United States v. Raul Flores-Villalvaso

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2020
• Docket: 20-10039
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10039

Plaintiff-Appellee, D.C. No. 4:19-cr-01504-CKJ-DTF-1 v.

RAUL FLORES-VILLALVASO, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-10040

Plaintiff-Appellee, D.C. No. 4:15-cr-00977-CKJ-DTF-1 v.

RAUL FLORES-VILLALVASO,

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted November 17, 2020** Phoenix, Arizona

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). Before: TALLMAN, BYBEE, and BADE, Circuit Judges.

Defendant-Appellant Raul Flores-Villalvaso appeals his conviction by guilty

plea and sentence to a term of twenty-four months’ imprisonment for attempted

illegal reentry after removal in violation of 8 U.S.C. § 1326, as well as his

consecutive twenty-one-month sentence for violation of supervised release

conditions arising from a prior conviction for attempted illegal reentry. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Flores-Villalvaso first argues that he was misinformed of the elements of the

offense of attempted illegal reentry because the magistrate judge misstated the

mens rea element of “specific intent” in 8 U.S.C. § 1326 as “conscious desire” at

the plea colloquy, thereby violating Federal Rule of Criminal Procedure

11(b)(1)(G)’s requirement that the defendant understand the nature of the charge to

which he pleads. Because Flores-Villalvaso did not object below to the Rule 11

colloquy, his conviction may be reversed for Rule 11 error only if the district court

committed plain error. United States v. Pena, 314 F.3d 1152, 1155 (9th Cir. 2003).

Attempted illegal reentry in violation of 8 U.S.C. § 1326 is a crime of specific

intent “requir[ing] a finding that the defendant consciously desired to reenter the

United States without consent.” United States v. Gracidas-Ulibarry, 231 F.3d 1188,

1195, 1198 (9th Cir. 2000) (en banc) (emphasis added). Thus, by reciting the

specific intent element in terms of “conscious desire,” the magistrate judge fulfilled

2 her duty to inform Flores-Villalvaso of the nature of his illegal reentry charge in

compliance with Rule 11(b)(1)(G). See United States v. Covian-Sandoval, 462 F.3d

1090, 1095 (9th Cir. 2006). Then, immediately after explaining the nature of the

charge, the magistrate judge asked Flores-Villalvaso if he understood “what the

government would have to prove” and if he understood the charge. Flores-

Villalvaso responded to both questions affirmatively and unequivocally with “Yes.”

Because the magistrate judge made the “investment of time and effort necessary to

set forth the meaning of the charges and to demonstrate on the record that the

defendant underst[ood],” United States v. Kamer, 781 F.2d 1380, 1385 (9th Cir.

1986), no plain error occurred.

Even assuming the magistrate judge erred, however, the alleged error is not

reversible given the absence of any indication that the error affected Flores-

Villalvaso’s substantial rights or the “fairness, integrity or public reputation of

judicial proceedings.” United States v. Minore, 292 F.3d 1109, 1117 (9th Cir.

2002) (citation omitted). “Taking into account both the colloquy and the complete

record,” there is no indication that Flores-Villalvaso “actually lacked

understanding of his straightforward crime.” Covian-Sandoval, 462 F.3d at 1095.

At the plea hearing, the magistrate judge recited the elements of the offense to him

in language mirroring the indictment, and he admitted the factual basis for the plea.

At sentencing, the district court confirmed Flores-Villalvaso was able to discuss

3 the presentence report with counsel, he did not object to the presentence report, and

his counsel even remarked that he could not “stand here in good conscience and

tell the Court that Mr. Flores-Villalvaso will not return to the United States” given

Flores-Villalvaso’s twenty-seven prior removals and twenty-one previous

voluntary returns to Mexico. In the context of an “easily understood crime” like

this one, the record indicates that Flores-Villalvaso “adequately ‘possesse[d] an

understanding of the law in relation to the facts.’” Id. at 1096 (alteration in

original) (quoting United States v. Portillo-Cano, 192 F.3d 1246, 1251 (9th Cir.

1999)). In any event, even if we were to conclude that Flores-Villalvaso was

confused about the nature of the charge, he has failed to show reversible error as he

has not established a “reasonable probability that, but for the error, he would not

have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004).

Flores-Villalvaso next argues that his total forty-five-month consecutive

sentence is substantively unreasonable because it was based on a “highly

overrepresented” criminal history category of VI composed solely of convictions

for improper entry, illegal reentry, and attempted reentry. “A substantively

reasonable sentence is one that is sufficient, but not greater than necessary to

accomplish [18 U.S.C.] § 3553(a)(2)’s sentencing goals.” United States v. Ressam,

679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (internal quotation marks and

4 citation omitted). We review the substantive reasonableness of a sentence,

“whether objected to or not at sentencing,” for abuse of discretion. United States v.

Autery, 555 F.3d 864, 871 (9th Cir. 2009).

Here, “the record as a whole reflects rational and meaningful consideration

of the factors enumerated in 18 U.S.C. § 3553(a).” Ressam, 679 F.3d at 1089

(citation omitted). While Flores-Villalvaso argues that his sentence is “greater

than necessary” to achieve § 3553(a)’s goal of protecting the public since he has

never committed any violent crimes or crimes against the public, the “weight to be

given the various [sentencing] factors in a particular case is for the discretion of the

district court.” United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.

2009).

In this case, the district court noted Flores-Villalvaso’s “complete disregard

for the immigration laws of the United States,” remarking that he is “absolutely

determined to come here without legal permission.” The district court also

considered that Flores-Villalvaso’s previous sentences had no deterrent effect,

found the United States Sentencing Guidelines (“Guidelines”) range reasonable

without any objection from either party, and even remarked that the Guidelines

calculations were “very favorable” to Flores-Villalvaso given his criminal history.

Based on these considerations, the district court imposed a sentence of twenty-

four-months’ imprisonment for attempted illegal reentry, at the low end of the

5 Guidelines range, as well as a consecutive twenty-one-month sentence for violation

of his supervised release conditions—also at the low end of the Guidelines range.

The district court did not abuse its discretion in doing so.

AFFIRMED.