United States v. Luis Larios-Rodriguez

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2472
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UNITED STATES OF AMERICA

LUIS LARIOS-RODRIGUEZ,

Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-12-cr-00088-001)
District Judge: Honorable Joseph H. Rodriguez
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Submitted Under Third Circuit LAR 34.1(a)
January 15, 2013

Before: SMITH, CHAGARES and BARRY, Circuit Judges.

(Filed: January 31, 2013)

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OPINION
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CHAGARES, Circuit Judge.

Luis Larios-Rodriguez pled guilty to illegal re-entry into the United States in

violation of 8 U.S.C. § 1326 and was sentenced to seventy-one months of incarceration.
He now comes before this Court to argue that his sentence is procedurally and

substantively unreasonable. For the reasons discussed below, we will affirm Larios-

Rodriguez’s sentence.

We write primarily for the parties’ benefit and therefore recite only the facts

essential to our disposition. In 2008, police in Paterson, New Jersey arrested Larios-

Rodriguez following an alcohol-induced brawl and charged him with aggravated assault

and criminal mischief. He pled guilty and served a three-year sentence in state prison,

after which he was released into the custody of the Bureau of Immigration and Customs

Enforcement pending deportation. A little over a year later, federal officials filed a

criminal complaint against Larios-Rodriguez charging him with illegal re-entry. He had

previously been convicted of, among other crimes, driving while intoxicated, disorderly

conduct, criminal trespass, and aggravated assault of a police officer, and had been

deported three times.

Larios-Rodriguez and the Government entered into a plea agreement under which

he pled guilty to a single count of illegal reentry. The Pre-Sentence Report applied the

Guidelines’ automatic 16-level enhancement for a defendant convicted of illegal re-entry

who has been previously deported following conviction for a crime of violence, raising

Larios-Rodriguez’s offense level from 8 to 24. This, along with a 3-level reduction for

acceptance of responsibility, resulted in an offense level of 21. Larios-Rodriguez’s

criminal history category was IV due to his history of alcohol- and violence-related

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convictions. His advisory Guidelines range was thus 57 to 71 months, and the District

Court sentenced him to 71 months.

II.

The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 3231 and

we have jurisdiction over this appeal under 28 U.S.C. § 3742(a).

Appellate review of a sentence involves an inquiry into both procedural and

substantive reasonableness. United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008).

With respect to procedural reasonableness, following the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005), the Court of Appeals for the Third Circuit

has instructed district courts to follow a three-step process in sentencing. United States v.

Merced, 603 F.3d 203, 215 (3d Cir. 2010). That process requires sentencing courts to

calculate a defendant’s advisory Guidelines range, then rule on any departure motions,

and finally exercise discretion through meaningful consideration of the relevant § 3553(a)

factors. Id. If we find no procedural error, we will affirm a sentence unless it is

substantively unreasonable such that “no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). We

apply an abuse of discretion standard to both the substantive and procedural

reasonableness inquiries. United States v. Negroni, 638 F.3d 434, 443 (3d Cir. 2011).

Larios-Rodriguez contends that the District Court committed procedural error by

improperly treating the advisory Guidelines as presumptively reasonable and by ignoring

several arguments he advanced relating to the § 3553(a) factors in support of a reduced

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sentence. Specifically, he argues that the District Court did not give adequate attention to

his claim that he was entitled to a downward variance because of the unsound policy

behind the illegal re-entry Guidelines, U.S.S.G. §2L1.2(b)(1)(A), the mitigating

circumstances related to his previous offenses, and the opportunity to serve concurrent

sentences that he lost when federal officials waited until he was released from New

Jersey state prison to charge him in federal court.

While the sentencing court must give both sides the opportunity to argue for the

sentence they believe would be appropriate and must address any non-frivolous

arguments made, it need not make explicit findings regarding each of the § 3553(a)

factors so long as “‘the record makes clear that the court took the factors into account in

sentencing.’” Merced, 603 F.3d at 215 (quoting United States v. Cooper, 437 F.3d 324,

329 (3d Cir. 2006)). The transcript from the sentencing hearing makes clear that the

District Court did hear and consider all of Larios-Rodriguez’s arguments in support of a

downward variance, including his belief that mitigating circumstances related to his

earlier violent offense and that his inability to serve his state and federal sentences

concurrently merited a downward variance under the § 3553(a) analysis. The District

Court acknowledged the advisory nature of the Guidelines, but observed that Larios-

Rodriguez’s repeated offenses and the increasingly serious nature of his crimes suggested

that effective deterrence and respect for the law counseled against leniency. It also,

contrary to Larios-Rodriguez’s assertions, directly responded to his suggestion that it

should decline to follow the re-entry Guidelines and found that the 16-level enhancement

was appropriate under the facts of this case. Appendix 82-83. Because the record shows

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that the District Court properly took the § 3553(a) factors into consideration when

sentencing Larios-Rodriguez, we cannot agree with him that the District Court committed

any procedural error in sentencing.

Turning to the substantive inquiry, we, like the District Court, note Larios-

Rodriguez’s repeated illegal re-entries into this country and the increasing seriousness of

his other criminal convictions. In light of these circumstances, we cannot say that it was

unreasonable for the District Court to impose a sentence of 71 months. Thus, we do not

find that the District Court’s within-Guidelines sentence is substantively unreasonable.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.