United States v. Landeros-Gonzalez

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS DAVID LANDEROS-GONZALEZ, Defendant-Appellant.

No. 24-5010

United States Court of Appeals, Tenth Circuit

December 13, 2024

(D.C. No. 4:23-CR-00152-GKF-1) (N.D. Okla.)

Before MATHESON, BACHARACH, and CARSON, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Scott M. Matheson, Jr. Circuit Judge

Luis David Landeros-Gonzalez pled guilty to illegal reentry of a removed alien and unlawful possession of a firearm. On appeal, he challenges the district court's denial of a downward variance from his United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines") range. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I. BACKGROUND

A. State Drug Possession Offenses

In 2012, Mr. Landeros-Gonzalez was convicted of felony drug possession in violation of Okla. Stat. tit. 63, § 2-402 and received a deferred sentence. A year later, in 2013, he was convicted of violating the same statute and sentenced to four years of imprisonment. The 2013 conviction "accelerated" his 2012 sentence, triggering an additional four-year sentence for the 2012 conviction, to run concurrently with the 2013 conviction's sentence.^[1]

In 2017, Oklahoma reclassified simple drug possession from a felony to a misdemeanor and limited the term of incarceration to not more than one year. Okla. Stat. tit. 63, § 2-402(B) (as amended by SQ 780, Initiative Petition No. 404, eff. July 1, 2017). In 2019, Oklahoma passed legislation that allowed individuals convicted before the 2017 amendment to petition for commutation of their sentences. Act effective Nov. 1, 2019, ch. 459, 2019 Okla. Sess. Law Serv., sec. 5, § 332.2(F) (West) (codified as amended at Okla. Stat. tit. 57, § 332.2(F)). Mr. Landeros-Gonzalez did not seek commutation of his drug possession sentences.

B. Procedural History

In 2023, Mr. Landeros-Gonzalez pled guilty to one count of illegal re-entry of a removed alien, 8 U.S.C. § 1326, and two counts of unlawful possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 922(g)(5).

1. Presentence Investigation Report

The United States Probation Office prepared a Presentence Investigation Report ("PSR"). Because Mr. Landeros-Gonzalez's 2012 and 2013 state drug convictions had each resulted in a "sentence of imprisonment exceeding one year and one month," the PSR assigned three criminal history points for each conviction. U.S.S.G. § 4A1.1(a). In total, the PSR assessed 10 criminal history points, placing Mr. Landeros-Gonzalez in criminal history category V. When combined with his offense level, the recommended Guidelines range was 37-46 months.

2. Variance Motion

Mr. Landeros-Gonzalez moved for a downward variance based on the 2017 change in Oklahoma law. He argued that the difference between criminal history scores of offenders convicted before and after the 2017 amendment had created an unwarranted sentence disparity that the district court should consider under 18 U.S.C. § 3553(a)(6). He explained that if his 2012 and 2013 drug offenses had been charged under the 2017 amendment, he would have faced a maximum sentence of one year on each offense and thus would have received four criminal history points for his earlier convictions rather than six, which would have reduced his Guidelines range from 37-46 months to 30-37 months. He asked the district court to vary his sentence in line with "those committing the same criminal conduct as he did after July 1, 2017." ROA, Vol. I at 24.

Mr. Landeros-Gonzalez did not challenge the PSR's calculation of his criminal history score, the Guidelines range, or its factual findings.^[2]

3. Variance Denial

At the sentencing hearing, the district court denied the motion for a variance. Though the court was "sympathetic" to Mr. Landeros-Gonzalez's argument, it observed that it was being asked to "rewrite history" by ignoring that his earlier drug offenses "were felonies at the time" they were committed. ROA, Vol. II at 22-23. The court said that even if it granted the variance, the low end of the PSR's Guidelines range-37 months-was the same as the high end would be under the 2017 amendment. Id. at 23 ("But if I were to come down what I think is the appropriate amount on a variance, the top of the guideline range is going to be 37 months, correct?").

After considering the sentencing factors under 18 U.S.C. § 3553(a), including Mr. Landeros-Gonzalez's disparity arguments, the district court denied the downward variance. The court stated it "considered the nature of the offenses, [Mr. Landeros- Gonzalez's] criminal history, and his personal characteristics" in reaching its decision. Id. at 61-62. The court also noted his history of unlawful re-entry, gang involvement, and substance abuse.

Although the district court denied the variance motion, it said the 2017 amendment persuaded it to sentence Mr. Landeros-Gonzalez to 37 months, the bottom of the Guidelines range. Mr. Landeros-Gonzalez timely appealed.

II. DISCUSSION

Mr. Landeros-Gonzalez challenges his sentence as procedurally and substantively unreasonable. He contends the district court abused its discretion by applying a Guidelines range that did not account for the disparity created by the 2017 amendment and by denying his variance motion.

A. Legal Background

A defendant may challenge a sentence as procedurally or substantively unreasonable. See Gall, 552 U.S. at 51; United States v. Gieswein, 887 F.3d 1054, 1058 (10th Cir. 2018). Mr. Landeros-Gonzalez attempts to do both on appeal.

1. Procedural Reasonableness

A sentence is procedurally unreasonable when the sentencing court improperly calculates the Guidelines sentencing range. See Gall, 552 U.S. at 51; United States v. McCrary, 43 F.4th 1239, 1244 (10th Cir. 2022). District courts calculate the range based on the defendant's criminal history category and offense level derived from the Guidelines. See U.S.S.G. § 1B1.1. To determine the former, courts tally criminal history points based on a defendant's length of imprisonment for prior convictions. See id. § 4A1.1 (allocating three criminal history points for sentences of more than 13 months and two points for sentences of at least 60 days).

A sentence also is procedurally unreasonable when the sentencing court fails to "address, in its statement of reasons, the material, non-frivolous arguments made by the defendant" under 18 U.S.C. § 3553(a). United States v. Pinson, 542 F.3d 822, 833 (10th Cir. 2008); accord United States v. Lente, 647 F.3d 1021, 1035 (10th Cir. 2011).

"[T]he overarching standard for our review of the procedural reasonableness of the court's sentence is abuse of discretion ...." United States v. Nkome, 987 F.3d 1262, 1268 (10th Cir. 2021). Under that standard, "[w]e review the district court's legal conclusions under the Sentencing Guidelines de novo" and the court's "findings of fact for clear error." United States v. Aragon, 112 F.4th 1293, 1296 (10th Cir. 2024) (quotations omitted).

2. Substantive Reasonableness

A sentence is substantively unreasonable when "the length of the sentence is [un]reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a)." United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008) (citation and quotations omitted); see United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019); Lente, 647 F.3d at 1030 ("A substantive challenge concerns the reasonableness of the sentence's length and focuses on the district court's consideration of the § 3553(a) factors and the sufficiency of the justifications used to support the sentence.").

An appellate challenge to the denial of a variance calls for substantive reasonableness review. See United States v. Kaspereit, 994 F.3d 1202, 1214 (10th Cir. 2021); United States v. Wimberly, 341 Fed.Appx. 429, 431 (10th Cir. 2009) (unpublished) ("The district court's decision to deny a variance is reviewed through the application of the test for substantive reasonableness.").^[3] This is so because a request for a variance seeks, based on the § 3553(a) factors, to increase or decrease a Guidelines-calculated sentence. See United States v. Sells, 541 F.3d 1227, 1237 n.2 (10th Cir. 2008). One of those factors is "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6).

We review a sentence's substantive reasonableness for abuse of discretion. McCrary, 43 F.4th at 1249. "[T]he weight a district court assigns to each of the § 3553(a) factors, and the balance it ultimately assesses among them, is not subject to our de novo review." United States v. Martinez, 610 F.3d 1216, 1229 (10th Cir. 2010). "[A]s long as the balance struck by the district court . . . is not arbitrary, capricious, or manifestly unreasonable, we must defer to that decision even if we would not have struck the same balance in the first instance." Sells, 541 F.3d at 1239. "For sentences falling within the guideline range . . . we apply a rebuttable presumption of reasonableness." United States v. Franklin, 785 F.3d 1365, 1370 (10th Cir. 2015).

B. Application

1. Procedural Reasonableness

Mr. Landeros-Gonzalez argues that his sentence was procedurally unreasonable because the district court (1) applied a Guidelines range that did not account for an unwarranted sentence disparity under 18 U.S.C. § 3553(a)(6) and (2) failed to adequately explain why it rejected a variance based on disparity due to the 2017 amendment. Both arguments fail.

a. The Guidelines range and sentence disparity

Mr Landeros-Gonzalez appears to argue that the district court procedurally erred by failing to address the disparity created by the 2017 amendment and thereby...