FILED
United States Court of Appeals
Tenth Circuit
November 12, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 07-3327
RAMIRO ALAPIZCO-
VALENZUELA,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 07-CR-10023-01-WEB)
Cyd Gilman, Assistant Federal Public Defender, Office of the Federal Public
Defender, Wichita, Kansas, appearing for the Appellant.
Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, with him on the brief), Office of the United States Attorney,
Wichita, Kansas, appearing for the Appellee.
Before TACHA, HOLLOWAY, and HOLMES, Circuit Judges.
TACHA, Circuit Judge.
Defendant-Appellant Ramiro Alapizco-Valenzuela pleaded guilty to one
count of transporting illegal aliens for private financial gain in violation of 8
U.S.C. § 1324(a)(1)(A)(ii). He appeals his seventy-two-month sentence. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we
AFFIRM.
I. BACKGROUND
On January 24, 2007, a sheriff’s deputy in Reno County, Kansas was
dispatched to a location on U.S. Highway 50 to assist a stranded motorist in a
white minivan. When the deputy arrived, he saw that the minivan had pulled over
from the eastbound lane and had a flat tire. The deputy approached the minivan
and initiated contact with the driver, Mr. Alapizco-Valenzuela’s co-defendant
Rene Cota-Beltran. Mr. Alapizco-Valenzuela was sitting in the front passenger
seat. The deputy offered to help the two men change their tire and called for a
tow truck to assist in the effort. The tow truck arrived, and the deputy opened the
door at the rear of the minivan, where he discovered ten men and one woman
crowded together as if trying to hide. Most were not wearing shoes and none of
them had any money. Later investigation revealed that the occupants were not
lawfully present in the United States.
Mr. Alapizco-Valenzuela was subsequently charged in a five-count
indictment for conspiring to take hostages, in violation of 18 U.S.C. § 1203;
aiding and abetting the taking of hostages, in violation of 18 U.S.C. § 1203 and
18 U.S.C. § 2; exporting aliens not lawfully in the United States for financial
gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(i); conspiring to
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export aliens not lawfully in the United States for financial gain, in violation of 8
U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), (a)(1)(B)(i); and illegally reentering
the United States after previously being deported, in violation of 8 U.S.C.
§ 1326(a). After entering into plea negotiations with the government, he pleaded
guilty to the count of exporting aliens not lawfully in the United States for
financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(i).
Following Mr. Alapizco-Valenzuela’s guilty plea, the United States
Probation Office prepared a presentence report (“PSR”). The PSR reported that
agents with the Immigration and Customs Enforcement Bureau (“ICE”) had
interviewed Mr. Alapizco-Valenzuela, Mr. Cota-Beltran, and the aliens found in
the back of the minivan. Although the aliens’ stories varied slightly, the PSR
stated that the interviews tended to show that the aliens had met with a smuggler
in Mexico and paid him or agreed to pay him to help them enter the United States
illegally and to transport them to Florida. After crossing the border, they were
picked up in vehicles and transported to a “stash house” in Arizona. There, they
were directed at gunpoint to turn over their money, their shoes, and other personal
belongings. They were also threatened with physical harm and death if they did
not call friends and family to secure additional money to pay the smugglers.
After the aliens had been detained for approximately half a day, armed
Hispanic males entered the house, tied up the smugglers, and transported the
aliens at gunpoint to another stash house, where the aliens were held captive for
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the next three or four days. They were given minimal food and water and were
forced at gunpoint, under threat of dismemberment and death, to call family and
friends to request $2500. They were told they would need to pay $2000 before
they would be released from the house and would need to pay the additional $500
to their driver upon their arrival in Florida. Otherwise, they were told, the driver
would not release them.
At some point, Mr. Alapizco-Valenzuela arrived at the second stash house.
Eleven aliens were loaded into the minivan, where they were instructed to lay flat
on the floor. A man known as “Lobo” drove them—barefoot and without money
or other belongings—from the second stash house, and Mr. Alapizco-Valenzuela
rode in the front passenger seat. After about ten minutes, the minivan stopped
and Mr. Cota-Beltran got in and replaced Lobo as the driver. The group
continued on their way to Florida, with the aliens being forced to urinate in a
plastic bottle because they were not permitted to leave the van. When the
minivan’s tire went flat in Kansas and the sheriff’s deputy arrived, the aliens were
instructed to tell law enforcement that the entire group was traveling together to
find work and that they were all taking turns driving. They were told that things
would be worse for them if they did not tell authorities this story.
After setting forth these facts, the PSR noted that the base offense level for
transporting illegal aliens is twelve. See United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) § 2L1.1(a)(3). The PSR then recommended several
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increases for specific offense characteristics. First, the PSR added three levels
because Mr. Alapizco-Valenzuela transported between six and twenty-four aliens.
See id. § 2L1.1(b)(2)(A). Another three levels were added because Mr. Alapizco-
Valenzuela overloaded the aliens into the minivan and transported them without
safety restraints, thereby intentionally or recklessly subjecting the aliens to a
substantial risk of death or bodily harm. See id. § 2L1.1(b)(6). Finally, the PSR
recommended a two-level increase because an alien was involuntarily detained
through coercion or threat, or in connection with a demand for payment. See id.
§ 2L1.1(b)(8).
The PSR then applied upward and downward adjustments under Chapter
Three of the Guidelines. Specifically, the PSR recommended a two-level upward
adjustment for obstructing justice based on the aliens’ statement that they were
threatened and intimidated when instructed to tell law enforcement officers they
were all taking turns driving and looking for work together. See id. § 3C1.1. The
PSR recommended a three-level downward adjustment for acceptance of
responsibility based on Mr. Alapizco-Valenzuela’s guilty plea. See id. § 3E1.1.
This resulted in a total offense level of nineteen, which, in combination with Mr.
Alapizco-Valenzuela’s criminal history category I, yielded an advisory Guidelines
range of thirty to thirty-seven months.
Mr. Alapizco-Valenzuela objected to the PSR’s two-level increase for
detaining an alien through coercion or in connection with a demand for payment
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and to the PSR’s two-level increase for obstructing justice by intimidating or
threatening a witness. He denied being involved with the detention and extortion
of the smuggled aliens, contended he never carried a firearm and never threatened
anyone, and claimed he did not instruct the passengers to lie to law enforcement.
The government responded to Mr. Alapizco-Valenzuela’s objections and
further filed a “Motion for Upward Departure and Upward Variance.” In the
motion, the government argued that the circumstances of the case brought it
outside the heartland of alien-smuggling offenses and therefore warranted a
higher-than-Guidelines sentence under U.S.S.G. § 5K2.0. The government also
contended that a higher sentence should be imposed in light of the factors set
forth in 18 U.S.C. § 3553(a). The government advocated for an offense level of
twenty-six, noting that this would bring it more in line with the offense of
kidnaping for a ransom. See U.S.S.G. § 2A4.2. An offense level of twenty-six
for a person with a criminal history category I produces a Guidelines range of
sixty-three to seventy-eight months. The government sought a sentence at the top
of this range.
The district court, both orally at sentencing and in a subsequent written
order, denied the objections, granted the government’s motion, and sentenced Mr.
Alapizco-Valenzuela to seventy-two months. On appeal, Mr. Alapizco-
Valenzuela challenges the application of the two-level enhancement under
§ 2L1.1(b)(8) for detaining an alien involuntarily through coercion or threat, or in
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connection with a demand for payment. He also challenges the district court’s
decision to grant the motion for an upward departure and upward variance.
II. DISCUSSION
A. Standard of Review
After United States v. Booker, 543 U.S. 220 (2005), we review sentences
for reasonableness under a deferential abuse-of-discretion standard. United States
v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). “Reasonableness review is a
two-step process comprising a procedural and a substantive component.” United
States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008) (citing Gall v. United
States, — U.S. —, 128 S.Ct. 586, 597 (2007)). Procedural review asks whether
the sentencing court committed any error in calculating or explaining the
sentence. See United States v. A.B., 529 F.3d 1275, 1278 (10th Cir. 2008). See
also Gall, 128 S. Ct. at 597 (procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence”).
Substantive review “involves whether the length of the sentence is reasonable
given all the circumstances of the case in light of the factors set forth in 18
U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.
2007).
Accordingly, if the issue is raised on appeal, the first step in reviewing any
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sentence is to determine whether the district court considered the applicable
Guidelines range. United States v. Shaw, 471 F.3d 1136, 1140 (10th Cir. 2006);
United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). In making this
determination, we review the court’s “legal conclusions de novo and its factual
findings for clear error.” Kristl, 437 F.3d at 1055. A non-harmless error in
calculating the Guidelines range renders the sentence unreasonable and entitles
the defendant to resentencing. Id.
Once we have determined that the district court considered the applicable
Guidelines range, our next step is to consider whether the sentence is otherwise
procedurally sound and whether the length of the chosen sentence is substantively
reasonable. Gall, 128 S. Ct. at 597. As to the latter inquiry, it is clear after Rita
v. United States, — U.S. —, 127 S. Ct. 2456 (2007), that a within-Guidelines
sentence is entitled to a presumption of substantive reasonableness on appeal.
United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008); Kristl, 437 F.3d at
1055. The defendant may rebut this presumption by showing that his sentence is
unreasonable in light of the sentencing factors delineated in 18 U.S.C. § 3553(a).
Kristl, 437 F.3d at 1055.
When the sentence imposed is higher or lower than what the Guidelines
recommend, we engage in a different analysis to determine whether the sentence
is substantively reasonable. This analysis hinges on the method by which the
district court selects the particular sentence. When the district court uses
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Chapters Four and Five of the Guidelines to depart from the advisory Guidelines
range, see United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007), we
employ the same four-part test that we used prior to Booker. We ask:
(1) whether the factual circumstances supporting a departure are
permissible departure factors; (2) whether the departure factors relied
upon by the district court remove the defendant from the applicable
Guideline heartland thus warranting a departure; (3) whether the
record sufficiently supports the factual basis underlying the
departure; and (4) whether the degree of departure is reasonable.
United States v. Munoz-Tello, 531 F.3d 1174, 1186 (10th Cir. 2008); United
States v. Collins, 122 F.3d 1297, 1303 (10th Cir. 1997). See also United States v.
Martinez-Barragan, – F.3d –, 2008 WL 4632806, at *4 (10th Cir. 2008)
(“[N]either Booker nor any of the subsequent cases have altered the standard for
when to depart from the recommended range.”). In considering these prongs, “we
apply a unitary abuse of discretion standard.” 1 Munoz-Tello, 531 F.3d at 1186
(quotations omitted). As a practical matter, however, this standard affords more
deference to factual questions and less (if any) deference to legal ones:
Although we apply a unitary abuse of discretion standard to these
four prongs, we have specified that the degree of deference to the
district court varies depending on the essential nature of the question
presented on appeal. That is, if the question on appeal has the hue of
a factual question, we accord the district court greater deference,
whereas we undertake plenary review of questions that are in essence
legal.
1
This standard entails an abuse-of-discretion review of a sentencing court’s
determination of factual circumstances supporting a departure and the same
“review to determine that the [court’s] discretion was not guided by erroneous
legal conclusions.” Koon v. United States, 518 U.S. 81, 100 (1996).
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Id. (quotations, citations, and alteration omitted). 2
On the other hand, when the district court varies from the advisory
Guidelines range through application of the § 3553(a) factors, see Atencio, 476
F.3d at 1101 n.1, we simply consider whether the length of the sentence is
substantively reasonable utilizing the abuse-of-discretion standard. See United
States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008). We do not apply a
presumption of unreasonableness to the sentence, and instead “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 [we] might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Id. 3
2
Although we have never so stated, this standard of review is similar to the
standard we apply in determining whether the district court first arrived at the
appropriate advisory Guidelines range. See Kristl, 437 F.3d at 1055 (in
calculating the Guidelines range, we review the district court’s “legal conclusions
de novo and its factual findings for clear error”). In addition, the four-part test
also contains what we have characterized, at least in other contexts, as both
procedural and substantive components. For example, in analyzing a departure,
we must ask whether the departure factor is a permissible one under the
Guidelines. This is similar to asking whether the court committed a procedural
error by basing a sentence on a factor not within those enumerated in § 3553(a).
See United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). Regarding the
substantive component, considering the degree of the departure is analogous to
considering the overall length of the sentence, and we have repeatedly explained
that the latter consideration goes to the substantive reasonableness of the
sentence. See Conlan, 500 F.3d at 1169.
3
To be sure, at times we have offered a slightly different approach.
Specifically, we have suggested that considering the Guidelines’ departure
(continued...)
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With these principles in mind, we turn to Mr. Alapizco-Valenzuela’s
sentence.
B. Application of Specific-Offense Enhancement Under U.S.S.G.
§ 2L1.1(b)(8)
We first address Mr. Alapizco-Valenzuela’s contention that the facts of this
case do not support a two-level specific-offense enhancement under U.S.S.G.
§ 2L1.1(b)(8) for involuntarily detaining smuggled aliens through coercion or
threat, or in connection with a demand for payment. See Kristl, 437 F.3d at 1055
(“First, we must determine whether the district court considered the applicable
3
(...continued)
provisions is part of the district court’s obligation to calculate the appropriate
Guidelines range, which is then considered in light of the § 3553(a) factors. See
United States v. Barragan, – F.3d at –, 2008 WL 4632806, at *4 (“One step in
applying the Guidelines is to determine whether or not to depart from the range
specified in the Sentencing Table.”); A.B., 529 F.3d at 1286 (explaining that we
have relied on cases from other circuits “that could be read to require district
courts to consider available Guidelines departures as part of their initial
consultation of the Guidelines”) (emphasis omitted); United States v. Calzada-
Maravillas, 443 F.3d 1301, 1305 (10th Cir. 2006) (noting that consideration of
the Guidelines “necessarily includes consideration of [the] departure provisions”).
Other circuits, too, have articulated this view. See United States v. McBride, 434
F.3d 470, 477 (6th Cir. 2006) (“Because Guideline ‘departures’ are a part of the
appropriate Guideline range calculation, we believe that Guideline departures are
still a relevant consideration for determining the appropriate Guideline sentence.
This Guideline sentence is then considered in the context of the section 3553(a)
factors.”); United States v. Haack, 403 F.3d 997, 1003 (2d Cir. 2005) (“Once the
applicable range is determined, the court should then decide if a traditional
departure is appropriate under . . . the Federal Sentencing Guidelines. . . . Once
the guidelines sentence is determined, the court shall consider all other factors set
forth in § 3553(a) to determine whether to impose the sentence under the
guidelines or a non-guidelines sentence.”).
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Guidelines range.”). At sentencing, “the government has the burden of proving
by a preponderance of the evidence any findings necessary to support a sentence
enhancement.” United States v. Gambino-Zavala, 539 F.3d 1221, 1228 (10th Cir.
2008). “In evaluating the application of a Guidelines enhancement, we review
factual findings for clear error.” United States v. Scott, 529 F.3d 1290, 1300
(10th Cir. 2008) (quotations omitted).
The parties entered into a stipulation which permitted the government to
submit investigative reports and interview transcripts in lieu of witness testimony
at the sentencing hearing. The government submitted eight memoranda of
interviews that ICE agents conducted with seven of the aliens, and it submitted
one memorandum of an interview agents conducted with the two defendants. As
the PSR noted, the aliens’ responses in the interviews revealed that they had been
forced at gunpoint to give up their personal belongings, to phone family members
and friends for additional money to pay the smugglers, to remain hidden in the
stash houses with little food or drink, and to lie crowded and cramped in the
minivan en route to Florida with no means of escape. Indeed, most of the aliens
specifically stated that they did not feel free to leave the stash houses, and that
they feared for their lives and physical safety. Two aliens stated that they saw
Mr. Alapizco-Valenzuela with a gun when he arrived at the second stash house;
one of those two stated that Mr. Alapizco-Valenzuela was part of a group of
gunmen who came to the second stash house and demanded each person pay
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additional money or be shot.
For his part, Mr. Alapizco-Valenzuela also submitted a memorandum of an
ICE interview with one of the transported aliens. That alien reported that Mr.
Alapizco-Valenzuela did not have a gun and that he did not threaten any members
of the group directly. Mr. Alapizco-Valenzuela also introduced the results of a
polygraph he had taken, which suggested that he was being truthful when he
stated that he never had a gun and never saw anyone with a gun at the second
stash house. Finally, Mr. Alapizco-Valenzuela submitted a letter from his
girlfriend stating that criminal conduct was out of his character.
At the sentencing hearing, the court explained that it had considered the
exhibits and heard the parties’ argument on the § 2L1.1(b)(8) enhancement. The
court then ruled:
Pursuant to the United States Sentencing Guideline
2L1.1(b)(8), if an alien was involuntarily detained through coercion
or threat or in connection with a demand for payment after the alien
was smuggled into the United States or while the alien was
transported or harbored in the United States, you increase the offense
level to two levels.
The 11 illegal aliens were held against their will after entering
into the United States, their shoes and personal belongings were
taken and they were forced at gunpoint to call family or friends to
collect money for their release. After the money was obtained the
aliens were ordered into the van, ordered to lay face down and they
were transported.
They were told they were—would have to pay an additional
$500 to the drivers of the van to be released when they arrive [sic] at
their destination. They were not allowed to exit the van during the
transport and were forced to relieve themselves in plastic bottles.
Passengers of the van said the defendant was at the stash house and
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was seen with a firearm. One passenger stated this defendant was in
the stash house but did not see a firearm.
My ruling, the passengers did not feel free to leave or escape,
they were not allowed to exit the vehicle and they were going to have
to pay the drivers of the vehicle before they would be released once
they reached their final destination. The defendant’s objection,
therefore, is denied.
The court subsequently issued a written order that stated:
The passengers are consistent in their version of events. They were
held at a house, probably in Phoenix, Arizona, where their shoes and
personal belongings were taken. Their personal belongings were
never returned, and when they were discovered outside Hutchinson,
Kansas, they were not wearing shoes. At the second house, they
were forced to call family or friends, at gunpoint, to request
$2500.00 for their release. $2000.00 was paid before they left the
house, with the other $500 to be paid to the driver when they arrived
at their destination. They were told if the money was not paid, they
would not be released. The men at the second house carried
firearms, and two of the eleven passengers stated they saw the
defendant with a firearm at the second house. The defendant
admitted he was at the second house and drove the van from the
residence. Seven of the passengers told law enforcement they felt
they were not free to leave the house or the van. Inside the van, they
had to urinate in a bottle, and were not allowed to exit the vehicle.
They were told to stay down, and not look around. When law
enforcement made contact with the passengers and the two
defendants, the defendants told the passengers not to say anything
and to tell law enforcement all of them were driving, and if they tell
[sic] police what really happened, things would get worse for them.
The statements from the passengers show this defendant participated
in threatening the aliens. The court finds that these acts were
committed personally by the defendant. The court also finds these
acts committed by the co-defendant were reasonably foreseeable acts
by others in furtherance of a jointly undertaken criminal activity.
See U.S.S.G. § 1B1.3(1)(B).
In contesting the application of this enhancement on appeal, Mr. Alapizco-
Valenzuela contends that the evidence does not show that he ever had a firearm.
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Although there is some evidence that supports Mr. Alapizco-Valenzuela’s version
of events (specifically, the statement of one alien and the polygraph report), there
is also evidence to the contrary: two aliens reported that they saw Mr. Alapizco-
Valenzuela with a gun. The district court was free to determine the relative
reliability of that evidence and to credit the statements of the aliens who told ICE
agents that Mr. Alapizco-Valenzuela carried a firearm in support of the
§ 2L1.1(b)(8) enhancement. See United States v. Sims, 428 F.3d 945, 952–53
(10th Cir. 2005) (explaining that when there is conflicting evidence, “evaluation of
the credibility of witnesses, the weight to be given the evidence, and inferences to
be drawn from the evidence are for the district court”) (alteration omitted).
Moreover, the district court did not apply the enhancement based solely on a
finding that Mr. Alapizco-Valenzuela carried a firearm. Rather, the court
emphasized that the totality of the circumstances—the aliens’ being held at the
stash houses, being ordered at gunpoint to contact family and friends for more
money before they would be taken to Florida, being robbed of personal belongings
and shoes to prevent escape, and not being permitted to leave the minivan en route
to Florida—supported the legal conclusion that they were involuntarily detained
through coercion or threat, or in connection with a demand for payment, and that
those acts were personally committed by Mr. Alapizco-Valenzuela or reasonably
foreseeable to him under U.S.S.G. § 1B1.3(a)(1)(A)–(B).
In addition, and contrary to Mr. Alapizco-Valenzuela’s contentions, the
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district court’s finding that he participated in those acts or should have reasonably
foreseen them are not clearly erroneous. See United States v. Tagore, 158 F.3d
1124, 1129 (10th Cir. 1998) (“We review the district court’s factual findings . . .
[including] [t]he district court’s finding concerning forseeability . . . under a
clearly erroneous standard.”) (quotations and citations omitted). Viewed in the
light most favorable to the district court’s finding, see United States v. Brown, 314
F.3d 1216, 1221 (10th Cir. 2003), the evidence demonstrates that Mr. Alapizco-
Valenzuela, armed with a firearm, arrived at the second stash house shortly before
heading to Florida. The aliens detained there did not have shoes or any personal
belongings, and several armed guards were keeping watch over them. A
reasonable inference from these facts is that Mr. Alapizco-Valenzuela knew that
the aliens were being held against their will when he participated in loading them
into the minivan and setting off for Florida.
The district court also considered evidence that the aliens were instructed to
stay down and lay flat in the van and were not allowed to leave the vehicle—even
to use the restroom—and that they were told they would be required to pay the
driver $500 when they arrived at their destination. As a passenger in the van, Mr.
Alapizco-Valenzuela participated in those coercive acts. All of this amply
supports the district court’s finding that Mr. Alapizco-Valenzuela joined in
involuntarily detaining the aliens through coercion or threat, or in connection with
a demand for payment. This finding is sufficient to support the § 2L1.1(b)(8)
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enhancement.
Finally, Mr. Alapizco-Valenzuela argues that he is entitled to resentencing
because the district court did not comply with Rule 32 of the Federal Rules of
Criminal Procedure in imposing the enhancement. Under that Rule, a district court
“must—for any disputed portion of the presentence report or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not
consider the matter in sentencing[.]” Fed. R. Crim. P. 32(i)(3)(B). “If the district
court fails to comply with Rule 32[(i)(3)(B)], we must remand for the court to
either make the necessary findings . . . or enter a declaration that it did not take
the controverted matters into account in sentencing the defendant.” United States
v. Cereceres-Zavala, 499 F.3d 1211, 1213–14 (10th Cir. 2007).
Here, Mr. Alapizco-Valenzuela objected to paragraph 33 of the PSR, which
recommended the two-level enhancement under § 2L1.1(b)(8). In that objection,
he denied being involved with the detention and extortion of the aliens, denied
seeing anyone else in possession of a firearm, and argued that he allowed the
aliens to stop to use the restroom as he drove them to Florida. Contrary to Mr.
Alapizco-Valenzuela’s assertion, the district court ruled on these factual disputes.
In its written order denying his objection to the enhancement, the district court
expressed its agreement with the aliens’ version of events, including their
detention at both stash houses and inside the minivan. The court recited evidence
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supporting a finding that he had a firearm at the second house, and it agreed with
the aliens’ statements that he directly participated in threatening them. In ruling
on these disputed issues, the court thus complied with Rule 32.
C. Departure or Variance
Given that we apply a different appellate framework depending on whether
the sentence is the result of a departure or a variance, our review of Mr. Alapizco-
Valenzuela’s sentence requires that we first determine whether the district court
departed upward, varied upward, or both departed and varied upward when it
granted the government’s “Motion for Upward Departure and Upward Variance.”
Although this is a close question, our review of the entire record convinces us that
the sentence is a variance.
In its motion, the government first set forth the factual background of the
crime, which does not differ in significant respects from the facts we have already
relayed. The government then advocated for an upward departure under U.S.S.G.
§ 5K2.0, which provides that the sentencing court may depart from the applicable
Guidelines range if there exists an aggravating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in
formulating the Guidelines. The government argued that the two-level
enhancement under § 2L1.1(b)(8) contemplates “an isolated, minor detention of
limited duration as opposed to the four-day ordeal involving, in effect, multiple
detentions amounting to kidnaping, plus other inhumane treatment,” and that the
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circumstances of this case are thus of a kind and to a degree not adequately taken
into consideration by the Sentencing Commission. In the alternative, the
government argued for an upward variance. It explained that the egregious facts
necessitated a higher sentence in order to adequately deter future conduct and to
constitute just punishment, see 18 U.S.C. § 3553(a)(2)(A), (a)(2)(B), and that the
other § 3553(a) factors similarly counseled in favor of an above-Guidelines
sentence. The government sought an increase in Mr. Alapizco-Valenzuela’s
offense level from nineteen to twenty-six, which would bring his sentence more in
line with a sentence for kidnaping and demanding a ransom. See U.S.S.G.
§§ 2A4.1, 2A4.2. The resulting sentencing range was sixty-three to seventy-eight
months.
At the sentencing hearing, the district court referred to the motion both in
terms of a departure and a variance. At one point, the court appeared to conflate
the two types of sentences, calling the motion one for an “upward departure
variance” and noting that “[a]fter considering the factors set forth in 18 U.S.C.
§ 3553(a), the Court finds that the facts of this case constitute aggravating
circumstances and that this case falls outside the [heartland] of the immigration
cases.” 4 We are not bound, however, by the district court’s characterization of the
4
The district court’s language is not surprising. Although “[d]epartures and
variances are analytically distinct, and courts must be careful not to confuse
them,” it is also clear that “[b]ecause many of the same considerations are part of
both the departure and variance analyses, there will, necessarily, be some overlap
(continued...)
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motion and resulting sentence—at least where, as here, the court’s characterization
is inconsistent and ambiguous. A full reading of the district court’s explanation at
sentencing clarifies that the court imposed a sentence based primarily on the
§ 3553(a) factors and was therefore varying from the Guidelines:
The facts of the case show that the illegal aliens were held at
gunpoint, forced to call family or friends at gunpoint to request money,
their shoes and personal belongings were taken, they were fed very little,
they were transported and made to urinate in plastic jugs, as they were
not allowed to exit the vehicle. When they were made [sic] contact with
law enforcement they were threatened and told to lie to the officers.
The Court relies on the following factors: One, the nature and
circumstance of the [offense] [18 U.S.C. § 3553(a)(1)], the case falls
outside the [heartland] of immigration cases in the unlawful restraint and
extreme conduct by the defendant and others involved in criminal
organization. The victims in this case were held captive for a number
of days, forced to extort money from their family and friends at
gunpoint. The seriousness of the offense [18 U.S.C. § 3553(a)(2)(A)],
the defendants participated in holding 11 people hostage, extorting
money and then not providing safe means of transportation for the
passengers in the vehicle.
The question of adequate deterrence [18 U.S.C. § 3553(a)(2)(B)],
the Court finds that the sentence of 72 months will deter this type of
conduct. As for the protection to the public [18 U.S.C. § 3553(a)(2)(C)],
the public will be protected from defendant while he’s incarcerated.
Defendants participated in an illegal alien smuggling group and harm
from this group is ongoing. Also, the defendant admitted to law
enforcement that he had participated in [] smuggling an alien in March,
2004. The Court grants the motion for an upward departure and for an
upward variance. That’s the ruling and judgment of the Court.
The district court’s written order similarly supports our conclusion that the
4
(...continued)
between the two, when a [party] seeks, and the courts consequently are called
upon to consider, both forms of [sentences].” Martinez-Barragan, – F.3d at –,
2008 WL 4632806, at *5.
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sentence is a variance. Although the court initially characterized the sentence in
terms of a departure, 5 the court went on to set forth all of the § 3553(a) factors:
The court, in determining the particular sentence to be imposed, shall
consider (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the
sentence imposed (A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the
offense; (B) to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant; and (D) to
provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective
manner; (3) the kinds of sentences available; (4) the kinds of sentence
and the sentencing range established; (5) any pertinent policy
statement; (6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct; and (7) the need to provide restitution to any victims
of the offense. 18 U.S.C. § 3553(a).
The court then applied those factors to the facts of the case, describing the
seriousness of holding eleven people hostage and causing them to fear for their
lives; noting that a higher sentence would more effectively deter similar criminal
conduct; explaining that a sentence of imprisonment would best protect the public
from Mr. Alapizco-Valenzuela, who had admitted to previously smuggling aliens
in 2004; and justifying the disparity between Mr. Alapizco-Valenzuela’s sentence
and that of Mr. Cota-Beltran. In doing so, the court did not specifically refer to
5
“The sentencing court may depart from the applicable guideline range if
the court finds there exists an aggravating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines to advance the objectives set forth in 18 U.S.C.
§ 3553(a)(2), and should result in a sentence different from that described.
U.S.S.G. § 5K2.0.”
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the sentence as a variance (indeed, on occasion it called it a departure), but, as we
have stated, we need not rely solely on the district court’s isolated use of the terms
“variance” or “departure” when the court’s language is ambiguous and our reading
of the entire record suggests a contrary conclusion. Here, where the court
carefully enumerated all of the sentencing factors in § 3553(a), and then went on
to emphasize that those factors justified a higher-than-Guidelines sentence, we
conclude that the resulting sentence is a variance.
D. Reasonableness
Mr. Alapizco-Valenzuela contends that his sentence is unreasonable because
(1) the district court did not consider the § 3553(a) factors in imposing the
sentence; (2) the district court used the same facts that supported the § 2L1.1(b)(8)
enhancement to justify the upward variance; and (3) his co-defendant, Mr.Cota-
Beltran, received a lower sentence.
Regarding the first objection, which goes to the procedural reasonableness
of the sentence, see Gall, 128 S. Ct. at 597, it is clear that the district court
properly considered the § 3553(a) factors. The court listed each factor
individually, then explained the circumstances of the case relevant to the factors
and supportive of a higher sentence. To the extent Mr. Alapizco-Valenzuela
contends that the district court did not consider evidence of his good character
under 18 U.S.C. § 3553(a)(1), we disagree. The court specifically noted that it
must take into account the history and characteristics of the defendant under 18
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U.S.C. § 3553(a)(1). We do not find persuasive Mr. Alapizco-Valenzuela’s
contention that despite this explicit reference, “we have no way of knowing”
whether the district court did indeed consider this factor.
Mr. Alapizco-Valenzuela also argues that the district court erred in using the
same facts that supported the § 2L1.1(b)(8) enhancement to justify the upward
variance. Because he did not make this procedural challenge below, we review it
only for plain error. See United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th
Cir. 2006). “Plain error occurs when there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quotations omitted). We conclude
there is no error.
In the time since briefing was completed in this case, we have twice held
that district courts have broad discretion to consider particular facts in fashioning
a sentence under 18 U.S.C. § 3553(a), even when those facts are already accounted
for in the advisory Guidelines range. See United States v. Jarvi, 537 F.3d 1256,
1263 (10th Cir. 2008); United States v. Huckins, 529 F.3d 1312, 1319 (10th Cir.
2008). Accordingly, a district court does not commit procedural error when it
relies on the same facts to support both an enhancement and a variance, so long as
it “articulate[s] specifically the reasons that this particular defendant’s situation is
different from the ordinary situation covered by the guidelines calculation.” See
Atencio, 476 F.3d at 1107. This explanation “need not be overly detailed.” Id. at
-23-
1106.
The district court adequately explained its reasons in this case. In its
sentencing order, it reiterated the government’s assertion that § 2L1.1(b)(8)
contemplates an isolated, minor detention of limited duration. Referencing the
§ 3553(a) factors, the court then noted that in the case at hand, the victims were
subjected to a four-day-long hostage situation in which they were essentially
kidnaped at gunpoint, robbed of their personal belongings, held captive even after
they paid a substantial sum of money, and prevented from leaving a vehicle during
transport. The court distinguished these activities from those contemplated by the
Sentencing Commission under § 2L1.1(b)(8). We find this to be a sufficient
explanation. Accordingly, the district court did not err. Cf. Huckins, 529 F.3d at
1320 (a district court does not abuse its discretion in imposing a downward
variance based in part on the defendant’s lack of criminal history so long as it
appropriately justifies the variance in light of the § 3553(a) factors).
Finally, Mr. Alapizco-Valenzuela argues his sentence is substantively
unreasonable given the disparity between his sentence and that given to Mr. Cota-
Beltran. 6 Disparate sentences, however, are permissible when the disparity is
explicable by the facts of the particular case. United States v. Haley, 529 F.3d
1308, 1312 (2008). Here, the district court found Mr. Alapizco-Valenzuela more
culpable than his co-defendant because Mr. Alapizco-Valenzuela was present at
6
The record does not indicate the sentence Mr. Cota-Beltran received.
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the second stash house, and therefore was more aware of the aliens’ plight,
whereas Mr. Cota-Beltran’s involvement began later when he was picked up by the
minivan en route to Florida. Mr. Alapizco-Valenzuela reiterates his argument that
he did not have a firearm, did not see anyone else with a firearm, and did not
participate in or know what had occurred at the stash houses. As we held,
however, the district court’s finding to the contrary is not clearly erroneous. Thus,
the disparity is explicable on the facts and does not render Mr. Alapizco-
Valenzuela’s sentence substantively unreasonable.
III. CONCLUSION
The district court did not rely on clearly erroneous facts in applying the
two-level enhancement under U.S.S.G. § 2L1.1(b)(8), and the enhancement is
warranted on those facts. Mr. Alapizco-Valenzuela’s sentence is otherwise
procedurally reasonable, and we reject his sole challenge to its substantive
unreasonableness. Accordingly, we AFFIRM his sentence.
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