F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 15, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 06-2281
D. New M exico
OSCA R N EVA REZ-NEV AR EZ, (D.Ct. No. CR-05-2585-LH)
Defendant - Appellant.
Before K ELLY, M cW ILLIAM S and O’BRIEN, Circuit Judges.
OR D ER AND JUDGM ENT *
Oscar N evarez-N evarez pled guilty to illegal reentry after deportation, a
violation of 8 U.S.C. § 1326(a)(1), (b)(2). He appeals from the sentence imposed,
claiming it is unreasonable. W e affirm.
I. BACKGROUND
Nevarez-Nevarez was arrested in New M exico for illegal reentry into the
United States after he was previously deported based on a conviction for an
aggravated felony stemming from a traffic altercation in which he pointed a
*
This order and judgment is not binding precedent except under the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.
firearm at another motorist. He pled guilty to the illegal reentry charge.
In his sentencing memorandum, Nevarez-Nevarez requested the district
court to impose a sentence below the guidelines range. He argued the sentencing
factors listed in 18 U.S.C. § 3553(a) warranted a lower sentence than the
guidelines recommended. 2 W ithout specifically treating each of the factors
enumerated in 18 U.S.C. § 3553(a), the judge imposed a sentence at the lower end
of the guideline range, fifty-seven months imprisonment.
Nevarez-Nevarez now claims the sentence is procedurally unreasonable
because the judge failed to sufficiently supply the reasoning for the selected
sentence. He also argues the length of the sentence is substantively unreasonable
under Booker v. United States, 543 U.S. 220 (2005).
II. D ISC USSIO N
“Reasonableness has both procedural and substantive components.” United
States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). Procedural reasonableness
requires a sentence to be calculated “utilizing a legitimate method.” Id. Thus,
where a sentence is within the properly calculated guideline range and the district
court has stated its reasoning under § 3553(a), the sentence will be considered
2
In essence, Nevarez-N evarez requested a variance. A variance occurs
“[w]hen a court enhances or detracts from the recommended range through
application of § 3553(a) factors.” United States v. Atencio, 476 F.3d 1099, 1101
n.1 (10th Cir. 2007). On the other hand, a departure occurs “when a court reaches
a sentence above or below the recommended Guidelines range through application
of Chapters Four or Five of the Sentencing Guidelines.” Id.
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procedurally reasonable. N evarez-Nevarez concedes the district court properly
calculated the guideline range. However, his complaints about the sufficiency of
the court’s stated rationale under § 3553(a) amount to a procedural reasonableness
challenge. United States v. Sanchez-Juarez, 446 F.3d 1109, 1115, 1118 (10th Cir.
2006) (remanding for failure to state § 3553(a) reasons for sentence within range).
His more generally styled complaint of “reasonableness” is essentially a
substantive reasonableness challenge.
A. Standard of Review
Nevarez-Nevarez failed to object to the district court’s sentencing
procedure; therefore, his procedural reasonableness objections will be reviewed
for plain error. United States v. Rom ero, __ F.3d __ (10th Cir. 2007), 2007 W L
1874231 at *3. “W e find plain error only when there is (1) error, (2) that is plain,
(3) which affects substantial rights, and (4) which seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. at *5.
On the other hand, Nevarez-Nevarez presented sufficient argument in the
district court to preserve his substantive reasonableness argument. Therefore, w e
will review that claim for harmless error. See Fed. R. Crim. P. 52. To satisfy the
harmless error test, there must be an error affecting substantial rights. Fed. R.
Crim. P. 52(a).
B. Procedural Reasonableness
The district court was required to “state in open court the reasons for its
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imposition of the particular sentence, and . . . the reason for imposing [the]
sentence at a particular point within the [guideline] range.” 18 U.S.C. § 3553(c).
The factors to be applied from § 3553(a) include the nature and circumstances of
the offense; the history and characteristics of the defendant; the need for the
sentence imposed to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, afford adequate deterrence, protect
the public, and provide the defendant with needed educational or vocational
training, medical care or other correctional treatment in the most effective
manner; pertinent guidelines; pertinent policy statements; the need to avoid
unwanted sentence disparities; and the need to provide restitution. See 18 U.S.C.
§ 3553(a). Nevarez-Nevarez argues the district court did not sufficiently address
these factors in open court.
In sentencing N evarez-Nevarez, the district court stated as follow s:
You’ve spent a year in prison in ‘98 because of a theft of an
automobile, and you get out, and you get arrested and convicted of
aggravated assault by pointing a gun at somebody. Your attorney
minimizes . . . that crime of assault with a deadly weapon because
you didn’t hurt anybody, but if you have ever had a gun pointed at
you in anger, or as a victim of a robbery, or in some similar situation,
you might realize the scars that it puts on the victim. It’s not a
child’s game to point a gun at another person. . . . And I will not
minimize that as your attorney has. It is sad you haven’t spent time
with your children, but we make choices in life, in our lives. . . .
And you made a choice by obtaining a stolen gun. I don’t know how
you got it, but it was stolen. You used it to point at somebody, and
that’s a choice you made. . . . You have to learn to make the right
choices. And if you don’t learn that, your life is going to continue to
be the way it has been. So I have empathy for your children for
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having not known their father, but not for you.
(R . Vol. IV at 5-6.)
The district court made this statement after hearing Nevarez-N evarez’s
argument on the § 3553(a) factors, which repeated the arguments advanced in a
prior sentencing memorandum. First, Nevarez-Nevarez argued a lower sentence
would adequately deter him, and the public thereby protected, from future
criminal activity because of his six month pre-sentencing incarceration on the
illegal reentry charge, which resulted in an undesirable separation from his
family. He also asserted, although he has “no demonstrated need of educational
or vocational training” or “medical treatment,” his “extreme anxiety” resulting
from his incarceration would be best treated by sending him to his home in
M exico. (R. Vol. I, Doc. 15 at 4.) Finally, he argued USSG §2L1.2 should not be
used to enhance his base offense level by 16 levels for a prior “crime of violence”
because the prior felony assault did not result in physical harm. He maintained
the goal of uniformity in sentencing would be undermined by the application of
the same enhancement that is applied to murderers and forcible sex offenders.
“[Section 3553(c)’s] requirement [that district court’s state their reasoning]
reflects sound judicial practice. Judicial decisions are reasoned decisions.” Rita
v. United States, 127 S.Ct. 2456, 2468 (2007). However, the Supreme Court has
declined to “. . . read the statute (or [its] precedent) as insisting upon a full
opinion in every case.” Id. Rather,
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[t]he appropriateness of brevity or length, conciseness or detail,
when to write, what to say, depends upon circumstances. Sometimes
a judicial opinion responds to every argument; sometimes it does not;
sometimes a judge simply writes the word “granted,” or “denied” on
the face of a motion while relying upon context and the parties’ prior
arguments to make the reasons clear. The law leaves much, in this
respect, to the judge’s own professional judgment.
Id.
Given the context, we think the district court’s statement sufficiently
satisfied § 3553(c). “W here the defendant or prosecutor presents nonfrivolous
reasons for imposing a . . . sentence [outside the guideline range], . . . the judge
will normally . . . explain why he has rejected those arguments. Sometimes the
circumstances will call for a brief explanation; sometimes they will call for a
lengthier explanation.” Id. Although “the judge might have said more,” we think
the record shows the district court listened to the relatively simple and general
arguments Nevarez-N evarez advanced. Id. at 2469 (noting conceptual simplicity
of the case as relieving the court of the need to more extensively detail its
rationale). The court explicitly addressed the most complex argument Nevarez-
Nevarez advanced regarding the aggravated felony, observing the offense could
very well have injured the victim, albeit not physically.
As to the other factors, the court stated it considered the § 3553(a) factors
and denied the motion; apparently, “[the district judge] must have believed that
there was not much more to say.” Id. Because the district court sufficiently
explained its reasoning for Nevarez-Nevarez’s sentence, the sentence is
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procedurally reasonable. 3 Discerning no error, the plain error test fails at the first
prong as to the procedural reasonableness challenge.
C. Substantive Reasonableness
As we recognized in Cage, a procedurally reasonable sentence may
nevertheless be substantively unreasonable. 541 F.3d at 591. Because Nevarez-
Nevarez concedes the court sentenced him within the properly calculated
guideline range, a rebuttable presumption of reasonableness attaches to the
sentence. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
Nevarez-Nevarez may rebut the presumption by reference to the factors of
§ 3553(a). Id.
Nevarez-Nevarez’s substantive argument mirrors the arguments advanced
before the district court. W e discern no error in the district court’s resolution of
these arguments. First, we agree a lower sentence would not adequately deter
Nevarez-Nevarez from future reentries. As he explained to the district court, he
was motivated to enter this country because his children were here while he was
in M exico; upon his deportation, these same motivating circumstances w ill persist
and the best predictor of behavior is past behavior.
3
At oral argument, counsel argued for a distinction between prior
colloquies between the court and a defendant and the actual pronouncement of
judgment. W e decline to accept such a technical rule; rather, part of the relevant
circumstances that will necessarily inform the district judge’s professional
judgment on the extent and detail of reasoning is the context of the proceedings,
including any statements made to the defendant prior to sentencing.
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His argument that his sentence should be shortened to “relieve his anxiety”
is exceptionally weak. Indeed, he conceded in his sentencing memorandum that
he had no specific medical conditions which required treatment.
W e are also unpersuaded by his attempts to “minimize” his prior
aggravated felony. Although – fortunately – Nevarez-Nevarez did not actually
discharge the firearm during the traffic altercation, we agree with the district
court that pointing a firearm at someone is “not a child’s game.” Such action
constitutes a serious felony entailing significant risks of serious bodily injury or
death.
The guidelines systemically and systematically catagorize behavior that is
sufficiently dangerous to warrant an enhancement of punishment. The district
court is in a unique position to personalize those factors in accordance with
§ 3553 and adjust the sentence accordingly. W hen guidance from the Sentencing
Commission – expressed in the guidelines – coincides with the judgment of a
district court on an appropriate sentence, we will presume the sentence is
reasonable. Rita, 127 S.Ct. at 2467 (“[W]here judge and Commission both
determine that the Guidelines sentences is an appropriate sentence for the case at
hand, that sentence likely reflects the § 3553(a) factors . . . .”); Kristl, 437 F.3d
at 1054 (sentences within the properly calculated guideline range are entitled to a
rebuttable presumption of reasonableness). W e see no reason to discount the
presumption in this case.
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AFFIRM ED.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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