U.S. v. Garcia-Quintanilla, 08-50400.

• Decision Date: 07 July 2009
• Docket Number: No. 08-50400.,08-50400.
• Citation: 574 F.3d 295
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose GARCIA-QUINTANILLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

574 F.3d 295

UNITED STATES of America, Plaintiff-Appellee, v. Jose GARCIA-QUINTANILLA, Defendant-Appellant.

No. 08-50400.

United States Court of Appeals, Fifth Circuit.

July 7, 2009.

Joseph H. Gay, Jr. Asst. U.S. Atty., Diane D. Kirstein (argued), San Antonio, TX, for U.S.

Judy Fulmer Madewell (argued), Henry Joseph Bemporad, Fed. Pub. Defenders, San Antonio, TX, for Defendant-Appellant.

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

Before HIGGINBOTHAM, GARZA and PRADO, Circuit Judges.

PRADO, Circuit Judge:

An immigration judge ordered Appellant Jose Garcia-Quintanilla, a Salvadoran native and citizen, removed to El Salvador. As a necessary step in his removal, Garcia-Quintanilla needed to interview with Salvadoran officials. He refused, however, to participate in such an interview, insisting that he would rather spend his life in a United States prison than return to El Salvador. As a result, Garcia-Quintanilla was convicted of failing to depart under 8 U.S.C. § 1253.

In light of Garcia-Quintanilla's insistence that he would never cooperate in his removal, the district court fashioned a unique sentence. The court sentenced Garcia-Quintanilla to the statutory maximum of four years' imprisonment, a sentence eight times greater than his Guidelines-recommended maximum of six months. The district court also reserved the right to later suspend Garcia-Quintanilla's sentence—even after the sentence had begun—if he decided to cooperate in his removal. Garcia-Quintanilla now appeals this sentence.

We must decide whether § 1253(a)(3) authorizes the suspension of a failure-to-depart sentence after the sentence has begun. We hold that it does not, as we find nothing in the statute indicating that Congress intended to give courts this unique suspension power. Because the district court sentenced Garcia-Quintanilla to the statutory maximum under the mistaken belief that it could later suspend this sentence, we vacate his sentence and remand for resentencing.

I. BACKGROUND

Born in El Salvador, Garcia-Quintanilla entered the United States in 1987 at the age of sixteen. Almost twenty years later, immigration authorities arrested Garcia-Quintanilla, and an immigration judge ordered him removed to El Salvador. Before he could be removed, Garcia-Quintanilla needed to speak with officials in the Salvadoran consulate. Without this interview, the consulate would not issue Garcia-Quintanilla the travel documents necessary to complete his removal. Apparently believing that he was legally in the country, Garcia-Quintanilla refused to participate in this interview. Immigration authorities attempted to explain to him the necessity of speaking with consular officials as well as the potential criminal consequences of his actions. Still, Garcia-Quintanilla persisted in his refusal.

The Government then charged Garcia-Quintanilla with willfully failing and refusing to make a timely application for necessary travel documents in violation of 8 U.S.C. § 1253(a)(1)(B). Up until the eve of trial, the Government offered to drop the charges if Garcia-Quintanilla would cooperate in his removal. Garcia-Quintanilla refused these offers, and a jury later found him guilty.

With an offense level of eight and no criminal history, Garcia-Quintanilla's Guidelines-recommended sentence was zero-to-six months' imprisonment. His presentence report gave no reason to deviate from this range. The Government moved for an upward variance, however, due to what it characterized as Garcia-Quintanilla's blatant disregard for immigration laws. It asked the district court to impose the statutory maximum of four years, suggesting that such a sentence would deter Garcia-Quintanilla from persisting in his refusal to speak with the Salvadoran consulate. Acknowledging the harshness of such an extreme variance, the Government justified the sentence by suggesting that § 1253(a)(3)—the statute's suspension provision—would mitigate this harshness. As discussed further below, § 1253(a)(3) permits a district court to suspend a failure-to-depart sentence and includes a non-exhaustive list of considerations for determining whether suspension is proper. The Government focused on § 1253(a)(3)(D), which requires consideration of "the character of the efforts made by [the] alien himself ... to expedite the alien's departure from the United States." According to the government, § 1253(a)(3)(D) authorized suspension of Garcia-Quintanilla's sentence if he ever decided to cooperate in his removal and interview with the Salvadoran consulate. In the Government's words, Garcia-Quintanilla would "hold the keys to his own cell."

At sentencing, the district court expressed concern over Garcia-Quintanilla's refusal to cooperate in his removal. The court stated,

My concern ... is he'll serve, let's say, if I go with the six months at the top of the Guidelines, and the range is six months, and then we go through this whole charade over again, affording him his day in court, affording him his jury trial. And I guess the—the Guidelines would change, in terms of criminal history, certainly, with this. But is it a smart use of resources to continue to prosecute it piecemeal when, in fact, one can accomplish the very thing that could be of the best benefit to [Garcia-Quintanilla], should he decide to simply comply with the process and be removed pursuant to the order of the immigration judge?

The district court attempted to fashion a sentence that would either incentivize Garcia-Quintanilla to cooperate in his removal or mitigate the cost of repeatedly trying him for nearly-identical offenses. The court found the tool for such a sentence in § 1253(a)(3), agreeing with the Government that § 1253(a)(3)(D) allowed the suspension of Garcia-Quintanilla's sentence were he to ever cooperate. Of particular importance, the district court believed that it could use this suspension power even after the sentence of imprisonment began.

Thus, instead of the Guidelines-recommended sentence of zero-to-six months, the district court sentenced Garcia-Quintanilla to the statutory maximum and reserved the right to suspend that sentence. Were Garcia-Quintanilla to decide to cooperate, the district court would suspend his sentence and release Garcia-Quintanilla to the custody of immigration authorities. This could apparently occur at any time after the sentence began; Garcia-Quintanilla could leave prison after six months— indeed, after six days—and the upward variance would thus be irrelevant. If, on the other hand, he persisted in his refusal, he would remain imprisoned for the full four years, maximizing the time between trials.

II. STANDARD OF REVIEW

Garcia-Quintanilla argues only that the district court erred in holding that § 1253(a)(3) permitted suspension of his sentence after he began serving it. The Government contends that Garcia-Quintanilla did not raise this issue below, which would require us to review the sentence for plain error. We agree with the Government. Although Garcia-Quintanilla made a general objection to the legality of his sentence, this objection was insufficient to place the district court on notice of the issue he now raises.

We therefore review only for plain error. Under this standard of review, the defendant must show (1) an error, (2) that the error was clear, and (3) that the error affected the defendant's substantial rights. See Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If the defendant establishes these three requirements, we may exercise our discretion to address that error so long as it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id.

As to the underlying error, we review Garcia-Quintanilla's sentence for reasonableness, asking whether the district court abused its discretion. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). A district court abuses its discretion if it bases a decision on an error of law. United States v. Castillo, 430 F.3d 230, 238 (5th Cir.2005). We review issues of law, including statutory interpretation, de novo. United States v. Jackson, 559 F.3d 368, 370 (5th Cir.2009); United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir.2003).

III. DISCUSSION

In sentencing Garcia-Quintanilla, the district court may have found a reasonable and practical method for resolving a legitimate issue. But this approach has one potential pitfall: as Garcia-Quintanilla asserts, Congress did not intend for § 1253(a)(3) to authorize the suspension of a failure-to-depart sentence after that sentence has begun. The Government retorts with two theories. It first reads § 1253(a)(3) to expressly allow district courts to suspend a failure-to-depart sentence at any time. Under this reading, a failure-to-depart sentence itself can potentially include conditions of suspension. Alternatively, the Government directs us to 18 U.S.C. § 3582(c)(1)(B), which allows district courts to modify a term of imprisonment once it has been imposed when "expressly permitted by statute." The Government contends that § 1253(a)(3) is one of the statutes that § 3582(c)(1)(B) contemplates, i.e., § 1253(a)(3) expressly permits district courts to modify a term of imprisonment. We address each argument in turn.

A. Section 1253(a)(3)

The Government first contends that § 1253(a)(3) expressly authorizes district courts to suspend a failure-to-depart sentence. As a general matter, this is probably correct; the statute clearly contemplates suspension in some circumstances.¹ But the question in this appeal is when that power to suspend exists and when it does not.

The Government sees no temporal limit in § 1253(a)(3), essentially reading the statute as authorizing a district court to include terms of suspension as part of the initial sentence. Under this reading, a...