Not For Publication in West's Federal Reporter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. 05-2191
UNITED STATES OF AMERICA,
Appellee,
v.
JACOBO VÁZQUEZ-MIESES,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fusté, U.S. District Judge]
Before
Torruella, Selya, and Howard, Circuit Judges.
Daniel Klubock, Feinberg and Kamholtz, on brief for defendant,
appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
September 27, 2006
Per Curiam. Jacobo Vázquez-Mieses ("Vázquez"), an alien
who was previously deported following a drug trafficking
conviction, pled guilty to reentering the United States without the
requisite permission and was sentenced to 46 months' imprisonment
(the bottom of the applicable guideline range)1 and three years'
supervised release. On appeal, Vázquez does not dispute the
accuracy of the guideline calculations or argue that his sentence
is substantively unreasonable under United States v. Booker, 543
U.S. 220, 261 (2005). Rather, his arguments are more procedural in
nature. For the reasons discussed below, we find those arguments
unpersuasive.
His first contention--that the district court violated 18
U.S.C. § 3553(c) by failing to state the reasons for the sentence
in open court--is easily dispatched. Where, as here, the sentence
imposed is within the guideline range, the correctness of that
range is undisputed, and the breadth of the range is less than 24
months, section 3553(c) does not require "[a] district court . .
. to cite any reason for sentencing a defendant within [that
1
That range, which was not disputed in the district court and
is not challenged on appeal, was computed as follows: a total
offense level of 21 (base offense level of 8, U.S.S.G. § 2L1.2(a)
(Nov. 2004 ed.), plus 16 levels because the sentence for one of his
prior felony drug trafficking convictions exceeded 13 months, id.
§ 2L1.2(b)(1)(A), minus 3 levels for acceptance of responsibility,
id. § 3A1.1(a)) combined with a criminal history category of III (6
criminal history points for two prior sentences of imprisonment
exceeding one year and one month, id. § 4A1.1(a)) yielded a range
of 46 to 57 months' imprisonment, id. ch. 5, pt. A (Sentencing
Table).
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range]." United States v. Mansur-Ramos, 348 F.3d 29, 31 (1st Cir.
2003); see also United States v. O'Connell, 252 F.3d 524, 529 (1st
Cir. 2001).
Although reasonableness review, post-Booker, does make it
"important for [the reviewing court] to have the district court's
reasons for its sentence" even if the sentence is within a narrow
guideline range, United States v. Jiménez-Beltre, 440 F.3d 514, 519
(1st Cir. 2006) (en banc), "a court's reasoning can often be
inferred by comparing what was argued by the parties or contained
in the pre-sentence report with what the judge did," id. Here,
the reasons for the sentence are readily apparent from the
sentencing transcript as supplemented by the presentence report.
At sentencing, the court responded to the mitigating
circumstances proffered by the defendant--that he was addicted to
drugs when he committed his prior offenses but had been drug-free
in recent years and that the instant offense was motivated by a
desire to improve his financial situation--by reminding him of his
extensive criminal record. The court again referred to that
record, "without giving the specific details,"2 before announcing
his sentence. Despite that record, the court adopted both parties'
recommendations to sentence Vázquez to the bottom of the guideline
2
As detailed in the presentence report, that record included
repeated drug trafficking offenses, some of which were only
slightly too old to be counted in calculating his criminal history
score. The only gaps in that history occurred when he was
incarcerated or deported following two previous illegal entries.
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range. In exercising such leniency, the court was presumably
influenced by defense counsel's argument that a sentence at the
lower end of the guideline range "would provide adequate punishment
for the offense committed," Vázquez's own explanation of the
circumstances of his instant and prior offenses, and the
government's statement that Vázquez had been "very, very
cooperative" in quickly accepting responsibility and expressing
remorse for his offense. No further explanation was required.
Although Vázquez now proffers an additional ground for
leniency--that the reduced sentence he would have received had he
been sentenced in a "fast-track" district3 would have been
"sufficient" to serve the purposes of sentencing under 18 U.S.C. §
3553(a)--the district court was not required to address that or any
other potential ground for leniency that was not brought to its
attention. United States v. Alli, 444 F.3d 34, 41 (1st Cir. 2006).
Moreover, it is questionable whether such an argument would
constitute a valid reason for leniency in any event, United States
v. Martínez-Flores, 428 F.3d 22, 30 n.3 (1st Cir. 2005), cert.
denied, 126 S. Ct. 1449 (2006), particularly without a factual
basis, Jiménez-Beltre, 440 F.3d at 519.
3
In some districts, where authorized by the Attorney General,
Congress has authorized downward departures for illegal reentry
defendants who waive certain procedural rights. Jiménez-Beltre,
440 F.3d at 519 n.3. Puerto Rico is not among those districts.
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Vázquez's final grounds for resentencing are premised on
two erroneous statements made by the district court at his change
of plea hearing--that probation is not available in this type of
case, and that the maximum term of supervised release for this
offense is two years.4 Because neither of those grounds was raised
below, our review is only for plain error. United States v.
Vazquez-Molina, 389 F.3d 54, 57-58 (1st Cir. 2004), vacated on
other grounds, 544 U.S. 946 (2005). Under that appellant-
unfriendly standard, "an appellant must demonstrate: '(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings.'" Id. (quoting United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001)).
Even assuming that these misstatements satisfy the first
two prongs of the plain error standard, Vázquez cannot show the
prejudice necessary to satisfy the remaining two prongs. He does
not claim that he would not have pled guilty had those
misstatements not been made at that stage. By the time of
sentencing, those mistakes had been corrected in the presentence
4
In fact, although probation is not recommended by the
guidelines, U.S.S.G. ch. 5, pt. A; § 5B1.1, probation is allowed by
statute for this Class C felony offense, 18 U.S.C. §§ 3559(a)(3),
3561; and the maximum term of supervised release recommended by the
guidelines is three years, id. § 5D1.2(a)(2).
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report, which Vázquez had reviewed without objection and which the
court relied upon in sentencing. Given the court's expressed
concern about the seriousness of Vázquez's criminal record and the
guidelines' suggestion of a sentence of up to almost six years, any
suggestion that the court could have been persuaded to impose a
probationary sentence, instead of the 46-month prison sentence
actually imposed, is fanciful. The fact that the court ultimately
imposed a three-year, rather than a two-year, term of supervised
release is also inconsequential, given that Vázquez will likely be
deported long before the additional year begins.
Accordingly, the sentence is affirmed. See 1st Cir. R.
27(c).
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