from the United States District Court for the District of New
Mexico (D.C. No. 2:16-CR-04013-WJ-1)
V. Butcher, Assistant Federal Public Defender (Michael A.
Keefe, Assistant Federal Public Defender on the briefs),
Albuquerque, New Mexico, for Defendant - Appellant.
J. Mysliwiec, Assistant United States Attorney (James D.
Tierney, Acting United States Attorney, with him on the
brief), Albuquerque, New Mexico, for Plaintiff - Appellee.
MATHESON, McKAY, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
Chavez-Morales appeared before the district court following
his fifth conviction for an illegal reentry offense. At
sentencing, Mr. Chavez-Morales argued that higher wages in
the United States motivated his decision to illegally reenter
the United States. Focusing heavily on Mr.
Chavez-Morales's criminal history and noting that none of
the earlier sentences deterred Mr. Chavez-Morales from
reoffending, the district court imposed an upward variant
sentence of thirty-six months' imprisonment. The district
court also imposed a three-year term of supervised
appeal, Mr. Chavez-Morales challenges the procedural
reasonableness of his term of imprisonment. Specifically, he
contends the district court did not meaningfully consider his
argument that economic opportunities motivated his decision
to illegally reenter the United States and thereby mitigated
the seriousness of his offense. Mr. Chavez-Morales separately
contends the district court committed plain error by imposing
a term of supervised release without acknowledging or
considering United States Sentencing Guidelines Manual
(U.S.S.G.) § 5D1.1(c), which states a court
"ordinarily" should not impose a term of supervised
release when "the defendant is a deportable alien who
likely will be deported after imprisonment."
affirm the district court's judgment. As to Mr.
Chavez-Morales's term of imprisonment, the transcript of
the sentencing hearing establishes that, on three occasions,
the district court addressed Mr. Chavez-Morales's
economic motivation argument. As to the imposition of a term
of supervised release, while the district court erred by not
acknowledging and considering U.S.S.G. § 5D1.1(c), Mr.
Chavez-Morales has not carried his burden on the third prong
of the plain error analysis.
Mr. Chavez-Morales's History, Characteristics, &
Chavez-Morales, age fifty-six at the time of his most recent
offense, is a citizen of Mexico. As a result of his
family's financial struggles, Mr. Chavez-Morales entered
the work force at a young age. By the 1980s, Mr.
Chavez-Morales lived in the United States. According to
records obtained by probation services, Mr. Chavez-Morales
was the subject of an order of removal issued in 1986.
Whether the order of removal was executed is not clear, but
Mr. Chavez-Morales was present in the United States in the
mid and late 1990s, as is evident by four Colorado
convictions. By January 2000, however, Mr. Chavez-Morales had
returned to Mexico.
January 30, 2000, Mr. Chavez-Morales was detained when trying
to enter the United States with fifty-three pounds of
marijuana. He was deported in August 2000. In June 2002, Mr.
Chavez-Morales returned to the United States, resulting in a
conviction for reentry of a deported alien previously
convicted of an aggravated felony, for which he incurred a
sentence of twenty-four months' imprisonment, followed by
three years' unsupervised release. Mr. Chavez-Morales was
deported in March 2004. In December 2006, Mr. Chavez-Morales
attempted to cross into the United States, presenting
fraudulent documents to Border Patrol agents at a port of
entry. Mr. Chavez-Morales pleaded guilty to the offense of
illegal reentry and incurred a sentence of thirty-seven
months' imprisonment, followed by two years'
unsupervised release. Mr. Chavez-Morales was deported in
September 2009. In June 2011, Border Patrol agents found Mr.
Chavez-Morales in the United States, which resulted in Mr.
Chavez-Morales's third illegal reentry conviction, for
which he incurred a sentence of twenty months'
imprisonment. Mr. Chavez-Morales was deported in November
2012. In March 2015, Border Patrol agents, once again, found
Mr. Chavez-Morales in the United States, leading to Mr.
Chavez-Morales's fourth illegal reentry conviction, for
which he incurred a sentence of eighteen months'
imprisonment. Mr. Chavez-Morales was deported on July
13, 2016. On August 19, 2016, roughly one month after being
deported, Mr. Chavez-Morales was found in the United States,
leading to the reentry of a removed alien conviction
underlying the present appeal.
Plea & Sentencing Proceedings
Chavez-Morales and the government negotiated a fast-track
plea agreement under Federal Rule of Criminal Procedure
11(c)(1)(C) and U.S.S.G. § 5K3.1. The fast-track plea
agreement estimated a Sentencing Guidelines range of nine to
fifteen months and, if accepted by the district court, would
have obligated the court to impose a within-Guidelines
sentence. Focusing on Mr. Chavez-Morales's history of
reentry offenses and the need to impose a sentence that would
satisfy the 18 U.S.C. § 3553(a) factors, including
adequately deterring Mr. Chavez-Morales, the district court
rejected the fast-track plea agreement. The district court
indicated, however, that if Mr. Chavez-Morales entered into a
non-fast-track plea agreement, a within-Guidelines sentence
would likely satisfy the § 3553(a)
factors. But, a month after rejecting the
fast-track plea agreement, the district court informed the
parties that even if Mr. Chavez-Morales entered into a
non-fast-track plea agreement with a Guidelines range of
twenty-one to twenty-seven months' imprisonment, the
district court might vary upwards. The district court granted
Mr. Chavez-Morales's motion to formally withdraw the
guilty plea he entered pursuant to the fast-track plea
agreement. Thereafter, a grand jury indicted Mr.
Chavez-Morales on one count of illegal reentry by a removed
alien after deportation subsequent to a conviction for an
aggravated felony, in violation of 8 U.S.C. §§
1326(a), (b). Mr. Chavez-Morales then entered a straight-up
guilty plea, without a written plea agreement.
on a total offense level of ten and a criminal history
category of V, a presentence investigation report
("PSR") established a Guidelines range of
twenty-one to twenty-seven months' imprisonment.
See U.S.S.G. ch. 5 pt. A (sentencing table). Relying
on Mr. Chavez-Morales's 8 U.S.C. §§ 1326(a)(1),
(b)(2) offense being a Class C felony, the PSR established a
Guidelines range for supervised release of one to three
years. However, the PSR noted that "[p]ursuant to
U.S.S.G. § 5D1.1(c), the court ordinarily should not
impose a term of supervised release in a case in which
supervised release is not required by statute and the
defendant is a deportable alien who likely will be deported
after imprisonment." ROA Vol. 2 at 29. Neither the
Government nor Mr. Chavez-Morales objected to the Guidelines
calculations in the PSR, and the district court adopted the
factual findings and Guidelines calculations set out in the
government advocated for an upward variant sentence of
thirty-eight months' imprisonment, arguing that Mr.
Chavez-Morales's longest previous sentence of
thirty-seven months did not adequately deter him from
reentering the United States. Mr. Chavez-Morales argued for a
within-Guidelines sentence, highlighting his good work ethic
while in detention awaiting sentencing, his plan to open a
taqueria in Mexico after deportation, and his economic
motivation for illegally reentering the United States. When
Mr. Chavez-Morales's counsel compared the wages Mr.
Chavez-Morales could earn in Mexico to the hourly wages in
the United States, the district court interjected and the
following colloquy occurred:
[COUNSEL:] . . . He came back here every time, Your Honor, to
have opportunities. I think I've set forth in the
Sentencing Memorandum the amount of money he was making when
he worked in Mexico, something like $7 a day, and he can come
over here and make in the range of $15 an hour doing the same
kind of work.
THE COURT: How much is he making in prison?
THE COURT: Well, you get a little bit.
[COUNSEL]: A dollar a day, or whatever it is, yes.
THE COURT: It's less than what he can make in Mexico; is