United States v. Vicente Zarabia

217 F. App'x 906
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 14, 2007
Docket05-17200
StatusUnpublished

This text of 217 F. App'x 906 (United States v. Vicente Zarabia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vicente Zarabia, 217 F. App'x 906 (11th Cir. 2007).

Opinion

*908 PER CURIAM:

Vicente Zarabia appeals his 77-month sentence imposed on resentencing after his conviction for illegal re-entry into the United States, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Zarabia argues that the district court erred by (1) improperly calculating his criminal history score; (2) imposing sentence without giving him an opportunity for allocution; and (3) imposing an unreasonable sentence. After review, we affirm.

I. BACKGROUND

On December 10,1997, Zarabia, who is a citizen of Mexico, was convicted in the United States District Court for the Southern District of Texas of transporting a certain alien within the United States in violation of 8 U.S.C. § 1324(a)(l)(A)(ii) (Zarabia’s “alien smuggling offense”). Zarabia was sentenced to 200 days’ imprisonment and 3 years’ supervised release. On March 16, 1998, Zarabia was released from imprisonment. As a result of this alien smuggling conviction, Zarabia was deported to Mexico in May 1998.

Thereafter, Zarabia returned to the United States without permission, and on July 10, 1999, was arrested in Georgia for driving without a license, driving under the influence of alcohol, and endangering a child while driving under the influence of alcohol. Thus, Zarabia was illegally back in the United States at least by the time of his Georgia arrest on July 10, 1999, which was within two years of his March 16, 1998 release from imprisonment in Texas.

On April 14, 2004, a special agent of the Bureau of Immigration and Customs Enforcement located Zarabia in a Florida jail, where he was being held on unrelated state charges. As a result, Zarabia was indicted for being found in the United States without permission after previously having been convicted of a felony offense and deported to Mexico, in violation of 8 U.S.C. § 1326(a), (b)(2). Zarabia pled guilty to the indictment without a plea agreement.

The presentence investigation report (“PSI”) recommended a total offense level of 21, calculated as follows: (1) a base offense level of 8, pursuant to U.S.S.G. § 2L1.2(a); (2) a 16-level enhancement, pursuant to § 2L1.2(b)(l)(A)(vii), because Zarabia was deported after a conviction for an alien smuggling offense; and (3) a 3-level reduction, pursuant to § 3E1.1, for acceptance of responsibility. The PSI calculated 13 criminal history points for a criminal history category of VI, as follows: (1) 10 points for Zarabia’s previous convictions; (2) 2 points, pursuant to § 4Al.l(d), because Zarabia committed the instant offense while on supervised release for his alien smuggling offense; and (3) 1 point, pursuant to § 4Al.l(e), because Zarabia “committed the instant offense, which began on July 10, 1999, less than two years following his release from custody on March 16, 1998,” for his alien smuggling offense. Zarabia’s total offense level of 21 and criminal history category of VI resulted in a guidelines range of 77 to 96 months.

A. First Sentencing Hearing and Appeal

At the first sentencing hearing, held on January 7, 2005, Zarabia objected to the 16-level enhancement to his offense level based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court overruled the objection based on then-current Eleventh Circuit precedent. Zarabia did not object to the additional two criminal history points for committing the instant illegal reentry offense while on supervised release, or to the one criminal history point for committing the instant offense less than two years after his release from imprison *909 ment. 1 After adopting the undisputed factual statements and guidelines calculations, the district court sentenced Zarabia to 77 months’ imprisonment.

In his first appeal, Zarabia argued, in light of Blakely and United States v. Booker, 548 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the district court violated his Sixth Amendment rights by sentencing him based upon a prior conviction for alien smuggling that he did not admit, and by sentencing him under a mandatory guidelines scheme. This Court concluded that the district court did not violate Zarabia’s Sixth Amendment rights by enhancing his sentence based upon a prior conviction, but that the district court did commit a statutory Booker error by sentencing Zarabia under a mandatory guidelines scheme. United States v. Zarabia, 149 Fed.Appx. 903, 905-06 (11th Cir. 2005). Because the government could not show that this error was harmless, this Court vacated Zarabia’s sentence and remanded for resentencing. Id. at 906. In doing so, this Court rejected Zarabia’s challenge to the application of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(vii), and stated that, “on remand, the district court is required to sentence Zarabia under an advisory Guidelines regime, and shall consider the Guidelines range of 77-96 months’ imprisonment” and the other 18 U.S.C. § 3553(a) factors. Id. at 907.

B. Resentencing Hearing

At the resentencing hearing, the district court again adopted the undisputed factual statements and guidelines calculations contained in the PSI and determined that Zarabia’s total offense level was 21, his criminal history category was VI, and his advisory guidelines range was 77 to 96 months.

The district court then asked: “Do you wish to make a statement or present any information in mitigation of sentence?” In response, Zarabia’s counsel moved for a downward departure based on over-representation of criminal history. Specifically, counsel noted that (1) Zarabia only had 13 criminal history points and was “right on the cusp of the highest criminal history category,” (2) three of those points were because Zarabia committed the instant illegal re-entry offense within two years following his release from custody, 2 and (3) although Zarabia had numerous convictions, most of them were “fairly minor” and he did not have any “three point offenses.” Accordingly, Zarabia’s counsel moved for a one-level downward departure to a criminal history category of V, with a corresponding guidelines range of 70 to 87 months.

After hearing from the probation officer and the government, the district court denied the motion, stating:

Well, I’ve looked at the records and I see what it is that he had before. I think that now that the guidelines are, indeed, advisory and they are not mandatory, the Court in considering ...

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