United States v. Pedro Escobar-Marroquin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4419

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

PEDRO ANTONIO ESCOBAR−MARROQUIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virgina, at Richmond. John A. Gibney, Jr., District
Judge. (3:11-cr-00305-JAG-1)

Argued: March 22, 2013 Decided: May 8, 2013

Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Mary E. Maguire,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Pedro Antonio Escobar-Marroquin pled guilty to illegal

reentry and received a 60-month term of imprisonment, which

represented a 14-month variance above the top end of the

applicable sentencing range. He now challenges the substantive

reasonableness of his sentence. We affirm.

The defendant is a Salvadoran citizen who, according to the

parties’ agreed upon Statement of Facts, entered the United

States illegally for the first time in 1987. * Some time around

1988, he returned to El Salvador to marry and subsequently

reentered the United States. In 2009, the defendant was

convicted in state court of possession with intent to distribute

cocaine. He served approximately six months of a five-year

sentence and was removed in October 2009. The defendant

reentered the United States in January or February 2010, was

arrested in August 2010 for possession with intent to distribute

cocaine, and was convicted in state court and sentenced to seven

years’ imprisonment. While serving that sentence, the defendant

was federally indicted for illegal reentry following an

*
We note that there is also evidence in the record that
the defendant’s first illegal entry into the United States may
have been in 1983. The exact date on which the defendant
initially entered the United States is not relevant to our
disposition on appeal.

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aggravated felony, in violation of 8 U.S.C. § 1326. He

subsequently pled guilty to the illegal reentry charge.

According to the presentence report (“PSR”), the

defendant’s offense level of 17 and criminal history category of

IV resulted in an advisory guideline range of 37 to 46 months’

imprisonment. At sentencing, the defendant sought a downward

variance for three reasons. He first emphasized that the MS-13

gang in El Salvador was demanding payments for the protection of

his family; that he worked in the United States to satisfy these

extortion demands and to protect his wife, children, and family

members in El Salvador; and that the MS-13 gang had already

killed his uncle and father because he was unable to pay them

enough money. Second, he noted that he rehabilitated himself

while in prison by completing a Bible study course and getting

baptized and by graduating from a drug treatment program. And

finally, he argued that his 2009 state drug conviction was

unfairly counted three separate times in the calculation of his

offense level under the guidelines.

The government sought a 92-month sentence, arguing that

the defendant reentered the United States shortly after he was

removed and began selling drugs again. The district court

sentenced the defendant to 60 months’ imprisonment, a 14-month

variance above the guidelines range.

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II.

The defendant challenges the reasonableness of his

sentence, which we review under “a deferential abuse-of-

discretion standard.” United States v. Rivera-Santana, 668 F.3d

95, 100 (4th Cir. 2012) (internal quotation marks omitted). We

normally begin our evaluation by considering the procedural

reasonableness of the sentence, see United States v. Morace, 594

F.3d 340, 345 (4th Cir. 2010), but the defendant does not

challenge the procedural reasonableness of his sentence.

Rather, the defendant’s sole contention on appeal is that his

sentence was substantively unreasonable.

With regard to the substantive reasonableness of the

defendant’s sentence,

we must determine . . . whether the District Judge
abused his discretion in determining that the [18
U.S.C. §] 3553(a) factors supported the sentence and
justified a substantial deviation from the Guidelines
range. We also must take into account the totality of
the circumstances, including the extent of any
variance from the Guidelines range. If the sentence
is outside the Guidelines range, the court may not
apply a presumption of unreasonableness. It may
consider the extent of the deviation, but must give
due deference to the district court’s decision that
the [18 U.S.C. §] 3553(a) factors, on a whole, justify
the extent of the variance. The fact that the
appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to
justify reversal of the district court.

4
United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir.

2011) (alterations, citations, and internal quotation marks

omitted).

The defendant’s first argument is that the district court

abused its discretion by placing too much weight on his criminal

history. Other than the illegal reentry underlying this case,

the defendant’s criminal history consists of a conviction for

“Profanely Curse/Public Intoxication,” a traffic offense, and

two state convictions for possession with intent to distribute

cocaine. The defendant emphasizes that each drug offense

involved less than one gram, and he argues that these offenses

were fully taken into account in calculating his guideline

range.

The district court did rely on the defendant’s criminal

history in imposing an above-guideline sentence, but the court

relied on other factors as well. Consistent with its obligation

to impose a sentence in accordance with the factors set forth at

18 U.S.C. § 3553(a), the court noted the defendant’s

circumstances and lack of respect for the law by emphasizing

that he returned to the United States shortly after being

removed in order to sell cocaine. The court also mentioned its

view that the defendant’s “histrionic[]” conduct before the

court, J.A. 120, in which he begged for mercy from his hands and

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knees, was an attempt to manipulate the court. And finally, the

court discussed the seriousness of the offense and the need to

provide deterrence given that the defendant had twice been

caught selling cocaine in the United States and that drug

dealing is not a victimless crime. We are satisfied that the

court’s consideration and application of the § 3553(a) factors

justified the variance in this case. Accordingly, the court did

not abuse its discretion by placing too much weight on the

defendant’s criminal history.

The defendant also contends that his sentence was

substantively unreasonable because the district court relied on

several factually inaccurate assertions made by the government.

In its sentencing memorandum, the government stated that the

defendant “began selling heroin and then later cocaine.” J.A.

46. But there is no evidence in the record that the defendant

ever sold heroin. Similarly, the government asserted that the

defendant had “12 years of schooling.” J.A. 54. But he only

underwent four years of education.

At oral argument before us, the attorney for the government

apologized profusely for these factual inaccuracies, explaining

that he used a brief from an unrelated case as the basis for his

sentencing memorandum in this case and, because he was

overworked at the time, he simply did a poor job of editing. We

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appreciate the government’s candor and accept that the inclusion

of these statements was an oversight. Nonetheless, counsel for

the government is an officer of the court who is expected to be

truthful and accurate in all representations made to the court.

We trust that the government will take steps to ensure that

problems of this nature will not recur.

While we do not condone the government’s carelessness, its

misstatements would be prejudicial only insofar as the district

court relied on them in imposing the sentence. The defendant

contends that the “upward variance sentence” was imposed

“perhaps in partial reliance on one or more of these mistaken

assertions.” App. Brief at 8 n.2. We disagree. Having

reviewed the sentencing transcript and the PSR which the court

adopted, we are satisfied that the sentence imposed was not

affected by the government’s misstatements.

III.

For the foregoing reasons, we affirm.

AFFIRMED