D. Ct. No. 1:12-CR-00149-RBJ-1 D. Colo.
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit Judge.
ORDER AND JUDGMENT[*]
WADE BRORBY, United States Circuit Judge.
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.
A jury convicted Appellant Jose Lujan-Lopez of one count of illegal reentry of a deported alien subsequent to a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1). He now appeals his seventy-seven-month downward variant sentence, claiming it is procedurally unreasonable because the district court failed to apply United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 3E1.1 for a two-level reduction for acceptance of responsibility. He also contends his sentence is substantively unreasonable because the district court gave undue weight to his criminal history, while failing to give meaningful weight to his personal history and characteristics. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Lujan-Lopez's sentence.
I. Factual and Procedural Background
After Mr. Lujan-Lopez pled not guilty to illegal reentry, a pre-trial conference was held at which his counsel advised Mr. Lujan-Lopez might proceed to trial because he was upset with his estimated Guidelines sentence and was considering hiring private counsel, to which the district court indicated it would allow a continuance in the event counsel was hired. The district court also thoroughly explained the Guidelines to Mr. Lujan-Lopez, including the fact they are advisory and not mandatory or binding, and that it would determine a fair and appropriate sentence by considering not only the Guidelines but the other sentencing factors involved. No new counsel or continuance request followed; in preparation for trial, the government submitted trial briefs, exhibit and witness lists, jury instructions, and voir dire questions. At trial, prior to jury selection, Mr. Lujan-Lopez admitted he was guilty and did not want to go to trial but wanted another attorney to get a "better deal." His counsel explained Mr. Lujan-Lopez's only objection to her representation was her calculation of the applicable Guidelines range. The district court denied his request for alternative counsel and again explained how the Guidelines operated. Given Mr. Lujan-Lopez's decision not to plead guilty, the trial then commenced with the government presenting multiple witnesses and various exhibits to prove the crime charged. The next day, Mr. Lujan-Lopez took the stand in his own defense and, on cross examination, admitted guilt to the charge against him and explained, as his reason for going to trial, that he wanted to obtain "compassion from the jury." A jury verdict of guilty ensued.
Following his conviction, a probation officer prepared a presentence report, and, in calculating his sentence, determined a two-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility did not apply because Mr. Lujan-Lopez put the government to its burden of proof at trial and did not appear to meet an exception for applying such a reduction. Mr. Lujan-Lopez's total offense level of 24, together with his criminal history category of V, resulted in a Guidelines range of ninety-two to 115 months imprisonment.
Prior to and at the sentencing hearing, Mr. Lujan-Lopez objected to the presentence report, claiming he was entitled to a two-point reduction because he admitted his guilt at the trial, which should result in a Guidelines range of seventy-seven to ninety-six months. His counsel also sought a lower sentence, arguing a seventy-seven-month sentence was extremely onerous for the nonviolent crime of illegal reentry and pointed out Mr. Lujan-Lopez returned illegally for the admirable purpose of caring for his child. During his allocution, Mr. Lujan-Lopez expressed remorse for his illegal reentry and explained he "only returned because of [his] son." Because Mr. Lujan-Lopez chose to proceed to trial, the government opposed a § 3E1.1 reduction for acceptance of responsibility.
The district court expressed its concerns about § 3E1.1 placing a penalty on defendants for exercising their right to go to trial and recognized that by not denying his guilt, Mr. Lujan-Lopez had accepted responsibility for his crime. It also considered the sentencing factors in 18 U.S.C. § 3553(a), including the nature of the crime, Mr. Lujan-Lopez's history and characteristics, including his "very substantial criminal history, " and the need to promote respect for the law, deter future crimes, and protect the public. It also noted the recommended Guidelines sentence "for this type of case" was "extraordinary" but also noted Mr. Lujan-Lopez's extensive criminal history supported a "higher-level sentence." In addressing Mr. Lujan-Lopez's request for a sentence below seventy-seven months, it recognized a seventy-seven-month sentence would be at the low end of the Guidelines range if it had applied the two-point reduction for acceptance of responsibility. It then imposed a sentence of seventy-seven months imprisonment, clarifying it was imposing a downward variant sentence and stating, "I am satisfied that ninety-two months is too much. I am satisfied that a penalty for going to trial is unfair."
Mr. Lujan-Lopez now appeals his sentence, renewing his claim his sentence is: (1) procedurally unreasonable because the district court failed to apply U.S.S.G. § 3E1.1 for a two-level reduction for his acceptance of responsibility; and (2) substantively unreasonable because it placed too much weight on his criminal record while failing to give "any" or "meaningful" weight to his personal history and characteristics, including his illegal reentry for the purpose of caring for his son. In arguing for the two-level reduction, Mr. Lujan-Lopez contends the district court made a mistake of law by assuming § 3E1.1 is unavailable to a defendant who goes to trial and that his admission of guilt at trial is sufficient to apply a § 3E1.1 reduction. He further submits that in deciding to go to trial his "concern was always about the length of his sentence, " as well as his desire to recount his experience and ask for leniency, and that the trial "served as an essential vehicle for him to accept responsibility." The government opposes the appeal.
We review a sentence for reasonableness, giving deference to the district court under an abuse of discretion standard. See United States v. Smart, 518 F.3d 800, 802-03, 805 (10th Cir. 2008). Thus, we review "'all sentences–whether inside, just outside, or significantly outside the Guidelines range–under a deferential abuse-of-discretion standard'" in which we afford substantial deference to the district courts. Id. at 806 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). "Our appellate review for reasonableness includes both a procedural component ... as well as a substantive component, which relates to the length of the resulting sentence." Id. at 803. "Procedural reasonableness addresses whether the district court incorrectly calculated ... the Guidelines sentence, treated the Guidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately explain the sentence." United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008).
In determining whether the district court committed procedural error in calculating Mr. Lujan-Lopez's sentence or treated the Guidelines as mandatory, we look to § 3E1.1, on which he relies. It advises sentencing courts to "decrease the offense level by two levels" if "the defendant clearly demonstrates acceptance of responsibility for his offense." ...