United States v. Cruz

• Decision Date: 26 June 2014
• Docket Number: No. 13–3219.,13–3219.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Guillermo CEBALLOS–SANTA CRUZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

756 F.3d 635

UNITED STATES of America, Plaintiff–Appellee

v.Guillermo CEBALLOS–SANTA CRUZ, Defendant–Appellant.

No. 13–3219.

United States Court of Appeals,

Eighth Circuit.

Submitted: March 10, 2014.

Filed: June 26, 2014.

Jeffrey Louis Thomas, AFPD, argued, Omaha, NE, for petitioner.

Donald James Kleine, AUSA, argued, Omaha, NE, for appellee.

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.

PER CURIAM.

Guillermo Ceballos–Santa Cruz (“Santa Cruz”) appeals the 18–month sentence the district court ¹ imposed upon finding he violated his conditions of supervised release, claiming the sentence imposed was unreasonable. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

On November 25, 2008, Santa Cruz pled guilty in the United States District Court for the District of Nebraska to one count of illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326(a). Because he had a prior felony conviction, he was subject to enhanced penalties under 8 U.S.C. § 1326(b)(1), including a maximum sentence of 10 years of imprisonment. A presentence report was prepared, determining that his sentencing guideline range was 24–30 months. However, the district court granted Santa Cruz a 2–level downward departure, pursuant to United States Sentencing Guidelines Manual (“USSG”) § 5K3.1, making his sentencing guideline range 18–24 months. The court sentenced him to the bottom of the new advisory range, a term of 18 months imprisonment, with a 3–year term of supervised release to follow. After serving his prison term, Santa Cruz was removed from the United States on February 2, 2010, and thus was not on active supervision. His supervision term was set to expire on January 31, 2013.

On January 26, 2013, five days before the end of his term of supervised release, Santa Cruz was arrested in Arizona. A two-count complaint was filed in the United States District Court for the District of Arizona charging him with (1) illegal reentry after deportation, a felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(1), and (2) illegal entry, a misdemeanor, in violation of 8 U.S.C. § 1325(a)(1). Count one carried a maximum sentence of 10 years, while count two carried a maximum sentence of 6 months. On January 29, 2013, Santa Cruz pled guilty to count two, the misdemeanor charge, admitting he had illegally reentered the United States on January 23, 2013. He was sentenced to 180 days imprisonment; with credit for time served, his projected release date was July 24, 2013.

On June 10, 2013, the United States Probation Office for the District of Nebraska filed a petition requesting a warrant be issued for Santa Cruz's arrest. The warrant issued that same day.² The petition alleged he violated three conditions of his supervised release: that he not commit another federal, state, or local crime; that he notify his probation officer within 72 hours of being arrested or questioned by law enforcement; and that he not illegally reenter the United States if deported. While Santa Cruz admitted he committed another federal crime by illegally reentering the United States, he argued his supervised release violation should be classified as a “Grade C” violation under USSG § 7B1.1(a)(3), which includes “conduct constituting ... a federal, state, or local offense punishable by a term of imprisonment of one year or less,” because the offense to which he pled in Arizona had a maximum sentence of 6 months. However, the government argued that his actual conduct—illegally reentering the country following deportation—was punishable by a term of imprisonment of over one year, such that his violation should be treated as a “Grade B” violation. SeeUSSG § 7B1.1(a)(2). Because Santa Cruz's criminal history category was IV, his recommended sentencing range for a “Grade B” violation was 12–18 months, while it was 6–12 months for a “Grade C” violation. SeeUSSG § 7B1.4(a).

The district court sentenced Santa Cruz to 18 months imprisonment, with no supervision to follow—the top of the sentencing range for a “Grade B” violation. The court found Santa Cruz “in need of deterrence so that he does not continue to come into this country illegally,” and noted both the leniency the court had given him in his earlier sentence and the fact he had been allowed to plead to a misdemeanor rather than a felony in Arizona.

Santa Cruz argues his sentence is substantively unreasonable because it is greater than necessary to serve the sentencing purposes of 18 U.S.C. § 3553(a). We review the substantive reasonableness of a sentence imposed for a violation of supervised release for an abuse of discretion. United States v. Thunder, 553 F.3d 605, 607 (8th Cir.2009) (citation omitted). An abuse of discretion occurs if a sentencing court “fails to consider a relevant...