United States v. Solis-Alvarez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 30, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 13-1485
(D.C. No. 1:13-CR-00188-MSK-1)
VICTOR SOLIS-ALVAREZ, (D. Colo.)

Defendant - Appellant.
______________________________

ORDER AND JUDGMENT *

Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

Appellant Victor Solis-Alvarez pled guilty to illegal reentry of a removed

alien subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and

*
This order and judgment is not binding precedent except under the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.
(b)(1), and guilty to violating the terms of his supervised release with respect to

another conviction. He received a thirty-month sentence for both convictions,

which he now appeals, contesting its procedural and substantive reasonableness.

We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291

and affirm.

I. Background

Mr. Solis-Alvarez is a Mexican citizen who illegally entered this country at

the age of seven. He accumulated a substantial juvenile criminal record and, in

2009, at the age of eighteen, received a felony conviction for first-degree trespass

and was deported later that year. He illegally reentered this country in early 2010

and was thereafter convicted of illegal reentry of a removed alien subsequent to a

felony conviction and sentenced, in part, to thirty-six months supervised release.

He was again deported in February 2011. In 2013, he illegally reentered this

country and ultimately pled guilty to both the charge for his instant conviction

and violation of his supervised release on his prior conviction.

A probation officer prepared a presentence report for both the instant

conviction and his supervised release violation. For the latter, the probation

officer recommended a within-Guidelines-range sentence of twelve to eighteen

months imprisonment following revocation of his supervised release. With

respect to his reentry conviction, he recommended a Guidelines range of fifteen to

twenty-one months imprisonment. With regard to factors related to a variance,

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the probation officer pointed out: 1) Mr. Solis-Alvarez has a criminal record

involving three adult felony convictions, two deportations, two juvenile felony

offenses, and multiple other juvenile offenses, and has been involved with the

criminal justice system since age fourteen; 2) a likelihood exists he will return to

this country again because he has been here since 1997 and his mother and

siblings live in Denver, Colorado; and 3) his intent to relocate to Baja, Mexico,

for safety reasons when next deported, due to his fear of returning to Zacatecas,

Mexico, after Los Zetas gang members kidnaped his male cousins, killing one of

them.

Mr. Solis-Alvarez did not file any objections to the presentence report,

including the findings of fact and calculation of his sentence. At the sentencing

hearing, his counsel expressly stated Mr. Solis-Alvarez was not requesting a

downward departure or variance, other than asking for concurrent sentences for

his conviction and revocation of supervised release. Both parties requested

concurrent sentences of twenty months imprisonment. Mr. Solis-Alvarez’s

counsel pointed out Mr. Solis-Alvarez came back into this country because of the

encouragement of his family and the kidnaping and death of his male relatives,

and, since he feared returning to his familial home in Zacatecas, Mexico, because

of the Los Zetas gang members, he intended to go to Baja, Mexico, after

deportation where he would escape any threat against him and start a restaurant.

While the government also sought concurrent twenty-month sentences, it pointed

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out, in part, Mr. Solis-Alvarez: 1) has a fairly significant juvenile record and

adult felony convictions, including conviction for illegal reentry; 2) entered the

country illegally three times, including while on supervised release; 3) was not

deterred from continuing to violate the law and reenter the country despite the

wide variety of punishments and sanctions imposed on him; and 4) is a high-risk

candidate for illegal reentry because he maintains no ties to Baja, Mexico, is close

to his family in the Denver area, and has been in the United States since age

seven.

After expressly listing the sentencing factors under 18 U.S.C. § 3553,

acknowledging the lack of objections to the facts and calculations in the

presentence report, and explaining the advisory nature of the Guidelines, the

district court announced its intent to impose a single sentence for the instant

conviction and violation of supervised release and impose an above-Guidelines

sentence, noting Mr. Solis-Alvarez’s reentry conviction did not take into account

his extensive juvenile history or his unsuccessful completion of every sentence

imposed. It stated:

It’s worth noting ... his criminal history–that he illegally entered the
country first when he was a child ... at age 7. By age 14, he had
juvenile adjudications of battery, assault, disorderly conduct, and
fighting, motor vehicle theft, [and] spent some time in the
Department of Youth Corrections because his probation was revoked
and terminated. Ultimately, he was paroled. Then he had theft and
shoplifting, a felony trespass at 15. Again, his probation was
revoked, re-granted, revoked, terminated. Then he had a discharge of
a weapon within city limits at age 16. And his first adult conviction

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 was at age 18, driving without a license, with a defective vehicle,
followed by an attempted trespass, one that was an attempt to break
into a vehicle, it was another felony conviction. He was sentenced to
6 months in the Colorado Department of Corrections. He was
released subject to an immigration detainer. He was deported to
Mexico. He then reenters the United States illegally, and he is
convicted in the Western District of Texas for illegal reentry,
sentenced to 15 months of imprisonment and 36 months of
supervised release. The supervised release term commenced on
February 4, 2011. He reenters the United States illegally and is
before this court now.

It also noted Mr. Solis-Alvarez’s defiant attitude and the likelihood he would

attempt to illegally reenter this country again given: 1) he had no realistic plans

after his deportation because he has no contacts in Baja or skills to start a

restaurant; 2) “his close family is located here in Colorado”; 3) his willingness in

the past to come back into the country illegally; 4) his apparent failure to

understand what he has done wrong or commit to changing his behavior; and 5)

he was not deterred by his prior sentences. It then imposed a thirty-month

sentence followed by a three-year term of supervised release. Mr. Solis-Alvarez’s

counsel then requested the district court reconsider and impose a lower sentence,

stating that while Mr. Solis-Alvarez made a lot of mistakes as a juvenile, he is

now an adult “ready to act as an adult person, intelligent man should, and he

realizes that.” The district court responded, stating,

I remain convinced that an upward variance is appropriate in this
case and that 30 months is a period of incarceration which reflects a
sentence that is sufficient but not greater than necessary to satisfy the
sentencing objectives. I note the previous sentence imposed for
illegal reentry did little to deter this defendant’s behavior.

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After announcing the thirty-month sentence, the district court asked, “Is there

anything further to bring before the court?” to which Mr. Solis-Alvarez’s counsel

responded, “No, Your Honor. Other than just to state for the record our

disagreement with the sentence.”

II. Discussion

Mr. Solis-Alvarez now appeals his thirty-month sentence. He contends his

sentence is unreasonable because the district court failed to address or ignored

issues relating to his lack of personal safety in Mexico and family ties to the

United States and, instead, based his sentence largely on his criminal history,

inability to abide by previous sentences, persistent refusal to stay in Mexico,

seeming defiance, and dim prospects for success in Mexico. He contends these

“cited factors cannot bear such a large variance on their own” and are “even less

justified” and “much more unreasonable” when taken into consideration with his

personal safety concerns in returning to Mexico, including “his fear of being

murdered by a powerful drug cartel” and “his desire to be with his family in the

United States, where he has lived since he was seven years old.” He also argues a

thirty-month variant Guidelines sentence is substantively unreasonable because it

is “nearly 50% higher than the top of his guideline range,” thereby suggesting his

sentence is impermissibly disparate from others who are sentenced within the

Guidelines range. In response, the government argues the district court did not

abuse its discretion or otherwise err in imposing the thirty-month sentence.

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 We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802-03, 805 (10 th Cir. 2008). Thus, we review “‘all sentences–whether

inside, just outside, or significantly outside the Guidelines range–under a

deferential abuse-of-discretion standard,’” in which we “afford substantial

deference to district courts.” Id. at 806 (quoting Gall v. United States, 552 U.S.

38, 41 (2007)). “Our appellate review for reasonableness includes both a

procedural component ... as well as a substantive component, which relates to the

length of the resulting sentence.” Id. at 803. “Procedural reasonableness

addresses whether the district court incorrectly calculated or failed to calculate

the Guidelines sentence, treated the Guidelines as mandatory, failed to consider

the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately

explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317 (10 th Cir.

2008). In determining whether the district court properly calculated a sentence,

we review its legal conclusions de novo and its factual findings for clear error.

See United States v. Kristl, 437 F.3d 1050, 1054 (10 th Cir. 2006) (per curiam).

However, when a defendant fails to raise an objection to the district court’s

calculation, failure to consider the § 3553(a) sentencing factors, or explanation of

a sentence, we review the district court’s determination only for plain error. See

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10 th Cir. 2007).

In turn, substantive reasonableness addresses whether the sentence length is

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reasonable given all the circumstances of the case in light of the § 3553(a)

factors. See Huckins, 529 F.3d at 1317. Generally, an argument the district court

gave undue weight to one factor over another challenges the substantive

reasonableness of a sentence. See Smart, 518 F.3d at 805, 808. In reviewing the

substantive reasonableness of a sentence, “[w]e may not examine the weight a

district court assigns to various § 3553(a) factors, and its ultimate assessment of

the balance between them,” 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.”

Id. (internal quotation marks omitted). “Although the degree of variance from the

Guidelines range remains a consideration on appeal, it may not define our

threshold standard of review.” Id. at 807 (internal citation omitted).

In this case, Mr. Solis-Alvarez argues the district court impermissibly based

his sentence largely on his criminal history, unsuccessful sentence completions,

multiple reentries, and personal characteristics of defiance and inability to

succeed in Mexico, rather than mentioning, addressing, or giving weight to

personal characteristics, such as his personal safety concerns and desire to be with

his family in the United States. To the extent Mr. Solis-Alvarez is suggesting the

district court failed to consider these additional factors by failing to expressly

mention them or to otherwise explain his sentence, we review for procedural

unreasonableness under a plain error standard because he failed to raise an

objection on these specific grounds. To the extent he is contending it failed to

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give meaningful consideration to the § 3553(a) factors by giving undue weight to

some factors over others, failed to provide sufficient reasons for the variance, or

imposed an inordinate degree of variance, he is challenging the substantive

reasonableness of his sentence which we review for an abuse of discretion. See

Smart, 518 F.3d at 806-08.

In conducting our review of the record, we reject Mr. Solis-Alvarez’s claim

the district court failed to consider issues relating to his personal safety and

family connections or ties to the United States or adequately explain his sentence.

In varying upward and expressly considering the § 3553(a) sentencing factors, it

relied not only on the unopposed presentence report, which repeatedly noted Mr.

Solis-Alvarez’s personal safety concerns and family ties to the United States, but

his counsel’s argument at sentencing on the same issues. In addition, in

explaining its belief Mr. Solis-Alvarez would again return to this country, the

district court expressly noted “his close family is located here in Colorado” and

explicitly recognized his intent to go to Baja, Mexico, rather than his familial

home. It also expressly listed the reasons why it was imposing a thirty-month

sentence. Given these circumstances, it is clear the district court was aware of

and considered the safety and family factors in conjunction with the other

§ 3553(a) sentencing factors, including his criminal history; explained its reasons

for a thirty-month sentence; and determined such a sentence was reasonable given

the factors as a whole. Thus, the district court imposed a procedurally reasonable

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sentence and did not commit plain error.

With regard to the substantive reasonableness of the sentence, not only did

the district court consider the relevant sentencing factors, but, as previously

explained, we may not examine the weight it assigned to those factors or its

ultimate assessment of the balance between them; rather, we give due deference

to its decision that the § 3553(a) factors, on a whole, justify the variance. See

Smart, 518 F.3d at 802, 808. Moreover, while a district court is required to

provide reasons sufficient to support the chosen variance, it is not required to

provide extraordinary facts to justify the statutorily permissible sentencing

variance or give mathematical precision to the § 3553(a) factors for the purpose

of reaching some specific level of evidentiary weight. Id. at 807. Here, the

district court provided reasons sufficient to support the variant sentence.

As to the degree of variance in Mr. Solis-Alvarez’s sentence from those

sentenced within the Guidelines range, which he complains is fifty percent higher,

we do not require a district court to distinguish the defendant’s characteristics and

history from those of the ordinary offender contemplated by the Guidelines, nor

do we require facts demonstrating the existence of extraordinary defendant

characteristics and history. See id. at 806-08. “While similar offenders engaged

in similar conduct should be sentenced equivalently, disparate sentences are

allowed where the disparity is explicable by the facts on the record.” United

States v. Davis, 437 F.3d 989, 997 (10 th Cir. 2006) (internal quotation marks

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omitted). In this case, the variance is explicable by the facts presented in the

record on appeal, and the district court’s reasons for imposing it are sufficiently

compelling. In sum, Mr. Solis-Alvarez has not demonstrated his upward variant

sentence is either procedurally or substantively unreasonable for the purpose of

warranting reversal on appeal.

III. Conclusion

Accordingly, we AFFIRM Mr. Solis-Alvarez’s thirty-month term of

imprisonment.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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