U.S. v. Valtierra-Rojas

• Decision Date: 09 November 2006
• Docket Number: No. 05-3390.,05-3390.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerardo VALTIERRA-ROJAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

468 F.3d 1235

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo VALTIERRA-ROJAS, Defendant-Appellant.

No. 05-3390.

United States Court of Appeals, Tenth Circuit.

November 9, 2006.

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Gerardo Valtierra-Rojas appeals his sixty-month sentence, which is thirty-three months above the high-end of the sentencing range recommended by the Sentencing Guidelines. We conclude that, although this is a substantial increase, it is reasonable under the compelling facts of this case. We therefore AFFIRM.

BACKGROUND

In 1997, Mr. Valtierra-Rojas was convicted on one count of Involuntary Manslaughter While Driving Under The Influence Of Alcohol for striking and killing a motorcycle driver. See Kan Stat. Ann. § 21-3442. After serving his sentence on this conviction, he was deported to Mexico in April 2000. He illegally re-entered the United States on or around August 1 of that same year.

Mr. Valtierra-Rojas was convicted of several traffic crimes after his re-entry, including two convictions for driving under the influence—one in November 2002 and one in April 2003. As a condition of probation for this second DUI conviction, he attended substance abuse counseling. Mr. Valtierra-Rojas reports having attended treatment for four months, as well as having attended Alcoholics Anonymous meetings. He claims not to have consumed alcohol since April 2003.

In 2005, Mr. Valtierra-Rojas was indicted on one count of illegal re-entry after deportation for an aggravated felony (the 1997 involuntary manslaughter DUI conviction). He moved to dismiss the indictment, arguing that involuntary manslaughter DUI was not an "aggravated felony" under the Supreme Court's recent decision in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), and thus that his deportation was invalid.¹ The district court denied the motion, and thereafter Mr. Valtierra-Rojas entered a guilty plea conditioned upon his right to appeal this denial.

Prior to sentencing, a Presentence Report ("PSR") was prepared. The base offense level for the crime of illegal reentry is eight. United States Sentencing Guidelines ("U.S.S.G.") § 2L1.2(a). The PSR recommended a sixteen-point enhancement to the offense level based on the conclusion that involuntary manslaughter was a "crime of violence" under the Guidelines. Id. § 2L1.2(b)(1)(A)(ii) ("If the defendant previously was deported . . . after . . . a crime of violence . . . increase by 16 levels.").² Mr. Valtierra-Rojas objected to this enhancement, based in part on the Leocal decision. The district court agreed, ruling that "involuntary manslaughter DUI is not a crime of violence for the purposes of Section 2L1.2."³ This ruling meant that Mr. Valtierra-Rojas's advisory Guidelines range fell from 70-87 months (the range with the sixteen-point enhancement) to 21-27 months. However, the court went on to impose a sentence of sixty months, finding:

it is appropriate in this case to impose a sentence outside of the advisory guideline range. Although the defendant's prior manslaughter conviction is not counted as a crime of violence, the court concludes that the defendant's extensive history of alcohol-related problems and his DUI's, and his demonstrated propensity for returning to the United States, show there is substantial reason to believe that the defendant's future conduct may again involve similar acts. The court concludes that this risk — that the defendant may once again re-enter the United States and commit acts giving rise to a substantial risk of serious injury — together with the need for adequate punishment and deterrence, warrants a sentence above the applicable guideline range. Accordingly, after considering all of the circumstances, the court concludes that a sentence of 60 months is appropriate in this case.

The court further finds that a sentence of 60 months would be appropriate, under all of the factors in [18 U.S.C § ]3553(a), even if the court were to find that the defendant was subject to the enhancement for a crime of violence, and that his guideline range was the 70-87 months listed in the PSR. After considering the particular nature of the defendant's prior offense, as well as his personal history, the court concludes that a sentence of 60 months is appropriate. Such a sentence reflects the serious nature of the defendant's history, but also takes into account the unintentional nature of the prior acts and the particular circumstances surrounding that accident.

Mr. Valtierra-Rojas timely appealed.

DISCUSSION

I.

Mr. Valtierra-Rojas's primary argument on appeal is that the district court erred in imposing a sentence thirty-three months higher than the high-end of the advisory Guidelines range. In United States v. Kristl, 437 F.3d 1050 (10th Cir.2006), we announced a two-step approach for reviewing sentences imposed post-Booker.⁴

First, we review, if challenged, whether the district court correctly calculated the defendant's guideline sentence, reviewing the district court's legal conclusions de novo and factual findings for clear error. Second, if the district court correctly determined the guideline sentence, then we review the sentence for reasonableness . . . .

United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir.2006) (citing Kristl, 437 F.3d at 1054-55). The parties do not challenge the district court's calculations, thus we consider only whether the sentence imposed was "reasonable." "Sentencing decisions must be reversed when a sentence is unreasonable considering the factors enumerated in 18 U.S.C. § 3553(a)." United States v. Cage, 451 F.3d 585, 591 (10th Cir.2006).⁵

A.

As a threshold matter, we consider Mr. Valtierra-Rojas's argument that sentences falling outside of the properly calculated Guidelines range are presumptively un reasonable and that "the Government must rebut the presumption and demonstrate the reasonableness of the sentence." Mr. Valtierra-Rojas does not cite, nor have we found, any legal authority to support this claim. As the Fourth Circuit reasoned in United States v. Moreland, 437 F.3d 424 (4th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2054, 164 L.Ed.2d 804 (2006),

[a] sentence that falls within the properly calculated advisory guideline range is entitled to a rebuttable presumption of reasonableness. This does not mean, however, that a variance sentence is presumptively unreasonable. Such a ruling would transform an "effectively advisory" system . . . into an effectively mandatory one.

Id. at 433 (citation omitted); see also United States v. Howard 454 F.3d 700, 703 (7th Cir.2006) ("Although a sentence outside the range does not enjoy the presumption of reasonableness that one within the range does, it does not warrant a presumption of unreasonableness."); United States v. Matheny, 450 F.3d 633, 642 (6th Cir. 2006) ("[T]his court's holding that sentences within the advisory guideline range are presumptively reasonable does not mean that sentences outside of that range are presumptively unreasonable."); United States v. Myers, 439 F.3d 415, 417 (8th Cir.2006) ("We have determined that a sentence imposed within the guidelines range is presumptively reasonable. While it does not follow that a sentence outside the guidelines range is unreasonable, we review a district court's decision to depart from the appropriate guidelines range for abuse of discretion."). We join these circuits in holding that a sentence outside of the properly calculated Guidelines range is not presumptively unreasonable.

B.

We turn, then, to the key issue— whether Mr. Valtierra-Rojas's sentence is reasonable. Recently, this court elaborated on our review of sentences outside of the properly calculated advisory Guidelines range. In Cage, we noted that "although the Guidelines are listed as only one of the § 3553(a) factors, they are not just one factor among many. Instead, the Guidelines are an expression of popular political will about sentencing that is entitled to due consideration when we determine reasonableness." 451 F.3d at 593.⁶ We therefore "reject[ed] the concept that we, as judges, should determine `reasonableness' under § 3553(a) without reference to the fact that the Guidelines represent a critical advisory aspect of the § 3553(a) factors." Id. at 594.⁷ Instead, we explained that we would look to the "discrepancy between the advisory guidelines range and the actual sentence" to determine whether that sentence is reasonable. Id. Thus, "[t]he farther the [trial] court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be." Moreland, 437 F.3d at 434 (cited in Cage, 451 F.3d at 594); see also Cage, 451 F.3d at 594 ("Because this case presents such an extreme divergence . . . it should be considered reasonable only under dramatic facts."); United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005) ("[T]he farther the judge's sentence departs from the guidelines sentence (in either direction-that of greater severity, or that of greater lenity), the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.").

1.

Taking guidance from Cage, we first consider where along this sliding scale the present sentence falls. Looking to only the percentage of the divergence— 122% above the high end of the range-the sentence might seem extreme. See United States v. Kendall, 446 F.3d 782, 784-85 (8th Cir.2006) (calling 155% increase "extraordinary"). However, the percentage of divergence, alone, is not a sufficient metric; the absolute number of months above...