FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 14, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2186 (D.C. No. 2:19-CR-01338-JBM-1) ISIDRO ALONSO PACHECO- (D. N.M.) ESPINOZA,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, KELLY, and BACHARACH, Circuit Judges. _________________________________
Isidro Alonso Pacheco-Espinoza challenges the procedural and substantive
reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I
Pacheco pled guilty to conspiracy to distribute marijuana in violation of 21
U.S.C. § 846, possession with intent to distribute marijuana in violation of 21 U.S.C.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. § 841(a)(1) and 841(b)(1)(D), and reentry of a removed alien in violation of 8 U.S.C.
§ 1326(a) and (b). His presentence investigation report listed a total offense level of
18 and a criminal history category of IV, resulting in an advisory Guidelines range of
41 to 51 months. Pacheco did not object to this Guidelines range.
The government recommended a Guidelines sentence based primarily on
Pacheco’s criminal history. In 2002, Pacheco was convicted of conspiracy and
possession with intent to distribute 154 kilograms of marijuana in exchange for
$2,500 dollars. He was sentenced to 37 months in custody, lost his Legal Permanent
Residency status, and was deported to Mexico. In 2016, Pacheco was convicted of
reentry of a removed alien and sentenced to six months of custody and three years of
supervised release. Additionally, Pacheco has a 2002 conviction for driving while
intoxicated.
Pacheco requested a variance to a below-Guidelines sentence of 24 months and
a concurrent sentence in his revocation proceedings based on his personal history,
family’s destitute financial situation and serious medical hardships, and effort to
reform himself and help others while in county jail. He explained that after being
deported in 2016, he began working in Mexico primarily as a mechanic. In the
winter of 2019, he was struggling financially because he had limited work and few
customers that could afford to pay. He had no money for rent, food, or school
supplies for his children, so when he was offered a chance to support his family by
transporting marijuana into the United States, he agreed.
-2- Since Pacheco’s arrest, his family has fallen on hard times. His wife had to
sell the tools Pacheco used as a mechanic to provide food for the family. One of
Pacheco’s stepdaughters recently had her appendix removed. His other stepdaughter
gave birth to a premature infant with a severe medical condition that the family
cannot afford to treat. Additionally, Pacheco’s wife has had to care for her father,
who has chronic obstructive pulmonary disease.
Pacheco has begun significant efforts at rehabilitation. He started a bible
study group at the Dona Ana County Detention Center. He stated that once he is
released, he plans to work at the Yazaki factory in Ascension, where he hopes to
make enough money to support his family.
The district court considered Pacheco’s personal circumstances and efforts at
rehabilitation but found that neither warranted a downward variance. The court
imposed a 41-month sentence, the bottom of the Guidelines’ range. Pacheco timely
appealed.
II
“On appeal, we review sentences for ‘reasonableness,’ which has both
procedural and substantive dimensions.” United States v. Martinez-Barragan,
545 F.3d 894, 898 (10th Cir. 2008) (citation omitted). “That is, we consider both the
length of the sentence, as well as the method by which the sentence was calculated.”
Id. (quotation omitted).
-3- A
Unpreserved challenges to the procedural reasonableness of a sentence are
reviewed for plain error. United States v. Ortiz-Lazaro, 884 F.3d 1259, 1262 (10th
Cir. 2018). This court will find plain error when “there is (1) error, (2) that is plain,
(3) which affects substantial rights, and (4) which seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotation omitted). The
defendant bears the burden of establishing all four factors. See United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004).
In reviewing a sentence for procedural reasonableness, this court looks to
whether the district court “committed any errors in calculating or explaining its
sentence.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). A
district court can commit procedural error by “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United
States, 552 U.S. 38, 51 (2007).
Pacheco makes three arguments that his sentence was procedurally
unreasonable. First, he argues that the district court failed to meaningfully consider
his personal characteristics, family circumstances, and efforts at rehabilitation.
Although it is reversable error for a court to fail to consider the § 3553(a) factors,
Pacheco’s argument is not supported by the factual record. The court explicitly
acknowledged Pacheco’s personal circumstances but found “[his situation is] similar
-4- to almost every Defendant I hear here, comes and leaves their family in Mexico, they
have the hardship, they need support, they need money so that, to me, does not make
it special.” The court also considered Pacheco’s rehabilitative work but again found
that it did not merit a variance: “I’ve got to tell you virtually every Defendant that
I’m about to sentence to prison tells me that he has since obtained religious
conversion while he’s in jail, I’ve heard that before.” On this record, we cannot
conclude that the court erred by failing to consider the § 3553(a) factors.
Pacheco also argues that the district court erred in elevating deterrence over
the other § 3553(a) factors.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 14, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2186 (D.C. No. 2:19-CR-01338-JBM-1) ISIDRO ALONSO PACHECO- (D. N.M.) ESPINOZA,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, KELLY, and BACHARACH, Circuit Judges. _________________________________
Isidro Alonso Pacheco-Espinoza challenges the procedural and substantive
reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I
Pacheco pled guilty to conspiracy to distribute marijuana in violation of 21
U.S.C. § 846, possession with intent to distribute marijuana in violation of 21 U.S.C.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. § 841(a)(1) and 841(b)(1)(D), and reentry of a removed alien in violation of 8 U.S.C.
§ 1326(a) and (b). His presentence investigation report listed a total offense level of
18 and a criminal history category of IV, resulting in an advisory Guidelines range of
41 to 51 months. Pacheco did not object to this Guidelines range.
The government recommended a Guidelines sentence based primarily on
Pacheco’s criminal history. In 2002, Pacheco was convicted of conspiracy and
possession with intent to distribute 154 kilograms of marijuana in exchange for
$2,500 dollars. He was sentenced to 37 months in custody, lost his Legal Permanent
Residency status, and was deported to Mexico. In 2016, Pacheco was convicted of
reentry of a removed alien and sentenced to six months of custody and three years of
supervised release. Additionally, Pacheco has a 2002 conviction for driving while
intoxicated.
Pacheco requested a variance to a below-Guidelines sentence of 24 months and
a concurrent sentence in his revocation proceedings based on his personal history,
family’s destitute financial situation and serious medical hardships, and effort to
reform himself and help others while in county jail. He explained that after being
deported in 2016, he began working in Mexico primarily as a mechanic. In the
winter of 2019, he was struggling financially because he had limited work and few
customers that could afford to pay. He had no money for rent, food, or school
supplies for his children, so when he was offered a chance to support his family by
transporting marijuana into the United States, he agreed.
-2- Since Pacheco’s arrest, his family has fallen on hard times. His wife had to
sell the tools Pacheco used as a mechanic to provide food for the family. One of
Pacheco’s stepdaughters recently had her appendix removed. His other stepdaughter
gave birth to a premature infant with a severe medical condition that the family
cannot afford to treat. Additionally, Pacheco’s wife has had to care for her father,
who has chronic obstructive pulmonary disease.
Pacheco has begun significant efforts at rehabilitation. He started a bible
study group at the Dona Ana County Detention Center. He stated that once he is
released, he plans to work at the Yazaki factory in Ascension, where he hopes to
make enough money to support his family.
The district court considered Pacheco’s personal circumstances and efforts at
rehabilitation but found that neither warranted a downward variance. The court
imposed a 41-month sentence, the bottom of the Guidelines’ range. Pacheco timely
appealed.
II
“On appeal, we review sentences for ‘reasonableness,’ which has both
procedural and substantive dimensions.” United States v. Martinez-Barragan,
545 F.3d 894, 898 (10th Cir. 2008) (citation omitted). “That is, we consider both the
length of the sentence, as well as the method by which the sentence was calculated.”
Id. (quotation omitted).
-3- A
Unpreserved challenges to the procedural reasonableness of a sentence are
reviewed for plain error. United States v. Ortiz-Lazaro, 884 F.3d 1259, 1262 (10th
Cir. 2018). This court will find plain error when “there is (1) error, (2) that is plain,
(3) which affects substantial rights, and (4) which seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotation omitted). The
defendant bears the burden of establishing all four factors. See United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004).
In reviewing a sentence for procedural reasonableness, this court looks to
whether the district court “committed any errors in calculating or explaining its
sentence.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). A
district court can commit procedural error by “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United
States, 552 U.S. 38, 51 (2007).
Pacheco makes three arguments that his sentence was procedurally
unreasonable. First, he argues that the district court failed to meaningfully consider
his personal characteristics, family circumstances, and efforts at rehabilitation.
Although it is reversable error for a court to fail to consider the § 3553(a) factors,
Pacheco’s argument is not supported by the factual record. The court explicitly
acknowledged Pacheco’s personal circumstances but found “[his situation is] similar
-4- to almost every Defendant I hear here, comes and leaves their family in Mexico, they
have the hardship, they need support, they need money so that, to me, does not make
it special.” The court also considered Pacheco’s rehabilitative work but again found
that it did not merit a variance: “I’ve got to tell you virtually every Defendant that
I’m about to sentence to prison tells me that he has since obtained religious
conversion while he’s in jail, I’ve heard that before.” On this record, we cannot
conclude that the court erred by failing to consider the § 3553(a) factors.
Pacheco also argues that the district court erred in elevating deterrence over
the other § 3553(a) factors. This court has cautioned district courts “against
excessive reliance on a single factor in sentencing.” United States v. Cookson, 922
F.3d 1079, 1093 (10th Cir. 2019). However, district courts are not required to give
all § 3553(a) factors equal weight. Id. at 1094. The record shows that the court
considered a variety of § 3553(a) factors and, having found that Pacheco’s personal
circumstances did not merit a variance, decided that deterring other defendants from
committing these crimes warranted a Guidelines range sentence. The district court’s
choice to give more weight to deterrence than Pacheco’s personal circumstances after
considering the evidence before it was not a procedural error.
Finally, Pacheco argues that the district court erred in impermissibly assuming
that the Guidelines range was presumptively reasonable. It is reversable error for a
judge to expressly declare the Guidelines presumptively reasonable. Nelson v.
United States, 555 U.S. 350, 352 (2009). Though circuit courts “may apply a
presumption of reasonableness to a district court sentence that reflects a proper
-5- application of the Sentencing Guidelines,” “the sentencing court does not enjoy the
benefit of a legal presumption that the Guidelines sentence should apply.” Rita v.
United States, 551 U.S. 338, 347, 351 (2007). However, it is generally presumed that
sentencings courts “know the law” “absent some indication in the record suggesting
otherwise.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007)
(quotation omitted).
Pacheco points to the following remark as evidence that the court presumed
the Guidelines reasonable: “I’m sorry, but I find no basis for a departure or variance.
If this was a[n] original determination I would feel differently, but the law does not
justify me in sentencing you below the Advisory Guideline range, although a low end
would certainly be appropriate.” This isolated statement is insufficient to rebut the
presumption that sentencing courts know the law. The statement is consistent with
the court’s conclusion that the § 3553(a) factors did not justify a downward variance,
and a Guidelines range sentence is reasonable in this case. Additionally, the court
explicitly noted that the Guidelines are only advisory, and there are no other
indications in the record that suggest the court believed its discretion was
inappropriately restrained. Without more, we cannot conclude that the court
procedurally erred.
B
Challenges to the substantive reasonableness of a sentence are reviewed for
abuse of discretion. United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013).
A court abuses its discretion if the sentence “is arbitrary, capricious, whimsical, or
-6- manifestly unreasonable.” United States v. Durham, 902 F.3d 1180, 1236 (10th Cir.
2018) (quotation omitted). When the sentence falls within or below the applicable
Guidelines range, the sentence is presumptively reasonable. United States v. Balbin-
Mesa, 643 F.3d 783, 788 (10th Cir. 2011). The party challenging the sentence bears
the burden of rebutting this presumption. United States v. Kristl, 437 F.3d 1050,
1054 (10th Cir. 2006).
Pacheco argues that the district court erred by failing to give proper weight to
mitigating § 3553(a) factors and giving too much weight to the general need for
deterrence. Excessive reliance on one sentencing factor to the exclusion of others
can render a sentence substantively unreasonable. Cookson, 922 F.3d at 1092.
However, the district court “need not afford equal weight to each § 3553(a) factor . . .
and we will defer on substantive-reasonableness review not only to a district court’s
factual findings but also to its determinations of the weight to be afforded to such
findings.” Id. at 1094 (quotation and citation omitted).
Pacheco cannot overcome the presumption that his sentence at the bottom of
the Guidelines range was reasonable. As noted above, the district court considered
the § 3553(a) factors raised by Pacheco in concluding that a downward variance was
not justified. The court determined that Pacheco’s personal history and rehabilitative
work were not materially different from other defendants. It considered evidence
that Pacheco had previously been convicted of illegal reentry and possession with
intent to distribute and committed the instant offenses while on supervised release.
The court also considered, and attached special weight, to the risk that other
-7- individuals would be more likely to illegally reenter the United States or possess
illegal drugs with the intent to distribute if the court granted too low a sentence.
Pacheco’s disagreement with how the district court weighed these factors is
insufficient for us to conclude that the court abused its discretion.
III
For the foregoing reasons, the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero Circuit Judge
-8-