US v. Arturo Hernandez-Frias

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-00211-REP-1 Copies to all parties and the district court/agency. [998831101]. Mailed to: Sarah Elizabeth Chase. [09-5222]

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Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 Page: 1 of 14 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5222 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARTURO HERNANDEZ-FRIAS, a/k/a Sergio Armando Andrade-Lopez, a/k/a Arturo Fries Hernandez, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00211-REP-1) Argued: March 20, 2012 Before MOTZ and Circuit Judge. SHEDD, Decided: Circuit Judges, and April 12, 2012 HAMILTON, Senior Affirmed by unpublished per curiam opinion ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Samuel P. Simpson, V, MONTGOMERY & SIMPSON, LLLP, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 Page: 2 of 14 PER CURIAM: Arturo Hernandez-Frias pleaded guilty to being “found in” the United States after previously being deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a). Hernandez-Frias appeals his sentence, challenging both the calculation of his criminal history points under the U.S. Sentencing Guidelines and the district court’s failure to provide an individualized explanation for his sentence. For the reasons that follow, we affirm. I. Hernandez-Frias, a native of Mexico, legally entered the United States on a work permit when he was a teenager. In 1990, however, he was convicted in California of a felony offense for drug distribution, resulting in the cancellation of his work permit. In 1993, Hernandez-Frias was convicted of another drug- related felony offense. In 2000 and again in 2004, U.S. immigration authorities arrested Hernandez-Frias and deported him from the United States to Mexico. Each time, following his return to Mexico, Hernandez-Frias illegally reentered the United States. On July 23, 2005, Hernandez-Frias was arrested in Virginia for driving under the convicted influence him of the (“DUI”); offense. 2 a state He court incurred subsequently another DUI Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 conviction in Virginia in 2009. second DUI authorities conviction, discovered on that While he was in jail for his June he Page: 3 of 14 30, was 2009, U.S. the United in immigration States and charged him with the instant offense. Hernandez-Frias pleaded guilty to one count of being “found in” the United States after previously being deported subsequent to a conviction for 8 U.S.C. § 1326(a). an aggravated felony in violation of In preparing Hernandez-Frias’s presentence report (“PSR”), the probation officer determined that HernandezFrias’s offense commenced on July 23, 2005 -- the date on which Hernandez-Frias was arrested for his first DUI in Virginia. 1 The probation officer then used this date to calculate HernandezFrias’s criminal history score pursuant to the U.S. Sentencing Guidelines (“U.S.S.G.”). Based on the July 23, 2005 commencement date, the probation officer added criminal history points for Hernandez-Frias’s drug conviction in 1990. See U.S.S.G. §§ 4A1.1(a), 4A1.2(e)(1) (directing the addition of three criminal history points for “[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s 1 The PSR does not explain the probation officer’s choice of July 23, 2005 as the commencement date. The reason is obvious, however: it was the first date after Hernandez-Frias’s 2004 deportation for which the record conclusively established his illegal presence in the United States. 3 Appeal: 09-5222 Document: 71 commencement of Date Filed: 04/12/2012 the instant Page: 4 of 14 offense”). Additionally, the probation officer added two criminal history points because he found that Hernandez-Frias committed the instant offense while under the September § 4A1.1(d) three-year 2005 for “good his (directing behavior” first the DUI addition sentence conviction. of two imposed See criminal in U.S.S.G. history points “if the defendant committed the instant offense while under any criminal justice sentence”). With the addition of these to points, and others not relevant this appeal, the probation officer calculated that Hernandez-Frias had a criminal history category of V. In the district court, neither party initially objected to the presentence report. At the sentencing hearing, however, when the court asked if either party had any objections, defense counsel stated that Hernandez-Frias “has a question with regard, apparently, to use of his prior record in [the] calculation of his sentencing guidelines, [in that] some of the items on the record are old.” Counsel continued that the objection “has to do with when this criminal conduct started, how long before, you know, the 15 years’ issue.” Defense counsel offered that he did not “think we’ve got a valid objection” on that issue. The district and court granted a Hernandez-Frias to confer. recess for defense counsel After the recess, Hernandez-Frias stated on the record that he had no objections. 4 The court then Appeal: 09-5222 adopted Document: 71 the Date Filed: 04/12/2012 presentence report as Page: 5 of 14 tendered by the probation officer, which yielded an advisory Guidelines range of 70 to 87 months. Upon hearing the parties’ sentencing arguments, the district court sentenced Hernandez-Frias to 72 months in prison. The court stated that it had considered the 18 U.S.C. § 3553(a) factors and that it believed that a within-Guidelines sentence would accomplish the goals of those factors. After announcing the sentence, the court informed Hernandez-Frias that “it would have been perfectly legitimate to have imposed the punishment of 87 months, but I did not feel it was a justifiable use of the public funds to incarcerate you for the extra 15 months. And if you don’t learn in 72 months, you aren’t going to learn in 87 months that you can’t come back to this country without legal permission.” Hernandez-Frias timely noted this appeal. II. A. Title 8, section 1326 of the U.S. Code prohibits aliens who have been previously removed from this country from “enter[ing], attempt[ing] to enter, or [being] . . . found in, the United States” without permission from the U.S. Attorney General. Hernandez-Frias pleaded guilty to the offense of being “found 5 Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 in” the United States. the district court Page: 6 of 14 On appeal, Hernandez-Frias argues that miscalculated his criminal history score under the Sentencing Guidelines because it used the wrong date for the commencement of his offense. He asserts that the offense of being “found in” the United States commences on the date that immigration authorities discover a defendant in the United States. Thus, according to Hernandez-Frias, his offense commenced on June 30, 2009 -- not July 23, 2005 as stated in his PSR. If his offense commenced on June 30, 2009, he notes that the district court should not have assessed criminal history points under U.S.S.G. § 4A1.1(a) or U.S.S.G. § 4A1.1(d) and the exclusion of these points would have produced a lower applicable Guidelines range. In assessing a challenge to a district court’s application of the Guidelines, findings United for clear States v. we typically error Allen, and 446 review its legal F.3d 522, the court’s conclusions 527 (4th factual de Cir. novo. 2006). Because Hernandez-Frias did not object to the calculation of his criminal history score before the district Hernandez-Frias’s claim for plain error. 2 2 court, we review To prevail, Hernandez- The Government contends that by withdrawing his objection at the sentencing hearing Hernandez-Frias waived his claim entirely. See United States v. Olano, 507 U.S. 725, 733 (1993) (comparing “waiver” and “forfeiture”). Hernandez-Frias counters that this court should not find waiver because the record does (Continued) 6 Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 Page: 7 of 14 Frias must demonstrate that the district court committed error, that the error was plain, and that the error affected HernandezFrias’s substantial rights. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). We hold that he cannot plainly do so; the district court did not err in calculating his criminal history score. The first criminal history enhancement at issue, § 4A1.1(a), instructs the district court to add three points to the defendant’s criminal history score for each prior sentence of imprisonment exceeding thirteen months. U.S.S.G. § 4A1.1(a). Such a prior sentence counts only if it “was imposed within fifteen years of the defendant’s commencement of the instant offense” or “resulted in the defendant being incarcerated during any part of such fifteen-year period.” U.S.S.G. § 4A1.2(e)(1). The Guidelines commentary explains that “the term ‘commencement of the instant offense’ includes any relevant conduct.” Id. cmt. n.8 (citing U.S.S.G. § 1B1.3(a)(1)). Abundant case law holds that the “relevant conduct” of being “found in” the United States commences on the date that not make clear that Hernandez-Frias’s objection at the hearing was the same as the claim he now raises on appeal. Indeed, defense counsel’s explanation to the district court of Hernandez-Frias’s objection was hardly precise. We need not address this dispute, however, because we reject HernandezFrias’s claim even under plain error review. 7 Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 Page: 8 of 14 the defendant illegally reenters the country and continues until he or she is discovered by immigration authorities. See, e.g., United States v. Delgado-Hernandez, 646 F.3d 562, 567 (8th Cir. 2011); United States v. Hernandez-Guererro, 633 F.3d 933, 937 (9th Cir. 2011); United States v. Hernandez-Gonzalez, 495 F.3d 55, 60-61 (3d Cir. 2007); United States v. Ruiz-Gea, 340 F.3d 1181, 1189 (10th Cir. 2003); United States v. Mendez-Cruz, 329 F.3d 885, 889 (D.C. Cir. 2003); United States v. Lopez-Flores, 275 F.3d 661, 663 (7th Cir. 2001). circuits, we conclude Hernandez-Frias, States, not that commenced when he was immigration authorities. the precise date of the upon In accord with our sister offense his “found” of reentry in the the to defendant, the United United States by Because the record does not disclose Hernandez-Frias’s reentry, the district court reasonably used the date of his July 23, 2005 DUI as the commencement date -- the first date that the record conclusively establishes Hernandez-Frias’s illegal presence in the United States following his 2004 deportation. Using July 23, 2005 as the offense commencement date, the district court pursuant to conviction. § appropriately 4A1.1(a) added for criminal history Hernandez-Frias’s 1990 points drug Hernandez-Frias’s 1990 drug conviction carried a 8 Appeal: 09-5222 Document: 71 sentence Date Filed: 04/12/2012 exceeding thirteen Page: 9 of 14 months 3 and it resulted incarceration within fifteen years of July 23, 2005. in his Therefore, the district court properly assessed criminal history points for that prior conviction under § 4A1.1(a). The district court also properly assessed criminal history points because Hernandez-Frias committed part of his § 1326 offense while under a probationary sentence for his 2005 DUI conviction. district history Section 4A1.1(d) and its commentary instruct the court score to add two points “if the defendant to a defendant’s committed any part criminal of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence.” U.S.S.G. § 4A1.1(d) cmt. n.4. Hernandez-Frias’s 2005 DUI conviction carried a three year goodbehavior sentence. Thus, Hernandez-Frias’s illegal presence in the United States overlapped with his good-behavior sentence and the district court appropriately added criminal history points under § 4A1.1(d). 3 Hernandez-Frias’s original sentence for the 1990 drug conviction was incarceration for 240 days followed by 36 months of probation. But, on September 21, 1990, Hernandez-Frias received an additional 180 days incarceration for a probation violation. Under U.S.S.G. § 4A1.2(k)(1), such revocation sentences are added to the original term of imprisonment for the purposes of computing criminal history points, thereby carrying Hernandez-Frias over the thirteen month threshold. 9 Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 Page: 10 of 14 B. We also reject Hernandez-Frias’s alternative argument that, even if his offense commenced upon his illegal reentry to the United States, his offense could not have commenced prior to December 2007. The unrebutted evidence in the record establishes that Hernandez-Frias was in the United States as of July 23, 2005. Hernandez-Frias But based on a stray statement in his PSR, asserts that his most recent reentry to the United States occurred in December 2007 or later. He did not raise this argument point as in lacking the district adequate court, factual and we reject support to show his plain error. Hernandez-Frias’s assertion that he left the United States after July 23, 2005 rests entirely on the single statement in his PSR Because that his he “last children saw reside his he December statement proves that he visited Mexico in December 2007. But Hernandez-Frias’s the require claims 2007.” this would Mexico, in that argument in children us to make circumstantial inference that simply because Hernandez-Frias saw his children in December 2007, he must have traveled to Mexico to do so. But, of course, it is also possible that the children 10 Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 came to the United States. 4 Page: 11 of 14 And Hernandez-Frias offered no other evidence of his alleged return to Mexico. On this record, the PSR’s lone nonspecific reference to seeing his children is far from sufficient to establish that the district court plainly erred by not dating the commencement of Hernandez-Frias’s offense to December 2007. III. Finally, committed Hernandez-Frias reversible argues error in that the failing district to court provide an individualized explanation of his criminal sentence in light of the factors enumerated under 18 U.S.C. § 3553(a). See United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (“Regardless of whether the within-Guidelines district court sentence, it imposes must an place above, on the below, or record an ‘individualized assessment’ based on the particular facts of the case before it.”); see also United States v. Lynn, 592 F.3d 572, 576, 581 (4th Cir. 2010). district inadequate court committed explanation The Government concedes that the procedural for error in Hernandez-Frias’s 4 providing sentence, an but The PSR additionally states that Virginia Steel Erectors employed Hernandez-Frias “[f]rom 2000 until his arrest for the instant offense,” suggesting his continuous presence in the United States. 11 Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 Page: 12 of 14 contends that the error was harmless. Gov’t Br. at 43. We agree. As a threshold matter, we note that Hernandez-Frias did properly preserve an objection to his sentence. challenge to defendant need pronounced a proceedings an insufficiently not explained specifically sentence, ‘draw[] but he arguments object must from sentence, after at § To preserve a the some 3553 court point for “the a different than the one ultimately imposed . . . .’” in has the sentence United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011) (quoting Lynn, 592 F.3d at 576). end of the By requesting a sentence “at the low guidelines” by recommended advisory advisory the and the “minimum guidelines,” Hernandez-Frias effectively requested a sentence of 70 months. court, however, Accordingly, sentenced him Hernandez-Frias to 72 preserved months an sentence The district incarceration. objection to his sentence. Because he preserved an objection, we apply harmless error review in considering whether the district court’s procedural error warrants reversal. standard, “the demonstrates Lynn, 592 F.3d at 579. government that the error may did avoid not reversal have a Under that only if it substantial and injurious effect or influence on the result and we can say with fair assurance, that the district court’s explicit consideration 12 Appeal: 09-5222 of Document: 71 [the Date Filed: 04/12/2012 defendant’s] sentence imposed.” (4th Cir. omitted). 2010) The arguments Page: 13 of 14 would not have affected the United States v. Boulware, 604 F.3d 832, 840 (internal Government quotation has marks satisfied that and alterations burden in this case. At sentencing, Hernandez-Frias made several straightforward arguments under 18 U.S.C. § 3553(a), namely that his age, the age of his incarceration sentence. court prior on family and counseled the in impact favor of of a his lesser The record in this case indicates that the district considered arguments. his convictions, and After appreciated hearing Hernandez-Frias’s Hernandez-Frias’s § 3553(a) arguments and personal allocution, the court stated that it had considered the § 3553(a) factors and believed that a within-Guidelines sentence for Hernandez-Frias § 3553(a). 5 would accomplish the objectives of Then, the district court sentenced Hernandez-Frias to 72 months imprisonment -- only two months above the sentence Hernandez-Frias requested (and fifteen months below the sentence requested by the Government). 5 Additionally, earlier in the sentencing hearing, the district court granted a recess for Hernandez-Frias and his counsel to confer over a possible objection to the age of his prior convictions, suggesting that the court was aware that the staleness of Hernandez-Frias’s prior convictions was a relevant consideration. 13 Appeal: 09-5222 Document: 71 Date Filed: 04/12/2012 Hernandez-Frias sentencing arguments. raised Page: 14 of 14 uncomplicated, Although the district relatively court weak erred by failing to address them specifically on the record, we believe that a remand for resentencing would not change the sentence imposed given that the district court sentenced Hernandez-Frias to nearly the sentence that he requested. Boulware, 604 F.3d at 840 (declining to remand for resentencing where such a remand would be “pointless”). Indeed, on this record, we believe that the district court undertook the analysis required by Carter, but simply failed to make that analysis explicit. Under these circumstances, the district court’s error was harmless. Accordingly, we affirm the judgment of the district court. AFFIRMED 14

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