USA v. Rodrigo Cruz-Pallares

Filing

UNPUBLISHED OPINION FILED. [09-50491 Vacated and Remanded] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 10/25/2010 for Appellant Rodrigo Cruz-Pallares [09-50491]

USA v. Rodrigo Cruz-Pallares

Doc. 0

Case: 09-50491

Document: 00511252830

Page: 1

Date Filed: 10/04/2010

IN THE UNITED STATES COURT OF APPEALS F O R THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
N o . 09-50491 October 4, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R O D R I G O CRUZ-PALLARES, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 2:08-CR-634-1

B e fo r e SMITH, WIENER, and ELROD, Circuit Judges. W I E N E R , Circuit Judge:* D e fe n d a n t -A p p e lla n t Rodrigo Cruz-Pallares ("Cruz") appeals his aboveg u id e lin e sentence in this illegal-reentry case. Cruz contends that his sentence w a s imposed in error because the district court relied on clearly erroneous facts a n d failed to resolve objections properly raised at his sentencing hearing. Cruz a s s e r t s in the alternative that the sentence imposed was substantively u n r e a s o n a b le and that it was impermissible for the district court to order the

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

*

Dockets.Justia.com

Case: 09-50491

Document: 00511252830

Page: 2

Date Filed: 10/04/2010

No. 09-50491 s e n te n c e to run consecutively to an as-yet unimposed state sentence. We vacate C r u z 's sentence and remand for re-sentencing.1 I . FACTS AND PROCEEDINGS C r u z is a citizen of Mexico who lived in the State of Washington as a p e r m a n e n t resident from 1989 until 2006. In June 2006, Cruz was convicted of t h ir d -d e g r e e felony assault on his common-law wife. He lost his permanentr e s i d e n t status and was deported to Mexico in November of 2006. Because he w a s deported, Cruz failed to make child support payments to his common-law w ife in the ordered amount of $348 per month. In July 2008, state authorities d is c o v e r e d that Cruz had been deported. He was $10,000 in arrears on his childs u p p o r t obligation at that time. Cruz's ex-wife has indicated that he had been p a y in g child support until his arrest and deportation. I n June 2008, Cruz was discovered walking along the highway near S a b in a l, Texas. Border patrol agents arrested him on suspicion of illegal entry. Cruz had not received consent to reapply for admission to the United States. He p le a d e d guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. After hearing from the parties at the sentencing hearing, the district court im p o s e d an above-guideline sentence. Under the Guidelines, the recommended p r is o n sentence for Cruz was 24 to 30 months, but the district court imposed a s e n te n c e of 54 months. The court justified its above-guideline sentence in a n u m b e r of ways, noting the need to (1) reflect the nature of the offense, (2)

Cruz also argues on appeal that the district court erred in sentencing him by considering misdemeanor convictions solely supported by computer-generated docket sheets. Because we must remand for re-sentencing, we do not address whether the district court properly considered these prior misdemeanor convictions or whether Cruz preserved this issue for appeal.

1

2

Case: 09-50491

Document: 00511252830

Page: 3

Date Filed: 10/04/2010

No. 09-50491 p r o m o t e respect for the law, (3) provide just punishment, (4) deter criminal b e h a v io r , and (5) protect the public. The court expressed its belief that the way t h e Guidelines assign criminal history points to assaults does not accurately r e fle c t Cruz's criminal history. It stated that, even though one of Cruz's criminal a s s a u lt charges was not deemed a crime of violence (thus negating a possible s i x t e e n -p o in t enhancement), that assault was nonetheless violent. The court a ls o stated that "[t]his gentleman says he comes over here to work and take care o f his family; but he is $10,000 behind on his child support." The court observed t h a t Cruz had been "in and out of the criminal justice system for a variety of r e a s o n s since 1991." The court also appeared to believe that Cruz had

c o m m it t e d crimes here after he had already been deported, commenting to Cruz that "you still have uncounted criminal history that occurred in 2000, 2003, [a n d ] 2005[,] meaning this man was in the United States all of that time when h e had already been deported." C r u z objected to the district court's statement that he was delinquent in p a y in g child support. Although Cruz claimed that the $10,000 arrearage in child s u p p o r t had accrued after he was deported, the district court appears to have h a r b o r e d its mistaken belief that Cruz had been deported well before 2006. Cruz t im e ly filed a notice of appeal. II. ANALYSIS A . Standard of Review W e engage in a two-part process when reviewing a sentence. We first c o n s id e r whether the sentencing court committed procedural error.2 Relevant t o this case, procedural error includes imposing a sentence on the basis of clearly

2

See Gall v. United States, 552 U.S. 38, 51 (2007).

3

Case: 09-50491

Document: 00511252830

Page: 4

Date Filed: 10/04/2010

No. 09-50491 e r r o n e o u s facts.3 Yet, "certain `harmless' errors do not warrant reversal." 4 The e r r o r must have affected the court's selection of the sentence, and the g o v e r n m e n t has the burden of providing evidence to show "that the district court h a d a particular sentence in mind and would have imposed it, notwithstanding t h e error made."5 If we conclude that there is no procedural error, we then c o n s id e r the substantive reasonableness of the sentence.6 The district court's fa c t fin d in g is reviewed for clear error.7 B . Clearly Erroneous Facts C r u z contends that the district court committed procedural error by r e ly in g on the clearly erroneous facts that Cruz had been deported before 2006 a n d had been in the United States since then, committing crimes and shirking h is child-support responsibilities. As Cruz attempted to correct the district court w h e n it appeared to be relying on an incorrect deportation date, we look to see if the facts relied on by the district court were clearly erroneous, rather than p la in ly erroneous.8 Cruz was not deported until 2006, yet the district court s t a t e d incorrectly that "this man was in the United States [committing crimes in 2000, 2003, and 2005] when he had already been deported." The district court a g a in disregarded the correct deportation date when it incorrectly found that

3

Id. See United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). Id. at 753. Id. See United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). See United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993).

4

5

6

7

8

4

Case: 09-50491

Document: 00511252830

Page: 5

Date Filed: 10/04/2010

No. 09-50491 C r u z had been evading his child-support obligations while he was in the United S ta te s . These are clearly erroneous determinations of the facts. The

P r e s e n t e n c e Report shows that Cruz had been deported in 2006, had not r e t u r n e d to the United States before he was picked up for illegal reentry in 2008, a n d did not stop paying child support until 2006, when he was deported. The government cannot bear its burden of showing that these clear errors w e r e harmless. Granted, the district court listed numerous reasons for imposing a n above-guideline sentence, chief among which were Cruz's violent criminal h is t o r y and repeated flaunting of United States law. The government calls the c o u r t's reference to the child-support arrearage "more of an observation, than a b a s is for a section 3553 sentence." Contrary to that assertion, the fact that child s u p p o r t and the deportation date were not mentioned in the court's final s u m m a r y is not dispositive of this issue. The district court appeared to rely, to a considerable extent, on the mistaken facts that (1) Cruz had been in the c o u n t r y illegally for an extended period of time and (2) he had failed to pay child s u p p o r t while he was in the United States earning money. It is unavailing for t h e government to claim that this was not a primary motivation behind the s e n te n c e . The government had to show that this mistake by the district court h a d no effect on the length of the sentence. As it has not met this burden, we c o n c lu d e that the sentencing court's procedural error was not harmless. III. CONCLUSION A s we hold that the district court committed procedural error that was not h a r m le s s , we need not, and therefore do not, address Cruz's contention that his s e n te n c e is substantively unreasonable. Cruz also contends that, under 18 U .S .C . § 3584(a), a district court has no authority to order that a sentence run

5

Case: 09-50491

Document: 00511252830

Page: 6

Date Filed: 10/04/2010

No. 09-50491 c o n s e c u t iv e ly to an as-yet unimposed state punishment. Cruz concedes that this c o n t e n t io n is foreclosed by our opinion in United States v. Brown,9 raising it only t o preserve it for further appeal. We VACATE Cruz's sentence and REMAND fo r re-sentencing.

9

920 F.2d 1212 (5th Cir. 1991).

6