District Court Improperly Applied Presumption of Reasonableness to Guidelines, But Below-Guidelines Sentence Affirmed

US v. Hernandez-Espinoza, Docket No. 07-2107 (Tenth Cir. Nov. 27, 2007) (unpublished): Mr. Hernandez pled guilty to illegal reentry by a deported alien previously convicted of an aggravated felony. The Presentence Report calculated his total offense level as 17 and his criminal history category as I, resulting in an advisory guideline range of 24-30 months.

His counsel filed a sentencing memorandum asking for a sentence of a year and a day because his only prior conviction occurred 13 years earlier and he had a family. The district court expressly agreed with the government that the guidelines range calculated in the PSR was presumptively reasonable and the defendant had the burden of disproving that presumption. The district court, however, then partially granted the requested variance, imposing a 20-month sentence. On appeal, counsel filed an Anders brief. The COA affirmed the sentence and granted the motion to withdraw. Even though the district court's application of the presumption of reasonableness was a non-frivolous issue, the defendant had not objected and therefore it was reviewed for plain error. The fact that the district court ultimately granted a below-guidelines sentence showed that Mr. Hernandez couldn't prove prejudice. Additionally, after reviewing the record, the Court concluded that the sentence as substantively reasonable.