United States v. Hernandez-Juarez

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS June 23, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 05-2251 (D . N.M .) SAN TIAG O H ERNAN DEZ-JUA REZ, (D.Ct. No. CR-05-489 JH) also known as Alejandro M oreno- M orales,

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.

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.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 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 (2005), due

to mitigation evidence he presented. W e exercise jurisdiction pursuant to 18

U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm M r. Hernandez-Juarez’s

conviction and sentence.

On December 13, 2004, M r. Hernandez-Juarez was arrested for illegally

entering the United States after deportation to M exico. 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 M anual (USSG ) § 2L1.2(a). The

probation officer also applied a sixteen-level upward adjustment, based on M r.

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)(1)(A). After

applying a two-level downward adjustment for acceptance of responsibility and

factoring in M r. Hernandez-Juarez’s criminal history at Category III, the

probation officer calculated M r. Hernandez-Juarez’s sentencing range at forty-six

-2- to fifty-seven months imprisonment.

Relying on the Supreme Court’s decision in Booker and the criteria in 18

U.S.C. § 3553(a), M r. Hernandez-Juarez objected to the presentence report for the

purpose of seeking a reduction of his sentence below the sentencing guideline

range. W hile M r. 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 himself and his family in an

impoverished region of M exico. W ith 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 w ho 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.

-3- As further grounds for mitigation of his sentence, M r. Hernandez-Juarez

asserted he grew up in an economically impoverished area of southern M exico

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. H e also suggested he unsuccessfully attempted to

work in another part of M exico 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 M exico. M r. Hernandez-Juarez also claimed he was “shocked and

horrified to learn how seriously the U nited States punishes illegal reentry

offenses.”

At the sentencing hearing, M r. Hernandez-Juarez’s counsel explicitly stated

M r. 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, M r. 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 M r. Hernandez-

Juarez’s criminal history and concluded the sentencing guideline range of forty-

-4- six to fifty-seven months w as reasonable, given M r. Hernandez-Juarez illegally

reentered the United States after previously being deported for “crimes of

violence” involving manslaughter and robbery. The district court then sentenced

M r. 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, M r. 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, M r.

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.

In considering M r. Hernandez-Juarez’s arguments, it is clear the applicable

sentencing guidelines assess the base offense level for unlawfully entering or

remaining in the United States at eight and recommend a sixteen-level increase

for a prior “crime of violence.” See USSG § 2L1.2(a) and (b)(1)(A)(ii). The

-5- application note to § 2L1.2 defines a “crime of violence” in illegal reentry cases

and specifically enumerates robbery and manslaughter as crimes of violence. See

cmt. n.1(B)(iii). W hile w e recognize the Sentencing Guidelines are now advisory

rather than mandatory under the principles announced in Booker, they continue to

be a factor the district court must consider in imposing a sentence. See United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). W e have also

determined Booker “indicates that trial courts must accord deference to the

Guidelines ....” See United States v. Crockett, 435 F.3d 1305, 1318 (10th Cir.

2006).

In this case, M r. Hernandez-Juarez does not contest the characterization of

his prior offenses as “crimes of violence” under the applicable guidelines, but

nevertheless seeks a reduction of his sentence based on his argument his

confession and guilty plea w ere involuntary and unknowing. In essence, M r.

Hernandez-Juarez is collaterally attacking his state convictions. However, a

defendant may not collaterally attack a state conviction used to enhance his

federal sentence or used in calculating his criminal history, except in cases of

complete denial of legal counsel. See United States v. Delacruz-Soto, 414 F.3d

1158, 1167-68 (10th Cir. 2005); United States v. Simpson, 94 F.3d 1373, 1381

(10th Cir. 1996); United States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994). In

this case, it appears M r. Hernandez-Juarez had representation of counsel at the

-6- time of his prior offenses and, therefore, we reject his attempt to collaterally

attack his convictions.

W ith respect to M r. Hernandez-Juarez’s argument his sentence is

unreasonable because of the mitigation evidence offered, we first note that a

presumption of reasonableness attaches to a sentence, like here, which is w ithin

the correctly-calculated sentencing guideline range. See Kristl, 437 F.3d at 1053-

54. A defendant may rebut the presumption attached to a sentence within the

guideline range by demonstrating the sentence is unreasonable when viewed

against the factors delineated in 18 U.S.C. § 3553, id. at 1053, which include

consideration of whether the sentence imposed reflects the seriousness of the

offense, promotes respect for the law , provides just punishment, affords adequate

deterrence to criminal conduct, and protects the public from further crimes of the

defendant. 18 U.S.C. § 3553(a)(2)(A)-(C).

In this case, after considering the sentencing factors in 18 U.S.C. § 3553,

the applicable sentencing guidelines, the facts of the case, and M r. Hernandez-

Juarez’s criminal history, the district court refused to depart downward and

concluded the sentencing guideline range of forty-six to fifty-seven months was

reasonable under the circumstances. W e agree, given M r. Hernandez-Juarez

entered the country illegally and pled guilty to prior offenses of robbery and

-7- involuntary manslaughter, all of which are serious or violent crimes. His

suggestion his sentence is too stringent for the crime of reentry is simply a

generalized attack on the offense of reentry and does not constitute a sufficient

basis for lenience in this case. Nor has M r. Hernandez-Juarez shown why he

should be treated differently than others who, like him, illegally reentered the

country after deportation, and we find his claim of ignorance of the law

concerning the penalties for reentering the country unavailing. “[N]othing more

than a showing of general intent” that M r. Hernandez-Juarez willfully and

knowingly reentered the country is required, so it is irrelevant whether he

willfully and knowingly engaged in criminal behavior or did not understand the

consequences of his actions. United States v. Gutierrez-Gonzalez, 184 F.3d 1160,

1165 (10th Cir. 1999).

As to M r. Hernandez-Juarez’s claim he was a minor participant in his prior

offenses, warranting a sentence reduction, it is clear he pled guilty to robbery and

involuntary manslaughter, regardless of the circumstances he now suggests

surrounded his involvement. Both of those offenses are specifically enumerated

as crimes of violence for the purpose of a sentence enhancement, and he does not

contest their characterization as violent crimes. Even if he had contested the

characterization of his prior offenses, we follow a categorical approach and look

only at undisputed information, rather than engage in a fact-finding inquiry on a

-8- prior offense previously adjudicated. United States v. Austin, 426 F.3d 1266,

1270 (10th Cir. 2005), cert. denied, 126 S. Ct. 1385 (2006). In this case, other

than his mere assertions, M r. Hernandez-Juarez has not directed us to anything in

the record, including any undisputed information or documentation, to support his

position he was a minor participant in the South Carolina offenses to which he

pled guilty. Under these circumstances, it was not unreasonable for the district

court to apply a sixteen-level enhancement for M r. Hernandez-Juarez’s prior

offenses.

Similarly, the district court’s sentence w as reasonable, despite M r.

Hernandez-Juarez’s arguments he only returned to the United States due to his

financial situation and family obligations. M r. Hernandez-Juarez has not shown

why either his financial circumstances or his family responsibilities present an

extraordinary case for the purpose of establishing his sentence is unreasonable.

Similarly, we do not believe M r. Hernandez-Juarez’s sentence is unreasonable

based on his alleged difficult childhood. Conceivably, many similarly-situated

defendants could argue they, too, experienced difficult childhoods as a means to

mitigate the consequences associated with reentry into this country after

comm itting a violent crime. Under the circumstances presented, it was not

unreasonable for the district court to determine that a sentence imposed at the

bottom of the applicable guideline range sufficiently reflected the factors or

-9- considerations in § 3553, and M r. Hernandez-Juarez has not otherwise

demonstrated his sentence is unreasonable when viewed against these factors.

Finally, we must reject M r. H ernandez-Juarez’s double-counting argument.

To begin, we have long declined to rule on issues not raised in the district court

when, as here, the defendant cannot show an impediment that precluded his

raising the issue or that the ground not raised constituted plain error resulting in

manifest injustice. See U nited States v. Orr, 864 F.2d 1505, 1508 (10th Cir.

1988). Even if we considered the issue, in this case, the application note to

§ 2L1.2 of the Sentencing Guidelines expressly states “[a] conviction taken into

account under subsection (b)(1) [which includes a crime of violence] is not

excluded from consideration of w hether that conviction receives criminal history

points ....” See cmt. n.6. W e have generally upheld the use of prior convictions

to calculate both criminal history categories and sentence enhancements where,

like here, the guidelines permit such application, and M r. Hernandez-Juarez’s

argument is less than persuasive for the purpose of questioning our clear and

long-held precedent. See United States v. Alessandroni, 982 F.2d 419, 421 (10th

Cir. 1992); United States v. Florentino, 922 F.2d 1443, 1447-48 (10th Cir. 1990).

M oreover, w hile this circuit has not directly considered whether § 2L1.2 allow s

double-counting, another circuit has addressed M r. Hernandez-Juarez’s argument

straight on and rejected it on grounds the application note to § 2L1.2 expressly

-10- allows a sixteen-level enhancement “in addition to any criminal history points

added for such conviction.” See United States v. Torres-Echavarria, 129 F.3d

692, 698-99 (2d Cir. 1997). Under these circumstances, it was not unreasonable

for the district court to defer to § 2L1.2 and follow the same approach in using

M r. Hernandez-Juarez’s prior offenses to calculate his criminal history and to

further enhance his offense level because those same prior offenses were crimes

of violence. Finally, M r. Hernandez-Juarez’s rather summary argument that

§ 2L1.2 is “too draconian” and provides for a term of sentence “greater than

necessary” is essentially a facial challenge to the validity of the sixteen-level

enhancement, which we have applied on numerous occasions to criminal

sentences. W e find M r Hernandez-Juarez’s summary argument, raised for the

first time on appeal, unpersuasive in overcoming the presumption his sentence is

reasonable or in otherwise establishing that the guideline is invalid.

For these reasons, we A FFIRM M r. Hernandez-Juarez’s conviction and

sentence.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-11-