United States v. Carrillo

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 1, 2024
• Docket: 23-2105
• Status: Unpublished

Opinion

Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 1, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2105 (D.C. No. 2:19-CR-00201-MIS-1) LEONARDO CARRILLO, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________

Defendant Leonardo Carrillo challenges the substantive reasonableness of a

twenty-four month revocation sentence that was imposed by the district court after

Carrillo admitted to violating the terms of his supervised release by using controlled

substances and absconding from a residential reentry center. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 2

I

In 2019, Carrillo pleaded guilty to one count of conspiracy to transport an

illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(i). Carrillo was sentenced to

a term of imprisonment of twenty-four months, to be followed by a three-year term of

supervised release. Carrillo completed his term of imprisonment and commenced his

term of supervised release on May 5, 2022.

On June 14, 2022, Carrillo’s probation officer filed a petition for revocation of

Carrillo’s supervised release. The petition noted that one of the conditions of

Carrillo’s supervised release was that he “must refrain from any unlawful use of a

controlled substance.” ROA, Vol. I at 17. The petition alleged, however, that on

June 3 and 13, 2022, Carrillo submitted to random drug tests at a residential reentry

center and, on both occasions, admitted to using various illegal substances. The

petition further noted that Carrillo was required, as a term of his supervised release,

to “reside in a residential reentry center for a term of (up to) six months” and “must

follow the rules and regulations of the center.” Id. According to the petition,

however, on the evening of June 13, 2022, the staff at the residential reentry center

“discovered [Carrillo] was not on the facility grounds” and “[f]urther investigation

revealed [he] jumped over the fence and left the [center] without permission.” Id.

On June 17, 2022, a separate federal criminal case, No. 22-CR-1960, was filed

against Carrillo in the district court charging him with one count of escape from

custody, in violation of 18 U.S.C. § 751(a). That charge related to Carrillo’s escape

from the residential reentry center on June 13, 2022.

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On October 19, 2022, Carrillo’s probation officer filed an amended petition for

revocation of Carrillo’s supervised release. The amended petition included the same

information contained in the original petition but added the following additional

information. To begin with, the amended petition noted that the terms of Carrillo’s

supervised released required him to refrain from “commit[ting] another federal, state,

or local crime.” Id. at 20. The amended petition in turn alleged that “[o]n June 13,

2022, a Criminal Complaint was filed” in federal district court “charging [Carrillo]

with 18 U.S.C. § 751(a): Escape from Custody,” and that the case “remain[ed]

pending.” Id. at 20. The amended petition also alleged that on October 8, 2022,

Carrillo “was arrested by deputies with the Dona Ana County Sheriff’s Office at his

mother’s residence,” and that “[a] Criminal Complaint [was] filed in the Dona Ana

County Magistrate Court charging [him] with Aggravated Assault of a Household

Member with a Deadly Weapon, (a 4th degree felony punishable by 18 months

custody), Battery Against a Household Member (misdemeanor), and Concealing

Identity (misdemeanor).” Id.

On December 1, 2022, Carrillo pleaded guilty to the escape from custody

charge in Case No. 22-CR-1960.

On May 31, 2023, Carrillo appeared before the district court and admitted to

the violations alleged in the amended petition for revocation, with the exception of

the allegation that Carrillo committed new criminal offenses for which he was

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charged in federal and state court.1 In other words, Carrillo admitted that, shortly

after beginning his term of supervised release, he violated the terms of his supervised

release by using illegal substances and absconding from the residential reentry center.

On June 28, 2023, the district court held a joint sentencing hearing for

Carrillo’s escape from custody conviction and his supervised release violations. The

district court sentenced Carrillo to a term of imprisonment of thirty months for the

escape from custody conviction, to be followed by a three-year term of supervised

release. As for the supervised release violations, the district court concluded that

they were “Grade B violation[s],” and that Carrillo’s criminal history category was

V, resulting in a Guidelines sentencing range of “12 to 18 months” and a “maximum

term [of] 24 months.” ROA, Vol. III at 37. The district court announced that it

intended “to vary” upward from the guideline range “to 24 months” due to “the

nature and circumstances of the offense and the history and characteristics of the

defendant.” Id. at 37–38. The district court explained that, regarding the nature and

circumstances of the offense, Carrillo “abscond[ed] very quickly after his placement

at the halfway house.” Id. at 38. As for Carrillo’s criminal history, the district court

cited: (a) Carrillo’s “2001 theft conviction”; (b) his “2013 aggravated burglary

conviction, where he broke into somebody’s house,” “beat the victim,” who had been

sleeping, “and demanded the victim’s prescription medications”; (c) his “2015

battery against a household member conviction”; (d) his 2018 “transporting”

1 The district court, acting pursuant to the government’s motion, dismissed the allegation regarding Carrillo committing new criminal offenses. 4 Appellate Case: 23-2105 Document: 010111008045 Date Filed: 03/01/2024 Page: 5

conviction, which involved “a high-speed chase”; (e) his “numerous writeups” and

special-unit housing “while he was in the Bureau of Prisons”; and (f) his “numerous

other contacts with law enforcement, some resulting in charges that were dismissed

and some not, . . . span[ning] from 2013 to 2022.” Id. at 38–39. The district court

concluded that “a Guideline sentence” would not “adequately deter” Carrillo, “given

his criminal history and his behavior on supervised release where he absconded from

the halfway house in about a month.” Id. at 39. The district court further concluded

that “an upward variance [wa]s needed to protect the public from the defendant.” Id.

The district court stated that the term of imprisonment imposed for the supervised

release violations would “run consecutively to the sentence the Court just imposed in

22-CR-1960.” Id. at 40. The district court also stated that no new term of supervised

release would be imposed in connection with the sentence on the supervised release

violations.

Final judgment was entered in the case on June 28, 2023. Carrillo filed a

timely notice of appeal.

II

On appeal, Carrillo argues that the revocation sentence imposed by the district

court for the supervised release violations “is substantively unreasonable because it is

not within the range of reasonable sentences when the relevant statutory factors are

considered.” Aplt. Br. at 11. Carrillo argues in support that his “violations of

supervised release are the direct result of his substance abuse disorder and his mental

health issues.” Id. He in turn asserts that “[r]esolving [his] substance abuse problem

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by getting him into effective substance abuse treatment is key to deterring any future

criminal conduct from him” and “to the protection of the public.” Id. Carrillo asserts

that “the need to provide him with substance abuse and mental health treatment,” as

well as the “circumstances of [his] offense, his own characteristics and history, . . .

and the need to deter criminal conduct and protect the public all suggest that his

two-year prison sentence . . . is unwarrantedly harsh, especially for his first violation

of supervised release.” Id. Lastly, Carrillo asserts that “by imposing the maximum

sentence of confinement allowed by law, the [district] court did not give [him] any

credit for fully accepting responsibility and acknowledging his addiction and mental

health issues.” Id.

“Substantive reasonableness focuses on the length of the sentence and requires

that sentences be neither too long nor too short.” United States v. Walker, 844 F.3d

1253, 1255 (10th Cir. 2017). “When reviewing a sentence for substantive

reasonableness, we focus on ‘whether the length of the sentence is reasonable given

all the circumstances of the case in light of the factors set forth in 18 U.S.C.

§ 3553(a).’” United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019)

(quoting United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)). “A

sentencing decision is substantively unreasonable if it ‘exceed[s] the bounds of

permissible choice, given the facts and the applicable law.’” United States v. Chavez,

723 F.3d 1226, 1233 (10th Cir. 2013) (quoting United States v. McComb, 519 F.3d

1049, 1053 (10th Cir. 2007)).

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“We review substantive reasonableness for an abuse of discretion.” United

States v. Williams, 10 F.4th 965, 977 (10th Cir. 2021). “We do not reweigh the

sentencing factors but instead ask whether the sentence fell within the range of

‘rationally available choices that facts and the law at issue can fairly support.’”

United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019) (quoting United States v.

Martinez, 610 F.3d 1216, 1227 (10th Cir. 2010)). “[W]e will defer to the district

court’s judgment so long as it falls within the realm of ... rationally available

choices.” United States v. Durham, 902 F.3d 1180, 1236 (10th Cir. 2018) (quoting

McComb, 519 F.3d at 1053).

Notably, the district court in this case addressed each of the § 3553(a) factors

in explaining its decision to impose a twenty-four month sentence for the supervised

release violations. The district court began by noting “the nature and circumstances

of the offense,” in particular Carrillo’s “absconding very quickly after his placement

at the halfway house.” ROA, Vol. III at 38. The district court in turn emphasized

Carrillo’s extensive and sometimes violent criminal history, his ”numerous writeups”

while in the custody of the Bureau of Prisons, and his “numerous other contacts with

law enforcement . . . span[ning] from 2013 to 2022.” Id. at 38–39. The district court

then “consider[ed] the need for the sentence imposed to afford adequate deterrence to

criminal conduct” and concluded that “a Guideline sentence” would not “adequately

deter . . . Carrillo, given his criminal history and his behavior on supervised release

where he absconded from the halfway house in about a month.” Id. at 39. The

district court also “consider[ed] the need to protect the public from further crimes of

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the defendant and f[ound] an upward variance [wa]s needed to protect the public

from the defendant.” Id. The district court “consider[ed] the need to provide”

Carrillo “with treatment” and “recommend[ed] [a] 500 hours program” while Carrillo

was incarcerated and also ordered “more treatment [during] his supervised release”

from the escape from custody conviction. Id. The district court addressed “the kinds

of sentences available in this case” and concluded that the presumption of

reasonableness that is typically afforded to a Guideline range sentence was

“overcome by the factors in this case,” including Carrillo’s “criminal history and

behavior on supervised release, both in state court with his probation and here in

federal court.” Id. As for “the need to avoid unwarranted sentencing disparities

among defendants with similar records,” the district court noted that it was “not sure

there [wa]s a sentencing disparity, given . . . Carrillo’s lengthy and violent criminal

history.” Id. at 39–40. The district court further stated that “if there [wa]s a

sentencing disparity,” it was “warranted by the facts in this case, where he absconded

so quickly after placement in the halfway house.” Id. at 40. Lastly, the district court

noted there was “no restitution in this case, so [it was] not considering any need for

restitution.” Id.

We conclude there was no abuse of discretion on the part of the district court

in imposing the twenty-four month sentence in this case. As the Supreme Court has

noted, “[t]he sentencing judge is in a superior position to find facts and judge their

import under § 3553(a) in the individual case.” Gall v. United States, 552 U.S. 38,

51 (2007). And that is precisely what occurred here: the district court, after

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considering all of the relevant statutory factors, concluded that a twenty-four month

sentence was necessary to comply with all of the purposes of sentencing. Nothing in

the record in this case persuades us that the district court exceeded the bounds of

permissible choice in making its decision.

III

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge