United States v. Nunez-Carranza

83 F.4th 1213

UNITED STATES of America, Plaintiff - Appellee, v. Alfredo NUNEZ-CARRANZA, Defendant - Appellant.

No. 22-2100

United States Court of Appeals, Tenth Circuit

FILED October 11, 2023

Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:22-CR-00394-MIS-1)

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant Alfredo Nunez-Carranza.

Tiffany L. Walters, Assistant United States Attorney (Alexander M. M. Uballez, United States Attorney, with her on the

brief), Albuquerque, New Mexico, for Plaintiff-Appellee United States of America.

Before TYMKOVICH, EBEL, and EID, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant Alfredo Nunez-Carranza, a Mexican citizen, challenges his fifty-one-month sentence for unlawfully reentering the United States after previously being removed. The fifty-one-month sentence fell at the bottom of Nunez-Carranza's properly calculated advisory guideline range. On appeal, he contends that the district court plainly erred in not explaining why it imposed that sentence instead of a below-guideline sentence that he requested.

We AFFIRM Nunez-Carranza's sentence because he has failed to establish any error, let alone plain error, warranting relief.

I. BACKGROUND

Nunez-Carranza pled guilty to unlawfully reentering the United States after previously being removed, in violation of 8 U.S.C. § 1326(a) and (b). Using the 2021 sentencing guidelines, the presentence report ("PSR") calculated Nunez-Carranza's total offense level to be 17 and his criminal history category to be VI, resulting in an advisory imprisonment range of 51 to 63 months.

According to the PSR, Nunez-Carranza, who was fifty years old at the time of sentencing, had an extensive and continuing criminal history dating back to age twenty-six. The PSR calculated Nunez-Carranza's criminal history category to be VI, the highest possible category, based on five prior felony convictions, or groups of felony convictions, including:

- 2003 drug trafficking,

- 2008 drug possession,

- 2010 unlawful reentry into the United States after prior removal,

- 2011 drug trafficking and unlawful weapons possession, and

- 2014 possession of drugs in prison.

The PSR further indicated that Nunez-Carranza had previously been removed from the United States four times, usually after serving a prison sentence, and had then unlawfully reentered the United States soon after each removal. This particular case stems from his having been found unlawfully in the United States one month after having been removed, following the completion of a forty-six-month prison sentence for unlawful reentry. Nunez-Carranza does not dispute these facts or the PSR's guideline calculations.

The district court began the sentencing proceeding by noting its concern about Nunez-Carranza's criminal history and serial removals: "I have some concerns that it seems like Mr. Nunez gets removed after serving time in prison and then comes back pretty much immediately." (III R. 30.)

The court then noted, sua sponte, that it was considering imposing a below-guideline sentence because Nunez-Carranza's 2003 drug convictions involved marijuana, which is now "completely legal in New Mexico and many other states." (III R. 31.) The court also indicated its understanding that not counting Nunez-Carranza's 2003 convictions would lower his criminal history category from VI to V, and lower the guideline sentencing range from 61 to 53 months in prison to 46 to 57 months. Ultimately, however, the sentencing court decided not to impose a below-guideline sentence on that basis because the 2003 convictions also involved Nunez-Carranza's possession of methamphetamine for sale.

Nunez-Carranza then requested that the court vary downward and impose a below-guideline sentence,¹ instead, because two of his prior convictions—the 2003 drug-trafficking and 2008 drug-possession convictions—were almost too old to count toward his criminal history category.² The United States advocated for a prison sentence at the bottom of the advisory guideline range, fifty-one months. The prosecutor noted that fifty-one months was a few months longer than the forty-six-month sentence imposed on Nunez-Carranza for his previous unlawful reentry conviction, a sentence which did not deter Nunez-Carranza from almost immediately unlawfully returning to the United States after his last removal.

Next, defense counsel addressed the court's stated concern "that it seems like Mr. Nunez gets removed after serving time in prison and then comes back pretty much immediately" (III R. 30) by acknowledging that that was in fact the case. Nunez-Carranza also addressed the court's concern during his allocution:

I came back so fast this last time because of my [adult] son [who lives in California]. He was involved in an accident and he suffered some head injuries. He has a doctor that is seeing him monthly. Actually, he has three doctors, so he has weekly and monthly appointments. And he's okay now, but he almost died, and that is the reason that I . . . came back.

THE COURT: Mr. Nunez, why did you come back all the other times you have been removed after committing crimes in the United States?

THE DEFENDANT: What I want to say is that the other times, I want to be clear about that, sometimes when I was younger, at that time, people don't think things through so clearly. I had never received such a long term in prison as I did this last time. So, you know, I've changed by now.

THE COURT: Okay. My concern is that some of these crimes you committed when you were in your 40s. You have a possession of drugs in jail when you were 42, right?

THE DEFENDANT: The last sentence I was here [in federal court] was in 2010. And I was released last year, October 23rd[, 2021 ].

THE COURT: Okay.

(III R. 35-36.)

Without further discussion, the court asked Nunez-Carranza if he had a request for where he wanted to be imprisoned and then imposed a fifty-one-month prison sentence:

The Court adopts the [PSR's] factual findings. It's considered the Sentencing Guideline applications and the factors set forth in 18 U.S.C. § 3553(a).

The Offense Level is 17, the Criminal History Category is VI, so the Guideline range is 15 [sic; should be 51] to 63 months.

The Court notes the defendant illegally reentered the U.S. after having been previously deported, subsequent to a felony immigration conviction, aggravated felony conviction.

As to the Information [to which Nunez-Carranza pled guilty], the defendant is committed to the custody of the Bureau of Prisons for a term of 51 months. The court will not impose supervised release.

The Court recommends that Immigration and Customs Enforcement begin immediate removal proceedings.

(III R. 37.)

On appeal, Nunez-Carranza argues that the district court erred procedurally by not explaining adequately why the court rejected his request for a downward variance and instead imposed a within-guideline sentence. As relief, he seeks a remand for resentencing "so that the district court can re-examine its sentence and provide sufficient reasoning for why the sentence it ultimately imposes is justified." (Aplt. Br. 1.)³

II. STANDARD OF REVIEW

We review Nunez-Carranza's sentencing challenge for plain error because he did not ask the district court, at sentencing, for a more detailed explanation as to why the court rejected his request for a downward variance. See Fed. R. Crim. P. 52(b); see also United States v. Ruiz-Terrazas, 477 F.3d 1196, 1198-99 (10th Cir. 2007) (reviewing for plain error argument that sentencing court failed to explain why it rejected defendant's request for below-guideline sentence). To obtain relief here, therefore, Nunez-Carranza must "establish 1) error 2) that was plain, and 3) that affected his substantial rights. . . . If [he] can make such a showing, [this court then] would have discretion to grant relief if [4] 'the error had a serious effect on "the fairness, integrity or public reputation of judicial proceedings." ' " United States v. Leib, 57 F.4th 1122, 1128 (10th Cir. 2023) (quoting Greer v. United States, — U.S. —, 141 S. Ct. 2090, 2096-97, 210 L.Ed.2d 121 (2021)).

III. LEGAL DISCUSSION

As we explain, Nunez-Carranza's challenge to his sentence fails at the first step of the plain-error analysis because the sentencing court did not err by failing to explain adequately why the court rejected his request for a below-guideline sentence. Furthermore, even if we could say that the sentencing court erred (we cannot), Nunez-Carranza also has failed to establish the remaining requirements for relief under the plain-error analysis.

A. Nunez-Carranza failed to establish error.

Because the parties dispute the governing law, we address that question first.

1. Governing law

a. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)

We begin with Booker, which made the sentencing guidelines advisory, rather than mandatory. 543 U.S. at 227, 245, 125 S.Ct. 738. Before Booker, a sentencing court generally only considered the mandatory guideline sentencing range. After Booker, a sentencing court must consider the sentencing factors set forth in 18 U.S.C. § 3553(a); one of those factors is the now advisory guideline range, id. § 3553(a)(4). See Booker, 543 U.S. at 245, 259-60, 125 S.Ct. 738; see also United States v. Lopez-Flores, 444 F.3d 1218, 1220 (10th Cir. 2006). Thus, "after Booker, every sentence that a district court ultimately imposes must reflect its determination of what is reasonable in light of the . . . § 3553(a) factors, whether that sentence is within or outside the [now advisory] Guidelines range." United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). (There is a rebuttable presumption, however, that a sentence within a properly calculated guideline range is reasonable. See Rita v. United States, ...