Filed: Oct. 29, 2013
Latest Update: Mar. 28, 2017
Summary: [T]here is no doubt in my mind that a fair and just sentence under the, advisory guidelines, and taking into account the sentencing factors, found at 18 [U.S.C. §] 3553(a), is a sentence that requires a distinct, period of incarceration for the escape conviction. The sentencing court .
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 29, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 13-1296
v. (D. Colorado)
GERMAN ANTONIO OCAMPO- (D.C. No. 1:12-CR-00520-WYD-1)
GUTIERREZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant, German Antonio Ocampo-Gutierrez, appeals the
eighteen-month sentence imposed on him following his plea of guilty to escape
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
from a prison, in violation of 18 U.S.C. § 751(a). Finding that the district court
did not err in imposing Mr. Ocampo-Gutierrez’s sentence, we affirm.
Mr. Ocampo-Gutierrez was born in Colombia in 1955, and he entered the
United States illegally in 1976. He married an American citizen at some point,
and he avers he “eventually legalized his status.” Appellant’s Br. at 1. 1
As Mr. Ocampo-Gutierrez describes the matter in his brief, “[i]n the mid-
1980’s [he] made a mistake. Under pressure from a Colombian drug cartel, he
agreed to transport drugs across the border from Mexico into the United States.
He was intercepted at the border and subsequently convicted of a federal drug
crime.” Id. at 2. Mr. Ocampo-Gutierrez was then sent to serve his fifteen-year
sentence at the Federal Prison Camp in Florence, Colorado. Two months later,
Mr. Ocampo-Gutierrez “wandered away from the camp.” Id.
At some point, Mr. Ocampo-Gutierrez returned to Mexico, married and had
three children. 2 He worked as a carpenter. Mr. Ocampo-Gutierrez further averred
that “[i]n approximately 2012, after being harassed by Los Zetas cartel members,
he sold his home in Monterrey, Mexico, and closed his construction business. He
and his family began living illegally in Texas, subsisting largely on the proceeds
from the sale of their home in Mexico.” Id. at 3.
1
The government has declined to file a brief in this case.
2
He and his first wife had divorced while he was in prison.
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Finally, in November 2012, Mr. Ocampo-Gutierrez was intercepted at the
Mexico-U.S. border attempting to illegally enter the United States. He was
returned to federal custody and the government indicted him for the 1993 escape
charge. Mr. Ocampo-Gutierrez pled guilty to that charge. In preparation for
sentencing, the United States Probation Office prepared a presentence report
(“PSR”). The PSR calculated that Mr. Ocampo-Gutierrez’s total offense level
was eleven, which, with a criminal history of eight, yielded an advisory
sentencing range of 18-24 months.
Mr. Ocampo-Gutierrez filed a motion for a below-Guidelines sentence,
arguing that such a reduction was warranted because of his good conduct during
the decades following his escape, his age (he is now in his fifties), his low risk of
recidivism, and his strong family support. The government responded with a
recommendation that Mr. Ocampo-Gutierrez receive an 18-month sentence.
At sentencing, the district court began by rejecting the probation
department’s recommendation for a twenty-four month sentence. The court also
expressed a desire to ensure that Mr. Ocampo-Gutierrez receive some penalty.
The district court said “[t]here has to be some punitive, distinct consequence ....”
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Tr. of Sentencing at 9; R. Vol. 4 at 31. 3 The court ultimately settled on an
eighteen-month prison sentence, concluding in part as follows:
[T]here is no doubt in my mind that a fair and just sentence under the
advisory guidelines, and taking into account the sentencing factors
found at 18 [U.S.C. §] 3553(a), is a sentence that requires a distinct
period of incarceration for the escape conviction.
You can make all the excuses you want as to why you were
unhappy in 1993 being in prison and why you walked away, but you
had plenty of opportunities to come back. And there is a reference
here that you attempted to contact your former attorney. That didn’t
happen and you became confused about what to do.
....
And then when you were arrested attempting to reenter this
country illegally last fall, you were charged in this court with a new
crime of escape. And if I didn’t give you a separate period of
incarceration, you’d receive no punishment for being a fugitive for
20 years, escaping, and I just don’t think that’s right. It’s not fair,
it’s not just, and I’m not going to do it. I want to make myself clear.
However, the factors that [defense counsel] raises in his
motion, while they will not persuade me to grant a concurrent
sentence or a sentence that is not consecutive, has some bearing on
the length of the consecutive sentence. And while probation’s
recommended 24 months for the reasons known to the probation
report, I agree with the Government that a sentence of 18 months
consecutive to the discharge of the sentence you’re serving is a
sentence that’s sufficient but not greater than necessary to
accomplish the objectives of the statute.
Tr. of Sentencing Hr’g at 19-21; R. Vol. 4 at 41-43.
3
The district court questioned defense counsel about whether the defense
request for a downward variant sentence would allow Mr. Ocampo-Gutierrez to
avoid any additional punishment for escape. See Tr. of Sentencing H’rg at 10, R.
Vol. 4 at 32.
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Mr. Ocampo-Gutierrez appeals that sentence, arguing that it does “not
reflect a reasoned balancing of the 18 U.S.C. § 3553(a) factors, and is harsher
than necessary to satisfy the sentencing goals of the Guidelines.” Appellant’s Br.
at 6. Thus, he argues his sentence is substantively unreasonable.
When a sentence faces a substantive reasonableness attack, we review it for
an abuse of discretion. United States v. Snow, 663 F.3d 1156, 1160 (10th Cir.
2011), cert. denied,
132 S. Ct. 1615 (2012). An abuse of discretion occurs when
the district court “renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Lewis,
594 F.3d 1270, 1277 (10th Cir.
2010) (further quotations omitted). “[S]ubstantive reasonableness review broadly
looks to whether the district court abused its discretion in weighing permissible
§ 3553(a) factors in light of the ‘totality of the circumstances.’” United States v.
Sayad,
589 F.3d 1110, 1118 (10th Cir. 2009) (quoting Gall v. United States,
552
U.S. 38, 51 (2007)). At bottom, the aim of such review is to determine whether
the sentence is unreasonably long, in light of the § 3553(a) factors. Finally, a
sentence within the properly-calculated advisory Guidelines sentencing range is
presumed on appeal to be reasonable. United States v. Alvarez-Bernabe,
626 F.3d
1161 (10th Cir. 2010).
Mr. Ocampo-Gutierrez’s sole argument is that the court gave “little or no
consideration either to the circumstances of Mr. Ocampo-Gutierrez’s escape, or to
his history and characteristics, as required by 18 U.S.C. § 3553(a)(1).”
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Appellant’s Br. at 9. “The sentencing court . . . is not required to consider
individually each factor listed in § 3553(a), nor is it required to recite any magic
words to show us that it fulfilled its responsibility to be mindful of the factors
that Congress has instructed it to consider before issuing a sentence.” United
States v. Cordova, 461 F.3d 1184, 1189 (10th Cir. 2006) (internal quotation marks
omitted).
The district court fulfilled its duty of explaining its reasons for imposing
the eighteen-month sentence, consecutive to any other sentence. It stated that it
wanted to ensure that Mr. Ocampo-Gutierrez did not avoid any punishment for his
escape conviction, even though it was committed long ago. The court listened to
Mr. Ocampo-Gutierrez’s personal statement and his counsel’s argument for a
lesser sentence, but simply rejected the argument that his escape conviction
should go unpunished, even though Mr. Ocampo-Gutierrez had led an exemplary
life in many respects since his escape. Given the § 3553(a) factors, we cannot say
that Mr. Ocampo-Gutierrez has shown that his sentence is unreasonable.
For the foregoing reasons, we AFFIRM the sentence imposed in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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