United States v. Abreu-Garcia
Opinion
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This is a sentencing appeal. After two previous deportations, Carlos Abreu-García pleaded guilty to reentering the United States illegally as a removed alien.
I.
A. Facts
Since Abreu pleaded guilty, we draw the facts from the plea agreement, the presentence investigation report (PSR), and the sentencing hearing transcript.
See
United States
v.
Colón-Rosario
,
On January 1, 2014, Abreu was convicted of possession of a controlled substance (heroin). When arrested, he had provided the false name "Adalberto Kotts-Pérez." Abreu was sentenced to four years' imprisonment and five years' post-release supervision. On August 21, 2014, an immigration judge ordered Abreu removed from the United States, and he was removed to the Dominican Republic on July 21, 2015.
On August 21, 2016, Abreu was apprehended by United States Border Patrol near Miami, Florida. Abreu was then convicted of illegally reentering the United States,
In or about October 2017, Abreu reentered the United States by boat, landing on an unknown beach in Puerto Rico. On November 22, 2017, he was apprehended at the airport in San Juan, Puerto Rico, while attempting to board a flight to New York City. Abreu presented the officials with a false driver's license with the name "Jorge Mejias-García." After learning that Abreu had entered the United States illegally after two previous deportations, the agents arrested him.
B. Procedural History
On February 27, 2018, Abreu pleaded guilty to reentering the United States illegally as a removed alien,
The PSR calculated a total offense level of seventeen and a criminal history category
*4
of IV. The criminal history category was based on a score of seven, which included two points under U.S.S.G. § 4A1.1(d) because Abreu committed the offense while on supervised release. The PSR stated that the guideline sentencing range was thirty-seven to forty-six months. The maximum term of imprisonment for the offense is twenty years, and there is no mandatory minimum term.
At the sentencing hearing, Abreu urged the district court to accept the recommended sentence, which he acknowledged was below the applicable guideline range, on the ground that Abreu had reentered the country to be with his family. Abreu also argued that it would be "unfair" if he received a longer sentence because of the "high probability" that he would also receive a consecutive revocation sentence for violating the conditions of his supervised release term.
The district court agreed with the PSR's guideline calculation. The court stated that it "considered the other sentencing factors" in
After the court imposed the sentence, defense counsel "request[ed] that the Court reduce [Abreu's] sentence to 30 months" because "what led this Defendant to come to Puerto Rico" was that "he wanted to be with his children." The district court denied the request, and defense counsel made no further objections. Abreu timely appealed.
II.
"In sentencing appeals, appellate review is bifurcated."
United States
v.
Ruiz-Huertas
,
A. Procedural Reasonableness
Abreu argues for the first time on appeal that the district court abused its discretion in raising his criminal history score by two points (for committing the instant offense while on supervised release) on the ground that the sentencing guidelines are "no longer mandatory but are only advisory." He argues the district court was "not obliged" to follow U.S.S.G. § 4A1.1(d) when calculating his criminal history category. We review unpreserved claims of procedural unreasonableness for plain error.
United States
v.
Arroyo-Maldonado
,
There was no error, plain or otherwise. It is ordinarily true that although the guidelines are "no longer binding, ... [j]udges
still
must start out by calculating the proper Guidelines range" before determining whether to "differ from the Sentencing Commission's recommendations."
United States
v.
Rodriguez
,
To the extent Abreu is arguing that the district court believed it lacked discretion to vary from the guidelines because it erroneously believed they are still mandatory, there is no support for that in the record.
See
Kimbrough
v.
United States
,
Abreu also argues that the district court "rejected the parties['] recommendation without explanation." While "a sentencing court has a duty to explain its choice of a particular sentence," there is "no corollary duty to explain why it eschewed other suggested sentences."
B. Substantive Reasonableness
Abreu argues that "the District Court did not give any weight" to the fact that Abreu reentered the United States to see his family and that Abreu was likely to receive a consecutive revocation sentence for violating the conditions of his supervised
*6
release. We interpret this as a challenge to the substantive reasonableness of his sentence and assume, favorably to Abreu, that abuse-of-discretion review applies.
See
United States
v.
Rodríguez-Reyes
,
The district court's decision "not to attach to certain of the mitigating factors the significance that the appellant thinks [he] deserved does not make the sentence unreasonable."
Clogston
,
* * *
Affirmed .
Abreu also states in passing that the district court's decision to raise his criminal history score two points for committing the offense while on supervised release constitutes "double counting," because Abreu was also likely to receive a consecutive revocation sentence for violating the terms of his supervised release. He has not developed this argument, so it is waived.
United States
v.
Zannino
,
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Carlos ABREU-GARCÍA, A/K/A Jorge Mejias-García, A/K/A Adalberto Kotts-Pérez, A/K/A Adalberto Pérez, Defendant, Appellant.
- Cited By
- 8 cases
- Status
- Published