Filed: Oct. 09, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 9, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-2210 (D.C. No. 2:16-CR-03018-WJ-1) GUERRERO OCHOA-OLIVAS, (D. N.M.) Defendant - Appellant. _ ORDER AND JUDGMENT * _ Before HOLMES, BALDOCK, and CARSON, Circuit Judges. _ In May 2017, Defendant Guerrero Ochoa-Olivas, a citizen of Mexico, violated a condition of his unsupervised term
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 9, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-2210 (D.C. No. 2:16-CR-03018-WJ-1) GUERRERO OCHOA-OLIVAS, (D. N.M.) Defendant - Appellant. _ ORDER AND JUDGMENT * _ Before HOLMES, BALDOCK, and CARSON, Circuit Judges. _ In May 2017, Defendant Guerrero Ochoa-Olivas, a citizen of Mexico, violated a condition of his unsupervised term o..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 9, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2210
(D.C. No. 2:16-CR-03018-WJ-1)
GUERRERO OCHOA-OLIVAS, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, BALDOCK, and CARSON, Circuit Judges.
_________________________________
In May 2017, Defendant Guerrero Ochoa-Olivas, a citizen of Mexico, violated
a condition of his unsupervised term of supervised release when he reentered the
United States without legal authorization. After a sentencing hearing, the district court
revoked Defendant’s unsupervised term of supervised release and sentenced Defendant
to twelve months of imprisonment. Defendant appeals this twelve-month revocation
sentence, arguing the sentence is substantively unreasonable. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
In April 2016, U.S. Border Patrol agents encountered Defendant in Doña Ana
County, New Mexico, with no legal authorization to be present in the U.S. Agents
arrested him for illegal reentry in violation of 8 U.S.C. § 1326. Defendant pleaded
guilty to this offense pursuant to a plea agreement. In October 2016, the district court
sentenced Defendant to time served and a two-year unsupervised term of supervised
release. Conditions of Defendant’s release included that he “not commit another
federal, state, or local crime” and that he “not reenter the United States without legal
authorization.” ROA Vol. I, 24, 26. Immigration authorities removed Defendant to
Mexico shortly thereafter.
In May 2017, less than seven months after Defendant’s removal, U.S. Border
Patrol agents again encountered Defendant hiding in a bush in Doña Ana County, New
Mexico, with no legal authorization. Agents again arrested him for illegal reentry.
Defendant pleaded guilty to this new charge of illegal reentry pursuant to a plea
agreement. After Defendant pleaded guilty, the U.S. Probation Office petitioned the
district court to revoke Defendant’s term of release imposed in his 2016 case because
he violated the condition of release that he “not commit another federal, state, or local
crime.”
Prior to the hearing, the U.S. Probation Office prepared a presentence
investigation report (PSR). The PSR reveals Defendant’s recent convictions are not
Defendant’s only encounters with U.S. law enforcement. In 2007, Defendant was
arrested for illegal reentry and false claim to citizenship. He received time served for
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these crimes and was removed to Mexico. In January 2016, Defendant was arrested
for illegal entry. He received ninety days of imprisonment and was removed in April
2016—nine days before authorities arrested him in the U.S. again for illegal reentry in
his aforementioned 2016 case. All told, Defendant has been convicted for illegal
reentry three times, convicted for illegal entry one time, and removed from the U.S.
four times. The PSR additionally shows Defendant has a prior conviction in Cook
County, Illinois, for possession of between fifteen and one hundred grams of cocaine.
In light of Defendant’s criminal history and instant violation, the parties agreed
the U.S. Sentencing Commission’s relevant policy statement suggested a range of
imprisonment of twelve to eighteen months upon revocation of Defendant’s
unsupervised term of supervised release. 1 See U.S. Sentencing Guidelines Manual
§ 7B1.4(a) (U.S. Sentencing Comm’n 2016). Defendant filed a motion for a downward
departure, arguing he was coerced to enter the U.S. without authorization. Defendant
explained he initially wished to return to the U.S. to help his wife, a U.S. citizen,
recover from an automobile accident. After paying a smuggler $1500 to bring him to
the U.S., Defendant alleges he changed his mind and wanted to stay in Mexico. In
response to Defendant’s change of heart, the smuggler allegedly held Defendant at
gun-point and threatened to kill him if he did not cross the border. While Defendant
1
The U.S. Sentencing Commission issues policy statements, rather than
guidelines, regarding terms of imprisonment upon revocations of supervised release.
U.S. Sentencing Guidelines Manual Ch. 7, Pt. A (U.S. Sentencing Comm’n 2016).
3
did not assert duress as an affirmative defense to criminal liability, he argued these
facts satisfied “the broader definition of duress” for sentencing purposes.
The district court held a sentencing hearing regarding Defendant’s 2017 illegal
reentry conviction and the revocation of his term of release in his 2016 case. For the
illegal reentry conviction, the district court sentenced Defendant to eighteen months of
imprisonment and a two-year unsupervised term of supervised release. Defendant does
not challenge this eighteen-month sentence. For the revocation of his prior term of
release, the district court noted that, given Defendant’s violation and his criminal
history, his revocation range was twelve to eighteen months of imprisonment. The
court “[took] into account the mitigating circumstances that Defendant’s counsel
raised” but did not depart downward from the revocation range. ROA Vol. V, 19.
Instead, the court concluded the lower end of the range was appropriate and sentenced
Defendant to twelve months of imprisonment—six months to run concurrently to the
eighteen-month sentence and six months to run consecutively. Defendant timely
appealed this revocation sentence.
II.
Defendant’s sole challenge on appeal is to the substantive reasonableness of his
twelve-month revocation sentence. “We review the substantive reasonableness of a
sentence for abuse of discretion.” United States v. Chavez, 723 F.3d 1226, 1233 (10th
Cir. 2013) (citing Gall v. United States,
552 U.S. 38, 51 (2007)). In determining the
substantive reasonableness of a sentence, we look to “the circumstances of the case in
light of the factors set forth in 18 U.S.C. § 3553(a).”
Id. (quoting United States v.
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Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011)). If such considerations indicate
the sentence “exceed[s] the bounds of permissible choice,” the sentence is
substantively unreasonable.
Id. (quoting United States v. McComb,
519 F.3d 1049,
1053 (10th Cir. 2007)). Sentences within the range suggested by the U.S. Sentencing
Commission’s policy statements are presumptively reasonable, and a defendant bears
the burden of rebutting this presumption “in light of the other sentencing factors laid
out in [18 U.S.C.] § 3553(a).” 2 United States v. McBride,
633 F.3d 1229, 1232–33
(10th Cir. 2011) (citing United States v. Kristl,
437 F.3d 1050, 1055 (10th Cir. 2006)).
In this case, the district court sentenced Defendant within the range suggested
by the Commission. Thus, Defendant’s twelve-month sentence is presumptively
reasonable, and Defendant bears the burden of rebutting this presumption in light of
the § 3553(a) factors. Defendant argues his sentence is unreasonable and greater than
necessary to achieve sentencing goals because his violation resulted from coercive
circumstances. Defendant argues this coercion eliminates the need for deterrence,
presumably because there is no voluntary action to deter. We disagree. Even if
Defendant was coerced to reenter the U.S., Defendant voluntarily paid a smuggler
$1500 to bring him to the U.S. and went to the border. Furthermore, after crossing the
2
The relevant § 3553(a) factors include: “the nature and circumstances of the
offense and the history and characteristics of the defendant”; the need to provide
adequate deterrence; the need to protect the public; the need to provide the defendant
with training, medical care, or other treatment; the relevant sentencing range; any
pertinent policy statements; “the need to avoid unwarranted sentence disparities
among” similarly situated defendants; and “the need to provide restitution to any
victims.” 18 U.S.C. § 3553(a); see id. § 3583(e).
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border, Defendant did not turn himself into authorities or turn around once he crossed
the border. Instead, he showed an attempt to evade authorities by hiding in a bush in
Camino Real Landfill, which is approximately two miles north of the border.
Defendant voluntarily took these actions despite his prior convictions, his four
prior removals, and multiple warnings not to come back to the U.S. without legal
authorization. The district court recounted that in sentencing Defendant in 2016, the
court told Defendant, “[D]o not come back. You will not be authorized to come back.”
ROA Vol. V, 8. The district court continued:
I gave him a time-served sentence, and then as an additional incentive, I
imposed an unsupervised term of supervised release. So I gave him the
minimum sentence I could, and I said, don’t come back, and here’s an
additional reason not to come back, because you’re under an unsupervised
term of supervised release.
Id. Despite the district court’s efforts to deter Defendant’s reentry, Defendant
voluntarily took the aforementioned actions that resulted in the revocation of his
unsupervised term of supervised release. The need to specifically deter Defendant
from entering the U.S. without legal authorization remains.
Defendant notes three other facts in passing. To the extent Defendant argues
these facts rebut the presumption of reasonableness attached to his sentence or
establish his sentence is greater than necessary, we disagree. First, Defendant notes
his initial reason for reentering the U.S. was a desire to be with his wife while she
recovered from an automobile accident. This desire is understandable but simply does
not explain why, in light of the § 3553(a) factors, his sentence is unreasonable. Second,
Defendant notes none of Defendant’s prior convictions are for violent offenses, so
6
there is no need to protect the public from Defendant. Protection of the public,
however, is only one of many § 3553(a) factors the district court must consider. The
district court was not required to afford this factor more weight than other factors,
specifically Defendant’s criminal history or the need to deter Defendant from future
illegal reentries. See United States v. Barajas-Garcia, 229 F. App’x 737, 741 (10th
Cir. 2007) (unpublished). Third, Defendant notes he is certain to be removed to
Mexico after serving his sentences. But the PSR shows Defendant has been removed
four times already and continues to reenter the U.S. without legal authorization.
Because removal clearly has no deterrent effect on Defendant, Defendant’s inevitable
removal has little-to-no bearing on the reasonableness of his sentence here.
Especially in light of Defendant’s criminal history and the need for deterrence,
the district court certainly did not “exceed the bounds of permissible choice” by
sentencing Defendant to twelve months of imprisonment. Defendant has not rebutted
the presumption of reasonableness attached to his twelve-month revocation sentence
or established the sentence was greater than necessary to achieve sentencing goals. We
therefore AFFIRM.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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