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Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

State of Nebraska, appellee, v. 

Jose D. Cerritos-Valdez, appellant.

___ N.W.2d ___

Filed January 13, 2017. No. S-16-314.

1. Sentences: Probation and Parole. Whether probation or incarceration 

is ordered is a choice within the discretion of the trial court, whose 

judgment denying probation will be upheld in the absence of an abuse 

of discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Judges: Sentences: Due Process. Due process requires that sentencing 

judges consider only relevant information as the basis for a sentence.

4. Sentences. When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense, and (8) the violence involved in the 

commission of the crime.

5. Sentences: Probation and Parole. When deciding if it is appropriate 

to withhold a sentence of imprisonment and grant probation, a sentencing court is guided by the statutory grounds set forth in Neb. Rev. Stat. 

§ 29-2260 (Reissue 2008).

6. ____: ____. A defendant’s status as an undocumented immigrant cannot 

be the sole factor on which a court relies when determining whether to 

grant or deny probation; however, a sentencing court need not ignore a 

defendant’s undocumented status.

7. ____: ____. When deciding whether to grant probation, a defendant’s 

undocumented status may properly be considered by a sentencing court 

as one of many factors so long as it is either relevant to the offense for 

which sentence is being imposed, relevant to consideration of any of 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/13/2017 09:09 AM CST
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

the required sentencing factors under Nebraska law, or relevant to the 

defendant’s ability or willingness to comply with recommended probation conditions.

8. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the 

defendant’s demeanor and attitude and all the facts and circumstances 

surrounding the defendant’s life.

Appeal from the District Court for Sarpy County: David K. 

Arterburn, Judge. Affirmed.

Patrick J. Boylan, Chief Deputy Sarpy County Public 

Defender, and Samantha D’Angelo, Senior Certified Law 

Student, for appellant.

Douglas J. Peterson, Attorney General, George R. Love, and 

Erin E. Tangeman for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and

Funke, JJ.

Stacy, J.

Jose D. Cerritos-Valdez appeals his jail sentences and contends he was denied probation based solely on his status as 

an undocumented immigrant. Contrary to his contention, the 

record shows the trial court relied on more than just his undocumented status when imposing sentence, and based its sentencing decision on relevant sentencing factors. Finding no abuse 

of discretion, we affirm.

FACTS

On May 25, 2015, Cerritos-Valdez was stopped by law 

enforcement after the vehicle he was driving crossed over and 

straddled the centerline for approximately 200 feet. During 

the traffic stop, a small plastic baggie containing a white 

powdery substance was found in his wallet. Cerritos-Valdez 

admitted the substance was cocaine. He smelled of alcohol, 

admitted to the officer he had been drinking, and showed signs 
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

of impairment on standardized field sobriety tests. CerritosValdez was placed under arrest, and a subsequent breath test 

showed he had a breath alcohol content of .203 grams of alcohol per 210 liters of his breath.

Cerritos-Valdez was charged in a five-count information 

with possession of a controlled substance (a Class IV felony); 

driving under the influence of alcohol, .15 or over (a Class W 

misdemeanor); driving under suspension (a Class III misdemeanor); no proof of insurance (a Class II misdemeanor); and 

a traffic infraction for failure to signal a turn. Pursuant to a 

plea agreement, Cerritos-Valdez plead guilty to an amended 

information charging two misdemeanors: attempted possession 

of a controlled substance and driving under the influence, .15 

or over.

At the sentencing hearing, the court acknowledged receiving and reviewing the presentence investigation report (PSI). 

Because the information in the PSI was relied upon by the 

court, we describe it in some detail. The PSI shows CerritosValdez is not “in the United States legally” and describes him 

as “[u]ndocumented.” According to the PSI, Cerritos-Valdez 

does not have a valid Social Security number or valid U.S. 

driver’s license, and “[d]ue to [his] immigration status, he 

has not been able to hold a permanent job.” The PSI indicates Cerritos-Valdez has been arrested previously for driving 

without a license and has prior convictions for driving under 

suspension and “Illegal Entry.” With respect to the latter, the 

PSI states Cerritos-Valdez “was arrested in February 2013 

in Laredo, Texas for Illegal Entry [and] was jailed on this 

charge for 15 days.” Notes from the PSI interview indicate 

that in 2013, Cerritos-Valdez was stopped crossing into the 

U.S. from Mexico, spent 15 days in jail, and was “sent back 

to Mexico” but “came back in [the] same year” with an “illegal status.”

The PSI makes no recommendation regarding sentencing, 

but notes Cerritos-Valdez’ “legal standing here in the U.S. 

could be a barrier for his success if placed on probation. This 
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

is due in main part to his lack of permanent employment.” 

However, the PSI also states that “should the court wish to 

place [Cerritos-Valdez] on a term of probation,” several terms 

and conditions would “reduce his risk of recidivism,” including 

drug and alcohol testing, treatment and aftercare, community 

service, a waiverable jail sentence, and “full-time employment 

during the course of probation.”

At the commencement of the sentencing hearing, the court 

asked the parties whether they had “any additions, corrections 

or objections” to the PSI. No objections were raised, and no 

corrections requested; but defense counsel provided the court 

with documents indicating Cerritos-Valdez had completed an 

alcohol education class and a victim impact panel, and the 

court included those documents in the PSI. The State waived 

the opportunity to comment on sentencing. Cerritos-Valdez 

requested sentences of probation.

The district court noted Cerritos-Valdez’ limited criminal 

history, and then stated:

[H]e’s not in the United States legally and that becomes 

problematic for the Court when probation is being 

requested because were he here legally, the Court might 

entertain probation but it’s very difficult, if not impossible, for the Court to impose probation when the first 

term of probation is that you obey all laws; and to obey 

all laws, you would have to leave this country, which 

would then conversely make it impossible for you to be 

supervised by probation.

. . . [F]rankly, I wouldn’t mind having some guidance 

on this issue from the appellate courts. I don’t think we 

have any at this time.

But based on those factors, as well as some of the 

other factors that are included in the PSI, which the 

Court has reviewed completely, the Court finds that the 

Court cannot place the — should not, at least, place 

[Cerritos-Valdez] on probation; that a straight sentence 

must be imposed.
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

The court’s written sentencing order further specifies the factors it considered and the reasons Cerritos-Valdez was found 

not to be an appropriate candidate for probation:

In determining what sentence ought to be imposed, the 

Court has considered [Cerritos-Valdez’] age, mentality, 

education and experience, social and cultural background, 

past criminal record or record of law-abiding conduct, 

the motivation for the offense, as well as the nature of 

the offense and the amount of violence involved in the 

commission of the crime. The Court has considered the 

information presented in the [PSI] as well as any further 

documents presented by the parties and received by the 

Court for purposes of sentencing. The Court, being fully 

advised in the premises, finds imprisonment is necessary 

for the protection of the public because [Cerritos-Valdez] 

would likely engage in additional criminal conduct if 

placed on probation, and because a lesser sentence will 

depreciate the seriousness of the offense or promote disrespect for the law.

The court sentenced Cerritos-Valdez to 200 days in jail for 

the conviction of attempted possession and 30 days in jail for 

the conviction of driving under the influence, the jail sentences to be served consecutively. Additionally, on the conviction of driving under the influence, he was fined $500 and any 

driving privileges were revoked for 1 year. Cerritos-Valdez 

filed a timely appeal. We moved this case to our docket on our 

own motion pursuant to our statutory authority to regulate the 

caseloads of the appellate courts of this state.1

ASSIGNMENT OF ERROR

Cerritos-Valdez assigns, restated, that it was error for the 

district court to deny him probation based solely on his status 

as an undocumented immigrant.

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

STANDARD OF REVIEW

[1,2] Whether probation or incarceration is ordered is a 

choice within the discretion of the trial court, whose judgment 

denying probation will be upheld in the absence of an abuse of 

discretion.2 An abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.3

ANALYSIS

[3] Cerritos-Valdez argues the district court erred in denying him probation based on “its erroneous interpretation that 

his immigration status prohibited probation.” The essence of 

his argument is that the sentencing court relied upon an irrelevant factor—his status as an undocumented immigrant—to 

conclude he was an inappropriate candidate for probation. 

Because due process requires that sentencing judges consider 

only relevant information as the basis for a sentence,4 we begin 

our analysis by reciting the factors a court is to consider when 

imposing sentence generally, and when deciding whether to 

withhold a sentence of incarceration specifically.5

[4] It has long been the rule that when imposing a sentence, 

a sentencing judge should consider the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law-abiding 

conduct, and (6) motivation for the offense, as well as (7) the 

nature of the offense, and (8) the violence involved in the 

commission of the crime.6

2 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009); State v. Roberts, 

261 Neb. 403, 623 N.W.2d 298 (2001).

3 State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).

4 State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).

5 Because all of Cerritos-Valdez’ offenses occurred prior to August 30, 

2015, our analysis is unaffected by 2015 Neb. Laws, L.B. 605.

6 State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

[5] Additionally, when deciding if it is appropriate to withhold a sentence of imprisonment and grant probation, a sentencing court is guided by the statutory grounds set forth in 

Neb. Rev. Stat. § 29-2260 (Reissue 2008):

(3) The following grounds, while not controlling the 

discretion of the court, shall be accorded weight in favor 

of withholding sentence of imprisonment:

(a) The crime neither caused nor threatened serious 

harm;

(b) The offender did not contemplate that his or her 

crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse 

or justify the crime, though failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate 

the victim of his or her crime for the damage or injury the 

victim sustained;

(g) The offender has no history of prior delinquency 

or criminal activity and has led a law-abiding life for 

a substantial period of time before the commission of 

the crime;

(h) The crime was the result of circumstances unlikely 

to recur;

(i) The character and attitudes of the offender indicate 

that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to 

probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

Section 29-2260(2) further provides that sentencing courts may 

withhold imprisonment and impose probation

unless, having regard for the nature and circumstances 

of the crime and the history, character, and condition 

of the offender, the court finds that imprisonment of 
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

the offender is necessary for protection of the public because:

(a) The risk is substantial that during the period of 

probation the offender will engage in additional criminal conduct;

(b) The offender is in need of correctional treatment 

that can be provided most effectively by commitment to a 

correctional facility; or

(c) A lesser sentence would depreciate the seriousness 

of the offender’s crime or promote disrespect for law.

This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when 

determining whether to grant or deny probation. We have not 

previously considered this question, but other courts have.

While the law in this area is not well settled, a consensus 

has developed that it is impermissible for a sentencing court 

to deny probation based solely on a defendant’s undocumented 

status.7 Beyond that broad proposition, courts differ on when, 

or for what purpose, a sentencing judge may properly consider 

a defendant’s undocumented status when deciding whether to 

impose probation.8

Generally, in discussing whether it was proper to consider 

a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts 

have focused on whether the defendant’s status implicated 

other relevant sentencing considerations. For instance, some 

courts have held it is appropriate to consider the effect of 

a defendant’s undocumented status on his or her ability or 

7 See, People v. Cesar, 131 A.D.3d 223, 14 N.Y.S.3d 100 (2015); Trujillo 

v. State, 304 Ga. App. 849, 698 S.E.2d 350 (2010); People v. HernandezClavel, 186 P.3d 96 (Colo. App. 2008); State v. Martinez, 38 Kan. App. 2d 

324, 165 P.3d 1050 (2007); People v. Cisneros, 84 Cal. App. 4th 352, 100 

Cal. Rptr. 2d 784 (2000); State v. Morales-Aguilar, 121 Or. App. 456, 855 

P.2d 646 (1993).

8 See id.
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

willingness to comply with conditions of probation.9 Other 

courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may 

demonstrate an “unwillingness to conform his or her conduct 

to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant.10 Still 

others have held that the undocumented status of defendants 

may be considered as it relates to their criminal history.11 At 

least one court has noted that a defendant’s undocumented 

status is properly considered as it relates to the defendant’s 

employment history or legal employability.12 And we note 

that in some instances, defendants have specifically asked the 

sentencing court to consider their undocumented status, arguing it would be error not to consider it.13

[6,7] Based on the foregoing, we agree that a defendant’s 

status as an undocumented immigrant cannot be the sole 

factor on which a court relies when determining whether 

to grant or deny probation14; however, a sentencing court 

need not ignore a defendant’s undocumented status.15 When 

deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing 

court as one of many factors so long as it is either relevant 

to the offense for which sentence is being imposed,16 relevant to consideration of any of the required sentencing 

9 See, Trujillo, supra note 7; Hernandez-Clavel, supra note 7; State v. 

Zavala-Ramos, 116 Or. App. 220, 840 P.2d 1314 (1992); People v. 

Sanchez, 190 Cal. App. 3d 224, 235 Cal. Rptr. 264 (1987).

10 Hernandez-Clavel, supra note 7, 186 P.3d at 99-100. Accord MoralesAguilar, supra note 7.

11 Yemson v. U.S., 764 A.2d 816 (D.C. 2001); Zavala-Ramos, supra note 9.

12 Cesar, supra note 7.

13 See U.S. v. Meza-Lopez, 808 F.3d 743 (8th Cir. 2015).

14 See cases cited supra note 7.

15 See, Yemson, supra note 11; Zavala-Ramos, supra note 9.

16 See, e.g., State v. Gayton, 370 Wis. 2d 264, 882 N.W.2d 459 (2016).
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factors under Nebraska law, or relevant to the defendant’s 

ability or willingness to comply with recommended probation conditions.17

Here, Cerritos-Valdez argues that the sole reason the district 

court denied him probation was his immigration status. Our 

review of the record shows the court relied on more than just 

his undocumented status when imposing sentence.

In both open court and in its written sentencing order, the 

court stated it had considered Cerritos-Valdez’ age, mentality, 

education and experience, social and cultural background, past 

criminal record or record of law-abiding conduct, the motivation for the offenses, as well as the nature of the offenses 

and the amount of violence involved in the commission of 

the crimes. The court expressly stated it had considered the 

information presented in the PSI, much of which was directly 

relevant to these factors. We conclude the court’s sentencing 

comments, considered collectively, show the court did not rely 

solely on Cerritos-Valdez’ undocumented status in deciding 

not to impose probation.

Cerritos-Valdez also argues that the court’s remarks during sentencing suggest it was under the mistaken impression 

that it could not grant probation due to his immigration status. The record refutes this argument. When explaining its 

sentencing decision, it is true the court initially remarked it 

“cannot” place Cerritos-Valdez on probation, but it promptly 

clarified that it “should not, at least” place him on probation. 

Nothing else in the record suggests the court was operating 

under the mistaken belief that a defendant’s undocumented 

status prohibits a court from imposing a sentence of probation. During the plea hearing, the court talked with CerritosValdez about the possibility of probationary sentences. The 

PSI suggested probation conditions for Cerritos-Valdez in the 

event the court determined he was an appropriate candidate 

17 See, Trujillo, supra note 7; Hernandez-Clavel, supra note 7; MoralesAguilar, supra note 7; Zavala-Ramos, supra note 9; Sanchez, supra note 9.
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

for probation. And the court’s remarks during sentencing, as 

well as the language of its sentencing order, both demonstrate 

it considered probation but found Cerritos-Valdez to be an 

inappropriate candidate.

[8] The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts 

and circumstances surrounding the defendant’s life.18 Here, the 

district court expressed concern that due to Cerritos-Valdez’ 

undocumented status, it would be difficult for him to comply 

with the standard terms of probation. Generally speaking, this 

is an appropriate sentencing consideration; it was a concern 

shared by the probation officer who completed the PSI, and 

it was one which was supported by the information contained 

in the PSI.

We find no abuse of discretion in the court’s decision not 

to place Cerritos-Valdez on probation for his convictions of 

attempted possession of a controlled substance and driving 

under the influence, .15 or over. Drunk driving is a serious 

crime that threatens public safety, and when Cerritos-Valdez 

was arrested, he was not only operating a motor vehicle with 

an alcohol level more than twice the legal limit, but he was 

also driving without a license, a crime for which he had been 

arrested just a few months earlier. The PSI showed CerritosValdez had been jailed for illegally entering the United States, 

was returned to Mexico, and now was back in the United States 

again without documentation. The PSI further showed it is difficult for Cerritos-Valdez to maintain permanent employment 

in Nebraska because his immigration status prevents him from 

working legally. These factors are related to his undocumented 

status, but also are relevant to the sentencing factors the district court was required to consider when deciding whether to 

impose sentences of probation.

18 State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016). See, Bauldwin, supra

note 3; State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
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STATE v. CERRITOS-VALDEZ

Cite as 295 Neb. 563

Given all the facts and circumstances surrounding CerritosValdez’ life, and considering the nature and circumstances of 

the crimes for which he was sentenced, we find no abuse of 

discretion in the sentences imposed. The district court did not 

abuse its discretion in finding that if Cerritos-Valdez were 

placed on probation, the risk was substantial that he would 

engage in additional criminal conduct or that jail sentences 

were appropriate because lesser sentences would depreciate 

the seriousness of the crimes and promote disrespect for 

the law.

CONCLUSION

Finding no abuse of discretion on the record before us, we 

affirm the judgment of the district court.

Affirmed.

Kelch, J., not participating.