United States v. Homar Perez Chavez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 6, 2020
• Docket: 19-10994
• Status: Unpublished

Opinion

Case: 19-10994 Date Filed: 01/06/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10994 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cr-00040-JES-UAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOMAR PEREZ CHAVEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(January 6, 2020)

Before WILLIAM PRYOR, MARTIN and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 19-10994 Date Filed: 01/06/2020 Page: 2 of 5

Homar Chavez appeals his sentence of 57 months of imprisonment for

reentering the United States illegally. 8 U.S.C. § 1326(a), (b)(1). Chavez argues

that the district court failed to elicit objections after imposing his sentence as

required by United States v. Jones, 899 F.2d 1097 (11th Cir. 1990). Chavez also

argues that his sentence is procedurally and substantively unreasonable and that his

sentence is unconstitutional because his maximum statutory sentence was

increased based on the fact of a prior conviction that was not proved to a jury

beyond a reasonable doubt. We affirm.

The district court erred by failing to elicit objections from Chavez after

imposing his sentence, but its statements create a record sufficient to avoid the

need to vacate and remand the judgment. The district court neglected “to elicit

fully articulated objections, following imposition of sentence, to [its] ultimate

findings of fact and conclusions of law.” Id. at 1102. Instead, the district court

asked whether the parties had “anything further to come to [its] attention,” which is

inadequate under Jones. See United States v. Campbell, 473 F.3d 1345, 1348 (11th

Cir. 2007). Such a limited inquiry ordinarily would require us to “vacate the

sentence and remand . . . to give the parties an opportunity to raise and explain

their objections.” Jones, 899 F.2d at 1103. But because the record reflects that the

district court considered the Sentencing Guidelines and the statutory sentencing

2 Case: 19-10994 Date Filed: 01/06/2020 Page: 3 of 5

factors, we can review Chavez’s challenges to his sentence. See Campbell, 473

F.3d at 1348.

Chavez’s sentence is procedurally reasonable. The explanation provided by

district court, “though brief, was legally sufficient” to establish that it “considered

the parties’ arguments and [had] a reasoned basis” for its chosen sentence. See Rita

v. United States, 551 U.S. 338, 356 (2007). The district court stated that “a

sentence within [Chavez’s] established guideline range” was necessary to punish

his crime and address “the matters that are appropriate” for sentencing. See 18

U.S.C. § 3553. And the district court explained that it was “deny[ing] [Chavez’s]

request for a variance” and rejecting the request of the government to incarcerate

Chavez for 60 months because “a sentence at the low[] end of the guideline range”

compensated for his “confusion with respect to [points added to his] criminal

history score” for multiple distinct offenses of robbery and provided “adequate

punishment and adequate deterrence.” See id. The district court also made evident

that it did not presume that the guidelines range was reasonable when it denied

Chavez’s request for a downward departure yet continued to “take [his] variance

request under advisement.”

Chavez’s sentence is also substantively reasonable. Chavez left the United

States voluntarily in 1995 and was deported in 2013 after serving lengthy

sentences for several armed robberies and burglaries. Undeterred, Chavez

3 Case: 19-10994 Date Filed: 01/06/2020 Page: 4 of 5

reentered the United States illegally and was arrested for aggravated assault with a

deadly weapon, carrying a concealed firearm, exhibiting a dangerous weapon, and

resisting an officer without violence. Based on that record, the district court

reasonably determined that a sentence at the low end of Chavez’s recommended

guideline range of 57 to 71 months of imprisonment was required to satisfy the

statutory purposes of sentencing. See id. And Chavez’s sentence is well below his

maximum statutory sentence of 10 years, which suggests that it is reasonable. See

United States v. Carpenter, 803 F.3d 1224, 1234 (11th Cir. 2015). The district

court also considered Chavez’s argument for a downward variance based on his

obligations to family members living in the United States and in Mexico and acted

reasonably in determining that mitigating factor was outweighed by the nature and

circumstances of Chavez’s crime, his recidivism, and the need to deter him from

committing similar future crimes. See United States v. Rosales-Bruno, 789 F.3d

1249, 1254 (11th Cir. 2015) (“The decision about how much weight to assign a

particular sentencing factor is ‘committed to the sound discretion of the district

court.’”). The district court did not abuse its discretion when it sentenced Chavez

to 57 months of imprisonment.

Chavez concedes that his challenge to the constitutionality of his sentence is

foreclosed by precedent. In Almendarez–Torres v. United States, 523 U.S. 224

(1998), the Supreme Court held that a prior conviction “relevant only to the

4 Case: 19-10994 Date Filed: 01/06/2020 Page: 5 of 5

sentencing of an offender found guilty of the charged crime” does not have to be

charged in an indictment or proven beyond a reasonable doubt to a jury, even if it

increases the defendant’s maximum statutory sentence. Id. at 228–47. Almendarez-

Torres remains the law until overruled by the Supreme Court, and it expressly

refused to do so in Alleyne v. United States, 570 U.S. 99 (2013). Id. at 1260 n.1.

We AFFIRM Chavez’s sentence.