United States v. Santos Chavarria-Ortiz

Filing

OPINION FILED - THE COURT: William Jay Riley, Steven M. Colloton and Jane Kelly AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4422906] [15-3031]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3031
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Santos Chavarria-Ortiz, also known as Wilmer Santiago Suazo Escobar, also
known as Santos N. Chavarria, also known as Noe Ortiz,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: May 18, 2016
Filed: July 7, 2016
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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
Santos Chavarria-Ortiz pleaded guilty to one count of illegal reentry after
removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court1 determined

1

The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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an advisory sentencing guideline range of 70 to 87 months’ imprisonment, rejected
Chavarria-Ortiz’s request for a downward variance to 36 months, and sentenced him
within the advisory range to a term of 84 months’ imprisonment, followed by three
years of supervised release.
Chavarria-Ortiz contends that the district court committed significant
procedural error by failing to give an adequate explanation for the sentence. The
Supreme Court explained in Gall v. United States, 552 U.S. 38, 50 (2007), that a
district court, after settling on the appropriate sentence, “must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” See Rita v. United States, 551 U.S. 338, 351, 356-57
(2007).
Chavarria-Ortiz failed to object at sentencing to the adequacy of the district
court’s explanation, and the government argues that he thereby waived any claim of
procedural error. The government cites a statement in United States v. Maxwell, 778
F.3d 719, 734 (8th Cir. 2015), that “[w]e will not sustain a procedural challenge to the
district court’s discussion of the 18 U.S.C. § 3553(a) sentencing factors by a defendant
who did not object to the adequacy of the court’s explanation at sentencing.” In
Maxwell, however, the court conducted plain-error review of any challenges to the
district court’s explanation, id. at 734-35, 736, so the quoted sentence is dictum
insofar as it suggested that a mere failure to object is a waiver.
A waiver, of course, is “the intentional relinquishment or abandonment of a
known right,” whereas forfeiture is “the failure to make the timely assertion of a
right.” United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation omitted).
Waiver precludes appellate review, while forfeiture limits consideration to a rigorous
plain-error standard. Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 733-34. To show a
waiver, the government must point to action by the defendant or defense counsel that
establishes an intentional relinquishment or abandonment of the right. E.g., United
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States v. Harrison, 393 F.3d 805, 807-08 (8th Cir. 2005); United States v. Thompson,
289 F.3d 524, 526 (8th Cir. 2002). Classifying a failure to object as a waiver when
a right is well known and regularly involved would largely collapse the distinction
between waiver and forfeiture. Plain-error review often addresses the forfeiture of
objections asserting familiar rights. See, e.g., Molina-Martinez v. United States, 136
S. Ct. 1338, 1344-45 (2016) (reviewing forfeited claim that the district court
miscalculated criminal history points under the sentencing guidelines); Puckett v.
United States, 556 U.S. 129, 136 (2009) (reviewing forfeited claim that the
government violated a plea agreement); United States v. Cotton, 535 U.S. 625, 631-34
(2002) (reviewing forfeited claim that the indictment omitted a fact that increased the
statutory maximum sentence); United States v. Vonn, 535 U.S. 55, 62-63 (2002)
(holding that plain-error review applies to forfeited claim that a district court varied
from Rule 11 during a guilty plea colloquy).
Our cases routinely have conducted plain-error review of claims that a district
court failed adequately to explain a chosen sentence. See, e.g., United States v. Fry,
792 F.3d 884, 891-92 (8th Cir. 2015); United States v. Keatings, 787 F.3d 1197, 120203 (8th Cir. 2015); United States v. Butler, 743 F.3d 645, 647 (8th Cir. 2014); United
States v. Rice, 699 F.3d 1043, 1049-50 (8th Cir. 2012). We follow that course here.
As a practical matter, however, a forfeited challenge to the adequacy of a
district court’s explanation for a sentence within an advisory guideline range faces
long odds. In Rita, the Supreme Court deemed adequate a district judge’s cursory
explanation that he was unable to find the advisory range inappropriate, that the public
needed to be protected, and that a sentence at the bottom of the advisory range was
“appropriate.” 551 U.S. at 345. The Court explained that where a matter is
conceptually simple, and the record makes clear that the sentencing judge considered
the evidence and arguments, the law does not require the judge to write or say more.
Id. at 359. When a defendant does not speak up at sentencing and request an
explanation for some aspect of the district court’s decision, he can hardly expect a
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sympathetic reaction (or a lengthy response) to his untimely complaint that the judge
should have delivered a more fulsome statement. And an appellant raising a forfeited
objection to the court’s statement of reasons confronts a daunting task in convincing
a court of appeals that a more detailed explanation would have resulted in a lighter
sentence. See Olano, 507 U.S. at 734.
In this case, the district court heard from both parties. Defense counsel sought
a below-guidelines sentence of 36 months, explaining that Chavarria-Ortiz originally
had followed his mother to the United States as a teenager and reentered the country
most recently to earn money for his son in Mexico. Counsel suggested that a long
sentence was unnecessary to deter Chavarria-Ortiz from illegally reentering the
country again, because he had gained employment skills that were transferrable to
Mexico and his young daughter was now living in Mexico. The government
responded that Chavarria-Ortiz had three prior convictions for illegal reentry, as well
as convictions for drug offenses and aggravated assault with a deadly weapon, and
urged a sentence within the advisory range. In his allocution, Chavarria-Ortiz asked
the judge to allow him to be with his daughter.
The court imposed a sentence of 84 months, within the advisory range, citing
the nature and circumstances of the offense, the history and characteristics of the
defendant, and the need to deter future criminal conduct. The court further
characterized the sentence as “appropriate and reasonable” and “sufficient, but not
greater than necessary.” Addressing the defendant, the judge said, “I’m not going to
give you a chance to be with your child right away,” but added that Chavarria-Ortiz
would still be a young man when released and could see his children grow up.
The district court’s explanation was adequate in the context of this case. The
record shows that the court listened to the parties’ arguments and determined that the
circumstances did not warrant a downward variance. Where the defendant had
sustained four convictions for illegal reentry, in addition to other criminal convictions,
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there was no need for an elaborate discussion of why the court agreed with the range
recommended by the Sentencing Commission. See Rita, 551 U.S. at 356-57.
Chavarria-Ortiz, moreover, points to nothing to suggest a reasonable probability that
the district court would have imposed a more lenient sentence if the court had elected
to discuss the appropriateness of the sentence at greater length.
Chavarria-Ortiz also contends that his sentence is substantively unreasonable,
because the district court gave too much weight to deterrence and too little weight to
his personal history and circumstances. We review the substantive reasonableness of
a sentence under a deferential abuse-of-discretion standard. Gall, 552 U.S. at 51. We
apply a presumption of reasonableness to sentences within the advisory guideline
range. United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009); see Rita,
551 U.S. at 347. District courts have wide latitude to weigh the factors set forth in 18
U.S.C. § 3553(a) and may assign some factors greater weight than others. United
States v. San-Miguel, 634 F.3d 471, 476 (8th Cir. 2011). The record makes clear that
the court thought Chavarria-Ortiz’s offense conduct and criminal history warranted
a sentence within the advisory range, and that the need for deterrence outweighed the
defendant’s pleas for leniency based on personal circumstances. The sentence was not
unreasonable.
The judgment of the district court is affirmed.
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