U.S. v. Amezcua-Vasquez

Decision Date01 June 2009
Docket NumberNo. 07-50239.,07-50239.
Citation567 F.3d 1050
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Javier AMEZCUA-VASQUEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Janet C. Tung, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Christopher M. Alexander, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. CR-06-02104-WQH.

Before WILLIAM C. CANBY, JR., ANDREW J. KLEINFELD, and JAY S. BYBEE, Circuit Judges.

CANBY, Circuit Judge:

OVERVIEW

Javier Amezcua-Vasquez ("Amezcua"), a native and citizen of Mexico, appeals his 52-month prison sentence for attempting to reenter the United States unlawfully in violation of 8 U.S.C. § 1326. Nearly fifty years after becoming a permanent resident and more than twenty years after completing a four-year sentence for assault with great bodily injury and attempted voluntary manslaughter, Amezcua was deported to Mexico as an alien convicted of an aggravated felony. Shortly thereafter, he was apprehended re-entering the United States. He was indicted and pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which was predicated on Amezcua's twenty-five-year-old convictions, and imposed a Guidelines sentence of 52 months imprisonment. We vacate Amezcua's sentence as substantively unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and remand the case to the district court for resentencing.

BACKGROUND

In 1957, Amezcua, a native and citizen of Mexico, became a permanent resident of the United States. He was two years old at the time. He has lived in or around Calipatria, California, ever since. In 1981, at the age of twenty-six, Amezcua stabbed someone with a knife in the midst of a gang-related bar fight. As a result, he was convicted in state court of attempted voluntary manslaughter and assault with great bodily injury. He was sentenced to concurrent terms of eight months on the attempted manslaughter count and four years on the assault count. Amezcua's sentence was initially suspended, but his probation was revoked in 1982. He was released on parole in 1984 and was discharged the following year. In 2006, at the age of fifty-one, Amezcua was ordered removed to Mexico as an alien convicted of an aggravated felony because of his 1981 convictions.

Two weeks after his removal, Amezcua was apprehended entering the United States in the vicinity of Calexico, California. After waving his Miranda and Vienna Convention rights, Amezcua admitted that he was not a United States citizen and that he was unlawfully in the United States after having been deported. He informed the agents that he had been staying in Mexicali, Mexico, since his deportation two weeks earlier and that, at the time of his arrest, he was attempting to return to El Centro, California, to live with his family and work.

A few months later, Amezcua was indicted on one count of attempted illegal reentry in violation of 8 U.S.C. § 1326(a)-(b). He pled guilty without a plea agreement. The district judge adopted the following offense level computation in the Presentence Report:

                Base Offense Level: 8 U.S.C. § 1326        8
                Specific Offense Characteristics
                 U.S.S.G. § 2L1.2(b)(1)(A)(ii)            16
                Adjusted Offense Level
                Adjustment for Acceptance of Responsibility:   -2
                Total Offense Level:                           22
                

With respect to his criminal history, the only conviction that qualified under Chapter IV of the Guidelines was a 1999 conviction for "us[ing], or be[ing] under the influence of any controlled substance," Cal. Health & Safety Code § 11550(a), which placed Amezcua in category II. Amezcua's other convictions, including the 1981 conviction, did not score under the Guidelines because they were too old.1 U.S.S.G. § 4A1.2(e). Similarly, Amezcua's law enforcement contacts did not score under the Guidelines.2

At sentencing, the judge stated that he had read Amezcua's sentencing memorandum and the Presentence Report, which discussed Amezcua's background. The Report noted Amezcua's extensive family network around El Centro, California, his absence from Mexico since he was two years old, his work experience as an agricultural worker in the fields of California and as a handyman in the community, and his history of alcohol and drug abuse. The district judge determined that the Guidelines range for a defendant with Amezcua's offense level (22) and criminal history category (II) was 46 to 57 months, followed by a term of 2 to 3 years under supervised release. Amezcua objected to the application of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) on the ground that neither of his 1981 convictions qualified as a "crime of violence." He also challenged the reasonableness of the proposed Guidelines sentence in light of his personal history and characteristics.

At sentencing, the district judge noted that the Guidelines are merely advisory and that Amezcua's 1981 conviction qualified as a crime of violence under Section 2L1.2(b)(1)(A)(ii). After discussing Amezcua's uncharged law enforcement contacts and his prior convictions, and the statutory sentencing factors under 18 U.S.C. § 3553(a), the district judge imposed a sentence of 52 months imprisonment, followed by three years of supervised release. Amezcua appeals.

DISCUSSION

Our "appellate review of sentencing decisions is limited to determining whether they are `reasonable.'" Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). In conducting this inquiry, we review the district court's sentencing decision for an abuse of discretion. Id. at 600. "[O]nly a procedurally erroneous or substantively unreasonable sentence will be set aside." United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). "[W]e first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence." Id. (citing Gall, 128 S.Ct. at 597).

Procedural Reasonableness

In his only procedural challenge,3 Amezcua contends that the district court failed properly to consider and discuss his arguments for lenient sentencing that cast his personal history in a positive light. Although the district court's treatment of these arguments was brief, we find no procedural error. Under the sentencing statute, the district court was required to "state in open court the reasons for its imposition of the [52-month] sentence." 18 U.S.C. § 3553(c). As the Supreme Court has recently announced, however, this obligation does "not necessarily require lengthy explanation." Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). "Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical." Id. Accordingly, although it is the better practice for district courts to explain whether they accept or reject "nonfrivolous argument[s] tethered to a relevant § 3553(a) factor," Carty, 520 F.3d at 992-93, a sentencing judge does not abuse his discretion when he listens to the defendant's arguments and then "simply [finds the] circumstances insufficient to warrant a sentence lower than the Guidelines range," id. at 995 (quoting Rita, 127 S.Ct. at 2469); see also United States v. Stoterau, 524 F.3d 988, 999 (9th Cir.2008).

In this case, the district court began its analysis of the sentencing factors by noting that two of the arguments discussed in connection with the computation of the advisory Guidelines range—that is, "the nature and circumstances of the offense and [the] history and characteristics of the defendant"—were also relevant to its § 3553(a) inquiry. It then stated:

With respect to the 3553 factors, I have considered all of them. Some in particular I'll mention. In addition to the nature and circumstances of the offense, the need to reflect the seriousness of the offense, promote respect for law, and to provide just punishment for the offense, as well as to afford adequate deterrence to criminal conduct, and having closely examined the defendant's prior record and the circumstances of the offense, the Court is going to impose a sentence in the amount of 52 months.

This explanation effectively singled out the factors enumerated in subsections (a)(1), (a)(2)(A) and (a)(2)(B) of 18 U.S.C. § 3553 as particularly relevant to the district court's sentencing decision in this case. Turning to the specifics of Amezcua's case, the district court continued:

I think that [a 52-month sentence] is the minimum sentence that would afford deterrence to criminal conduct. I recognize that the facts of this offense are not particularly aggravating, but that the defendant's prior criminal history and contacts with law enforcement, he's had some significant contacts. ...

Under 3553 factors, I think that the 52-month sentence is necessary to promote respect for the law and provide just punishment, and I also believe that that is a sentence that is necessary in order to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, and I don't think that a sentence of less than 52 months would satisfy the 3553 factors.

We conclude that this discussion of the § 3553(a) factors sufficed. We recognize that, at the sentencing hearing, the district court did not mention several of Amezcua's mitigating arguments pertaining to his "history and characteristics." 18 U.S.C. 3553(a)(1). We also...

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