PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-4182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GUSTAVO PEREZ-PAZ, a/k/a Jose Gustavo Perez, a/k/a Gustavo Perez-Diaz, a/k/a Santiago Orlando-Castellano,
Defendant - Appellant.
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NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Amicus Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:18-cr-00101-HEH-1)
Argued: March 12, 2021 Decided: June 30, 2021
Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge Floyd wrote the opinion in which Chief Judge Gregory and Judge Thacker joined.
ARGUED: Joseph Stephen Camden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Aidan Taft Grano, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Khaled Alrabe, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amicus Curiae.
2 FLOYD, Circuit Judge:
Defendant-Appellant Gustavo Perez-Paz is a citizen of Honduras who first entered
the United States in 1984. He has twice been removed from and subsequently reentered
the United States. His case comes before us now on appeal from his guilty plea to one
count of illegal reentry after deportation for an aggravated felony in violation of 8 U.S.C.
§ 1326(a), (b)(2). He challenges his statute of conviction as unconstitutional and the
district court’s sentence as procedurally unreasonable. We hold that § 1326 is
constitutional, but we remand for resentencing on procedural reasonableness grounds.
I.
A.
We briefly review Perez-Paz’s criminal history. Perez-Paz has two California
felony drug convictions from 1990 and 1993, respectively. In 1993, the Immigration and
Naturalization Service (INS) discovered Perez-Paz during his incarceration in California.
INS conducted removal proceedings, and Perez-Paz was removed to Honduras for the first
time on January 6, 1995.
Sometime thereafter, Perez-Paz illegally reentered the United States. In 1999, he
was arrested in South Carolina and convicted of driving under the influence and driving
with no driver’s license. In 2001, he was again arrested in South Carolina and convicted
of driving with no driver’s license.
Ten years later, in 2011, Perez-Paz was arrested in Virginia and convicted of driving
while intoxicated and driving with no driver’s license. Immigration and Customs
3 Enforcement (ICE) discovered Perez-Paz during his incarceration in Virginia. On
November 1, 2011, Perez-Paz was indicted in the Eastern District of Virginia on one count
of illegal reentry after deportation for an aggravated felony in violation of § 1326(a), (b)(2).
Perez-Paz pleaded guilty on April 13, 2012, and he was sentenced to twenty-four months
of incarceration before deportation. On July 23, 2013, following the completion of his
sentence, Perez-Paz was removed to Honduras for the second time.
Sometime thereafter, Perez-Paz again illegally reentered the United States. On May
2, 2018, he was arrested in Virginia and convicted of a hit and run, driving under the
influence, and driving with no driver’s license. This brings us to the instant dispute.
B.
In August 2018, a grand jury indicted Perez-Paz on one count of illegal reentry after
deportation subsequent to a conviction for an aggravated felony in violation of 8 U.S.C.
§ 1326(a), (b)(2). Perez-Paz moved to dismiss the indictment, challenging the
constitutionality of § 1326. He argued, in relevant part, that using an administrative
removal order as an element of a criminal offense violated the Fifth and Sixth
Amendments. The district court denied Perez-Paz’s motion, reasoning that the availability
of judicial review under § 1326(d) rendered the use of the administrative removal order
constitutional. Perez-Paz subsequently pleaded guilty to the indictment without a plea
agreement.
Following Perez-Paz’s guilty plea, the U.S. Probation Office calculated a criminal
history category of three based on the following convictions: the 2011 Virginia convictions
4 for driving while intoxicated and driving with no driver’s license, the 2012 federal
conviction for illegal reentry, and the 2018 Virginia convictions for a hit and run and
driving with no driver’s license. The criminal history category calculation did not include
the following convictions due to their age: the 1990 and 1993 California drug convictions,
the 1999 South Carolina convictions for driving under the influence and driving with no
driver’s license, and the 2001 South Carolina conviction for driving with no driver’s
license. Based in part on Perez-Paz’s criminal history category, the Probation Office
calculated a Guidelines range of eighteen to twenty-four months.
At sentencing, the government recommended an upward variance based on the
inadequacy of Perez-Paz’s criminal history category. Perez-Paz made several mitigation
arguments, four of which are relevant here. First, he explained that he had returned to the
United States following his most recent deportation in 2013 because of gang violence
directed at his family, including the murder of his brother. He also sought to reunite with
his wife of twenty-four years and his young child.
Second, Perez-Paz explained that his wife and child were fully dependent upon him
because his wife had severe medical issues. Since Perez-Paz’s arrest, his wife had been
forced to rely on disability payments and charity.
Third, Perez-Paz provided data from the U.S. Sentencing Commission indicating
that an above-range sentence would introduce unwarranted disparity. Perez-Paz’s data set
included defendants with a prior felony illegal reentry and a subsequent felony conviction
following deportation, and who similarly had a Guidelines range of eighteen to twenty-
four months with a criminal history category of three. The majority of these defendants
5 received sentences below the Guidelines range, while fewer than 1% received above-range
sentences.
Fourth, Perez-Paz contested the government’s assertion that his two California drug
convictions should result in an upward variance. Rather, Perez-Paz asserted that his
criminal history category properly excluded those convictions due to their age—twenty-
eight and thirty years old, respectively.
At the sentencing hearing, the district court granted the government’s motion for an
upward variance and ultimately sentenced Perez-Paz to forty-two months of incarceration.
The district court referenced the government’s argument that Perez-Paz’s criminal history
category did not sufficiently account for his full criminal history. The court particularly
emphasized Perez-Paz’s recidivism, noting that “neither prior criminal convictions, nor
deportation orders, have deterred the defendant from violating the immigration or criminal
laws of the United States.” J.A. 225–26.
Perez-Paz timely appeals. He argues both that his statute of conviction, § 1326, is
facially unconstitutional, and that the district court’s sentence was procedurally
unreasonable.
II.
We review questions of law de novo. See United States v. Peterson, 945 F.3d 144,
154 (4th Cir. 2019). We review sentences for reasonableness. See Gall v. United States,
552 U.S. 38, 51 (2007).
6 III.
We first address Perez-Paz’s constitutional challenges to § 1326. Section 1326
imposes criminal penalties on “any alien who . . . has been denied admission, excluded,
deported, or removed or has departed the United States while an order of exclusion,
deportation, or removal is outstanding” and later enters or is found in the United States
without permission of the United States Attorney General. 8 U.S.C. § 1326(a). Perez-Paz
makes two related but distinct constitutional arguments. * First, he contends that § 1326
violates the Fifth and Sixth Amendment right to a jury by splitting factual findings between
the jury and an administrative agency. Second, he argues that § 1326 violates the Fifth
Amendment right to due process by incorporating, as an element of the crime, a
discretionary decision by an executive officer.
1.
Taken together, the Fifth Amendment and the Sixth Amendment “indisputably
entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of
the crime with which he is charged, beyond a reasonable doubt.’” Apprendi v. New Jersey,
530 U.S. 466, 476–77 (2000) (alteration in original) (quoting United States v. Gaudin, 515
U.S. 506, 510 (1995)). Perez-Paz argues that when a statute includes an administrative
* The government preliminarily argues that Perez-Paz waived his constitutional claims by pleading guilty. To the contrary, a guilty plea does not “bar[] a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal.” Class v. United States, 138 S. Ct. 798, 803 (2018).
7 removal order as an element of the crime, that statute necessarily incorporates the facts
supporting the removal order. As such, Perez-Paz asserts that § 1326 unconstitutionally
allows an agency, rather than a jury, to establish an element of the crime.
We disagree with the premise of Perez-Paz’s argument. Section 1326 does not
incorporate the facts supporting the underlying removal order. See United States v.
Mendoza-Lopez, 481 U.S. 828, 837 (1987). In Mendoza-Lopez, the Supreme Court held
that a defendant generally may not relitigate the validity of an underlying removal order in
a § 1326 prosecution because § 1326 does not incorporate, as an element, a “lawful”
removal order. See id. at 834–35, 838–39 (holding that a defendant may only collaterally
attack the underlying removal order in a § 1326 prosecution when that order was
“fundamentally unfair” and the defendant was deprived of meaningful judicial review); see
also 8 U.S.C. § 1326(d) (codifying Mendoza-Lopez by providing requirements for
collateral attack of an underlying removal order in § 1326 proceedings). Perez-Paz seizes
on a footnote in Mendoza-Lopez stating that “the use of the result of an administrative
proceeding to establish an element of a criminal offense is troubling” and “[u]nder different
circumstances, the propriety of using of an administrative ruling in such a way remains
open to question.” Mendoza-Lopez, 481 U.S. at 838 n.15 (citing United States v. Spector,
343 U.S. 169, 179 (1952) (Jackson, J., dissenting)). But we are not presented with
“different circumstances” than those in Mendoza-Lopez. We are presented with the exact
same circumstances—a § 1326 prosecution premised on a prior removal order.
Perez-Paz may proffer different arguments, but Mendoza-Lopez remains binding:
§ 1326 does not incorporate, as an element, the facts supporting the underlying removal
8 order. See id. at 837–39. Accordingly, those facts need not be found beyond a reasonable
doubt by a jury. Cf. Apprendi, 530 U.S. at 476–77 (requiring any fact that is an element of
the crime to be found by a jury). We therefore reject Perez-Paz’s argument that § 1326
violates the Fifth and Sixth Amendment right to a jury.
2.
Perez-Paz also argues that § 1326 violates the Fifth Amendment right to due process
because it allows reliance on a discretionary decision by an executive officer. But the
Supreme Court has sanctioned such reliance in the context of § 1326.
Mendoza-Lopez recognized the due process rights at stake and imposed
requirements to protect those rights. The Court expressly stated that “where a
determination made in an administrative proceeding is to play a critical role in the
subsequent imposition of a criminal sanction, there must be some meaningful review of the
administrative proceeding.” 481 U.S. at 837–38 (emphasis in original). In the context of
a § 1326 prosecution, a defendant must be given the opportunity for judicial review of his
removal proceeding. See id. at 838–39. When such opportunity for judicial review was
not initially provided, a subsequent § 1326 proceeding must do so. See id.
In 1996, Congress passed § 1326(d) with the express purpose of codifying Mendoza-
Lopez’s judicial review requirements. See United States v. Moreno-Tapia, 848 F.3d 162,
165 (4th Cir. 2017). Section 1326(d) allows a defendant to collaterally attack an underlying
removal order in a § 1326 proceeding if (1) the defendant “exhausted any administrative
remedies . . . to seek relief against the order,” (2) the underlying removal proceedings
9 “improperly deprived the alien of the opportunity for judicial review,” and (3) “the entry
of the order was fundamentally unfair.” 8 U.S.C. § 1326(d).
We see no error in Congress’s codification of Mendoza-Lopez. Section 1326(d)
ensures that judicial review of the underlying administrative removal order is available—
in some form—in every § 1326 prosecution. See Moreno-Tapia, 848 F.3d at 166
(explaining that § 1326 protects against “procedural irregularities in immigration
proceedings that may insulate the resulting orders from judicial review, making it
fundamentally unfair to rely on those orders in later criminal prosecutions”). As the
Supreme Court held in Mendoza-Lopez, such judicial review negates the risk of premising
criminality on unfettered executive discretion. We conclude that given the availability of
judicial review, § 1326 does not violate the right to due process.
Accordingly, Perez-Paz’s constitutional claims fail.
Second, we consider Perez-Paz’s argument that his sentence is procedurally
unreasonable because the district court did not address his non-frivolous mitigation
arguments. A sentence is procedurally unreasonable when the district court fails to “place
on the record an ‘individualized assessment’ based on the particular facts of the case before
it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at
50).
We have repeatedly emphasized that in individually assessing a case, the district
court “must address or consider all non-frivolous reasons presented for imposing a different
10 sentence and explain why [it] has rejected those arguments.” United States v. Ross, 912
F.3d 740, 744 (4th Cir. 2019), cert. denied, 140 S. Ct. 206 (2019). The district court must
do so “not merely in passing or after the fact, but as part of its analysis of the statutory
factors and in response to defense counsel’s arguments for a downward departure.” United
States v. Blue, 877 F.3d 513, 519 (4th Cir. 2017) (quoting United States v. Lynn, 592 F.3d
572, 584 (4th Cir. 2010)). Of course, “[t]he adequacy of the sentencing court’s explanation
depends on the complexity of each case.” Id. at 518.
Perez-Paz asserts that the district court failed to address four of his arguments in
support of a lower sentence. We agree with Perez-Paz regarding two of these four
arguments. First, Perez-Paz contends that that his twenty-eight- and thirty-year-old
California drug convictions should not result in an upward variance. See, e.g., United
States v. Amezcua-Vasquez, 567 F.3d 1050, 1056 (9th Cir. 2009) (finding abuse of
discretion when district court placed too much weight on stale conviction). Perez-Paz
argues that the two drug convictions were properly excluded from his criminal history
category due to their age, and the court should not now consider them because he has not
since repeated any drug-related conduct. We conclude that the district court failed to
consider this argument because “in explaining its sentence, the district court neither
acknowledged . . . nor provided any explanation for rejecting it.” See United States v.
Webb, 965 F.3d 262, 270 (4th Cir. 2020) (emphasis added).
The district court spent no small amount of time discussing Perez-Paz’s “extensive
criminal history.” J.A. 224. The court emphasized Perez-Paz’s prior removal orders and
illegal reentry conviction. The court also noted Perez-Paz’s additional prior convictions
11 and mentioned that Perez-Paz did not receive criminal history points for six of those
convictions—including the two drug convictions. See J.A. 225. Despite this discussion,
at no point did the court acknowledge Perez-Paz’s argument that the two drug convictions
were stale and thus properly excluded.
It may be true that the district court did not rely on Perez-Paz’s drug convictions in
upwardly varying. Indeed, the district court ultimately calculated a Guidelines range of
thirty-seven to forty-six months despite the government’s suggestion that counting the two
drug convictions would lead to a Guidelines range of forty-six to fifty-seven months. But
“an appellate court may not guess at the district court’s rationale, searching the record for
statements by the Government or defense counsel or for any other clues that might explain
a sentence.” Carter, 564 F.3d at 329–30. Perez-Paz raised a non-frivolous argument in
favor of a lower sentence and the district court failed to address it. This is procedurally
Second, Perez-Paz asserts that the district court failed to consider his sentencing-
disparity argument. See, e.g., Webb, 965 F.3d at 270 (finding procedural error in part
because district court failed to acknowledge defendant’s argument regarding sentencing
disparities with his co-conspirators). The government responds that, when defense counsel
discussed sentencing-disparity statistics at the hearing, the district court interrupted with
questions that made clear its rejection of Perez-Paz’s sentencing-disparity argument. We
disagree.
It is true that our procedural-reasonableness review considers the “full context,
including the give-and-take of a sentencing hearing.” United States v. Nance, 957 F.3d
12 204, 213 (4th Cir. 2020). For example, in Webb, we held that the district court made it
“patently obvious” that it specifically rejected defendant’s acceptance-of-responsibility
mitigation argument, Webb, 965 F.3d at 270 (quoting Blue, 877 F.3d at 521), because the
court “directly engaged with that argument at sentencing . . . and explain[ed] its view that
[the defendant] had shown not a flicker of acceptance of responsibility,” id. (cleaned up).
The district court here provided no such patent clarity. The exchange to which the
government points is as follows:
THE COURT: Did each of these individuals have an identical criminal history to your defendant?
[DEFENSE COUNSEL]: As far as the guidelines were concerned, they were all in Category III, Your Honor. Criminal History Category III.
THE COURT: But did they have an identical criminal history to your defendant? The same number of convictions—
[DEFENSE COUNSEL]: No, I don’t think any two people have an identical criminal history.
THE COURT: Okay. That’s fair.
[DEFENSE COUNSEL]: The guidelines say similar record. Not identical.
THE COURT: Okay.
J.A. 213. This exchange is hardly conclusive as to whether or why the district court
rejected Perez-Paz’s argument. In theory, we could assume that the district court rejected
Perez-Paz’s argument because the court believed that Perez-Paz’s criminal history category
was inadequate, and comparing Perez-Paz to defendants with similar criminal history
categories would thus be improper. But the district court never stated as such, explicitly
or implicitly. Unlike in Webb, the district court did not directly engage with the sentencing-
13 disparity argument in any dispositive way. We cannot substitute our own “guess at the
district court’s rationale.” Carter, 564 F.3d at 329. The district court’s failure to address
this non-frivolous argument hinders our ability to provide “meaningful appellate review”
and is therefore procedurally unreasonable. Id. at 330.
We reach a different conclusion regarding Perez-Paz’s remaining two arguments.
First, Perez-Paz claims that the district court ignored his argument that he returned to the
United States only because a gang had murdered his brother and scattered his family. In
explaining why it chose to upwardly vary, the district court acknowledged that Perez-Paz
“was raised in an impoverished area of Santiago, Honduras, which has a [high] crime rate,”
but noted that “while other members of his family have been the victims of gang violence,
none has been directed toward [Perez-Paz] himself.” J.A. 226. This explanation, “although
somewhat brief, ‘outlined [Perez-Paz’s] particular history and characteristics not merely in
passing or after the fact.’” See Lynn, 592 F.3d at 584 (quoting United States v. Johnson,
587 F.3d 625, 639 (4th Cir. 2009)). This brief consideration suffices given the simplicity
of the argument. See United States v. Lozano, 962 F.3d 773, 782 (4th Cir. 2020); Blue, 877
F.3d at 518.
Second, Perez-Paz claims that the district court ignored his argument that he was
the sole provider for his wife—who had serious health problems—and his child. In its
analysis of the sentencing factors, the district court recognized that Perez-Paz’s wife and
child “are dependent upon him for a major portion of their support.” J.A. 226. Again, this
brief consideration suffices here in light of the simplicity of the argument. See Lozano,
962 F.3d at 782; Blue, 877 F.3d at 518.
14 Accordingly, the district court’s sentence was procedurally unreasonable to the
extent that it failed to consider Perez-Paz’s argument regarding his stale drug convictions
and his argument regarding sentencing disparities. For that reason, we vacate and remand
to the district court for resentencing.
IV.
Perez-Paz’s constitutional attacks on § 1326 are misplaced not for lack of reason,
but for the existence of binding Supreme Court precedent. We leave for another day the
question of whether premising criminality on an administrative order is always appropriate.
As for Perez-Paz’s procedural unreasonableness claim, we will continue to require district
courts to acknowledge and assess all non-frivolous arguments. For the foregoing reasons,
the district court’s sentence is
VACATED AND REMANDED.