Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

9 UNITED STATES OF AMERICA, 10 11 12 Sergio Leyva-Solano, 13 Defendant. 14 15 v. Plaintiff,

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CR 00-1015-PHX-SMM CR 04-0149-PHX-SMM MEMORANDUM OF DECISION AND ORDER

This case comes before the Court on a limited remand from the Ninth Circuit Court of

16 Appeals. On December 12, 2005, the Ninth Circuit ordered the case remanded pursuant to 17 United States v. Ameline, 409 F.3d 1973 (9th Cir. 2005) (en banc) (Ameline III). See United 18 States v. Leyva-Solano, No. 04-10359 (9th Cir. 2005). On remand, this Court must determine 19 "whether the sentence imposed would have been materially different had the district court 20 known that the Guidelines were advisory." Id. at 2. After reviewing the record and the 21 written arguments of counsel, the Court issues the following ruling. 22 23 I. BACKGROUND In April 2004, this Court presided over a two-day jury trial which resulted in

24 Defendant's conviction on one count of Illegal Reentry After Deportation, in violation of 8 25 U.S.C. § 1326(b)(2). At sentencing, the Court proceeded with an admit/deny hearing on the 26 supervised release violation in CR-00-1015. Defendant agreed to submit the supervised 27 release violation to the Court based on judicial notice of the record at Defendant's Illegal 28 Reentry After Deportation trial. (Certified Transcript ("CT") at 13-14.)
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Based on a total offense level of 16 and a criminal history category of III, the guideline

2 range of imprisonment on the illegal reentry conviction was 27 to 33 months, which did not 3 include a 3-level deduction for acceptance of responsibility that the Court acknowledged it 4 had discretion to award. (Id. at 14, 18.) The guideline range for imprisonment on the 5 supervised release violation was a potentially-consecutive term of 4 to 10 months. (Id. at 7.) 6 If the facts of the supervised release violation were severe enough, the Court was permitted 7 to sentence Defendant to the statutory maximum term of 24 months. (Id. at 8-9.) 8 On the illegal reentry charge, the Government request that Defendant be sentenced to

9 the middle of the guideline range because of his "limited criminal history." (Id. at 18.) 10 Defense counsel urged the Court to sentence Defendant to the "least sentence possible," and 11 to run the two sentences concurrently, rather than consecutively. (Id. at 17, 22.) 12 For the reasons detailed below, the Court sentenced Defendant to 30 months

13 imprisonment for the illegal reentry conviction and 10 months for the supervised release 14 violation, and ordered both sentences to run concurrently. (Id. at 19, 28-29.) 15 Defendant appealed his sentence to the Ninth Circuit Court of Appeals. The Ninth

16 Circuit remanded the case back to this Court in accordance with Ameline III. In an Order 17 dated February 10, 2006, this Court required written briefs by both parties regarding the 18 remanded issue. (Dkt. 41.) The Government opined that the Court would not have imposed 19 a materially different sentence had it known that the Guidelines were advisory. (Dkt. 44 at 20 1-2.) Defendant agreed that "the Court, in fact did use its discretion in sentencing

21 [Defendant], and that its sentence would not have been different had the Court known that the 22 guidelines were advisory." (Dkt. 45 at 4.) 23 24 25 26 II. DISCUSSION This Court's June 14, 2004 Sentence would not have materially differed if the Court had known then that the Sentencing Guidelines are advisory For two reasons, the Court concludes its sentence would not have materially differed

27 had it known that the Guidelines were advisory at the time of sentencing. 28
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First, as shown above and agreed to by both parties, the Court exercised its discretion

2 in sentencing Defendant in four different ways: (i) by choosing the middle of the guidelines 3 range on the illegal reentry conviction; (ii) by choosing not to award Defendant a three-level 4 reduction for acceptance of responsibility; (iii) by choosing the high end of the guidelines 5 range on the supervised release violation; and (iv) by ordering both terms to run concurrently, 6 rather than consecutively. By exercising its discretion in these ways, the Court tailored the 7 sentence specifically to Defendant. Thus, as both parties' recognize, the sentence imposed 8 on Defendant would not have been materially different if the Court had known at sentencing 9 that the guidelines are advisory. 10 Second, the Court's analysis of the factors listed in 18 U.S.C. § 3553(a) demonstrates

11 that the sentence imposed on Defendant would not have been materially different if the Court 12 had known at the time of sentencing that the Guidelines are advisory. 13 The first factor is "the nature and circumstances of the offense and the history and

14 characteristics of the defendant." 18 U.S.C. § 3553(a)(1). The Court found that a concurrent 15 sentence of 30 months imprisonment on the illegal reentry conviction and the supervised 16 release violation was appropriate given the nature of the offense committed and Defendant's 17 limited criminal history. The Court chose not to award Defendant a 3-level deduction for 18 acceptance of responsibility because the Defendant elected to go to trial on the illegal reentry 19 charge, but then admitted all of the elements of the offense when he testified at trial. (CT at 20 18.) The Court chose to run both terms concurrently, rather than consecutively, because a 21 concurrent sentence would have been "unduly harsh." (CT at 22.) 22 The second factor the Court must consider is "the need for the sentence imposed (A)

23 to reflect the seriousness of the offense, to promote respect for the law, and to provide just 24 punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to 25 protect the public from further crimes of the defendant; and (D) to provide the defendant with 26 needed educational or vocational training, medical care, or other correctional treatment in the 27 most effective manner." 18 U.S.C. § 3553(a)(2). A total of 30 months imprisonment 28
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1 accurately reflects the seriousness of Defendant's offense, promotes respect for the law, and 2 provides just punishment for the offense. Also, such a sentence aids in deterring Defendant 3 and others from illegally reentering the United States. The term imposed adequately protects 4 the public from any possible reentry by Defendant during imprisonment and provides 5 Defendant an opportunity to participate in correctional education courses. 6 Next, the Court must consider "the kinds of sentences available." Id. at § 3553(a)(3).

7 For the illegal reentry conviction, the possible sentences are a maximum of 20 years 8 imprisonment and/or fines. 8 U.S.C. §1326(b)(2). For the supervised release violation, the 9 possible sentences is a maximum of 24 months imprisonment consecutive to any term. (CT 10 at 8.) The sentence imposed in this case was 30 months imprisonment followed by three years 11 of supervised release. (Dkt. 29; CT 19-20.) Fines were not imposed because the Defendant 12 did not have the ability to pay them. 13 The fourth factor the Court shall consider is "the kinds of sentence and the sentencing

14 range established for the applicable category of offense committed by the applicable category 15 of defendant as set forth in the guidelines." 18 U.S.C. § 3553(a)(4)(A). Here, the Guidelines 16 suggest a range of 27 to 33 months on the illegal reentry and a range of 4 to 10 months on the 17 supervised release violation. The Court sentenced Defendant to a total of 30 months. 18 The Court must next consider "any pertinent policy statement issued by the Sentencing

19 Commission." Id. at § 3553(a)(5). The Court is not aware of any policy statements that apply 20 to this situation. Rather, section 2L1.2 and its commentary, which addresses the specific 21 offense at issue here, sufficiently address sentencing in this case. 22 The sixth factor to be addressed by the Court is "the need to avoid unwarranted

23 sentence disparities among defendants with similar records who have been found guilty of 24 similar conduct." Id. at § 3553(a)(6). The Court finds that this factor does not warrant a 25 sentence different than what was imposed. Defendant was sentenced to the middle range of 26 the suggested illegal reentry range and the high end of the supervised release range, but both 27 28
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1 sentences were ordered to run concurrently due to the Court's finding that it would be "unduly 2 harsh" to run the sentences consecutively. (CT at 22.) 3 Lastly, the Court must consider "the need to provide restitution to any victims of the

4 offense." Id. at § 3553(a)(7). This factor does not apply because there are no victims. 5 As shown above, the sentence imposed by this Court on June 14, 2004, would not have

6 materially differed had the Court known at the time of sentencing that the Sentencing 7 Guidelines are advisory. 8 9 III. CONCLUSION For the foregoing reasons, re-sentencing is not warranted in this case. Defendant

10 may appeal this Order by filing a notice of appeal in accordance with Rule 4(b) of the 11 Federal Rules of Appellate Procedure. See Ameline III, 409 F.3d at 1085. 12 13 Accordingly, IT IS HEREBY ORDERED that the Judgment and Commitment issued on June

14 14, 2004 (Dkt. 29) is AFFIRMED. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DATED this 21st day of March, 2006.

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