U.S. v. Mondragon-Santiago

• Decision Date: 26 March 2009
• Docket Number: No. 07-41099.,07-41099.
• Citation: 564 F.3d 357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose MONDRAGON-SANTIAGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

564 F.3d 357

UNITED STATES of America, Plaintiff-Appellee, v. Jose MONDRAGON-SANTIAGO, Defendant-Appellant.

No. 07-41099.

United States Court of Appeals, Fifth Circuit.

March 26, 2009.

John Richard Berry (argued) and James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub Def. (argued), Sarah Beth Landau, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, DENNIS and ELROD, Circuit Judges.^*

JENNIFER W. ELROD, Circuit Judge:

Jose Mondragon-Santiago appeals his sentence for attempted unlawful reentry into the United States following deportation, in violation of 8 U.S.C. § 1326. The district court sentenced him to fifty months of imprisonment and three years of supervised release, which is within the range established by the U.S. Sentencing Commission Guidelines Manual (U.S.S.G. or Guidelines). We affirm Mondragon-Santiago's sentence and reform the district court's judgment to reflect the correct statutory subsection.

I. BACKGROUND

Mondragon-Santiago is a Mexican citizen who was arrested while attempting to enter the United States without permission on October 8, 2006 following removal from the United States a year earlier. He pled guilty to the indictment, which charged him with attempted unlawful reentry in violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. In the presentence report (PSR), the probation officer assessed a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), predicated upon Mondragon-Santiago's offense of aggravated assault with a deadly weapon committed in Dallas, Texas, on August 24, 2002. The state court ordered four years of deferred adjudication probation.¹ The PSR calculated Mondragon-Santiago's sentencing range—based in part on the enhancement—to be forty-six to fifty-seven months.

Mondragon-Santiago objected to the PSR on two grounds, only one of which is relevant to this appeal. Mondragon-Santiago requested a downward departure under U.S.S.G. § 4A1.3(b), claiming the Guidelines over-represented his criminal history. The PSR assessed two points for his aggravated assault offense, and an additional two points because he was on community supervision when he committed the present crime. Thus, the same criminal act contributed four points to his criminal history status in addition to adding sixteen levels to his base offense level. While conceding that these calculations were correct under the Guidelines, Mondragon-Santiago claimed they exaggerated his propensity to commit crimes.

At sentencing, Mondragon-Santiago's counsel requested the downward departure described in the written objections, and also asked for a downward departure based on the factors of 18 U.S.C. § 3553(a). Specifically, counsel argued that Mondragon-Santiago does not have a history of "prior apprehensions." He also noted that the defendant's wife and two children live in Dallas, that he faces a four-year sentence for his aggravated assault conviction, and that he had a history of working. The longest time Mondragon-Santiago had spent in jail before this offense was ninety days (for driving while intoxicated).

The district court heard these arguments, engaged in a brief colloquy with defense counsel regarding Mondragon-Santiago's failure to observe the conditions of his probation, and then allowed the defendant to speak for himself. After hearing Mondragon-Santiago state that he needed to be with his family, the district court asked him how he would accomplish that goal without entering the United States illegally. Mondragon-Sandiago responded that he would not be able to see his family if the government would not let him enter the country. The district court suggested that maybe his family could visit him, and then imposed a sentence of fifty months of imprisonment followed by three years of supervised release. Mondragon-Santiago's attorney objected on the grounds that the sentence was "greater than necessary." The district court overruled the objection. Mondragon-Santiago appealed.

II. STANDARDS OF REVIEW

On appeal, Mondragon-Santiago raises three arguments in favor of resentencing. First, he argues the district court committed a procedural error by failing to adequately explain his sentence. Second, he argues that his sentence is substantively unreasonable because the district court, at sentencing, did not have the benefit of the Supreme Court's decisions in Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which he claims alter sentencing law in fundamental ways. Mondragon-Santiago then argues, also under the rubric of substantive unreasonableness, that appellate courts should discard the presumption of reasonableness applied to within-Guidelines sentences when empirical studies do not undergird the Guidelines at issue. Finally, Mondragon-Santiago argues he was convicted and sentenced under the wrong statutory subsection.

Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in which the Court rendered the Guidelines advisory only, appellate courts review sentences for reasonableness under an abuse-of-discretion standard. Gall, 128 S.Ct. at 594. This review occurs in two stages. First, the court must ensure that the district court did not err procedurally by, for example, miscalculating or failing to calculate the sentencing range under the Guidelines, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008) (citing Gall, 128 S.Ct. at 597). If the sentence is procedurally proper, the court engages in a substantive review based on the totality of the circumstances. Id. at 767; Gall, 128 S.Ct. at 597. In this circuit, a sentence within the Guidelines range is presumed reasonable on appeal. United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008).

"The district court must make an individualized assessment based on the facts presented," and may deviate from the Guidelines based on policy considerations or because the Guidelines fail to reflect the § 3553(a) factors. Id. at 339. The district court should consider the factors in § 3553(a) in light of the parties' arguments, and may not presume the Guidelines range is reasonable. Gall, 128 S.Ct. at 596-97. The district court must adequately explain the sentence "to allow for meaningful appellate review and to promote the perception of fair sentencing." Id. at 597. "Appellate review is highly deferential as the sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant." Campos-Maldonado, 531 F.3d at 339.

The parties dispute whether Mondragon-Santiago preserved error on the procedural reasonableness of his sentence—that is, his claim that the district court failed to properly explain the sentence. The government argues that the defendant's oral objection to the sentence as greater than necessary did not raise any issue with the district court's explanation of the sentence. Mondragon-Santiago counters that his objection preserved review for reasonableness, including both its procedural and substantive components. We agree with the government that Mondragon-Santiago's objection failed to preserve his procedural claim of error.

"A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review." United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir.1994) (quoting United States v. Bullard, 13 F.3d 154, 156 (5th Cir.1994)). Mondragon-Santiago's objection sufficed to alert the district court of his disagreement with the substance of the sentence, but not with the manner in which it was explained. He could have asked the district court for further explanation during the sentencing hearing, but did not. A district court hearing an objection that a sentence is "greater than necessary" would not know from those words that the defendant wanted further explanation of the sentence. We recently stated as much: "When a defendant fails to raise a procedural objection below, appellate review is for plain error only." United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 625, 172 L.Ed.2d 617 (2008); see also United States v. Peltier, 505 F.3d 389, 391-94 (5th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2959, 171 L.Ed.2d 892 (2008) (applying plain error standard to claims of substantive and procedural unreasonableness when defendant failed to object to his sentence).² In Lopez-Velasquez, the defendant objected to the sentence on various grounds, but not for any procedural reason. 526 F.3d at 805-06. We reviewed his claim of procedural unreasonableness—that the district court did not properly explain the sentence, an argument raised for the first time on appeal— for plain error, and his substantive claims under the usual, abuse-of-discretion standard. Id. at 806-07. We follow the same course here.

We remedy forfeited error only when it is plain and affects the defendant's substantial rights. United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). Even when these elements are met, we have discretion to correct the forfeited error only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation marks omitted). Mondragon-Santiago concedes that his issue claiming that he was convicted and sentenced under the wrong statutory subsection should be reviewed for plain...