U.S. v. Morales-Chaires

• Citation: 430 F.3d 1124
• Decision Date: 07 December 2005
• Docket Number: No. 05-1190.,05-1190.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredo MORALES-CHAIRES a/k/a Alfredo Morales-Chairez a/k/a Alfredo F. Morales a/k/a Alfredo Morales a/k/a Alfredo Frank Morales, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

430 F.3d 1124

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo MORALES-CHAIRES a/k/a Alfredo Morales-Chairez a/k/a Alfredo F. Morales a/k/a Alfredo Morales a/k/a Alfredo Frank Morales, Defendant-Appellant.

No. 05-1190.

United States Court of Appeals, Tenth Circuit.

December 7, 2005.

Submitted on the briefs:^*

Raymond P. Moore, Federal Public Defender, Edward R. Harris, Assistant Federal Public Defender, John T. Carlson, Research and Writing Attorney, Denver, CO, for Defendant-Appellant.

William J. Leone, United States Attorney, Jerry N. Jones, Assistant United States Attorney, Denver, CO, for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Alfredo Morales-Chaires pled guilty to one count of unlawful reentry by a previously deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced to seventy-seven months' imprisonment. He appeals that sentence. For the reasons stated below, we affirm.

BACKGROUND

Morales-Chaires was born in Mexico in 1974 and is a Mexican citizen. He first entered the United States in 1981. In 1995, he was convicted in a Colorado state court of two counts of possession of cocaine, each a felony, in violation of Colo.Rev.Stat. § 18-18-405. He was sentenced to four years' imprisonment for each count. Morales-Chaires was accordingly deported to Mexico in July 1997.

He illegally reentered the United States in August 1998. In September 1998, he was again convicted in a Colorado state court of one count of possession of cocaine, a felony, again in violation of Colo.Rev.Stat. § 18-18-405, and was sentenced to two years' imprisonment. Morales-Chaires was again deported to Mexico in March 2000. In April 2000, he again illegally reentered the United States. He was apprehended and deported for the third time in December 2002.

Morales-Chaires illegally reentered the United States yet again, in January 2003. On October 24, 2003, Morales-Chaires was convicted in a Colorado state court of one count of possession of cocaine, a felony, in violation of Colo.Rev.Stat. § 18-18-405, and was sentenced to eighteen months' imprisonment. He was incarcerated until October 21, 2004, at which time he was transferred to the custody of the United States Immigration and Customs Enforcement ("ICE"). He voluntarily admitted to the instant offense of illegally reentering the United States in January 2003, after having been previously deported.

On November 17, 2004, a grand jury returned an indictment against Morales-Chaires, charging him with one count of unlawful reentry by a deported alien whose removal was subsequent to the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). Morales-Chaires and the government entered into a written plea agreement, pursuant to which Morales-Chaires pled guilty and the government agreed to request a three-level decrease in Morales-Chaires' United States Sentencing Commission, Guidelines Manual ("USSG") offense level, and to recommend a sentence at the bottom of the applicable Guideline range. The plea agreement included a tentative calculation of the total adjusted Guideline offense level of 21, a criminal history category of VI, and the resultant advisory Guideline range of seventy-seven to ninety-six months' imprisonment.

The Presentence Report ("PSR") agreed with the plea agreement's calculations of offense level, criminal history and Guideline range. The PSR noted Morales-Chaires' extensive criminal history involving multiple prior convictions, including numerous felonies, starting when Morales-Chaires was fourteen years old and continuing through 2003. The PSR further noted that "[t]he severity of sanctions imposed for past criminal behavior has gradually increased over the years, however, it does not appear it has influenced defendant's conduct." PSR at ¶ 144, R. Vol. III.

Morales-Chaires filed a "Memorandum Pursuant to 18 U.S.C. § 3553(a) and Motion for Downward Departure from Advisory Guidelines" urging the court to "depart downward from the sentencing guideline range otherwise applicable" because:

the offense conduct represents a significantly lower risk of harm and lower level of moral culpability than the typical case of this type and the punishment otherwise prescribed by the sentencing guidelines does not reflect the seriousness of the offense conduct; and ... a departure serves critical goals of the sentencing guidelines.

Mem. at 2, R. Vol. I, tab 23. He argued that he had been "a productive and contributing member of society" and that his "primary source of trouble with the law has been drug-related." Id. at 6. He also argued that a downward departure would serve the goals of the sentencing guidelines because it would avoid his receiving different treatment from others similarly situated because, as an alien, he would have less access to programs in prison than non-aliens. Furthermore, he argued that the sentencing factors specified in 18 U.S.C. § 3553(a) support a sentence below the otherwise applicable Guideline range, in particular because, as discussed further below, of the disparities between sentences imposed in districts where a "fast-track" program exists for aliens accused of illegal reentry and in districts, like Colorado, where no such "fast-track" program exists.

At his sentencing proceeding on April 8, 2005, the district court denied Morales-Chaires' request for a downward departure under the Guidelines, and it rejected his argument that the sentencing factors contained in § 3553(a) compelled a sentence different than what the Guidelines recommended, including his argument based upon fast-track programs in other districts. The district court went through each of the statutory sentencing factors and concluded that they supported the recommended Guideline sentence. It also rejected his argument based upon the lack of a fast-track program in Colorado, finding that "for the Court to depart on this basis is in essence a violation of the doctrine of separation of powers because of interference with a prosecutor's exercise of discretion in charging and plea bargaining. That is the province of the executive branch." Tr. of Sentencing at 18, R. Vol. II. The court therefore sentenced Morales-Chaires to seventy-seven months' imprisonment, declaring that advisory Guideline sentence to be "reasoned and reasonable." Id. at 19.

Morales-Chaires appeals his sentence, arguing the court erred in sentencing him to a longer sentence than he would have received had he been prosecuted in a fast-track jurisdiction.

DISCUSSION

Fast-track sentencing programs originated with federal prosecutors in states bordering Mexico, who were faced with increasing numbers of illegal reentry and other immigration cases. They accordingly designed programs whereby defendants accused of certain immigration offenses would plead guilty early in the process and waive their rights to file certain motions and to appeal, in exchange for a shorter sentence. The shorter sentence was accomplished either by charge-bargaining or by promising to recommend a downward departure at sentencing. See generally United States v. Martinez-Flores, 428 F.3d 22 (1st Cir.2005); United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS 9252 (D.Utah May 16, 2005); Erin T. Middleton, Note, Fast-Track to Disparity: How Federal Sentencing Policies Along the Southwest Border Are Undermining the Sentencing Guidelines and Violating Equal Protection, 2004 Utah L.Rev. 827.

"In 2003, Congress endorsed the fast-track concept in a provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act ("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 650 (2003) (codified in scattered Sections of 18, 28, and 42 U.S.C.)." Martines-Flores, 428 F.3d at *25. A provision of the PROTECT Act directed the United States Sentencing Commission to "promulgate ... a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney." Pub.L. No. 108-21, § 401(m), 117 Stat. at 675. The Sentencing Commission accordingly added a new Guidelines section, effective October 27, 2003, authorizing such four-level departures. See USSG § 5K3.1, p.s.

In jurisdictions where fast-track programs have been authorized by the Attorney General, defendants must "agree to the factual basis [of the criminal charge] and waive the rights to file pretrial motions, to appeal, and to seek collateral relief (except for ineffective assistance of counsel)." United States v. Melendez-Torres, 420 F.3d 45, 52 (1st Cir.2005). At the time Morales-Chaires pled guilty and was sentenced, fast-track programs were in effect in a number of jurisdictions, but not in Colorado.¹ Morales-Chaires argues that he could have received a sentence as low as thirty months were he to have been apprehended in one of the districts where the fast-track program is available.

During the time period when the Sentencing Guidelines were viewed and applied as mandatory, several circuits, including our own, held that "the existence of sentencing disparities as to illegal reentry cases among the various federal districts, where such disparities arise from varying charging and plea-bargaining policies of the individual United States Attorneys, [does not] provide an appropriate basis for a downward departure at sentencing[.]" United States v. Armenta-Castro, 227 F.3d 1255, 1257 (10th Cir.2000); see also United States v. Banuelos-Rodriguez, 215 F.3d 969, 972-78 (9th Cir. 2000) (en banc) (same); United States v. Bonnet-Grullon, 212 F.3d 692, 697-710 (2d Cir.2000) (same). In particular, we held that "the Sentencing Guidelines categorically proscribe the consideration of sentencing disparities flowing from the exercise...