FILED
United States Court of Appeals
Tenth Circuit
February 2, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-1448
v. (D. Colorado)
MATIAS ZAVALA-GARCIA, (D.C. No. 1:10-CR-00557-DME-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Matias Zavala-Garcia pled guilty to an indictment
charging him with illegal re-entry into the United States after deportation
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)
and (b)(2). He was sentenced to seventy-seven months’ imprisonment. Arguing
his sentence is procedurally and substantively unreasonable, Mr. Zavala-Garcia
appeals his sentence, which we affirm.
BACKGROUND
Between February 3, 1998, and his deportation to Mexico on March 24,
2005, Mr. Zavala-Garcia developed a lengthy criminal history, including pleading
guilty to operating a vehicle without insurance; while under the age of 21, driving
a vehicle with a blood alcohol count of .02-.05; carrying a concealed weapon and
trespass regarding an auto with the intent to commit a crime; underage
possession/consumption of alcohol; failure to display proof of insurance and
driving while alcohol-impaired; failure to display proof of insurance and driving
without a driver’s license; and possession with intent to distribute a Scheduled II
controlled substance. As indicated, he was deported to Mexico on March 24,
2005.
On October 14, 2010, personnel from the United States Department of
Homeland Security discovered Mr. Zavala-Garcia at the Boulder County Justice
Center in Boulder, Colorado. On that same date, he was apparently charged with
knowing or reckless child abuse. Immigration officers interviewed and
fingerprinted Mr. Zavala-Garcia and read him his Miranda rights. He decided at
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that point to provide a sworn statement, on the basis of which immigration
personnel determined that he had been previously deported following an
aggravated felony conviction.
Accordingly, on June 27, 2011, as previously indicated, Mr. Zavala-Garcia
pled guilty to an indictment charging him with illegal re-entry following
deportation after an aggravated felony. In preparation for sentencing under the
advisory United States Sentencing Commission, Guidelines Manual (2010)
(“USSG”), the United States Probation Office prepared a presentence report
(“PSR”). The PSR calculated a total offense level of 22, which, with a criminal
history category of V, yielded an advisory Guidelines sentence of seventy-seven
to ninety-six months.
The PSR also stated that a factor possibly warranting a downward departure
from the advisory Guidelines range is Mr. Zavala-Garcia’s cultural assimilation,
pursuant to Application Note 8 to USSG § 2L1. The PSR found that Mr. Zavala-
Garcia satisfied a number of the Note 8 factors: he began living in the United
States at age ten, and he remained in the United States until his deportation in
2005, when he was approximately twenty-two or twenty-three. His wife and two
children are United States citizens, although Mr. Zavala-Garcia and his wife are
currently obtaining a divorce. His mother, brother and sisters all reside in
Mexico. He attended junior high school and one year of high school in the United
States. He speaks and understands English, such that most of the presentence
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interview was conducted in English, although an interpreter was present.
Mr. Zavala-Garcia has been gainfully employed for most of the time he has lived
in the United States. Finally, since returning to the United States after his 2005
deportation, he has had no other arrests or convictions except for minor or
misdemeanor traffic offenses. Thus, the PSR specifically stated, Mr. Zavala-
Garcia “appears to meet a number of the listed criteria and a downward departure
may be warranted in this matter.” PSR at ¶ 85, R. Vol. 3 at 20. Of course, the
decision remained in the hands of the district court.
The PSR also initially granted Mr. Zavala-Garcia a three-point reduction
for acceptance of responsibility. The government objected to granting Mr.
Zavala-Garcia the third point, because Mr. Zavala-Garcia’s acceptance of
responsibility and guilty plea only occurred a few days prior to trial, after
substantial resources had been spent to prepare for trial. The probation officer
accordingly revised the PSR to grant only the two-level reduction for acceptance
of responsibility.
At the sentencing hearing, the district court began by observing that there
were two issues to be resolved: whether Mr. Zavala-Garcia was entitled to a
three- or two-point reduction for acceptance of responsibility and whether he was
entitled to a downward departure based upon cultural assimilation. The court
determined that the two-point reduction was appropriate, stating: “The Court
believes that it does not have the authority to grant that third point without the
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Government’s having made a motion for it [which it had not]. And furthermore,
even if the Court did have that authority, the Court would not exercise it, given
that this plea agreement came in just virtually on the eve of trial.” Tr. of
Sentencing Hr’g at 12, R. Vol. 2 at 14.
With respect to the cultural assimilation issue, the court ultimately denied
any departure, stating its reasons as follows:
First, in terms of the actual cultural assimilation, the Court
notes that the defendant says he primarily is fluent in Spanish and
there is an interpreter here today, rather than in English;
Secondly, the defendant’s family, that is, his mother and
siblings, are back in Mexico;
Third, his connection here to a spouse appears to be
terminating, as he has either achieved a divorce or is in the course of
doing so;
Fourth, he’s had only apparently limited contact with his
children;
Fifth, he does not have a job or a permanent job in the United
States of any stability;
Sixth, he has declined to give information about his jobs that
could be corroborated, but it appears that he has engaged in illegal
drug activity, from his conviction for drug-trafficking, and that
connection to the U.S. is not a cognizable basis for staying in the
United States.
Id. at 23. Accordingly, the court rejected any departure from the advisory
Guideline sentence based on cultural assimilation.
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Finally, the court imposed its seventy-seven month sentence, noting that it
had considered all of the 18 U.S.C. § 3553(a) sentencing factors, with the
following explanation:
The Court is very troubled that in a really short period of time, you
have accumulated a very significant criminal history, and the Court is
most troubled that you have turned to drug-dealing. There [are] very
few things that are more serious than to come into a host country and
then to show your gratitude, doing your part to convict people in
America to drug addiction. That shows a disregard for other people
that indicates that you are not welcome in this country.
....
But I hope that before the 77 months is over, you can start to turn
your attention and your compassion to the people you have hurt and
the lives that you have destroyed by participating in drugs and
perhaps participating in gangs and participating in the possession of
weapons and think about all of the pain that your life has caused in
America.
Tr. of Sentencing Hr’g at 27-28, R. Vol. 2 at 29-30. Mr. Zavala-Garcia appeals
that sentence, arguing it is procedurally and substantively unreasonable.
DISCUSSION
We review the reasonableness of a sentence under the “familiar abuse-of-
discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).
“Reasonableness review has a procedural and substantive component.” United
States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010). “Procedural
reasonableness addresses whether the district court incorrectly calculated or failed
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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
(10th Cir. 2008). “[S]ubstantive reasonableness addresses 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. Furthermore, a sentence which
“falls within (at the bottom of) the properly-calculated guidelines range, . . . is
entitled to a rebuttable presumption of reasonableness or rationality on review in
this circuit.” United States v. Soto, 660 F.3d 1264, 1269 (10th Cir. 2011).
Mr. Zavala-Garcia first makes a procedural challenge to his sentence. He
claims that the court made “factual finding[s]” that he had engaged in drug
trafficking after his return to the United States, as well as possessed weapons and
participated in gangs. Mr. Zavala-Garcia argues those “findings” were
unsupported by any evidence and were “clearly the focus of the court’s sentencing
decisions, both as guideline analysis and as 18 U.S.C. § 3553 considerations.”
Appellant’s Br. at 5.
As the government points out, the record does not reveal that Mr. Zavala-
Garcia objected to any findings by the district court at sentencing. Accordingly,
we would ordinarily review this issue for plain error. See United States v. Steele,
603 F.3d 803, 808 (10th Cir. 2010); see also United States v. Poe, 556 F.3d 1113,
1128 (10th Cir. 2009) (“When a party fails to object contemporaneously to the
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district court’s sentencing procedure, we review procedural reasonableness
challenges for plain error.”).
We will find plain error “only when there is (1) error, (2) that is plain, (3)
which affects substantial rights, and (4) which seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Romero,
491 F.3d 1173, 1178 (10th Cir. 2007). We typically do not, however, apply plain
error review to the district court’s factual findings. See United States v. Heredia-
Cruz, 328 F.3d 1283, 1288 (10th Cir. 2003) (“Under the plain error standard, we
will not review the district court’s factual findings relating to sentencing, but will
review for particularly egregious or obvious and substantial legal error, which our
failure to consider would result in a miscarriage of justice.”) (further quotation
omitted).
No egregious or obvious error occurred here. As the government points
out, and the discussion of the sentencing hearing above indicates, the court
resolved the two disputed issues at the sentencing hearing—whether Mr. Zavala-
Garcia was entitled to a two- or three-level reduction for acceptance of
responsibility and whether he was entitled to a downward departure based on
cultural assimilation. The district court correctly applied the Guidelines in
determining that Mr. Zavala-Garcia was only entitled to a two-level decrease, and
Mr. Zavala-Garcia makes no serious argument to the contrary.
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With regard to the cultural assimilation issue, the district court clearly
applied the factors/considerations contained in Application Note 8. See n.1,
supra. Moreover, in assessing the § 3553(a) factors to determine an appropriate
sentence, the court did not “find” that Mr. Zavala-Garcia had trafficked in drugs
since returning to the United States, nor that he had been involved in gangs or
possessed weapons. Rather, the court focused on Mr. Zavala-Garcia’s serious
criminal history, which did, in fact, include a drug possession felony, to explain
why it felt a sentence at the bottom of the advisory Guidelines range was
appropriate. The court committed no procedural error, and the sentence is
procedurally reasonable.
Similarly, the sentence is not substantively unreasonable. The court
explained the sentence in terms of the § 3553(a) factors. Mr. Zavala-Garcia has
failed to rebut the presumption of reasonableness attached to the within-
Guidelines range sentence.
CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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