United States v. Sender Escobar-Soto ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2667
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Sender Joel Escobar-Soto
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 11, 2020
Filed: June 4, 2020
[Unpublished]
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Before COLLOTON, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Sender Joel Escobar-Soto pleaded guilty to illegal reentry after a felony
conviction in violation of 8 U.S.C. § 1326(a) and (b)(1). The calculated Guidelines
range was ten to sixteen months and the district court1 imposed a thirteen-month
sentence. On appeal, Escobar-Soto challenges the substantive reasonableness of his
sentence. We affirm.
Escobar-Soto argues that because his previous crimes (including his lengthy
DUI record) were considered in the calculation of his Guidelines range, they should
not have been “doubly” considered by the district court in arriving at his within-range
sentence. At sentencing, the district court referenced these prior crimes during its
colloquy when it explained how it arrived at the within-range thirteen-month sentence.
Escobar-Soto argues that he only should have been sentenced to ten months’
imprisonment and there was no basis for the “additional” three months. Too, Escobar-
Soto argues that the district court erred in referencing his continued disregard of
immigration regulations after Escobar-Soto expressed a fear of returning to his home
country–that criminal deterrence was inappropriately used on this immigration issue.
This court considers the substantive reasonableness of a sentence under an
abuse of discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc). Sentences within the correctly calculated advisory Guidelines range
are presumptively reasonable. United States v. Solis-Bermudez, 501 F.3d 882, 884
(8th Cir. 2007).
There is no legal support for Escobar-Soto’s argument that his criminal record
could only be considered in the calculation of his Guidelines sentence and not as part
of the district court’s consideration at sentencing. Indeed, the district court was
entitled to consider whether Escobar-Soto’s criminal history score accurately
represented his history and likelihood of recidivism as part of a departure
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska.
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consideration, United States Sentencing Guidelines § 4A1.3(a)(2), or as part of its 18
U.S.C. § 3553(a) analysis. In this case we are reviewing § 3553(a) considerations.
Here, some of Escobar-Soto’s prior crimes were not calculated in his criminal
history. In fact, some of his history had not impacted his criminal history score
because of the age of the conviction or because he spent less than thirty days in jail,
including his prior illegal entries and deportations and at least one charge where he
was arrested, used an alias and failed to appear for court. Under 18 U.S.C. §
3553(a)(1) the district court could consider Escobar-Soto’s pattern of disregard for the
laws of the United States and any other relevant information as part of its “history and
characteristics of the defendant” consideration, as well as the other § 3553(a)
considerations. Criminal acts relevant to a departure or variance are also relevant in
a district court’s decision as to where within the Guidelines range to sentence a
defendant. Solis-Bermudez, 501 F.3d at 886-87 (acknowledging that in some cases
the advisory sentencing scheme permits the consideration of factors either as a
justification for a departure or as part of the § 3553(a) considerations). Upon close
review, in all respects the district court appropriately considered the § 3553(a) factors
in arriving at the imposed sentence, which was substantively reasonable. We affirm.
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