FILED
United States Court of Appeals
Tenth Circuit
January 2, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-3089
(D.Ct. No. 2:11-CR-20101-CM-1)
JUAN A. ROCHA-ROMAN, (D. Kan.)
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 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.
Appellant Juan A. Rocha-Roman pled guilty to illegal reentry of a deported
*
This order and judgment is not binding precedent except under the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.
alien in violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced him
to fifty-seven months imprisonment. On appeal, Mr. Rocha-Roman contends his
sentence is substantively unreasonable. We exercise our jurisdiction pursuant to
18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291 and affirm.
I. Factual and Procedural Background
Mr. Rocha-Roman, a Mexican citizen, illegally entered the United States
when he was five years old and was removed in approximately 2002 at the age of
sixteen. Months later, authorities arrested Mr. Rocha-Roman, then age seventeen,
in the United States and allowed him to voluntarily return to Mexico. Shortly
thereafter, he again illegally entered the United States, and, on August 20, 2005,
at the age of eighteen, he married his current wife in Wyandotte County, Kansas.
On the same day, authorities in Kansas arrested him for a felony involving
aggravated indecent liberties with a twelve-year-old. He received a twenty-four-
month sentence for that offense after which, on May 18, 2007, authorities
removed him from the United States. Just months later, he reentered the United
States.
On June 18, 2011, Kansas authorities arrested Mr. Rocha-Roman for
driving under the influence and, on July 14, 2011, for criminal damage to
property. Following imposition of a ninety-day sentence for driving under the
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influence and a seventy-five-day sentence for the criminal damage offense, he
was indicted for the instant illegal reentry offense.
After Mr. Rocha-Roman pled guilty in federal district court to illegal
reentry of a deported alien, a probation officer calculated his sentence using the
applicable 2011 United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”). The probation officer assessed his base offense level at eight under
U.S.S.G. § 2L1.2 and increased it sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)
based on his prior 2005 conviction for aggravated indecent liberties with a child.
A three-level reduction for acceptance of responsibility resulted in a total offense
level of twenty-one, which, together with Mr. Rocha-Roman’s criminal history
category of IV, resulted in an advisory Guidelines range of fifty-seven to seventy-
one months imprisonment. The probation officer also noted, pursuant to
Application Note 8 to U.S.S.G. § 2L1.2, that certain cases may warrant a
downward departure on the basis of cultural assimilation and generally listed
factors concerning such departures without recommending whether Mr. Rocha-
Roman qualified for a departure.
Neither the government nor Mr. Rocha-Roman objected to the presentence
report, and, at the sentencing hearing, Mr. Rocha-Roman confirmed he did not
object to the calculation of his advisory Guidelines range. However, through
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counsel, he requested a downward departure under U.S.S.G. § 2L1.2 based on
issues concerning his cultural assimilation. 1 The government opposed such a
departure based, in part, on its argument a departure was not likely to decrease
the risk to the public of further crimes, the serious nature of his prior crimes, and
his multiple prior unlawful reentries.
In denying Mr. Rocha-Roman’s request for a downward departure and
sentencing him within the Guidelines range, the district court expressly stated it
considered the parties’ arguments, the uncontested presentence report, the
Guidelines, the 18 U.S.C. § 3553(a) sentencing factors, and the arguments and
factors raised in support of the cultural assimilation departure. It also expressly
recognized its authority to grant such a departure. However, it determined such a
1
In support, counsel argued Mr. Rocha-Roman’s circumstances warranted
a departure based on: (1) his continuous presence in the United States since age
five; (2) the fact his initial illegal entry into the United States at age five was not
of his own volition and he attended kindergarten through the eleventh grade in the
United States; (3) his duration in the United States from age five to seventeen,
and then again for eight years after his past two deportations, causing him to
spend a total of twenty of his twenty-five years of life living in the United States;
(4) the fact he has only spent two three-month stints in Mexico since age five; (5)
his intent to move his wife and children, who are United States citizens, to
Tijuana, Mexico, where his mother and siblings reside, so his wife and children
can commute to the United States to go to school and work; (6) his assertion his
cultural ties to his immediate family provided the primary motivation for his
illegal reentry and continued presence in the United States; (7) his belief a
departure is “not likely to increase the risk to the public from further crimes”; and
(8) his suggestion his criminal history is over-represented, given two of his
offenses are municipal convictions and his indecent liberties conviction occurred
when he was just eighteen.
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departure was unwarranted given the seriousness of Mr. Rocha-Roman’s criminal
history and further stated the factors in favor of such a departure did not outweigh
the fact he participated in criminal activity after each illegal reentry. It then
sentenced Mr. Rocha-Roman at the low end of the Guidelines range to fifty-seven
months imprisonment.
II. Discussion
Mr. Rocha-Roman now appeals his sentence on similar grounds presented
to the district court, arguing his sentence is substantively unreasonable under 18
U.S.C. § 3553(a) and is a violation of substantive due process because it failed to
grant the requested cultural assimilation downward departure under Guidelines
§ 2L1.2 and its application note. He also provides argument concerning some of
the § 3553(a) factors, including claims: (1) society was not injured by his offense;
(2) a lighter sentence would act as a deterrent; (3) a departure is not likely to
increase the risk to the public from further crimes; and (4) he committed minimal
criminal activity on reentering the United States.
We begin our discussion by clarifying that a sentence above or below the
recommended Guidelines range based on an application of certain Guidelines is
referred to as a “departure,” while a sentence above or below the recommended
Guidelines range through application of the sentencing factors in 18 U.S.C.
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§ 3553(a) is called a “variance.” See United States v. Atencio, 476 F.3d 1099,
1101 n.1 (10th Cir. 2007), overruled on other grounds by Irizarry v. United
States, 553 U.S. 708, 713 (2008). Mr. Rocha-Roman’s appeal references § 2L1.2
which is typically utilized in requesting a downward departure based on cultural
assimilation. 2 See U.S.S.G. § 2L1.2 cmt. n.8. To the extent Mr. Rocha-Roman is
continuing to argue for a downward departure by reference to this guideline, we
lack “jurisdiction ... to review a district court’s discretionary decision to deny a
motion for downward departure on the ground that a defendant’s circumstances do
not warrant the departure” .... “unless the court unambiguously states that it lacks
such discretion,” which is not the circumstance here. United States v. Sierra-
Castillo, 405 F.3d 932, 936 (10th Cir. 2005). Even though we lack jurisdiction to
review the denial of a downward departure, we retain jurisdiction to review a
sentence for reasonableness under the § 3553(a) factors, taking into account the
asserted grounds for departure when conducting a reasonableness review. See
United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). In addition,
2
Criteria for a cultural assimilation departure include: “(1) the age in
childhood at which the defendant began residing continuously in the United
States, (2) whether and for how long the defendant attended school in the United
States, (3) the duration of the defendant’s continued residence in the United
States, (4) the duration of the defendant’s presence outside the United States, (5)
the nature and extent of the defendant’s familial and cultural ties inside the
United States, and the nature and extent of such ties outside the United States, (6)
the seriousness of the defendant’s criminal history, and (7) whether the defendant
engaged in additional criminal activity after illegally reentering the United
States.” U.S.S.G. § 2L1.2 cmt. n.8.
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even though Mr. Rocha-Roman failed to raise a § 3553(a) argument before the
district court, we have held that “when the claim is merely that the sentence is
unreasonably long, we do not require the defendant to object in order to preserve
the issue” on appeal. United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th
Cir. 2006).
We review a sentence for reasonableness using a deferential abuse of
discretion standard. See United States v. Smart, 518 F.3d 800, 803, 806 (10th Cir.
2008). Our reasonableness review “includes both a procedural component,
encompassing the method by which a sentence was calculated, as well as a
substantive component, which relates to the length of the resulting sentence.” Id.
at 803. However, because Mr. Rocha-Roman does not contest the procedural
reasonableness of his sentence, we review his sentence only for substantive
reasonableness.
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).” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.
2009) (internal quotation marks omitted). In reviewing a district court’s sentence
for substantive reasonableness under the § 3553(a) factors, we give substantial
deference to the district court because it has an unquestionable institutional
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advantage, involving greater familiarity with individual cases and defendants, to
consider whether the facts of the case justify a variance under § 3553(a). See id.;
Rita v. United States, 551 U.S. 338, 350 (2007). Moreover, when, as here, the
sentence is within the correctly-calculated Guidelines range, it is presumptively
reasonable, and a defendant must “rebut 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, 1054-55 (10th Cir. 2006).
When considering the factors of cultural assimilation in determining
whether to vary from the advisory Guidelines range under 18 U.S.C. § 3553(a)(1),
the issue of cultural ties must still be weighed against the other § 3553(a) factors,
including “the need for the sentence to reflect the seriousness of the crime and
promote respect for the law.” United States v. Galarza-Payan, 441 F.3d 885, 890
(10th Cir. 2006). In this case, the district court expressly stated it considered the
criteria for cultural assimilation, together with the other § 3553(a) factors, and
determined the seriousness of Mr. Rocha-Roman’s criminal history, together with
the fact he continued to commit crimes each time he illegally reentered the
country, outweighed the other factors asserted in favor of a lower sentence. “We
may not examine the weight a district court assigns to various § 3553(a) factors”
and “defer not only to a district court’s factual findings but also to its
determinations of the weight to be afforded to such findings.” Smart, 518 F.3d at
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808.
Despite Mr. Rocha-Roman’s contrary argument, the crime of illegal reentry
by ex-felons into this country is a serious crime for which Congress has imposed
a statutory maximum sentence of twenty years when the prior conviction is for an
aggravated felony, see 8 U.S.C. § 1326(b)(2), and we have previously rejected the
argument illegal reentry of an ex-felon is a non-injurious offense warranting a
reduced sentence. See generally United States v. Martinez-Barragan, 545 F.3d
894, 905 (10th Cir. 2008). Mr. Rocha-Roman’s crime of illegal reentry following
his felony conviction for a crime of violence is no exception. Most certainly, in
this case, society was injured by Mr. Rocha-Roman’s instant offense of illegal
reentry given he committed at least two additional crimes since his last illegal
reentry.
In addition, given Mr. Rocha-Roman’s propensity to illegally reenter the
United States and to do so almost immediately following each of his deportations,
as well as his history demonstrating his involvement in criminal activity after
such illegal reentries, we agree with the district court that a lighter sentence is
unlikely to act as a deterrent and would instead increase the risk to the public of
further crimes. Thus, under the circumstances presented, and on applying our
standard of review, we conclude Mr. Rocha-Roman has not sufficiently rebutted
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the presumption his within-Guidelines-range sentence is substantively reasonable
by demonstrating that the sentence is unreasonable in light of the other sentencing
factors laid out in § 3553(a) or otherwise showing that the district court abused its
discretion in imposing his fifty-seven-month sentence.
III. Conclusion
For these reasons, we AFFIRM Mr. Rocha-Roman’s sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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