United States v. Amezcua-Vasquez

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50239 Plaintiff-Appellee, v.  D.C. No. CR-06-02104-WQH JAVIER AMEZCUA-VASQUEZ, OPINION Defendant-Appellant.  Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted April 10, 2008—Pasadena, California

Filed June 1, 2009

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Canby

6523 6526 UNITED STATES v. AMEZCUA-VASQUEZ

COUNSEL

Janet C. Tung, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Christopher M. Alexander, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. UNITED STATES v. AMEZCUA-VASQUEZ 6527 OPINION

CANBY, Circuit Judge:

OVERVIEW

Javier Amezcua-Vasquez (“Amezcua”), a native and citi- zen of Mexico, appeals his 52-month prison sentence for attempting to reenter the United States unlawfully in violation of 8 U.S.C. § 1326. Nearly fifty years after becoming a per- manent resident and more than twenty years after completing a four-year sentence for assault with great bodily injury and attempted voluntary manslaughter, Amezcua was deported to Mexico as an alien convicted of an aggravated felony. Shortly thereafter, he was apprehended re-entering the United States. He was indicted and pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which was predicated on Amezcua’s twenty-five-year-old convictions, and imposed a Guidelines sentence of 52 months imprisonment. We vacate Amezcua’s sentence as substan- tively unreasonable under United States v. Booker, 543 U.S. 220 (2005), and remand the case to the district court for resen- tencing.

BACKGROUND

In 1957, Amezcua, a native and citizen of Mexico, became a permanent resident of the United States. He was two years old at the time. He has lived in or around Calipatria, Califor- nia, ever since. In 1981, at the age of twenty-six, Amezcua stabbed someone with a knife in the midst of a gang-related bar fight. As a result, he was convicted in state court of attempted voluntary manslaughter and assault with great bod- ily injury. He was sentenced to concurrent terms of eight months on the attempted manslaughter count and four years on the assault count. Amezcua’s sentence was initially sus- pended, but his probation was revoked in 1982. He was 6528 UNITED STATES v. AMEZCUA-VASQUEZ released on parole in 1984 and was discharged the following year. In 2006, at the age of fifty-one, Amezcua was ordered removed to Mexico as an alien convicted of an aggravated fel- ony because of his 1981 convictions.

Two weeks after his removal, Amezcua was apprehended entering the United States in the vicinity of Calexico, Califor- nia. After waving his Miranda and Vienna Convention rights, Amezcua admitted that he was not a United States citizen and that he was unlawfully in the United States after having been deported. He informed the agents that he had been staying in Mexicali, Mexico, since his deportation two weeks earlier and that, at the time of his arrest, he was attempting to return to El Centro, California, to live with his family and work.

A few months later, Amezcua was indicted on one count of attempted illegal reentry in violation of 8 U.S.C. § 1326(a)- (b). He pled guilty without a plea agreement. The district judge adopted the following offense level computation in the Presentence Report:

Base Offense Level: 8 U.S.C. § 1326 8

Specific Offense Characteristics: U.S.S.G. § 2L1.2(b)(1)(A)(ii) 16

Adjusted Offense Level:

Adjustment for Acceptance of Responsibility: -2

Total Offense Level: 22

With respect to his criminal history, the only conviction that qualified under Chapter IV of the Guidelines was a 1999 con- viction for “us[ing], or be[ing] under the influence of any con- trolled substance,” Cal. Health & Safety Code § 11550(a), which placed Amezcua in category II. Amezcua’s other con- victions, including the 1981 conviction, did not score under UNITED STATES v. AMEZCUA-VASQUEZ 6529 the Guidelines because they were too old.1 U.S.S.G. § 4A1.2(e). Similarly, Amezcua’s law enforcement contacts did not score under the Guidelines.2

At sentencing, the judge stated that he had read Amezcua’s sentencing memorandum and the Presentence Report, which discussed Amezcua’s background. The Report noted Amez- cua’s extensive family network around El Centro, California, his absence from Mexico since he was two years old, his work experience as an agricultural worker in the fields of California and as a handyman in the community, and his history of alco- hol and drug abuse. The district judge determined that the Guidelines range for a defendant with Amezcua’s offense level (22) and criminal history category (II) was 46 to 57 months, followed by a term of 2 to 3 years under supervised release. Amezcua objected to the application of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) on the ground that neither of his 1981 convictions qualified as a “crime of violence.” He also challenged the reasonableness of the proposed Guidelines sentence in light of his personal his- tory and characteristics.

At sentencing, the district judge noted that the Guidelines are merely advisory and that Amezcua’s 1981 conviction qualified as a crime of violence under Sec- tion 2L1.2(b)(1)(A)(ii). After discussing Amezcua’s uncharged law enforcement contacts and his prior convic- tions, and the statutory sentencing factors under 18 U.S.C. § 3553(a), the district judge imposed a sentence of 52 months imprisonment, followed by three years of supervised release. Amezcua appeals. 1 Amezcua’s other convictions were for reckless driving (1974), drunk driving (1978), resisting a police officer (1978), battery (1987), violation of a court order (1993) and driving under the influence (1993). 2 Amezcua’s law enforcement contacts have been for use of a controlled substance. They have not involved trafficking. 6530 UNITED STATES v. AMEZCUA-VASQUEZ DISCUSSION

Our “appellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ” Gall v. United States, 128 S. Ct. 586, 594 (2007). In conducting this inquiry, we review the district court’s sentencing decision for an abuse of discretion. Id. at 600. “[O]nly a procedurally erroneous or substantively unreasonable sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). “[W]e first consider whether the district court committed sig- nificant procedural error, then we consider the substantive reasonableness of the sentence.” Id. (citing Gall, 128 S. Ct. at 597).

Procedural Reasonableness

[1] In his only procedural challenge,3 Amezcua contends that the district court failed properly to consider and discuss his arguments for lenient sentencing that cast his personal his- tory in a positive light. Although the district court’s treatment of these arguments was brief, we find no procedural error. Under the sentencing statute, the district court was required to “state in open court the reasons for its imposition of the [52- month] sentence.” 18 U.S.C. § 3553(c). As the Supreme Court has recently announced, however, this obligation does “not necessarily require lengthy explanation.” Rita v. United States, 127 S. Ct. 2456, 2468 (2007). “Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressio- nal mandates) in the typical case, and that the judge has found that the case before him is typical.” Id. Accordingly, although it is the better practice for district courts to explain whether they accept or reject “nonfrivolous argument[s] tethered to a 3 On this appeal, Amezcua no longer argues—as he did in the district court—that his 1981 convictions do not constitute “crimes of violence” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). UNITED STATES v. AMEZCUA-VASQUEZ 6531 relevant § 3553(a) factor,” Carty, 520 F.3d at 992-93, a sen- tencing judge does not abuse his discretion when he listens to the defendant’s arguments and then “simply [finds the] cir- cumstances insufficient to warrant a sentence lower than the Guidelines range,” id. at 995 (quoting Rita, 127 S.Ct. at 2469); see also United States v. Stoterau, 524 F.3d 988, 999 (9th Cir. 2008).

In this case, the district court began its analysis of the sen- tencing factors by noting that two of the arguments discussed in connection with the computation of the advisory Guidelines range—that is, “the nature and circumstances of the offense and [the] history and characteristics of the defendant”—were also relevant to its § 3553(a) inquiry. It then stated:

With respect to the 3553 factors, I have considered all of them. Some in particular I’ll mention. In addi- tion to the nature and circumstances of the offense, the need to reflect the seriousness of the offense, promote respect for law, and to provide just punish- ment for the offense, as well as to afford adequate deterrence to criminal conduct, and having closely examined the defendant’s prior record and the cir- cumstances of the offense, the Court is going to impose a sentence in the amount of 52 months.

This explanation effectively singled out the factors enumer- ated in subsections (a)(1), (a)(2)(A) and (a)(2)(B) of 18 U.S.C. § 3553 as particularly relevant to the district court’s sentencing decision in this case. Turning to the specifics of Amezcua’s case, the district court continued:

I think that [a 52-month sentence] is the minimum sentence that would afford deterrence to criminal conduct. I recognize that the facts of this offense are not particularly aggravating, but that the defendant’s prior criminal history and contacts with law enforce- ment, he’s had some significant contacts . . . . 6532 UNITED STATES v. AMEZCUA-VASQUEZ Under 3553 factors, I think that the 52-month sen- tence is necessary to promote respect for the law and provide just punishment, and I also believe that that is a sentence that is necessary in order to avoid unwarranted sentencing disparities among defen- dants with similar records who have been found guilty of similar conduct, and I don’t think that a sentence of less than 52 months would satisfy the 3553 factors.

[2] We conclude that this discussion of the § 3553(a) fac- tors sufficed. We recognize that, at the sentencing hearing, the district court did not mention several of Amezcua’s mitigating arguments pertaining to his “history and characteristics.” 18 U.S.C. 3553(a)(1). We also recognize that some of these argu- ments were undoubtedly weighty—in particular, Amezcua’s cultural assimilation resulting from spending his entire life after the age of two years in the United States and his under- standable difficulty in adjusting to life in Mexico after living in the United States for half a century. On the record as a whole, however, we are satisfied that the court “listened to [Amezcua]’s argument[s]” and “then simply found these cir- cumstances insufficient to warrant a sentence lower than the Guidelines range.” Rita, 127 S. Ct. at 2469. Nothing more was required to comply with the procedural mandate articu- lated in Rita.

Substantive Reasonableness

In his principal challenge to the substantive reasonableness of his sentence, Amezcua contends that the sentence imposed by the district court is unreasonable because it is the product of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), which is predicated on a conviction that is too old to score under the Guidelines’ criminal history provisions. See U.S.S.G. § 4A1.2(e). It is not per se unreasonable to apply the enhancement when the conviction is too stale to be counted for purposes of the criminal history. See Lara-Aceves, 183 UNITED STATES v. AMEZCUA-VASQUEZ 6533 F.3d 1007, 1013-14 (9th Cir. 1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc). We conclude, however, that under the circumstances of this case, it was unreasonable to adhere to the Guidelines sentence, with its full 16-level enhancement under § 2L1.2(b), because of the staleness of Amezcua’s prior conviction and his subsequent history show- ing no convictions for harming others or committing other crimes listed in Section 2L1.2. We therefore vacate Amez- cua’s sentence, and remand for resentencing.

[3] In determining the substantive reasonableness of Amez- cua’s 52-month sentence, we “consider the totality of the cir- cumstances” and attach no presumption of reasonableness to the fact that Amezcua’s sentence falls within the applicable Guidelines range. Carty, 520 F.3d at 993 (citing Gall, 128 S. Ct. at 597). We are mindful, however, that “a Guidelines sentence ‘will usually be reasonable,’ ” id. at 994 (quoting Rita, 127 S. Ct. at 2465), for “[a]n individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission’s judgment in general.” Rita, 127 S. Ct. at 2465. We review the sentencing decision for abuse of discre- tion, and “[t]he fact that [we] might reasonably [conclude] that a different sentence [is] appropriate is insufficient to jus- tify reversal of the district court.” Gall, 128 S. Ct. at 597. Nevertheless, we may reverse if, upon reviewing the record, we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors.

[4] After giving due weight to these principles, we con- clude that Amezcua’s Guidelines sentence “fails properly to reflect § 3553(a) considerations.” Rita, 127 S. Ct. at 2465. On the facts of this case, the unmitigated application of the Guidelines sentence with its 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) substantially overstates “the nature and circumstances of [Amezcua’s] offense [and] . . . the need 6534 UNITED STATES v. AMEZCUA-VASQUEZ for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(1)-(2)(A). Section 2L1.2(b)(1)(A)(ii) requires a 16-level, 200 percent increase from the base offense level if the defendant “previ- ously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” U.S.S.G. § 2L1.2(a)-(b). The enhancement applies regardless of the time of conviction. See U.S.S.G. § 2L1.2 app. note 1(B)(vii). That is so because Sec- tion 2L1.2(b) “ ‘is a measure of the seriousness of the crime committed, ratcheting up the sentence because it is a more serious offense to return after deportation when the defendant has previously committed a serious crime—an aggravated fel- ony.’ ” United States v. Lara-Aceves, 183 F.3d at 1014 (quot- ing United States v. Gonzalez-Mendez, 112 F.3d 1325, 1329 (7th Cir. 1997)).

[5] The crucial question, then, is whether the measure of seriousness provided by the 16-level enhancement is in fact reasonable. We conclude that, on the facts of this case, it is not. The fact that Section 2L1.2(b) addresses the seriousness of the offense—as opposed to the risk of recidivism— explains the absence of time limitations on qualifying predi- cate convictions. See U.S.S.G. § 2L1.2 app. note 1(B)(vii); Lara-Aceves, 183 F.3d at 1014. It does not, however, justify increasing a defendant’s sentence by the same magnitude irre- spective of the age of the prior conviction at the time of reen- try. Although it may be reasonable to take some account of an aggravated felony, no matter how stale, in assessing the seri- ousness of an unlawful reentry into the country, it does not follow that it is inevitably reasonable to assume that a decades-old prior conviction is deserving of the same severe additional punishment as a recent one. The staleness of the conviction does not affect the Guidelines calculation, but it does affect the § 3553(a) analysis. We hold that the district court abused its discretion when it applied the Guidelines sen- tence to Amezcua without making allowances for the stale- ness of the prior conviction and his subsequent lack of any UNITED STATES v. AMEZCUA-VASQUEZ 6535 other convictions for violent crimes. The result was an unrea- sonable sentence.

[6] This is a case where the Guidelines calculation, includ- ing the 16-level enhancement, was correct, but the age of the conviction and the circumstances of this individual neverthe- less require a variance under § 3553(a) from a Guidelines sen- tence. Amezcua was convicted of assault with great bodily injury and attempted voluntary manslaughter in 1981, twenty- five years prior to his removal to Mexico and subsequent unlawful reentry. He was sentenced to four years in prison at the time and was released in 1984. Neither of his convictions even qualified as “aggravated felonies” under Title 8 until 1996.4 Finally, although he has evidently struggled with a substance addiction, there is no indication that he has committed another offense listed in Section 2L1.2 or has harmed or attempted to harm another person or the property of another for the past twenty years. Because his 1984 convictions were very old and unrepresentative of Amezcua’s characteristics during the past many years, we conclude that the Guidelines calculation yielded a sentence exceeding what was reasonable under § 3553(a). Section 2L1.2 is designed to measure “the serious- ness of the crime committed,” where the crime is “return[ing] 4 In 1990, Congress expanded the definition of “aggravated felony” to include “crime[s] of violence . . . for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years.” Immigration Act of 1990, Pub. L. No. 101-649, § 501(a)(3), 104 Stat. 4978, 5048 (1990). Amezcua’s 1981 convictions did not qualify under this definition because he was sentenced to four years. Moreover, the amendment applied only prospectively. Id. § 501(b). In 1996, Con- gress enacted the Illegal Immigration Reform and Immigrant Responsibil- ity Act, which further extended the definition of “aggravated felony” to include crimes of violence “for which the term of imprisonment [is] at least one year.” Pub. L. No. 104-208, Div. C, §§ 321(a)(3), 322(a)(2)(A), 110 Stat. 3009-546, 3009-627 (1996). The 1996 amendment applied “re- gardless of whether the conviction was entered before, on, or after the date of enactment.” Id. § 321(b). It was at this point that Amezcua’s convic- tions first qualified as “aggravated felonies” under Title 8. 8 U.S.C. § 1101(a)(43). 6536 UNITED STATES v. AMEZCUA-VASQUEZ after deportation when the defendant has previously commit- ted a serious crime.” Lara-Aceves, 183 F.3d at 1014. Even under this definition, there is no doubt that Amezcua’s illegal return after having committed an offense listed in Section 2L1.2 over 20 years earlier, after which he was never con- victed again of any such listed crime or of harming another person, is a significantly less “serious crime committed” than an illegal return very soon after having committed a serious crime. The district court abused its discretion by failing to measure the seriousness of Amezcua’s particular offense when applying Section 2L1.2 and to vary from the Guidelines sentence accordingly.

Our decision today is not inconsistent with the rationale of two of our recent post-Carty decisions: United States v. Whitehead, 532 F.3d 991 (9th Cir. 2008) (per curiam); United States v. Ruff, 535 F.3d 999 (9th Cir. 2008). In those cases, we upheld as reasonable non-Guidelines sentences that involved minimal, if any, prison time notwithstanding advi- sory Guidelines ranges of 41 to 51 months and 30 to 37 months, respectively. In doing so, we emphasized the broad discretion enjoyed by district courts in fashioning sentences that fully and adequately reflect the penological factors set forth in 18 U.S.C. § 3553(a). Whitehead, 532 F.3d at 993; Ruff, 532 F.3d at 1003-04.

These cases are analytically distinguishable from the pres- ent appeal, however. Unlike the sentences imposed in those cases, the sentence at issue in this appeal is not the product of defendant-specific § 3553(a) mitigating (or aggravating) factors with respect to which “the district court was ‘in a superior position’ to find the relevant facts and to ‘judge their import.’ ” Whitehead, 532 F.3d at 993 (quoting Gall, 128 S. Ct. at 597); see also Ruff, 535 F.3d at 1004. In this case the district court did not deviate from the Guidelines by applying defendant-specific factors that it was in a superior position to adjudge. On the contrary, the district court applied the Guide- lines sentence without considering the defendant-specific UNITED STATES v. AMEZCUA-VASQUEZ 6537 facts that made the resulting sentence unreasonable under § 3553(a)—i.e., the staleness of the predicate prior conviction and its diminished import on the severity of the illegal reentry decades after the original conviction.5 Neither Whitehead nor Ruff requires us to affirm the sentence in the present circum- stances.

Having concluded that the Guidelines sentencing range in this case unreasonably overstates the offense-specific sentenc- ing factors, 18 U.S.C. § 3553(a)(1)-(2)(A), we must still con- sider whether the ultimate sentence may nonetheless be justified in light of other aggravating sentencing consider- ations. The district court identified two such considerations that are relevant to this case: the need to “afford adequate deterrence to criminal conduct,” id. § 3553(a)(2)(B), and “the need to avoid unwarranted sentence disparities among defen- dants with similar records who have been found guilty of sim- ilar conduct,” id. § 3553(a)(6). Neither of these factors, 5 We note that the Supreme Court has vacated in light of Gall and remanded for re-sentencing a number of illegal reentry cases where the defendants were given Guideline sentences that included violent crime enhancements. See Rodriguez-Rodriguez v. United States, 128 S. Ct. 876 (2008) (vacating affirmance of a 57-month Guidelines sentence for violat- ing 8 U.S.C. § 1326 and remanding for further consideration in light of Gall), aff’d on remand sub nom. United States v. Rodriguez-Rodriguez, 530 F.3d 381 (5th Cir. 2008); Jaimes-Aguirre v. United States, 128 S. Ct. 2934 (2008) (vacating affirmance of an enhanced Guidelines sentence for violating 8 U.S.C. § 1326 and remanding for further consideration in light of Gall); Salazar-Garcia v. United States, 128 S. Ct. 2934 (2008) (vacat- ing affirmance of a 70-month Guidelines sentence for violating 8 U.S.C. § 1326 and remanding for further consideration in light of Gall); Alvarado-Molina v. United States, 128 S. Ct. 2425 (2008) (vacating affir- mance of a 46-month Guidelines sentence for violating 8 U.S.C. § 1326 and remanding for further consideration in light of Gall), reaff’d on remand sub nom. United States v. Alvarado-Molina, 288 Fed. Appx. 448 (10th Cir. 2008) (mem.). Although we must not read too much meaning into these bare orders, they support the view that, at least in some applica- tions, the Guidelines prior crime enhancements can lead to unreasonable sentences. 6538 UNITED STATES v. AMEZCUA-VASQUEZ whether considered in isolation or in the aggregate, justifies a 52-month sentence.

In its discussion of deterrence, the district court correctly pointed to certain prior convictions, including the 1981 con- victions, which are too old to affect Amezcua’s criminal his- tory score under the Guidelines. It also pointed to other more recent non-scoring law enforcement contacts for substance abuse. It is unreasonable, though, to treat a decades-old enhancing conviction as requiring as much deterrence as a recent conviction. Finally, “the need to avoid unwarranted sentence disparities” among similarly situated defendants does not weigh against Amezcua. 18 U.S.C. § 3553(a)(6). While it is important to avoid “unwarranted sentence dispari- ties among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), it is also legitimate to avoid “unwarranted similarities among [defendants] who were not similarly situated.” Gall, 128 S. Ct. at 600 (emphasis in original). It is not reasonable for Amezcua’s record of relative harmlessness to others for the past twenty years to subject him to the same severe offense level enhancement applied to a recent violent offender.

***

[7] The scope of our decision is limited. We hold that, on the specific set of facts presented by this case, a 52-month sentence that is largely predetermined by a 16-level enhance- ment under U.S.S.G. § 2L1.2(b)(1)(A) is substantively unrea- sonable, and it was an abuse of discretion for the district court to impose it. We make no pronouncement as to the reason- ableness of a comparable sentence were Amezcua’s convic- tion more recent, the sentence resulting from the prior conviction more severe or “the need . . . to protect the public from further crimes of the defendant” otherwise greater. 18 U.S.C. § 3553(a)(2)(C). UNITED STATES v. AMEZCUA-VASQUEZ 6539 CONCLUSION

We vacate Amezcua’s sentence and remand for resentenc- ing consistent with this opinion.

SENTENCE VACATED; REMANDED FOR RESEN- TENCING.