U.S. v. Mejia-Huerta
| Decision Date | 28 February 2007 |
| Docket Number | No. 06-10099.,No. 06-10142.,No. 06-10211.,No. 06-10004.,No. 06-10082.,No. 05-11391.,05-11391.,06-10004.,06-10082.,06-10099.,06-10142.,06-10211. |
| Citation | 480 F.3d 713 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Omar MEJIA-HUERTA, also known as Omar Huerta-Mejia, also known as Omar Mejia, also known as Omar Huerta, also known as Ivan Mexia-Huerta, also known as Omar Mexia, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Anastacio Pantoja-Arellano, also known as Andy Pantoja, also known as Armando Puentes-Herrera, also known as Pedro Garcia-Rodriguez, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jose Andres Dehuma-Suarez, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Antonio Cruz-Martinez, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis Estrada, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tabrodrick Deshaun Craddock, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Susan B. Cowger (argued), Dallas, TX, Jeffrey Robert Haag, Lubbock, TX, for U.S.
Jerry V. Beard (argued), Sherylynn Ann Kime-Goodwin, Asst. Fed. Pub. Defenders, David E. Sloan, Lubbock, TX, for Defendants-Appellants.
Appeals from the United States District Court for the Northern District of Texas.
Before JONES, Chief Judge, and WIENER, and BARKSDALE, Circuit Judges.
This consolidated appeal involves six defendants, each of whom challenges his sentence. All of the sentences were imposed by the same district judge. Defendant-Appellants Omar Mejia-Huerta, Anastacio Pantoja-Arellano, Jose Andres Dehuma-Suarez, and Antonio Cruz-Martinez were convicted of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. Defendant-Appellant Luis Estrada was convicted of transporting aliens, in violation of 8 U.S.C. § 1324. Defendant-Appellant Tabrodrick Deshaun Craddock was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Of the six, only one — Estrada — was sentenced before United States v Booker,1 but, post-Booker, his case was remanded for re-sentencing. All the sentences were imposed between early December 2005 and early February 2006.
Although nothing in the government's pre-sentencing submissions or the probation officers' Pre-Sentence Investigation Reports ("PSR") recommended or mentioned any grounds for sentencing departures or variances, the district court in each case — without providing pre-sentencing notice of its intent to do so — imposed a non-Guidelines sentence greater than the Guidelines range indicated. Finding Burns v. United States2 and the plain language of Federal Rule of Criminal Procedure 32(h) inapplicable to post-Booker sentences at variance with the Guidelines,3 we conclude that, post-Booker, a sentencing court need not provide pre-sentencing notice of its sua sponte intention to impose a non-Guidelines sentence and affirm the district court in all respects.
Mejia-Huerta was indicted for a single count of illegal re-entry after deportation.4 He pleaded guilty pursuant to a plea agreement. Prior to sentencing, the probation officer prepared a PSR, which calculated Mejia-Huerta's advisory Guidelines range at 9 to 15 months imprisonment.
The district court sentenced Mejia-Huerta to a non-Guidelines sentence of 36 months imprisonment followed by three years supervised released. Before imposing the sentence and after considering the sentencing objectives of 18 U.S.C. § 3553(a), the district court stated that Mejia-Huerta's extensive criminal history, disrespect for the laws of the United States, and threat to public safety warranted an "upward variance."5 Prior to sentencing, neither the district court nor the PSR, or any pre-sentencing submission by the government, indicated the possibility of or reasoning behind the imposition of a non-Guidelines sentence. Mejia-Huerta did not object to the sentence, but timely filed a notice of appeal.
Pantoja-Arellano was indicted for a single count of illegal re-entry after deportation.6 He pleaded guilty pursuant to a plea agreement. Prior to sentencing, the probation officer prepared a PSR, which calculated Pantoja-Arellano's advisory Guidelines range at 33 to 41 months imprisonment.
The district court sentenced Pantoja-Arellano to a non-Guidelines sentence of 96 months imprisonment followed by three years supervised released. Before imposing the sentence and after considering the sentencing objectives of § 3553(a), the district court stated that Pantoja-Arellano's extensive criminal history, disrespect for the laws of the United States, and threat to public safety warranted an "upward variance."7 Prior to sentencing, neither the district court nor the PSR, or any pre-sentencing submission by the government, indicated the possibility of or reasoning behind the imposition of a non-Guidelines sentence.
At the conclusion of the sentencing hearing, Pantoja-Arellano's counsel objected to the upward variance and asked the district court if it preferred to consider the objection by oral argument at present or subsequently in writing. The district court advised Pantoja-Arellano to file a subsequent written objection.
In the post-sentencing written objection, Pantoja-Arellano's counsel complained that the district court erred in failing to give him notice of its intent to make a variance; that the variance did not comply with § 4A1.3 of United States Sentencing Guidelines ("U.S.S.G."); and that the sentence was unreasonable. The district court denied the motion and stated that, even if it were to grant the motion and resentence Pantoja-Arellano, it would impose the same sentence. Pantoja-Arellano timely filed a notice of appeal.
Dehuma-Suarez was indicted for a single count of illegal re-entry after deportation, to which he pleaded guilty pursuant to a plea agreement.8 Prior to sentencing, the probation officer prepared a PSR, which calculated Dehuma-Suarez's advisory Guidelines range at 21 to 27 months imprisonment.
The district court sentenced Dehuma-Suarez to a non-Guidelines sentence of 120 months imprisonment followed by three years supervised released. Before imposing the sentence and after considering the sentencing objectives of § 3553(a), the district court stated that Dehuma-Suarez's extensive criminal history, disrespect for the laws of the United States, and threat to public safety warranted an "upward variance."9 Prior to sentencing, neither the district court nor the PSR, or any pre-sentencing submission by the government, indicated the possibility of or reasoning behind the imposition of a non-Guidelines sentence.
Despite not voicing an objection at the sentencing hearing, Dehuma-Suarez filed a post-sentencing objection to the upward variance later that day, making the same claims as Pantoja-Arellano. In response, the district court denied the motion and stated the same observation that it had made in Pantoja-Arellano's case: it would impose the same sentence, even if Dehuma-Suarez's motion was meritorious. Dehuma-Suarez timely filed a notice of appeal.
Cruz-Martinez was indicted for a single count of illegal re-entry after deportation, and pleaded guilty pursuant to a plea agreement.10 Prior to sentencing, the probation officer prepared a PSR, which calculated Cruz-Martinez's advisory Guidelines range at 21 to 27 months imprisonment.
The district court sentenced Cruz-Martinez to a non-Guidelines sentence of 60 months imprisonment followed by three years supervised released. Before imposing the sentence, the district court stated as it had in the other cases consolidated with this one, that, after considering the sentencing objectives of § 3553(a), Cruz-Martinez's extensive criminal history, disrespect for the laws of the United States, and threat to public safety warranted an "upward variance."11 Prior to sentencing, neither the district court nor the PSR, or any pre-sentencing submission by the government, indicated the possibility of or reasoning behind the imposition of a non-Guidelines sentence.
At the conclusion of the sentencing hearing, Cruz-Martinez's counsel objected to the upward variance and asked the district court if it preferred to consider the objection by oral argument at present or subsequently in writing. The district court advised Cruz-Martinez to file a subsequent written objection.
In the post-sentencing written objection, Cruz-Martinez's counsel objected to the upward variance for the same reasons espoused by Pantoja-Arellano and Dehuma-Suarez. Making the same observations as it had in those cases, the district court denied the motion and stated that it would impose the same sentence, even if Cruz-Martinez's motion was meritorious. Cruz-Martinez timely filed a notice of appeal.
Estrada was indicted for a single count of transporting illegal aliens.12 He pleaded guilty pursuant to a plea agreement and was sentenced pre-Booker. On appeal, we vacated his sentence for Booker error and remanded.13
Prior to resentencing, the probation officer prepared a PSR, which calculated Estrada's advisory Guidelines range at 33 to 41 months imprisonment. The district court lowered Estrada's Guidelines range after sustaining an objection to a two-point enhancement. As a result, Estrada's Guidelines range was 27 to 33 months imprisonment. The district court nevertheless resentenced Estrada to a non-Guidelines sentence of 41 months imprisonment followed by three years supervised release. Before imposing the sentence and after considering the sentencing objectives of § 3553(a), the district court stated that Estrada's disrespect for the laws of the United States and threat to public safety warranted an "upward variance."14 Prior to sentencing, neither the district court nor the PSR, or any pre-sentencing submission by the government, indicated...
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