U.S. v. Cereceres-Zavala

• Decision Date: 28 August 2007
• Docket Number: No. 05-2191.,05-2191.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerardo CERECERES-ZAVALA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

499 F.3d 1211

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo CERECERES-ZAVALA, Defendant-Appellant.

No. 05-2191.

United States Court of Appeals, Tenth Circuit.

August 28, 2007.

Marcia J. Milner, Las Cruces, NM, for Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Las Cruces, NM, for the Plaintiff-Appellee.

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Gerardo Cereceres-Zavala ("Cereceres") was convicted of illegal reentry after having been previously convicted of an aggravated felony in violation of 8 U.S.C. § 1326 and was sentenced to 57 months' imprisonment.^* He now appeals the imposition of his sentence, alleging that the district court improperly relied upon contested statements in Cereceres's presentencing report ("PSR") and failed to consider the sentencing factors of 18 U.S.C. § 3553 in denying him a downward departure. We take jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and AFFIRM.

BACKGROUND

In 1998, Cereceres pled guilty in a Texas district court to "engaging in organized criminal activity — aggravated assault" in violation of Texas Penal Code § 71.02. Cereceres had been indicted on one count of engaging in organized criminal activity and a second, separate count of aggravated assault stemming from an incident in which Cereceres allegedly "[did] intentionally, knowingly, and recklessly cause bodily injury to Daniel Avalos by stabbing [him] with a knife." The aggravated assault charge was dismissed prior to entry of Cereceres's guilty plea. However, a conviction for "engaging in organized criminal activity" under the Texas statute requires that the defendant "commit[ted] or conspire[d] to commit one of the following" listed offenses including, inter alia, aggravated assault. TEX. PENAL CODE § 71.02(a) (Vernon 2006). After his conviction, Cereceres was deported, illegally reentered the United States, and was rearrested and charged with the instant offense.

Rather than stand trial, Cereceres pled guilty to illegal reentry following a prior conviction in violation of 8 U.S.C. § 1326(a)(1) and (b)(2). Cereceres's PSR recommended an enhancement of 16 levels above the base level of 8, because his prior Texas conviction was for "a crime of violence" under United States Sentencing Guidelines ("USSG") § 2L1.2(b)(1)(A). After application of a three-level reduction for acceptance of responsibility under USSG § 3E1.1, Cereceres's total offense level was 21. Combined with a criminal history category of IV, the appropriate Guidelines range, according to the PSR, was between 57 and 71 months.

Prior to the imposition of sentence, Cereceres filed two motions, each styled as a "Motion for Downward Departure." In the first, Cereceres objected to the PSR's calculation of his criminal history category, asserting that category IV overrepresented the seriousness of his criminal history.¹ In the second, and also in his sentencing memorandum, Cereceres objected to the sixteen-level enhancement based on his Texas conviction, arguing that the crime did not meet the definition of a "crime of violence" under 18 U.S.C. § 16.

At the sentencing hearing, the district court first asked defense counsel whether she "had an opportunity to review the presentence report with [her] client," to which defense counsel responded "Yes, Your Honor." The court then asked if there was anything in the PSR which defense counsel wanted to call to the court's attention. Defense counsel stated in response: "No, Your Honor, other than I did file a sentencing memorandum. I have nothing more to add than what's in the memorandum, Your Honor." The court did not respond directly to defense counsel, instead asking the defendant if he wished to make a statement. The district court then announced that it would impose a sentence falling within the Guidelines range:

The Court adopts the presentence report factual findings and guideline applications. The offense level is 21. The criminal history category is IV. The guideline imprisonment range is 57 to 71 months. The Court notes the defendant illegally reentered the United States subsequent to a conviction for an aggravated felony. As to the information, Criminal Cause 04-393, the defendant, Gerardo Cereceres-Zavala, is committed to the custody of the Bureau of Prisons for a term of 57 months.

The district court never mentioned or ruled expressly on either of Cereceres's motions for downward departure, nor did Cereceres or his counsel object at the sentencing hearing to this omission. This appeal timely followed.

DISCUSSION

Cereceres asserts two grounds that, in his view, require remand to the district court for resentencing. First, he finds error in the district court's failure to attach factual findings to his PSR under Federal Rule of Criminal Procedure 32(i)(3) resolving the controversy whether his Texas conviction was for "a crime of violence." Second, he faults the district court's failure to analyze on the record the statutory factors of 18 U.S.C. § 3553(a) when considering his request for a downward departure. We disagree on both points.

I. Necessity of Rule 32 Findings

Rule 32(i)(3)(B) requires that, at sentencing, a court must, "for any disputed portion of the presentence report or other controverted matter," attach to the PSR findings of fact addressing the controverted matter or determine that such findings are unnecessary "either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." FED.R.CRIM.P. 32(i)(3)(B). "If the district court fails to comply with Rule 32[(i)(3)(B)], we must remand for the court to either make the necessary findings . . . or enter a declaration that it did not take the controverted matters into account in sentencing the defendant." United States v. Pedraza, 27 F.3d 1515, 1530-31 (10th Cir.1994). We review de novo the district court's compliance with the Federal Rules of Criminal Procedure. United States v. Kravchuk, 335 F.3d 1147, 1160 (10th Cir.2003).

Our cases have repeatedly held that a defendant's attempt to controvert legal determinations — or even ultimate factual conclusions — drawn in a PSR "does not implicate" the district court's fact-finding obligations under Rule 32. United States v. Tovar, 27 F.3d 497, 500 (10th Cir.1994). "Rule 32 is not a vehicle for advancing legal challenges to sentencing," and the district court is "not obligated to make Rule 32[(i)(3)(B)] findings" where "the issues the defendant raises . . . do not involve factual inaccuracies in the report but, rather, legal objections to the district court's determination of his sentence." United States v. Furman, 112 F.3d 435, 440 (10th Cir.1997). "Arguments that `challenge[] the district court's application of the guidelines to the facts and not the facts themselves' do not trigger any obligation on the part of the district court to make specific findings." United States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1338, 167 L.Ed.2d 134 (2007) (quoting United States v. Windle, 74 F.3d 997, 1002 (10th Cir.1996)). Rather, "to invoke the district court's Rule 32 factfinding obligation, the defendant is required to make specific allegations of factual inaccuracy." Id. (citing United States v. Murray, 82 F.3d 361, 363 (10th Cir. 1996)).

We note that virtually all of these cases upon which we rely have considered one of two predecessor versions of the current Rule 32(i)(3)(B). E.g., Tovar, 27 F.3d at 499-500 (addressing Rule 32(c)(3)(D), in effect from 1983 to 1994); Pedraza, 27 F.3d at 1530 (same); Furman, 112 F.3d at 439-40 (same); Windle, 74 F.3d at 1002 (considering Rule 32(c)(1), in effect from 1994 to 2002). Our cases applying the version of Rule 32(i)(3)(B) after the final 2002 amendments have continued to state that the rule requires a defendant to point out factual inaccuracies in the presentence report. See, e.g., Rodriguez-Delma, 456 F.3d at 1253; United States v. Harris, 447 F.3d 1300, 1306 (10th Cir.2006); United States v. Wolfe, 435 F.3d 1289, 1299 (10th Cir.2006). None of our cases since the 2002 amendments has acknowledged or analyzed the differences in the language of Rule 32 introduced by these amendments.² It could be argued that the 1994 amendment's elimination of the relevant language from Rule 32(c)(3)(D) equating allegations of factual inaccuracy with "matter[s] controverted" indicated an intention by the Advisory Committee to broaden the scope of objections to a PSR that require the district court to respond by making findings and attaching them to the PSR.

Nevertheless, neither the Advisory Committee commentary to the amendments nor our cases interpreting the subsequent versions of Rule 32 support such an interpretation. See FED.R.CRIM.P. 32 (Advisory Committee's note for 1994 Amendments) ("Subdivision (c) [including the revised subsection (c)(1)] . . . makes no major changes in current practice."); id. (Advisory Committee's note for 2002 Amendments) ("These changes are intended to be stylistic only, except as noted . . . ."); see also Rodriguez-Delma, 456 F.3d at 1253; Windle, 74 F.3d at 1002 (implicitly limiting "matter controverted" under Rule 32(c)(1) to factual challenges and rejecting a challenge under Rule 32(c)(1) to the district court's application of the sentencing guidelines to undisputed facts); United States v. Banda, 87 Fed. Appx. 129, 133 & n. 2 (10th Cir.2004) (unpublished) (noting the intended narrowing effect of the 2002 amendments and determining that both former Rule 32(c)(1) and current Rule 32(i)(3)(B) "impose substantially the same obligations upon the sentencing court"). Our sister circuits have continued to apply the various iterations of Rule 32 to require the defendant to make challenges to factual inaccuracies in the presentence report. See United States v. Duckro, 466...