as a statute (like § 4B1.2(a)(2)) and a section that incorporates the statutory
    language by reference (like § 2L1.2(b)(1)(C)). Accordingly, we uphold the
    3
    The government concedes that Sanchez-Rojas’s burglary convictions do not
    meet § 16(a)’s definition of “crime of violence.” See Descamps v. United States, 
    570 U.S. 254
    , 277 (2013) (holding that a conviction under California Penal Code § 459
    “is never for generic burglary”).
    -3-
    “aggravated felony” enhancement set forth in U.S.S.G. § 2L1.2(b)(1)(C),
    notwithstanding its incorporation of the definition of the now-declared vague “crime
    of violence” set forth in 18 U.S.C. § 16(b).
    Sanchez-Rojas also argues that his sentence is substantively unreasonable
    because the district court failed to give adequate weight to his acceptance of
    responsibility, the nature of his current offense, his devotion to his family, and his
    minimal criminal history in the past eighteen years. The district court weighed those
    factors against Sanchez-Rojas’s extensive criminal history, several deportations, and
    the fact that he threatened to shoot the law enforcement officers that arrested him.
    The court expressed “some concern that the advisory guideline range [was] not
    sufficient,” but ultimately decided to impose a sentence at the top of the Guidelines
    range. In light of the district court’s discretion “to weigh the § 3553(a) factors in
    each case and assign some factors greater weight than others in determining an
    appropriate sentence,” United States v. Bridges, 
    569 F.3d 374
    , 379 (8th Cir. 2009),
    we find no error in the court’s decision to impose a Guidelines-range sentence. See
    Gall v. United States, 
    552 U.S. 38
    , 51 (2007) (“If the sentence is within the
    Guidelines range, the appellate court may, but is not required to, apply a presumption
    of reasonableness.”).
    The sentence is affirmed.
    ______________________________
    -4-
    

Document Info

Docket Number: 16-3734

Citation Numbers: 889 F.3d 950

Filed Date: 5/11/2018

Precedential Status: Precedential

Modified Date: 1/12/2023