United States v. Hernandez-Juarez

185 F. App'x 758
Court of Appeals for the Tenth Circuit·Decided June 23, 2006·No. No. 05-2251·Published·Cited by 4 cases

Opinion

ORDER AND JUDGMENT*

WADE BRORBY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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.

Appellant Santiago Hernandez-Juarez pled guilty to illegal reentry into the United States of a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). He now appeals his forty-six-month sentence, contending his sentence is unreasonable under 18 U.S.C. § 3553 and the criteria announced in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), due to mitigation evidence he presented. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm Mr. Hernandez-Juarez’s conviction and sentence.

On December 13, 2004, Mr. Hernandez-Juarez was arrested for illegally entering the United States after deportation to Mexico. Following his guilty plea to reentry of a deported alien previously convicted of an aggravated felony, a probation officer prepared a presentence report, calculating his base offense level at eight, under U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(a). The probation officer also applied a sixteen-level upward adjustment, based on Mr. Hernandez-Juarez’s prior South Carolina convictions for robbery and involuntary manslaughter, both arising from the same incident, which the probation officer categorized as “crimes of violence” pursuant to USSG § 2L1.2(b)(l)(A). After applying a two-level downward adjustment for acceptance of responsibility and factoring in Mr. Hernandez-Juarez’s criminal history at Category III, the probation officer calculated Mr. Hernandez-Juarez’s sentencing range at forty-six to fifty-seven months imprisonment.

Relying on the Supreme Court’s decision in Booker and the criteria in 18 U.S.C. § 3553(a), Mr. Hernandez-Juarez objected to the presentence report for the purpose of seeking a reduction of his sentence below the sentencing guideline range. While Mr. Hernandez-Juarez did not contest the categorization of his prior offenses as “crimes of violence,” he claimed a reduction was warranted based on the mitigating circumstances surrounding: 1) those prior offenses; 2) his difficult childhood; and 3) his inability to financially support [760] himself and his family in an impoverished region of Mexico. With respect to his prior convictions, he claimed he played an “extremely minor role” in the South Carolina robbery, given he was drunk and remained in the vehicle while his counterparts entered a home to rob its occupants and tied up and left a man who later died of a heart attack. He also provided a copy of his confession to those prior offenses, suggesting it was not knowing or voluntary, as evidenced by the facts: 1) it was barely legible; 2) the police told him he could get the death penalty if he did not confess; and 3) his attorney and the judge strongly urged him to accept a plea bargain mid-trial. In addition, he argued his short sentences for those offenses (i.e., five years for involuntary manslaughter and seven years for robbery, which ran concurrently) corroborated his contention he was a minor participant.

As further grounds for mitigation of his sentence, Mr. Hernandez-Juarez asserted he grew up in an economically impoverished area of southern Mexico subject to government oppression and rebel activity; was raised by relatives, one of whom beat him; and attended school only through the second grade, leaving him functionally illiterate. He also suggested he unsuccessfully attempted to work in another part of Mexico and only reentered the United States for the sole purpose of earning sufficient sums to support his family and pay for his return to southern Mexico. Mr. Hernandez-Juarez also claimed he was “shocked and horrified to learn how seriously the United States punishes illegal reentry offenses.”

At the sentencing hearing, Mr. Hernandez-Juarez’s counsel explicitly stated Mr. Hernandez-Juarez did not object to the presentence report or addendum but continued to request a sentence reduction below the sentencing guideline range on the same grounds. In support of the requested reduction, Mr. Hernandez-Juarez spoke on his own behalf and described some of the dire circumstances of his childhood and his inability to financially support his family-

The district court considered the sentencing factors in 18 U.S.C. § 3553, the applicable sentencing guidelines, the facts of the case, and Mr. Hernandez-Juarez’s criminal history and concluded the sentencing guideline range of forty-six to fifty-seven months was reasonable, given Mr. Hernandez-Juarez illegally reentered the United States after previously being deported for “crimes of violence” involving manslaughter and robbery. The district court then sentenced Mr. Hernandez-Juarez at the low end of the sentencing range at forty-six months and recommended the government begin removal proceedings during service of his sentence.

On appeal, Mr. Hernandez-Juarez continues to argue his sentence is unreasonable under § 3553 and the advisory criteria announced in Booker because of the mitigation evidence he presented. For the first time on appeal, Mr. Hernandez-Juarez also claims: 1) the probation officer improperly double-counted his prior offenses by using them to both calculate his criminal history and apply the sixteen-level enhancement; and 2) § 2L1.2 is “too draconian” and provides a term of sentence “greater than necessary” because it provides for a sixteen-level enhancement for his prior felony convictions, which were also used to calculate his criminal history.

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United States v. Hernandez-Juarez, 185 F. App'x 758 (10th Cir. 2006).

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