F I L E D
United States Court of Appeals
Tenth Circuit
November 9, 2006
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v.
No. 05-3390
GERARD O VALTIERRA -RO JAS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of K ansas
(D.C. No. 05-CR-10094-01-W EB)
John K. Henderson, Jr., Assistant Federal Public D efender, Wichita, KS, for
Defendant - Appellant.
Brent I. Anderson, Assistant United States Attorney (Eric F. M elgren, United
States Attorney, with him on the brief), W ichita, KS, for Plaintiff - Appellee.
Before BR ISC OE, EBEL, and M U RPH Y, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Gerardo Valtierra-Rojas appeals his sixty-month
sentence, which is thirty-three months above the high-end of the sentencing range
recommended by the Sentencing Guidelines. W e conclude that, although this is a
substantial increase, it is reasonable under the compelling facts of this case. W e
therefore AFFIRM .
BACKGROUND
In 1997, M r. Valtierra-Rojas was convicted on one count of Involuntary
M anslaughter W hile Driving Under The Influence Of Alcohol for striking and
killing a motorcycle driver. See Kan Stat. Ann. § 21-3442. After serving his
sentence on this conviction, he was deported to M exico in April 2000. He
illegally re-entered the United States on or around August 1 of that same year.
M r. Valtierra-Rojas was convicted of several traffic crimes after his re-
entry, including two convictions for driving under the influence— one in
November 2002 and one in April 2003. As a condition of probation for this
second DUI conviction, he attended substance abuse counseling. M r. Valtierra-
Rojas reports having attended treatment for four months, as well as having
attended Alcoholics Anonymous meetings. He claims not to have consumed
alcohol since April 2003.
In 2005, M r. Valtierra-Rojas was indicted on one count of illegal re-entry
after deportation for an aggravated felony (the 1997 involuntary manslaughter
DUI conviction). He moved to dismiss the indictment, arguing that involuntary
manslaughter DUI was not an “aggravated felony” under the Supreme Court’s
recent decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), and thus that his
2
deportation was invalid. 1 The district court denied the motion, and thereafter M r.
Valtierra-Rojas entered a guilty plea conditioned upon his right to appeal this
denial.
Prior to sentencing, a Presentence Report (“PSR”) was prepared. The base
offense level for the crime of illegal reentry is eight. United States Sentencing
Guidelines (“U.S.S.G.”) § 2L1.2(a). The PSR recommended a sixteen-point
enhancement to the offense level based on the conclusion that involuntary
manslaughter was a “crime of violence” under the Guidelines. Id.
§ 2L1.2(b)(1)(A)(ii) (“If the defendant previously was deported . . . after . . . a
crime of violence . . . increase by 16 levels.”). 2 M r. Valtierra-Rojas objected to
this enhancement, based in part on the Leocal decision. The district court agreed,
ruling that “involuntary manslaughter DUI is not a crime of violence for the
1
In Leocal, the Court held that a similar crime— driving under the
influence and causing serious bodily injury— was not a “crime of violence” and
therefore not an “aggravated felony.” 543 U.S. at 3-4.
2
The application note to this Guideline provision explains that
“[c]rime of violence” m eans any of the following: murder,
manslaughter, kidnapping, aggravated assault, forcible sex offenses,
statutory rape, sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a dwelling, or any offense
under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of
another.
U.S.S.G. § 2L1.2 application note (1)(B)(iii) (emphasis added).
3
purposes of Section 2L1.2.” 3 This ruling meant that M r. Valtierra-Rojas’s
advisory Guidelines range fell from 70-87 months (the range with the sixteen-
point enhancement) to 21-27 months. However, the court went on to impose a
sentence of sixty months, finding:
it is appropriate in this case to impose a sentence outside of the
advisory guideline range. Although the defendant’s prior manslaughter
conviction is not counted as a crime of violence, the court concludes
that the defendant’s extensive history of alcohol-related problems and
his DUI’s, and his dem onstrated propensity for returning to the United
States, show there is substantial reason to believe that the defendant’s
future conduct may again involve similar acts. The court concludes that
this risk – that the defendant may once again re-enter the United States
and com m it acts giving rise to a substantial risk of serious injury –
together with the need for adequate punishment and deterrence,
warrants a sentence above the applicable guideline range. Accordingly,
after considering all of the circumstances, the court concludes that a
sentence of 60 months is appropriate in this case.
The court further finds that a sentence of 60 months would be
appropriate, under all of the factors in [18 U.S.C. §] 3553(a), even if the
court were to find that the defendant was subject to the enhancement for
a crime of violence, and that his guideline range was the 70-87 months
listed in the PSR. A fter considering the particular nature of the
defendant’s prior offense, as well as his personal history, the court
concludes that a sentence of 60 months is appropriate. Such a sentence
reflects the serious nature of the defendant’s history, but also takes into
account the unintentional nature of the prior acts and the particular
circumstances surrounding that accident.
M r. V altierra-Rojas timely appealed.
3
The government does not appeal this ruling.
4
D ISC USSIO N
I.
M r. Valtierra-Rojas’s primary argument on appeal is that the district court
erred in imposing a sentence thirty-three months higher than the high-end of the
advisory Guidelines range. In U nited States v. Kristl, 437 F.3d 1050 (10th Cir.
2006), we announced a two-step approach for review ing sentences imposed post-
Booker. 4
First, we review , if challenged, w hether the district court correctly
calculated the defendant’s guideline sentence, reviewing the district
court’s legal conclusions de novo and factual findings for clear error.
Second, if the district court correctly determined the guideline sentence,
then we review the sentence for reasonableness . . . .
United States Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006) (citing Kristl,
437 F.3d at 1054-55). The parties do not challenge the district court’s
calculations, thus we consider only whether the sentence imposed was
“reasonable.” “Sentencing decisions must be reversed when a sentence is
unreasonable considering the factors enumerated in 18 U.S.C. § 3553(a).” United
States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). 5
4
United States v. Booker, 543 U.S. 220 (2005).
5
Section 3553(a) provides, in pertinent part:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in . . . this subsection.
The court, in determining the particular sentence to be imposed, shall
consider--
(continued...)
5
A.
As a threshold matter, we consider M r. Valtierra-Rojas’s argument that
sentences falling outside of the properly calculated Guidelines range are
presumptively unreasonable and that “the Government must rebut the presumption
and demonstrate the reasonableness of the sentence.” M r. Valtierra-Rojas does
5
(...continued)
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for--
(A) the applicable category of offense com m itted by the
applicable category of defendant as set forth in the
guidelines--
(i) issued by the Sentencing Commission . . . and
(ii) that . . . are in effect on the date the defendant
is sentenced . . . .
(5) any pertinent policy statement--
(A) issued by the Sentencing Commission . . . and
(B ) that . . . is in effect on the date the defendant is
sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
6
not cite, nor have we found, any legal authority to support this claim. As the
Fourth Circuit reasoned in United States v. M oreland, 437 F.3d 424 (4th Cir.),
cert. denied, 126 S. Ct. 2054 (2006),
[a] sentence that falls within the properly calculated advisory guideline
range is entitled to a rebuttable presumption of reasonableness. This
does not mean, however, that a variance sentence is presumptively
unreasonable. Such a ruling would transform an “effectively advisory”
system . . . into an effectively mandatory one.
Id. at 433 (citation omitted); see also United States v. Howard 454 F.3d 700, 703
(7th Cir. 2006) (“Although a sentence outside the range does not enjoy the
presumption of reasonableness that one within the range does, it does not warrant
a presumption of unreasonableness.”); United States v. M atheny, 450 F.3d 633,
642 (6th Cir. 2006) (“[T]his court’s holding that sentences w ithin the advisory
guideline range are presumptively reasonable does not mean that sentences
outside of that range are presumptively unreasonable.”); United States v. M yers,
439 F.3d 415, 417 (8th Cir. 2006) (“W e have determined that a sentence imposed
within the guidelines range is presumptively reasonable. W hile it does not follow
that a sentence outside the guidelines range is unreasonable, we review a district
court’s decision to depart from the appropriate guidelines range for abuse of
discretion.”). W e join these circuits in holding that a sentence outside of the
properly calculated Guidelines range is not presumptively unreasonable.
7
B.
W e turn, then, to the key issue— whether M r. Valtierra-Rojas’s sentence is
reasonable. Recently, this court elaborated on our review of sentences outside of
the properly calculated advisory Guidelines range. In Cage, we noted that
“although the G uidelines are listed as only one of the § 3553(a) factors, they are
not just one factor among many. Instead, the Guidelines are an expression of
popular political will about sentencing that is entitled to due consideration when
we determine reasonableness.” 451 F.3d at 593. 6 W e therefore “reject[ed] the
concept that we, as judges, should determine ‘reasonableness’ under § 3553(a)
without reference to the fact that the G uidelines represent a critical advisory
aspect of the § 3553(a) factors.” Id. at 594. 7 Instead, we explained that we would
look to the “discrepancy between the advisory guidelines range and the actual
sentence” to determine whether that sentence is reasonable. Id. Thus, “[t]he
farther the [trial] court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be.” M oreland, 437 F.3d at 434
6
Although Cage dealt with a sentence that was below the Guidelines range,
that decision expressly noted that it was setting forth standards for review ing both
below-range and above-range sentences. 451 F.3d at 595 n.5.
7
Cage did not change our general rule that we review whether a sentence is
reasonable by considering the factors enumerated in § 3553(a), see, e.g., Kristl,
437 F.3d at 1053 (“Reasonableness review is guided by the factors set forth in 18
U.S.C. § 3553(a).”); rather, it simply made clear that the Guidelines, even though
advisory, are afforded special w eight given that they “are generally an accurate
application of the factors listed in § 3553(a).” Cage, 451 F.3d at 594.
8
(cited in Cage, 451 F.3d at 594); see also Cage, 451 F.3d at 594 (“Because this
case presents such an extreme divergence . . . it should be considered reasonable
only under dramatic facts.”); United States v. Dean, 414 F.3d 725, 729 (7th Cir.
2005) (“[T]he farther the judge’s sentence departs from the guidelines sentence
(in either direction-that of greater severity, or that of greater lenity), the more
compelling the justification based on factors in section 3553(a) that the judge
must offer in order to enable the court of appeals to assess the reasonableness of
the sentence imposed.”).
1.
Taking guidance from Cage, we first consider w here along this sliding scale
the present sentence falls. Looking to only the percentage of the
divergence— 122% above the high end of the range— the sentence might seem
extreme. See United States v. Kendall, 446 F.3d 782, 784-85 (8th Cir. 2006)
(calling 155% increase “extraordinary”). However, the percentage of divergence,
alone, is not a sufficient metric; the absolute number of months above or below
the Guidelines range is also a relevant consideration. For example, a defendant
who receives a two-hundred-sixty-four-month sentence when the Guidelines
recommend one hundred and twenty months is in the same
boat— percentage-wise— as M r. Valtierra-Rojas. W e think it is clear, though, that
a one-hundred-forty-month variance is more extreme than the thirty-three month
variance at issue in this case. Thus, in evaluating the degree of departure from
9
the advisory guideline sentence, we must look at the divergence in terms of both
percentage and absolute time. It is only when we consider these factors together
that we can get a clear picture of the discrepancy between the Guidelines range
and the sentence actually imposed.
The nature of the inquiry announced in Cage (the greater the divergence,
the more compelling the reasons) is not one that allows for precision in
measurement. That is, there are no strict guideposts that invoke certain levels of
scrutiny; there is no formula into which we input the degree of divergence in
order to generate precisely how compelling the district court’s reasons need be.
However, comparison with other cases is a useful tool. See United States v.
Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005) (looking to prior cases to evaluate the
extremity of the present departure). In Cage, the district court imposed a sentence
of six days imprisonment where the low-end of the advisory Guidelines range was
forty-six months. Essentially, the court gave no prison sentence at all.
Characterizing this case as one where the trial court “effectively ignore[d] the
advice of the Guidelines,” we noted that such an “extreme divergence” would
only be justified under “dramatic facts.” 451 F.3d at 594. The thirty-three-
month/122% departure present in this case— resulting in a sixty-month
sentence— is not so nearly extreme. However, we do consider the divergence
substantial and, thus, compelling reasons must support the district court’s
decision (though they need not be as “dramatic” as those that would have justified
10
the departure in Cage). See United States v. Castro-Juarez, 425 F.3d 430, 431,
436 (7th Cir. 2005) (noting that forty-eight-month sentence, where the high-end
of the Guidelines range was tw enty-one months, required a “sufficiently
compelling” explanation).
2.
Here, the district court offered three reasons to justify its upward variance:
(1) M r. Valtierra-Rojas’s “demonstrated propensity for returning to the United
States;” (2) his “extensive history of alcohol-related problems;” and (3) the risk
that he would again “re-enter the United States and commit acts giving rise to a
substantial risk of serious injury.” M r. Valtierra-Rojas does not contest that these
factors are properly considered under § 3553(a). See 18 U.S.C. § 3553(a)(1),
(2)(B)-(C). Rather, M r. Valtierra-Rojas argues that there was no basis in the
record to support the conclusions the district court drew from the facts in this case
and, thus, that the sentence imposed was unreasonable.
a.
M r. Valtierra-Rojas first takes issue with the district court’s reliance on his
“demonstrated propensity” to reenter the United States. M r. Valtierra-Rojas was
deported once and has returned once. He contends that it was unreasonable to
impose a harsher sentence w here the base sentence calculation (for illegal reentry
after deportation) necessarily takes this one reentry into account. “Under the
Court’s analysis,” M r. Valtierra-Rojas argues, “everyone convicted of illegal
11
reentry has the propensity to return to the United States and would therefore be
vulnerable to an increased sentence for that reason alone.”
M r. Valtierra-Rojas’s one reentry would certainly not, standing alone, be
compelling enough to justify the upward variance at issue in this case. However,
neither is it completely irrelevant. M r. Valtierra-Rojas re-entered a mere four
months after he was deported. W hile not demonstrating a propensity to return to
the same degree that multiple illegal reentries would, we do not think it
unreasonable to conclude that a near-immediate reentry shows
some propensity— that is, “natural inclination” or “innate or inherent tendency,”
W ebster’s Third Int’l Dictionary 1817 (1986)— to return to this country. Further,
it is not unreasonable to conclude that this propensity makes M r. Valtierra-
Rojas’s behavior deserving of a somewhat greater punishment than, say, a
defendant whose only return comes years after his deportation. Therefore, this
reason should not be completely discounted.
b.
M r. Valtierra-Rojas also objects to the district court’s finding that he poses
a threat of causing harm by drinking and driving. His argument is essentially
this: while he clearly had an alcohol problem before 2003, since that “watershed
date” and his alcohol abuse treatment he has not had another drink. Thus, M r.
Valtierra-Rojas contends, the district court erred in its factual finding that he
posed a risk, presently or in the future. W e do not attribute the same cathartic
12
quality that M r. Valtierra-Rojas does to the 2003 date, and thus conclude that the
district court’s finding was not clearly erroneous. See In re Commercial Fin.
Servs., Inc., 427 F.3d 804, 810 (10th Cir. 2005) (“A finding of fact is clearly
erroneous if it is without factual support in the record or if, after reviewing all of
the evidence, we are left with the definite and firm conviction that a mistake has
been made.”) (quoting In re M iniscribe Corp., 309 F.3d 1234, 1240 (10th Cir.
2002)). 8
There is evidence in the record that M r. Valtierra-Rojas has not had a drink
since 2003: (1) he told the PSR author that he had not; and (2) he has not had
another alcohol-related conviction since that time. However, just because he has
not been charged with a DUI does not dispositively prove he has not driven
drunk. And even assuming that M r. Valtierra-Rojas has not had a drink since
2003, it was not clearly erroneous for the district court to find that he still posed a
threat. H e acknowledges having a serious problem with alcohol in his past.
8
M uch of our post-Booker sentencing jurisprudence discusses the district
court’s fact-finding in terms of w hether the court properly calculated the advisory
Guidelines range. See, e.g., Chavez-Diaz, 444 F.3d at 1229 (“First, we review , if
challenged, whether the district court correctly calculated the defendant’s
guideline sentence, reviewing the district court’s legal conclusions de novo and
factual findings for clear error. Second, if the district court correctly determined
the guideline sentence, then we review the sentence for reasonableness . . . .”)
(citation omitted). However, the clear error standard of review for lower court
fact-finding is a basic principle of appellate review. See Fed. R. Civ. P. 52(a)
(“Findings of fact . . . shall not be set aside unless clearly erroneous.”) Thus
where, as here, a defendant argues that the district court unreasonably departed
from the advisory Guidelines range based on erroneous findings of fact, we will
review those findings for clear error.
13
Specifically, he stated to the PSR author that he first consumed alcohol in 1989
and that, before treatment he consumed about twelve beers a day on each weekend
day (Friday, Saturday, and Sunday). The conclusion that a person with such a
history, though sober for a couple of years, might relapse is not unfounded.
Further, imposing a harsher sentence based on M r. Valtierra-Rojas’s long
history with alcohol and potential threat in the future is not unreasonable. It is
true, as M r. Valtierra-Rojas argues, that his Guidelines calculation assessed
criminal history points for his DUI convictions. However, M r. Valtierra-Rojas
did not simply drink and drive. Rather, he killed someone while driving drunk
and yet continued to engage in that behavior. Given that this incident did not stop
him from driving drunk again, it is manifestly reasonable to view such a person as
posing a higher risk than the average person of engaging in that behavior in the
future, as well as requiring more deterrence than the Guidelines’s basic
computations account for. See 18 U.S.C. § 3553(a)(2)(B)-(C) (noting the
sentence imposed should “afford adequate deterrence to criminal conduct” and
“protect the public from further crimes of the defendant”). 9
9
M r. Valtierra-Rojas argues that there is no justification for “exacting
additional punishment” because the death resulting from his DUI was
unintentional. However, the district court did not simply increase the M r.
Valtierra-Rojas’s sentence to impose further punishment, it expressly noted the
risk that he would again endanger the public.
14
c.
In sum, the facts of this case— and particularly M r. Valtierra-Rojas’s
propensity for dangerous criminal conduct when he is drinking— are compelling
reasons justifying a substantial increase to the advisory Guidelines sentencing
range. The district court’s imposition of a sixty-month sentence was not
unreasonable.
II.
At trial, M r. Valtierra-Rojas filed a motion to dismiss the
indictment— which charged re-entry after deportation for an aggravated
felony— arguing the crime on which the initial deportation was predicated
(involuntary manslaughter D UI) is not an aggravated felony. Specifically, he
contended that (1) under the Supreme Court’s decision in Leocal, a DUI crime
with no mens rea requirement cannot be considered an aggravated felony, see 543
U.S. at 3-4 10 ; and (2) that Leocal should be applied retroactively, as it is a
decision of statutory interpretation. The district court denied the motion, finding
that M r. Valtierra-Rojas had not satisfied the statutory prerequisites for
10
The district court found that the Kansas involuntary manslaughter DU I
statute under which M r. Valtierra-Rojas was convicted “appears to be materially
similar” to the statute at issue in Leocal. See Kan. Stat. Ann. § 21-3442
(“Involuntary manslaughter while driving under the influence of alcohol or drugs
is the unintentional killing of a human being comm itted in the commission of, or
attempt to commit, or flight from an act described in K.S.A. 8-1567 and
amendments thereto.”).
15
collaterally challenging the validity of his earlier deportation order outlined in 8
U.S.C. § 1326(d). 11
On appeal, M r. Valtierra-Rojas concedes that this issue is foreclosed by our
recent decision in U nited States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir.
2005), which held that, although Leocal is retroactively applicable, the defendant
could not collaterally challenge his underlying deportation as he failed to meet the
requirements of § 1326(d). Id. at 1107-09. Thus, M r. Valtierra-Rojas admits he
is raising this issue only to preserve it “in the event this Court or the United
States Supreme Court alters the holding in Rivera-Nevarez.” In light of this
concession, we affirm the district court’s ruling. 12
C ON CLU SIO N
11
Pursuant to 8 U.S.C. § 1326(d),
an alien may not challenge the validity of the deportation order . . .
unless the alien demonstrates that –
(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity for
judicial review; and
(3) the entry of the order was fundamentally unfair.
12
The government agrees that M r. Valtierra-Rojas’s argument is precluded,
but urges us to rule that even if Rivera-Nevarez is reversed, M r. Valtierra-Rojas
cannot prevail because he voluntarily waived his right to challenge his
deportation. A s M r. V altierra-R ojas concedes that his argument is precluded, w e
decline the government’s invitation to make any further rulings. See Griffin v.
Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“W e will not undertake to decide
issues that do not affect the outcome of a dispute.”).
16
For the foregoing reasons, we AFFIRM .
17
United States v. Valtierra-Rojas
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-11-09
Citations: 468 F.3d 1235
Copy Citations