FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 15, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-2188
v. (D. N.M.)
RIGOBERTO BEJAR, (D.C. No. CR-06-2372-JB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, 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.
Rigoberto Bejar pled guilty to illegal reentry after deportation subsequent
to an aggravated felony conviction. With the benefit of a 10 month downward
*
This order and judgment is not binding precedent except under the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.
variance from the bottom of the advisory guideline range, he was sentenced to 60
months imprisonment. He appeals, claiming a greater variance was appropriate
and the imposed sentence is thus unreasonable. We affirm.
I. FACTUAL BACKGROUND
Bejar was born in Mexico. At a young age, he moved with his family to the
United States and became a lawful permanent resident. The family resided in
California, where Bejar eventually joined a gang. At age 16, he was adjudicated
delinquent and placed on probation for Assault by Means of Force Likely to
Produce Great Bodily Injury. 1 Approximately three months later, he was
sentenced to ten days in juvenile hall for violating his probation by associating
with known gang members. At age 17, Bejar and other gang members attempted
to tear down a fence at an apartment complex. Bejar was adjudicated delinquent
for vandalism and sentenced to a camp community placement program. The
sentence was stayed and he was placed on probation. Less than a month later, he
violated his probation by associating with known gang members and his
suspended camp placement was reinstated. Two months after being released from
camp, he was arrested for selling cocaine to an undercover officer.
Bejar’s criminal activity continued after reaching the age of majority. In
1995, at age 19, he was convicted of selling cocaine and sentenced to probation.
1
He hit an individual on the back of the head, causing him to fall to the
ground, and continued to hit and kick him until a friend stopped him.
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Two years later, Bejar and two other gang members beat and kicked an individual.
During the beating, he and his cohorts hit the victim on the head numerous times
with a stick and portable radio. The individual died as a result of his injuries.
Bejar pled no contest to voluntary manslaughter and was sentenced to 6 years
imprisonment. While in prison, he was convicted of battery upon a correctional
officer and sentenced to an additional 2 years imprisonment. In late 2004, Bejar
was paroled and deported to Mexico, where he lived with his grandparents and
worked on their farm.
In June 2005, Bejar’s father, a lawful permanent resident of the United
States, was involved in a life-threatening accident in Santa Fe, New Mexico.
When Bejar learned of the accident, he transported his grandparents to the border
where they were issued humanitarian visas to enter the United States. Bejar, on
the other hand, re-entered illegally.
On August 23, 2006, Bejar went to a hospital in Santa Fe with a cut to his
arm. Hospital staff called the police. After interviewing Bejar, police officers
believed the wound was the result of gang violence. The officers then
interviewed Bejar’s sister, who informed them Bejar had given them a false name.
She provided the officers with his true name. With this information, the officers
discovered Bejar was unlawfully in the United States. 2
2
These facts are taken from the PSR’s statement of the offense conduct and
Bejar did not object to them. However, in his written statement of acceptance of
responsibility, Bejar claimed he cut his arm when he fell and landed on a broken
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II. PROCEDURAL BACKGROUND
Bejar was indicted and pled guilty to illegal re-entry after deportation in
violation of 8 U.S.C. § 1326(a), (b). A Presentence Report (PSR) was prepared.
The PSR fixed Bejar’s base offense level at 8. See USSG §2L1.2(a). 3 It added a
16-level enhancement because Bejar had previously been deported after a felony
crime of violence conviction (voluntary manslaughter). See USSG §2L1.2(b).
After applying a 3-level downward adjustment for acceptance of responsibility
under USSG §3E1.1, the total offense level was 21. With a Criminal History
Category of V, the advisory guideline range was 70 to 87 months imprisonment.
Bejar filed a request for a downward variance pursuant to 18 U.S.C.
§ 3553(a). He claimed a downward variance to time-served (10 months) was
warranted for several reasons. First, fear of retaliation for leaving his gang.
Bejar alleged that while he was in prison in California, his gang ordered him to
commit a murder. Rather than commit a murder, he left the gang and had himself
placed in protective custody. He claims he is under a constant death threat for
leaving the gang. Second, the motivation for his return to the United States.
bottle. He also alleged it was medical personnel, not the police, who suspected
his injury was the result of gang violence. According to Bejar, the police
investigated the incident and concluded the injury was not gang-related. These
discrepancies are irrelevant to our resolution of this case.
3
Bejar was sentenced pursuant to the 2006 edition of the United States
Sentencing Commission Guidelines Manual. All citations to the guidelines herein
refer to the 2006 guidelines unless otherwise indicated.
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Bejar stated he returned to the United States only because his father had been
badly injured and was close to death. Although his father survived, he remained
in the United States to assist in his father’s rehabilitation. Third, his commitment
to respect our laws. During his most recent stay in the United States (14 months),
Bejar did not commit any new offenses. He said he had no intention of returning
to the United States once he is again deported to Mexico. Finally, extensive
support of his family and church, evidenced by their numerous letters to the
court. 4
The government opposed Bejar’s variance request. It noted Bejar had been
in prison for 14 months 5 and not been harmed despite his claim he is in danger for
leaving the gang. It stated the Federal Bureau of Prisons (BOP) is accustomed to
handling former gang members and is capable of ensuring Bejar’s safety. The
4
In addition to requesting a variance, Bejar objected to the PSR, arguing he
was not placed on parole for his prison battery conviction and therefore 2 points
should not have been added to his criminal history for having committed the
instant offense while under a criminal justice sentence. At sentencing, Bejar
withdrew this objection after the probation officer produced documentary
evidence showing Bejar had been on parole at the time he committed the instant
offense.
5
The government claimed Bejar had been in prison for 14 months. It
reached this calculation based on its belief Bejar had been in prison since April
2006. However, Bejar was not arrested until August 2006 – he had only been in
prison 10 months.
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government further argued Bejar’s father’s injury and recovery were not so
extraordinary as to warrant a significant variance. 6
The parties appeared for sentencing at which the district court addressed
Bejar’s main arguments for a variance. In its view the benign reason for his
reentry, his father’s injury, did not justify a variance. While the court was
sympathetic to Bejar wanting to be with his injured father, it believed “this
pattern is so common . . . because almost everybody at some point has sickness on
one side of the border . . . , that it’s not so extraordinary that it falls outside of the
heartland of cases.” (R. Vol. III at 21.) It also noted Bejar remained in this
country over a year after his father’s accident. Turning to Bejar’s fear of gang
retaliation while in prison, the court stated Bejar had been able to protect himself
or secure prison protection since he left the gang. While it had concerns about
the BOP’s lack of protective facilities, it believed the BOP had experience with
gangs and was able to ensure Bejar’s safety.
On the other hand, the court determined a variance was appropriate for the
changes Bejar made in his life, including leaving his gang. However, it did not
6
The government also argued the district court should afford a presumption
of reasonableness to the correctly calculated guideline range. The court rejected
this argument, stating it would start with the properly calculated guideline range
and then consider the § 3553(a) factors to arrive at a reasonable sentence. The
court was correct. See Rita v. United States, 127 S.C.t 2456, 2465 (2007) (“We
repeat that the presumption before us is an appellate court presumption. Given
our explanation in Booker that appellate ‘reasonableness’ review merely asks
whether the trial court abused its discretion, the presumption applies only on
appellate review.”).
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consider those changes sufficient to justify a variance to time-served because such
a sentence would not promote the § 3553(a) factors, in particular it would not
account for Bejar’s serious criminal history. The court stated: “I believe [the
guideline sentence] is too harsh and unreasonable, given the . . . relatively recent
changes in Mr. Bejar’s life. But I do think it’s closer to the appropriate sentence
than not.” (R. Vol. III at 24.) In the end, the court determined a 60 month
sentence satisfied the § 3553(a) factors and sentenced him accordingly.
III. DISCUSSION
Bejar does not challenge the procedural reasonableness of his sentence. He
only alleges it is substantively unreasonable under 18 U.S.C. § 3553(a).
Specifically, Bejar asserts he was entitled to a greater variance due to his reason for
reentry, the danger he faces in prison and his “change from a gang member who
accumulated a number of juvenile adjudications and adult convictions to a church-
going, responsible, law-abiding member of the community.” (Appellant’s Op. Br. at
25.)
We review the substantive reasonableness of a below-guideline sentence for
abuse of discretion. Gall v. United States, -- U.S.--, 128 S.Ct. 586, 597 (2007).
When conducting this review, we “may consider the extent of the deviation, but must
give due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance. The fact that the appellate court might
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reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal . . . .” Id.
The court’s refusal to vary downward more than 10 months was not an abuse
of discretion. It addressed Bejar’s arguments with sound reasoning and sufficient
explanation.
The court adequately considered Bejar’s reason for illegally entering the
United States — to be with his seriously injured father. While it found the
circumstances unfortunate, the court cited to three recent illegal reentry cases in
which it had denied the defendant’s request for a variance based on similar
arguments. Because family illnesses are frequently the reason for reentry, the court
concluded if it were to grant a variance in each case, “the exception would swallow
the rule.” (R. Vol. I, Doc. 32 at 8.) The court also noted Bejar had stayed in the
United States over a year after his father’s injury. The court was well within its
discretion in not varying based on this factor.
The court adequately considered the serious risk Bejar faced while in prison
but reasonably believed and trusted that the BOP has experience with inmates
who were former gang members and is capable of ensuring his safety. Bejar
contends this determination was without evidentiary support. But the same can be
said for his assertions that the BOP cannot adequately protect him, and he has the
burden of persuasion. While he quoted from studies concerning the effects of
leaving a gang, Bejar presented no evidence, other than his counsel’s bare
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assertions, that the BOP lacks the ability to protect him. Bejar has apparently
been adequately protected in prison since leaving the gang. While he had not
previously been incarcerated within the BOP, nothing suggests he will be any
more at risk there. Bejar has seemingly found ways to protect himself outside of
prison as well. His alleged fear for his safety did not deter him from re-entering
the United States and staying here, potentially at risk, for over a year. 7
The court did believe Bejar’s self rehabilitation, reflected in his
abandonment of his gang and criminal ways, as well as letters from family and
friends, warranted a variance. And a 10 month (14%) variance from the bottom
of the guidelines is generous considering the other § 3553(a) factors, in particular
Bejar’s serious criminal history. The court seriously contemplated the
circumstances of this case in light of the sentencing goals of § 3553(a) and
adequately addressed Bejar’s arguments. See Rita, 127 S.Ct. at 2468-69
(rejecting defendant’s argument that district court did not provide adequate
reasons for particular sentence where it was clear from record court listened to
defendant’s arguments and considered supporting evidence but simply found the
circumstances did not warrant a below-guideline sentence).
7
Bejar also claims the district court did not consider the extreme
deprivations he will suffer as a result of being placed in protective custody status,
thereby subjecting him to harsher prison conditions and punishment than the
average reentry defendant. The court did not consider this argument because
Bejar never raised it and we will not consider it here. United States v. Alcaraz-
Arellano, 441 F.3d 1252, 1260 (10th Cir. 2006).
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AFFIRMED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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