United States v. Maximiliano Queriapa

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 21, 2023
• Docket: 21-4296
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4296

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MAXIMILIANO GABRIEL QUERIAPA, a/k/a Bryce Nicholas Martinez-Esparza, a/k/a Bryce Nicholas Martinez, a/k/a Maximiliano Crecencio Gabriel Queriapa, a/k/a Max Gabriel-Queriapa, a/k/a Max Gabriel Queriapa, a/k/a Maximiliano Gabriel, a/k/a Max Gabriel, a/k/a Maximiliano Crecencio Gabriel-Queriapa, a/k/a Maximiliano C. Gabriel Queriapa, a/k/a Gabriel Q. Crecencio,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:20-cr-00105-MR-WCM-1)

Submitted: February 6, 2023 Decided: February 21, 2023

Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: Anthony Martinez, Federal Public Defender, Jared P. Martin, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED USCA4 Appeal: 21-4296 Doc: 41 Filed: 02/21/2023 Pg: 2 of 9

STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Maximiliano Gabriel Queriapa appeals his 46-month sentence imposed following

his guilty plea to illegal reentry after deportation subsequent to a felony conviction, in

violation of 8 U.S.C. § 1326(a), (b)(1). Queriapa challenges the procedural reasonableness

of his sentence, arguing that the district court improperly calculated his Sentencing

Guidelines range and failed to consider some of his nonfrivolous arguments for a

downward-variant sentence. We conclude that the district court’s sentencing explanation

was inadequate, vacate Queriapa’s sentence, and remand for resentencing. 1

We review a criminal sentence for reasonableness “under a deferential abuse-of-

discretion standard.” United States v. Williams, 5 F.4th 500, 505 (4th Cir.), cert. denied,

142 S. Ct. 625 (2021). In reviewing for procedural reasonableness, we ensure that the

district court “committed no significant procedural error, such as improperly calculating

the Guidelines range . . . or failing to adequately explain the chosen sentence.” Id. (internal

quotation marks omitted).

“In assessing [a defendant’s] challenge to the district court’s Guidelines application,

we review factual findings for clear error and legal conclusions de novo.” United States v.

Boyd, 55 F.4th 272, 276 (4th Cir. 2022) (internal quotation marks omitted). But “[w]hen

a criminal defendant presents a sentencing issue that was not properly preserved in the

district court, we review the issue for plain error only.” United States v. Aplicano-Oyuela,

1 The district court also imposed an eight-month revocation sentence. Queriapa does not appeal that judgment.

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792 F.3d 416, 422 (4th Cir. 2015). “To satisfy plain error review, the defendant must

establish that: (1) there is a sentencing error; (2) the error is plain; and (3) the error affects

his substantial rights.” Id. Even then, we will only cure the error if it “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation

marks omitted).

Queriapa first argues, as he did in the district court, that criminal history points

should not have been assigned to his 2014 North Carolina conviction for “Driving While

Impaired, Aggravated Level 1,” (“the 2014 conviction”) and his 2019 federal conviction

for using false and fictitious documents, in violation of 18 U.S.C. § 1546 (“the 2019

conviction”). This is so, Queriapa contends, because the 2014 and 2019 convictions were

also used to enhance his offense level under U.S. Sentencing Guidelines Manual § 2L1.2(b)

(2018). Queriapa acknowledges that the commentary to the illegal-reentry Guideline

provides that “[a] conviction taken into account under subsection (b)(1), (b)(2), or (b)(3) is

not excluded from consideration of whether that conviction receives criminal history points

pursuant to Chapter 4, Part A (Criminal History).” USSG § 2L1.2 cmt. n.3. But he argues

that the district court should not have deferred to that commentary because the criminal-

history and relevant-conduct Guidelines unambiguously provide that such convictions

cannot be counted.

We disagree. Queriapa’s inconsistency argument relies on the commentary to the

criminal-history Guideline. Accordingly, he fails to show that § 2L1.2 cmt. n.3 is

inconsistent with the text of the Guideline. Thus, he has not given us reason to diverge

from our holding that a single prior conviction may be used to increase both the offense

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level and the criminal history score for an illegal-reentry offense. See United States v.

Crawford, 18 F.3d 1173, 1178–80 (4th Cir. 1994); see also United States v. Cordova-

Lopez, 34 F.4th 442, 444 (5th Cir. 2022) (concluding that “Application Note 3 merely

describes what the Guidelines’ text and structure would unambiguously require even in its

absence”).

Next, Queriapa argues for the first time on appeal that the district court erred by

applying an eight-level enhancement under § 2L1.2(b)(2)(B). The illegal-reentry

Guideline instructs courts to enhance the defendant’s offense level if “the defendant

engaged in criminal conduct” prior to being “ordered deported or ordered removed from

the United States for the first time,” USSG § 2L1.2(b)(2), and if “the defendant engaged in

criminal conduct” after being “ordered deported or ordered removed from the United States

for the first time,” USSG § 2L1.2(b)(3). Here, the probation officer concluded that

Queriapa was first deported in May 2017 and that he engaged in criminal conduct prior to

deportation (the 2014 conviction) and engaged in criminal conduct after deportation

(the 2019 conviction). Accordingly, the probation officer enhanced Queriapa’s offense

level by eight for the 2014 conviction, “a conviction for a felony offense (other than an

illegal reentry offense) for which the sentence imposed was two years or more,” USSG

§ 2L1.2(b)(2)(B), and enhanced his offense level by four for the 2019 conviction, “a

conviction for any other felony offense (other than an illegal reentry offense),” USSG

§ 2L1.2(b)(3)(D).

Queriapa contends that the district court plainly erred by applying the

§ 2L1.2(b)(2)(B) enhancement based on the 2014 conviction because he was not ordered

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deported or removed for the first time in 2017 but in 2013, when he did not voluntarily

depart as directed by the immigration judge and the alternate order of removal

automatically took effect. The Government argues that there was no plain error because it

was not clear or obvious from the record before the district court at sentencing when the

alternate order of removal took effect. Queriapa replies that the factual basis for the plea

and the presentence report (PSR) refute the Government’s argument that there was

ambiguity in the record as to when he was first ordered deported or removed. He also

moves to supplement the record with a portion of his A-File, which, he argues, would

establish that he was first ordered deported or removed long before the 2014 conviction.

The Government opposes that motion. 2

We deny Queriapa’s motion to supplement the record. The A-File does not satisfy

the requirements of Fed. R. App. P. 10(e)(2), and, in any event, the A-File simply affirms

information that is already in the record.

While it would be reasonable to infer that the alternate order of removal took effect

long before the 2014 conviction, Queriapa has to prove that any error was clear or obvious.

See United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (“The term plain error

is synonymous with clear or obvious error.” (internal quotation marks omitted)). And we

conclude that it was not clear or obvious from the information in the PSR when the alternate

order of removal took effect. Moreover, “the defendant has an affirmative duty to make a

2 We granted Queriapa’s motion to file a supplemental appendix containing the A- File documents, but we deferred ruling on his motion to supplement the record.

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showing that the information in the [PSR] is unreliable, and articulate the reasons why the

facts contained therein are untrue or inaccurate.” United States v. Fowler, ___ F.4th ___,

___, No. 19-4178, 2023 WL 310446, at *5 (4th Cir. Jan. 18, 2023) (internal quotation

marks omitted). And, absent “such a showing, the government meets its burden of proving

those facts by a preponderance of the evidence, and the district court is free to adopt the

findings of the [PSR] without more specific inquiry or explanation.” Id. (internal quotation

marks omitted). Accordingly, Queriapa had an affirmative duty to establish that the

probation officer’s finding that he was first ordered deported or removed in May 2017 was

incorrect. Because he did not do so, the district court was free to adopt the probation

officer’s finding and did not plainly err by applying the eight-level enhancement under

§ 2L1.2(b)(2)(B).

Queriapa’s final challenge is to the adequacy of the district court’s explanation. “A

district court is required to provide an individualized assessment based on the facts before

the court, and to explain adequately the sentence imposed to allow for meaningful appellate

review and to promote the perception of fair sentencing.” United States v. Lewis, 958 F.3d

240, 243 (4th Cir. 2020) (internal quotation marks omitted). When explaining the sentence,

the “district court must address or consider all non-frivolous reasons presented for

imposing a different sentence and explain why it has rejected those arguments.” United

States v. Webb, 965 F.3d 262, 270 (4th Cir. 2020) (cleaned up). “The explanation is

sufficient if it, although somewhat briefly, outlines the defendant’s particular history and

characteristics 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

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departure.” United States v. Lozano, 962 F.3d 773, 782 (4th Cir. 2020) (internal quotation

marks omitted). However, when the court has fully addressed the defendant’s “central

thesis” in mitigation, it need not “address separately each supporting data point marshalled

on its behalf.” United States v. Nance, 957 F.3d 204, 214 (4th Cir. 2020).

While “it is sometimes possible to discern a sentencing court’s rationale from the

context surrounding its decision,” we “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.” United States v. Ross, 912 F.3d 740, 745

(4th Cir. 2019) (internal quotation marks omitted). Nor may we “assume that the court has

silently adopted arguments presented by a party.” Nance, 957 F.3d at 214 (internal

quotation marks omitted). However, “in a routine case, where the district court imposes a

within-Guidelines sentence, the explanation need not be elaborate or lengthy.” United

States v. Arbaugh, 951 F.3d 167, 174–75 (4th Cir. 2020) (internal quotation marks

omitted). Ultimately, “[t]he adequacy of the sentencing court’s explanation depends on

the complexity of each case and the facts and arguments presented.” United States v.

Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (internal quotation marks omitted).

Our review of the sentencing transcript revealed that the district court considered

some of Queriapa’s arguments in mitigation. But it is not “patently obvious” that the

district court considered Queriapa’s arguments that: (1) he reentered the United States

because he was his parents’ caretaker; (2) his father’s death served as a deterrent to

engaging in additional criminal conduct; and (3) his Guidelines range did not reflect his

true culpability because his prior convictions enhanced his offense level and criminal

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history score. United States v. Blue, 877 F.3d 513, 521 (4th Cir. 2017) (internal quotation

We further conclude that the Government has not established that those omissions

were harmless. The district court’s primary motivations for imposing a within-Guidelines

sentence were to promote respect for the law, specific deterrence, and general deterrence,

and at least the latter two of the omitted arguments related to those goals. Moreover, the

fact that the district court rejected Queriapa’s legal objection to the Guidelines does not

mean that the court could omit discussion of his equitable objection as part of his argument

for a downward-variant sentence. See Torres-Reyes, 952 F.3d at 152 (concluding that

district court reversibly erred by “address[ing] only the legal objection to the criminal

history calculation” and omitting discussion of “the defendant’s equitable argument for a

variance”—that his criminal history score “over-represents his actual criminal history and

leads to a sentencing range that is too high in comparison to others”).

Because the district court’s failure to address some of Queriapa’s key mitigating

arguments was not harmless, we vacate the sentence and remand for resentencing. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

VACATED AND REMANDED