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    United States v. Estrada-Rodriquez, 10th Cir. (2008)

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ventura Javier Estrada-Rodriguez's appeal of his 46-month prison sentence for unlawful reentry following deportation for committing an aggravated felony. The court affirms the sentence, finding it substantively reasonable. It describes how Estrada-Rodriguez's offense level and criminal history category were calculated under the Sentencing Guidelines. While he argues his sentence is too harsh, the court concludes the sentence is presumptively reasonable as it is within the Guidelines range, and Estrada-Rodriguez's reasons for a lower sentence do not overcome this presumption.

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    United States v. Estrada-Rodriquez, 10th Cir. (2008)

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ventura Javier Estrada-Rodriguez's appeal of his 46-month prison sentence for unlawful reentry following deportation for committing an aggravated felony. The court affirms the sentence, finding it substantively reasonable. It describes how Estrada-Rodriguez's offense level and criminal history category were calculated under the Sentencing Guidelines. While he argues his sentence is too harsh, the court concludes the sentence is presumptively reasonable as it is within the Guidelines range, and Estrada-Rodriguez's reasons for a lower sentence do not overcome this presumption.

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    Filed: 2008-03-06 Precedential Status: Non-Precedential Docket: 07-2104

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ventura Javier Estrada-Rodriguez's appeal of his 46-month prison sentence for unlawful reentry following deportation for committing an aggravated felony. The court affirms the sentence, finding it substantively reasonable. It describes how Estrada-Rodriguez's offense level and criminal history category were calculated under the Sentencing Guidelines. While he argues his sentence is too harsh, the court concludes the sentence is presumptively reasonable as it is within the Guidelines range, and Estrada-Rodriguez's reasons for a lower sentence do not overcome this presumption.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    14 views4 pages

    United States v. Estrada-Rodriquez, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Ventura Javier Estrada-Rodriguez's appeal of his 46-month prison sentence for unlawful reentry following deportation for committing an aggravated felony. The court affirms the sentence, finding it substantively reasonable. It describes how Estrada-Rodriguez's offense level and criminal history category were calculated under the Sentencing Guidelines. While he argues his sentence is too harsh, the court concludes the sentence is presumptively reasonable as it is within the Guidelines range, and Estrada-Rodriguez's reasons for a lower sentence do not overcome this presumption.

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    March 6, 2008

    Elisabeth A. Shumaker
    Clerk of Court

    TENTH CIRCUIT

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.

    No. 07-2104
    (D. New Mexico)

    VENTURA JAVIER ESTRADARODRIGUEZ,

    (D.C. No. CR-06-1620 JB)

    Defendant - Appellant.

    ORDER AND JUDGMENT *


    Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

    Ventura Javier Estrada-Rodriguez entered a plea of guilty in the United


    States District Court for the District of New Mexico to the offense of unlawful
    reentry following deportation for committing an aggravated felony. See 8 U.S.C.
    1326(a), (b). The district court sentenced him to 46 months imprisonment. On

    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    appeal Mr. Estrada-Rodriguez contends that his sentence is substantively


    unreasonable. We have jurisdiction under 28 U.S.C. 1291 and affirm.
    Under the United States Sentencing Guidelines Mr. Estrada-Rodriguez was
    assigned a base offense level of 8 for unlawfully entering the United States. See
    USSG 2L1.2(a). He received a 16-level enhancement because he had been
    previously deported after being convicted of a crime of violence (false
    imprisonment by violence) in California. See id. 2L1.2(b)(1)(A). After a
    3-level reduction for accepting responsibility, see id. 3E1.1, his total offense
    level became 21.
    Mr. Estrada-Rodriguezs criminal-history category under the Guidelines
    was IV because he had seven criminal-history points. A conviction for
    misdemeanor driving under the influence was assigned one point. See id.
    4A1.1(c). A conviction for felony false imprisonment was assigned three
    points. See id. 4A1.1(a). And he received two additional points because he
    committed the instant offense while on probation, see USSG 4A1.1(d), and
    received a seventh point because he committed the instant offense within two
    years of being released from custody on the felony sentence, see USSG
    4A1.1(e). The district court, however, departed downward to criminal-history
    category III because Mr. Estrada-Rodriguez was barely in criminal-history
    category IV and the timing of his offense had resulted in pil[ing] these points
    on. R. Vol. III at 16. The Guidelines sentencing range was therefore 46 to 57
    -2-

    months imprisonment, and the court imposed a 46-month sentence. On appeal


    Mr. Estrada-Rodriguez argues that this sentence is substantively unreasonable in
    light of the factors listed in 18 U.S.C. 3553.
    Under United States v. Booker, 543 U.S. 220, 261 (2005), we review a
    sentence for reasonableness. See Gall v. United States, 128 S. Ct. 586, 597
    (2007); United States v. Smart, No. 06-6120, slip op. at 11 (10th Cir. Mar. 4,
    2008). But a sentence within the Guidelines range is presumptively reasonable.
    United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); see Rita v. United
    States, 127 S. Ct. 2456, 2462 (2007). Mr. Estrada-Rodriguez has not presented
    sufficient grounds for overcoming the presumption.
    Among Mr. Estrada-Rodriguezs arguments are: (1) that unlawful reentry
    is a victimless crime akin to a regulatory offense; (2) that the offense level is
    based primarily on the defendants prior record rather than his relevant conduct;
    (3) that he is being sentenced as harshly as a United States citizen who committed
    a far more serious crime; and (4) that a below-Guidelines sentence can adequately
    protect the public, particularly because he will be deported after serving his
    sentence. These arguments are unpersuasive because they would apply to almost
    anyone convicted of the same offense who had the same criminal history. They
    thus amount to an attack on the Guidelines themselves, and we are unwilling to
    state that the conclusions of the Sentencing Commission with regard to the minerun of cases are unreasonable.
    -3-

    Mr. Estrada-Rodriguezs remaining arguments relate to his specific


    situation. He states that there were extenuating circumstances surrounding his
    conviction for felony false imprisonmentnamely, that he had confronted the
    victim because his sister had told him that the victim had repeatedly sexually
    assaulted her. He also asserts that he had resided in the United States for 20 years
    before being convicted of a crime and that he has always been gainfully
    employed. Again we are not persuaded. Reasonable people can differ on whether
    vigilante action is a proper ground for reducing a sentence; his not engaging in
    criminal activity when younger is already taken into account in his criminalhistory category and the district courts downward departure; and his long-term
    gainful employment is not particularly atypical or meritorious.
    Mr. Estrada-Rodriguezs sentence is therefore AFFIRMED.
    ENTERED FOR THE COURT

    Harris L Hartz
    Circuit Judge

    -4-

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