U.S. v. Sanchez-Juarez, 05-2295.

• Decision Date: 03 May 2006
• Docket Number: No. 05-2295.,05-2295.
• Citation: 446 F.3d 1109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo SANCHEZ-JUAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.3d 1109

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo SANCHEZ-JUAREZ, Defendant-Appellant.

No. 05-2295.

United States Court of Appeals, Tenth Circuit.

May 3, 2006.

Submitted on the briefs: Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, NM, on the briefs for Defendant-Appellant.

David C. Iglesias, United States Attorney, and David N. Williams, Assistant United States Attorney, Albuquerque, NM, on the briefs for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit Judges.

ANDERSON, Circuit Judge.

Lorenzo Sanchez-Juarez pled guilty to one count of illegal reentry by a deported alien after conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2), and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. He was sentenced to 65 months' imprisonment, followed by two years of unsupervised release. He appeals his sentence, and the government challenges the appeal on jurisdictional grounds. For the reasons set forth below, we reject the government's jurisdictional argument and remand for resentencing.¹

BACKGROUND

Mr. Sanchez-Juarez, a citizen of Mexico, was convicted in 2002 of transporting illegal aliens. He was sentenced to 194 days' imprisonment, which amounted to time served, and he was immediately deported.

After returning to the United States, Mr. Sanchez-Juarez was detained by Bureau of Immigration and Customs Enforcement agents in August 2004 at a bus station and was found in possession of five fraudulent temporary permanent resident alien cards together with five Social Security cards. Upon learning of Mr. Sanchez-Juarez's prior deportation, the agents placed him under arrest.

Mr. Sanchez-Juarez pled guilty, and the United States Probation Office prepared a presentence report ("PSR"), calculating a sentencing range based on the United States Sentencing Commission, Guidelines Manual (Nov.2004) ("USSG"). The PSR set the base offense level for count one, the illegal reentry offense, at 8, pursuant to USSG § 2L1.2(a). The PSR applied a 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A)(vii), based on Mr. Sanchez-Juarez's prior deportation in 2002 following an alien smuggling offense. The PSR described this offense, noting that Border Patrol agents had initially observed Mr. Sanchez-Juarez driving a van with passengers on a New Mexico highway and discovered the van's license plates belonged to another vehicle. The description continued:

Agents activated their lights and sirens on their vehicle in an attempt to stop the van, however, [Mr. Sanchez-Juarez] initially continued driving without yielding for approximately six miles down the road. Once the agents made contact with the passengers they learned that all were illegal aliens and citizens from the Republic of Mexico. Further questioning of the passengers revealed that [Mr. Sanchez-Juarez] had offered to take them to the United States if they would give him $900.00 to purchase a vehicle. Five of the illegal aliens reported that they contributed different amounts of money to give to [Mr. Sanchez-Juarez] so he could purchase the vehicle. They crossed into the United States and [Mr. Sanchez-Juarez] met them at a previously arranged location on the United States side of the border.

PSR ¶ 20, R. Vol. II. As indicated, Mr. Sanchez-Juarez was sentenced to 194 days' imprisonment time served for this offense.

The PSR then applied a three-level reduction for acceptance of responsibility, leading to a total offense level of 21. Together with a criminal history category of II, this yielded an advisory Guidelines range of 41 to 51 months' imprisonment. The PSR then noted that Mr. Sanchez-Juarez's conviction on count two, the aggravated identity theft offense, would require the imposition of a two-year term of imprisonment pursuant to 18 U.S.C. § 1028A(b)(2), to run consecutive to any other term of imprisonment. The PSR went on to describe a number of Mr. Sanchez-Juarez's personal characteristics, including his family history, family ties, physical and mental condition, education, and employment history, and concluded that Mr. Sanchez-Juarez "does not appear to have any circumstances that would take him away from the heartland of cases of similarly situated defendants." PSR ¶ 41, R. Vol. II. The PSR made no recommendation regarding what sentence the probation office would consider reasonable.

On August 19, 2005, Mr. Sanchez-Juarez filed a Motion for a Reasonable and Just Sentence and Sentencing Memorandum, in which he argued "for a lower sentence than the advisory guideline imprisonment range." Mem. at 1, R. Vol. I, doc. 22. At the sentencing hearing, held September 7, 2005, the district court indicated that it had not received Mr. Sanchez-Juarez's memorandum but asked Mr. Sanchez-Juarez's counsel to tell him what the memorandum said. Through counsel, Mr. Sanchez-Juarez argued that his prior alien smuggling conviction, for which he had been sentenced to only 194 days time served, "is in sharp contrast to the usual defendant convicted of reentry after deportation[,]. . . [who][t]ypically . . . have convictions for crimes of violence or for repeated serious drug offenses." Tr. of Sentencing at 3, R. Vol. IV. He indicated that a number of courts "in reentry cases. . . have been granting lower levels based on the relatively minor nature of the prior aggravated felony." Id. at 5.

As a second reason for granting a below-Guidelines sentence, Mr. Sanchez-Juarez cited "exceptional family circumstances" in that he had been supporting a wife and two minor children. Id. at 6. Third, he indicated that "a deportable alien faces more severe restrictions in prison than a non-alien citizen." Id. Fourth, he pointed to the sentencing disparity caused by the existence of "fast-track" programs in some jurisdictions, which provide for reduced sentences in illegal reentry cases where a defendant pleads guilty. He concluded that, based on the totality of these circumstances, the appropriate sentence on count one was below the 41- to 51-month Guidelines range.

In opposition, the government argued that a sentence between 41 and 51 months for count one was reasonable because "there is nothing atypical about this defendant's background." Id. at 8. In particular, the government argued that Mr. Sanchez-Juarez's prior alien transporting conviction was squarely addressed by the Guidelines in USSG § 2L1.2(b)(1)(A)(vii), and "[if] they felt that it was important enough to give it [a 16-level enhancement],. . . it's that serious." Tr. of Sentencing at 9, R. Vol. IV. The government also argued that Mr. Sanchez-Juarez's family situation was "not atypical," since many defendants "have a wife who is dependent, who [they are] trying to support, who has kids that the defendant is trying to provide food for." Id.

Following these arguments, the court stated as follows:

The Court has reviewed the [PSR's] factual findings and has considered the sentencing guideline applications.

. . . .

The Court notes [Mr. Sanchez-Juarez] reentered the United States subsequent to an aggravated felony conviction. It is also noted [Mr. Sanchez-Juarez] possessed without lawful authority five Social Security cards in the names of five other persons.

Id. at 9-10. The court then sentenced Mr. Sanchez-Juarez to 41 months on count one, and the mandatory two years on count two, a total of 65 months.

Mr. Sanchez-Juarez appealed, arguing that the district court erred by failing to state reasons for the sentence it imposed and that his sentence was unreasonable in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). The government contests these assertions but argues that, in any case, we have no jurisdiction to hear Mr. Sanchez-Juarez's appeal because his sentence falls within the Guidelines range.

DISCUSSION

I. Subject matter jurisdiction

As an initial matter, we must address the government's assertion that we lack subject matter jurisdiction over this appeal because Mr. Sanchez-Juarez's sentence is within the calculated Guidelines range, and he does not allege that the court erred in its application of the Guidelines. According to the government, "a claim that a sentence within a correctly calculated guideline range is unreasonable is outside the `limited appellate review' authorized by 18 U.S.C. § 3742(a)." Appellee's Br. at 10 (quoting Mistretta v. United States, 488 U.S. 361, 368, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)).

We have since held, however, that we do have jurisdiction to review sentences that fall within the Guidelines range. United States v. Chavez-Diaz, 444 F.3d 1223, 2006 WL 1000811, at *5 (10th Cir. Apr.18, 2006). Because the government did not raise the jurisdictional issue in that case, we respond to the government's arguments here.

Section 3742(a) provides for appellate review "of an otherwise final sentence if the sentence . . . was imposed in violation of law." 18 U.S.C. § 3742(a)(1). Prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), declaring the Guidelines advisory rather than mandatory, courts generally held, based on their interpretation of the phrase "in violation of law," that § 3742(a) "d[id] not authorize a defendant to appeal a sentence where the ground for appeal consists of a claim that the district court abused its discretion in refusing to depart" downward from the Guidelines range. United States v. Ruiz, 536 U.S. 622, 627, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). The government suggests that, because Booker did not modify § 3742(a) in any way, any jurisdictional limitations recognized under that provision must still apply.

To a large extent, the government's argument on this point is simply inapposite. As we recognized in Chavez-Diaz, the pre-Booker rule on which the government relies applied to appellate review of a district court's discretionary decision not to depart...