781 F.3d 345 (6th Cir. 2015), 13-2692, United States v. Solano-Rosales

Docket Nº:13-2692
Citation:781 F.3d 345
Opinion Judge:CLAY, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE HUMBERTO SOLANO-ROSALES, Defendant-Appellant
Attorney:Zenaida R. Lockard, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Donald Daniels, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Judge Panel:Before: CLAY, GILMAN, and SUTTON, Circuit Judges.
Case Date:March 23, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 345

781 F.3d 345 (6th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSE HUMBERTO SOLANO-ROSALES, Defendant-Appellant

No. 13-2692

United States Court of Appeals, Sixth Circuit

March 23, 2015

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:13-cr-00104-1--Paul Lewis Maloney, Chief District Judge.

ON BRIEF:

Zenaida R. Lockard, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.

Donald Daniels, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: CLAY, GILMAN, and SUTTON, Circuit Judges.

OPINION

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CLAY, Circuit Judge.

Defendant Jose Humberto Solano-Rosales (" Defendant" or " Solano-Rosales" ) appeals from the sentence imposed by the district court following his plea to the charge of returning to the United States without authorization after removal following a felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(1). For the reasons set forth below, we AFFIRM the sentence.

I.

BACKGROUND

A. Factual History

Defendant is a Mexican citizen without legal status in the United States. He entered this country for the first time in 1992, and the following year married Loreta Cruz, a United States citizen. Defendant and Cruz have two children together, but they are no longer married. Prior to the instant prosecution, in the more than two decades since his initial entrance into the United States, Defendant was removed from the country three times. He also pled guilty to charges of domestic violence against Cruz on three different occasions. Pursuant to Michigan law, his last domestic violence conviction, as a third offense, was a felony.

According to the presentence report, Defendant was first discovered by the Border Patrol in Holland, Michigan in 1994; he was released pending an immigration hearing with an order to show cause. Defendant did not appear at his immigration hearing, and the immigration judge ordered his deportation on November 7, 1995.

During this period, Defendant faced his first criminal charges. In July 1995 he pled guilty to misdemeanor domestic violence charges arising from an incident involving his wife. He was given a suspended sentence of thirty days in jail and twelve months of probation. His wife filed a second complaint of domestic abuse at the Holland Police Department in September of 1995; Defendant was arrested on the resulting charges on October 12, 1995, and pled guilty to a misdemeanor on November 29, 1995. For this charge, he was sentenced to fifteen days in jail and twelve months of probation.

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As a result of the previously initiated proceedings in immigration court, Defendant was ordered to report for his deportation on March 24, 1997; he complied with the order and was deported by plane the following day. On April 13, 1997, just weeks after his first deportation, Defendant attempted to gain entry into the United States at Harlingen, Texas, by presenting a fraudulent alien-registration card, which he later confessed to having purchased in Chicago. He was refused admission, and subsequently illegally reentered the United States near Donna, Texas.

In May 2001, Defendant filed an application to adjust his status to that of a lawful permanent resident on the basis of his marriage to Cruz. The application was denied, the removal order was reinstated, and Defendant was again removed to Mexico on November 24, 2003. In April 2004, Defendant filed an application to reenter the United States; that application was denied by immigration authorities on June 2, 2005.

Despite the denial, Defendant apparently reentered the United States at some point because in April 2007, he pled guilty to a felony charge of Domestic Violence-Third Offense in Michigan state court for a third incident involving his wife. Immigration authorities took him into custody in June of 2007, and he was removed on July 20, 2007. Prior to this last removal, Defendant was informed that he was barred from entering the United States for a period of twenty years. In his interview with the Probation Office, Defendant reported that he returned to the United States within a few months of this last deportation.

In May 2013, immigration authorities in Grand Rapids, Michigan learned of Defendant's unlawful presence in the United States from information provided by a tip line. Defendant was thereafter taken into custody, and with the filing of an indictment in June 2013, the instant federal prosecution was commenced.

B. Procedural History

Defendant was charged with returning to the United States without authorization after having been previously removed subsequent to conviction for a felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(1). He pled guilty on July 1, 2013, without entering into a plea agreement. The presentence report initially prepared by the Probation Office calculated an offense level of 21 and a criminal history category of II, resulting in an advisory guidelines range of 41 to 51 months. This calculation was predicated on a " crime of violence" enhancement of sixteen levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on Defendant's prior state felony conviction for domestic violence. Defendant filed an objection to the enhancement, and the government conceded that neither the statute nor the Shepard documents were sufficient to establish that the conviction was for a " crime of violence" within § 2L1.2(b)(1)(A)(ii). See United States v. Bernal-Aveja, 414 F.3d 625, 626-27 (6th Cir. 2005) (discussing § 2L1.2(b)(1)(A)(ii) and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). The district court sustained the objection and applied in its place a four-level enhancement under 2L1.2(b)(1)(D) for a prior felony conviction. The resulting guidelines range was 8 to 14 months.

The district court determined that an upward variance from the guidelines range was warranted and imposed a custodial sentence of 18 months. In its sentencing colloquy, which will be discussed in more detail below, the district court cited Defendant's record of domestic violence and repeated illegal reentries, and discussed the sentencing goals of specific deterrence,

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protection of the public, and just punishment in supporting the upward variance. In addition, to create further specific deterrence, the district court imposed a three-year term of supervised release. Upon the court's direct inquiry, defense counsel stated that Defendant had no legal objections to the sentence.

Defendant timely appealed, but due to delays resulting from his attorney's withdrawal from the case, briefing was not completed until late October 2014. Meanwhile, Defendant completed his term of imprisonment and was removed to Mexico on September 23, 2014.

II.

DISCUSSION

Defendant raises two arguments on appeal. First, he lodges a procedural reasonableness challenge to the imposition of the supervised release term based on the district court's failure to discuss a guidelines provision recommending against sentencing removable aliens to supervised release terms following their custodial sentence. Second, Defendant argues that the upward variance in his custodial sentence was substantively unreasonable.

A. Imposition of the Supervised Release Term

1. Standard of Review

We review a district court's sentencing determination " 'under a deferential abuse-of-discretion standard,' for reasonableness." United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). This review has two components: procedural reasonableness and substantive reasonableness. Id.; Gall, 552 U.S. at 51. Defendant challenges the imposition of the three-year supervised release term as procedurally unreasonable.

Because Defendant did not object to the sentence upon inquiry from the district court, our review is further constrained by the plain error standard. United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) ( en banc ). To show plain error, Defendant " must show (1) error (2) that was obvious or clear, (3) that affected [D]efendant's substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (citing Vonner, 516 F.3d at 386)).

2. Analysis

Defendant's procedural challenge to the supervised release term is based on the district court's failure to mention and discuss a relevant guidelines provision, U.S.S.G. § 5D1.1(c). Essentially, he argues that the district court's failure to discuss this provision deprived him of an adequate explanation of his sentence. " A district court necessarily abuses its sentencing discretion if it 'commit[s] [a] significant procedural error, such as . . . failing to adequately explain the chosen sentence.'" Bolds, 511 F.3d at 579 (quoting Gall, 552 U.S. at 51). The district court must provide an " articulation of the reasons [it] reached the sentence ultimately imposed." United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005). This explanation should be sufficient " to allow for meaningful appellate review." United States v. Trejo-Martinez, 481 F.3d 409, 412-13 (6th Cir. 2007). An explanation is typically adequate if it addresses the factors from 18 U.S.C. § 3553(a) that are relevant to the district court's sentencing decision, id. at 413, but simply listing the factors and various characteristics of the defendant, without explanation of how the

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factors affect the sentence imposed, is insufficient, Bolds, 511 F.3d at 580 (citing United States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006)). Additionally, " when a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that...

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