United States v. Chavarria-Ortiz

• Decision Date: 07 July 2016
• Docket Number: No. 15-3031,15-3031
• Citation: 828 F.3d 668
• Parties: United States of America, Plaintiff–Appellee, v. Santos Chavarria–Ortiz, also known as Wilmer Santiago Suazo Escobar, also known as Santos N. Chavarria, also known as Noe Ortiz, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

828 F.3d 668

United States of America, Plaintiff–Appellee

v.Santos Chavarria–Ortiz, also known as Wilmer Santiago Suazo Escobar, also known as Santos N. Chavarria, also known as Noe Ortiz, Defendant–Appellant.

No. 15-3031

United States Court of Appeals, Eighth Circuit.

Submitted: May 18, 2016

Filed: July 7, 2016

Counsel who represented the appellant was Reynaldo A. Aligada, AFPD, of Minneapolis, MN.

Counsel who represented the appellee was Ryan R. Wood, Special Assistant U.S. Attorney, of Minneapolis, MN.

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

COLLOTON, Circuit Judge.

Santos Chavarria–Ortiz pleaded guilty to one count of illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court¹ determined an advisory sentencing guideline range of 70 to 87 months' imprisonment, rejected Chavarria–Ortiz's request for a downward variance to 36 months, and sentenced him within the advisory range to a term of 84 months' imprisonment, followed by three years of supervised release.

Chavarria–Ortiz contends that the district court committed significant procedural error by failing to give an adequate explanation for the sentence. The Supreme Court explained in Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), that a district court, after settling on the appropriate sentence, “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” See Rita v. United States , 551 U.S. 338, 351, 356–57, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

Chavarria–Ortiz failed to object at sentencing to the adequacy of the district court's explanation, and the government argues that he thereby waived any claim of procedural error. The government cites a statement in United States v. Maxwell , 778 F.3d 719, 734 (8th Cir. 2015), that “[w]e will not sustain a procedural challenge to the district court's discussion of the 18 U.S.C. § 3553(a) sentencing factors by a defendant who did not object to the adequacy of the court's explanation at sentencing.” In Maxwell, however, the court conducted plain-error review of any challenges to the district court's explanation, id . at 734–35, 736, so the quoted sentence is dictum insofar as it suggested that a mere failure to object is a waiver.

A waiver, of course, is “the intentional relinquishment or abandonment of a known right,” whereas forfeiture is “the failure to make the timely assertion of a right.” United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation omitted). Waiver precludes appellate review, while forfeiture limits consideration to a rigorous plain-error standard. Fed. R. Crim. P. 52(b) ; Olano , 507 U.S. at 733–34, 113 S.Ct. 1770. To show a waiver, the government must point to action by the defendant or defense counsel that establishes an intentional relinquishment or abandonment of the right. E.g. , United States v. Harrison , 393 F.3d 805, 807–08 (8th Cir. 2005) ; United States v. Thompson , 289 F.3d 524, 526 (8th Cir. 2002). Classifying a failure to object as a waiver when a right is well known and regularly involved would largely collapse the distinction between waiver and forfeiture. Plain-error review often addresses the forfeiture of objections asserting familiar rights. See, e.g. , Molina – Martinez v. United States , ––– U.S. ––––, 136 S.Ct. 1338, 1344–45, 194 L.Ed.2d 444 (2016) (reviewing forfeited claim that the district court miscalculated criminal history points under the sentencing guidelines); Puckett v. United States , 556 U.S. 129, 136, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (reviewing forfeited claim that the government violated a plea agreement); United States v. Cotton , 535 U.S. 625, 631–34, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (reviewing forfeited claim that the indictment omitted a fact that increased the statutory maximum sentence); United States v. Vonn , 535 U.S. 55, 62–63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that plain-error review applies to forfeited claim that a district court varied from Rule 11 during a guilty plea colloquy).

Our cases routinely have conducted plain-error review of claims that a district court failed adequately to explain a chosen sentence. See, e.g. , United States v. Fry , 792 F.3d 884, 891–92 (8th Cir. 2015) ; United States v. Keatings , 787 F.3d 1197, 1202–03 (8th Cir. 2015) ; United States v. Butler , 743 F.3d 645, 647 (8th Cir. 2014) ; United States v. Rice , 699 F.3d 1043, 1049–50 (8th Cir. 2012). We follow that course here.

As a practical matter, however, a forfeited challenge to the adequacy of a district court's explanation for a sentence within an advisory guideline range faces long odds. In Rita, the Supreme Court deemed adequate a district judge's cursory explanation that he was unable to find the advisory range inappropriate, that the public needed to be protected, and that a sentence at the bottom of the advisory range was “appropriate.” 551 U.S. at 345, 127 S.Ct. 2456. The Court explained that where a matter is conceptually simple, and the record makes clear that the sentencing judge considered the evidence and arguments, the law does not require the judge to write or say more. Id . at 359, 127 S.Ct. 2456. When a defendant does not speak up at sentencing and request an explanation for some aspect of the district court's decision, he can hardly expect a sympathetic reaction (or a lengthy response) to his untimely complaint that the judge should have delivered a more fulsome statement. And an appellant raising a forfeited objection to the court's statement of reasons confronts a daunting task in convincing a court of appeals that a more detailed explanation would have resulted in a lighter sentence. See Olano , 507 U.S. at 734, 113 S.Ct. 1770.

In this case, the district court heard from both parties. Defense counsel sought a below-guidelines sentence of 36 months, explaining that Chavarria–Ortiz originally had followed his mother to the United States as a teenager and reentered the country most recently to earn money for his son in Mexico. Counsel suggested that a long sentence was unnecessary to deter...