United States v. Tena-Arana

• Decision Date: 22 June 2018
• Docket Number: No. 17-1345,17-1345
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESUS CARLOS TENA-ARANA, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESUS CARLOS TENA-ARANA, Defendant - Appellant.

No. 17-1345

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

June 22, 2018

(D.C. No. 1:17-CR-00034-MSK-1)

(D. Colo.)

ORDER AND JUDGMENT^*

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

Jesus Carlos Tena-Arana has filed this direct appeal to challenge the district court's denial of his motion for a variant sentence based on an appellate waiver.¹ Tena-Arana argues the district court "categorically barred" consideration of hisappellate waiver, and by excluding the waiver from 18 U.S.C. § 3553 consideration, the court committed reversible error. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and AFFIRM the district court.

I

Tena-Arana, a native and citizen of Mexico, does not have claim to lawful immigration status in the United States. Prior to his present conviction, Tena-Arana had previously been removed from the United States four times. His fourth deportation followed a conviction of illegal re-entry after deportation subsequent to an aggravated felony conviction. For that conviction, Tena-Arana received a 24-month prison sentence and three-year term of supervised release.

In November 2016, after his fourth deportation, Tena-Arana again illegally re-entered the United States. On November 28, 2016, immigration officials found Tena-Arana in Denver, Colorado, after he had been detained and charged with interfering with a police officer and providing false information. Tena-Arana admitted that he had illegally re-entered the United States about five days earlier.

On May 9, 2017, Tena-Arana pleaded guilty to one count of illegal re-entry of a previously deported alien following an aggravated felony conviction under 8 U.S.C. § 1326(a), (b)(2). With a criminal history category of III and a total offense level of 13, Tena-Arana's guideline sentencing range was 18-24 months in prison.

However, as part of his guilty plea, Tena-Arana agreed to waive almost all of his appellate rights. In exchange, the government "agree[d] not to object to a variance equivalent to a one-level reduction from the guideline offense level[, from13 to 12,] as calculated by the Court." ROA, Vol. I, at 14. The government also "agree[d] to recommend a term of imprisonment within the applicable guideline range as adjusted by the one-level reduction," which was 15-21 months in prison. Id. at 14, 19.

The assigned probation officer recommended a 24-month prison sentence. Probation was aware of Tena-Arana's appellate waiver. However, the probation officer excluded from her sentence calculation the one-level reduction from Tena-Arana's guideline offense level for the waiver.

As contemplated by the plea agreement and prior to sentencing, Tena-Arana filed a motion for a variant sentence,² seeking a sentence of 15 months in prison. His motion for a variant sentence was based only in part upon his partial appellate waiver. In his motion, Tena-Arana presented several reasons to support a variant sentence in addition to his partial appellate waiver: his present crime, illegal reentry, is not a serious crime; although he has a "series of criminal convictions," he is not a violent person; he has a "consistent" work history and has a good relationship withhis son and ex-wife; and although deported several times, he was shot and wounded while in Mexico and returned to the United States for his own safety. Id. at 36-37.

At sentencing, the district court made the following remarks regarding Tena-Arana's inclusion of the plea agreement in his request for a variance:

I don't grant variances based on agreements between the parties. That's not the function of the parties; they do not have discretion to vary; that is the role of the Court. Now, I'll take your request for a variance under consideration in imposing a sentence; but I will not vary because there has been an appellate waiver. Any variance is because the guideline calculation does not satisfy the sentencing objectives of 18 U.S.C. Section 3553.

Id. Vol. III, at 42.

The district court continued:

[T]he variance that is requested was something the parties had anticipated in their plea agreement. Some of the judges on this court require specific consideration to be stated for an appellate waiver, I do not. I view consideration in the plea agreement to be global consideration, a promise for a promise. And as a consequence, there is no specific consideration that I require for a plea agreement that contains an appeal limitation.

But moreover and more importantly, departures and variances are different. Departures, under the guidelines, can be agreed to by counsel based on particular facts. Variances cannot. Variances are, in my view, something that the Court must consider in the context of application of 18 U.S.C. Section 3553. And I note with particularity that none of the objectives and none of the factors in that statute concern appeals. So while it is a benefit to the Government to have an appellate waiver, it is not something that figures into a variance, which is the mismatch between a guideline calculation and a statutory calculation.

Consequently, I deny the motion for a non-guideline sentence at Docket No. 23 based upon an appellate waiver.

Id. at 58-59.

Then, considering § 3553 sentencing factors and objectives, the district court declined to vary downward. In fact, the district court varied upward from the sentencing guideline range corresponding to Tena-Arana's unadjusted offense level. The district court noted that Tena-Arana's previous 24-month sentence, with a three-year term of supervised release, "did nothing . . . to deter [his] reentry into the United States." Id. at 64. Moreover, the district court was troubled by the fact that "every time" Tena-Arana was present in the United States, he was "convicted of crimes." Id. at 63. Thus, due to the "combination of illegal reentry plus" Tena-Arana's "violati[ons] of the law here in the United States," the district court decided a 30-month prison sentence, followed by three years of supervised release, would be "sufficient but not greater than necessary to[:]" (i) "promote respect for the law," (ii) "provide just punishment," (iii) "deter criminal conduct," and (iv) "protect the public." Id. at 63. Upon imposition of Tena-Arana's sentence, his counsel objected by simply stating, "I'm objecting to the variance." Id. at 65.

II

The parties disagree regarding the applicable standard of review. The government contends that we should review for plain error. The government believes the plain error standard of review applies because Tena-Arana did not object and raise the argument he now urges on appeal. Although Tena-Arana generally objectedwhen the court imposed an upward variance, he did not state that the basis for his objection was the court's refusal to consider his appellate waiver.³

Tena-Arana claims our review should be de novo. Tena-Arana contends that he preserved his challenge to the district court's alleged legal error by arguing in his motion for a variant sentence that the "benefits of an appellate waiver" are a proper basis for a downward variance under § 3553(a), thereby "informing the court . . . of the action" he "wishe[d] the court to take" and "the legal basis for doing so." Reply, at 2-3 (quoting Fed. R. Civ. P. 51(b)). Tena-Arana contends he did all he was required to do to preserve the issue for appeal. We conclude the government articulates the correct standard of review.

Tena-Arana only challenges the procedural reasonableness of his sentence. See United States v. Almanza-Martinez, 309 F. App'x 277, 280 (10th Cir. 2009) (describing a "procedural reasonableness objection" as "a challenge to the method by which the district court arrived at its sentencing decision because of the districtcourt's alleged misunderstanding of its sentencing authority"). "[W]hile a defendant need not object after pronouncement of sentence based on substantive reasonableness," United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007), to preserve a procedural error at sentencing, he "must specifically object to the district court's procedure," United States v. Mendoza, 543 F.3d 1186, 1191 (10th Cir. 2008). When a party properly objects, "we review a district court's sentencing procedure for abuse of discretion, evaluating factual findings for clear error and legal determinations de novo." Id. at 1190. "When the party alleging error has not objected in the court below, however, we review only for plain error." Id.

Though not cited either in his opening or reply brief, our opinion in United States v. Lopez-Avila, 665 F.3d 1216 (10th Cir. 2011), may arguably lend support to Tena-Arana's claim that his appellate issue—that the district court procedurally erred by concluding it was barred from considering his appellate waiver at sentencing—is preserved solely by virtue of having filed a motion for a variant sentence. However, Lopez-Avila serves only as a unique exception to the general rule regarding the preservation of procedural sentencing errors.

In Lopez-Avila, defendant moved for a downward variance, asking the district court to take into consideration sentencing disparities resulting from the availability of "fast-track" programs in some districts, while the same program was unavailable to defendants sentenced in the District of Colorado. Id. at 1217. The district court denied defendant's request for a downward variance. Id.

Lopez-Avila appealed and argued that the district court erred in concluding it was precluded from considering sentencing disparities created by fast-track programs. Id. The government claimed that we should review for plain error because defendant did not object at sentencing to the district court's alleged procedural error. Id. We rejected the government's argument and concluded defendant adequately preserved his issue for appeal, as "the issue was properly raised prior to the sentencing hearing, the judge was...