United States v. Vasquez-Castro

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN VASQUEZ-CASTRO, Defendant-Appellant.

No. 23-2067

United States Court of Appeals, Tenth Circuit

January 19, 2024

(D.C. No. 2:22-CR-01932-MIS-1) (D.N.M.)

Before McHUGH, MURPHY, and CARSON, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Carolyn B. McHugh, Circuit Judge

Appellant Juan Vasquez-Castro, entered a guilty plea and was convicted of reentry of a removed alien pursuant to 8 U.S.C. § 1326(a) and (b). The district court sentenced Mr Vasquez-Castro to 48 months' imprisonment, varying upward from the U.S. Sentencing Commission Guidelines range of 18 to 24 months. Mr. Vasquez-Castro appeals, arguing his sentence was substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Mr. Vasquez-Castro is a citizen of Guatemala. He was born in Guatemala in July 1993. When Mr. Vasquez-Castro was approximately fifteen years old, his family asked whether he was willing to live and work with one of his brothers in the United States. Mr. Vasquez-Castro agreed to move, although he does not remember who brought him to the United States without inspection. Mr. Vasquez-Castro reportedly lived in Memphis, Tennessee, for three years before moving to Dodge City, Kansas, with his brother and his brother's family.

In 2017, Mr. Vasquez-Castro was convicted of attempted rape of his twelveyear-old niece. The Presentence Investigation Report ("PSR") in the instant case provides that, in April 2017, a faculty member at Dodge City Middle School contacted the police to report allegations of sexual assault made by a female student. According to an official affidavit, the defendant kissed his twelve-year-old niece on the mouth, tried to take off her shirt, touched her breasts, and touched her vagina beneath her clothing. Mr. Vasquez-Castro then bought the victim a cell phone and told her not to tell anyone about the incident. Mr. Vasquez-Castro was arrested and interviewed by the police, at which point he admitted to forcing a kiss on the victim, grabbing her by the arms, and holding her still, while he tried to lift her shirt. He stated he used his hands to feel the victim's belly, breast, and front torso, and subsequently touched the victim under her clothing, touching her breasts and vagina. He then digitally penetrated the victim's vagina. He reported he gained an erection from this, but let the victim go because he wanted to have sex with her and knew it was wrong.

Later, in November 2017, during an evaluation with the Kansas Department of Corrections, Mr. Vasquez-Castro denied the incident and stated he only gave the victim a cell phone. He admitted to telling the police he touched the victim in a sexually inappropriate manner, but stated he admitted to having done so because the police repeatedly asked him the same question and Mr. Vasquez-Castro thought that by admitting to the incident, the police would let him go. He alleged the victim engaged in sexual behavior with a friend with the same name as Mr. Vasquez-Castro.

Mr. Vasquez-Castro was charged with attempted rape in Kansas state court and pleaded no contest to the charge. The standard presumptive sentence for the offense was 59 months of incarceration. However, the court sentenced him to 48 months' incarceration, departing downward based on the victim's request, Mr. Vasquez-Castro's age, and Mr. Vasquez-Castro's criminal history. He was subsequently deported from the United States on October 21, 2020.

On October 8, 2022, United States Border Patrol agents found Mr. Vasquez-Castro, in Dona Ana County, New Mexico, attempting to conceal himself. He admitted to being a citizen of Guatemala without legal authorization to enter or remain in the United States. Mr. Vazquez was charged with reentry of a removed alien, in violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2). He entered a guilty plea.

The PSR calculated Mr. Vasquez-Castro's total offense level as 13 and his criminal history category as III, resulting in a Guidelines imprisonment range of 18 to 24 months. Neither party objected to the PSR. Mr. Vasquez-Castro requested a low-end Guidelines sentence, or downward variance, asserting that such a sentence would be sufficient. The Government opposed Mr. Vasquez-Castro's request and asked that the court sentence Mr. Vasquez-Castro at the high end of the Guidelines range. The district court notified the parties before sentencing that it was contemplating an upward variance.

The district court sentenced Mr. Vasquez-Castro on April 11, 2023. The court reiterated at the sentencing hearing that it was considering an upward variance. The Government stated its position that a high-end sentence of 24 months would be sufficient to protect the public and deter Mr. Vasquez-Castro from returning to the United States again. Mr. Vasquez-Castro requested a sentence on the lower end or below the Guidelines range, arguing through counsel that he had been a model prisoner, he has family in his home country, he was very isolated at the time of his 2017 conviction, his relationship with his twelve-year-old niece was not sexual in nature, and he pleaded guilty to molesting her because he was frightened of getting a more severe sentence. Mr. Vasquez-Castro then addressed the court directly. He apologized for entering the country illegally, explained that he had gotten married and had a child since he was deported in 2020, and stated that he returned to the United States in search of employment to provide for his family. He requested the opportunity to be reunited with his wife and child. At the district court's request, Mr. Vasquez-Castro then explained the events leading up to his 2017 conviction, reiterating that he never had a sexual relationship with his niece.

The district court then described the facts it was considering in determining an appropriate sentence for Mr. Vasquez-Castro. The court noted that it was "considering all [Mr. Vasquez-Castro's] arguments," including that he "was coming to [the] United States to work, that economic circumstances in his home country are very difficult, and he has a family to support; [his] argument made in his motion that his travel to the United States was very difficult, including having to pay human smugglers; [and] that [he] speaks Spanish[.]" Supp. ROA Vol. VI at 16-17. The court did not find "any [of] these factors merit a lower sentencing, given [Mr. Vasquez-Castro's] behavior while in the United States committing now his second felony in the United States." Id. at 17.

The district court also "consider[ed] that [Mr. Vasquez-Castro] denies sexually assaulting the 12-year-old victim in his prior State case, even though [he] admitted to at least some of the . . . allegations against him." Id. The court considered Mr. Vasquez-Castro's argument "that he was young when he committed these State crimes and he was culturally isolated," although the court "note[d] that [Mr. Vasquez-Castro] came to live in the United States with his older brother and was a member of a church which apparently had other Guatemalans in it, so he was not completely isolated; he had family and church surrounding him." Id. The district court also "consider[ed] [Mr. Vasquez-Castro's] argument that he has worked at the detention center and that he's a model prisoner and that the State will extradite [Mr. Vasquez-Castro] for his State crime," as well as "[his] argument that he has family in his home country that supports him" and "family here in the U.S. that supports him as well." Id.

The court noted it was considering "the argument that [Mr. Vasquez-Castro] is innocent of the crime against the little girl and that he pled because he was frightened and this was actually just some confusion about a child having a cell phone" and "that the victim in that case may have asked for less time, which is why [Mr. Vasquez-Castro] only got a 48-month sentence in his State case." Id. at 17-18. The court also considered that the Government was asking for a higher-end sentence.

The district court considered Mr. Vasquez-Castro's history and the nature and circumstances of the offense, noting that his history "includes a 2017 conviction for attempted rape where [he] molested his 12-year-old step-niece." Id. at 18. The court considered "that this offense is of [Mr. Vasquez-Castro] returning to the country in which he committed this serious crime while still on probation for that crime, returning only two years after his release for the State sentence." Id.

The district court also considered "the need for the sentence imposed to provide just punishment, respect for the law, adequate deterrence, and protection of the public."^[1] Id. It found "an increased sentence is just punishment," as "[i]t helps protect the public from [Mr. Vasquez-Castro], [and] provides adequate deterrence to him for committing further crimes." Id. at 18-19. The court "considered that [Mr. Vasquez-Castro] received a lenient sentence for his prior sex case and then violated his probation by coming back to the United States quickly upon release." Id. at 19. The court explained that it was "not re-punishing him for his State crime or trying to make up for a lenient sentence in his State court [case]," and instead was "just noting that the lenient sentence in his prior case did not prevent him from coming to the United States so quickly upon release; thereby committing another felony" and "considering the need to protect the public" because Mr. Vasquez-Castro "ha[d] shown his ability to molest children." Id. Thus, district court concluded that "just punishment requires the Court to give a higher-than-Guideline[s] sentence because [Mr. Vasquez-Castro] reentered the country illegally after having committed a very serious crime...