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United States v. Ocampo-Gutierrez

United States Court of Appeals, Tenth Circuit

October 29, 2013

UNITED STATES OF AMERICA, Plaintiff - Appellee,

(D. Colorado) (D.C. No. 1:12-CR-00520-WYD-1)

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.


Stephen H. Anderson, 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.

Defendant and appellant, German Antonio Ocampo-Gutierrez, appeals the eighteen-month sentence imposed on him following his plea of guilty to escape from a prison, in violation of 18 U.S.C. § 751(a). Finding that the district court did not err in imposing Mr. Ocampo-Gutierrez's sentence, we affirm.

Mr. Ocampo-Gutierrez was born in Colombia in 1955, and he entered the United States illegally in 1976. He married an American citizen at some point, and he avers he "eventually legalized his status." Appellant's Br. at 1.[1]

As Mr. Ocampo-Gutierrez describes the matter in his brief, "[i]n the mid-1980's [he] made a mistake. Under pressure from a Colombian drug cartel, he agreed to transport drugs across the border from Mexico into the United States. He was intercepted at the border and subsequently convicted of a federal drug crime." Id. at 2. Mr. Ocampo-Gutierrez was then sent to serve his fifteen-year sentence at the Federal Prison Camp in Florence, Colorado. Two months later, Mr. Ocampo-Gutierrez "wandered away from the camp." Id.

At some point, Mr. Ocampo-Gutierrez returned to Mexico, married and had three children.[2] He worked as a carpenter. Mr. Ocampo-Gutierrez further averred that "[i]n approximately 2012, after being harassed by Los Zetas cartel members, he sold his home in Monterrey, Mexico, and closed his construction business. He and his family began living illegally in Texas, subsisting largely on the proceeds from the sale of their home in Mexico." Id. at 3.

Finally, in November 2012, Mr. Ocampo-Gutierrez was intercepted at the Mexico-U.S. border attempting to illegally enter the United States. He was returned to federal custody and the government indicted him for the 1993 escape charge. Mr. Ocampo-Gutierrez pled guilty to that charge. In preparation for sentencing, the United States Probation Office prepared a presentence report ("PSR"). The PSR calculated that Mr. Ocampo-Gutierrez's total offense level was eleven, which, with a criminal history of eight, yielded an advisory sentencing range of 18-24 months.

Mr. Ocampo-Gutierrez filed a motion for a below-Guidelines sentence, arguing that such a reduction was warranted because of his good conduct during the decades following his escape, his age (he is now in his fifties), his low risk of recidivism, and his strong family support. The government responded with a recommendation that Mr. Ocampo-Gutierrez receive an 18-month sentence.

At sentencing, the district court began by rejecting the probation department's recommendation for a twenty-four month sentence. The court also expressed a desire to ensure that Mr. Ocampo-Gutierrez receive some penalty. The district court said "[t]here has to be some punitive, distinct consequence ...." Tr. of Sentencing at 9; R. Vol. 4 at 31.[3] The court ultimately settled on an eighteen-month prison sentence, concluding in part as follows:

[T]here is no doubt in my mind that a fair and just sentence under the advisory guidelines, and taking into account the sentencing factors found at 18 [U.S.C. §] 3553(a), is a sentence that requires a distinct period of incarceration for the escape conviction.
You can make all the excuses you want as to why you were unhappy in 1993 being in prison and why you walked away, but you had plenty of opportunities to come back. And there is a reference here that you attempted to contact your former attorney. That didn't happen and you became confused about what to do.
And then when you were arrested attempting to reenter this country illegally last fall, you were charged in this court with a new crime of escape. And if I didn't give you a separate period of incarceration, you'd receive no punishment for being a fugitive for 20 years, escaping, and I just don't think that's right. It's ...

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