F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 29, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2261
v. (D. New M exico)
LORENZO SANCH EZ-JUA REZ, (D.C. No. CR-05-1034-JC)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
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.
Lorenzo Sanchez-Juarez pleaded guilty to illegal reentry by an alien
previously deported after an aggravated felony conviction, in violation of
8 U.S.C.§ 1326, and aggravated identify theft, in violation of 18 U.S.C. § 1028A.
*
This order and judgment is not binding precedent except under the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.
The district court sentenced him to a term of forty-one months’ imprisonment on
the illegal reentry conviction, to be followed by a mandatory consecutive term of
twenty-four months’ imprisonment on the identify theft conviction. On direct
appeal, this court vacated Sanchez-Juarez’s sentence and remanded the case to the
district court for resentencing. United States v. Sanchez-Juarez, 446 F.3d 1109
(10th Cir. 2006). This court ruled, in relevant part, that it was unclear from the
record whether the district court had considered Sanchez-Juarez’s sentencing
arguments in light of the 18 U.S.C. § 3553(a) factors or had, instead, simply
applied the Guidelines in a mechanical fashion. Id. at 1115-16. On remand, the
district court noted it had reviewed the presentence report; considered the
§ 3553(a) factors, including the advisory sentencing Guidelines; and weighed the
arguments advanced by Sanchez-Juarez for a sentence below the range set out in
the advisory Guidelines. Upon such review, the district court reimposed a term of
forty-one months’ imprisonment on the illegal reentry conviction, to be followed
by a mandatory consecutive term of twenty-four months’ imprisonment on the
identify theft conviction. Sanchez-Juarez appeals, asserting his sentence is both
procedurally and substantively unreasonable. Exercising jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirm s.
The factual and procedural background of this case is set out at length in
this court’s previous opinion on direct appeal, see Sanchez-Juarez, 446 F.3d at
1110-12, 1114-18, and will not be repeated here. Upon remand from this court
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for resentencing, Sanchez-Juarez raised the same arguments for a below-
guidelines sentence as he had raised at the first sentencing hearing. After
entertaining Sanchez-Juarez’s request for a sentencing variance, the district court
rejected the request and stated as follow s:
This matter coming before the Court for a resentencing pursuant to
the mandate of the Tenth Circuit Court of A ppeals and the C ourt
having given due consideration to the Appellate Court’s instructions,
hereby vacates and sets aside the sentence heretofore imposed in the
Information, Criminal 05-1034, on September 7, 2005, and will
resentence the defendant based on the Appellate Court’s remand.
The Court has reviewed the presentence report factual findings
and has considered the guideline applications and the factors set forth
in 18 United States Code 3553(a)(1) through (7).
I have considered M r. Sanchez-Juarez’s arguments in full,
including the nonviolent nature of his prior felony, which is already
taken into account by the presumptively reasonable guidelines; his
family situation, which I find not unusual; and the restrictions that
are placed on deportable aliens in prison.
I find that the sentence I will impose adequately reflects the
nature and circumstances of the offense and is necessary to deter
future criminal conduct, provide just punishment for the offense, and
promote respect for the law.
....
The Court notes the defendant reentered the United States
subsequent to an aggravated felony conviction. It is also noted that
the defendant knowingly possessed, without lawful authority, five
Social Security cards in the name of five other persons.
As to Count I of the Information, Criminal 05-1034, the
defendant, Lorenzo Sanchez-Juarez, is committed to the custody of
the Bureau of Prisons for a term of 41 months. As to Count II, the
defendant is committed to the custody of the Bureau of Prisons for a
term of 24 months.
Said terms shall run consecutively, for a total term of 65
months.
[Id.]
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Sanchez-Juarez argues on appeal that his sentence is both procedurally and
substantively unreasonable. “U nder Booker, we are required to review district
court sentencing decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d
585, 591 (10th Cir. 2006). This court applies a two-step approach to review the
procedural and substantive components of sentences. United States v. Kristl, 437
F.3d 1050, 1055 (10th Cir. 2006). First, if raised on appeal, this court determines
whether the district court properly calculated the defendant’s guidelines sentence
and considered the factors set forth in § 3553(a). See United States v.
Chavez-Diaz, 444 F.3d 1223, 1229-30 (10th Cir. 2006). If the district court did
not com mit any procedural errors in arriving at a sentence, this court reviews
whether the sentence imposed is reasonable in light of the factors set forth in
§ 3553(a). Kristl, 437 F.3d at 1054-55.
In this case, Sanchez-Juarez does not challenge the district court’s
application of the Guidelines. Instead, he argues his sentence is procedurally
unreasonable because the district court failed to adequately state on the record,
with specific reference to the § 3553(a) factors, its reasons for rejecting his
request for a sentence below the advisory Guidelines range. Sanchez-Juarez’s
procedural reasonableness claim is resolved by this court’s recent decision in
United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007). Ruiz-Terrazas
held that “a specific discussion of Section 3553(a) factors is not required for
sentences falling within the ranges suggested by the Guidelines.” Id. at 1202. In
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so doing, the Ruiz-Terrazas court specifically rejected the broad reading of
Sanchez-Juarez defendant now advocates on appeal. See id. As w as the case in
Ruiz-Terrazas, the district court in this case entertained extensive arguments
relating to the § 3553(a) factors, specifically noted it had considered Sanchez-
Juarez’s arguments for a below-guidelines sentence, indicated on the record it had
considered the § 3553(a) factors, and ultimately imposed a sentence within the
properly calculated Guidelines range. See id. 1202-03. Thus, the process
employed by the district court in imposing Sanchez-Juarez’s sentence was
reasonable. See id.
For many of the same reasons he advanced before the district court in
requesting a sentence below the range set out in the advisory Guidelines,
Sanchez-Juarez asserts the sentence ultimately imposed by the district court is
substantively unreasonable. Because the district court imposed a sentence within
the properly calculated advisory guidelines range, the district court’s sentence is
“entitled to a rebuttable presumption of reasonableness.” Kristl, 437 F.3d at
1054. 1 Sanchez-Juarez has failed to rebut that presumption.
Two arguments advanced by Sanchez-Juarez to overcome the presumption
of reasonable are facially meritless. Sanchez-Juarez’s “fast-track disparity”
1
The Supreme Court recently rejected Sanchez-Juarez’s argument that
affording a presumption of reasonableness to a within-guidelines sentence is
inconsistent with Booker. Rita v. United States, No. 06-5754, 2007 W L 1772146
(June 21, 2007).
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argument is foreclosed by this court’s recent decision in United States v.
M artinez-Trujillo, 468 F.3d 1266, 1268-69 (10th Cir. 2006) (holding disparities
created by fast-track program are not unwarranted under § 3553(a)(6) because
they are authorized by Congress). 2 Sanchez-Juarez’s argument that the district
court should have granted a downward variance to his illegal reentry conviction to
ameliorate the asserted harshness of his mandatory, consecutive twenty-four
month term for aggravated identity theft is flatly contrary to the aggravated
identity theft statute. 18 U.S.C. § 1028A(b)(3) (“[I]n determining any term of
imprisonment to be imposed for the felony during which the means of
identification was . . . possessed . . . , a court shall not in any way reduce the term
to be imposed for such crime so as to compensate for, or otherwise take into
account, any separate term of imprisonment imposed or to be imposed for a
violation of this section.”).
Nor do Sanchez-Juarez’s remaining arguments overcome the presumption
of reasonableness that attaches to his bottom-of-the-guidelines sentence. Kristl,
437 F.3d at 1054. Sanchez-Juarez’s main contention is that the sixteen-level
2
In any event, Sanchez-Juarez was prosecuted in the United States District
court for the District of New M exico, a jurisdiction that has a fast-track program
in place. At its base, Sanchez-Juarez’s argument seems to be that a district court
can step in and overrule a prosecutor’s discretionary decision not to offer a fast-
track bargain to a particular defendant, even when the record contains absolutely
no indication that the decision not to offer a fast-track plea was based on an
impermissible purpose. Sanchez-Juarez’s argument, which is not supported by a
single citation to authority supporting such a proposition, is unconvincing.
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increase to his offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(A )(vii), for his
previous alien smuggling offense overstates the seriousness of his criminal
history. In support of this assertion, Sanchez-Juarez relies on this court’s
decision in United States v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005). A s
is the case here, Trujillo-Terrazas involved a sixteen-level increase to the
defendant’s base offense level. Id. at 817. In Trujillo-Terrazas, however, the
increase was based on a prior arson conviction, a “crime of violence” subject to a
sixteen-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Id. The arson
conviction involved flicking a lighted match into a car, resulting in $35.00 in
damages. Id. Trujillo-Terrazas concluded the sixteen-level increase to the base
offense level set out in the Guidelines for this “quite minor offense,” created a
disconnect between the guidelines sentence and the § 3553(a) factors.
W e perceive no such disconnect in this case. Unlike the “quite minor” or
“relatively trivial” offense at issue in Trujillo-Terrazas, 405 F.3d at 819-20,
Sanchez-Juarez’s prior felony was an alien smuggling offense. That Sanchez-
Juarez received a sentence of only 194 days’ imprisonment for that offense does
not in any way diminish its seriousness. Furthermore, unlike the amorphous
“crime of violence” enhancement at issue in Trujillo-Terrazas, the sixteen-point
increase at issue in this case is narrowly targeted to certain prior violations of
8 U.S.C. § 1324(a). Com pare U.S.S.G. § 2L1.2(b)(1)(A)(ii) and id. cmt.
n.1.(B )(iii), with U.S.S.G. § 2L1.2(b)(1)(A)(vii), id. cmt. n.1.(B)(i) and 8 U.S.C.
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§ 1101(a)(43)(N ). This means it is unlikely the disconnect that occurred in
Trujillo-Terrazas will happen in the context of a sixteen-point increase for a prior
alien smuggling conviction. Finally, nothing about the facts of Sanchez-Juarez’s
prior smuggling offense set out in the PSR indicate it was less serious than alien
smuggling offenses generally or was a particularly non-serious felony.
Having review ed and considered Sanchez-Juarez’s other arguments, 3 this
court concludes they are insufficient, even when all such arguments are
considered in the aggregate, to rebut the Kristl presumption of reasonableness.
The district court adopted the uncontested factual findings in the PSR and fully
considered the arguments Sanchez-Juarez presented in support of his request for a
below-guidelines sentence. At the conclusion of the sentencing hearing, the
district court imposed a sentence at the bottom of the correctly calculated
advisory guidelines range. The district court’s sentence is undoubtedly
3
Sanchez-Juarez also argues his incarceration will work a significant
economic hardship on his family in M exico and a below-guidelines sentence is
warranted by his non-eligibility for certain prison programs because of his status
as a deportable alien. As to the first, we note the district court, the court in the
best position to know such things, specifically determined there was nothing
special or unusual about Sanchez-Juarez’s family situation. As to the second, the
United States convincingly argues Sanchez-Juarez’s non-eligibility for certain
prison programs does not alter the basic nature of his sentence, it merely excludes
him from programs designed to reintegrate prisoners into American society. This
is entirely consistent with his deportable status.
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reasonable. The judgment of the United States District Court for the District of
New M exico is hereby AFFIRM ED. 4
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
4
Sanchez-Juarez also asserts Almendarez-Torres v. United States, 523 U.S.
224 (1998), is no longer good law and the district court violated the Sixth
Amendment when it increased his offense level on the basis of his prior alien
smuggling offense. He recognizes, however, this argument is foreclosed by our
decision in United States v. M oore, 401 F.3d 1220 (10th Cir. 2005), and simply
wishes to preserve the issue for en banc review or a future certiorari petition.
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