FILED
United States Court of Appeals
Tenth Circuit
March 8, 2010
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-1005
MARGARITO CHAVEZ-SUAREZ,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 08-CR-00345-PAB-1)
Submitted on the briefs: *
Raymond P. Moore, Federal Public Defender, and Howard A. Pincus, Assistant
Federal Public Defender, Denver, Colorado, for Defendant–Appellant.
David M. Gaouette, Acting United States Attorney, and Jeremy S. Sibert, Joseph
Mackey, and John M. Hutchins, Assistant United States Attorneys, Denver,
Colorado, for Plaintiff–Appellee.
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
McKAY, Circuit Judge.
*
This case was ordered submitted on the briefs on November 18, 2009.
In this criminal appeal, Defendant Margarito Chavez-Suarez challenges the
substantive reasonableness of his sentence. Defendant pled guilty to illegally
reentering the country following deportation after a conviction for a drug-
trafficking offense. This drug-trafficking offense—a 1997 state court conviction
for the attempted distribution of marijuana—resulted in a sixteen-level
enhancement to the offense level calculated under the advisory sentencing
guidelines. Based on this enhancement, the advisory guideline range was
calculated at forty-one to fifty-one months of imprisonment. Although the
probation officer recommended granting Defendant’s request for a variance below
this guideline range, the district court ultimately imposed a forty-one month
sentence. This appeal followed.
On appeal, Defendant challenges only the substantive reasonableness of the
sentence imposed, arguing that this sentence was unreasonably long in light of the
age of the underlying drug-trafficking conviction, his essentially clear conduct
prior to and following that conviction, and the relatively benign nature of his
attempted distribution of marijuana in comparison to the other offenses that
trigger the sixteen-level enhancement. Defendant notes that, following his 1997
conviction, his only contact with the police was for driving without insurance.
Indeed, he was only discovered to be in the United States illegally in 2008
because he complied with traffic laws by remaining at the scene of an accident
that had been caused by another driver. Defendant argues that the record shows
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he was deterred from drug trafficking by an eighteen month sentence (from which
he was released after nine months), and he asserts that this demonstrates that he
would likewise be deterred from illegal reentry by a relatively short sentence.
Defendant further notes other offenses triggering a sixteen-level enhancement
under the guidelines include terrorism, rape, murder, child pornography, and
human trafficking, and he argues his attempted distribution of marijuana should
not be subject to the same enhancement as these crimes. He also notes that the
district court found certain mitigating factors relating to his personal
characteristics. In light of all of these circumstances, Defendant argues, the
district court abused its discretion by refusing to vary below the applicable
guidelines range.
We agree with the Ninth Circuit that the staleness of an underlying
conviction may, in certain instances, warrant a below-Guidelines sentence. See
United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir. 2009). “The
fact that Section 2L1.2(b) addresses the seriousness of the offense—as opposed to
the risk of recidivism—explains the absence of time limitations on qualifying
predicate convictions. It does not, however, [always] justify increasing a
defendant’s sentence by the same magnitude irrespective of the age of the prior
conviction at the time of reentry.” Id. at 1055 (citations omitted). While, as the
government points out, we have previously upheld guidelines-range sentences
where the underlying conviction occurred years in the past, see, e.g., United
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States v. Torres-Duenas, 461 F.3d 1178, 1182 (10th Cir. 2006), we are persuaded
that the staleness of a conviction may under certain circumstances warrant a
variance below the guidelines.
We are also persuaded that a downward variance may sometimes be
warranted based on the relatively benign nature of a particular offense in
comparison to other offenses triggering the same enhancement. Indeed, we have
on occasion noted that the nature of a prior conviction may bear on the
reasonableness of a sentence that is based on this sixteen-level enhancement. See,
e.g., United States v. Hernandez-Castillo, 449 F.3d 1127, 1131-32 (10th Cir.
2006) (expressing “grave misgivings” regarding the appropriateness of a
guidelines-range sentence resulting from a sixteen-level enhancement for
statutory rape based on a consensual sexual relationship between two teenagers);
United States v. Trujillo-Terrazas, 405 F.3d 814, 819-20 (10th Cir. 2005) (noting
that applying the same “substantial sixteen-level enhancement” for a relatively
trivial arson as for a more serious case of arson “could be seen to run afoul of §
3553(a)(6), which strives to achieve uniform sentences for defendants with
similar patterns of conduct”). Moreover, we find singularly unpersuasive the
argument the government made before the district court that “the defense fails
[to] recogniz[e] that drug trafficking is as serious as murders or child molestation
or other serious types of felonies . . . even if it’s a small amount [that] might not
look horrendous.” (R. Vol. II at 20-21.) We are convinced that the attempted
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distribution of marijuana is in itself not nearly as serious a crime as murder,
human trafficking, child molestation, and other felonies triggering the sixteen-
level enhancement. We therefore conclude that a downward variance may be
warranted in certain cases where the sixteen-level enhancement is triggered by
this crime.
Nevertheless, while troubled by the age and nature of the underlying felony
conviction, we cannot say that the district court’s sentencing decision amounted
to an abuse of discretion. See United States v. McComb, 519 F.3d 1049, 1053
(10th Cir. 2007). Although we might have imposed a lower sentence in the first
instance, we are not persuaded that the district court’s judgment fell outside the
“range of rationally permissible choices” before it. Id. We are concerned by the
fact that the underlying conviction was eleven years old, but we are not convinced
that this conviction was so stale that the district court abused its discretion by
refusing to vary downward under the circumstances of this case. Cf. Amezcua-
Vasquez, 567 F.3d at 1056 (holding that a downward variance was required where
the underlying convictions occurred twenty-five years prior to the defendant’s
removal and reentry). In light of all of the evidence in the record, including
Defendant’s past illegal reentries and certain aggravating factors in his underlying
drug-trafficking conviction, the imposition of a guidelines-range sentence in this
case did not manifest a clear error of judgment by the district court. We therefore
AFFIRM the conviction and sentence.
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09-1005, United States v. Chavez-Suarez
BRISCOE, Circuit Judge, concurring:
I fully agree with the majority that the district court did not abuse its
discretion in sentencing Chavez-Suarez, and thus I concur in the judgment. I
write separately, however, because I cannot agree with the majority’s reasoning.
As evidenced by the district court’s statements at sentencing, the district court
was fully aware of the scope of its sentencing discretion and the court employed
great care in the exercise of that discretion.
“[W]e review sentences for reasonableness under a deferential abuse-of-
discretion standard.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214
(10th Cir. 2008). “Reasonableness review is [typically] a two-step process
comprising a procedural and a substantive component.” Id. (internal quotation
marks omitted). Here, however, Chavez-Suarez does not dispute the procedural
reasonableness of his sentence. Indeed, he filed no objections to the presentence
report’s sentencing calculations, which were adopted in full by the district court.
Instead, he challenges only the substantive reasonableness of his 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).” Id. (internal quotation marks omitted). If the sentence
is within the correctly-calculated Guidelines range, it is considered presumptively
reasonable on appeal, unless the defendant “rebut[s] this presumption by
demonstrating that the sentence is unreasonable in light of the other sentencing
factors laid out in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1055 (10th
Cir. 2006).
Chavez-Suarez’s main contention on appeal is that the Sentencing
Guidelines’ calculations effectively overstated, through imposition of a 16-level
enhancement, the seriousness of his prior drug-trafficking conviction. But the
district court expressly considered and rejected that contention, noting that
Chavez-Suarez knowingly engaged in the trafficking of marijuana with the sole
intent “to make money,” and not, as is the case with many defendants, to support
their own personal drug use. ROA, Vol. 2 at 25. The district court also noted
that Congress had specifically chosen to treat “drug distribution [a]s an
aggravated felony.” Id. Lastly, the district court concluded “that the age of [the]
previous conviction . . . [was] not relevant” because as regards reentry it imposed
a continuous “disability” on Chavez-Suarez, making “it a much more serious
crime for him to return” to the United States. Id. at 27. Nothing about these
rationales, or the district court’s ultimate rejection of Chavez-Suarez’s contention,
constitutes an abuse of discretion. See United States v. Pruitt, 502 F.3d 1154,
1166 (10th Cir. 2007) (“Selling . . . illegal drugs is a serious offense that
detrimentally impacts other people’s lives . . . .”), vacated on other grounds, 128
S.Ct. 1869 (2008); United States v. Carr, 939 F.2d 1442, 1448 (10th Cir. 1991)
(“Drug trafficking crimes are serious . . . .”); United States v. Torres-Duenas,
461 F.3d 1178, 1183 (10th Cir. 2006) (affirming as substantively reasonable a 41-
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month sentence for illegal reentry that was based, in part, on a sixteen-level
enhancement resulting from a nearly twenty-year-old felony conviction).
Chavez-Suarez next asserts that a substantially shorter sentence would have
sufficed to deter him from future crimes. But the district court considered and
rejected that argument as well, noting that Chavez-Suarez had entered the United
States illegally on four prior occasions. The district court found it significant that
the two most recent of those illegal reentries occurred after Chavez-Suarez had
been convicted of the drug-trafficking offense and was thus “subject to being
prosecuted federally for aggravated re-entry after a conviction . . . .” ROA, Vol.
2 at 26. Further, the district court emphasized that Chavez-Suarez, “instead of
responding to” his apprehension and deportation in 2002, which the district court
termed a “close call,” “nonetheless decided that he would return to the United
States.” Id. at 26-27. In my view, the district court again acted well within its
discretion in rejecting Chavez-Suarez’s arguments.
Chavez-Suarez’s final argument is that his “personal characteristics” alone
justified a below-Guidelines sentence. Notably, the district court agreed that
Chavez-Suarez was a “good” and “reliable” worker, that “[h]is neighbors f[ound
him to be] a good and reliable person,” and that “he ha[d] raised fine children . . .
.” Id. at 26. Significantly, however, the district court concluded that these
mitigating factors were outweighed by other § 3553(a) factors, particularly the
need for deterrence and, to a lesser degree, the need to protect the public “from
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people who decide to return to the United States illegally after they have been
deported for criminal offenses . . . .” Id. at 28. Nothing about this determination
constitutes an abuse of discretion.
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