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United States v. Robles-Gonzalez

United States District Court, D. New Mexico

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS ROBLES-GONZALEZ, Defendant.

          MEMORANDUM OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTION TO SENTENCING GUIDELINES CALCULATION

          WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court following a hearing on Defendant's Objections to Pre-Sentence Report and Sentencing Memorandum (Doc. 22, filed 1/24/19). The Defendant is charged with illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326(a)(1) and (2), and 8 U.S.C. § 1326(b)(2). The Court has reviewed the reports from the United States Probation Office (Docs. 17, 27) and has considered the parties' pleadings (Docs. 22, 25, 34), the arguments presented by counsel at the May 6, 2019 hearing, and the applicable law. For the reasons stated below and at the May 6, 2019 sentencing, the Court OVERRULED Defendant's objection to the Pre-Sentence Report (“PSR”) including a 2004 revocation of supervised release in Defendant's United States Sentencing Guidelines calculation. See PSR, ¶ 28; Doc. 22.

         The Court accepted the Fed. R. Crim. P. 11(c)(1)(C) plea agreement and, pursuant to U.S.S.G. § 5K3.1, concluded that the correctly calculated total adjusted United States Sentencing Guidelines range is 24-30 months based on a total offense level of 15 and criminal history category of III. The Court imposed a within-Guidelines sentence of 24 months' commitment to the custody of the Bureau of Prisons.

         STATEMENT OF THE CASE

         Defendant argues that he should not receive three points toward his criminal history score or an eight-point offense level enhancement because the petition that supported the revocation of his supervised release related to his 1999 marijuana trafficking conviction violated the Warrant Clause of the Fourth Amendment. The issue before the Court for sentencing was that, if the Court sustained Defendant's objection, then the points related to the 1999 marijuana trafficking conviction would have fallen outside of the 15-year window of convictions included in criminal history category calculation. See U.S.S.G. § 4A1.1(a) cmt. n.1. Defendant also would not have received the eight-point enhancement under § 2L1.2(b)(2)(B). See U.S.S.G. § 2L1.2 cmt. n.3. In that case, defense argued, the appropriate Sentencing Guidelines range would have been 2-8 months' imprisonment based on an offense level of 7 and criminal history category II. Doc. 34.

         The parties acknowledge that there is a split among some of the United States Circuit Courts of Appeals, in which the First and Fifth Circuits disagree with the Ninth Circuit's ruling that the Fourth Amendment imposes an oath requirement on the petition underlying the revocation of a defendant's term of supervised release. At the hearing, the Court overruled Defendant's objection on the grounds that, absent controlling United States Supreme Court or Tenth Circuit Court of Appeals precedent, the rationale articulated by the First and Fifth Circuit Courts of Appeals is more persuasive than that of the Ninth Circuit.[1] The Court found that the Sentencing Guidelines calculation in the PSR was correct, which reflects that an offense level 15 and a criminal history category III yields an advisory Sentencing Guidelines range of 24-30 months' imprisonment. PSR, ¶ 57.

         DISCUSSION

         I. Underlying Facts and Procedural History

         After living in the United States, Defendant was deported on or about July 20, 1999 to Mexico. PSR, ¶ 28. Eight days later, on or about July 28, 1999, Defendant was apprehended when he attempted to reenter the country through the United States Port of Entry at San Ysidro, California, in a vehicle transporting marijuana. PSR, ¶ 28. Defendant pleaded guilty in the United States District Court in the Southern District of California to knowingly and intentionally importing approximately 31.4 kilograms of marijuana from outside the United States. PSR, ¶ 28. Defendant was sentenced to 24 months of custody and three years of supervised release. PSR, ¶ 28. Defendant's term of supervised release commenced on July 20, 2001, when Defendant was deported from the United States, and was set to expire on July 19, 2004. PSR, ¶¶ 28, 30.

         On March 12, 2003, Defendant was arrested for driving under the influence in Los Angeles, California, and he was sentenced for the DUI on April 3, 2003, to 45 days of custody. PSR, ¶ 29. Prior to the expiration of his term of supervised release for the 1999 marijuana trafficking conviction, a Petition for Warrant or Summons of Offender Under Supervision was filed on May 6, 2003 in the Southern District of California because the DUI and illegal reentry violated the terms of Defendant's supervised release. No. 3:99-cr-02468-R-1, Doc. 15. The revocation petition alleged in Count 1 that Defendant illegally reentered the United States in violation of 8 U.S.C. § 1326 and, in Count 2, alleged that Defendant had driven a vehicle with a blood alcohol content higher than 0.08%. Id. A no-bail bench warrant was issued on May 6, 2003. No. 3:99-cr-02468-R-1, Doc. 16.

         On January 14, 2004, Defendant was detained by the Los Angeles Immigration and Customs Enforcement, which notified the Department of Homeland Security that Defendant was in its custody. PSR, ¶ 30. Defendant was charged with misdemeanor and felony reentry violations in the United States District Court in the Central District of California. PSR, ¶ 30. Having been twice deported before, Defendant was sentenced on May 6, 2004, to six months' imprisonment on the misdemeanor and 24 months' imprisonment on the felony charge, to be followed by 12 months of supervised release, which commenced on April 17, 2006. PSR, ¶ 30.

         On May 14, 2004, the Report Commencing Criminal Action was filed in the Central District of California for the revocation of Defendant's supervised release, as was the final commitment and warrant of removal, for the Southern District of California. No. 04-mj-1116, Docs. 1, 9. It took from May 14, 2004, to September 7, 2004, to transfer Defendant from the Central District to the Southern District of California. Doc. 25 at 6. Defendant appeared in the Southern District of California on September 7, 2004, for his arraignment on the revocation of his supervised release. No. 3:99-cr-02468-R-1, Doc. 18. At the November 8, 2004 revocation hearing, Defendant admitted the allegations as related to violating his supervised release and he was sentenced to a term of 24 months' imprisonment, which was to run concurrent with the illegal reentry sentences out of the Central District of California. No. 3:99-cr-02468-R-1, Doc. 21. Defendant did not receive another term of supervised release in the Southern District of California. Id. Defendant was deported on April 17, 2006, when his term of supervised release commenced in the Central District of California. PSR, ¶ 30.

         On September 14, 2018, United States Border Patrol agents found the Defendant in Dona Ana County, New Mexico, when the agents observed four individuals running away from the International Boundary fence near the Camino Real Landfill in Sunland Park. PSR, ¶ 5. An Information was filed in the United States District Court in the District of New Mexico charging the Defendant with reentry of a removed alien in violation of 8 U.S.C. §§ 1326(a)(1), (2) and 8 U.S.C. § 1326(b)(2). PSR, ¶ 1. On October 3, 2018, the defendant pleaded guilty to the one-count Information and entered into a written plea agreement with the Government, pursuant to Fed. R. Crim. P. 11(c)(1)(C), stipulating to a two-level downward departure in accordance with the Early Disposition Program under U.S.S.G. § 5K3.1. PSR, ¶ 3.

         The PSR reflects that Defendant's base offense level is 8. PSR, ¶ 10. Defendant received a four-point specific offense characteristic enhancement pursuant to U.S.S.G.§ 2L1.2(b)(1)(A) for a previous illegal entry felony conviction, and an eight-point specific offense characteristic enhancement pursuant to U.S.S.G. § 2L1.2(b)(2)(B) for a non-reentry felony conviction with a sentence of over two years. PSR, ¶¶ 11-12. Defendant received a three-point reduction for acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and (b), and another two-point reduction pursuant to his Fed. R. Crim. P. 11(c)(1)(C) plea agreement under U.S.S.G. § 5K3.1. PSR, ¶¶ 18-20. The eight-point enhancement under § 2L1.2(b)(2)(B) for sustaining a conviction for which the sentence imposed was two years or more stems from Defendant's marijuana trafficking conviction out of the Southern District of California. PSR, ¶ 12. Defendant also received three criminal history points related to the marijuana trafficking charge. PSR, ¶ 28. Defendant's criminal history points totaled 6, which results in a criminal history category of III. ...


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