United States v. Yadira Chairez

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 15, 2024
• Docket: 24-2026
• Status: Unpublished

Opinion

Appellate Case: 24-2026 Document: 010111095201 Date Filed: 08/15/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 15, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-2026 (D.C. No. 2:23-CR-01529-KG-1) JACQUELINE YADIRA CHAIREZ, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. ** _________________________________

Defendant Jacqueline Yadira Chairez appeals the district court’s decision to

revoke her probation. For the reasons stated below, we exercise jurisdiction under

28 U.S.C. § 1291 and affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** 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. Appellate Case: 24-2026 Document: 010111095201 Date Filed: 08/15/2024 Page: 2

I.

Defendant pleaded guilty to one count of Bulk Cash Smuggling in violation of

31 U.S.C. § 5332(a)(1). 1 For her crimes, the United States District Court for the

Western District of Texas sentenced Defendant to three years’ probation and later

transferred Defendant’s supervision to the District of New Mexico.

As a mandatory condition of Defendant’s probation, the district court

prohibited Defendant from using any controlled substance. As a standard condition

of Defendant’s probation, the district court prohibited Defendant from “own[ing],

possess[ing], or hav[ing] access to a firearm.” And, as a special condition of

Defendant’s probation, the district court prohibited Defendant from “us[ing] or

possess[ing] alcohol.” Defendant violated each of these conditions. During a search

of defendant’s home, law enforcement discovered two firearms with ammunition.

Defendant also tested positive for cocaine and alcohol. Defendant admitted to the

district court that she violated these conditions, and so the district court revoked

Defendant’s probation, committing her to eighteen months’ imprisonment.

Defendant now challenges the district court’s revocation of her probation and her

sentence.

1 31 U.S.C. § 5332(a)(1) prohibits knowing concealment and transport of more than $10,000 across a United States border with the intent to evade a currency reporting requirement. 2 Appellate Case: 24-2026 Document: 010111095201 Date Filed: 08/15/2024 Page: 3

II.

We review for abuse of discretion a district court’s decision to revoke

probation. United States v. Metzener, 584 F.3d 928, 932 (10th Cir. 2009) (citing

United States v. Hammonds, 370 F.3d 1032, 1034 (10th Cir. 2004)). Similarly, we

review the sentence a district court imposes for abuse of discretion “whether the

district court impose[d] a sentence within or outside the advisory Guidelines range.”

United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (citing United

States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)). Defendant bears the

burden of persuasion—to demonstrate “‘the sentence exceeded the bounds of

permissible choice,’ such that the sentence is ‘arbitrary, capricious, whimsical, or

manifestly unreasonable.’” United States v. Gross, 44 F.4th 1298, 1302 (10th Cir.

2022) (quoting United States v. Garcia, 946 F.3d 1191, 1211 (10th Cir. 2020)).

Defendant admits she violated her probation but argues the district court erred

by revoking her probation and sentencing her without considering her post-

sentencing conduct and mitigating circumstances. We disagree.

To the extent Defendant claims the district court erred by revoking her

probation, we reject her argument but do not reach the merits. In this circuit, if a

defendant does not raise an argument in the district court, we require the defendant to

present the issue under the plain error framework. United States v. Lamirand, 669

F.3d 1091, 1000 n.7 (10th Cir. 2012) (quoting Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1127–28 (10th Cir. 2011)). But if a defendant fails to argue for plain error, we

deem the issue waived. Id. (quoting Richison, 634 F.3d at 1127–28) (“the failure to

3 Appellate Case: 24-2026 Document: 010111095201 Date Filed: 08/15/2024 Page: 4

argue for plain error and its application on appeal . . . surely marks the end of the

road for an argument for reversal not first presented to the district court.”). Here,

Defendant never objected to the district court’s decision to revoke her probation. So

because Defendant fails to argue for plain error on appeal, she waives the issue, and

we decline to review it.

Defendant also claims the district court erred in determining her ultimate

sentence because it did not consider her post-sentencing conduct and mitigating

circumstances. But Defendant does not explain what post-sentencing conduct the

court failed to consider, nor does she articulate why the district court abused its

discretion by purportedly failing to consider her conduct or other mitigating

circumstances. Without such an explanation, Defendant has not borne her burden of

persuasion and fails to demonstrate that her post-sentencing conduct and mitigating

circumstances place her sentence beyond “the bounds of permissible choice.” Gross,

44 F.4th at 1302 (quoting Garcia, 946 F.3d at 1211).

Even if Defendant had explained how she believes the district court erred, her

argument would still lack merit. The district court clearly articulated its reasons for

imposing an eighteen-month sentence, focusing on Defendant’s post-sentencing

conduct: Defendant had a “pattern of violating conditions of [probation]” and lied to

her probation officer about “getting rid of” her firearms. That the firearm “ended up

[in] the hands of [Defendant’s] daughter” in Defendant’s attempt to conceal her

probation violation also influenced the district court. In sum, the district court

concluded Defendant’s sentence “accomplished the goals of sentencing, promoted

4 Appellate Case: 24-2026 Document: 010111095201 Date Filed: 08/15/2024 Page: 5

respect for the law and the orders of the court, and kept the public safe, including

Defendant’s own children.” (Cleaned up).

Because the district court expressed a clear basis for Defendant’s sentence, and

because Defendant fails to articulate how the district court abused its discretion, we

cannot conclude the district court acted in an “arbitrary, capricious, whimsical, or

manifestly unreasonable” manner. Gross, 44 F.4th at 1302 (quoting Garcia, 946 F.3d

at 1211).

AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge