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NO. 06-2211_________________________________________
THE UNITED STATES COURT OFAPPEALSFOR THETENTH CIRCUIT
_________________________________________
UNITED STATES OFAMERICA, Plaintiff-Appellee,
v.
JUAN EDUARDO MARQUEZ, Defendant Appellant._________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEWMEXICO,
THE HONORABLEJOHN EDWARDS CONWAY,CASE NO. 06-563 JC
_________________________________________
DEFENDANT-APPELLANTJUAN EDUARDO MARQUEZBRIEF IN CHIEF
_________________________________________
ORALARGUMENTREQUESTED
TRACE L. RABERN1626 Ben Hur DriveSanta Fe, New [email protected]
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Table of Contents
Table of Contents ..........................................................................................................iiTable of Authorities......................................................................................................iv
Statement Regarding Prior or Related Appeals.........................................................vi
Jurisdictional Statement.................................................................................................1Statement of the Case and Facts..................................................................................3
I. MR. MARQUEZ DOES NOT MEET THE LEGAL DEFINITION OF ONEWITH AN AGGRAVATED FELONY UNDER 1326(B)(2), WHICH CARRIES A20-YEAR MAXIMUM, AND SHOULD HAVE BEEN SENTENCED UNDER
1326(B)(1), WHICH CARRIESA 10-YEAR MAXIMUM. ..............................................12 A. Mr. Marquez Twenty-Year Old Texas Conviction Is Not An AggravatedFelony..........................................................................................................................12 B. Mr. Marquez Plea To The Information Does Not Preclude Him From BeingSentenced Properly Under 1326(b)(1) Instead Of (b)(2)....................................16C. The Error Must Probably Be Reviewed Under The Plain Error StandardSince This Precise Argument Was Not Raised At Sentencing..............................18D.The Guidelines Do Not Reflect The Three Levels Of Culpability In TheStatute............................................................................................................................20 E. The Error In Sentencing Under 1326(b)(2) Instead of 1326(b)(1) Is NotHarmless Error, It Constitutes Plain Error. .............................................................21F.Indeed The Fact That The Guidelines Advise An Identical Penalty Range For
Violations Of 1326(B)(2), Which Congress Had Decided Merits A Penalty UpTo 20 Years, As For Violations Of 1326(B)(1), Which Congress Deemed ToMerit A Maximum Of 10 Years, Or Half Of (B)(2), Illustrates The Need For
Departure Under 3553(A). .....................................................................................24II. THE DISTRICT COURT ERRED IN APPLYING THE 16-LEVEL INCREASEBECAUSETHE INCREASEAPPLIED INTHIS PARTICULAR CASE IS CAPRICIOUS
AND UNREASONABLE UNDERTHE 3553(A) OBJECTIVES..................................24III. THE DISTRICT COURT APPEARS TO HAVE VIOLATED THE LESSONFROM R ITA AND BEGAY THAT THE DISTRICT COURT SHOULD NOT ANDMAYNOT EMPLOYA PRESUMPTION IN FAVOROFA GUIDELINES SENTENCE.
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30IV. IN THEALTERNATIVE TO POINT I, MR. MARQUEZASKS THIS COURT
TO REVISIT GONZALEZ-CORONADOSADOPTION OFTHE NINTH CIRCUITSP IMENTAL-FLORES. ....................................................................................... 33
Conclusion....................................................................................................................35 Statement of Reason for Oral Argument..................................................................35Certificate of Service....................................................................................................36Certificate of Compliance with Rule 32(A)(7)..........................................................37
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TABLE OFAUTHORITIES
Federal Cases
Almendarez-Torres v. United States, 523 U.S. 224 (1998) ............................................... 15, 16
Ramsey v. I.N.S., 55 F.3d 580 (11th Cir. 1995) ...................................................................14
Rita v. United States, ___ S.Ct.___, 2007 WL 1772146 (June 21, 2007).....................passim
United States v. Begay, 470 F.3d 964 (10th Cir. 2006) ................................................... 25, 30
United States v. Booker, 543 U.S. 220 (2005).................................................................. 17, 23
United States v. Cage, 451 F.3d 585 (10th Cir. 2006) .................................................... 17, 23
United States v. Cordova-Arevalo, 373 F.Supp. 2d 1220 (D.N.M. 2004) .............................14
United States v. Figueroa-Ocampo, __ F.3d __ 2007 U.S. App. LEXIS 17518 (9th Cir. July24, 2007).............................................................................................................................22
United States v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005)....................................32
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)...........................................................1
United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005) ................................................17
United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) ................................................. 18, 23
United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006).............................................18
United States v. Olano, 507 U.S. 725 (1993) ................................................................... 17, 18
United States v. Oscar Ortuno-Caballero, 187 Fed. Appx. 814, 2006 U.S. LEXIS 16649(10th Cir. 2006) (Unpublished) .......................................................................................28
United States v. Pimentel-Flores, 339 F.3d 959 (9th Cir. 2003) .............................................32
United States v. Ramirez, 367 F.3d 274 (5th Cir. 2004)........................................................32United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) .................................................25
United States v. Rogers, 400 F.3d 640 (8th Cir. 2005)...........................................................25
United States v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005) ........................................24
United States v. Villarreal-Tamayo, 467 F.3d 630 (9th Cir. 2006) ........................................16
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United States v. Williams, 410 F.3d 397 (7th Cir. 2005).......................................................16
Statutes
18 U.S.C. 3231......................................................................................................................1
18 U.S.C. 3742......................................................................................................................1
28 U.S.C. 1291......................................................................................................................1
8 U.S.C. 1101(a)(43)...................................................................................... 3, 8, 12, 13-23
8 U.S.C. 1326 .................................................................................................................. 8-23
8 U.S.C. 1326(a)....................................................................................................................1
8 U.S.C. 1326(a)(1) and (2)............................................................................................ 3-23
8 U.S.C. 1326(b)(2)......................................................................................................... 3-23
Section 30.02(a), Tex. Penal Code Ann. (Vernon 1974) ....................................................3
Tex. Penal Code Ann. sec. 15.01(a) (Vernon 1987)............................................................3
U.S.S.G 4A1.2(e)(3)..............................................................................................................4
U.S.S.G 2L1.2(a)......................................................................................................................4
U.S.S.G. 2L1.2(b)(1)(A)...............................................................................................passim
U.S.S.G. 5D1.2(a)(1) (2005)..............................................................................................22
U.S.S.G. 5D1.2(a)(2)(2005) ...............................................................................................22
State Cases
Roach v. State. 635 S.W.2d 169 (Tex. App. 1982) .................................................................3
Rules
Fed. R. App. P. 28(a)(4)(A)....................................................................................................1
Fed. R. App. P.28(a)(4)(B) ....................................................................................................1
Fed. R. App. P. 28(a)(4)(C) ....................................................................................................1
Fed. R. App. P. 28(a)(4)(D)....................................................................................................1
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Statement Regarding Prior or Related Appeals
There are no prior or related appeals.
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Jurisdictional Statement
The District Courts jurisdiction, seeFed. R. App. P. 28(a)(4)(A), arose under 18
U.S.C. 3231 (district court jurisdiction over federal offenses) and arose when Juan
Eduardo Marquez was charged by information and subsequently waived indictment
with the crime of Re-Entry Of A Departed Alien Previously Convicted Of An
Aggravated Felony contrary to 8 U.S.C. 1326(a)(1) and (2) and 8 U.S.C.
1326(b)(2).
This Courts appellate jurisdiction, seeFed. R. App. P.28(a)(4)(B), arises under
28 U.S.C. 1291 (appellate jurisdiction over final decisions of district courts) and 18
U.S.C. 3742(a) and (b) (review of sentence imposed).
This brief is timely. See Fed. R. App. P. 28(a)(4)(C). This Court granted
counsel for Mr. Marquez request for extension making this Brief due on September
8, 2007.
This appeal is from a district courts entry of a sentence in a criminal case,
which is a final order. SeeFed. R. App. P. 28(a)(4)(D); United States v. Hahn, 359 F.3d
1315, 1320 (10th Cir. 2004) (en banc) (the entry of a sentence constitutes a final order
establishing subject matter jurisdiction under 28 U.S.C. 1291).
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ISSUES PRESENTED FORREVIEW
I. MR. MARQUEZ DOES NOT MEETTHE LEGAL DEFINITION OF ONEWHO HAS COMMITTEDAND AGGRAVATED FELONY UNDER 1326(B)(2),WHICH HAS A 20-YEAR MAXIMUM. RATHER, HE IS ONE WHO HASCOMMITTED A FELONY UNDER 1326(B)(1), AND THE MAXIMUM HEFACES UNDER STATUTE IS 10 YEARS, AS A MATTER OF LAW. MR.MARQUEZWAS SENTENCED UNDERTHE UNDERSTANDINGTHAT HEWAS
A PERSON WITH A PRIOR AGGRAVATED FELONY. WAS MR. MARQUEZSENTENCING CALCULATION PLAIN ERROR?
A. Is Mr. Marquez Twenty-Year Old Texas Conviction, For Which He WasSentenced To Term of Incarceration, An Aggravated Felony Under 8 U.S.C. 1101(a)(43)?B. Does Mr. Marquez Plea To The Information Preclude Him From BeingSentenced Properly Under 1326(b)(1) Instead Of (b)(2)?C. Was Sentencing Mr. Marquez Under A Statute With A 20-Year MaximumInstead Of The Proper Statute With A 10-Year Maximum Plain Error?D.
Do the Guidelines Fail To Reflect The Three Levels Of Culpability In TheStatute?
E. Is The Error In Sentencing Under 1326(b)(2) Instead of 1326(b)(1) NotHarmless Error, But Plain Error?F. DoesThe Fact That The Guidelines Advise An Identical Penalty Range For
Violations Of 1326(B)(2), Which Congress Had Decided Merits A Penalty UpTo 20 Years, As For Violations Of 1326(B)(1), Which Congress Deemed ToMerit A Maximum Of 10 Years, Or Half Of (B)(2), Illustrates The Need ForDeparture Under 3553(A)?
II. DID THE DISTRICT COURT ERR INAPPLYING THE 16-LEVEL INCREASEBECAUSETHE INCREASEAPPLIED INTHIS PARTICULAR CASE IS CAPRICIOUS
AND UNREASONABLE UNDERTHE 3553(A) OBJECTIVES?III. DID THE DISTRICT COURT VIOLATE THE LESSON FROM R ITA ANDBEGAY THATTHE DISTRICT COURT SHOULD NOT AND MAYNOT EMPLOYA
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PRESUMPTION IN FAVOR OF A GUIDELINES SENTENCE AND AVOID A 3553(A) ANALYSIS?IV. IN THEALTERNATIVE TO POINT I, SHOULDTHIS COURTTO REVISIT
GONZALEZ-CORONADOS ADOPTION OF THE NINTH CIRCUITSP IMENTAL-FLORES? ...................................................................................... 33
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Statement of the Case and Facts
Appellant Juan Eduardo Marquez was stopped January 4, 2006, at an Otero
County, New Mexico DWI roadblock checkpoint. Officers ran a check and
discovered he had an immigration services hold, and called the Border Patrol. Mr.
Marquez freely admitted to the Border Patrol agent that he was a citizen of Mexico
and had no documents that gave him permission to be in the United States. He has
been in custody since.
He was charged by information on March 17, 2006, with the crime of being
found in the United States without permission after being deported and having been
convicted of an aggravated felony under 8 U.S.C. 1101(a)(43), in violation of 8
U.S.C. 1326(a)(1) and (2) and 8 U.S.C. 1326(b)(2). (Vol. I at 1, Information.) The
Information charged that Mr. Marquez had been convicted of an aggravated felony, to
wit: Attempted Burglary of a Habitation,1
and subsequently deported.
1 Section 30.02(a), Tex. Penal Code Ann. (Vernon 1974), provides, in relevant part,that a person commits burglary who: (1) enters a habitation or building (2) not thenopen to the public, and (3) with intent to commit a felony or theft. Section 30.02(a)provides further that "enter" means to intrude: (1) any part of the body, or (2) anyphysical object connected with the body. To sustain a conviction for attempted
burglary, evidence must establish that the accused, with requisite intent, committed anact amounting to more than mere preparation to enter the building that tended, butfailed, to effect the commission of burglary of the building. Roach v. State. 635 S.W.2d169 (Tex. App. 1982); Tex. Penal Code Ann. sec. 15.01(a) (Vernon 1987).
None of this information was in the PSR in this case.
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Mr. Marquez waived indictment and pleaded guilty to the Information, without
the benefit of any plea bargain, in front of United States Magistrate Molzen on the
same day as the information was filedMarch 17, 2006. Through counsel, he
explained to the court that a fast-track plea had been offered, but that he chose to
decline it and instead plead straight-up to the charge in the information. The fast-
track plea would require waiver of any right to pursue the downward departure or
adjustment he and his attorney felt his situation would warrant, specifically, the
inequities regarding his criminal history.
Mr. Marquez predicate felony is twenty years old, from 1987, and he was 18
years old at the time. He was not subsequently deported until 1999. This 1987
offense was not the offense that triggered his deportation in 1999. This 1987 offense
is so old that is cannot be factored into Mr. Marquez criminal history calculation. See
PSR at 5; U.S.S.G 4A1.2(e)(3).) According to the Presentence Report (PSR), Mr.
Marquez and another person were found by officers outside his neighbors home, and
Mr. Marquez freely admitted that the had pried open the kitchen window with a
garden shovel. He pleaded guilty to the charge of Attempted Burglary of Habitation,
and was sentenced to 10 years of probation. There is no indication he ever violated
probation or otherwise was sentenced to time of incarceration, at all.
The base level for Mr. Marquez pleaded offense is eight (8), pursuant to
U.S.S.G 2L1.2(a). It was undisputed that Mr. Marquez had demonstrated acceptance
of responsibility warranting a three (3) level reduction in the offense level. He had
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also plead to the offense of reentry after deportation for a felony, which, if found as a
sentencing factor, would increase his offense level by eight (8) levels, to thirteen. This
much is undisputed. The Pre-sentence Report prepared by United States Probation
and Parole recommended a sixteen (16) level enhancement for the offense level under
2L1.2(b)(1)(A), on the grounds that Mr. Marquez twenty-year-old Texas conviction
was a crime of violence under U.S.S.G. 2L1.2(b)(1)(A), instead of an 8-year
enhancement for deportation after a felony. The PSR reasoned that he was
convicted in 1987 of a felony punishable by ten years in custody, and he was actually
sentenced to ten years of probation. Subsequently (twelve years later) Mr. Marquez
was deported in 1999. This, the PSR reasoned, warranted a sixteen (16) level increase.
Under the Presentence Report calculation, Mr. Marquez was left with an offense level
of 21 (base level of 8 plus crime of violence enhancement of 16 minus acceptance
of responsibility reduction). The guideline range under the Presentence Report
calculation was 46-57 months. His statutory maximum as calculated was 240 months.
Counsel for Mr. Marquez objected to several aspects of the Presentence Report
in a Sentencing Memorandum And Request For Downward Adjustment From
Advisory Sentencing Guideline Calculations. The Memorandum appears to have
made a generic objection to the 16-level increase, although no calculationbasis for the
objection is clearly articulated (other than the Booker/3553(a) basis). The
Memorandum did argue at more length that the 16-level increase was unreasonable
under Booker and the 3553(a) factors, pointing out in a word that all of Mr.
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Marquezs conduct, including this offense, sprang from his need to support his family,
which he has done since taking a job selling chewing gum at age 12. His prior
conviction was so oldnearly 20 years oldthat it could not even be used for
calculating criminal history. Yet this old conviction, for conduct which caused no
harm, did cause his offense level to triple from 8 to 24. He urged that the advised
range did not reflect the seriousness of the offense, and that the range did not serve
any of the purposes in paragraph 2 of 3553(a). Counsel attached letters from nine
people--family members, an employer and a landlordthat all attested to the fact that
Mr. Marquez is a lawful man who works hard to support his large family, and that he
is greatly needed by his family.
The district courts reception of these pleas for a sentence below the advisory
range was as perfunctory as it was blunt. Seven members of Mr. Marquez family
traveled from Texas to his sentencing to show their support for him. The district
court, when asked to consider the Memorandum and the attached letters and the
family members who had traveled to the hearing, stated, I have considered it, and
nothing about the sentence Im going to give him causes me any problems. (Vol. III
at 2-3.) The district court heard Mr. Marquez brief allocution, then sentenced Mr.
Marquez to 46 months, the bottom of the Guidelines range of 46-57 months
recommended by the PSR.
Counsel for the Government then politely prompted the district court to state
on the record its reasons for not departing from the Guidelines as the defense
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requested. The district court stated: Well, there was a departure requested. I did
not depart. (Vol. III at 4.) Counsel for the Government pressed the district court
again to state its sentencing analysis for the record. The district court stated, Didnt I
say I thought the sentence was fitting? How much more do you want? (Id.) The
Governments counsel replied that she was just trying to protect the record for appeal.
The district court retorted: No appellate court is going to overturn me on that. (Id.
at 5.) That was the end of the sentencing hearing. It lasted four minutes.2
APPELLATE PROCEDURE
Mr. Marquez appealed. His original Brief on appeal was an Andersbrief, and it
was rejected by the Court and his counsel was allowed to withdraw. Undersigned
counsel was appointed and files this Opening Brief in its place.
2 From 9:10 am until 9:14 am, according to the court reporter.
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SUMMARY OF THEARGUMENT
This appeal requires a rather technical and tedious dissection of the relevant
statute and Guidelines.
Mr. Marquez does not meet the legal definition of one who has committed and
aggravated felony under 1326(b)(2), which has a 20-year maximum. Rather, he is
one who has committed a felony under 1326(b)(1), and the maximum he faces
under statute is 10 years. The definition of aggravated felony in 1326(b)(2) is
coterminous with the definition under immigration law, in 8 U.S.C. 1101(a)(43).
Section 1101(a)(43) defines aggravated felony (in relevant part) to mean either a
crime of violence3 under 18 U.S.C. 16 ora theft offense (including burglary), both
of which must have a term of imprisonment of at least one year. 8 U.S.C. 1101(a)(43)(F) and
(G); see also 8 U.S.C. 1101(a)(43)(H) (attempts are included with offenses listed). The
reason Mr. Marquez predicate conviction is not an aggravated felony under the
statute is because, according to the PSR, the Texas court did not impose any term of
incarceration, only probation, which was never violated. His Texas conviction is thus
not an aggravated felony as a matter of law.
It is true that Mr. Marquez pleaded straight up to the information, which
alleged violations of 1326(a)(1) and (2) and 1326(b)(2), and that the information
does not mention 1326(b)(1). However, the federal appellate courts, including the
3 This analysis assumes for the sake of argument that the Texas attempted burglaryconstitutes a crime of violence under 18 U.S.C. 16.
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United States Supreme Court, have held that the question of whether a predicate
felony is aggravated or not under 1326 is not an element of the offense, it is a
pure sentencing factor. As a consequence, courts have held that defendants who have
entered a plea to violation of 1326(b)(1) or of 1326(a) can constitutionally and
procedurally be sentenced as aggravated felons under 1326(b)(2), even though it
was not mentioned or included in their information or plea. It follows that the
converse must also be true: A defendant like Mr. Marquez whose plea mentioned
1326(b)(2) can be sentenced under (b)(1) if an analysis of the sentencing facts makes
it appropriate.
Analytically it is essential to note that while Mr. Marquez does not meet the
legal test for aggravated felony under the statute, he doesappear to meet the legal
definition of crime of violence contained in the Application Notes for the relevant
provision of the Guidelines. A crime of violence for purposes of the relevant
Guideline is defined to include burglary, without respect to any term of incarceration.
U.S.S.G. 2L1.2(b)(1)(A) (a crime of violence increases offense level by 16) and
U.S.S.G. 2L1.2 Application Notes1(B)(iii) (defining crime of violence to include
burglary, with no limit on the term of imprisonment).
Despite Congress clear language in the statute setting out three disparate levels
of culpability, the relevant Guideline and its Application Notes make no distinctions
whatsoever between the statutes three levels of crimes (simple illegal re-entry, re-
entry with a prior felony, and re-entry with a prior aggravated felony) and does not
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in turn reflect the three levels of penalties in the statute (maximum two years,
maximum 10 years, and maximum 20 years, respectfully). Thus the now-advisory
Guidelines still advise a 16-level increase in offense level, even if Mr. Marquez was
sentenced under 1326(b)(1) instead of (b)(2).
This does not make Mr. Marquez appeal moot or render it harmless error,
however. Mr. Marquez made a compelling case at sentencing asking the district court
to sentence him below the advised range. The district court sentenced at the very
bottom of the range--46 months, with the understanding that Mr. Marquez faced a
statutory range of up to 20 years. This was imposing a penalty roughly one-eighth of
the (erroneous) maximum. If the district court had known that the statutory range
was actually capped at only 10 years, it may well have been moved to sentence below
that range. Forty-six months is more than one-third of the proper maximum. In
context of what Congress felt was an appropriate penalty, the bottom Guideline
sentence is much, much harsher for a violation of 1326(b)(1) than it is for
1326(b)(2).
Moreover, the fact that the Guidelines would sentence any given defendant to
the same 8 level base plus 16-level increase no matter whether the accused had a prior
simple felony or an aggravated felony (which includes murders, rapes, and armed
robberies) helps to demonstrate Mr. Marquez point at sentencing: That the
Guidelines advised range does not rationally reflect the defendant and the offense,
and that the 3553(a) factors demand a different result.
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STANDARDS OF REVIEW
Issue I is a procedural reasonableness question that will be reviewed de novo
(legal error in calculation) but for plain error, because it does not appear to have been
preserved below. See, e.g., United States v. Soussi, 316 F.3d 1095, 1108 (10th Cir. 2002)
("A district court abuses its discretion if it makes an error of law."); see, e.g., United
States v. Cage, 451 F.3d 585, 595 (10th Cir. 2006) (a district court abuses its discretion
when it gives one statutory factor too much weight); United States v. Hildreth, 485 F.3d
1120, 1130 (10th Cir. 2007) (a district court abuses its discretion when it expressly
disregards another factor). Issue II is a substantive reasonableness question that will
be reviewed under the special Rita standard of review of abuse of discretion but
reviewed for harmless error, as this issue was preserved below. See Rita, 127 S. Ct. at
2466-67 (In sentencing, as in other areas, district judges at times make mistakes that
are substantive.Circuit courts exist to correct such mistakes when they occur.)
Issue III is a procedural reasonableness question, like Issue I, that will probably be
reviewed for harmless error because it was preserved. Issue IV is a pure question of
law that will be reviewed de novo.
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ARGUMENT
I. MR. MARQUEZ DOES NOT MEETTHE LEGAL DEFINITION OF ONEWITH AN AGGRAVATED FELONY UNDER 1326(B)(2), WHICH
CARRIES A 20-YEAR MAXIMUM, AND SHOULD HAVE BEENSENTENCED UNDER 1326(B)(1), WHICH CARRIES A 10-YEARMAXIMUM.
This issue requires a rather technical and tedious dissection of the relevant
statute and Guidelines. The point is to show that the statute employs different key
definitions, which, in this case, result in different levels of penalties for different
reasons than those reflected in the relevant Guidelines.
A. Mr. Marquez Twenty-Year Old Texas Conviction Is Not AnAggravated Felony.
Mr. Marquez does not meet the legal definition of one who has committed and
aggravated felony under 1326(b)(2), which has a 20-year maximum. Rather, Mr.
Marquez is one who has committed a felony under 1326(b)(1), and the maximum
he faces under statute is 10 years, rather than 20.
Congress enacted 8 U.S.C. 1326 to provide for three levels of culpability, with
three disparate levels of maximum penalties: 24 months, 120 months, or 240 months.
The statutes provides in relevant part:
Reentry of removed aliens
(a) In general
Subject to subsection (b) of this section, any alien who--
(1) has been denied admission, excluded, deported, orremoved or has departed the United States while an order
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of exclusion, deportation, or removal is outstanding, andthereafter
(2) enters, attempts to enter, or is at any time found in,the United States, . . . .
shall be fined under Title 18, or imprisoned not morethan 2 years, or both.
(b) Criminal penalties for reentry of certain removedaliens
Notwithstanding subsection (a) of this section, in thecase of any alien described in such subsection--
(1) whose removal was subsequent to a conviction forcommission of . . . a felony (other than an aggravated
felony), such alien shall be fined under Title 18, imprisonednot more than 10 years, or both; . . . .
(2) whose removal was subsequent to a conviction forcommission of . . . an felony (other than an aggravatedfelony), such alien shall be fined under Title 18, imprisonednot more than 10 years, or both . . . .
8 U.S.C. 1326.
Under 8 U.S.C. 1326(b), a court may enhance a defendant's sentence from the
two year maximum pursuant to 8 U.S.C. 1326(b)(a) if the offense falls within one of
the enumerated categories. Section 1326(b)(2) allows for an increased maximum
sentence of 20 years. This provision, however, applies only to aggravated felonies.
The definition of aggravated felony in 1326(b)(2) is coterminous with the
definition under immigration law, in 8 U.S.C. 1101(a)(43). Section 1101(a)(43)
defines aggravated felony (in relevant part) to mean either a crime of violence4
4 This analysis assumes for the sake of argument that the Texas attempted burglaryconstitutes a crime of violence under 18 U.S.C. 16.
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under 18 U.S.C. 16 ora theft offense (including burglary), both of which must have a
term of imprisonment of at least one year. 8 U.S.C. 1101(a)(43)(F) and (G); see also 8 U.S.C.
1101(a)(43)(H) (attempts are included with offenses listed).
Because the actual sentence imposed for Mr. Marquez 1987 Texas conviction
was less than one year (it was simple probation), it does not qualify as an aggravated
felony under 8 U.S.C. 1101(a)(43)(F).
To avoid the potential for confusion, it should be noted that the felony
definition applicable to Guideline 2L1.2(b)(1)(A) is based on the maximum possible
sentence under the particular state law, in contrast to the statutory definition of an
aggravated felony, which requires that the defendant was actually sentenced to prisonfor
at least one year. Compare 8 U.S.C. 1101(a)(43)(F) and (G) with U.S.S.G.
2L1.2(b)(1)(A) and cmt. n. a(B)(iii).5 See, e.g., United States v. Cordova-Arevalo, 373
5 The PSR applied the 2005 edition of the Guideline manual in determining itssentence recommendation. U.S.S.G. 2L1.2, Unlawfully Entering or Remaining in theUnited States, is the applicable guideline for 1326 convictions. Guideline 2L1.2provides in relevant part: [I]f the defendant previously was deported, or unlawfullyremained in the United States after a conviction for a felony . . . that is a crime of
violence . . . increase [the offense level] by 16 levels . . . . A crime of violence isdefined to include inter aliaburglary. U.S.S.G. 2L1.2, comment. (n.1(B)(iii)). Theguideline, like the statute, does not define the term felony. But a definition is supplied
in the commentary to 2L1.2 which defines a felony as "any federal, state, or localoffense punishable by imprisonment for a term exceeding one year." U.S.S.G. 2L1.2,comment n. 2.
Section 2L1.2 has its own definition of "crime of violence." It notes that, for purposesof U.S.S.G. 2L1.2(b)(1), a "'crime of violence' means any of the following: . . .burglary . . . or any offense under federal, state or local law that has an element the
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F.Supp. 2d 1220 (D.N.M. 2004) (holding that under 8 U.S.C. 1326 a prior conviction
qualified as a felony with a 10-year maximum because it carried apossiblesentence of
over one year, but was not an aggravated felony with a 20-year maximum because
the defendant was actually sentenced to serve only 10 days in jail), affd 456 F.3d 1229
(10th Cir. 2006).
The reason Mr. Marquez predicate conviction is not an aggravated felony
under the statute is because, according to the PSR, the Texas court did not impose
any term of incarceration (only probation, which was never violated). His Texas
conviction is thus not an aggravated felony as a matter of law.6
The statutory maximum under 8 U.S.C. 1326(b)(2), therefore, is not
applicable. The district court in this case relied upon the applicability of 1326(b)(2),
with its 20-year maximum penalty. The proper level of offense was 1326(b)(1), and
use, or threatened use of physical force against the person of another." U.S.S.G. 2L1.2 cmt. n. 1(B)(iii)(2003). The current definition is a result of the 2003amendment to U.S.S.G. 2L1.2. The earlier version of the definition stated that"crime of violence -- (I) means an offense under federal, state, or local law that has anelement the use, attempted use, or threatened use of physical force against the personof another; and (II) includes . . . aggravated assault . . . ." See U.S.S.G. 2L1.2 cmt. n.1(B)(ii) (2001). The Commission amended the definition to clarify the confusion "theprevious definition often led to . . . over whether the specified offenses listed in thatdefinition . . . also had to include as an element of the offense 'the use, attempted use,
or threatened use of physical force against the person of another.' The amendeddefinition makes clear that the enumerated offenses are always classified as 'crimes of
violence,' regardless of whether the prior offense expressly has as an element the use,attempted use, or threatened use of physical force against the person of another."U.S.S.G. 2L1.2 cmt. to amend. 651 (2003).6 Whether a prior conviction is an aggravated felony under 1101(a)(43) is a questionof law. Ramsey v. I.N.S., 55 F.3d 580, 582 (11th Cir. 1995).
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it carried only half that maximum penalty. In other words, as Congress wrote the
statute, it contemplated that illegal re-entry with an aggravated felony was twice as
bad as illegal re-entry with a simple felony for which a minimal punishment had been
imposed. Congress intended people like Mr. Marquez, sentenced only to probation,
to be punished very differently than someone who had previously been sentenced to
more than a year.
B. Mr. Marquez Plea To The Information Does Not Preclude HimFrom Being Sentenced Properly Under 1326(b)(1) Instead Of
(b)(2).
It is true that Mr. Marquez pleaded straight up to the information, which
alleged violations of 1326(a)(1) and (2) and 1326(b)(2). The information does not
mention 1326(b)(1). The Government may argue that Mr. Marquez has waived the
argument he makes here by virtue of his plea.
However, the federal appellate courts, including the United States Supreme
Court, have held that the question of whether a predicate felony is aggravated or
not under 1326 is not an element of the offense, it is a pure sentencing factor. In
Almendarez-Torres v. United States, 523 U.S. 224, 226, 239 (1998), the defendant argued
that 8 U.S.C. 1326 required that the prior felony convictions be stated in the
indictment. The court found that 1326(a) forbid an alien from returning to the
United States following deportation without permission. The United States Supreme
Court found that 1326(b)(2) authorized an additional prison term if the deportation
was following a conviction for an aggravated felony. The court held that the section
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was a penalty provision to be considered by the trial judge at sentencing, to increase
the sentence for a recidivist. It did not define a separate crime and therefore the prior
felony convictions did not need to be stated in the indictment. The court held that
recidivism was the most traditional basis for a trial court to increase an offender's
sentence and 1326(b)(2) applied only to punishment.
As a consequence, courts have held that defendants who have entered a plea to
violation of 1326(b)(1), or to 1326(a) generically, can constitutionally and
procedurally be sentenced as aggravated felons under 1326(b)(2), even though it
was not mentioned or included in their plea. See, e.g., United States v. Villarreal-Tamayo,
467 F.3d 630, 632-33 (9th Cir. 2006) (holding charge and conviction under 1326(a)
can be sentenced under 1326(b)(2) withoutApprendior procedural problems); United
States v. Williams, 410 F.3d 397, 401-02 (7th Cir. 2005) ("The existence of a prior
conviction for an aggravated felony was 'as typical a sentencing factor as one might
imagine,'. . . . As such, that factor could be determined by the judge rather than a
jury. (quotingAlmendarez-Torres, 523 U.S. at 230, 243-44)). The Court of Appeals in
Villarreal-Tamayo went so far as to hold that it was of no consequence that a judge at
the plea proceeding under 1326(a) did not find or inquire or mention whether there
was an aggravated felony or not invoking 1326(b). 467 F.3d at 632-33.
It follows that the converse must also be true: a defendant like Mr. Marquez
whose plea mentioned 1326(b)(2) can be sentenced under (b)(1) if an analysis of the
sentencing facts makes it appropriate.
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Mr. Marquez may have a preservation problem requiring plain error review, but
he has not by entry of his plea waived his right to challenge the imposition of
sentence under 1326(b)(2). See generally United States v. Olano, 507 U.S. 725, 733
(1993) (Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.) and
United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005) (We conclude that
[defendant]'s failure to object to the 16-level adjustment resulted from an oversight by
defense counsel and was therefore accidental rather than deliberate.).
C. The Error Must Probably Be Reviewed For Plain Error Since ThisPrecise Argument Was Not Raised At Sentencing.
Trial counsel for Mr. Marquez did not directly make the argument that Mr.
Marquez was not a person with an aggravated felony below. He argued against the
16-level increase in offense level as unreasonable for all the reasons under 3553(a)
and Booker, but cannot fairly be said to have challenged the Guidelines calculations
employed in the PSR (other than the criminal offense level, not relevant here) by
pointing out that Mr. Marquez 1987 Texas conviction was not an aggravated
felony.
Generally speaking, this Court is required, under the Supreme Courts decision
in United States v. Booker, 543 U.S. 220 (2005), to review district court sentencing
decisions for reasonableness. United States v. Cage, 451 F.3d 585 (10th Cir. 2006).
Reasonableness has both procedural and substantive components. Id. (citingUnited
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States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006). To be reasonable, a sentence
must be reasoned, or calculated utilizing a legitimate method. Id. As such,
sentences based on miscalculations of the Guidelines are considered unreasonable
because the manner in which [they were] determined was unreasonable. Id. (quoting
Kristl, 437 F.3d at 1055).
Trial counsel for Mr. Marquez did challenge the district court's application of
2L1.2(b)(1)(A) at the time of sentencing on reasonableness grounds. However, he did
not articulate the precise argument made here, that the application of 2L1.2(b)(1)(A)
was unreasonable because the district court, and perhaps the Guidelines themselves,
erroneously understood that Mr. Marquez had an aggravated felony subjecting him
to a statutory maximum of 20 years. Thus this Court will probably review the district
court's decision under a plain error standard. See United States v. Lopez-Flores, 444 F.3d
1218, 1221 (10th Cir. 2006). Plain error occurs when there is (1) error, (2) that is
plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at 1222 (internal quotation
marks omitted).
The Supreme Court in Olano held that [p]lain is synonymous with clear or,
equivalently, obvious. Olano, 507 U.S. at 734. Here, Mr. Marquez entire sentence
was calculated based on the wrong statutory provision: A defendant who was
previously deported following a conviction for commission of three or more
misdemeanors involving drugs, crimes against the person, or both, or a felony (other
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than an aggravated felony) faces a maximum ten years imprisonment. See 8 U.S.C.
1326(b)(1). However, a defendant who was previously deported after suffering an
aggravated felony conviction faces a sentence of up to twenty years imprisonment.
See 8 U.S.C. 1326(b)(2). Mr. Marquez has a felony, but it does not meet the legal
definition of aggravated felony. Yet he was sentenced under 1326(b)(2). This is
plain error.
Moreover, this error affected the defendants substantial rights--it doubled the
statutory maximum he faced, and made his argument that his Guideline
recommended sentence range was unreasonable much more compelling. Finally, the
error seriously affected the fairness of Mr. Marquez (four-minute) sentencing hearing-
-the judge thought he was cutting Mr. Marquez a break with a 46-month sentence, as
it was only about one-eighth of the 240-month sentence that the judge thought the
maximum sentence to be. The 46-month sentence does not seem so reasonable,
however, when the statutory maximum sentence is correctly calculated, at 120
months. The bottom of the Guideline range is, when correctly figured, more than
one-third of the maximum.
D. The Guidelines Do Not Reflect The Three Levels Of Culpability
In The Statute.
Analytically it is essential to note that while Mr. Marquez does not meet the
legal test for aggravated felony under the statute (that is, 1326(b)(2) applying
definition from 1101(a)(43)), he doesappear to meet the legal definition of crime of
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violence contained in the Application Notes for the relevant provision of the
Guidelines. A crime of violence for purposes of the relevant Guideline is defined
to include burglary, without respect to any term of incarceration. U.S.S.G.
2L1.2(b)(1)(A) (a crime of violence increases offense level by 16) and U.S.S.G. 2L1.2
Application Notes1(B)(iii) (defining crime of violence to include burglary, with no
limit on the term of imprisonment).
Curiously, the relevant Guideline and its Application Notes make no
distinctions whatsoever between the statutes three levels of crimes (simple illegal re-
entry, re-entry with a prior felony, and re-entry with a prior aggravated felony) and
does not in turn reflect the three levels of penalties in the statute (maximum two
years, maximum 10 years, and maximum 20 years, respectfully). Because of this
technical anomaly, the relevant Guidelines still advise a 16 level increase in the offense
level for Mr. Marquez, whether his present offense is under 1326(b)(1) (statutory
penalty is maximum of 10 years) or 1326(b)(2) (statutory penalty is maximum of 20
years). Thus the now-advisory Guidelines still advise a 16-level increase in offense
level, even if Mr. Marquez was sentenced under 1326(b)(1) instead of (b)(2).
E. The Error In Sentencing Under 1326(b)(2) Instead of 1326(b)(1)Is Not Harmless Error, It Constitutes Plain Error.
This does not make Mr. Marquez appeal moot or render it harmless error,
however. Mr. Marquez made a compelling case at sentencing asking the district court
to sentence him below the advised range. His predicate felony was twenty years old,
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and resulted in no harm. Both that crime and his immigration offenses were tied to
his poverty, and his need and commitment to provide for his family, all United States
citizens. His many family members attested to how much he provided for them and
how they needed him. He pointed out how his conduct was trivial or benign, at odds
with the 16-level increase the Guidelines advised. He illustrated the disconnect or
mismatch between his situation under the 3553(a) factors and the Guidelines-
recommended sentence.
The district court was not moved to depart below the advised range, but did
sentence at the very bottom of the range--46 months, with the understanding that Mr.
Marquez faced a statutory range of up to 240 months (20 years). This was imposing
a penalty roughly one-eighth of the maximum. If the district court had known that
the statutory range was actual up to only 120 months (10 years), it may well have been
moved to sentence below that range. Forty-six months is over one-third of the
proper maximum. In context of what the Congress called for as an appropriate
penalty, the advised sentence is much, much harsher for a violation of 1326(b)(1)
than it is for 1326(b)(2).
Mr. Marquezs entire sentence was calculated based on the wrong statutory
provision. Section 1326(b) governs the sentence of a defendant convicted under
1326(a) who has suffered a prior conviction. A defendant who was previously
deported following a conviction for commission of three or more misdemeanors
involving drugs, crimes against the person, or both, or a felony (other than an
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aggravated felony) faces a maximum ten years imprisonment. See 8 U.S.C.
1326(b)(1). However, a defendant who was previously deported after suffering an
aggravated felony conviction faces a sentence of up to twenty years imprisonment.
See 8 U.S.C. 1326(b)(2).
This error is significant. Beyond just the difference Congress mandated in the
maximum punishment reflecting the seriousness of the offense, the Sentencing
Guidelines provide different terms of supervised release for defendants sentenced
under section 1326(b)(1) and section 1326(b)(2). Compare U.S.S.G.
5D1.2(a)(2)(2005) ([a]t least two years but not more than three years of supervised
release for 1326(b)(1)) withU.S.S.G. 5D1.2(a)(1) (2005) ([a]t least three years but
not more than five years of supervised release for 1326(b)(2)).
The Ninth Circuit recently found that the same mistake by a district court was
neither moot nor harmless error, and required remand for re-sentencing. United States
v. Figueroa-Ocampo, __ F.3d __ 2007 U.S. App. LEXIS 17518 (9 th Cir. July 24, 2007).
In Figueroa-Ocampo, the district court had erroneously considered a prior state court
conviction to be an aggravated felony under 1326(b)(2). The district court had
sentenced the defendant with the understanding that he was subject to a 20-year
maximum under the statute 1326(b)(2), when actually he was, as the Court of
Appeals held, subject to a 10-year maximum under the other sub-section, 1326(b)(1).
Because it was possible that the district court would have imposed a shorter term of
supervised release had it calculated defendants sentence under the correct definition,
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that appeal was not moot, even though the defendant had already served his time in
incarceration and was on supervised release.
F. Indeed The Fact That The Guidelines Advise An Identical PenaltyRange For Violations Of 1326(B)(2), Which Congress HadDecided Merits A Penalty Up To 20 Years, As For Violations Of1326(B)(1), Which Congress Deemed To Merit A Maximum Of 10
Years, Or Half Of (B)(2), Illustrates The Need For DepartureUnder 3553(A).
Moreover, the fact that the Guidelines would sentence any given defendant to
the same 8 level base plus 16-level increase no matter whether the accused had a prior
simple felony or an aggravated felony (which includes murders, rapes, and armed
robberies) helps to demonstrate Mr. Marquez point at sentencing: That the
Guidelines advised range does not rationally reflect the defendant and the offense,
and that the 3553(a) factors demand a different result.
II. THE DISTRICT COURT ERRED INAPPLYING THE 16-LEVELINCREASE BECAUSETHE INCREASEAPPLIED INTHIS PARTICULARCASE IS CAPRICIOUS AND UNREASONABLE UNDERTHE 3553(A)OBJECTIVES.
This Court is required, under the Supreme Courts decision in United States v.
Booker, 543 U.S. 220 (2005), to review district court sentencing decisions for
reasonableness. United States v. Cage, 451 F.3d 585 (10th Cir. 2006). Reasonableness
has both procedural and substantive components. Id. (citingUnited States v. Kristl, 437
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F.3d 1050, 1054-55 (10th Cir. 2006). To be reasonable, a sentence must be
reasoned, or calculated utilizing a legitimate method. Id. As such, sentences based
on miscalculations of the Guidelines are considered unreasonable because the
manner in which [they were] determined was unreasonable. Id. (quotingKristl, 437
F.3d at 1055).
Because Mr. Marquez properly preserved and argued the issue ofBookerand
3553(a) reasonableness at sentencing, this Court reviews for reasonableness de novo.
See Booker, 125 S.Ct. at 769 (We expect reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was raised below and whether
it fails the plain error test.).
This case is difficult to distinguish from United States v. Trujillo-Terrazas, 405
F.3d 814 (10th Cir. 2005), in which this Court found it was plain error for the district
court to have imposed the same 16-level increase in offense level called for in the
same provision of the Guidelines.
In Trujillo-Terrazasthis Court explained that prior to Booker, district courts were
closely tethered to the Guidelines when sentencing: Section 3553(b)(1) permitted
sentences outside the range determined by the Guidelines only in a narrow set of
circumstances defined by the Sentencing Commission. 405 F.3d at 819. After Booker,
district courts have a freer hand in determining sentences. Id. While the
Guidelines still exert gravitational pull on all sentencing decisionsdistrict courts
must consult the Guidelines, and sentences that unreasonably depart from the
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suggested sentencing range are at risk of reversal on appeal, Booker, 125 S. Ct. at
767district courts now have more discretion to tailor sentences to the individual
circumstances of a defendant.
In Trujillo-Terazas this Court observed that Booker suggests that the sentencing
factors articulated in 3553(a), which the mandatory application of the Guidelines
had made dormant, have a new vitality in channeling the exercise of sentencing
discretion. Id. at 819 (citingBooker, 125 S.Ct. at765-66; United States v. Rodriguez, 398
F.3d 1291, 1301 (11th Cir. 2005); see also United States v. Rogers, 400 F.3d 640, 641-42
(8th Cir. 2005) (applying 3553(a) to find a sentence unreasonable). Later, in United
States v. Begay, 470 F.3d 964 (10th Cir. 2006), this Court concluded that it is error for a
district court to refuse to consider a non-guideline sentence unless convinced that a
guideline sentence would be unreasonable. Id. at 975-76. This court reasoned that a
district court may impose a non-Guidelines sentence if the sentencing factors set
forth in 3553(a) warrant it, even if a Guidelines sentence might also be reasonable.
Id. at 975-76.
In addition to considering the sentencing range suggested by the Guidelines, see
18 U.S.C. 3553(a)(4), 3553(a) requires district courts to consider the history and
characteristics of the defendant, 3553(a)(1), and the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct, 3553(a)(6). Both those factors weighed in favor of a
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below-Guidelines sentence in Trujillo-Terrazas, and both factors weigh in favor of a
below-Guidelines sentence in this case.
In Trujillo-Terrazas this Court held that [t]he relatively trivial nature of Mr.
Trujillo's criminal history is at odds with the substantial 16-level enhancement
recommended by the Guidelines for this conduct. 405 F.3d at 819. This Court noted
that the prior state felony conviction that precipitated the 16-level increase, even
though listed as a denominated crime of violence, was a quite minor offense Id.
at 820. The prior conviction was for third-degree arson, an enumerated crime of
violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), but the penalty that the state court
imposed was a mere $35 restitution. Looking at the minor penalty that the state court
imposed, this Court held that the prior conduct was relatively benign. Particularly
when compared to the other kinds of conduct that would also be subject to the same
16-level increase in offense levelburning down occupied buildings, or murder, or
armed robbery resulting in injuryit is easy to tell that the prior conviction was a
minor conviction, indeed. See id.
This Court in Trujillo-Terrazas held that the fact that the Guidelines in this
section look only to the conviction itself rather than the actual conduct underlying
the conviction, the Guidelines run afoul of 3553(a)(6) in a case like this, where
there is rather minor conduct that nonetheless is technically swept within the list of
crimes in 2L1.2(b)(1)(A)(ii). Id. Section 3553(a) strives to achieve uniform
sentences for defendants with similar patterns of conduct. Id. at 820. This end is
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not achieved, this Court reasoned, when a person who does $35 in damage with a
match is punished the same as a person who intentionally burns down an apartment
complex. Id. (citing Booker, 125 S. Ct. at 757 (explaining that the Booker remedy
endeavors to maintain a strong connection between the sentence imposed and the
offender's real conduct).
The same anomaly thwarts the end of uniformity in Mr. Marquez case: his
twenty-year-old failed attempt to open a neighbors window with a shovel that caused
no harm now subjects him to the same penalty as that applied to a major drug dealer,
a murderer, an armed robber, or a rapist. Just as in Trujillo-Terrazas, [t]he relatively
trivial nature of Mr. Trujillos criminal history is at odds with the substantial 16-level
enhancement recommended by the Guidelines for this conduct. Id. at 819.
This Court in Trujillo-Terrazas held that this disconnect between the newly
relevant 3553(a) factors and the sentence given to Mr. Trujillo supported the
imposition of a lesser sentence under the new sentencing regime. See id. at 820. In a
case such as Trujillos or Mr. Marquez, this Court reasoned, departing from the
Guidelines range would do the opposite of magnifying the whim and caprice
inherent in less restrictive sentencing determinations because of the mismatch
between the sentence imposed by the Guidelines framework and the sentence that
meets the 3553(a) objectives. Id. at 821. The same is true in Mr. Marquez case.
Another 3553(a) factor in favor of a below-Guidelines sentence is this case is
to point out other cases very much like this one that have refused to apply the 16-level
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increase. One such case is Trujillo-Terrazas, discussed above. A second such case is
United States v. Oscar Ortuno-Caballero, 187 Fed. Appx. 814, 2006 U.S. LEXIS 16649
(10th Cir. 2006) (Unpublished). Although unpublished and not citable as precedent
or authority, the Ortuno-Caballero case is illustrative of the fact that other federal
defendants in a very similar situation as Mr. Marquez have had the courts avoid
applying the 16-level increase. Mr. Ortuno-Caballero was given a 16-level increase in
his offense level based on almost identical conduct to Mr. Marquezhis prior
conviction was a Colorado conviction for attempted first degree criminal trespass of a
dwelling. The district court imposed the 16-level increase, over Mr. Ortuno-
Caballeros argument that the enhancement was unreasonable under Booker. The
Presentence Report writer, and the district court, apparently reasoned that the
Colorado conviction posed the same substantial risk that physical force would be
used against the residents or property as the risk posed by an (attempted) burglary,
an enumerated offense for the 16-level enhancement. This Court reversed, finding
plain error in the 16-level enhancement.
The concurring opinion in Ortuno-Caballero illustrates rather starkly how
arbitrary and illogical the Guidelines are in their various definitions of crime of
violence. Id. at 818-19 (OBrien, J., concurring). Reviewing all the different
definitions and enhancements in the Guidelines, the concurrence stated: The lesson
seems to be that logic plays no role; rote application of the various guideline
definitions is the order of the day. Id. at 820. Its a funny way to run a railroad.
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Id. It noted that in Colorado the potential risk of injury is virtually the same for first
degree criminal trespass and burglary. Id. And, it noted that in the case of the
enumerated crime of burglary, the mental state inside a persons mind (the element of
intended crime therein) required for a burglary does not have to be a felonyit
does not even have to be more than trivial. Id. This distinction without a difference
leads to a guidelines sentence of 18 to 24 months [without the 16-level enhancement]
instead of a sentence of 46 to 57 months imposed by the district court. Id. It is
capricious, indeed. Id.
As the Ortuno-Caballero concurrence laments, in a case with a minor predicate
crime like Mr. Marquez, the enhancement is capricious, indeed. A better more
principled approach would be the application of the 3553(a) factors, and the
sentence that those factors suggest is reasonable (probably, 18 to 24 months).
III. THE DISTRICT COURTAPPEARSTO HAVEVIOLATEDTHE LESSONFROM R ITA AND BEGAY THATTHE DISTRICT COURT SHOULD NOT
AND MAYNOT EMPLOYA PRESUMPTION IN FAVOROFAGUIDELINES SENTENCE.
In Rita v. United States, ___ S.Ct.___, 2007 WL 1772146 (June 21, 2007), the
Supreme Court held that a court of appeals may apply a presumption of
reasonableness to a district court sentence imposed within a properly calculated
guideline range.
Critically, however, the Court said that such a presumption does not apply in
the district court. There, a defendant may argue for a non-Guidelines sentence (1) on
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the basis of traditional departure grounds, (2) because the Guidelines sentence itself
fails properly to reflect 3553(a) considerations, or (3) because a case warrants a
different sentence regardless. Id. at *9. In determining the merits of these
arguments, the sentencing court does not enjoy the benefit of a legal presumption that
the Guidelines sentence should apply. Id.
In a concurring opinion, Justice Stevens, joined by Justice Ginsberg,
emphasized that while [m]atters such as age, education, mental or emotional
condition, medical condition (including drug or alcohol addiction), employment
history, lack of guidance as a youth, family ties, or military, civic, charitable, or public
service are not ordinarily considered under the Guidelines[,] they are relevant
considerations under 18 U.S.C. 3553(a)(1). Id. at *13.
In United States v. Begay, 470 F.3d 964 (10th Cir. 2006), before Rita, this Court
concluded that it is error for a district court to apply this appellate standard when
sentencing. Specifically, this Court concluded it is error for the district court to refuse
to consider a non-guideline sentence unless a guideline sentence would be
unreasonable, reasoning that a district court may impose a non-Guidelines sentence
if the sentencing factors set forth in 3553(a) warrant it, even if a Guidelines sentence
might also be reasonable. Id. at 975-76.
In Ritathe Supreme Court confirmed the holding in Begay that a presumption
of reasonableness may attach to a guidelines sentence on appeal, but not when the
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district court initially considers what sentence to impose. As the Supreme Court
explained,
We repeat that the presumption before us is an appellatecourt presumption. Given our explanation in Booker thatappellate reasonableness review merely asks whether thetrial court abused its discretion, the presumption appliesonly on appellate review. . . . In determining the merits of [the
parties'] arguments, the sentencing court does not enjoy the benefit of alegal presumption that the Guidelines sentence should apply.
Id. at *23-24 (citations omitted) (emphasis in original). In other words, both Ritaand
Begayrequire that the sentencing court actually do some authentic sentencing work.
The district court sentenced Mr. Marquez in four minutes, addressing all of his
arguments for departure from the Guidelines range with the conclusory: Well, there
was a departure requested. I did not depart.How much more do you want? Then
it stated, No appellate court is going to overturn me on that. (Vol. III at 4-5.) It
appears on this record that it is highly likely that Judge Conway employed a
presumption of reasonableness to the Guidelines calculation. After Begay and Rita,
such a presumption is misplaced.
Even worse, it appears that the district court did not even consider an out-of-
Guidelines-range sentence, and stopped working once it felt that the Guideline-
advised sentence was reasonable. The district court, one minute into the hearing and
even before allocution, stated: I have considered it [the requests for downward
adjustment], and nothing about the sentence Im going to give him causes me any problems. This
made clear that the district courts sentencing decision consisted of determining
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whether it thought the Guidelines range was reasonable, and stopped there. This,
Begaysaid, is error.
IV. IN THEALTERNATIVE TO POINT I, MR. MARQUEZASKSTHISCOURTTO REVISIT GONZALEZ-CORONADO SADOPTION OFTHENINTH CIRCUITS P IMENTAL-FLORES.
Mr. Marquez respectfully requests this Court to revisit its favorable citation to
the decisions in United States v. Ramirez, 367 F.3d 274, 278 (5th Cir. 2004) and United
States v. Pimentel-Flores, 339 F.3d 959, 964 (9th Cir. 2003) in its case of United States v.
Gonzalez-Coronado, 419 F.3d 1090, 1095 (10th Cir. 2005). In that case this Court briefly
rejected the defendants argument that under the Guidelines 2L1.2(b)(1)(A)(ii) a
state conviction can not be considered a crime of violence where is was not first an
aggravated felony under 8 U.S.C. 1326(b)(2). In Gonzalez-Coronado, the defendant
was sentenced to probation rather than to imprisonment. This Court reasoned,
consistent with the analysis in Point I, above, that unlike 8 U.S.C. 1326(b)(2)s
requirement that an aggravated felony must result in a sentence of at least one year,
U.S.S.G. 2L1.2(b)(1)(A)(ii) does not require that, to be a crime of violence, a prior
conviction result in a sentence of any particular length. Id. (citingRamirez, 367 F.3d at
278 and Pimentel-Flores, 339 F.3d at 964). This Court held that the district court did
not err in applying the guidelines when it enhanced Gonzalez's base offense level by
sixteen under 2L1.2(b)(1)(A)(ii), based upon Gonzalez's prior Kansas conviction for
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attempted aggravated assault, even though that prior conviction resulted in only
probation.
The argument that this Court should reject the Pimental-Flores analysis is a
logical one: the argument that a prior conviction could only qualify as a crime of
violence if it also constituted an aggravated felony, which, under 8 U.S.C.
1101(a)(43), requires a term of imprisonment of at least one year. From the
perspective of a Congress that enacted a statute with a series of graduated maximum
penalties dependent on status as an aggravated or not-aggravated felon From the
perspective of a Congress that enacted a statute with a series of graduated maximum
penalties dependent on status as an aggravated or not-aggravated felony, follows
that the Guidelines provision should reflect the same graduations in penalty. Unless
the Court adopts this construction, the 2001 amendment to the guidelines would have
been meaningless. See U.S.S.G. app. C, Amendment 632 (2001)(This amendment
responds to concerns raised by a number of judges . . . particularly in districts along
the south-west border between the United States and Mexico, that 2L1.2 . . .
sometimes results in disproportionate penalties because of the 16-level
enhancement).
Mr. Marquez 1987 Texas conviction did not qualify as an aggravated felony
and, therefore, could not be a crime of violence under this analysis. But see United States
v. Pimentel-Flores, 339 F.3d at 964 (under United States Sentencing Guideline 2L1.2,
amended as effective November 1, 2001, a 'crime of violence' needed only to be a
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'felony' as defined in the application notes--and not an 'aggravated felony' as
statutorily defined--to qualify for a 16-level enhancement.). The Ninth Circuit based
this holding on the plain language of the guidelineusing the term felony, not
aggravated felony in 2L1.2(b)(1)(A)but did not analyze the question of
Congress intent under the statute to set clearly disparate levels of culpability. See339
F.3d at 964. Mr. Marquez submits that the analysis should be different.
CONCLUSION
For the foregoing reasons, Mr. Marquez respectfully requests this Court to
reverse his sentence and remand for new sentencing.
STATEMENT OF REASON FORORALARGUMENT
Counsel for Mr. Marquez respectfully requests on Mr. Marquez behalf oral
argument, to provide the Court an opportunity to explore in greater depth the issues
raised in this brief in a setting of dialogue between Court and counsel. The arguments
are rather legal in nature, and the panel may or may not feel the need to explore them
further at argument.
/S/ electronically submitted
______________
TRACE L. RABERN1626 Ben Hur DriveSanta Fe, New [email protected]
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Certificate of Service
I hereby certify that (1) on Saturday, September 8, 2007, I caused to be
deposited in the United States mail, with First Class Postage prepaid, a true and
correct copy of the foregoing Brief together with a copy of this Certificate of Service,
addressed to Terri Abernathy, Assistant United States Attorney, 555 Telshore Blvd.
#300, Las Cruces, New Mexico; (2) a copy of this brief in chief was provided to Ms.
Abernathy, by electronic mail on Sunday, September 9, 2007; (3) all required privacy
redactions have been made, and, with the exception of those redactions, this
document is an exact copy of the written document filed with the Clerk; and (4) this
submission has been scanned for viruses with the most recent version of OS X disk
utility (Ver. 10.3.9), and, according to that utility, this digital submission is free of
viruses.
/S/ electronically submitted
______________TRACE L. RABERN1626 Ben Hur DriveSanta Fe, New Mexico87501
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