F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS April 19, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2053 v. (D. New M exico) R OBER TO JU LIO D A V ILA - (D.C. No. CR-04-2314-JH) SA LV A TIER RA ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, B AL DOC K , and HA RTZ, Circuit Judges.
Julio Davila-Salvatierra pleaded guilty to illegal reentry after deportation
subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a),
(b)(2). The district court imposed a sentence at the bottom of the range suggested
by the U nited States Sentencing Guidelines (“U SSG” or “G uidelines”). M r.
Davila-Salvatierra now challenges the procedural and substantive reasonableness
of that sentence. W e take jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. U.S.C. § 1291, and affirm.
I. BACKGROUND
On August 19, 2004, Immigration and Customs Enforcement officials
encountered M r. D avila-Salvatierra in Dona Ana County, New M exico. He
admitted being a citizen of M exico and that he illegally entered the United States.
Shortly thereafter, M r. Davila-Salvatierra was indicted for illegal reentry after
deportation subsequent to an aggravated felony conviction. He pleaded guilty
pursuant to a plea agreement. In exchange, the government agreed to recommend
that M r. Davila-Salvatierra receive a sentence at the bottom of the applicable
advisory guideline range and to file a motion for an additional one-level reduction
in his total offense level for acceptance of responsibility.
The United States Probation Office prepared a presentence investigation
report (“PSR”). The PSR determined M r. Davila-Salvatierra’s base offense level
was eight. See USSG § 2L1.2(a). Because he was previously convicted for
assault with a firearm on a person, the PSR increased the base offense level by
sixteen levels. See USSG § 2L1.2(b)(1)(A). Applying a two-level downward
adjustment for acceptance of responsibility, see USSG § 3E1.1(a), the PSR
calculated a total offense level of twenty-two. The PSR set M r. Davila-
Salvatierra’s criminal history category at V. M r. Davila-Salvatierra’s adjusted
offense level of twenty-two and criminal history category of V yielded a
suggested sentencing range of seventy-seven to ninety-six months’ imprisonment.
-2- The PSR also noted that “the probation office has identified no departure issues”
and “there are no circumstances that take the defendant’s case away from the
heartland of similarly situated defendants.” PSR ¶ 49.
During a presentence interview with the Probation Office, M r. Davila-
Salvatierra’s counsel indicated that he believed a departure was warranted
because M r. Davila-Salvatierra only reentered the country after learning that his
mother was terminally ill and asked to visit with him before she died. Counsel
provided the Probation Office with evidence that M r. Davila-Salvatierra’s mother
did in fact pass away on December 23, 2004.
In an addendum to the PSR, the Probation Office did not dispute that M r.
Davila-Salvatierra reentered the country to visit his dying mother. First
Addendum to the PSR at 1 (noting that M r.Davila-Salvatierra’s situation was “sad
and heartfelt”). It stated, however, that “this new information does not raise [sic]
to the level of a non-exhaustive set of circumstances warranting a departure. . . .
At this time, we have weighed the relevant departure issues applicable and do not
feel that any downward departure can be justified based on the current set of
circumstances.” Id. at 1-2.
Prior to sentencing, M r. Davila-Salvatierra filed a motion requesting a
below-G uidelines sentence. He argued, inter alia, that the district court should
depart downward because he only reentered the United States to fulfill his dying
mother’s request, and he had “long suffered from severe depression, anxiety, and
-3- other mental health disorders.” Rec. vol. I, doc. 32, ¶ 19. He contended his
mother’s terminal condition was grounds for a departure because it constituted
extraordinary familial circumstances, see United States v. Rodriguez-Velarde, 127
F.3d 966, 968-69 (10th Cir. 1997), and caused him duress, see USSG § 5K2.12.
He argued his mental health issues constituted grounds for a departure based on
diminished capacity. See USSG § 5K1.13. Additionally, he requested a variance
based on the sentencing factors listed in 18 U.S.C. § 3553(a). The government
opposed M r. Davila-Salvatierra’s motion, arguing that his “situation defines the
heartland of similarly charge defendants.” Rec. vol. I, doc. 35, at 2.
At sentencing, defense counsel reiterated M r. Davila-Salvatierra’s
mitigation arguments and requested a thirty-five-month sentence. M r. Davila-
Salvatierra also spoke on his own behalf. In response, the government simply
referenced its earlier opposition motion. Also, pursuant to the plea agreement,
the government moved for an additional one-level reduction in M r. Davila-
Salvatierra’s total offense level.
The district court adopted the factual findings and Guideline calculations in
the PSR and granted the government’s motion, resulting in a new advisory
Guidelines range of seventy to eighty-seven months. The court then sentenced
M r. Davila-Salvatierra to seventy months’ imprisonment, with the following
explanation:
The Court has reviewed the presentence report factual findings. The Court has
-4- considered the advisory sentencing guideline applications. The Court has also considered the factors set forth in 18 U.S.C. § 3553. . . .
I w ill say that I find that the sentence that I’ve stated is reasonable under all circumstances. I do note that the defendant has a fairly significant crim inal history in the United States apart from immigration issues and so my feeling is that that is a reasonable sentence under the circumstances.
I will note also that it is my belief that the defendant used poor judgment as opposed to suffering from a significant reduced mental capacity, so I don’t find that the reduction or the downw ard departure is appropriate under the circumstances.
Id. vol. IV, at 8-10. This appeal followed.
II. DISCUSSION
W e review sentences imposed post-Booker for reasonableness. United
States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006). Reasonableness has
both procedural and substantive components which encompass, respectively, the
method by which the sentence was calculated and the length of the sentence. See
id. at 1055. In this case, M r.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS April 19, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2053 v. (D. New M exico) R OBER TO JU LIO D A V ILA - (D.C. No. CR-04-2314-JH) SA LV A TIER RA ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, B AL DOC K , and HA RTZ, Circuit Judges.
Julio Davila-Salvatierra pleaded guilty to illegal reentry after deportation
subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a),
(b)(2). The district court imposed a sentence at the bottom of the range suggested
by the U nited States Sentencing Guidelines (“U SSG” or “G uidelines”). M r.
Davila-Salvatierra now challenges the procedural and substantive reasonableness
of that sentence. W e take jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
* 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. U.S.C. § 1291, and affirm.
I. BACKGROUND
On August 19, 2004, Immigration and Customs Enforcement officials
encountered M r. D avila-Salvatierra in Dona Ana County, New M exico. He
admitted being a citizen of M exico and that he illegally entered the United States.
Shortly thereafter, M r. Davila-Salvatierra was indicted for illegal reentry after
deportation subsequent to an aggravated felony conviction. He pleaded guilty
pursuant to a plea agreement. In exchange, the government agreed to recommend
that M r. Davila-Salvatierra receive a sentence at the bottom of the applicable
advisory guideline range and to file a motion for an additional one-level reduction
in his total offense level for acceptance of responsibility.
The United States Probation Office prepared a presentence investigation
report (“PSR”). The PSR determined M r. Davila-Salvatierra’s base offense level
was eight. See USSG § 2L1.2(a). Because he was previously convicted for
assault with a firearm on a person, the PSR increased the base offense level by
sixteen levels. See USSG § 2L1.2(b)(1)(A). Applying a two-level downward
adjustment for acceptance of responsibility, see USSG § 3E1.1(a), the PSR
calculated a total offense level of twenty-two. The PSR set M r. Davila-
Salvatierra’s criminal history category at V. M r. Davila-Salvatierra’s adjusted
offense level of twenty-two and criminal history category of V yielded a
suggested sentencing range of seventy-seven to ninety-six months’ imprisonment.
-2- The PSR also noted that “the probation office has identified no departure issues”
and “there are no circumstances that take the defendant’s case away from the
heartland of similarly situated defendants.” PSR ¶ 49.
During a presentence interview with the Probation Office, M r. Davila-
Salvatierra’s counsel indicated that he believed a departure was warranted
because M r. Davila-Salvatierra only reentered the country after learning that his
mother was terminally ill and asked to visit with him before she died. Counsel
provided the Probation Office with evidence that M r. Davila-Salvatierra’s mother
did in fact pass away on December 23, 2004.
In an addendum to the PSR, the Probation Office did not dispute that M r.
Davila-Salvatierra reentered the country to visit his dying mother. First
Addendum to the PSR at 1 (noting that M r.Davila-Salvatierra’s situation was “sad
and heartfelt”). It stated, however, that “this new information does not raise [sic]
to the level of a non-exhaustive set of circumstances warranting a departure. . . .
At this time, we have weighed the relevant departure issues applicable and do not
feel that any downward departure can be justified based on the current set of
circumstances.” Id. at 1-2.
Prior to sentencing, M r. Davila-Salvatierra filed a motion requesting a
below-G uidelines sentence. He argued, inter alia, that the district court should
depart downward because he only reentered the United States to fulfill his dying
mother’s request, and he had “long suffered from severe depression, anxiety, and
-3- other mental health disorders.” Rec. vol. I, doc. 32, ¶ 19. He contended his
mother’s terminal condition was grounds for a departure because it constituted
extraordinary familial circumstances, see United States v. Rodriguez-Velarde, 127
F.3d 966, 968-69 (10th Cir. 1997), and caused him duress, see USSG § 5K2.12.
He argued his mental health issues constituted grounds for a departure based on
diminished capacity. See USSG § 5K1.13. Additionally, he requested a variance
based on the sentencing factors listed in 18 U.S.C. § 3553(a). The government
opposed M r. Davila-Salvatierra’s motion, arguing that his “situation defines the
heartland of similarly charge defendants.” Rec. vol. I, doc. 35, at 2.
At sentencing, defense counsel reiterated M r. Davila-Salvatierra’s
mitigation arguments and requested a thirty-five-month sentence. M r. Davila-
Salvatierra also spoke on his own behalf. In response, the government simply
referenced its earlier opposition motion. Also, pursuant to the plea agreement,
the government moved for an additional one-level reduction in M r. Davila-
Salvatierra’s total offense level.
The district court adopted the factual findings and Guideline calculations in
the PSR and granted the government’s motion, resulting in a new advisory
Guidelines range of seventy to eighty-seven months. The court then sentenced
M r. Davila-Salvatierra to seventy months’ imprisonment, with the following
explanation:
The Court has reviewed the presentence report factual findings. The Court has
-4- considered the advisory sentencing guideline applications. The Court has also considered the factors set forth in 18 U.S.C. § 3553. . . .
I w ill say that I find that the sentence that I’ve stated is reasonable under all circumstances. I do note that the defendant has a fairly significant crim inal history in the United States apart from immigration issues and so my feeling is that that is a reasonable sentence under the circumstances.
I will note also that it is my belief that the defendant used poor judgment as opposed to suffering from a significant reduced mental capacity, so I don’t find that the reduction or the downw ard departure is appropriate under the circumstances.
Id. vol. IV, at 8-10. This appeal followed.
II. DISCUSSION
W e review sentences imposed post-Booker for reasonableness. United
States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006). Reasonableness has
both procedural and substantive components which encompass, respectively, the
method by which the sentence was calculated and the length of the sentence. See
id. at 1055. In this case, M r. Davila-Salvatierra maintains his low-end Guidelines
sentence is both procedurally and substantively unreasonable.
A. P ROCEDURAL R EASONABLENESS
To assess the procedural reasonableness of a defendant’s sentence, we
examine whether the district court appreciated the advisory nature of the
Guidelines, correctly calculated the applicable Guidelines range, and considered
the § 3553(a) factors when crafting the sentence. See U nited States v. Sanchez-
Juarez, 446 F.3d 1109, 1114-15 (10th Cir. 2006). W e also require the district
-5- court to explain its reasons for imposing a particular sentence. Id. at 1116
(“[T]he court’s failure to give reasons for its decision would leave us in a zone of
speculation on appellate review.”) (internal quotation marks omitted). In
particular, when a defendant makes “a nonfrivolous argument for leniency,” the
district court “must somehow indicate that [it] did not ‘rest on the guidelines
alone, but considered whether the guideline sentence actually conforms, in the
circumstances, to the statutory factors.’” United States v. Jarrillo-Luna, 478 F.3d
1226, 1230 (10th Cir. 2007) (quoting Sanchez-Juarez, 446 F.3d at 1117)
(emphasis added).
M r. Davila-Salvatierra does not contend the district court was unaware of
its post-Booker ability to vary from the Guidelines or that it miscalculated the
advisory Guidelines range. Instead, he alleges the district court failed to properly
consider the § 3553(a) factors and adequately explain his sentence. For support,
he emphasizes that the court “made no mention of [his] uncontested factual basis
of entering the country solely to see his dying mother, nor did the court mention a
single 3553 factor other than [his] criminal history.” Aplt’s Br. at 13. He also
points out that the court did not acknowledge his argument that his mother’s
illness constituted grounds for a downward departure based on extraordinary
family circumstances and duress.
W e first note that M r. Davila-Salvatierra did not object to the district
court’s explanation of his sentence. Consequently, we may vacate his sentence
-6- for procedural unreasonableness only in the presence of plain error. United States
v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006). “Plain error occurs when
there is (i) error, (ii) that is plain, which (iii) affects the defendant’s substantial
rights, and which (iv) seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199
(10th Cir. 2007). In this case, we need not move beyond the first prong of plain
error review because the district court committed no error.
As w e recently made clear, a district court sufficiently explains its
imposition of a within-the-G uidelines sentence by entertaining the defendant’s
arguments for a below-Guidelines sentence, indicating on the record that it
considered the § 3553(a) factors, and “provid[ing] only a general statement of the
reasons for its imposition of the . . . sentence.” Ruiz-Terrazas, 477 F.3d at 1199
(internal quotation marks omitted). The district court need not explicitly
reference each of the § 3553(a) factors or respond to “every argument for
leniency that it rejects in arriving at a reasonable sentence.” Jarrillo-Luna, 478
F.3d at 1229. This is particularly true where, as here, the district court imposes a
sentence at the bottom of the recommended Guidelines range. See Sanchez-
Juarez, 446 F.3d at 1115 (noting that a district court’s “decision to impose a
sentence at the low end of the Guidelines range may fairly be read as a functional
rejection of [the defendant’s] arguments and a denial of his request for a
below-G uidelines sentence.”).
-7- The district court adequately considered the § 3553(a) factors and
explained its imposition of M r. D avila-Salvatierra’s low-end Guidelines sentence.
First, the court entertained M r. Davila-Salvatierra’s mitigation arguments, which
were made in a motion and orally at the sentencing hearing. The court also stated
on the record that it had considered the § 3553(a) factors. Furthermore, the court
provided a general statement of reasons by citing the facts it found most relevant
to imposing a low -end Guidelines sentence, namely M r. Davila-Salvatierra’s
“fairly significant criminal history” and the court’s belief that he had “used poor
judgment as opposed to suffering from a significant reduced mental capacity”
when illegally reentering the country. Rec. vol. IV, at 10. Cf. Jarrillo-Luna, 478
F.3d at 1230 (holding that district court adequately explained defendant’s low-end
Guidelines sentence by stating that it “look[ed] ‘very carefully at the
circumstances of this man and his offense’ and then explaining what it considered
‘the two things that are most compelling’ from [the defendant’s] past”).
Because the district court expressed a clear rationale for its decision, there
is no foundation for a finding of procedural unreasonableness. Thus, the district
court committed no error.
B. S UBSTANTIVE R EASONABLENESS
To assess substantive reasonableness, we consider whether the sentence
imposed by the district court is unreasonable in light of the § 3553(a) factors.
Kristl, 437 F.3d at 1054. Because M r. Davila-Salvatierra’s sentence falls within
-8- the properly calculated advisory Guidelines range, it is entitled to a rebuttable
presumption of reasonableness. Id. However, because the Supreme Court
recently heard oral argument in two cases that may change the way federal
appellate courts review sentences post-Booker, see United States v. Rita, 177 Fed.
Appx. 357, cert. granted, 127 S. Ct. 551 (U.S. Nov 3, 2006) (No. 06-5754);
United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551
(U .S. Nov. 3, 2006) (No. 06-5618), w e decline to rely on this presumption.
M r. Davila-Salvatierra generally argues his 70-month sentence was
“unreasonably long” in light of the fact that he reentered the United States to visit
his dying mother. Aplt’s Br. at 1. Although his mother’s illness and death are
tragic, after assessing M r. Davila-Salvatierra’s sentence in light of the § 3553(a)
factors, we conclude it is reasonable.
First, the reentry of an ex-felon is a serious offense for which Congress has
imposed a statutory maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2).
M oreover, as the district court observed, M r. Davila-Salvatierra has a “fairly
significant criminal history,” which includes prior convictions for assault with a
firearm, being a felon in possession of a firearm, and illegal reentry of a deported
alien. PSR ¶ 24-26. Furthermore, the question confronting us on appeal is not
whether M r. Davila-Salvatierra could have been sentenced to a lower prison term,
but whether the given sentence is reasonable. See Jarrillo-Luna, 478 F.3d at 1229
(“To affirm, we must simply be satisfied that the chosen sentence, standing alone,
-9- is reasonable.”) (emphasis added). Considering the seriousness of the underlying
offense as well as M r. Davila-Salvatierra’s criminal history, a bottom-of-the-
G uidelines sentence provides just punishment, promotes respect for the law,
affords adequate deterrence, and protects the public from future harm. See U.S.C.
§ 3553(a)(1). Accordingly, M r. Davila-Salvatierra’s sentence is substantively
reasonable.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by the district
court.
Entered for the Court,
Robert H. Henry Circuit Judge
-10-