United States v. Chavez-Morales, 17-2124

• Decision Date: 03 July 2018
• Docket Number: No. 17-2124,17-2124
• Citation: 894 F.3d 1206
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Manuel CHAVEZ–MORALES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

894 F.3d 1206

UNITED STATES of America, Plaintiff–Appellee,

v.Manuel CHAVEZ–MORALES, Defendant–Appellant.

No. 17-2124

United States Court of Appeals, Tenth Circuit.

FILED July 3, 2018

John V. Butcher, Assistant Federal Public Defender (Michael A. Keefe, Assistant Federal Public Defender on the briefs), Albuquerque, New Mexico, for Defendant–Appellant.

Paul J. Mysliwiec, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff–Appellee.

Before MATHESON, McKAY, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

Manuel Chavez-Morales appeared before the district court following his fifth conviction for an illegal reentry offense. At sentencing, Mr. Chavez-Morales argued that higher wages in the United States motivated his decision to illegally reenter the United States. Focusing heavily on Mr. Chavez-Morales’s criminal history and noting that none of the earlier sentences deterred Mr. Chavez-Morales from reoffending, the district court imposed an upward variant sentence of thirty-six months' imprisonment. The district court also imposed a three-year term of supervised release.¹

On appeal, Mr. Chavez-Morales challenges the procedural reasonableness of his term of imprisonment. Specifically, he contends the district court did not meaningfully consider his argument that economic opportunities motivated his decision to illegally reenter the United States and thereby mitigated the seriousness of his offense. Mr. Chavez-Morales separately contends the district court committed plain error by imposing a term of supervised release without acknowledging or considering United States Sentencing Guidelines Manual (U.S.S.G.) § 5D1.1(c), which states a court "ordinarily" should not impose a term of supervised release when "the defendant is a deportable alien who likely will be deported after imprisonment."

We affirm the district court’s judgment. As to Mr. Chavez-Morales’s term of imprisonment, the transcript of the sentencing hearing establishes that, on three occasions, the district court addressed Mr. Chavez-Morales’s economic motivation argument. As to the imposition of a term of supervised release, while the district court erred by not acknowledging and considering U.S.S.G. § 5D1.1(c), Mr. Chavez-Morales has not carried his burden on the third prong of the plain error analysis.

I. BACKGROUND

A. Mr. Chavez-Morales’s History, Characteristics, & Offense Conduct

Mr. Chavez-Morales, age fifty-six at the time of his most recent offense, is a citizen of Mexico. As a result of his family’s financial struggles, Mr. Chavez-Morales entered the work force at a young age. By the 1980s, Mr. Chavez-Morales lived in the United States. According to records obtained by probation services, Mr. Chavez-Morales was the subject of an order of removal issued in 1986. Whether the order of removal was executed is not clear, but Mr. Chavez-Morales was present in the United States in the mid and late 1990s, as is evident by four Colorado convictions. By January 2000, however, Mr. Chavez-Morales had returned to Mexico.

On January 30, 2000, Mr. Chavez-Morales was detained when trying to enter the United States with fifty-three pounds of marijuana. He was deported in August 2000. In June 2002, Mr. Chavez-Morales returned to the United States, resulting in a conviction for reentry of a deported alien previously convicted of an aggravated felony, for which he incurred a sentence of twenty-four months' imprisonment, followed by three years' unsupervised release. Mr. Chavez-Morales was deported in March 2004. In December 2006, Mr. Chavez-Morales attempted to cross into the United States, presenting fraudulent documents to Border Patrol agents at a port of entry. Mr. Chavez-Morales pleaded guilty to the offense of illegal reentry and incurred a sentence of thirty-seven months' imprisonment, followed by two years' unsupervised release. Mr. Chavez-Morales was deported in September 2009. In June 2011, Border Patrol agents found Mr. Chavez-Morales in the United States, which resulted in Mr. Chavez-Morales’s third illegal reentry conviction, for which he incurred a sentence of twenty months' imprisonment. Mr. Chavez-Morales was deported in November 2012. In March 2015, Border Patrol agents, once again, found Mr. Chavez-Morales in the United States, leading to Mr. Chavez-Morales’s fourth illegal reentry conviction, for which he incurred a sentence of eighteen months' imprisonment.² Mr. Chavez-Morales was deported on July 13, 2016. On August 19, 2016, roughly one month after being deported, Mr. Chavez-Morales was found in the United States, leading to the reentry of a removed alien conviction underlying the present appeal.

B. Plea & Sentencing Proceedings

Mr. Chavez-Morales and the government negotiated a fast-track plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and U.S.S.G. § 5K3.1. The fast-track plea agreement estimated a Sentencing Guidelines range of nine to fifteen months and, if accepted by the district court, would have obligated the court to impose a within-Guidelines sentence. Focusing on Mr. Chavez-Morales’s history of reentry offenses and the need to impose a sentence that would satisfy the 18 U.S.C. § 3553(a) factors, including adequately deterring Mr. Chavez-Morales, the district court rejected the fast-track plea agreement. The district court indicated, however, that if Mr. Chavez-Morales entered into a non-fast-track plea agreement, a within-Guidelines sentence would likely satisfy the § 3553(a) factors.³ But, a month after rejecting the fast-track plea agreement, the district court informed the parties that even if Mr. Chavez-Morales entered into a non-fast-track plea agreement with a Guidelines range of twenty-one to twenty-seven months' imprisonment, the district court might vary upwards. The district court granted Mr. Chavez-Morales’s motion to formally withdraw the guilty plea he entered pursuant to the fast-track plea agreement. Thereafter, a grand jury indicted Mr. Chavez-Morales on one count of illegal reentry by a removed alien after deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a), (b). Mr. Chavez-Morales then entered a straight-up guilty plea, without a written plea agreement.

Based on a total offense level of ten and a criminal history category of V, a presentence investigation report ("PSR") established a Guidelines range of twenty-one to twenty-seven months' imprisonment. See U.S.S.G. ch. 5 pt. A (sentencing table). Relying on Mr. Chavez-Morales’s 8 U.S.C. §§ 1326(a)(1), (b)(2) offense being a Class C felony, the PSR established a Guidelines range for supervised release of one to three years. However, the PSR noted that "[p]ursuant to U.S.S.G. § 5D1.1(c), the court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment." ROA Vol. 2 at 29. Neither the Government nor Mr. Chavez-Morales objected to the Guidelines calculations in the PSR, and the district court adopted the factual findings and Guidelines calculations set out in the PSR.

The government advocated for an upward variant sentence of thirty-eight months' imprisonment, arguing that Mr. Chavez-Morales’s longest previous sentence of thirty-seven months did not adequately deter him from reentering the United States. Mr. Chavez-Morales argued for a within-Guidelines sentence, highlighting his good work ethic while in detention awaiting sentencing, his plan to open a taqueria in Mexico after deportation, and his economic motivation for illegally reentering the United States. When Mr. Chavez-Morales’s counsel compared the wages Mr. Chavez-Morales could earn in Mexico to the hourly wages in the United States, the district court interjected and the following colloquy occurred:

[COUNSEL:] ... He came back here every time, Your Honor, to have opportunities. I think I've set forth in the Sentencing Memorandum the amount of money he was making when he worked in Mexico, something like $7 a day, and he can come over here and make in the range of $15 an hour doing the same kind of work.

THE COURT: How much is he making in prison?

[COUNSEL]: Nothing.

THE COURT: Well, you get a little bit.

[COUNSEL]: A dollar a day, or whatever it is, yes.

THE COURT: It's less than what he can make in Mexico; is that right?

[COUNSEL]: Yes. The Court is right, over the last 15 years he's spent 8 years, more than half of that, locked up. So again, this seems to be a part of—it should become very clear. What’s very clear to all of us should become very clear to Mr. Chavez-Morales, and we hope that it does.

ROA Vol. 3 at 19–20.

The district court commenced announcing its sentence by reciting the 18 U.S.C. § 3553(a) factors, placing emphasis on the need to promote respect for the law and the need to adequately deter Mr. Chavez-Morales. See 18 U.S.C. § 3553(a)(2)(A), (B). In discussing the need to promote respect for the law, the district court stated:

Now, to promote respect for the law. You can't help but look at this Presentence Report and come to the conclusion that the Defendant has no respect for the laws of the United States. I mean, I'm going to cite the fact that in the prior re-entry case, he was deported to Mexico on July the 13th, 2016, and that’s referenced in Paragraph 29 of this Presentence Report where he was given 18 months custody, and then he was arrested again in the United States on August the 19th, 2016. So that’s just a little more than one month after he's deported, he is arrested on this matter.

Now, in the second Sentencing Memorandum, [counsel for Mr. Chavez-Morales] talked about the wages and the money that he can make here in the United States compared to what he can make in Mexico, but obviously to me he didn't really give it a shot in Mexico, because he was deported on July 13, 2016, and he's

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