Académique Documents
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No. 07-2097
(D. of N.M .)
Defendant-Appellant.
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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can justify the sentence imposed in light of the facts of the particular case
considered under 3553(a). Id.
In this case, Barraza-Sanchez does not challenge the district courts careful
application of the 3553(a) factors in sentencing him. Rather, he disputes the
reasonableness of USSG 2L1.2 itself 1 because 1) the 16-level enhancement
establishes an offense level for a nonviolent offense that is equal to or greater
than that of many violent offenses; 2) it double-counts prior convictions by
including them in both criminal history category and offense level; and 3) the
definitions are over-broad. A plt. Br. at 7. Instead of explaining why his
sentence is unreasonable under the 3553(a) factors, Barraza-Sanchez mounts a
wholesale offense against a section of the Guidelines. Contrary to our warning
against such a sweeping argument in Garcia-Lara, Barraza-Sanchez asks us to
conclude that the Guidelines are simply wrong. Garcia-Lara, 2007 W L
2380991, at *4. Accordingly, his arguments challenging the G uidelines,
unmoored from the facts of [his] case considered under 3553(a), are
unpersuasive. Id.
Barraza-Sanchez first disputes the reasonableness of USSG 2L1.2
because a 16-level increase in an offense level punishes his offense on par w ith
Section 2L1.2 allow s for a 16-level increase when, among other things,
the defendant previously was deported, or unlawfully remained in the United
States, after . . . (A) a conviction for a felony that is (i) a drug trafficking offense
for which the sentence imposed exceeded 13 months. USSG 2L1.2(b)(1).
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various more violent and heinous crimes. Aplt. Br. at 1112. W e have recently
reaffirmed that a sentence is not rendered unreasonable merely because of a
district courts refusal to deviate from the advisory guideline range based on
disagreements with the policies underlying a particular Guideline provision.
United States v. W ilken, No. 06-4042, 2007 W L 2372381, at *9 (10th Cir. Aug.
21, 2007) (quoting United States v. M cCullough, 457 F.3d 1150, 1171 (10th Cir.
2006)). Barraza-Sanchez disagrees with Congresss policy of harshly punishing
illegal reentry by a convicted felon. But this argument is properly directed at
Congress and not at the federal courts. W e cannot hold Barraza-Sanchezs
sentence unreasonable based on a broad policy disagreement.
Second, Barraza-Sanchez challenges the operation of Section 2L1.2 . . .
because it counts criminal history twice to increase both his offense level and
criminal history category. Aplt. Br. at 12. W e rejected this exact argument in
United States v. Ruiz-Terrazas, noting that we have routinely upheld as
reasonable the use of prior convictions to calculate both the criminal history
category and a sentence enhancement where, as here, the Guidelines authorize it.
477 F.3d 1196, 1204 (10th Cir. 2007). Barraza-Sanchez does not explain how the
double-counting in his case differs from numerous previous cases where we
upheld it. Accordingly, his argument is unavailing.
Finally, Barraza-Sanchez argues USSG 2L1.2 is too broad, and hence
unreasonable, in that it fails to differentiate between the length of a prior
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sentence, calling for the same 16-level increase whether the sentence imposed
was 13 months and one day, or 20 years. Aplt. Br. at 18. Because BarrazaSanchez did not present this argument in the district court, we review only for
plain error. Plain error occurs when there is (i) error, (ii) that is plain, which
(iii) affects the defendants substantial rights, and which (iv) seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Ruiz-Terrazas,
477 F.3d at 1199.
W e previously recognized that a district court may, in its discretion, reduce
the sentence w hen USSG 2L1.2 severely punishes the defendant for a
comparatively innocuous . . . prior conviction. United States v. TrujilloTerrazas, 405 F.3d 814, 817 (10th Cir. 2005) ([Defendant] was upset that an exgirlfriend had begun seeing someone new, and he acted on his frustration by
throwing a lighted match into a 1980 Oldsmobile belonging to his ex-girlfriends
new love interest[, causing damages in] the paltry sum of $35.00.). But BarrazaSanchez presents no argument to suggest his prior conviction for distribution of
marijuana is somehow innocuous. Instead, he merely points out that his actual
sentence [of 30 months for distribution of marijuana] was at the lower end of
possible sentences for drug-trafficking crimes eligible for the 16-level
enhancement. A plt. Br. at 18. W ithout any explanation why his case warrants
special treatment, Barraza-Sanchezs argument amounts to nothing more than a
generalized attack on the Guidelines. Thus, in applying USSG 2L1.2 to
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calculate the guidelines range and then sentencing Barraza-Sanchez ten months
below the range, the district court committed no error, plain or otherwise.
III. Conclusion
For the foregoing reasons, the district courts sentence is AFFIRMED.
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