US v. Pedro Escobar-Marroquin
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00305-JAG-1. Copies to all parties and the district court/agency. [999103876].. [12-4419]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4419
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PEDRO ANTONIO ESCOBAR−MARROQUIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virgina, at Richmond. John A. Gibney, Jr., District
Judge. (3:11-cr-00305-JAG-1)
Argued:
March 22, 2013
Decided:
May 8, 2013
Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.
Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Mary E. Maguire,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant.
Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pedro
reentry
Antonio
and
Escobar-Marroquin
represented
received
pled
60-month
term
14-month
a
a
variance
above
applicable sentencing range.
of
guilty
to
illegal
imprisonment,
the
top
end
which
of
the
He now challenges the substantive
reasonableness of his sentence.
We affirm.
I.
The defendant is a Salvadoran citizen who, according to the
parties’
agreed
upon
Statement
of
Facts,
entered
the
United
States illegally for the first time in 1987. *
Some time around
1988,
and
he
reentered
returned
the
to
United
El
Salvador
States.
In
to
marry
2009,
the
subsequently
defendant
was
convicted in state court of possession with intent to distribute
cocaine.
He
sentence
and
served
was
approximately
removed
in
six
October
months
2009.
of
a
five-year
The
defendant
reentered the United States in January or February 2010, was
arrested in August 2010 for possession with intent to distribute
cocaine, and was convicted in state court and sentenced to seven
years’ imprisonment.
was
federally
While serving that sentence, the defendant
indicted
for
illegal
*
reentry
following
an
We note that there is also evidence in the record that
the defendant’s first illegal entry into the United States may
have been in 1983.
The exact date on which the defendant
initially entered the United States is not relevant to our
disposition on appeal.
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aggravated
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felony,
in
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violation
of
8
U.S.C.
§
1326.
He
subsequently pled guilty to the illegal reentry charge.
According
to
the
presentence
report
(“PSR”),
the
defendant’s offense level of 17 and criminal history category of
IV resulted in an advisory guideline range of 37 to 46 months’
imprisonment.
At sentencing, the defendant sought a downward
variance for three reasons.
He first emphasized that the MS-13
gang in El Salvador was demanding payments for the protection of
his family; that he worked in the United States to satisfy these
extortion demands and to protect his wife, children, and family
members in El Salvador; and that the MS-13 gang had already
killed his uncle and father because he was unable to pay them
enough money.
Second, he noted that he rehabilitated himself
while in prison by completing a Bible study course and getting
baptized and by graduating from a drug treatment program.
And
finally,
was
he
argued
that
his
2009
state
drug
conviction
unfairly counted three separate times in the calculation of his
offense level under the guidelines.
The government sought a 92-month sentence, arguing that
the defendant reentered the United States shortly after he was
removed
and
began
selling
drugs
again.
The
district
court
sentenced the defendant to 60 months’ imprisonment, a 14-month
variance above the guidelines range.
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II.
The
sentence,
defendant
which
we
discretion standard.”
challenges
review
the
under
reasonableness
“a
of
deferential
abuse-of-
United States v. Rivera-Santana, 668 F.3d
95, 100 (4th Cir. 2012) (internal quotation marks omitted).
normally
begin
our
his
evaluation
by
considering
the
We
procedural
reasonableness of the sentence, see United States v. Morace, 594
F.3d
340,
challenge
345
the
(4th
Cir.
procedural
2010),
but
the
reasonableness
defendant
of
his
does
not
sentence.
Rather, the defendant’s sole contention on appeal is that his
sentence was substantively unreasonable.
With
regard
to
the
substantive
reasonableness
of
defendant’s sentence,
we must determine . . . whether the District Judge
abused his discretion in determining that the [18
U.S.C. §] 3553(a) factors supported the sentence and
justified a substantial deviation from the Guidelines
range. We also must take into account the totality of
the
circumstances,
including
the
extent
of
any
variance from the Guidelines range.
If the sentence
is outside the Guidelines range, the court may not
apply a presumption of unreasonableness.
It may
consider the extent of the deviation, but must give
due deference to the district court’s decision that
the [18 U.S.C. §] 3553(a) factors, on a whole, justify
the extent of the variance.
The fact that the
appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to
justify reversal of the district court.
4
the
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United
2011)
States
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v.
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Diosdado-Star,
630
(alterations,
citations,
and
F.3d
359,
internal
366
(4th
quotation
Cir.
marks
omitted).
A.
The defendant’s first argument is that the district court
abused its discretion by placing too much weight on his criminal
history.
Other than the illegal reentry underlying this case,
the defendant’s criminal history consists of a conviction for
“Profanely
Curse/Public
Intoxication,”
a
traffic
offense,
and
two state convictions for possession with intent to distribute
cocaine.
The
defendant
emphasizes
that
each
drug
offense
involved less than one gram, and he argues that these offenses
were
fully
taken
into
account
in
calculating
his
guideline
range.
The district court did rely on the defendant’s criminal
history in imposing an above-guideline sentence, but the court
relied on other factors as well.
Consistent with its obligation
to impose a sentence in accordance with the factors set forth at
18
U.S.C.
§
3553(a),
the
court
noted
the
defendant’s
circumstances and lack of respect for the law by emphasizing
that
he
returned
to
the
United
removed in order to sell cocaine.
view
that
the
defendant’s
States
shortly
after
being
The court also mentioned its
“histrionic[]”
conduct
before
the
court, J.A. 120, in which he begged for mercy from his hands and
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knees, was an attempt to manipulate the court.
And finally, the
court discussed the seriousness of the offense and the need to
provide
caught
deterrence
selling
given
cocaine
that
in
the
the
defendant
United
dealing is not a victimless crime.
had
States
and
twice
been
that
drug
We are satisfied that the
court’s consideration and application of the § 3553(a) factors
justified the variance in this case.
not
abuse
its
discretion
by
Accordingly, the court did
placing
too
much
that
his
weight
on
the
defendant’s criminal history.
B.
The
defendant
also
contends
sentence
was
substantively unreasonable because the district court relied on
several factually inaccurate assertions made by the government.
In its sentencing memorandum, the government stated that the
defendant “began selling heroin and then later cocaine.”
46.
J.A.
But there is no evidence in the record that the defendant
ever sold heroin.
Similarly, the government asserted that the
defendant had “12 years of schooling.”
J.A. 54.
But he only
underwent four years of education.
At oral argument before us, the attorney for the government
apologized profusely for these factual inaccuracies, explaining
that he used a brief from an unrelated case as the basis for his
sentencing
memorandum
in
this
case
and,
because
he
overworked at the time, he simply did a poor job of editing.
6
was
We
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appreciate the government’s candor and accept that the inclusion
of these statements was an oversight.
Nonetheless, counsel for
the government is an officer of the court who is expected to be
truthful and accurate in all representations made to the court.
We trust that the government will take steps to ensure that
problems of this nature will not recur.
While we do not condone the government’s carelessness, its
misstatements would be prejudicial only insofar as the district
court relied on them in imposing the sentence.
contends
that
the
“upward
variance
sentence”
The defendant
was
imposed
“perhaps in partial reliance on one or more of these mistaken
assertions.”
App.
Brief
at
8
n.2.
We
disagree.
Having
reviewed the sentencing transcript and the PSR which the court
adopted,
we
are
satisfied
that
the
sentence
imposed
was
not
affected by the government’s misstatements.
III.
For the foregoing reasons, we affirm.
AFFIRMED
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