United States v. Raul Flores-Villalvaso ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10039
Plaintiff-Appellee, D.C. No.
4:19-cr-01504-CKJ-DTF-1
v.
RAUL FLORES-VILLALVASO, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 20-10040
Plaintiff-Appellee, D.C. No.
4:15-cr-00977-CKJ-DTF-1
v.
RAUL FLORES-VILLALVASO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted November 17, 2020**
Phoenix, Arizona
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2)(C).
Before: TALLMAN, BYBEE, and BADE, Circuit Judges.
Defendant-Appellant Raul Flores-Villalvaso appeals his conviction by guilty
plea and sentence to a term of twenty-four months’ imprisonment for attempted
illegal reentry after removal in violation of 8 U.S.C. § 1326, as well as his
consecutive twenty-one-month sentence for violation of supervised release
conditions arising from a prior conviction for attempted illegal reentry. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Flores-Villalvaso first argues that he was misinformed of the elements of the
offense of attempted illegal reentry because the magistrate judge misstated the
mens rea element of “specific intent” in 8 U.S.C. § 1326 as “conscious desire” at
the plea colloquy, thereby violating Federal Rule of Criminal Procedure
11(b)(1)(G)’s requirement that the defendant understand the nature of the charge to
which he pleads. Because Flores-Villalvaso did not object below to the Rule 11
colloquy, his conviction may be reversed for Rule 11 error only if the district court
committed plain error. United States v. Pena, 314 F.3d 1152, 1155 (9th Cir. 2003).
Attempted illegal reentry in violation of 8 U.S.C. § 1326 is a crime of specific
intent “requir[ing] a finding that the defendant consciously desired to reenter the
United States without consent.” United States v. Gracidas-Ulibarry, 231 F.3d 1188,
1195, 1198 (9th Cir. 2000) (en banc) (emphasis added). Thus, by reciting the
specific intent element in terms of “conscious desire,” the magistrate judge fulfilled
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her duty to inform Flores-Villalvaso of the nature of his illegal reentry charge in
compliance with Rule 11(b)(1)(G). See United States v. Covian-Sandoval, 462 F.3d
1090, 1095 (9th Cir. 2006). Then, immediately after explaining the nature of the
charge, the magistrate judge asked Flores-Villalvaso if he understood “what the
government would have to prove” and if he understood the charge. Flores-
Villalvaso responded to both questions affirmatively and unequivocally with “Yes.”
Because the magistrate judge made the “investment of time and effort necessary to
set forth the meaning of the charges and to demonstrate on the record that the
defendant underst[ood],” United States v. Kamer, 781 F.2d 1380, 1385 (9th Cir.
1986), no plain error occurred.
Even assuming the magistrate judge erred, however, the alleged error is not
reversible given the absence of any indication that the error affected Flores-
Villalvaso’s substantial rights or the “fairness, integrity or public reputation of
judicial proceedings.” United States v. Minore, 292 F.3d 1109, 1117 (9th Cir.
2002) (citation omitted). “Taking into account both the colloquy and the complete
record,” there is no indication that Flores-Villalvaso “actually lacked
understanding of his straightforward crime.” Covian-Sandoval, 462 F.3d at 1095.
At the plea hearing, the magistrate judge recited the elements of the offense to him
in language mirroring the indictment, and he admitted the factual basis for the plea.
At sentencing, the district court confirmed Flores-Villalvaso was able to discuss
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the presentence report with counsel, he did not object to the presentence report, and
his counsel even remarked that he could not “stand here in good conscience and
tell the Court that Mr. Flores-Villalvaso will not return to the United States” given
Flores-Villalvaso’s twenty-seven prior removals and twenty-one previous
voluntary returns to Mexico. In the context of an “easily understood crime” like
this one, the record indicates that Flores-Villalvaso “adequately ‘possesse[d] an
understanding of the law in relation to the facts.’” Id. at 1096 (alteration in
original) (quoting United States v. Portillo-Cano, 192 F.3d 1246, 1251 (9th Cir.
1999)). In any event, even if we were to conclude that Flores-Villalvaso was
confused about the nature of the charge, he has failed to show reversible error as he
has not established a “reasonable probability that, but for the error, he would not
have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004).
Flores-Villalvaso next argues that his total forty-five-month consecutive
sentence is substantively unreasonable because it was based on a “highly
overrepresented” criminal history category of VI composed solely of convictions
for improper entry, illegal reentry, and attempted reentry. “A substantively
reasonable sentence is one that is sufficient, but not greater than necessary to
accomplish [18 U.S.C.] § 3553(a)(2)’s sentencing goals.” United States v. Ressam,
679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (internal quotation marks and
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citation omitted). We review the substantive reasonableness of a sentence,
“whether objected to or not at sentencing,” for abuse of discretion. United States v.
Autery, 555 F.3d 864, 871 (9th Cir. 2009).
Here, “the record as a whole reflects rational and meaningful consideration
of the factors enumerated in 18 U.S.C. § 3553(a).” Ressam, 679 F.3d at 1089
(citation omitted). While Flores-Villalvaso argues that his sentence is “greater
than necessary” to achieve § 3553(a)’s goal of protecting the public since he has
never committed any violent crimes or crimes against the public, the “weight to be
given the various [sentencing] factors in a particular case is for the discretion of the
district court.” United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.
2009).
In this case, the district court noted Flores-Villalvaso’s “complete disregard
for the immigration laws of the United States,” remarking that he is “absolutely
determined to come here without legal permission.” The district court also
considered that Flores-Villalvaso’s previous sentences had no deterrent effect,
found the United States Sentencing Guidelines (“Guidelines”) range reasonable
without any objection from either party, and even remarked that the Guidelines
calculations were “very favorable” to Flores-Villalvaso given his criminal history.
Based on these considerations, the district court imposed a sentence of twenty-
four-months’ imprisonment for attempted illegal reentry, at the low end of the
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Guidelines range, as well as a consecutive twenty-one-month sentence for violation
of his supervised release conditions—also at the low end of the Guidelines range.
The district court did not abuse its discretion in doing so.
AFFIRMED.
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