On Appeal After Remand, the Tenth Affirms Re-imposed Sentences

U.S. v. Sanchez-Juarez, 2007 WL 1874235 (6/29/07)(unpub'd) - The 10th affirms the defendant's sentence on appeal after remand from a successful appeal, After the 10th had chastised the district court for not explaining his sentence enough the first time, the judge added the word "3553(a)" and claimed to have considered the defendant's arguments. That was enough of an explanation to pass muster. Most troubling about the decision were the comments on the substantive reasonableness issue disparaging a couple of our favorite arguments. The 10th was unconvinced by the argument that the d.ct. should "step in and overrule a prosecutor's discretionary decision not to offer a fast-track plea bargain." The 10th also found that deportable aliens' lack of access to certain prison programs did not alter the basic nature of the alien's sentence so as to warrant a sentence below the guideline range. The 10th held the notion that the d.ct. should ameliorate the harshness of the mandatory minimum sentence for aggravated identity theft was flatly contrary to the statute. The 10th also indicated it was unlikely a defendant could prevail on a contention that his prior alien smuggling conviction that resulted in a 16-level bump was relatively minor. A U.S. v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005) type argument is more likely to succeed when the bump is based on the "amorphous" "crime of violence" enhancement

U.S. v. Dazey, 2007 WL 1830760 (6/27/07)(unpub'd) - An appellate victory that ultimately comes to naught. The 10th reversed a pre-Booker sentence that was based on enhancements imposed under the mandatory guideline system. The 10th had held the government had not proven the enhancements beyond a reasonable doubt. On resentencing, the d.ct. imposed the identical enhancements based on a finding by a preponderance, but with the understanding the guidelines were advisory and imposed the identical sentence it had previously imposed. The 10th affirmed, of course. Treating the guidelines as advisory made all the enhancements okay. An important appellate note: the 10th chastised the defendant for failing to provide the trial transcripts, while challenging the sufficiency of the evidence to prove the enhancements.