NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 19-2534 ______________
UNITED STATES OF AMERICA
v.
EPOLITO ESTEVEZ-ULLOA, a/k/a Polito Esteves, a/k/a Cecar Santiago, a/k/a Vistor R. Martinez, Appellant ______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cr-00126-001) District Judge: Honorable Paul S. Diamond ______________
Submitted under Third Circuit LAR 34.1(a) April 15, 2020 ______________
Before: AMBRO, JORDAN, and SHWARTZ, Circuit Judges.
(Filed: April 16, 2020) ______________
OPINION ______________
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge.
Epolito Estevez-Ulloa appeals his sentence for illegal reentry. Because the
sentence was substantively reasonable, we will affirm.
I
Estevez-Ulloa is a native and citizen of the Dominican Republic. Around 1991, he
illegally entered the United States but thereafter obtained lawful permanent resident
status. Thereafter, he was arrested and convicted of federal and state drug crimes and
was deported. He again illegally reentered the United States, and was again convicted of
drug offenses. Instead of being immediately deported, he was charged with unlawful
reentry after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). He pleaded guilty.
As part of sentencing, Estevez-Ulloa submitted a letter stating that he provided
information about corrupt narcotics officers, which was later shown to be untrue. The
Court continued the sentencing hearing to review the letter. At the next sentencing
hearing, the Government represented that no evidence supported the letter, and Estevez-
Ulloa’s counsel suggested that the letter may have been the result of psychological
problems. The Court again continued the sentencing hearing to allow defense counsel to
determine whether such psychological problems existed. At the next sentencing hearing,
defense counsel stated that Estevez-Ulloa was mentally competent and relayed other
information, but the Court said that this information did not corroborate the allegations in
the letter. The Court ordered an amended presentence report to address a possible
enhancement for obstruction of justice.
2 The amended report applied a two-level enhancement to Estevez-Ulloa’s offense
level for obstruction of justice pursuant to U.S.S.G. § 3C1.1, explaining that the letter
was false and that Estevez-Ulloa had made contradictory statements about the letter to the
Probation Office. Given that enhancement, other adjustments, and his criminal history,
the report placed his Guidelines range at 70 to 87 months’ imprisonment. Estevez-Ulloa
objected to the enhancement at the next sentencing hearing and the Court continued the
hearing so the Government could respond. Estevez-Ulloa subsequently withdrew his
objection.
At the fifth and final sentencing hearing, the District Court adopted without
objection the facts and conclusions in the amended presentence report. The Government
moved for a downward departure based on matters unrelated to the letter. The Court
granted the motion and departed downward two levels, resulting in a Guidelines range of
57 to 71 months’ imprisonment.
The District Court sentenced Estevez-Ulloa to 72 months’ imprisonment followed
by three years’ supervised release. The 72-month sentence included a one-month upward
variance, which the Court explained was warranted based on the facts before the Court,
including the letter. In explaining its sentence, the Court cited, among other things,
Estevez-Ulloa’s criminal history since residing in the United States and the fact that he
only made his living selling drugs. In imposing a term of supervised release, the Court
found that the presumption against supervised release for deportable defendants had been
rebutted based on Estevez-Ulloa’s prior criminal activity and the presence of his wife in
the United States and that supervised released would deter reentry.
3 Estevez-Ulloa appeals his sentence.
II
Estevez-Ulloa claims that the District Court’s (1) one-month upward variance and
(2) imposition of a term of supervised release were substantively unreasonable. We
review the substantive reasonableness of a sentence for abuse of discretion. United States
v. Miller, 833 F.3d 274, 285 (3d Cir. 2016). We will overturn a sentence as substantively
unreasonable “only where ‘no reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district court provided.’” United
States v. Napolitan, 830 F.3d 161, 164 (3d Cir. 2016) (quoting United States v. Freeman,
763 F.3d 322, 335 (3d Cir. 2014)). We look at the totality of the circumstances, United
States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc), and the record before the
District Court, United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007).
A
Estevez-Ulloa argues that the one-month upward variance was substantively
unreasonable because the District Court’s reasons for the variance were already
encompassed in the determination of his Guidelines range. At the outset, “we cannot
presume that a sentence is unreasonable simply because it falls outside the advisory
Guidelines range.” Tomko, 562 F.3d at 567. Moreover, “a sentencing court is not
prohibited from considering the factual basis underlying a defendant’s sentence
enhancements, and indeed, should consider those facts in order to tailor the sentence to
the defendant’s individual circumstances.” United States v. Greenidge, 495 F.3d 85, 103
(3d Cir. 2007) (emphasis omitted); see also United States v. Siddons, 660 F.3d 699, 708
4 (3d Cir. 2011). Indeed, a sentencing court may consider conduct that also supports an
obstruction enhancement when applying the § 3553(a) factors and “fixing a sentence.”
Greenidge, 495 F.3d at 102-03.
Here, the District Court explained that a variance was warranted based on the
record, which includes Estevez-Ulloa’s extensive criminal history, his sole vocation of
drug dealing, his multiple illegal entries into the United States, and his obstructive
conduct. See Lessner, 498 F.3d at 203. As to this latter point, his letter falsely accused
several law enforcement officers of wrongdoing. Not only were the accusations false, but
Estevez-Ulloa’s motivation for his accusations against the agents was based on their
failure to fulfill a purported promise that he could remain in the United States despite his
unlawful status. Moreover, Estevez-Ulloa provided shifting explanations about the letter.
He first told Probation that he wrote the letter himself in Spanish and that another inmate
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 19-2534 ______________
UNITED STATES OF AMERICA
v.
EPOLITO ESTEVEZ-ULLOA, a/k/a Polito Esteves, a/k/a Cecar Santiago, a/k/a Vistor R. Martinez, Appellant ______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cr-00126-001) District Judge: Honorable Paul S. Diamond ______________
Submitted under Third Circuit LAR 34.1(a) April 15, 2020 ______________
Before: AMBRO, JORDAN, and SHWARTZ, Circuit Judges.
(Filed: April 16, 2020) ______________
OPINION ______________
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge.
Epolito Estevez-Ulloa appeals his sentence for illegal reentry. Because the
sentence was substantively reasonable, we will affirm.
I
Estevez-Ulloa is a native and citizen of the Dominican Republic. Around 1991, he
illegally entered the United States but thereafter obtained lawful permanent resident
status. Thereafter, he was arrested and convicted of federal and state drug crimes and
was deported. He again illegally reentered the United States, and was again convicted of
drug offenses. Instead of being immediately deported, he was charged with unlawful
reentry after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). He pleaded guilty.
As part of sentencing, Estevez-Ulloa submitted a letter stating that he provided
information about corrupt narcotics officers, which was later shown to be untrue. The
Court continued the sentencing hearing to review the letter. At the next sentencing
hearing, the Government represented that no evidence supported the letter, and Estevez-
Ulloa’s counsel suggested that the letter may have been the result of psychological
problems. The Court again continued the sentencing hearing to allow defense counsel to
determine whether such psychological problems existed. At the next sentencing hearing,
defense counsel stated that Estevez-Ulloa was mentally competent and relayed other
information, but the Court said that this information did not corroborate the allegations in
the letter. The Court ordered an amended presentence report to address a possible
enhancement for obstruction of justice.
2 The amended report applied a two-level enhancement to Estevez-Ulloa’s offense
level for obstruction of justice pursuant to U.S.S.G. § 3C1.1, explaining that the letter
was false and that Estevez-Ulloa had made contradictory statements about the letter to the
Probation Office. Given that enhancement, other adjustments, and his criminal history,
the report placed his Guidelines range at 70 to 87 months’ imprisonment. Estevez-Ulloa
objected to the enhancement at the next sentencing hearing and the Court continued the
hearing so the Government could respond. Estevez-Ulloa subsequently withdrew his
objection.
At the fifth and final sentencing hearing, the District Court adopted without
objection the facts and conclusions in the amended presentence report. The Government
moved for a downward departure based on matters unrelated to the letter. The Court
granted the motion and departed downward two levels, resulting in a Guidelines range of
57 to 71 months’ imprisonment.
The District Court sentenced Estevez-Ulloa to 72 months’ imprisonment followed
by three years’ supervised release. The 72-month sentence included a one-month upward
variance, which the Court explained was warranted based on the facts before the Court,
including the letter. In explaining its sentence, the Court cited, among other things,
Estevez-Ulloa’s criminal history since residing in the United States and the fact that he
only made his living selling drugs. In imposing a term of supervised release, the Court
found that the presumption against supervised release for deportable defendants had been
rebutted based on Estevez-Ulloa’s prior criminal activity and the presence of his wife in
the United States and that supervised released would deter reentry.
3 Estevez-Ulloa appeals his sentence.
II
Estevez-Ulloa claims that the District Court’s (1) one-month upward variance and
(2) imposition of a term of supervised release were substantively unreasonable. We
review the substantive reasonableness of a sentence for abuse of discretion. United States
v. Miller, 833 F.3d 274, 285 (3d Cir. 2016). We will overturn a sentence as substantively
unreasonable “only where ‘no reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district court provided.’” United
States v. Napolitan, 830 F.3d 161, 164 (3d Cir. 2016) (quoting United States v. Freeman,
763 F.3d 322, 335 (3d Cir. 2014)). We look at the totality of the circumstances, United
States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc), and the record before the
District Court, United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007).
A
Estevez-Ulloa argues that the one-month upward variance was substantively
unreasonable because the District Court’s reasons for the variance were already
encompassed in the determination of his Guidelines range. At the outset, “we cannot
presume that a sentence is unreasonable simply because it falls outside the advisory
Guidelines range.” Tomko, 562 F.3d at 567. Moreover, “a sentencing court is not
prohibited from considering the factual basis underlying a defendant’s sentence
enhancements, and indeed, should consider those facts in order to tailor the sentence to
the defendant’s individual circumstances.” United States v. Greenidge, 495 F.3d 85, 103
(3d Cir. 2007) (emphasis omitted); see also United States v. Siddons, 660 F.3d 699, 708
4 (3d Cir. 2011). Indeed, a sentencing court may consider conduct that also supports an
obstruction enhancement when applying the § 3553(a) factors and “fixing a sentence.”
Greenidge, 495 F.3d at 102-03.
Here, the District Court explained that a variance was warranted based on the
record, which includes Estevez-Ulloa’s extensive criminal history, his sole vocation of
drug dealing, his multiple illegal entries into the United States, and his obstructive
conduct. See Lessner, 498 F.3d at 203. As to this latter point, his letter falsely accused
several law enforcement officers of wrongdoing. Not only were the accusations false, but
Estevez-Ulloa’s motivation for his accusations against the agents was based on their
failure to fulfill a purported promise that he could remain in the United States despite his
unlawful status. Moreover, Estevez-Ulloa provided shifting explanations about the letter.
He first told Probation that he wrote the letter himself in Spanish and that another inmate
typed it in English, but he later stated that he told an inmate what he wanted to say and
that inmate relayed the information to another inmate who typed the letter. Furthermore,
the submission of the letter caused the Government to waste resources to investigate its
contents, caused his counsel to probe unnecessarily Estevez-Ulloa’s psychological
fitness, and caused the Court to convene five separate sentencing proceedings. A
reasonable sentencing court could easily conclude that the impact of the letter and
Estevez-Ulloa’s statements about it, together with his repeated drug-dealing while
illegally in the United States, warranted additional punishment.
B
5 Estevez-Ulloa’s argument that imposing supervised release was substantively
unreasonable also fails. “Deportable immigrants are presumptively exempt from the
discretionary imposition of supervised release . . . . ” United States v. Azcona-Polanco,
865 F.3d 148, 151 (3d Cir. 2017) (citing U.S.S.G. § 5D1.1(c)). Nonetheless, a court may
impose supervised release if “the court determines it would provide an added measure of
deterrence and protection based on the facts and circumstances of a particular case.”
U.S.S.G. § 5D1.1 cmt. n.5. In Azcona-Polanco, we noted that we would affirm a term of
supervised release imposed upon a deportable defendant as substantively reasonable
given, among other facts, the defendant’s “serious criminal history,” “that after being
deported he illegally reentered the United States,” and that he “assumed an alias to
remain in the United States illegally.” 865 F.3d at 154-55 & n.3. Those same facts are
present here. Estevez-Ulloa entered the United States twice without authorization, used
aliases, and dealt drugs while in the United States. Given those facts, and the fact that his
wife resides in the United States, a reasonable sentencing court would conclude that an
additional deterrent in the form of supervised release was warranted.
III
For the foregoing reasons, we will affirm Estevez-Ulloa’s sentence.