U.S. v. Herrera-Zuniga

• Decision Date: 08 July 2009
• Docket Number: No. 08-1540.,08-1540.
• Citation: 571 F.3d 568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonardo HERRERA-ZUNIGA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

571 F.3d 568

UNITED STATES of America, Plaintiff-Appellee, v. Leonardo HERRERA-ZUNIGA, Defendant-Appellant.

No. 08-1540.

United States Court of Appeals, Sixth Circuit.

Argued: April 23, 2009.

Decided and Filed: July 8, 2009.

ARGUED: Richard D. Stroba, Office of the Federal Public Defender, Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard D. Stroba, Office of the Federal Public Defender, Grand Rapids, Michigan, for Appellant. Donald Daniels, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: COLE and CLAY, Circuit Judges; CLELAND, District Judge.^*

OPINION

CLAY, Circuit Judge.

After Defendant, Leonardo Herrera-Zuniga ("Herrera-Zuniga"), pleaded guilty to illegally reentering the country after previously being removed subsequent to a felony conviction, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(1), the district court sentenced him to 48 months imprisonment, a term significantly above the 24-to-30-months sentencing range recommended under the Sentencing Guidelines. Because Herrera-Zuniga was on supervised release from a prior felony conviction at the time of his arrest, the court also imposed a 12-month sentence for the supervised release violation, ordering the sentences to run concurrently. On appeal, Herrera-Zuniga challenges the procedural and substantive reasonableness of his 48-month sentence. For the reasons set forth below, we hereby AFFIRM the sentence imposed by the district court.

I.

On September 2, 2007, authorities stopped Herrera-Zuniga's vehicle because of "headlight and license plates violations." After Herrera-Zuniga failed field sobriety tests, officers placed him under arrest and transported him to the Oceana County Jail in Hart, Michigan. The Oceana County Sheriff's Department then contacted Immigration and Customs Enforcement ("ICE") and determined that Herrera-Zuniga was illegally present in the United States.

According to the presentence investigation report ("PSIR"), Herrera-Zuniga's 2007 arrest was but the latest incident in a series of encounters with authorities over the last ten years involving nearly identical conduct. In 1998, Herrera-Zuniga was arrested for being a minor in possession of alcohol and was subsequently granted a voluntary return to Mexico. In 2000, Herrera-Zuniga was arrested and convicted for operating a vehicle while under the influence of alcohol and was subsequently deported to Mexico. And in 2006, Herrera-Zuniga once again was arrested and convicted for illegally reentering the United States and again was deported to Mexico.

In addition to these three incidents, each of which resulted in Herrera-Zuniga being removed from the United States, the PSIR also identifies a number of other alcohol-related arrests and convictions that apparently did not result in Herrera-Zuniga's deportation. In 2002, Herrera-Zuniga was arrested and charged under the name of Jose Jesus River-Lucio for operating a vehicle while intoxicated. A bench warrant was issued in that case after he failed to appear on the charge, but the case was dismissed nolle prosequi after a subsequent arrest and conviction. In 2003, Herrera-Zuniga again was arrested and pleaded guilty to operating a vehicle while intoxicated. After he failed to complete an alcohol treatment program while in prison, Herrera-Zuniga was ordered to appear for an assessment for an outpatient treatment program. When he failed to appear for the scheduled assessment, another bench warrant was issued for his arrest.

Each of these incidents involved conduct strikingly similar to Herrera-Zuniga's most recent arrest. In each case, Herrera-Zuniga was present in the United States illegally, and, in most cases, he was arrested for driving a vehicle while under the influence of alcohol. All told, the PSIR reports that, prior to his 2007 arrest, Herrera-Zuniga had been sentenced to terms of 30 days, one year (with six months suspended), 90 days, 30 days, nine months, 11 months, and one year. He also has been removed from the country on three separate occasions.

On January 9, 2008, pursuant to a written plea agreement, Herrera-Zuniga entered a plea of guilty. Based on his prior offenses, the PSIR calculated Herrera-Zuniga's criminal history score to be 15,¹ placing him in category VI, the highest criminal history category available under the Guidelines. Taken together with a total offense level of 10,² the PSIR calculated the recommended sentencing range to be 24 to 30 months. Herrera-Zuniga did not object to these calculations.

The PSIR also noted several factors that potentially warranted an upward departure under U.S.S.G. § 4A1.3(a),³ including that Herrera-Zuniga's criminal history score "appears to substantially under-represent the seriousness of Mr. Herrera-Zuniga's criminal history or the likelihood that he will commit future crimes." PSIR ¶ 54. After receiving the PSIR, the court issued a "Notice of Intent to Upward Depart Under the Guidelines." In that Notice, the court agreed that the "calculation of guideline sentencing does not adequately reflect the Defendant's Criminal History Level," and thus advised the parties that it was "considering ... an upward departure from the guidelines to more accurately reflect the Criminal History Level of the Defendant." ROA vol. 1 at 15.

Two days later, counsel for Herrera-Zuniga, Assistant Federal Public Defender Richard D. Stroba ("Stroba"), submitted a sentencing memorandum on Herrera-Zuniga's behalf. ROA vol. 1 at 16-21. That memorandum briefly noted Herrera-Zuniga's acceptance of responsibility but offered no further argument under any of the relevant 18 U.S.C. § 3553(a) factors. For instance, the memorandum did not attempt to explain that Herrera-Zuniga claimed to have returned to the United States to earn money to support his family back in Mexico, including his "sick" daughter, despite the fact that the PSIR noted this issue on multiple occasions. See PSIR ¶¶ 12, 45-46. Nor did the sentencing memorandum respond to the suggestion that Herrera-Zuniga's criminal history score under-represented the seriousness of his past criminal conduct. Instead, defense counsel asked only that the court "give due deference to the parsimony principle of the sentencing statute." ROA vol. 1 at 17.

More troubling than what the memorandum did not say, however, is what it did say:

In lieu of further commentary or a likely useless review of the 18 U.S.C. § 3553(a) factors, counsel for the Defendant simply refers the Court to the attached letter sent to Mr. Herrera-Zuniga this past week. For better or worse, it sets forth the position the Defendant has placed himself in before this Court and society.

ROA vol. 1 at 16-17. The letter to which the sentencing memorandum refers was sent on April 2, 2008 by Stroba to Herrera-Zuniga. Id. at 19-21. Although the letter expressly states that it may contain "Attorney/Client Privileged Information," id. at 19, Stroba nevertheless attached the letter to the sentencing memorandum and submitted it to the court. Given the tenor and substance of the letter, we do not understand how Stroba could have felt that it was in his client's interests to submit it to the court. In fact, the letter reads more like an argument by the prosecutor in favor of a harsher sentence than it does an argument by the defense:

My duty now is to try to write a sentencing memorandum on your behalf. I knew this day was coming and I knew it would be a difficult task, but for the first time in my two and a half years of service to the Defenders Office, I must admit that I am completely stymied (i.e., without a place to go). There is not one thing about your situation that lends itself to a positive thought, save that you have a good work history.

You are clearly an alcoholic with either no ability or desire to quit drinking, for, surely if you wanted to or could, you would at least do so as a means of staying in this country.... At some point either you will stop consuming alcohol on your own, or you will develop cirrhosis of the liver and you will die a slow, painful, horrible death. And then you will be done drinking for sure.

The problem is that for the rest of society, in the meantime, before you stop drinking, one way or another, you will continue to drink alcohol to excess and then drive motor vehicles. You have five convictions for drunk driving. By the grace of God, you have not been involved in a serious accident. Unfortunately, it is only by that divine intervention that that is the case. And every time you take the wheel either impaired or completely inebriated, you defy the odds. It is only a matter of time before you kill or seriously injure yourself (perhaps that is your goal). The concern for the court, I, and the rest of society is that you are more likely to kill, maim, or injure some innocent driver or passenger in another vehicle or a bystander. There would be no recovery for that victim or family. There would be no mercy for you.

And then there is the overriding problem to all of this. You are not supposed to be in this country in any event. I am not talking about just coming here without documentation to earn a living that you could not earn in Mexico. I am talking about the ordered deportation of you on at least two occasions.

Id. at 19-20 (emphasis added). If this gratuitous admonishment of his client were not enough, Stroba then continues:

I am truly at a loss to figure out how to explain to Chief Judge Bell that somehow or in some manner, he should not treat you most severely. Perhaps before the 11th of April you will have formulated some statement or some explanation (that has completely escaped me) in the face of these facts. Your action returning to the U.S. in 2007 was wrong. Your drinking and driving upon that return (and to return to this district as well) is just plain stupid.

I am sorry to be so blunt, but I have to...