U.S. v. Alapizco-Valenzuela

• Decision Date: 12 November 2008
• Docket Number: No. 07-3327.,07-3327.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramiro ALAPIZCO-VALENZUELA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

546 F.3d 1208

UNITED STATES of America, Plaintiff-Appellee, v. Ramiro ALAPIZCO-VALENZUELA, Defendant-Appellant.

No. 07-3327.

United States Court of Appeals, Tenth Circuit.

November 12, 2008.

Cyd Gilman, Assistant Federal Public Defender, Office of the Federal Public Defender, Wichita, KS, appearing for the Appellant.

Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Office of the United States Attorney, Wichita, KS, appearing for the Appellee.

Before TACHA, HOLLOWAY, and HOLMES, Circuit Judges.

TACHA, Circuit Judge.

Defendant-Appellant Ramiro Alapizco-Valenzuela pleaded guilty to one count of transporting illegal aliens for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He appeals his seventy-two-month sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM.

I. BACKGROUND

On January 24, 2007, a sheriff's deputy in Reno County, Kansas was dispatched to a location on U.S. Highway 50 to assist a stranded motorist in a white minivan. When the deputy arrived, he saw that the minivan had pulled over from the eastbound lane and had a flat tire. The deputy approached the minivan and initiated contact with the driver, Mr. Alapizco-Valenzuela's co-defendant Rene Cota-Beltran. Mr. Alapizco-Valenzuela was sitting in the front passenger seat. The deputy offered to help the two men change their tire and called for a tow truck to assist in the effort. The tow truck arrived, and the deputy opened the door at the rear of the minivan, where he discovered ten men and one woman crowded together as if trying to hide. Most were not wearing shoes and none of them had any money. Later investigation revealed that the occupants were not lawfully present in the United States.

Mr. Alapizco-Valenzuela was subsequently charged in a five-count indictment for conspiring to take hostages, in violation of 18 U.S.C. § 1203; aiding and abetting the taking of hostages, in violation of 18 U.S.C. § 1203 and 18 U.S.C. § 2; exporting aliens not lawfully in the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(i); conspiring to export aliens not lawfully in the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I) (a)(1)(B)(i); and illegally reentering the United States after previously being deported, in violation of 8 U.S.C. § 1326(a). After entering into plea negotiations with the government, he pleaded guilty to the count of exporting aliens not lawfully in the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(i).

Following Mr. Alapizco-Valenzuela's guilty plea, the United States Probation Office prepared a presentence report ("PSR"). The PSR reported that agents with the Immigration and Customs Enforcement Bureau ("ICE") had interviewed Mr. Alapizco-Valenzuela, Mr. Cota-Beltran, and the aliens found in the back of the minivan. Although the aliens' stories varied slightly, the PSR stated that the interviews tended to show that the aliens had met with a smuggler in Mexico and paid him or agreed to pay him to help them enter the United States illegally and to transport them to Florida. After crossing the border, they were picked up in vehicles and transported to a "stash house" in Arizona. There, they were directed at gunpoint to turn over their money, their shoes, and other personal belongings. They were also threatened with physical harm and death if they did not call friends and family to secure additional money to pay the smugglers.

After the aliens had been detained for approximately half a day, armed Hispanic males entered the house, tied up the smugglers, and transported the aliens at gunpoint to another stash house, where the aliens were held captive for the next three or four days. They were given minimal food and water and were forced at gunpoint, under threat of dismemberment and death, to call family and friends to request $2500. They were told they would need to pay $2000 before they would be released from the house and would need to pay the additional $500 to their driver upon their arrival in Florida. Otherwise, they were told, the driver would not release them.

At some point, Mr. Alapizco-Valenzuela arrived at the second stash house. Eleven aliens were loaded into the minivan, where they were instructed to lay flat on the floor. A man known as "Lobo" drove them—barefoot and without money or other belongings—from the second stash house, and Mr. Alapizco-Valenzuela rode in the front passenger seat. After about ten minutes, the minivan stopped and Mr. Cota-Beltran got in and replaced Lobo as the driver. The group continued on their way to Florida, with the aliens being forced to urinate in a plastic bottle because they were not permitted to leave the van. When the minivan's tire went flat in Kansas and the sheriff's deputy arrived, the aliens were instructed to tell law enforcement that the entire group was traveling together to find work and that they were all taking turns driving. They were told that things would be worse for them if they did not tell authorities this story.

After setting forth these facts, the PSR noted that the base offense level for transporting illegal aliens is twelve. See United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2L1.1(a)(3). The PSR then recommended several increases for specific offense characteristics. First, the PSR added three levels because Mr. Alapizco-Valenzuela transported between six and twenty-four aliens. See id. § 2L1.1(b)(2)(A). Another three levels were added because Mr. Alapizco-Valenzuela overloaded the aliens into the minivan and transported them without safety restraints, thereby intentionally or recklessly subjecting the aliens to a substantial risk of death or bodily harm. See id. § 2L1.1(b)(6). Finally, the PSR recommended a two-level increase because an alien was involuntarily detained through coercion or threat, or in connection with a demand for payment. See id. § 2L1.1(b)(8).

The PSR then applied upward and downward adjustments under Chapter Three of the Guidelines. Specifically, the PSR recommended a two-level upward adjustment for obstructing justice based on the aliens' statement that they were threatened and intimidated when instructed to tell law enforcement officers they were all taking turns driving and looking for work together. See id. § 3C1.1. The PSR recommended a three-level downward adjustment for acceptance of responsibility based on Mr. Alapizco-Valenzuela's guilty plea. See id. § 3E1.1. This resulted in a total offense level of nineteen, which, in combination with Mr. Alapizco-Valenzuela's criminal history category I, yielded an advisory Guidelines range of thirty to thirty-seven months.

Mr. Alapizco-Valenzuela objected to the PSR's two-level increase for detaining an alien through coercion or in connection with a demand for payment and to the PSR's two-level increase for obstructing justice by intimidating or threatening a witness. He denied being involved with the detention and extortion of the smuggled aliens, contended he never carried a firearm and never threatened anyone, and claimed he did not instruct the passengers to lie to law enforcement.

The government responded to Mr. Alapizco-Valenzuela's objections and further filed a "Motion for Upward Departure and Upward Variance." In the motion, the government argued that the circumstances of the case brought it outside the heartland of alien-smuggling offenses and therefore warranted a higher-than-Guidelines sentence under U.S.S.G. § 5K2.0. The government also contended that a higher sentence should be imposed in light of the factors set forth in 18 U.S.C. § 3553(a). The government advocated for an offense level of twenty-six, noting that this would bring it more in line with the offense of kidnaping for a ransom. See U.S.S.G. § 2A4.2. An offense level of twenty-six for a person with a criminal history category I produces a Guidelines range of sixty-three to seventy-eight months. The government sought a sentence at the top of this range.

The district court, both orally at sentencing and in a subsequent written order, denied the objections, granted the government's motion, and sentenced Mr. Alapizco-Valenzuela to seventy-two months. On appeal, Mr. Alapizco-Valenzuela challenges the application of the two-level enhancement under § 2L1.1(b)(8) for detaining an alien involuntarily through coercion or threat, or in connection with a demand for payment. He also challenges the district court's decision to grant the motion for an upward departure and upward variance.

II. DISCUSSION

A. Standard of Review

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences for reasonableness under a deferential abuse-of-discretion standard. United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.2008). "Reasonableness review is a two-step process comprising a procedural and a substantive component." United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.2008) (citing Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Procedural review asks whether the sentencing court committed any error in calculating or explaining the sentence. See United States v. A.B., 529 F.3d 1275, 1278 (10th Cir.2008). See also Gall, 128 S.Ct. at 597 (procedural errors include "failing to calculate (or improperly calculating) the Guidelines range, 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"). Substantive review "involves whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a)." United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.2007).

Accordingly, if...