Wednesday, July 25, 2018

United States v. Chavez-Morales, 2018 WL 3233698 (10th Cir. July 3, 2018)(published): Mr. Chavez argued the district court’s sentencing procedure was unreasonable because it did not meaningfully consider his argument that economic opportunities motivated his illegal reentry and thereby mitigated the seriousness of his offense. He also said the court plainly erred by imposing a supervised release term without acknowledging or considering USSG § 5D1.1(c) which counsels a court not to impose supervised release when the accused is deportable and likely will be deported after his imprisonment term. The panel affirmed the district court’s procedure and sentence, but along the way made some helpful remarks.

First, it said to preserve a procedural reasonableness challenge based on the district court’s failure to consider and explain its reasons for rejecting an argument for lesser sentence, counsel must alert the court that its explanation was inadequate which ordinarily requires an objection after the court announces the sentence.

Second, (and please note these comments are made in a case where the court is reviewing an upward variance - the circuit has not set a rigorous standard for explanations when a sentence is within the guideline imprisonment range) if an accused raises a nonfrivolous argument that § 3553(a) factors warrant a sentence below the recommended imprisonment range, the appellate court must be able to discern from the record that the court considered whether the sentence imposed actually conforms in the circumstances to the statutory factors. This means the court must adequately explain the chosen sentence in light of the sentence requested by the accused. When the court fails to mention a ground which is recognized as a reason for giving a lower sentence it is likely to have committed an error. This does not mean that the court must accept the argument, but if it has some merit ordinarily it will deserve explicit comment. Here, because Chavez argued that economic incentives in the US motivated him to enter illegally which lessened the seriousness of his offense, “the district court needed to address the argument before imposing an above-Guidelines sentence.” The court did not err because it adequately addressed Chavez’s argument.

Third, a district court errs when it does not acknowledge or consider the guidance of a relevant guideline and its accompanying commentary. Here, the court erred because it did not acknowledge or consider USSG § 5D1.1(c)’s recommendation that ordinarily a court should not impose supervised release in reentry cases. However, since supervision can be imposed if it would provide “an added measure of deterrence”, the sentence was not reversed because the panel found “threads of a deterrence rationale” in the district court’s explanation for the term. One final comment, although the panel finds error it fails to mention that § 5D1.1's application note 5 says “added measure of deterrence and protection [of the public].” One may argue then that supervised release in a reentry case is not warranted unless the court can demonstrate that it is necessary to address both concerns.