United States v. Pacheco-Espinoza

                                                                                FILED
                                                                    United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                     Tenth Circuit

                               FOR THE TENTH CIRCUIT                      October 14, 2020
                           _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 19-2186
                                                 (D.C. No. 2:19-CR-01338-JBM-1)
 ISIDRO ALONSO PACHECO-                                      (D. N.M.)
 ESPINOZA,

          Defendant - Appellant.
                         _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before LUCERO, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

      Isidro Alonso Pacheco-Espinoza challenges the procedural and substantive

reasonableness of his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                           I

      Pacheco pled guilty to conspiracy to distribute marijuana in violation of 21

U.S.C. § 846, possession with intent to distribute marijuana in violation of 21 U.S.C.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and collateral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.
§ 841(a)(1) and 841(b)(1)(D), and reentry of a removed alien in violation of 8 U.S.C.

§ 1326(a) and (b). His presentence investigation report listed a total offense level of

18 and a criminal history category of IV, resulting in an advisory Guidelines range of

41 to 51 months. Pacheco did not object to this Guidelines range.

      The government recommended a Guidelines sentence based primarily on

Pacheco’s criminal history. In 2002, Pacheco was convicted of conspiracy and

possession with intent to distribute 154 kilograms of marijuana in exchange for

$2,500 dollars. He was sentenced to 37 months in custody, lost his Legal Permanent

Residency status, and was deported to Mexico. In 2016, Pacheco was convicted of

reentry of a removed alien and sentenced to six months of custody and three years of

supervised release. Additionally, Pacheco has a 2002 conviction for driving while

intoxicated.

      Pacheco requested a variance to a below-Guidelines sentence of 24 months and

a concurrent sentence in his revocation proceedings based on his personal history,

family’s destitute financial situation and serious medical hardships, and effort to

reform himself and help others while in county jail. He explained that after being

deported in 2016, he began working in Mexico primarily as a mechanic. In the

winter of 2019, he was struggling financially because he had limited work and few

customers that could afford to pay. He had no money for rent, food, or school

supplies for his children, so when he was offered a chance to support his family by

transporting marijuana into the United States, he agreed.



                                          -2-
      Since Pacheco’s arrest, his family has fallen on hard times. His wife had to

sell the tools Pacheco used as a mechanic to provide food for the family. One of

Pacheco’s stepdaughters recently had her appendix removed. His other stepdaughter

gave birth to a premature infant with a severe medical condition that the family

cannot afford to treat. Additionally, Pacheco’s wife has had to care for her father,

who has chronic obstructive pulmonary disease.

      Pacheco has begun significant efforts at rehabilitation. He started a bible

study group at the Dona Ana County Detention Center. He stated that once he is

released, he plans to work at the Yazaki factory in Ascension, where he hopes to

make enough money to support his family.

      The district court considered Pacheco’s personal circumstances and efforts at

rehabilitation but found that neither warranted a downward variance. The court

imposed a 41-month sentence, the bottom of the Guidelines’ range. Pacheco timely

appealed.

                                          II

      “On appeal, we review sentences for ‘reasonableness,’ which has both

procedural and substantive dimensions.” United States v. Martinez-Barragan,

545 F.3d 894

, 898 (10th Cir. 2008) (citation omitted). “That is, we consider both the

length of the sentence, as well as the method by which the sentence was calculated.”

Id. (quotation omitted). -3-

                                            A

      Unpreserved challenges to the procedural reasonableness of a sentence are

reviewed for plain error. United States v. Ortiz-Lazaro, 

884 F.3d 1259

, 1262 (10th

Cir. 2018). This court will find plain error when “there is (1) error, (2) that is plain,

(3) which affects substantial rights, and (4) which seriously affects the fairness,

integrity or public reputation of judicial proceedings.”

Id. (quotation omitted). The

defendant bears the burden of establishing all four factors. See United States v.

Dominguez Benitez, 

542 U.S. 74

, 82 (2004).

      In reviewing a sentence for procedural reasonableness, this court looks to

whether the district court “committed any errors in calculating or explaining its

sentence.” United States v. Friedman, 

554 F.3d 1301

, 1307 (10th Cir. 2009). A

district court can commit procedural error by “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United

States, 

552 U.S. 38

, 51 (2007).

      Pacheco makes three arguments that his sentence was procedurally

unreasonable. First, he argues that the district court failed to meaningfully consider

his personal characteristics, family circumstances, and efforts at rehabilitation.

Although it is reversable error for a court to fail to consider the § 3553(a) factors,

Pacheco’s argument is not supported by the factual record. The court explicitly

acknowledged Pacheco’s personal circumstances but found “[his situation is] similar

                                           -4-
to almost every Defendant I hear here, comes and leaves their family in Mexico, they

have the hardship, they need support, they need money so that, to me, does not make

it special.” The court also considered Pacheco’s rehabilitative work but again found

that it did not merit a variance: “I’ve got to tell you virtually every Defendant that

I’m about to sentence to prison tells me that he has since obtained religious

conversion while he’s in jail, I’ve heard that before.” On this record, we cannot

conclude that the court erred by failing to consider the § 3553(a) factors.

      Pacheco also argues that the district court erred in elevating deterrence over

the other § 3553(a) factors. This court has cautioned district courts “against

excessive reliance on a single factor in sentencing.” United States v. Cookson, 

922 F.3d 1079

, 1093 (10th Cir. 2019). However, district courts are not required to give

all § 3553(a) factors equal weight.

Id. at 1094

. 
The record shows that the court

considered a variety of § 3553(a) factors and, having found that Pacheco’s personal

circumstances did not merit a variance, decided that deterring other defendants from

committing these crimes warranted a Guidelines range sentence. The district court’s

choice to give more weight to deterrence than Pacheco’s personal circumstances after

considering the evidence before it was not a procedural error.

      Finally, Pacheco argues that the district court erred in impermissibly assuming

that the Guidelines range was presumptively reasonable. It is reversable error for a

judge to expressly declare the Guidelines presumptively reasonable. Nelson v.

United States, 
555 U.S. 350
, 352 (2009). Though circuit courts “may apply a

presumption of reasonableness to a district court sentence that reflects a proper

                                          -5-
application of the Sentencing Guidelines,” “the sentencing court does not enjoy the

benefit of a legal presumption that the Guidelines sentence should apply.” Rita v.

United States, 
551 U.S. 338
, 347, 351 (2007). However, it is generally presumed that

sentencings courts “know the law” “absent some indication in the record suggesting

otherwise.” United States v. Ruiz-Terrazas, 
477 F.3d 1196
, 1201 (10th Cir. 2007)

(quotation omitted).

      Pacheco points to the following remark as evidence that the court presumed

the Guidelines reasonable: “I’m sorry, but I find no basis for a departure or variance.

If this was a[n] original determination I would feel differently, but the law does not

justify me in sentencing you below the Advisory Guideline range, although a low end

would certainly be appropriate.” This isolated statement is insufficient to rebut the

presumption that sentencing courts know the law. The statement is consistent with

the court’s conclusion that the § 3553(a) factors did not justify a downward variance,

and a Guidelines range sentence is reasonable in this case. Additionally, the court

explicitly noted that the Guidelines are only advisory, and there are no other

indications in the record that suggest the court believed its discretion was

inappropriately restrained. Without more, we cannot conclude that the court

procedurally erred.

                                           B

      Challenges to the substantive reasonableness of a sentence are reviewed for

abuse of discretion. United States v. Chavez, 
723 F.3d 1226
, 1233 (10th Cir. 2013).

A court abuses its discretion if the sentence “is arbitrary, capricious, whimsical, or

                                          -6-
manifestly unreasonable.” United States v. Durham, 
902 F.3d 1180
, 1236 (10th Cir.

2018) (quotation omitted). When the sentence falls within or below the applicable

Guidelines range, the sentence is presumptively reasonable. United States v. Balbin-

Mesa, 
643 F.3d 783
, 788 (10th Cir. 2011). The party challenging the sentence bears

the burden of rebutting this presumption. United States v. Kristl, 
437 F.3d 1050
,

1054 (10th Cir. 2006).

      Pacheco argues that the district court erred by failing to give proper weight to

mitigating § 3553(a) factors and giving too much weight to the general need for

deterrence. Excessive reliance on one sentencing factor to the exclusion of others

can render a sentence substantively unreasonable. 
Cookson, 922 F.3d at 1092
.

However, the district court “need not afford equal weight to each § 3553(a) factor . . .

and we will defer on substantive-reasonableness review not only to a district court’s

factual findings but also to its determinations of the weight to be afforded to such

findings.”
 Id. at 1094 
(quotation and citation omitted).

      Pacheco cannot overcome the presumption that his sentence at the bottom of

the Guidelines range was reasonable. As noted above, the district court considered

the § 3553(a) factors raised by Pacheco in concluding that a downward variance was

not justified. The court determined that Pacheco’s personal history and rehabilitative

work were not materially different from other defendants. It considered evidence

that Pacheco had previously been convicted of illegal reentry and possession with

intent to distribute and committed the instant offenses while on supervised release.

The court also considered, and attached special weight, to the risk that other

                                          -7-
individuals would be more likely to illegally reenter the United States or possess

illegal drugs with the intent to distribute if the court granted too low a sentence.

Pacheco’s disagreement with how the district court weighed these factors is

insufficient for us to conclude that the court abused its discretion.

                                           III

      For the foregoing reasons, the district court is AFFIRMED.


                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




                                          -8-
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