United States v. Gerezano–Rosales

• Citation: 692 F.3d 393
• Decision Date: 27 August 2012
• Docket Number: No. 11–50185.,11–50185.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Ramon GEREZANO–ROSALES, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

692 F.3d 393

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Ramon GEREZANO–ROSALES, Defendant–Appellant.

No. 11–50185.

United States Court of Appeals, Fifth Circuit.

Aug. 27, 2012.

Joseph H. Gay, Jr., Asst. U.S. Atty. (argued), Diane D. Kirstein, San Antonio, TX, for Plaintiff–Appellee.

John Andrew Kuchera (argued) (Court–Appointed), Waco, TX, for Defendant–Appellant.

Appeals from the United States District Court for the Western District of Texas.

Before GARZA, DENNIS and HIGGINSON, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jose Ramon Gerezano–Rosales (“Gerezano”) appeals his non-Guidelines sentence of 108 months of imprisonment for illegal reentry. We VACATE Gerezano's sentence and REMAND for resentencing.

I

Gerezano pleaded guilty to an indictment charging him with illegal reentry. See 8 U.S.C. §§ 1326(a) & (b). The presentence report (“PSR”) calculated an advisory Guidelines range of imprisonment of 57–71 months. At sentencing, the district court adopted the PSR's calculation of the Guidelines range. After giving Gerezano the opportunity to allocute, the district court orally sentenced Gerezano to 71 months, finding that the “advisory guidelines are adequate and that a fair and reasonable sentence can be achieved with a sentence selected from within the advisory range.”

However, after the district court orally sentenced Gerezano, it apparently discovered for the first time that Gerezano could understand English. Gerezano's knowledge of English caused the court to question the veracity of some of the mitigating statements Gerezano had made during his allocution. As the district court proceeded to admonish Gerezano regarding the terms of his eventual supervised release, Gerezano interrupted the court and questioned the length of his sentence. The following colloquy ensued:

THE COURT: Stop. I don't want to hear anymore from you. I have already sentenced you. Do you understand that you are not to—

MR. GEREZANO: Why are you giving me so much time?

THE COURT: Because I think that is appropriate in your case, Mr. Gerezano.

MR. GEREZANO: No.

THE COURT: I think you are [a] liar. I think you have a horrible attitude. I don't think you have any business being in the United States period. You come in to do nothing but commit crimes, serious crimes.

MR. GEREZANO: I haven't done—

THE COURT: That's what your criminal history. Would you like for me? You don't like your sentence, I take it? Okay. Well, I'm going to change it; but I am going to find that the guidelines are not adequate; that since I have sentenced you the circumstances have changed based on your attitude, your lack of respect, your demeanor and your failure to—

MR. GEREZANO: I'm sorry.

THE COURT: —understand the laws of the United States.

MR. GEREZANO: I'm not disrespecting.

THE COURT: You are. I find that you are disrespecting me. I stand for the law of the United States and your demeanor is disrespectful. Your words are disrespectful. Everything about you so far has been disrespectful since I just sentenced you. That is changed circumstances. Because of that I find that the guidelines are no longer adequate. So your sentence instead of 71 months will now be 108 months. Would you like to keep working up?

MR. GEREZANO: No.

THE COURT: Then I suggest you learn to be respectful.

The district court's statement of reasons provided that it imposed a sentence above the Guidelines range in order to promote respect for the law and to afford adequate deterrence to criminal conduct. See18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(B). This appeal followed.

II

On appeal, Gerezano claims that the district court lacked jurisdiction to “re-sentence” him to 108 months in prison after initially sentencing him to a 71–month term of imprisonment. He also asserts that the district court's initial 71–month sentence was substantively unreasonable. Lastly, Gerezano contends that even if the district court had jurisdiction to “re-sentence” him after announcing the initial sentence, the non-Guidelines, 108–month sentence was procedurally and substantively unreasonable.¹

A

Gerezano claims that the district court lacked jurisdiction to modify his sentence during the sentencing hearing from 71 months to 108 months. He contends that the district court's initial oral formulation of his sentence was a binding sentence, which the district court could only modify under the limited circumstances enumerated in 18 U.S.C. § 3582(c), which lists the exclusive situations under which a sentencing court can modify a term of imprisonment once it has been imposed. Because the district court did not increase its initial formulation of Gerezano's sentence for any of the grounds contained in § 3582(c), Gerezano asserts that the district court lacked jurisdiction to modify his sentence. We review whether the district court had jurisdiction to impose the 108–month sentence de novo. See United States v. Meza, 620 F.3d 505, 507 (5th Cir.2010).

In Meza, we declined to hold that a district court's initial oral formulation of a sentence “ instantaneously strips the district court of its jurisdiction” to change the initially announced sentence. 620 F.3d at 508 (declining to adopt a “draconian rule” whereby a “district court's initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to sentence criminal defendants and immediately vests such jurisdiction with this court”). As in Meza, we conclude that the district court's initial oral announcement of Gerezano's sentence did not constitute a binding sentence and therefore did not strip the court of jurisdiction to change its initial formulation. Although the district court did not change Gerezano's sentence upon a request by one of the parties to alter its initial formulation, cf., id., the court changed its initial formulation before it adjourned the sentencing hearing. Thus, there was “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” Id. at 509. Accordingly, the district court did not lack jurisdiction to impose the 108–month sentence.

B

Gerezano also challenges the reasonableness of his sentence. First, he contends that the initial 71–month sentence was substantively unreasonable. Second, Gerezano asserts that the district court's decision to raise his sentence to 108 months was procedurally and substantively unreasonable.

We review a challenged sentence for reasonableness under a two-part test. United States v. Rhine, 637 F.3d 525, 527 (5th Cir.2011). First, we review a sentenceto ensure that the sentencing court did not commit a significant procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Second, we determine whether the challenged sentence was substantively unreasonable by considering “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Rhine, 637 F.3d at 528 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586).

Gerezano claims that the initial 71–month sentence was substantively unreasonable because the district court placed significant weight on an improper factor— i.e., his arrests for conduct that did not lead to convictions.

Gerezano contends that he preserved error on his challenge to the reasonableness of his 71–month sentence by asking the district court why it had “given him so much time” and disagreeing with the court that the sentence was appropriate in his case. However, even if (1) Gerezano's statements sufficiently raised his claim of substantive sentencing error to allow the district court to correct itself, see United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir.2009), and (2) it were possible for Gerezano to perfect an appeal from the district court's initial formulation of his sentence, the court did not abuse its discretion when setting the initial sentence.

When the district court announced its initial formulation of Gerezano's sentence, it explicitly stated that it was “not taking into account all of the uncharged conduct,” noting that if it had considered the uncharged conduct, “this man would be looking at a lot more time in prison.” Accordingly, the district court could not have abused its discretion by considering uncharged conduct when it announced the 71–month sentence because the court did not consider such conduct when formulating Gerezano's sentence.

C

Gerezano also claims that his 108–month, non-Guidelines sentence was procedurally and substantively unreasonable. First, Gerezano contends that his non-Guidelines sentence was procedurally unreasonable. He asserts that the district court raised the sentence from 71 to 108 months based on an erroneous finding that he had disrespected the court after it announced the initial Guidelines sentence. Second, Gerezano claims that the non-Guidelines sentence was substantively unreasonable. He contends that the district court failed to state a specific reason for ordering a non-Guidelines sentence that was different than its prior reasons for setting a Guidelines sentence of 71 months. He also maintains that the district court had no legal basis to impose the 108–month sentence because the comments he made after the initial sentence was announced did not justify increasing his sentence.

Gerezano asserts that we should review his challenges to the reasonableness of the 108–month sentence under an abuse of discretion standard, even though he did not object to the sentence in the district court. He contends that objecting to the 108–month sentence would have been futile given the district court's reaction when he objected...