FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
November 27, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-1217
v. (D.C. No. 07-CR-3-JLK)
(D. Colo.)
ANGEL RODRIGUEZ-FELISOLA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges. **
Defendant-Appellant Angel Rodriguez-Felisola appeals from the sentence
imposed following his guilty plea to one count of illegal reentry of a deported
alien previously convicted of an aggravated felony. See 8 U.S.C. §§ 1326(a)(1),
(2) & (b)(2). As part of the plea the government agreed to recommend the bottom
of the advisory United States Sentencing Guidelines (“U.S.S.G.”) range. Indeed,
*
This order and judgment is not binding precedent, except under the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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Mr. Rodriguez-Felisola was sentenced at the bottom of that range, forty-six
months’ imprisonment, and three years’ supervised release. On appeal, he argues
that the district court abused its discretion in denying him a downward departure
or variance because of government delay in prosecuting him, or alternatively that
his sentence is unreasonably long. Our jurisdiction arises under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a), and we affirm.
Background
Mr. Rodriguez-Felisola, a citizen of Mexico, was convicted on October 27,
1994, of the sale/transportation/offer to sell a controlled substance in the Superior
Court of Los Angeles County, California. He was sentenced to one hundred
eighty days’ imprisonment and thirty-six months’ probation. The offense
constituted an aggravated felony under the Immigration and Naturalization Act.
See 8 U.S.C. § 1101(a)(43)(B).
On December 20, 1994, Mr. Rodriguez-Felisola was removed from the
United States to Mexico. Sometime thereafter, he reentered the United States,
and was convicted of felony menacing on July 16, 2003, in Adams County,
Colorado, and placed on three years’ probation. On August 16, 2005, he was
arrested in Arapahoe County, Colorado, for various alleged offenses including
possession of a controlled substance, resisting arrest, providing false
identification and driving under the influence. The next day, Colorado authorities
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notified the Bureau of Immigration and Customs Enforcement (“ICE”) that Mr.
Rodriguez-Felisola was in custody, and ICE placed a detainer on him, stating that
ICE had initiated an investigation into whether he was subject to removal from
the United States.
Meanwhile, Mr. Rodriguez-Felisola’s probation on the felony menacing
conviction was revoked and he was sentenced to two years’ of state confinement
with one hundred forty-seven days’ credit. Thereafter, he pleaded guilty to
possessing a controlled substance and was sentenced to eighteen months’ of state
confinement, concurrent with the felony menacing sentence. On December 2,
2005, ICE notified the Colorado Department of Corrections that Mr. Rodriguez-
Felisola had been ordered removed from the United States.
Mr. Rodriguez-Felisola was released from state confinement on December
22, 2006, and taken into federal custody by ICE. ICE referred Mr. Rodriguez-
Felisola to the United States Attorney’s office for prosecution on January 3, 2007,
and on January 8, 2007, he was indicted on one count of reentry of a deported
alien previously convicted of an aggravated felony, in violation of 8 U.S.C. §§
1326(a)(1), (2) & (b)(2).
Mr. Rodriguez-Felisola pleaded guilty and a presentence investigation
report (“PSR”) was prepared. The PSR calculated a total offense level of 17 and
a criminal history of V and recommended an applicable Guidelines range of forty-
six to fifty-seven months’ imprisonment. Mr. Rodriguez-Felisola did not object
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to the PSR but moved for either a downward departure from the guidelines range
pursuant to U.S.S.G. § 5G1.3, or a downward variance from that range, based on
the factors set forth in 18 U.S.C. § 3553(a). Mr. Rodriguez-Felisola specifically
asked the district court to depart downward to twenty-nine months, which would
make his federal sentence effectively concurrent with his prior Colorado
sentences that he had discharged. He argued that such a downward departure or
variance was justified because the government delayed prosecuting him until after
he completed his Colorado prison term, which deprived him of an opportunity for
concurrent sentencing. A reduction to twenty-nine months, according to Mr.
Rodriguez-Felisola, would remedy his lost opportunity and achieve a reasonable
sentence.
The district court denied Mr. Rodriguez-Felisola’s request, finding that
neither a departure under § 5G1.3 nor a variance was appropriate, and sentenced
Mr. Rodriguez-Felisola to forty-six months, the bottom of the applicable
Guideline range. The district court found that there was no “orchestrated delay”
in prosecuting Mr. Rodriguez-Felisola because ICE referred him to the United
States Attorney seven days after he was placed in ICE’s custody. The district
court also noted that one of Mr. Rodriguez-Felisola’s state sentences was related
to a probation revocation and therefore, the sentence imposed in this case should
be imposed to run consecutively to the sentence related to the probation
revocation. Finally, the district court noted that Mr. Rodriguez-Felisola’s
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criminal history is comprised of three felony convictions, making the risk of
recidivism high and the need for deterrence significant. Mr. Rodriguez-Felisola
timely appealed his sentence.
Discussion
As a threshold matter, the government argues we have no jurisdiction to
review the sentence in this case because it involved a discretionary decision not to
depart downward from a sentence within the applicable guidelines range. See
United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999). Even though we
reject any argument that the district court was unaware of its power to depart, we
still may evaluate Mr. Rodriguez-Felisola’s challenge of his sentence as
unreasonable. See United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir.
2006) (holding that “while we do not have jurisdiction to review the district
court’s discretionary decision to deny a downward departure, we have jurisdiction
post-Booker to review the sentence imposed for reasonableness”); see also United
States v. Fonseca, 473 F.3d 1109, 1112 n.3 (10th Cir. 2007).
Our review of the reasonableness of Mr. Rodriguez-Felisola’s sentence
proceeds as follows. First, if challenged, we review the accuracy of the district
court’s guideline sentence determination, reviewing legal conclusions de novo
and factual findings for clear error. See United States v. Kristl, 437 F.3d 1050,
1055 (10th Cir. 2006). Next, if the district court correctly calculated the
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guideline sentence, we review the sentence for reasonableness. See id. We apply
a rebuttable presumption of reasonableness for sentences imposed within the
advisory guideline range. See Rita v. United States, 127 S. Ct. 2456, 2462-63
(2007). The defendant may rebut this presumption by showing that the sentence
is unreasonable in light of the sentencing factors set forth in 18 U.S.C § 3553(a).
See Kristl, 437 F.3d at 1055.
Mr. Rodriguez-Felisola did not object below to the PSR and on appeal
concedes that the district court’s calculation of his guidelines sentence was
accurate. 1 Accordingly, we are left only to review his sentence for
reasonableness.
Our reasonableness review is guided by the factors set forth in 18 U.S.C. §
3553(a). See Kristl, 437 F.3d at 1053. These factors “include the nature of the
offense and characteristics of the defendant, as well as the need for the sentence
to reflect the seriousness of the crime, to provide adequate deterrence, to protect
the public, and to provide the defendant with needed training or treatment.” Id.
In reviewing the reasonableness of Mr. Rodriguez-Felisola’s sentence, we must
also consider Mr. Rodriguez-Felisola’s grounds for a departure or variance, which
1
We note further that even though a direct challenge to the district court’s
discretionary decision not to depart downward is viewed as a challenge to the
accuracy of the district court’s guideline sentence determination, see Chavez-
Diaz, 444 F.3d at 1229, that decision, as already discussed, is unreviewable. See
id.
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we have done. 2 See Chavez-Diaz, 444 F.3d at 1229. We have reviewed the
record and Mr. Rodriguez-Felisola’s grounds and conclude that his sentence is
reasonable.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2
Mr. Rodriguez-Felisola does not suggest that the government acted in bad
faith in delaying his prosecution, just that the delay was unreasonably long. See
United States v. Los Santos, 283 F.3d 422, 428 (2d Cir. 2002) (explaining that for
a district court to depart downward due to prosecutorial delay, the delay must
have either been in bad faith or been longer than a reasonable amount of time
needed for a diligent government investigation).
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