Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1941
UNITED STATES,
Appellee,
v.
NICHOLAS ALVAREZ-ENCISO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Bjorn Lange, Assistant Federal Public Defender, on brief for
appellant.
Mark S. Zuckerman, Assistant U.S. Attorney, and Thomas P.
Colantuono, United States Attorney, on brief for appellee.
June 9, 2006
Per Curiam. Defendant-appellant Nicholas Alvarez-Enciso
appeals from his sentence imposed following his guilty plea to
illegal re-entry to the United States, in violation of 8 U.S.C. §§
1326(a) and 1326(b)(2).1 Appellant does not challenge the district
court's calculation of the advisory guideline sentencing range
(GSR), but argues that the sentencing court's failure to reduce his
sentence below the GSR of 24 to 30 months based on certain
mitigating factors was unreasonable and resulted in a sentence that
was greater than necessary to effectuate the statutory purposes
under 18 U.S.C. § 3553(a).
Neither party disputes the calculation of that GSR.
Alvarez filed a sentencing memorandum requesting an 18-month
sentence, pressing certain mitigating factors as grounds for
sentencing below the GSR. The government filed an opposition to
that request and, at sentencing, recommended 24 months, at the
bottom of the applicable GSR. The court noted that in view of
Alvarez's prior deportations and repeated illegal re-entries, a
sentence in excess of 24 months would be warranted. However, it
followed the government's recommendation and imposed a 24-month
sentence. The court specifically mentioned several of the
mitigating factors relied upon by Alvarez, as well as the factors
mentioned by the government as reasons not to sentence him below
the GSR. Finally, the court referred to specific sentencing
1
8 U.S.C. § 1326(b)(2) establishes a maximum sentence of 20
years where the removal was subsequent to a conviction for
commission of an "aggravated felony."
purposes set forth in 18 U.S.C. § 3553(a), in explaining its reason
for imposing a 24-month sentence.
None of the mitigating factors relied upon by Alvarez
renders his sentence unreasonable. The first factor Alvarez relies
upon is the disparity created by the absence of a "fast-track"
program. As Alvarez concedes in a Rule 28(j) letter, Jimenez-
Beltre "largely resolve[s] the parties' arguments about the absence
of a 'fast-track program' in the District of New Hampshire." In
Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc), we held
that at least where a defendant had failed to "furnish[] a factual
basis for assessing the extent of the disparities or provided a
reason why to take them into account," the sentencing court did not
act unreasonably in declining to alter the sentence on that basis.
See also United States v. Martinez-Flores, 428 F.3d 22, 30 n. 3 (1st
Cir. 2005) (stating, in dicta, that "[i]t is arguable that even
post-Booker, it would never be reasonable to depart downward based
on disparities between fast-track and non-fast-track jurisdictions
given Congress' clear (if implied) statement in the PROTECT Act
provision that such disparities are acceptable"), cert. denied, __
U.S. __, 126 S. Ct. 1449 (2006).
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The second factor on which Alvarez relies in support of
his request for a reduced sentence is the nature of the "aggravated
felony" on which his eight-level enhancement under U.S.S.G. §
2L1.2(b)(1)(C) was based. The underlying convictions were for
"Criminal Threatening" and "Simple Assault," arising from a single
incident involving Alvarez's assault upon a bartender who had
evicted him for creating a disturbance. Those convictions resulted
in two one-year sentences, which were suspended except for 183 days
of time served.
Appellant acknowledges that under United States v.
Cordoza-Estrada, 385 F.3d 56, 57-58 (1st Cir. 2004), the convictions
constitute an aggravated felony regardless of the fact that much of
the prison term was suspended. The mere fact that if the suspended
sentence imposed had been for less than one year, the eight-level
enhancement would not have been triggered does not render the
instant sentence unreasonable. Alvarez's argument that the light
sentences imposed demonstrate that the description of the offense
conduct contained in the presentence investigation report (PSR)
must be exaggerated is also unavailing. Alvarez did not object at
sentencing to the factual description of his conduct contained in
the PSR.
The final mitigating factor on which Alvarez relies is
"cultural assimilation," based on his family ties and work history
in this country. Assuming, without deciding, that cultural
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assimilation might provide a proper basis for granting a sentence
below the GSR in certain illegal re-entry cases, it was not
unreasonable to decline to reduce Alvarez's sentence on this basis.
Alvarez was twenty years old when he came to this country. He is
unmarried, has one daughter living in Mexico, and is estranged from
his other daughter (who lives in the United States). While in the
United States, he lived and worked in at least three different
states.
The district court specifically stated that it had taken
family ties into account, finding that Alvarez "has substantial
family ties to the United States and fewer ties to his native
Mexico." However, the court also took into account that Alvarez
had repeatedly re-entered the country following deportation. It
was not unreasonable for the district court to find that Alvarez's
family ties were counterbalanced by his repeated immigration
offenses. See United States v. Rodriguez-Rodriguez, 441 F.3d 767,
770 (9th Cir. 2006)(holding that district court's determination that
cultural assimilation factors were counterbalanced by defendant's
extensive criminal history was not unreasonable); cf. United States
v. Zapete-Garcia, __ F.3d __, 2006 WL 1216670, at * 2 (1st Cir., May
8, 2006)(noting that it is not necessarily unreasonable for a judge
to increase the sentence (above the GSR) of a defendant who had
previously been deported more than once).
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In imposing the 24-month sentence, the court expressly
identified the § 3553(a) purposes that would be effectuated by the
sentence imposed: to "reflect the seriousness of the offense . . .
and . . . provide just punishment for the offense," and "afford
adequate deterrence to others who may consider reentering the
country after deportation and will protect the public from further
crimes of this defendant." The court did not expressly address
each of the mitigating factors raised by Alvarez, however its
"reasoning can be inferred by comparing what was argued by the
parties or contained in the pre-sentence report with what the judge
did." Jimenez-Beltre, 440 F.3d at 519. While the court did not
specifically mention the "parsimony provision," under § 3553(a), it
stated that Alvarez's repeated illegal re-entries alone would
warrant imposing a sentence in excess of 24 months and identified
the purposes served by the sentence imposed. On this record, those
statements "suffice[] as a conclusion that the sentence was not
longer than necessary." United States v. Alli, 444 F.3d 34, 41 (1st
Cir. 2006).
The district court's calculation of the guideline range
is uncontested. The court provided a reasoned explanation for the
sentence it imposed, identifying the statutory purposes that would
be served. And the outcome - a sentence at the bottom of that
range - is plausible. See Jimenez-Beltre, 440 F.3d at 519.
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Accordingly, we summarily affirm the sentence. See 1st Cir. R. 27(c).
Affirmed.
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