United States v. Mendez-Montes , 245 F. App'x 791 ( 2007 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    August 20, 2007
    TENTH CIRCUIT                     Elisabeth A. Shumaker
    Clerk of Court
    U N ITED STA TES O F A M ER ICA,
    Plaintiff - Appellee,
    No. 06-2323
    v.                                               (D.C. No. CR-06-1245 BB)
    (D .N.M .)
    JOSE ESTEBAN M END EZ-
    M ONTES,
    Defendant - Appellant.
    OR D ER AND JUDGM ENT *
    Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **
    Defendant-Appellant José Esteban M éndez M ontes pleaded guilty to illegal
    reentry after deportation in violation of 
    8 U.S.C. § 1326
    (a)(1) & (2), and
    § 1326(b)(2), and was sentenced to forty-six months’ imprisonment and three
    years’ unsupervised release. On appeal, M r. M éndez argues that the district court
    incorrectly analyzed his motion for a variance under United States v. Booker, 543
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    U.S. 220 (2005), as a motion for a downward departure under the Sentencing
    Guidelines. M r. M éndez also argues that his sentence is procedurally and
    substantively unreasonable under Booker. Exercising jurisdiction pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a), we conclude that the district court
    properly analyzed M r. M éndez’s motion under the standard for a downward
    departure and that M r. M éndez’s sentence is procedurally and substantively
    reasonable. W e therefore affirm.
    Background
    M r. M éndez pleaded guilty on June 20, 2006. The pre-sentence
    investigation report (PSR ) characterized his prior conviction for aggravated
    assault with a deadly weapon as a “crime of violence” and recommended that the
    district court enhance his base offense level by sixteen levels. W ith the
    enhancement and a three-level reduction for acceptance of responsibility, the PSR
    concluded that M r. M éndez had a total offense level of twenty-one and a criminal
    history category III. It calculated an advisory Guidelines sentence of forty-six to
    fifty-seven months’ imprisonment with two to three years’ supervised release.
    On September 29, 2006, M r. M éndez filed a “Sentencing M emorandum and
    M otion for Downward Departure.” R. Doc. 17. In the filing, he raised three
    arguments for a lower sentence:
    (1)    his conduct in returning to the United States was precipitated
    solely by his fervent desire to assist in the financial well-being
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    of his family and thus was a lesser harm within the meaning of
    U.S.S.G. § 5K2.11 and 5K2.0;
    (2)       his Criminal History Category of III significantly over-
    represents both the seriousness of his history and the
    likelihood that he will commit further crimes, U.S.S.G. §
    4A1.3.; and
    (3)       the combination of these factors takes the case out of the
    heartland of illegal reentry cases, see § 5K2.0, comment.;
    United States v. Koon, 
    518 U.S. 81
    , 111-112 (1996); United
    States v. Sklar, 
    920 F.2d 107
    , 116 (1st Cir. 1990).
    Id. at 1. He also noted that the district court could consider the factors in 
    18 U.S.C. § 3553
    (a), but the motion’s conclusion unmistakably sought a downward
    departure. 
    Id. at 10
    . On October 23, 2006, the district court conducted a
    sentencing hearing and stated that it had read the motion. Other than the
    objections listed in his motion, M r. M éndez did not object to the calculation of
    the advisory Guidelines range. Defendant’s counsel then renewed his motion for
    a downward departure, and also injected an argument based on Booker, stating:
    “But I think, ultimately, I would rely more on Booker grounds than family
    circumstances. . . . But I would ask the C ourt to depart in this case.” Sent. Tr.
    (IV R.) at 3. Defendant’s counsel and the district court then discussed M r.
    M éndez’s criminal history and his prior conviction for aggravated assault.
    After the exchange regarding M r. M éndez’s criminal history, the district
    court stated:
    All right. Well, his criminal record, frankly, persuades me that a
    dow nw ard departure under Booker is not well taken. He’s got two
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    assaults and controlled substance violations. Unlike the last
    defendant, he really does not have a criminal record that gives me
    any confidence that he will not be back in our system.
    
    Id. at 5
    . The district court then discussed the aggravated assault and robbery
    convictions with M r. M éndez himself. 
    Id. at 5-6
    . Then, the district court
    imposed its sentence, stating:
    The Court has reviewed the presentence report and factual
    findings and has also considered the Sentencing Guideline
    recommendations, as well as the factors set forth in 18 United States
    Code, Section 3553. The offense level is 21, the criminal history is
    category 3, the guideline imprisonment range is, therefore, 46 to 57
    months.
    The Court notes that defendant reentered the United States
    after having previously been deported following an aggravated felony
    conviction. Therefore . . . . the Defendant . . . will be [sentenced] to
    serve a term of 46 months.
    
    Id. at 7-8
    .
    Discussion
    M r. M éndez now argues that the district court erred by applying a
    Guidelines departure analysis to his motion and that the forty-six month sentence
    is procedurally and substantively unreasonable. W ith regard to his first argument,
    M r. M éndez failed to object at the sentencing hearing, so review is for plain error.
    See United States v. Romero, – F.3d –, 2007 W L 1874231, at *3 (10th Cir. 2007).
    M r. M éndez relies upon our decision in United States v. Begay, 
    470 F.3d 964
    (10th Cir. 2006), where we excused a defendant’s failure to object based on the
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    district court’s novel (and incorrect) view of the Guidelines, a view that counsel
    could not anticipate before it was too late to object. Begay is factually
    inapposite. Here, M r. M éndez specifically argued for a downward departure in
    his written motion, even citing the relevant departure provisions of the
    Guidelines. Although he invoked Booker at the sentencing hearing, he still asked
    the district court to “depart.” Consequently, when the district court noted that it
    did not think M r. M éndez was entitled to a “downward departure,” it conducted
    exactly the analysis M r. M éndez asked for, so there was no error, plain or
    otherwise. Regardless, even if there were error, we would not recognize it under
    the plain error standard because it did not “seriously affect[] the fairness,
    integrity, or public reputation” of the proceedings. See Romero, 2007 W L
    1874231, at *5.
    W ith regard to M r. M éndez’s argument that the district court nonetheless
    imposed a sentence that is procedurally and substantively unreasonable under
    Booker, we are unpersuaded. W e have noted that reasonableness has both
    procedural and substantive elements. See United States v. Cage, 
    451 F.3d 585
    ,
    591 (10th Cir. 2006). In Rita v. United States, 
    127 S. Ct. 2456
     (2007), 1 the
    Supreme Court suggested that reasonableness review is the same as review for
    abuse of discretion. 
    Id. at 2465
    . M r. M éndez failed to object to the procedural
    1
    M r. M éndez requested that we hold this matter in abeyance pending the
    Supreme Court’s decisions in Rita and Claiborne v. United States. Aplt. Br. at
    25. That request is now moot.
    -5-
    reasonableness of his sentence at the sentencing hearing, so his Booker procedural
    reasonableness challenge is subject to review for plain error. See Romero, 2007
    W L 1874231, at *3. M r. M éndez argues that the district court failed to analyze
    the sentencing factors in § 3553(a), that it failed to explain why it rejected M r.
    M éndez’s motion for a downward departure, and that it failed generally to give a
    sufficient explanation for his forty-six month sentence.
    In Rita, the Supreme Court made clear that a district court need only set
    forth enough explanation to “satisfy the appellate court that [it] has considered
    the parties’ arguments and has a reasoned basis for exercising [its] own legal
    decisionmaking authority.” 
    127 S. Ct. at 2468
    . Additionally, the Court noted that
    “when a judge decides simply to apply the Guidelines to a particular case, doing
    so will not necessarily require lengthy explanation.” 
    Id.
     The Court stated that
    “[t]he law leaves much, in this respect, to the judge’s own professional
    judgment.” 
    Id.
    In this case, the district court engaged in a colloquy with both M r. M éndez
    and his counsel regarding the arguments for a downward departure. It rejected
    those arguments based on M r. M éndez’s criminal record and the likelihood of his
    recidivism. Based on the record, it is clear that the district court considered M r.
    M éndez’s motive for returning to the United States and the atypicality of his
    conviction for aggravated assault with a deadly weapon. The district court
    indicated that it had read the motion which addressed M r. M éndez’s motive, see
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    R. Doc. 17, at 4-6, and it heard argument on the circumstances surrounding the
    conviction for aggravated assault, Sent. Tr. (IV R.) at 4-5. The district court
    indicated that it had considered the § 3553(a) factors, and there is no reason to
    believe it forgot the facts of the case as it declined to vary from the recommended
    Guidelines sentence. As in Rita, the record in this case makes clear that the
    district court considered M r. M éndez’s arguments, evaluated the evidence, and
    exercised its own discretion in applying the § 3553(a) factors. The district court
    “simply found these circumstances insufficient to warrant a sentence lower than
    the Guidelines range.” See Rita, 
    127 S. Ct. at 2469
    . W e conclude that the district
    court did not abuse its discretion with regard to its sentencing procedure, and so
    there is no error, plain or otherwise.
    Likewise we conclude that M r. M éndez’s sentence is substantively
    reasonable. A sentence w ithin the advisory Guidelines range carries a
    presumption of reasonableness. United States v. Kristl, 
    437 F.3d 1050
    , 1054
    (10th Cir. 2006); see also Rita, 
    127 S. Ct. at 2462
     (upholding the appellate
    presumption of reasonableness). M r. M éndez’s sentence of forty-six months’
    imprisonment is at the low end of the advisory Guidelines range. He argues that
    this sentence is too long because he suffered an abusive childhood and because
    the victim of his aggravated assault was abusive. The district court considered
    these arguments and found that they were insufficient to justify a reduction in his
    sentence, given M r. M éndez’s propensity to commit crime. W e must defer to the
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    district court, whose exercise of discretion was well within the bounds of
    permissible choice. See U nited States v. Nickl, 
    427 F.3d 1286
    , 1300 (10th Cir.
    2005).
    A FFIR ME D.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
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