F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 8 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 00-8023
(D.C. No. 99-CR-117)
ROBERTO ULLOA-PORRAS, (D. Wyo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.
Defendant Roberto Ulloa-Porras appeals from his forty-six month sentence,
asserting that the sentencing judge erroneously denied his motion for a downward
departure and, in the alternative, that the United States Sentencing Guidelines are
unconstitutional. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a) and we affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Background
Mr. Roberto Ulloa-Porras, a citizen of Mexico, first entered the United
States in 1975. In 1995, he was convicted of delivery of a controlled substance in
violation of Wyo. Stat. Ann. § 35-7-1031, an aggravated felony. See 8 U.S.C. §
1101(a)(43). After serving his state sentence, Mr. Ulloa-Porras was released into
the custody of the Immigration and Naturalization Service (“INS”) and deported
to Mexico on January 16, 1998. He reentered the United States some ten or
eleven months later and was arrested by the INS in 1999. Mr. Ulloa-Porras pled
guilty to a one-count indictment charging him with illegal entry of a deported
alien into the United States, a violation of 18 U.S.C. § 1326, and was sentenced to
a forty-six month term of imprisonment. He raises four issues on appeal: (1) that
the indictment to which he pled was defective under Apprendi v. New Jersey , 120
S. Ct. 2348 (2000); (2) that his sentence was imposed in violation of 18 U.S.C. §
3553(a); (3) that the district court erred in refusing to depart downward on the
basis of cultural assimilation; and (4) that the United States Sentencing
Guidelines are unconstitutional.
Discussion
When Mr. Ulloa-Porras voluntarily entered a guilty plea to the indictment,
he waived all non-jurisdictional defenses, including his defective indictment
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claim . United States v. Browning , 61 F.3d 752, 753 (10th Cir. 1995) (citing
United States v. Davis , 900 F.2d 1524, 1525-26 (10th Cir. 1990)); see also Tollett
v. Henderson , 411 U.S. 258, 267 (1973) (“When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with which
he is charged, he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty
plea.”). Therefore, we need not address Mr. Ulloa-Porras’ argument that the
indictment was defective for failure to allege his prior aggravated felony
conviction. Cf. United States v. Martinez-Villalva , 232 F.3d 1329, ---, 2000 WL
1736964, *1 (10th Cir. 2000) (rejecting identical defective indictment claim on
the merits). Second, we reject the defendant’s assertion that his sentence violates
18 U.S.C. § 3553(a). Because Mr. Ulloa-Porras’ “overall sentence is sufficient,
but not greater than necessary, to comply with the . . . goals [listed in § 3553(a)],
the statute is satisfied.” Koon v. United States , 518 U.S. 81, 108 (1996)
(quotations and citation omitted).
Mr. Ulloa-Porras also contends that he was entitled to a downward
departure under United States v. Lipman , 133 F.3d 726 (9th Cir. 1998), in which
the Ninth Circuit analogized “cultural assimilation” to “family and community
ties,” a discouraged factor under U.S.S.G. § 5H1.6. Id. at 730. “Thus, to the
extent that cultural assimilation denotes family and community ties, [ Lipman
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held] that the district court has the authority to depart on this basis in
extraordinary circumstances.” Id. Our analysis of the sentencing court’s denial
of Mr. Ulloa-Porras’ motion for a downward departure must begin with the
familiar rule that “[a]bsent the trial court’s clear misunderstanding of its
discretion to depart, . . . we have no jurisdiction to review a refusal to depart.”
United States v. Coddington , 118 F.3d 1439, 1441 (10th Cir. 1997) (citations
omitted, emphasis added). Mr. Ulloa-Porras asserts that the sentencing court did
not understand its authority to grant his motion for a downward departure on the
basis of cultural assimilation. Aplt. Br. at 11. We disagree.
The record in this case indicates that the sentencing judge agreed with the
basic holding in Lipman , but that he did not believe he could depart downward in
Mr. Ulloa-Porras’ case . E.g. , Tr. of Hr’g at 32 (Mar. 8, 2000) (oral ruling by
court) (“I can discern no basis . . . to depart in this instance.”); id. at 35 (“. . . I
don’t have the authority to depart based on what I know about this case.”).
Despite a few critical remarks with respect to Lipman , the sentencing court
expressly concurred with the Ninth Circuit’s fundamental premise: that “cultural
assimilation” was comparable to “family and community ties.” Id. at 31-32
(citing U.S.S.G. § 5H1.6) . While recognizing that such factors are “not ordinarily
relevant” under the Guidelines, the court noted that they might “be relevant if
they’re present to an unusual degree such that the case is distinguishable from the
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heartland of cases.” Id. at 32. In light of the court’s statement that Mr. Ulloa-
Porras’ “case [was] very similar to many other individuals who have appeared in
front of me,” id. at 33, we are convinced that the court’s refusal to grant Mr.
Ulloa-Porras’ motion for a downward departure was discretionary, and that it is
therefore unreviewable on appeal. Neither the court’s passing criticisms of
Lipman nor its obvious frustrations with the Guidelines are sufficient bases to
conclude that the court believed it could never consider evidence of “cultural
assimilation” in support of a motion for a downward departure. Cf. United States
v. Fagan , 162 F.3d 1280, 1282 (10th Cir. 1998) (concluding that a refusal to
depart downward was reviewable where the sentencing court “specifically rul[ed]
that it did not have the discretion to consider remorse as a factor to support the
downward departure”).
Mr. Ulloa-Porras’ final argument, that the United States Sentencing
Guidelines are unconstitutional under Apprendi , is also unavailing. 1
In Apprendi ,
the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S. Ct. at
1
Counsel are advised that the inclusion of lengthy block quotes -- here, two
sets of nearly identical quotes spanning twelve consecutive pages each -- is not
the most effective use of the limited pages permitted for appellate briefing. See
Fed. R. App. P. 32(a)(7).
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2362-63 (emphasis added). The application of the Guidelines within the
permissible statutory range was not before the Court, and the majority in
Apprendi “therefore express[ed] no view on the subject beyond what th[e] Court
ha[d] already held.” Id. at 2366 n.21 (citing Edwards v. United States , 523 U.S.
511, 515 (1998) (noting difference between challenges to sentence in excess of
the statutory maximum and sentence within statutory range); U.S.S.G. § 5G1.1
(providing that Guidelines sentence may not exceed statutory maximum)). We see
no Apprendi problem with the application of the Guidelines in this case. Given
Mr. Ulloa-Porras’ prior aggravated felony conviction, the applicable statutory
maximum was twenty years. See 8 U.S.C. § 1326(b)(2). His actual sentence of
forty-six months was well within the statutory maximum.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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