United States v. Lozano

• Decision Date: 17 June 2020
• Docket Number: No. 19-4082,19-4082
• Citation: 962 F.3d 773
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Jose Alfredo Macias LOZANO, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

962 F.3d 773

UNITED STATES of America, Plaintiff - Appellee,

v.Jose Alfredo Macias LOZANO, Defendant – Appellant.

No. 19-4082

United States Court of Appeals, Fourth Circuit.

Submitted: March 18, 2020

Decided: June 17, 2020

Anthony Martinez, Federal Public Defender, Joshua B. Carpenter, Appellate Chief, Asheville, North Carolina, Jared P. Martin, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Niemeyer and Judge Quattlebaum joined.

DIAZ, Circuit Judge:

Jose Alfredo Macias Lozano, a native and citizen of Mexico, was convicted of a felony while unlawfully present in the United States and was deported. He reentered the United States and committed a number of other state crimes. In 2011, while in custody for one of those crimes, Lozano was charged with federal illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2). But he was deported without ever learning of the federal charge. In 2018, after Lozano had reentered the United States again, he was arrested on the still-pending federal charge. Lozano pleaded guilty and received a below-Guidelines sentence.

On appeal, Lozano argues that the delay of over six years between the date of his federal charge and the date of his guilty plea violated his Sixth Amendment right to a speedy trial. But this argument is foreclosed by Lozano's guilty plea and, in any event, fails on the merits.

Lozano also asserts that his sentence is procedurally unreasonable because the district court failed to fully consider his non-frivolous arguments for a downward variance. The record, however, proves otherwise. The district court heard Lozano's arguments and varied downward, albeit not as far as Lozano would have liked. In so doing, the court acted well within its discretion.

We therefore affirm the district court's judgment.

I.

When Lozano was a few months old, his parents brought him from Mexico to the United States, where he lived until, at age twenty-six, he was deported after being convicted of a Texas felony offense. Sometime thereafter, Lozano reentered the United States and was convicted of a number of North Carolina felony drug offenses.

In May 2011, Lozano was arrested and charged with another North Carolina felony drug offense. In December 2011, while in custody on that charge, he was also charged with illegal reentry after deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Lozano pleaded guilty to the 2011 North Carolina charge and was sentenced to 10 to 12 months’ imprisonment. He finished serving that sentence in June 2013 and was deported to Mexico. He never appeared in court on the federal illegal reentry charge, and he didn't know that it was pending.

Lozano reentered the United States again in 2013, and in May 2018, he was arrested on the still-pending federal charge. After his arrest, he gave law enforcement officers information about drug traffickers he had been involved with. But because Lozano hadn't lived in the area since 2013, the information he provided was stale. In September 2018, he pleaded guilty to the 2011 federal illegal reentry charge.

At Lozano's sentencing hearing, he sought a sentence of 27 months’ imprisonment, a downward variance from his advisory Sentencing Guidelines range of 63 to 78 months’ imprisonment. Lozano's counsel explained, "We believe ... some sort of reduction is warranted for [Lozano] because I think he does have unusual circumstances in his case." J.A. 69. Counsel noted that Lozano had "[fallen] through the cracks" and was unaware of the 2011 federal charge until he was arrested in 2018. Id.

Lozano also relied on two Sentencing Guidelines provisions to support his request for a downward variance. First, Lozano urged that a variance was warranted because he had provided information to law enforcement officers about drug traffickers that he had known. See U.S.S.G. § 5K1.1 (allowing for a downward departure where a defendant has provided substantial assistance to authorities in the investigation of another person). Lozano acknowledged that his information was stale and that his assistance wasn't substantial, but he claimed that a downward variance was still warranted because he had done the best he could under the circumstances.

Second, Lozano argued that a variance was warranted due to his cultural assimilation. See U.S.S.G. § 2L1.2 cmt. n. 8 (allowing for a downward departure where a defendant convicted of unlawfully entering the United States has assimilated into United States culture). Lozano contended that he met the "spirit of the departure," J.A. 71, because he has lived in the United States almost continuously, his close family members all live in the United States, he was educated in the United States, and he speaks English.

The district court questioned how Lozano qualified for a cultural assimilation departure given his high criminal history category. In response, Lozano noted that he hadn't had any convictions since he reentered the country in 2013, and he asserted that if he had been charged with illegal reentry in 2018, his criminal history category would have been lower because some of his prior convictions would not have fallen within the time period relevant for calculating his criminal history category. He added that he had been "beating himself up" about the charge and could have completed service of any sentence imposed for the charge had he known about it in 2011. J.A. 74.

The government agreed that a downward variance was appropriate. The government accepted "some responsibility" for the delay between the date of the federal charge and Lozano's arrest because it "should have had a detainer on [Lozano]." J.A. 76. The government also acknowledged that if Lozano had been arrested sooner, the information he provided to law enforcement may have been more helpful.

The district court sentenced Lozano to 51 months’ imprisonment. The court explained that illegal reentry is a serious offense that undermines the country's immigration system. The court also cited the need for specific and general deterrence. It explained that it varied downward from Lozano's Guidelines sentencing range "based on the government concurring that some degree of downward variance is warranted under the circumstances here." J.A. 83.

As to Lozano's argument for a downward variance based on his assistance to law enforcement, the court explained that some variance was warranted, but the court also noted that Lozano's information was stale. As to Lozano's argument for a downward variance for his cultural assimilation, the court allowed for some variance because Lozano had been brought to the country at a young age and had "much more law-abiding activity" after he reentered the country in 2013. J.A. 84. But it didn't vary to the degree Lozano wanted because at other times, Lozano was "assimilating not to the cultural fabric of this country but to a criminal underculture." Id.

This appeal followed.

II.

Lozano argues that (1) the six-year delay between the date of his federal illegal reentry charge and the date of his guilty plea violated his Sixth Amendment right to a speedy trial; and (2) his sentence is procedurally unreasonable because the district court failed to address his non-frivolous arguments for a lower sentence. We take up the alleged Sixth Amendment violation first.

A.

The government's response to Lozano's speedy trial claim effectively disposes of it: Lozano waived the claim when he pleaded guilty.

"It is the general rule that when a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of the plea, and thus has no non-jurisdictional ground upon which to attack that judgment except the inadequacy of the plea." United States v. Fitzgerald , 820 F.3d 107, 110 (4th Cir. 2016) (cleaned up); see also Blackledge v. Perry , 417 U.S. 21, 29–30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ("[W]hen a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." (cleaned up)).

Citing the Supreme Court's decision in Class v. United States , ––– U.S. ––––, 138 S. Ct. 798, 200 L.Ed.2d 37 (2018), Lozano contends that his speedy trial claim is excepted from this general rule. He is wrong.

In Class , the Court held that the defendant's guilty plea didn't waive his claim that his statute of conviction was unconstitutional. 138 S. Ct. at 803. This holding, the Court explained, flowed from its decisions in Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and Menna v. New York , 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). Class , 138 S. Ct. at 803–04. In Blackledge , the Court held that the defendant's guilty plea didn't bar his claim of vindictive prosecution because the claim challenged "the very initiation of the proceedings against [the defendant]" and implicated the defendant's "right not to be haled into court at all upon the ... charge." 417 U.S. at 30–31, 94 S.Ct. 2098. In Menna , the Court concluded that the defendant's guilty plea didn't bar his claim of double jeopardy because it too was a claim that "the State is precluded by the United States Constitution from haling a defendant into court on a charge." 423 U.S. at 62, 96 S.Ct. 241. Drawing on these principles, the Court in Class held that a guilty plea doesn't bar claims that "challenge the Government's power to criminalize [the defendant's] (admitted) conduct" and that "thereby call into question the Government's power to constitutionally...