2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-2-2009

USA v. Raul Lopez-Reyes

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1243

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"USA v. Raul Lopez-Reyes" (2009). 2009 Decisions. Paper 160.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-1243

 

UNITED STATES OF AMERICA

v.

RAUL LOPEZ-REYES,

 Appellant

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. No. 08-cr-00277-001)

District Judge: Honorable Renee M. Bumb

 

Submitted Under Third Circuit LAR 34.1(a)

November 18, 2009

 

Before: RENDELL, BARRY and CHAGARES, Circuit Judges

(Opinion Filed: December 2, 2009)

 

OPINION

 

BARRY, Circuit Judge

Appellant Raul Lopez-Reyes appeals his 46 month prison sentence, which was

imposed after he pled guilty to illegally reentering the United States following
 Lopez-Reyes was arrested in October 2005 on a charge that was ultimately 1

dismissed. It is unclear how long he had been in the United States prior to that arrest. 

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deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). We will affirm.

BACKGROUND

Lopez-Reyes is a native and citizen of Mexico who, three times, entered the United

States in an effort to secure employment so that he could financially support his family

members living in Mexico. On December 16, 1994, shortly after his first entry into the

United States, Lopez-Reyes pled guilty to robbery charges in New Jersey Superior Court

and received a ten year prison sentence. He was deported on June 4, 1997. Less than

four years later, on February 21, 2001, Lopez-Reyes again entered the United States, this

time by way of the Rio Grande River. He was apprehended two days later at a Texas

airport and subsequently deported after spending one day in prison. 

 Sometime before October 2005, Lopez-Reyes returned to the United States. He 1

settled in Atlantic City, New Jersey, where he worked at a restaurant. On December 9,

2007, he was pulled over for a routine traffic stop, but after the police officers smelled

marijuana emanating from the vehicle and Lopez-Reyes produced a fraudulent driver’s

license, he was arrested. While in custody, he disclosed his illegal status. 

Lopez-Reyes was charged with illegally re-entering the United States subsequent

to a conviction for the commission of an aggravated felony, in violation of 8 U.S.C. §

1326(a) and (b)(2), and he pled guilty on August 11, 2008. With a total offense level of
 Lopez-Reyes concedes that “this issue is foreclosed by precedent . . . .” (Appellant’s

2

Br. at 27 n.3.) We agree.

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21 (including a 16 level increase for the deportation following his state robbery

conviction) and a criminal history category of III, the applicable Guidelines range was 46-

57 months’ imprisonment. At the sentencing hearing on January 8, 2009, the District

Court imposed a sentence of 46 months’ imprisonment and three years of supervised

release.

Lopez-Reyes timely appealed. He argues: (1) the District Court misapprehended

its authority to categorically vary from the Guidelines range based solely on a policy

disagreement with U.S.S.G. § 2L1.2; (2) his sentence is substantively unreasonable

because the 16 level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) overstates the

gravity of the offense; and (3) the “felony” and “aggravated felony” provisions of 8

U.S.C. § 1326(b)(1)-(2) are unconstitutional.2

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C. § 3121, and we have

appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

Sentencing courts must engage in a three-step analysis to determine the appropriate

sentence to impose on a defendant. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006). The process begins by “correctly calculating the applicable Guidelines range.” 

United States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008). Of course, the Guidelines are
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only advisory, but they nonetheless provide the “initial benchmark.” Gall v. United

States, 552 U.S. 38, 39 (2007). Next, the sentencing court must “formally rule on the

motions of both parties and state on the record whether [it is] granting a departure and

how that departure affects the Guidelines calculation . . . .” Wise, 515 F.3d at 216

(quoting Gunter, 462 F.3d at 247). At the final step, the court is “required to exercise

[its] discretion by considering the relevant § 3553(a) factors in setting the sentence [it]

impose[s] regardless of whether it varies from the sentence calculated under the

Guidelines.” Gunter, 462 F.3d at 247 (internal citations omitted).

When reviewing a sentence on appeal, we first make certain that the sentencing

court did not commit a serious procedural error, “such as failing to calculate (or

improperly calculating) the Guidelines range [or] treating the Guidelines as mandatory. . .

.” Gall, 552 U.S. at 51. We then “review the substantive reasonableness of the sentence

under an abuse-of-discretion standard,” while keeping in mind that “[a]s long as a

sentence falls within the broad range of possible sentences that can be considered

reasonable in light of the 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218.

DISCUSSION

A. Application of U.S.S.G. § 2L1.2

Pursuant to U.S.S.G. § 2L1.2, a defendant convicted of unlawfully entering the

United States is given a base offense level of 8. In those instances where the defendant

was previously deported after “a conviction for a felony that is . . . a crime of violence,”
 A “crime of violence” includes a state conviction for robbery. U.S.S.G. § 2L1.2 3

cmt. n.1(B)(iii). Lopez-Reyes does not dispute that he previously committed a robbery

offense. (App. at 84.)

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the offense level is increased by 16 levels. U.S.S.G. § 2L1.2. 3

Lopez-Reyes argues that the District Court “fundamentally misapprehended its

authority to vary from the application of § 2L1.2 in this case based on the fact that the

Guidelines range produced was too high to accomplish the purposes of sentencing set

forth in 18 U.S.C. § 3353(a).” (Appellant’s Br. at 11-12.) He argues that § 2L1.2 is

unreasonable, and that the Court “engaged in no independent analysis of [his] arguments

regarding the problems with § 2L1.2, including that it was enacted by the Sentencing

Commission with little deliberation and no empirical justification.” (Id. at 15.) 

Lopez-Reyes turns to Kimbrough v. United States, 552 U.S. 85 (2007), to support

his argument that a court may disregard the Guidelines range based on a policy

disagreement. As this Court has made clear, however, Kimbrough does not require a

district court to reject a particular Guidelines range where that court does not, in fact,

have disagreement with the Guideline at issue. United States v. Arrelucea-Zamudio, __

F.3d __, 2009 WL 2914495, at *6 (3d Cir. Sept. 14, 2009); Gunter, 462 F.3d at 249

(“[T]he District Court is under no obligation to impose a sentence below the applicable

Guidelines range solely on the basis of the crack/powder cocaine differential.”) (emphasis

added). Furthermore, a district court is not required to engage in “independent analysis”

of the empirical justifications and deliberative undertakings that led to a particular
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Guideline. See United States v. Aguilar-Huerta, 576 F.3d 365, __ (7th Cir. 2009) (“[A

judge] should not have to delve into the history of a guideline so that he can satisfy

himself that the process that produced it was adequate to produce a good guideline.”);

United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009) (“Kimbrough does not force

district or appellate courts into a piece-by-piece analysis of the empirical grounding

behind each part of the sentencing guidelines.”).

At his sentencing hearing, Lopez-Reyes argued that the Guidelines range (in

particular, the 16 level increase) “is disproportionate and it is not supported through case

law as cited through any type of empirical data or rational basis showing the need for a 16

point enhancement that my client has suffered.” (App. at 73.) The District Court gave

him a full opportunity to explain why the relevant Guideline was unreasonable, both in

general and as it applied to his specific case. Having heard from both parties, the Court

noted that “the guidelines represent the institutional authority of the Commission and

Congress.” (Id. at 77.) Although the Court stated that “a court’s determination [that] a

guideline sentence does not satisfy the goals of sentencing in an ordinary case would be

subject to close review,” it was also explicit that the Guidelines “are no longer mandatory

and the Court should use them in an advisory fashion.” (Id. at 77, 80.) It then explained

that “the Sentencing Commission and Congress have determined [that this provision]

meets the goals of sentencing.” (Id. at 80.) Finding “nothing before this Court to suggest

to the contrary,” the Court declined to depart from the “advisory guideline range.” (Id. at
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80-81.) Thus, it is apparent that the Court was aware of the discretionary nature of the

Guidelines and its authority to impose a sentence outside of the prescribed range. It had

no obligation to exercise that discretion in favor of Lopez-Reyes.

B. Reasonableness of Lopez-Reyes’ Sentence

Lopez-Reyes next argues that his 46 month sentence is “substantively

unreasonable because the 16-level enhancement in § 2L1.2 severely overstated the gravity

of his illegal reentry offense.” (Appellant’s Br. at 18.) In particular, he argues that §

2L1.2 imposes a base offense level that is equal to or greater than the level applied to

those convicted of violent felonies, that it “unfairly counts criminal history twice,” and

that it overstates a defendant’s potential for dangerousness and risk of recidivism. (Id. at

18-20.)

“If we determine that the district court has committed no significant procedural

error, we then review the substantive reasonableness of the sentence under an abuse-ofdiscretion standard, regardless of whether it falls within the Guidelines range.” Wise, 515

F.3d at 218; see Gall, 552 U.S. at 50. District courts are required to consider the §

3553(a) factors as they apply to a particular defendant, and on appeal, the standard of

review is deferential. We will affirm the sentence imposed “unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d

Cir. 2009) (en banc). 
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The applicable Guidelines range here is not rendered unreasonable simply because

§ 2L1.2 establishes a base offense level for a nonviolent offense that is equal to or greater

than that of certain violent offenses. Congress “has the power to define a crime and set

its punishments.” See United States v. MacEwan, 445 F.3d 237, 252 (3d Cir. 2006). 

Furthermore, with respect to Lopez-Reyes’ “double counting” argument, we have

“recognized that the Guidelines explicitly note when double counting is forbidden.”

United States v. Fisher, 502 F.3d 293, 309 (3d Cir. 2007); see also U.S.S.G. § 2L1.2 cmt.

n.6 (“A conviction taken into account under subsection (b)(1) is not excluded from

consideration of whether that conviction receives criminal history points . . . .”); United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1999 (10th Cir. 2007) (“[W]e have routinely

upheld as reasonable the use of prior convictions to calculate both the criminal history

category and a sentence enhancement where . . . the Guidelines authorize it.”). LopezReyes’ claim that the sentence he received resulted from a Guideline that misjudged his

potential for dangerousness and risk of recidivism is equally without merit. 

Lopez-Reyes argues next that given his “acceptance of responsibility for his

actions, sympathetic reasons for reentering the United States, steady work history while in

the United States and a relative [sic] moderate criminal history, it would appear that the

statutory directives contained in Section 3353(a) would have been better served by a

below-Guidelines sentence.” (Appellant’s Br. at 26.) (citation omitted). The District

Court considered these factors, but it did not share Lopez-Reyes’ conclusion. It noted
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that Lopez-Reyes had been deported on other occasions, and it inquired into his criminal

past. The Court also gave him credit where it was deserved:

Appellant’s Attorney: Lopez-Reyes did avail himself to a proffer session

related to activity he knew of coyotes taking people

across the border . . . it did not meet the level of

substantial assistance, but nonetheless he did avail

himself to cooperate.

District Court: You are getting good grades.

Appellant: Thank You.

District Court: You think you could do a little better than a hundred?

Appellant: Yes. I tried to behave well and to help out in church

and help other people.

District Court: Well, you’ve done well. 

(App. at 84-85.) Nonetheless, the Court noted that however good Lopez-Reyes’ motives

for reentering the United States were, he broke the law and illegally entered three times. 

It stated that his sentence was intended to deter him specifically, as well as provide

general deterrence to others, and it concluded that the sentence “will promote respect for

the law and will be an opportunity for the defendant to continue the educational training

that he has received that he thus far as [sic] has done well at.” (Id. at 90-91.) With that, it

rejected the government’s call for a sentence in the middle of the Guidelines range, and

instead sentenced Lopez-Reyes to 46 months’ imprisonment – the bottom of the range –

followed by a term of supervised release for three years. Because this sentence “falls

within the broad range of possible sentences that can be considered reasonable in light of

the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218.
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CONCLUSION 

The judgment of sentence will be affirmed.