United States v. Duarte

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 1, 2009

No. 08-50902 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JORGE HERIBERTO DUARTE

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

After he was apprehended on March 15, 2008, near El Paso, within a few

days of wading across the Rio Grande into Texas, Jorge Heriberto Duarte, a

Mexican national, pled guilty to illegal reentry 1 on June 19, 2008, and on August

29 he received a sentence of forty-six months’ imprisonment, at the low end of

the range advised under the federal sentencing guidelines. A previous drug

1

8 U.S.C. § 1326(a).

No. 08-50902

felony, which led to a brief prison term and then removal in May 2007,

dramatically increased Duarte’s sentencing range under the Guidelines.2

Duarte appeals his sentence, arguing that it was substantively

unreasonable, that the inconsistent availability of “fast-track” programs that

decrease some federal sentences leads to arbitrary and unlawful sentencing

disparities, and that his within-Guidelines sentence is not entitled to our

presumption of reasonableness 3 in light of the Supreme Court’s decision in

Kimbrough.4

I

In his central argument, Duarte asserts that the fact that his previous

crime factored into his Guidelines range not only on his Criminal History

Category but also on his offense level indicates an unjust “double-counting” of

the old crime. He argues that the dramatically heightened punishment meted

out upon reentering deportees convicted of certain predicate offenses is

unsupported by empirical study and evidentiary reliability. Citing language

from the Supreme Court’s judgment in Kimbrough that highlighted a lack of

empirical support for crack versus powder cocaine sentencing disparities as a

factor supporting the district judge’s discretionary downward departure in that

case, Duarte claims that an examination of a Sentencing Guideline’s empirical

basis is now indispensable before appellate courts can apply a presumption of

2

See U.S.S.G. § 2L 1.2(a). The base offense level of 8 was increased by 16 due to his

previous removal and drug conviction; this, combined with a criminal history category of III,

led to a sentencing range of 46 to 57 months of imprisonment. Without the 16 level increase,

but with all other factors held constant, his sentencing range would have been 2 to 8 months.

3

See U.S. v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006).

4

Kimbrough v. U.S., 128 S.Ct. 118 (2007).

2

No. 08-50902

reasonableness to within-Guidelines sentences imposed by district judges. In

essence, Duarte asks us to remove the presumption of reasonableness as to this

and other allegedly non-empirically-grounded provisions of the Guidelines.

As the government points out, numerous panels of this court have faced

and rejected arguments similar to Duarte’s,5 but only after briefing was

completed in this case did a published opinion on point issue, United States v.

Mondragon-Santiago.6 Another published opinion, United States v. Campos-

Maldonado,7 also sheds some light. The question was subject only to plain error

review in Campos-Maldonado and Mondragon-Santiago,8 whereas Duarte has

preserved his objection, but here the difference is of no moment.

Duarte argues with some force that the sixteen-level enhancement

provided for illegal re-enterers who commit certain crimes can lead to excessive

sentences for some defendants. He does not, however, point to any law

suggesting how this possibility of unjust sentences – a persistent possibility

under any system of sentencing and, more to the point, under any form of

appellate review of sentencing – gives us authority to overturn the presumption

of reasonableness that this court applies to within-Guidelines sentences.

5

See, e.g., U.S. v. Gonzalez-Camacho, 301 F. App’x 314 (5th Cir. 2008); U.S. v. Laines-

Funes, 299 F. App’x 471 (5th Cir. 2008); U.S. v. Ponce-Lopez, 299 F. App’x 410 (5th Cir. 2008);

U.S. v. Alcaraz-Salazar, 300 F. App’x 275 (5th Cir. 2008); U.S. v. Aguirre-Lopez, 299 F. App’x

295 (5th Cir. 2008); U.S. v. Ocampo-Zuniga, 298 F. App’x 400 (5th Cir. 2008); U.S. v. Infante-

Ramirez, 298 F. App’x 394 (5th Cir. 2008); U.S. v. Vela-Martinez, 300 F. App’x (5th Cir. 2008).

6

__ F.3d __, 2009 WL 782894, *8-*9 (5th Cir. 2009).

7

531 F.3d 337 (5th Cir. 2008).

8

This is never specified in the relevant section of opinion, presumably because the

panel did not consider it of any import, but it appears to have been the case. Either way, that

decision’s reasoning is compelling, so we need not labor the point.

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No. 08-50902

Intervening Supreme Court guidance, of course, could provide an avenue

for our panel to revisit court precedent, but Duarte rests too much on the thin

reed of Kimbrough, particularly reading Kimbrough in light of Rita, which

expressly approves circuit courts’ presumption of reasonableness for Guidelines

sentences.9 It is true that the Kimbrough Court “recognized that certain

Guidelines do not take account of empirical data and national experience,” 10 but

absent further instruction from the Court, we cannot read Kimbrough to

mandate wholesale, appellate-level reconception of the role of the Guidelines and

review of the methodologies of the Sentencing Commission.11 Whatever

9

Rita v. U.S., 127 S.Ct. 2456 (2007). See especially id. at 2464-65 (“The result [of the

Sentencing Commission’s ongoing work] is a set of Guidelines that seek to embody the §

3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the

abstract and potentially conflicting nature of § 3553(a)’s general sentencing objectives, and the

differences of philosophical view among those who work within the criminal justice community

as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines,

insofar as practicable, reflect a rough approximation of sentences that might achieve §

3553(a)’s objectives.”). See also Kimbrough, 128 S. Ct. at 574-75.

10

U.S. v. Rosales-Robles, 294 F. App’x 154, 155 (5th Cir. 2008); see Kimbrough, 128 S.

Ct. at 575.

11

“ Kimbrough did not question the appellate presumption . . . and its holding does not

require discarding the presumption for sentences based on non-empirically-grounded

Guidelines. . . . Even if the Guidelines are not empirically-grounded, the rationale of Rita

undergirding the presumption still holds true . . . .” Mondragon-Santiago, 2009 WL at *8-*9.

See also Rita, 127 S. Ct. at 2465, 2467 (contrasting the district court’s role in sentencing and

the appellate presumption of reasonableness); Kimbrough, 128 S.Ct. at 574 (“Section

3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities – along

with other § 3553(a) factors – when imposing sentences.”). Our narrow reading of Kimbrough

is supported by the Court’s note in United States v. Gall, 128 S. Ct. 586, 594 n. 2 (2007)

(“Notably, not all of the Guidelines are tied to this empirical evidence. For example, the

Sentencing Commission departed from the empirical apporach when setting the Guidelines

range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory

minimum sentences that Congress established for such crimes. This decision, and its effect

on a district judge’s authority to deviate from a Guidelines range in a particular drug case, is

addressed in Kimbrough . . . .”) (emphasis added) (internal citation omitted)).

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No. 08-50902

appropriate deviations it may permit or encourage at the discretion of the

district judge, Kimbrough does not force district or appellate courts into a piece-

by-piece analysis of the empirical grounding behind each part of the sentencing

guidelines. To the contrary, rather than aggrandizing appellate courts and

sanctioning analysis from on high, the thrust of recent Supreme Court decisions

has been to affirm the traditional entrustment of sentencing to the discretion of

district courts, close to the ground and more cognizant of the details of offender

and offense that should be determinative of sentence. Indeed, the very district

court cases that Duarte cites in his critique of the re-entry sentencing guidelines

are exemplary of how district courts use their discretion to apply guidelines to

particular facts.12

II

As Duarte acknowledges, the argument that disparities in the availability

of “fast track” programs among federal districts requires that sentences be

adjusted in the absence of “fast track” possibilities is foreclosed by precedent on

this circuit,13 so we do not consider it further.

Duarte provides no real grounds to doubt the reasonableness of his

sentence. The district judge, before whom Duarte had previously appeared,

considered Duarte’s case carefully, including the arguments Duarte raised at

sentencing. Upon examination of the record, we do not find that the sentence

was unreasonable.

We AFFIRM the district court's judgment.

12

See U.S. v. Santos, 406 F.Supp. 2d 320, 327-29 (S.D.N.Y. 2005); U.S. v. Zapata-

Treviño, 378 F. Supp. 2d 1321, 1324-28 (D.N.M. 2005); U.S. v. Galvez-Barrios, 355 F.Supp.2d

958, 961-63 (E.D. Wis. 2005);

13

U.S. v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008).

5