United States v. Rosales-Miranda

• Decision Date: 07 July 2014
• Docket Number: No. 13–1150.,13–1150.
• Citation: 755 F.3d 1253
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Manuel Antonio ROSALES–MIRANDA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

755 F.3d 1253

UNITED STATES of America, Plaintiff–Appellee,

v.Manuel Antonio ROSALES–MIRANDA, Defendant–Appellant.

No. 13–1150.

United States Court of Appeals, Tenth Circuit.

July 7, 2014.

Jill M. Wichlens, Assistant Federal Public Defender (Warren R. Williamson, Federal Public Defender, Interim, with her on the briefs), Denver, CO, for Defendant–Appellant.

Robert M. Russel, Assistant United States Attorney, (Laurie K. Dean, Special Assistant United States Attorney, and John F. Walsh, United States Attorney, on the brief), Denver, CO, for Plaintiff–Appellee.

Before KELLY, GORSUCH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant–Appellant Manuel Rosales–Miranda was convicted of illegal reentry after being deported, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The district court applied a sixteen-level enhancement to Mr. Rosales–Miranda's offense level pursuant to § 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”), which allows for such an enhancement where the defendant has a prior crime-of-violence felony conviction. The district court applied the enhancement based on two misdemeanor Virginia state domestic-violence convictions. The parties now agree not only that this was error, but also that it was clear or obvious error under current law, as those domestic-violence convictions were not felonies. The parties disagree, however, regarding whether the error affected Mr. Rosales–Miranda's substantial rights and whether it has seriously affected the fairness, integrity, or public reputation of judicial proceedings. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's sentencing order and remand the case, instructing the district court to vacate Mr. Rosales–Miranda's sentence and to conduct a resentencing proceeding consistent with this order and judgment.

I

Mr. Rosales–Miranda was indicted for illegally reentering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). He pleaded guilty to these criminal charges. An officer of the United States Probation Office then prepared a Presentence Investigation Report (“PSR”). The PSR started with a base offense level of eight, as provided by U.S.S.G. § 2L1.2(a).¹ It then applied a sixteen-level enhancement under § 2L1.2(b)(1)(A)(ii)—the crime-of-violence enhancement—which is warranted when the defendant illegally reenters the United States after receiving a felony conviction for “a crime of violence.” R., Vol. III, ¶ 16, at 28 (PSR, dated Jan. 25, 2013). The PSR applied the enhancement referencing two 2004 convictions entered by a Virginia state court for “Assault and Battery on a Family Member” (hereinafter, “the domestic-violence convictions”). Id. From the adjusted offense level of twenty-four, the PSR subtracted three levels for acceptance of responsibility, resulting in a total offense level of twenty-one.

Turning to the criminal-history calculation, the probation officer recounted in the PSR Mr. Rosales–Miranda's criminal record. Along with an “Assault on a Police Officer” conviction, id., ¶ 33, at 30, the probation officer factored the domestic-violence convictions into Mr. Rosales–Miranda's criminal-history score. Accordingly, the PSR assigned Mr. Rosales–Miranda a criminal-history score of twelve, resulting in a criminal-history category of V. Using this criminal-history category and the offense level of twenty-one, the PSR calculated an advisory Guidelines range of seventy to eighty-seven months of imprisonment. Neither Mr. Rosales–Miranda nor the government objected to the PSR.

Pursuant to the written plea agreement, the government recommended a prison term of seventy months and (consistent with the PSR's recommendation) moved for a one-offense-level decrease under U.S.S.G. § 3E1.1(b) for acceptance of responsibility. Mr. Rosales–Miranda then moved for a downward variance, requesting a sentence not longer than thirty months based on the 18 U.S.C. § 3553(a) sentencing factors—specifically highlighting in this regard his personal history, his family situation, and the comparative leniency of the prior sentences for the purported felonies cited in support of the crime-of-violence enhancement.

At sentencing, the district court accepted the PSR's Guidelines computations. The court began its discussion, however, by noting that the “really disturbing” feature of Mr. Rosales–Miranda's case was the domestic-violence convictions. R., Vol. II, at 31 (Sentencing Tr., dated Mar. 19, 2013). The court remarked, “[O]ne of the crimes I cannot abide is domestic violence [toward] spouses.” Id. It then recited Mr. Rosales–Miranda's grounds for his downward-variance motion, with particular emphasis on his claim that he had come to the United States to work so that he could send money to his elderly mother and young children in Guatemala. The district court also noted Mr. Rosales–Miranda's position that “even the 30–month sentence he requested in this motion would by far be the longest amount of time he [had] ever spent in prison before and that such a variant sentence would be a profound deterrent to the defendant from ever returning to this country.” Id. at 36.

After making these remarks, the district court addressed a policy disagreement with the Guidelines, first stating that

[a]part from the grounds set forth in the defendant's motion, I note that the offense level in this case is governed by Section 2L1.2 of the Sentencing Guidelines. In United States [v.] Garcia–Jaquez, [807 F.Supp.2d 1005 (D.Colo.2011) ], this Court published its sentencing order and addressed the significant concerns I have with the application of this guideline to cases like the one before me today. I hereby incorporate by reference my reasoning set forth in Garcia–Jaquez.

I find that in this case the double counting ² of defendant's prior felony conviction[s]results in a guideline range greater than necessary to achieve the goals of Section 3553(a). Let me stress it is not my view that [these] prior conviction[s] [should] be eliminated entirely from either the offense level or the criminal history category. Instead, the double counting is a factor I will consider in determining the appropriate sentence to impose in this case.

Moreover, I do not find that it is completely unwarranted to consider the defendant's prior convictions in determining a fair sentence. Indeed, it is because of defendant's prior criminal history record that I will grant the defendant's motion in part only.

Id. at 36–37. The district court then recited the facts of Mr. Rosales–Miranda's previous convictions, including that he attacked his wife “with his fist, kicking her, banging her head against a solid tile floor and striking her on the arms twice.” Id. at 37. “Significantly,” the district court added, “the defendant did not complete the anger management classes required by his state court sentence.” Id.

Following that discussion, the district court announced that it would “impose a downward variant sentence based on [its] policy disagreement with the substantial effect that Section 2L1.2's double counting of defendant's prior felony conviction[s] has on Mr. [Rosales–Miranda's] guideline range.” Id. at 38. Moreover, having thus stated this policy disagreement, the court proceeded to present another:

I will also grant defendant's motion on the basis ... that this particular guideline's sentencing enhancements are divorced from empirical data. As I examined in Garcia–Jaquez, the Sentencing Commission did no study to determine if this guideline's enhancements for prior convictions served any legitimate penological goal.

As a result I find that in this case Section 2L1.2's sentencing range does not necessarily reflect a sentence that might achieve Section 3553(a)'s objectives.

Id.

Acting on these two policy disagreements, the district court sentenced Mr. Rosales–Miranda to thirty-six months in prison. Mr. Rosales–Miranda filed a timely notice of appeal.

II

On appeal, the parties agree that the district court committed a sentencing error and that the error was clear or obvious. The parties also agree that Mr. Rosales–Miranda failed to preserve an objection to that error. This forfeiture triggers plain-error review. SeeFed.R.Crim.P. 52(b); United States v. Vasquez–Alcarez, 647 F.3d 973, 976 (10th Cir.2011) (“If [the defendant] has forfeited the ... argument, we review ... only for plain error.”); United States v. Gonzalez–Jaquez, 566 F.3d 1250, 1251 (10th Cir.2009) (reviewing for plain error, where defense counsel failed to object to the district court's finding that offense was a crime of violence implicating sentencing enhancement); see also United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (prescribing plain-error review for cases involving “errors that were forfeited because not timely raised in district court”). The parties only disagree about whether Mr. Rosales–Miranda fully satisfies our plain-error test.

As one of our sister circuits has deftly noted, “[t]he Supreme Court has cautioned appellate courts against the ‘reflexive inclination’ to reverse unpreserved error.” United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.2013) (quoting Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)), cert. denied, ––– U.S. ––––, 134 S.Ct. 1326, 188 L.Ed.2d 337 (2014). “As a result, relief on plain error review is ‘difficult to get, as it should be.’ ” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).

Thus, Mr. Rosales–Miranda “[cannot] prevail unless he [can] successfully run the gauntlet created by our rigorous plain-error standard of review.” United States v. Bader, 678 F.3d 858, 894 n. 24 (10th Cir.2012) (quoting United States v. McGehee, 672 F.3d 860, 866 (10th Cir.2012)).

Under this demanding standard, he must demonstrate: (1) an error, (2) that is plain, which means clear...