Within-GL Sentence Reversed!
US v. Marquez, No. 06-2211 (10th Cir. Dec. 5, 2007) (unpublished): The Tenth Circuit reversed a within-guideline sentence in a reentry case.
Even though the guidelines were correctly calculated to give Mr. Marquez a 16-level increase for having a prior conviction for attempted burglary of a habitation, for which he had received a sentence of 10 years probation, the parties incorrectly treated that prior conviction as an aggravated felony. Thus, the PSR erroneously stated that he was subject to a 20-year maximum sentence. Mr. Marquez's guideline range was 46 to 57 months. His sentencing counsel filed a sentencing memorandum requesting a variance based on the facts that the prior crime was nonviolent, occurred 20 years before, and was his only criminal history. However, counsel did not point out that the prior conviction was erroneously characterized as an aggravated felony. At sentencing, the court stated that "I have considered [the sentencing memorandum], and nothing about the sentence I'm going to give causes me any problems." The judge then went on to state that he'd reviewed the PSR and specifically said, "The Court notes the defendant illegally reentered the United States subsequent to an aggravated felony conviction." When counsel pressed for a reason, the court merely said, "Didn't I say I thought the sentence was fitting?" And then imposed a sentence of 46 months.
Mr. Marquez appealed. His counsel filed an Anders brief. The Tenth rejected it and appointed new counsel. The Tenth Circuit agreed that it was plain error for the prior conviction, which did not qualify as an aggravated felony because no sentence of imprisonment was imposed, to be considered an aggravated felony. Mr. Marquez had asked for lower sentence, and the panel thought it likely that "the 'fact' that Marquez had a prior aggravated felony conviction was front and center in the district court's thought processes in imposing a sentence." It agreed that this mischaracterization made it less likely for the court to be inclined to sentence him to less than the advisory guideline range of 46-57 months. The Court also found that the error was not harmless, distinguishing an earlier decision, US v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005). It also specifically observed that, although the Tenth doesn't require much explanation when a district court sentences within the guideline range, "we note that the sentencing proceeding here was extremely terse and conclusory, lasting a mere four minutes from start to finish. The district court simply stated it rejected Marquez's request for a downward departure, without further elaboration. Indeed, one of the few statements the district court made was its specific observation that Marquez had a prior aggravated felony."
Even though the guidelines were correctly calculated to give Mr. Marquez a 16-level increase for having a prior conviction for attempted burglary of a habitation, for which he had received a sentence of 10 years probation, the parties incorrectly treated that prior conviction as an aggravated felony. Thus, the PSR erroneously stated that he was subject to a 20-year maximum sentence. Mr. Marquez's guideline range was 46 to 57 months. His sentencing counsel filed a sentencing memorandum requesting a variance based on the facts that the prior crime was nonviolent, occurred 20 years before, and was his only criminal history. However, counsel did not point out that the prior conviction was erroneously characterized as an aggravated felony. At sentencing, the court stated that "I have considered [the sentencing memorandum], and nothing about the sentence I'm going to give causes me any problems." The judge then went on to state that he'd reviewed the PSR and specifically said, "The Court notes the defendant illegally reentered the United States subsequent to an aggravated felony conviction." When counsel pressed for a reason, the court merely said, "Didn't I say I thought the sentence was fitting?" And then imposed a sentence of 46 months.
Mr. Marquez appealed. His counsel filed an Anders brief. The Tenth rejected it and appointed new counsel. The Tenth Circuit agreed that it was plain error for the prior conviction, which did not qualify as an aggravated felony because no sentence of imprisonment was imposed, to be considered an aggravated felony. Mr. Marquez had asked for lower sentence, and the panel thought it likely that "the 'fact' that Marquez had a prior aggravated felony conviction was front and center in the district court's thought processes in imposing a sentence." It agreed that this mischaracterization made it less likely for the court to be inclined to sentence him to less than the advisory guideline range of 46-57 months. The Court also found that the error was not harmless, distinguishing an earlier decision, US v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005). It also specifically observed that, although the Tenth doesn't require much explanation when a district court sentences within the guideline range, "we note that the sentencing proceeding here was extremely terse and conclusory, lasting a mere four minutes from start to finish. The district court simply stated it rejected Marquez's request for a downward departure, without further elaboration. Indeed, one of the few statements the district court made was its specific observation that Marquez had a prior aggravated felony."
posted by Anonymous at 10:25 AM
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