U.S. v. Romero

• Decision Date: 29 June 2007
• Docket Number: No. 06-2052.,06-2052.
• Citation: 491 F.3d 1173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel ROMERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

491 F.3d 1173

UNITED STATES of America, Plaintiff-Appellee, v. Daniel ROMERO, Defendant-Appellant.

No. 06-2052.

United States Court of Appeals, Tenth Circuit.

June 29, 2007.

Leon Schydlower, El Paso, TX, for Defendant-Appellant.

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

Before BRISCOE, EBEL, and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.

Defendant Daniel Romero appeals the fifty-seven month sentence imposed by the district court following his plea of guilty to one count of reentry of a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2) and (b)(2). Romero argues that the district court erred in failing to address his request for a below-Guidelines sentence based on cultural assimilation and in failing adequately to ascertain that he, as well as his attorney, had been provided an opportunity to review the presentence investigation report. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm Romero's sentence.

I. BACKGROUND

On July 2, 2001, Romero, a Mexican national, pled guilty in New Mexico state court to the offenses of armed robbery and conspiracy to commit armed robbery. Romero was subsequently deported to Mexico on July 24, 2003. On April 27, 2005, Romero was taken into custody by United States Border Patrol agents in or near Hobbs, New Mexico. During processing, Romero admitted that he had illegally reentered the United States near Nogales, Arizona, on or about January 27, 2004.

Romero was subsequently indicted by a federal grand jury on one count of illegal reentry of a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2) and (b)(2). Romero pled guilty to the charge, and a presentence investigation report (PSR) was prepared and disclosed to the parties. The PSR calculated a total offense level of twenty-one, arrived at by imposing a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a), adding sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Romero was previously deported following a conviction for a crime of violence, and subtracting three levels pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility. Combining this total offense level with Romero's criminal history category of IV, the PSR recommended a guideline range of 57 to 71 months' imprisonment. Romero did not file any objections to the PSR.

At the sentencing hearing, the district court first asked defense counsel whether he "had an opportunity to review the presentence report with [his] client," to which defense counsel responded "Yes, we have, Your Honor." ROA, Vol. IV at 2. The court then asked if there was anything defense counsel wanted to say on Romero's behalf. Defense counsel stated in response:

Your Honor, a year and a half ago I would have filed a motion for a downward departure on cultural assimilation for this client, fully cognizant of what is his robust criminal history, and I would acknowledge that.

But he was brought here when he was eight months of age. He knows no other home. He has already been deported once; hence, the 1326.

He's going to be deported to a country he doesn't know, away from family and friends. And again, I make this request fully cognizant of what is a checkered history.

But his guideline range is 57 to 71 months, and I wonder if the Court would exercise its discretion, now that the guidelines are advisory, to lower that to one step lower, which would be 46 months if at the low end.

Id. at 2-3. The district court then announced that it would impose a sentence falling within the Guidelines range:

The Court has reviewed the presentence report factual findings and has considered the sentencing guideline applications and the factors set forth in 18 United States Code Section 3553(a)(1) through (7).

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 after having been previously deported subsequent to an aggravated felony conviction.

As to the redacted indictment, Criminal Cause 05-1664, the defendant, Daniel Romero, is committed to the custody of the Bureau of Prisons for a term of 57 months.

Id. at 6-7. Neither Romero nor his counsel objected after the district court's imposition of sentence. This timely appeal followed.

II. DISCUSSION

1. Procedural Reasonableness under 18 U.S.C. § 3553(c)

Romero first argues that his sentence was unreasonable under 18 U.S.C. § 3553(c) because the district court failed to explain its reason for rejecting his cultural assimilation argument for a below-Guidelines sentence.¹ Although our reasonableness review after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), "encompasses both the reasonableness of the length of the sentence, as well as the method by which the sentence was calculated," United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006) (per curiam) (italics omitted), Romero here challenges only the method by which the district court calculated his sentence; he makes no argument that the length of the sentence imposed was unreasonable. Thus, he alleges only procedural unreasonableness.²

A. Standard of Review

It is clear from the record that, although Romero argued for a sentence below the Guidelines range at his sentencing hearing, he did not raise the procedural objection he now asserts after the district court imposed sentence. Our decisions have created some confusion as to the correct standard of review for an unpreserved procedural objection to the district court's failure to properly explain a sentence under 18 U.S.C. §§ 3553(a) and (c). In United States v. Lopez-Flores, we addressed this issue directly and held that, because the defendant-appellant did not object to the district court's lack of explanation after it announced his sentence, "plain-error review is appropriate." 444 F.3d 1218, 1221 (10th Cir.2006). However, in Lopez-Flores, the defendant-appellant also failed to raise before the district court any substantive argument that the § 3553(a) factors merited a below-Guidelines sentence, raising some question as to whether this omission affected our determination that his procedural objection went unpreserved.

Further complications arose when, less than a month after Lopez-Flores was issued, we decided United States v. Sanchez-Juarez, in which we reviewed the same procedural question — whether the district court adequately explained the reasons for its within-Guidelines sentence under the § 3553(a) factors — without addressing the defendant-appellant's apparent failure to object on procedural grounds to the court's pronouncement of sentence. 446 F.3d 1109, 1114-15 (10th Cir.2006). The facts of that case differed from Lopez-Flores in that the defendant-appellant had argued for a below-Guidelines sentence prior to the district court's imposition of a within-Guidelines sentence. Id. at 1111-12. Proceeding directly to the substantive merits of the appeal, we reversed and remanded Sanchez-Juarez's sentence because he had raised a non-frivolous argument for a below-Guidelines sentence, invoking the § 3553(a) factors, and the district court gave no indication that it had considered this argument or explanation of its reasons for rejecting it. Id. at 1117.

Subsequent to Sanchez-Juarez, several of our cases have followed its approach and considered the merits of procedural arguments under § 3553(a) and (c) without addressing whether sufficient objection had been raised or preserved at the district court. See United States v. Branson, 463 F.3d 1110, 1112 (10th Cir.2006); United States v. Paredes, 461 F.3d 1190, 1194 (10th Cir.2006); United States v. Gillespie, 452 F.3d 1183, 1192 (10th Cir.2006). On the other hand, we have also continued to cite Lopez-Flores for the proposition that "when the defendant fails to object to the method by which the sentence was determined, such as a claim that the Guidelines were misapplied or that the court did not adequately explain the sentence with reference to the factors set forth in 18 U.S.C. § 3553(a), we review only for plain error." United States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir.2006); see also United States v. Jarrillo-Luna, 478 F.3d 1226, 1229 (10th Cir.2007); United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.2007).

In order to alleviate this confusion, we today clarify that Lopez-Flores controls our standard of review for unpreserved challenges to the method by which the district court arrived at a sentence, including arguments that the sentencing court failed to explain adequately the sentence imposed under the statutory factors in 18 U.S.C. § 3553(a). Our conviction that the requirement of contemporaneous objection to procedural errors is consistent with our precedent and represents a reasonable burden on defendants rests on several grounds.

First, the principle of stare decisis requires that we accord precedential value to Lopez-Flores as to the particular issues that it actually decided. See United Food & Commercial Workers Union, Local 1564 v. Albertson's, Inc., 207 F.3d 1193, 1199 (10th Cir.2000). Lopez-Flores explicitly considered the requirement of a procedural objection in the court below and held that, while a defendant need not object after pronouncement of sentence based on substantive reasonableness, i.e. the length of that sentence, he must object to any procedural flaws or receive, on appeal, only plain error review. 444 F.3d at 1221. Sanchez-Juarez, on the other hand, did not address the proper standard of review for an unpreserved procedural objection but simply applied reasonableness review. 446 F.3d at 1114...