NO.

06-2211
_________________________________________

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JUAN EDUARDO MARQUEZ, Defendant Appellant.

_________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO,
THE HONORABLE JOHN EDWARDS CONWAY,
CASE NO. 06-563 JC
_________________________________________

DEFENDANT-APPELLANT JUAN EDUARDO MARQUEZ’

BRIEF IN CHIEF
_________________________________________

ORAL ARGUMENT REQUESTED

TRACE L. RABERN
1626 Ben Hur Drive
Santa Fe, New Mexico
87501
505-690-7969
rabernlaw@mindspring.com
 Table of Contents

Table of Contents ..........................................................................................................ii

Table of Authorities......................................................................................................iv
Statement Regarding Prior or Related Appeals.........................................................vi

Jurisdictional Statement.................................................................................................1
Statement of the Case and Facts..................................................................................3

I. MR. MARQUEZ DOES NOT MEET THE LEGAL DEFINITION OF ONE

WITH AN “AGGRAVATED FELONY” UNDER §1326(B)(2), WHICH CARRIES A
20-YEAR MAXIMUM, AND SHOULD HAVE BEEN SENTENCED UNDER §
1326(B)(1), WHICH CARRIES A 10-YEAR MAXIMUM. ..............................................12
A. Mr. Marquez’ Twenty-Year Old Texas Conviction Is Not An “Aggravated
Felony.”.........................................................................................................................12
B. Mr. Marquez’ Plea To The Information Does Not Preclude Him From Being
Sentenced Properly Under § 1326(b)(1) Instead Of (b)(2)....................................16

C. The Error Must Probably Be Reviewed Under The Plain Error Standard
Since This Precise Argument Was Not Raised At Sentencing..............................18

D.The Guidelines Do Not Reflect The Three Levels Of Culpability In The

Statute............................................................................................................................20
E. The Error In Sentencing Under § 1326(b)(2) Instead of §1326(b)(1) Is Not
Harmless Error, It Constitutes Plain Error. .............................................................21

F.Indeed The Fact That The Guidelines Advise An Identical Penalty Range For
Violations Of § 1326(B)(2), Which Congress Had Decided Merits A Penalty Up
To 20 Years, As For Violations Of §1326(B)(1), Which Congress Deemed To
Merit A Maximum Of 10 Years, Or Half Of (B)(2), Illustrates The Need For
Departure Under § 3553(A). .....................................................................................24

II. THE DISTRICT COURT ERRED IN APPLYING THE 16-LEVEL INCREASE

BECAUSE THE INCREASE APPLIED IN THIS PARTICULAR CASE IS CAPRICIOUS
AND UNREASONABLE UNDER THE § 3553( A) OBJECTIVES..................................24

III. THE DISTRICT COURT APPEARS TO HAVE VIOLATED THE LESSON

FROM R IT A AND B E GA Y THAT THE DISTRICT COURT SHOULD NOT AND
MAY NOT EMPLOY A PRESUMPTION IN FAVOR OF A GUIDELINES SENTENCE.
ii
 30
IV. IN THE ALTERNATIVE TO POINT I, MR. MARQUEZ ASKS THIS COURT
TO REVISIT G O NZ A LE Z -C O RO N AD O ’S ADOPTION OF THE NINTH CIRCUIT’S
P IME N TA L -F LO RE S . ....................................................................................... 33

Conclusion ....................................................................................................................35
Statement of Reason for Oral Argument..................................................................35

Certificate of Service....................................................................................................36
Certificate of Compliance with Rule 32(A)(7)..........................................................37

iii
 TABLE OF AUTHORITIES
Federal Cases
Almendarez-Torres v. United States, 523 U.S. 224 (1998) ............................................... 15, 16
Ramsey v. I.N.S., 55 F.3d 580 (11th Cir. 1995) ...................................................................14

Rita v. United States, ___ S.Ct.___, 2007 WL 1772146 (June 21, 2007).....................passim
United States v. Begay, 470 F.3d 964 (10th Cir. 2006) ................................................... 25, 30

United States v. Booker, 543 U.S. 220 (2005).................................................................. 17, 23

United States v. Cage, 451 F.3d 585 (10th Cir. 2006) .................................................... 17, 23
United States v. Cordova-Arevalo, 373 F.Supp. 2d 1220 (D.N.M. 2004) .............................14
United States v. Figueroa-Ocampo, __ F.3d __ 2007 U.S. App. LEXIS 17518 (9th Cir. July
24, 2007).............................................................................................................................22
United States v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005)....................................32
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)...........................................................1
United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005) ................................................17

United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) ................................................. 18, 23
United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006).............................................18

United States v. Olano, 507 U.S. 725 (1993) ................................................................... 17, 18

United States v. Oscar Ortuno-Caballero, 187 Fed. Appx. 814, 2006 U.S. LEXIS 16649
(10th Cir. 2006) (Unpublished) .......................................................................................28
United States v. Pimentel-Flores, 339 F.3d 959 (9th Cir. 2003) .............................................32

United States v. Ramirez, 367 F.3d 274 (5th Cir. 2004)........................................................32

United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) .................................................25

United States v. Rogers, 400 F.3d 640 (8th Cir. 2005)...........................................................25

United States v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005) ........................................24
United States v. Villarreal-Tamayo, 467 F.3d 630 (9th Cir. 2006) ........................................16

iv
United States v. Williams, 410 F.3d 397 (7th Cir. 2005).......................................................16
Statutes
18 U.S.C. § 3231 ......................................................................................................................1
18 U.S.C. § 3742 ......................................................................................................................1

28 U.S.C. § 1291 ......................................................................................................................1

8 U.S.C. § 1101(a)(43)...................................................................................... 3, 8, 12, 13-23

8 U.S.C. § 1326 .................................................................................................................. 8-23

8 U.S.C. § 1326(a)....................................................................................................................1
8 U.S.C. § 1326(a)(1) and (2)............................................................................................ 3-23
8 U.S.C. § 1326(b)(2)......................................................................................................... 3-23
Section 30.02(a), Tex. Penal Code Ann. (Vernon 1974) ....................................................3
Tex. Penal Code Ann. sec. 15.01(a) (Vernon 1987)............................................................3
U.S.S.G § 4A1.2(e)(3)..............................................................................................................4
U.S.S.G 2L1.2(a)......................................................................................................................4

U.S.S.G. § 2L1.2(b)(1)(A) ...............................................................................................passim

U.S.S.G. § 5D1.2(a)(1) (2005) ..............................................................................................22
U.S.S.G. § 5D1.2(a)(2)(2005) ...............................................................................................22

State Cases
Roach v. State. 635 S.W.2d 169 (Tex. App. 1982) .................................................................3
Rules

Fed. R. App. P. 28(a)(4)(A) ....................................................................................................1

Fed. R. App. P. 28(a)(4)(B) ....................................................................................................1

Fed. R. App. P. 28(a)(4)(C) ....................................................................................................1

Fed. R. App. P. 28(a)(4)(D)....................................................................................................1

v
 Statement Regarding Prior or Related Appeals
There are no prior or related appeals.

vi
 Jurisdictional Statement
The District Court’s jurisdiction, see Fed. R. App. P. 28(a)(4)(A), arose under 18

U.S.C. § 3231 (district court jurisdiction over federal offenses) and arose when Juan

Eduardo Marquez was charged by information and subsequently waived indictment

with the crime of Re-Entry Of A Departed Alien Previously Convicted Of An

Aggravated Felony contrary to 8 U.S.C. § 1326(a)(1) and (2) and 8 U.S.C. §

1326(b)(2).

This Court’s appellate jurisdiction, see Fed. R. App. P. 28(a)(4)(B), arises under

28 U.S.C. § 1291 (appellate jurisdiction over final decisions of district courts) and 18

U.S.C. § 3742(a) and (b) (review of sentence imposed).

This brief is timely. See Fed. R. App. P. 28(a)(4)(C). This Court granted

counsel for Mr. Marquez’ request for extension making this Brief due on September

8, 2007.

This appeal is from a district court’s entry of a sentence in a criminal case,

which is a final order. See Fed. R. App. P. 28(a)(4)(D); United States v. Hahn, 359 F.3d

1315, 1320 (10th Cir. 2004) (en banc) (the entry of a sentence constitutes a final order

establishing subject matter jurisdiction under 28 U.S.C. § 1291).

1
 ISSUES PRESENTED FOR REVIEW

I. MR. MARQUEZ DOES NOT MEET THE LEGAL DEFINITION OF ONE

WHO HAS COMMITTED AND “AGGRAVATED FELONY” UNDER § 1326(B)(2),
WHICH HAS A 20-YEAR MAXIMUM. RATHER, HE IS ONE WHO HAS
COMMITTED A “FELONY” UNDER § 1326(B)(1), AND THE MAXIMUM HE
FACES UNDER STATUTE IS 10 YEARS, AS A MATTER OF LAW. MR.
MARQUEZ WAS SENTENCED UNDER THE UNDERSTANDING THAT HE WAS
A PERSON WITH A PRIOR “AGGRAVATED FELONY.” WAS MR. MARQUEZ’
SENTENCING CALCULATION PLAIN ERROR?

A. Is Mr. Marquez’ Twenty-Year Old Texas Conviction, For Which He Was

Sentenced To Term of Incarceration, An “Aggravated Felony ” Under 8 U.S.C.
§ 1101(a)(43)?

B. Does Mr. Marquez’ Plea To The Information Preclude Him From Being
Sentenced Properly Under § 1326(b)(1) Instead Of (b)(2)?

C. Was Sentencing Mr. Marquez Under A Statute With A 20-Year Maximum

Instead Of The Proper Statute With A 10-Year Maximum Plain Error?
D. Do the Guidelines Fail To Reflect The Three Levels Of Culpability In The
Statute?
E. Is The Error In Sentencing Under § 1326(b)(2) Instead of §1326(b)(1) Not
Harmless Error, But Plain Error?

F. DoesThe Fact That The Guidelines Advise An Identical Penalty Range For
Violations Of § 1326(B)(2), Which Congress Had Decided Merits A Penalty Up
To 20 Years, As For Violations Of §1326(B)(1), Which Congress Deemed To
Merit A Maximum Of 10 Years, Or Half Of (B)(2), Illustrates The Need For
Departure Under § 3553(A)?
II. DID THE DISTRICT COURT ERR IN APPLYING THE 16-LEVEL INCREASE
BECAUSE THE INCREASE APPLIED IN THIS PARTICULAR CASE IS CAPRICIOUS
AND UNREASONABLE UNDER THE § 3553( A) OBJECTIVES?

III. DID THE DISTRICT COURT VIOLATE THE LESSON FROM R IT A AND
B EG AY THAT THE DISTRICT COURT SHOULD NOT AND MAY NOT EMPLOY A

1
PRESUMPTION IN FAVOR OF A GUIDELINES SENTENCE AND AVOID A §
3553(A) ANALYSIS?
IV. IN THE ALTERNATIVE TO POINT I, SHOULD THIS COURT TO REVISIT
G O NZ A LE Z -C OR O NA D O ’S ADOPTION OF THE NINTH CIRCUIT’S
P IME N TA L -F LO RE S ? ...................................................................................... 33

2
 Statement of the Case and Facts
Appellant Juan Eduardo Marquez was stopped January 4, 2006, at an Otero

County, New Mexico DWI roadblock checkpoint. Officers ran a check and

discovered he had an immigration services hold, and called the Border Patrol. Mr.

Marquez freely admitted to the Border Patrol agent that he was a citizen of Mexico

and had no documents that gave him permission to be in the United States. He has

been in custody since.

He was charged by information on March 17, 2006, with the crime of being

found in the United States without permission after being deported and having been

convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43), in violation of 8

U.S.C. § 1326(a)(1) and (2) and 8 U.S.C. § 1326(b)(2). (Vol. I at 1, Information.) The

Information charged that Mr. Marquez had been convicted of an aggravated felony, to

wit: Attempted Burglary of a Habitation,1 and subsequently deported.

1
Section 30.02(a), Tex. Penal Code Ann. (Vernon 1974), provides, in relevant part,
that a person commits burglary who: (1) enters a habitation or building (2) not then
open to the public, and (3) with intent to commit a felony or theft. Section 30.02(a)
provides further that "enter" means to intrude: (1) any part of the body, or (2) any
physical object connected with the body. To sustain a conviction for attempted
burglary, evidence must establish that the accused, with requisite intent, committed an
act amounting to more than mere preparation to enter the building that tended, but
failed, to effect the commission of burglary of the building. Roach v. State. 635 S.W.2d
169 (Tex. App. 1982); Tex. Penal Code Ann. sec. 15.01(a) (Vernon 1987).

None of this information was in the PSR in this case.

3
 Mr. Marquez waived indictment and pleaded guilty to the Information, without

the benefit of any plea bargain, in front of United States Magistrate Molzen on the

same day as the information was filed—March 17, 2006. Through counsel, he

explained to the court that a fast-track plea had been offered, but that he chose to

decline it and instead plead straight-up to the charge in the information. The fast-

track plea would require waiver of any right to pursue the downward departure or

adjustment he and his attorney felt his situation would warrant, specifically, the

inequities regarding his criminal history.

Mr. Marquez’ predicate felony is twenty years old, from 1987, and he was 18

years old at the time. He was not “subsequently deported” until 1999. This 1987

offense was not the offense that triggered his deportation in 1999. This 1987 offense

is so old that is cannot be factored into Mr. Marquez’ criminal history calculation. See

PSR at 5; U.S.S.G § 4A1.2(e)(3).) According to the Presentence Report (PSR), Mr.

Marquez and another person were found by officers outside his neighbor’s home, and

Mr. Marquez freely admitted that the had pried open the kitchen window with a

garden shovel. He pleaded guilty to the charge of Attempted Burglary of Habitation,

and was sentenced to 10 years of probation. There is no indication he ever violated

probation or otherwise was sentenced to time of incarceration, at all.

The base level for Mr. Marquez’ pleaded offense is eight (8), pursuant to

U.S.S.G 2L1.2(a). It was undisputed that Mr. Marquez had demonstrated acceptance

of responsibility warranting a three (3) level reduction in the offense level. He had

4
also plead to the offense of reentry after deportation for a felony, which, if found as a

sentencing factor, would increase his offense level by eight (8) levels, to thirteen. This

much is undisputed. The Pre-sentence Report prepared by United States Probation

and Parole recommended a sixteen (16) level enhancement for the offense level under

2L1.2(b)(1)(A), on the grounds that Mr. Marquez’ twenty-year-old Texas conviction

was a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A), instead of an 8-year

enhancement for deportation after a felony. The PSR reasoned that he was

convicted in 1987 of a felony punishable by ten years in custody, and he was actually

sentenced to ten years of probation. Subsequently (twelve years later) Mr. Marquez

was deported in 1999. This, the PSR reasoned, warranted a sixteen (16) level increase.

Under the Presentence Report calculation, Mr. Marquez was left with an offense level

of 21 (base level of 8 plus “crime of violence” enhancement of 16 minus acceptance

of responsibility reduction). The guideline range under the Presentence Report

calculation was 46-57 months. His statutory maximum as calculated was 240 months.

Counsel for Mr. Marquez objected to several aspects of the Presentence Report

in a Sentencing Memorandum And Request For Downward Adjustment From

Advisory Sentencing Guideline Calculations. The Memorandum appears to have

made a generic objection to the 16-level increase, although no calculation basis for the

objection is clearly articulated (other than the Booker/3553(a) basis). The

Memorandum did argue at more length that the 16-level increase was unreasonable

under Booker and the § 3553(a) factors, pointing out in a word that all of Mr.

5
Marquez’s conduct, including this offense, sprang from his need to support his family,

which he has done since taking a job selling chewing gum at age 12. His prior

conviction was so old—nearly 20 years old—that it could not even be used for

calculating criminal history. Yet this old conviction, for conduct which caused no

harm, did cause his offense level to triple from 8 to 24. He urged that the advised

range did not reflect the seriousness of the offense, and that the range did not serve

any of the purposes in paragraph 2 of § 3553(a). Counsel attached letters from nine

people--family members, an employer and a landlord—that all attested to the fact that

Mr. Marquez is a lawful man who works hard to support his large family, and that he

is greatly needed by his family.

The district court’s reception of these pleas for a sentence below the advisory

range was as perfunctory as it was blunt. Seven members of Mr. Marquez’ family

traveled from Texas to his sentencing to show their support for him. The district

court, when asked to consider the Memorandum and the attached letters and the

family members who had traveled to the hearing, stated, “I have considered it, and

nothing about the sentence I’m going to give him causes me any problems.” (Vol. III

at 2-3.) The district court heard Mr. Marquez’ brief allocution, then sentenced Mr.

Marquez to 46 months, the bottom of the Guidelines range of 46-57 months

recommended by the PSR.

Counsel for the Government then politely prompted the district court to state

on the record its reasons for not departing from the Guidelines as the defense

6
requested. The district court stated: “Well, there was a departure requested. I did

not depart.” (Vol. III at 4.) Counsel for the Government pressed the district court

again to state its sentencing analysis for the record. The district court stated, “Didn’t I

say I thought the sentence was fitting? How much more do you want?” (Id.) The

Government’s counsel replied that she was just trying to protect the record for appeal.

The district court retorted: “No appellate court is going to overturn me on that.” (Id.

at 5.) That was the end of the sentencing hearing. It lasted four minutes.2

APPELLATE PROCEDURE

Mr. Marquez appealed. His original Brief on appeal was an Anders brief, and it

was rejected by the Court and his counsel was allowed to withdraw. Undersigned

counsel was appointed and files this Opening Brief in its place.

2
From 9:10 am until 9:14 am, according to the court reporter.

7
 SUMMARY OF THE ARGUMENT

This appeal requires a rather technical and tedious dissection of the relevant

statute and Guidelines.

Mr. Marquez does not meet the legal definition of one who has committed and

“aggravated felony” under § 1326(b)(2), which has a 20-year maximum. Rather, he is

one who has committed a “felony” under § 1326(b)(1), and the maximum he faces

under statute is 10 years. The definition of “aggravated felony” in § 1326(b)(2) is

coterminous with the definition under immigration law, in 8 U.S.C. § 1101(a)(43).

Section 1101(a)(43) defines “aggravated felony” (in relevant part) to mean either a

“crime of violence”3 under 18 U.S.C. § 16 or a theft offense (including burglary), both

of which must have a term of imprisonment of at least one year. 8 U.S.C. § 1101(a)(43)(F) and

(G); see also 8 U.S.C. § 1101(a)(43)(H) (attempts are included with offenses listed). The

reason Mr. Marquez’ predicate conviction is not an “aggravated felony” under the

statute is because, according to the PSR, the Texas court did not impose any term of

incarceration, only probation, which was never violated. His Texas conviction is thus

not an “aggravated felony” as a matter of law.

It is true that Mr. Marquez pleaded straight up to the information, which

alleged violations of § 1326(a)(1) and (2) and § 1326(b)(2), and that the information

does not mention §1326(b)(1). However, the federal appellate courts, including the

3
This analysis assumes for the sake of argument that the Texas attempted burglary
constitutes a “crime of violence” under 18 U.S.C. § 16.

8
United States Supreme Court, have held that the question of whether a predicate

felony is “aggravated” or not under § 1326 is not an element of the offense, it is a

pure sentencing factor. As a consequence, courts have held that defendants who have

entered a plea to violation of § 1326(b)(1) or of § 1326(a) can constitutionally and

procedurally be sentenced as “aggravated” felons under § 1326(b)(2), even though it

was not mentioned or included in their information or plea. It follows that the

converse must also be true: A defendant like Mr. Marquez whose plea mentioned

§1326(b)(2) can be sentenced under (b)(1) if an analysis of the sentencing facts makes

it appropriate.

Analytically it is essential to note that while Mr. Marquez does not meet the

legal test for “aggravated felony” under the statute, he does appear to meet the legal

definition of “crime of violence” contained in the Application Notes for the relevant

provision of the Guidelines. A “crime of violence” for purposes of the relevant

Guideline is defined to include burglary, without respect to any term of incarceration.

U.S.S.G. 2L1.2(b)(1)(A) (a crime of violence increases offense level by 16) and

U.S.S.G. 2L1.2 Application Notes 1(B)(iii) (defining “crime of violence” to include

burglary, with no limit on the term of imprisonment).

Despite Congress’ clear language in the statute setting out three disparate levels

of culpability, the relevant Guideline and its Application Notes make no distinctions

whatsoever between the statute’s three levels of crimes (simple illegal re-entry, re-

entry with a prior felony, and re-entry with a prior “aggravated felony”) and does not

9
in turn reflect the three levels of penalties in the statute (maximum two years,

maximum 10 years, and maximum 20 years, respectfully). Thus the now-advisory

Guidelines still advise a 16-level increase in offense level, even if Mr. Marquez was

sentenced under § 1326(b)(1) instead of (b)(2).

This does not make Mr. Marquez’ appeal moot or render it harmless error,

however. Mr. Marquez made a compelling case at sentencing asking the district court

to sentence him below the advised range. The district court sentenced at the very

bottom of the range--46 months, with the understanding that Mr. Marquez faced a

statutory range of up to 20 years. This was imposing a penalty roughly one-eighth of

the (erroneous) maximum. If the district court had known that the statutory range

was actually capped at only 10 years, it may well have been moved to sentence below

that range. Forty-six months is more than one-third of the proper maximum. In

context of what Congress felt was an appropriate penalty, the bottom Guideline

sentence is much, much harsher for a violation of § 1326(b)(1) than it is for §

1326(b)(2).

Moreover, the fact that the Guidelines would sentence any given defendant to

the same 8 level base plus 16-level increase no matter whether the accused had a prior

simple felony or an “aggravated” felony (which includes murders, rapes, and armed

robberies) helps to demonstrate Mr. Marquez’ point at sentencing: That the

Guidelines advised range does not rationally reflect the defendant and the offense,

and that the 3553(a) factors demand a different result.

10
 STANDARDS OF REVIEW

Issue I is a procedural reasonableness question that will be reviewed de novo

(legal error in calculation) but for plain error, because it does not appear to have been

preserved below. See, e.g., United States v. Soussi, 316 F.3d 1095, 1108 (10th Cir. 2002)

("A district court abuses its discretion if it makes an error of law."); see, e.g., United

States v. Cage, 451 F.3d 585, 595 (10th Cir. 2006) (a district court abuses its discretion

when it gives one statutory factor too much weight); United States v. Hildreth, 485 F.3d

1120, 1130 (10th Cir. 2007) (a district court abuses its discretion when it expressly

disregards another factor). Issue II is a substantive reasonableness question that will

be reviewed under the special Rita standard of review of abuse of discretion but

reviewed for harmless error, as this issue was preserved below. See Rita, 127 S. Ct. at

2466-67 (“In sentencing, as in other areas, district judges at times make mistakes that

are substantive….Circuit courts exist to correct such mistakes when they occur.”)

Issue III is a procedural reasonableness question, like Issue I, that will probably be

reviewed for harmless error because it was preserved. Issue IV is a pure question of

law that will be reviewed de novo.

11
 ARGUMENT

I. MR. MARQUEZ DOES NOT MEET THE LEGAL DEFINITION OF ONE

WITH AN “AGGRAVATED FELONY” UNDER §1326(B)(2), WHICH
CARRIES A 20-YEAR MAXIMUM, AND SHOULD HAVE BEEN
SENTENCED UNDER § 1326(B)(1), WHICH CARRIES A 10-YEAR
MAXIMUM.

This issue requires a rather technical and tedious dissection of the relevant

statute and Guidelines. The point is to show that the statute employs different key

definitions, which, in this case, result in different levels of penalties for different

reasons than those reflected in the relevant Guidelines.

A. Mr. Marquez’ Twenty-Year Old Texas Conviction Is Not An

“Aggravated Felony.”
Mr. Marquez does not meet the legal definition of one who has committed and

“aggravated felony” under § 1326(b)(2), which has a 20-year maximum. Rather, Mr.

Marquez is one who has committed a “felony” under § 1326(b)(1), and the maximum

he faces under statute is 10 years, rather than 20.

Congress enacted 8 U.S.C. § 1326 to provide for three levels of culpability, with

three disparate levels of maximum penalties: 24 months, 120 months, or 240 months.

The statutes provides in relevant part:

Reentry of removed aliens

(a) In general
Subject to subsection (b) of this section, any alien who--
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order

12
 of exclusion, deportation, or removal is outstanding, and
thereafter
(2) enters, attempts to enter, or is at any time found in,
the United States, . . . .

shall be fined under Title 18, or imprisoned not more

than 2 years, or both.
(b) Criminal penalties for reentry of certain removed
aliens
Notwithstanding subsection (a) of this section, in the
case of any alien described in such subsection--
(1) whose removal was subsequent to a conviction for
commission of . . . a felony (other than an aggravated
felony), such alien shall be fined under Title 18, imprisoned
not more than 10 years, or both; . . . .
(2) whose removal was subsequent to a conviction for
commission of . . . an felony (other than an aggravated
felony), such alien shall be fined under Title 18, imprisoned
not more than 10 years, or both . . . .
8 U.S.C. § 1326.

Under 8 U.S.C. § 1326(b), a court may enhance a defendant's sentence from the

two year maximum pursuant to 8 U.S.C. § 1326(b)(a) if the offense falls within one of

the enumerated categories. Section 1326(b)(2) allows for an increased maximum

sentence of 20 years. This provision, however, applies only to “aggravated felonies.”

The definition of “aggravated felony” in § 1326(b)(2) is coterminous with the

definition under immigration law, in 8 U.S.C. § 1101(a)(43). Section 1101(a)(43)

defines “aggravated felony” (in relevant part) to mean either a “crime of violence”4

4
This analysis assumes for the sake of argument that the Texas attempted burglary
constitutes a “crime of violence” under 18 U.S.C. § 16.

13
under 18 U.S.C. § 16 or a theft offense (including burglary), both of which must have a

term of imprisonment of at least one year. 8 U.S.C. § 1101(a)(43)(F) and (G); see also 8 U.S.C.

§ 1101(a)(43)(H) (attempts are included with offenses listed).

Because the actual sentence imposed for Mr. Marquez’ 1987 Texas conviction

was less than one year (it was simple probation), it does not qualify as an “aggravated”

felony under 8 U.S.C. § 1101(a)(43)(F).

To avoid the potential for confusion, it should be noted that the felony

definition applicable to Guideline § 2L1.2(b)(1)(A) is based on the maximum possible

sentence under the particular state law, in contrast to the statutory definition of an

“aggravated felony,” which requires that the defendant was actually sentenced to prison for

at least one year. Compare 8 U.S.C. § 1101(a)(43)(F) and (G) with U.S.S.G. §

2L1.2(b)(1)(A) and cmt. n. a(B)(iii).5 See, e.g., United States v. Cordova-Arevalo, 373

5
The PSR applied the 2005 edition of the Guideline manual in determining its
sentence recommendation. U.S.S.G. § 2L1.2, Unlawfully Entering or Remaining in the
United States, is the applicable guideline for § 1326 convictions. Guideline § 2L1.2
provides in relevant part: “[I]f the defendant previously was deported, or unlawfully
remained in the United States after a conviction for a felony . . . that is a crime of
violence . . . increase [the offense level] by 16 levels . . . .” A “crime of violence” is
defined to include inter alia burglary. U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). The
guideline, like the statute, does not define the term felony. But a definition is supplied
in the commentary to § 2L1.2 which defines a felony as "any federal, state, or local
offense punishable by imprisonment for a term exceeding one year." U.S.S.G. § 2L1.2,
comment n. 2.

Section 2L1.2 has its own definition of "crime of violence." It notes that, for purposes
of U.S.S.G. § 2L1.2(b)(1), a "'crime of violence' means any of the following: . . .
burglary . . . or any offense under federal, state or local law that has an element the

14
F.Supp. 2d 1220 (D.N.M. 2004) (holding that under 8 U.S.C. §1326 a prior conviction

qualified as a “felony” with a 10-year maximum because it carried a possible sentence of

over one year, but was not an “aggravated felony” with a 20-year maximum because

the defendant was actually sentenced to serve only 10 days in jail), aff’d 456 F.3d 1229

(10th Cir. 2006).

The reason Mr. Marquez’ predicate conviction is not an “aggravated felony”

under the statute is because, according to the PSR, the Texas court did not impose

any term of incarceration (only probation, which was never violated). His Texas

conviction is thus not an “aggravated felony” as a matter of law.6

The statutory maximum under 8 U.S.C. § 1326(b)(2), therefore, is not

applicable. The district court in this case relied upon the applicability of §1326(b)(2),

with its 20-year maximum penalty. The proper level of offense was § 1326(b)(1), and

use, or threatened use of physical force against the person of another." U.S.S.G. §
2L1.2 cmt. n. 1(B)(iii)(2003). The current definition is a result of the 2003
amendment to U.S.S.G. § 2L1.2. The earlier version of the definition stated that
"crime of violence -- (I) means an offense under federal, state, or local law that has an
element the use, attempted use, or threatened use of physical force against the person
of another; and (II) includes . . . aggravated assault . . . ." See U.S.S.G. § 2L1.2 cmt. n.
1(B)(ii) (2001). The Commission amended the definition to clarify the confusion "the
previous definition often led to . . . over whether the specified offenses listed in that
definition . . . also had to include as an element of the offense 'the use, attempted use,
or threatened use of physical force against the person of another.' The amended
definition makes clear that the enumerated offenses are always classified as 'crimes of
violence,' regardless of whether the prior offense expressly has as an element the use,
attempted use, or threatened use of physical force against the person of another."
U.S.S.G. § 2L1.2 cmt. to amend. 651 (2003).
6
Whether a prior conviction is an aggravated felony under § 1101(a)(43) is a question
of law. Ramsey v. I.N.S., 55 F.3d 580, 582 (11th Cir. 1995).

15
it carried only half that maximum penalty. In other words, as Congress wrote the

statute, it contemplated that illegal re-entry with an “aggravated felony” was twice as

bad as illegal re-entry with a simple felony for which a minimal punishment had been

imposed. Congress intended people like Mr. Marquez, sentenced only to probation,

to be punished very differently than someone who had previously been sentenced to

more than a year.

B. Mr. Marquez’ Plea To The Information Does Not Preclude Him

From Being Sentenced Properly Under § 1326(b)(1) Instead Of
(b)(2).
It is true that Mr. Marquez pleaded straight up to the information, which

alleged violations of § 1326(a)(1) and (2) and § 1326(b)(2). The information does not

mention §1326(b)(1). The Government may argue that Mr. Marquez has waived the

argument he makes here by virtue of his plea.

However, the federal appellate courts, including the United States Supreme

Court, have held that the question of whether a predicate felony is “aggravated” or

not under § 1326 is not an element of the offense, it is a pure sentencing factor. In

Almendarez-Torres v. United States, 523 U.S. 224, 226, 239 (1998), the defendant argued

that 8 U.S.C. § 1326 required that the prior felony convictions be stated in the

indictment. The court found that § 1326(a) forbid an alien from returning to the

United States following deportation without permission. The United States Supreme

Court found that § 1326(b)(2) authorized an additional prison term if the deportation

was following a conviction for an aggravated felony. The court held that the section

16
was a penalty provision to be considered by the trial judge at sentencing, to increase

the sentence for a recidivist. It did not define a separate crime and therefore the prior

felony convictions did not need to be stated in the indictment. The court held that

recidivism was the most traditional basis for a trial court to increase an offender's

sentence and § 1326(b)(2) applied only to punishment.

As a consequence, courts have held that defendants who have entered a plea to

violation of § 1326(b)(1), or to § 1326(a) generically, can constitutionally and

procedurally be sentenced as “aggravated” felons under § 1326(b)(2), even though it

was not mentioned or included in their plea. See, e.g., United States v. Villarreal-Tamayo,

467 F.3d 630, 632-33 (9th Cir. 2006) (holding charge and conviction under §1326(a)

can be sentenced under § 1326(b)(2) without Apprendi or procedural problems); United

States v. Williams, 410 F.3d 397, 401-02 (7th Cir. 2005) ("The existence of a prior

conviction for an aggravated felony was 'as typical a sentencing factor as one might

imagine,'. . . . As such, that factor could be determined by the judge rather than a

jury.” (quoting Almendarez-Torres, 523 U.S. at 230, 243-44)). The Court of Appeals in

Villarreal-Tamayo went so far as to hold that it was of no consequence that a judge at

the plea proceeding under § 1326(a) did not find or inquire or mention whether there

was an aggravated felony or not invoking §1326(b). 467 F.3d at 632-33.

It follows that the converse must also be true: a defendant like Mr. Marquez

whose plea mentioned §1326(b)(2) can be sentenced under (b)(1) if an analysis of the

sentencing facts makes it appropriate.

17
 Mr. Marquez may have a preservation problem requiring plain error review, but

he has not by entry of his plea waived his right to challenge the imposition of

sentence under § 1326(b)(2). See generally United States v. Olano, 507 U.S. 725, 733

(1993) (“Whereas forfeiture is the failure to make the timely assertion of a right,

waiver is the intentional relinquishment or abandonment of a known right.”) and

United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005) (“We conclude that

[defendant]'s failure to object to the 16-level adjustment resulted from an oversight by

defense counsel and was therefore accidental rather than deliberate.”).

C. The Error Must Probably Be Reviewed For Plain Error Since This
Precise Argument Was Not Raised At Sentencing.
Trial counsel for Mr. Marquez did not directly make the argument that Mr.

Marquez was not a person with an “aggravated felony” below. He argued against the

16-level increase in offense level as unreasonable for all the reasons under §3553(a)

and Booker, but cannot fairly be said to have challenged the Guidelines calculations

employed in the PSR (other than the criminal offense level, not relevant here) by

pointing out that Mr. Marquez’ 1987 Texas conviction was not an “aggravated

felony”.

Generally speaking, this Court is required, under the Supreme Court’s decision

in United States v. Booker, 543 U.S. 220 (2005), “to review district court sentencing

decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d 585 (10th Cir. 2006).

“Reasonableness has both procedural and substantive components.” Id. (citing United

18
States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006). “To be reasonable, a sentence

must be ‘reasoned,’ or calculated utilizing a legitimate method.” Id. “As such,

sentences based on miscalculations of the Guidelines are considered unreasonable

because ‘the manner in which [they were] determined was unreasonable.’” Id. (quoting

Kristl, 437 F.3d at 1055).

Trial counsel for Mr. Marquez did challenge the district court's application of §

2L1.2(b)(1)(A) at the time of sentencing on reasonableness grounds. However, he did

not articulate the precise argument made here, that the application of § 2L1.2(b)(1)(A)

was unreasonable because the district court, and perhaps the Guidelines themselves,

erroneously understood that Mr. Marquez had an “aggravated felony” subjecting him

to a statutory maximum of 20 years. Thus this Court will probably review the district

court's decision under a plain error standard. See United States v. Lopez-Flores, 444 F.3d

1218, 1221 (10th Cir. 2006). “Plain error occurs when there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1222 (internal quotation

marks omitted).

The Supreme Court in Olano held that “[p]lain is synonymous with ‘clear’ or,

equivalently, ‘obvious.’” Olano, 507 U.S. at 734. Here, Mr. Marquez’ entire sentence

was calculated based on the wrong statutory provision: A defendant who was

previously deported following a conviction for “commission of three or more

misdemeanors involving drugs, crimes against the person, or both, or a felony (other

19
than an aggravated felony)” faces a maximum ten years imprisonment. See 8 U.S.C. §

1326(b)(1). However, a defendant who was previously deported after suffering an

“aggravated felony” conviction faces a sentence of up to twenty years imprisonment.

See 8 U.S.C. § 1326(b)(2). Mr. Marquez has a felony, but it does not meet the legal

definition of “aggravated felony.” Yet he was sentenced under § 1326(b)(2). This is

plain error.

Moreover, this error affected the defendant’s substantial rights--it doubled the

statutory maximum he faced, and made his argument that his Guideline

recommended sentence range was unreasonable much more compelling. Finally, the

error seriously affected the fairness of Mr. Marquez’ (four-minute) sentencing hearing-

-the judge thought he was cutting Mr. Marquez a break with a 46-month sentence, as

it was only about one-eighth of the 240-month sentence that the judge thought the

maximum sentence to be. The 46-month sentence does not seem so reasonable,

however, when the statutory maximum sentence is correctly calculated, at 120

months. The bottom of the Guideline range is, when correctly figured, more than

one-third of the maximum.

D. The Guidelines Do Not Reflect The Three Levels Of Culpability

In The Statute.
Analytically it is essential to note that while Mr. Marquez does not meet the

legal test for “aggravated felony” under the statute (that is, § 1326(b)(2) applying

definition from § 1101(a)(43)), he does appear to meet the legal definition of “crime of

20
violence” contained in the Application Notes for the relevant provision of the

Guidelines. A “crime of violence” for purposes of the relevant Guideline is defined

to include burglary, without respect to any term of incarceration. U.S.S.G.

2L1.2(b)(1)(A) (a crime of violence increases offense level by 16) and U.S.S.G. 2L1.2

Application Notes 1(B)(iii) (defining “crime of violence” to include burglary, with no

limit on the term of imprisonment).

Curiously, the relevant Guideline and its Application Notes make no

distinctions whatsoever between the statute’s three levels of crimes (simple illegal re-

entry, re-entry with a prior felony, and re-entry with a prior “aggravated felony”) and

does not in turn reflect the three levels of penalties in the statute (maximum two

years, maximum 10 years, and maximum 20 years, respectfully). Because of this

technical anomaly, the relevant Guidelines still advise a 16 level increase in the offense

level for Mr. Marquez, whether his present offense is under § 1326(b)(1) (statutory

penalty is maximum of 10 years) or § 1326(b)(2) (statutory penalty is maximum of 20

years). Thus the now-advisory Guidelines still advise a 16-level increase in offense

level, even if Mr. Marquez was sentenced under § 1326(b)(1) instead of (b)(2).

E. The Error In Sentencing Under § 1326(b)(2) Instead of §1326(b)(1)

Is Not Harmless Error, It Constitutes Plain Error.
This does not make Mr. Marquez’ appeal moot or render it harmless error,

however. Mr. Marquez made a compelling case at sentencing asking the district court

to sentence him below the advised range. His predicate felony was twenty years old,

21
and resulted in no harm. Both that crime and his immigration offenses were tied to

his poverty, and his need and commitment to provide for his family, all United States

citizens. His many family members attested to how much he provided for them and

how they needed him. He pointed out how his conduct was trivial or benign, at odds

with the 16-level increase the Guidelines advised. He illustrated the disconnect or

mismatch between his situation under the § 3553(a) factors and the Guidelines-

recommended sentence.

The district court was not moved to depart below the advised range, but did

sentence at the very bottom of the range--46 months, with the understanding that Mr.

Marquez faced a statutory range of up to 240 months (20 years). This was imposing

a penalty roughly one-eighth of the maximum. If the district court had known that

the statutory range was actual up to only 120 months (10 years), it may well have been

moved to sentence below that range. Forty-six months is over one-third of the

proper maximum. In context of what the Congress called for as an appropriate

penalty, the advised sentence is much, much harsher for a violation of § 1326(b)(1)

than it is for § 1326(b)(2).

Mr. Marquez’s entire sentence was calculated based on the wrong statutory

provision. Section 1326(b) governs the sentence of a defendant convicted under §

1326(a) who has suffered a prior conviction. A defendant who was previously

deported following a conviction for “commission of three or more misdemeanors

involving drugs, crimes against the person, or both, or a felony (other than an

22
aggravated felony)” faces a maximum ten years imprisonment. See 8 U.S.C. §

1326(b)(1). However, a defendant who was previously deported after suffering an

“aggravated felony” conviction faces a sentence of up to twenty years imprisonment.

See 8 U.S.C. § 1326(b)(2).

This error is significant. Beyond just the difference Congress mandated in the

maximum punishment reflecting the seriousness of the offense, the Sentencing

Guidelines provide different terms of supervised release for defendants sentenced

under section 1326(b)(1) and section 1326(b)(2). Compare U.S.S.G. §

5D1.2(a)(2)(2005) (“[a]t least two years but not more than three years” of supervised

release for § 1326(b)(1)) with U.S.S.G. § 5D1.2(a)(1) (2005) (“[a]t least three years but

not more than five years” of supervised release for § 1326(b)(2)).

The Ninth Circuit recently found that the same mistake by a district court was

neither moot nor harmless error, and required remand for re-sentencing. United States

v. Figueroa-Ocampo, __ F.3d __ 2007 U.S. App. LEXIS 17518 (9th Cir. July 24, 2007).

In Figueroa-Ocampo, the district court had erroneously considered a prior state court

conviction to be an “aggravated felony” under § 1326(b)(2). The district court had

sentenced the defendant with the understanding that he was subject to a 20-year

maximum under the statute § 1326(b)(2), when actually he was, as the Court of

Appeals held, subject to a 10-year maximum under the other sub-section, §1326(b)(1).

“Because it was possible that the district court would have imposed a shorter term of

supervised release had it calculated defendant’s sentence under the correct” definition,

23
that appeal was not moot, even though the defendant had already served his time in

incarceration and was on supervised release.

F. Indeed The Fact That The Guidelines Advise An Identical Penalty

Range For Violations Of § 1326(B)(2), Which Congress Had
Decided Merits A Penalty Up To 20 Years, As For Violations Of
§1326(B)(1), Which Congress Deemed To Merit A Maximum Of 10
Years, Or Half Of (B)(2), Illustrates The Need For Departure
Under § 3553(A).

Moreover, the fact that the Guidelines would sentence any given defendant to

the same 8 level base plus 16-level increase no matter whether the accused had a prior

simple felony or an “aggravated” felony (which includes murders, rapes, and armed

robberies) helps to demonstrate Mr. Marquez’ point at sentencing: That the

Guidelines advised range does not rationally reflect the defendant and the offense,

and that the 3553(a) factors demand a different result.

II. THE DISTRICT COURT ERRED IN APPLYING THE 16-LEVEL

INCREASE BECAUSE THE INCREASE APPLIED IN THIS PARTICULAR
CASE IS CAPRICIOUS AND UNREASONABLE UNDER THE § 3553(A)
OBJECTIVES.

This Court is required, under the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), “to review district court sentencing decisions for

‘reasonableness.’” United States v. Cage, 451 F.3d 585 (10th Cir. 2006). “Reasonableness

has both procedural and substantive components.” Id. (citing United States v. Kristl, 437

24
F.3d 1050, 1054-55 (10th Cir. 2006). “To be reasonable, a sentence must be

‘reasoned,’ or calculated utilizing a legitimate method.” Id. “As such, sentences based

on miscalculations of the Guidelines are considered unreasonable because ‘the

manner in which [they were] determined was unreasonable.’” Id. (quoting Kristl, 437

F.3d at 1055).

Because Mr. Marquez properly preserved and argued the issue of Booker and §

3553(a) reasonableness at sentencing, this Court reviews for “reasonableness” de novo.

See Booker, 125 S.Ct. at 769 (“We expect reviewing courts to apply ordinary prudential

doctrines, determining, for example, whether the issue was raised below and whether

it fails the ‘plain error’ test.”).

This case is difficult to distinguish from United States v. Trujillo-Terrazas, 405

F.3d 814 (10th Cir. 2005), in which this Court found it was plain error for the district

court to have imposed the same 16-level increase in offense level called for in the

same provision of the Guidelines.

In Trujillo-Terrazas this Court explained that prior to Booker, district courts were

“closely tethered to the Guidelines when sentencing”: Section 3553(b)(1) permitted

sentences outside the range determined by the Guidelines only in a narrow set of

circumstances defined by the Sentencing Commission. 405 F.3d at 819. After Booker,

“district courts have a freer hand in determining sentences.” Id. “While the

Guidelines still exert gravitational pull on all sentencing decisions—district courts

must ‘consult’ the Guidelines, and sentences that unreasonably depart from the

25
suggested sentencing range are at risk of reversal on appeal, Booker, 125 S. Ct. at

767—district courts now have more discretion to tailor sentences to the individual

circumstances of a defendant.”

In Trujillo-Terazas this Court observed that Booker suggests that the sentencing

factors articulated in § 3553(a), which the mandatory application of the Guidelines

had made dormant, “have a new vitality in channeling the exercise of sentencing

discretion.” Id. at 819 (citing Booker, 125 S.Ct. at 765-66; United States v. Rodriguez, 398

F.3d 1291, 1301 (11th Cir. 2005); see also United States v. Rogers, 400 F.3d 640, 641-42

(8th Cir. 2005) (applying § 3553(a) to find a sentence unreasonable). Later, in United

States v. Begay, 470 F.3d 964 (10th Cir. 2006), this Court concluded that it is error for a

district court to refuse to consider a non-guideline sentence unless convinced that a

guideline sentence would be unreasonable. Id. at 975-76. This court reasoned that a

district court “may impose a non-Guidelines sentence if the sentencing factors set

forth in § 3553(a) warrant it, even if a Guidelines sentence might also be reasonable.”

Id. at 975-76.

In addition to considering the sentencing range suggested by the Guidelines, see

18 U.S.C. § 3553(a)(4), § 3553(a) requires district courts to consider the “history and

characteristics of the defendant,” § 3553(a)(1), and “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct,” § 3553(a)(6). Both those factors weighed in favor of a

26
below-Guidelines sentence in Trujillo-Terrazas, and both factors weigh in favor of a

below-Guidelines sentence in this case.

In Trujillo-Terrazas this Court held that “[t]he relatively trivial nature of Mr.

Trujillo's criminal history is at odds with the substantial 16-level enhancement

recommended by the Guidelines for this conduct.” 405 F.3d at 819. This Court noted

that the prior state felony conviction that precipitated the 16-level increase, even

though listed as a denominated “crime of violence,” was “a quite minor offense” Id.

at 820. The prior conviction was for third-degree arson, an enumerated “crime of

violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), but the penalty that the state court

imposed was a mere $35 restitution. Looking at the minor penalty that the state court

imposed, this Court held that the prior conduct was relatively benign. Particularly

when compared to the other kinds of conduct that would also be subject to the same

16-level increase in offense level—burning down occupied buildings, or murder, or

armed robbery resulting in injury—it is easy to tell that the prior conviction was a

minor conviction, indeed. See id.

This Court in Trujillo-Terrazas held that the fact that the Guidelines in this

section “look only to the conviction itself rather than the actual conduct underlying

the conviction,” the Guidelines run afoul of § 3553(a)(6) in a case like this, where

there is rather minor conduct that nonetheless is technically swept within the list of

crimes in § 2L1.2(b)(1)(A)(ii). Id. Section 3553(a) “strives to achieve uniform

sentences for defendants with similar patterns of conduct.” Id. at 820. This end is

27
not achieved, this Court reasoned, when a person who does $35 in damage with a

match is punished the same as a person who intentionally burns down an apartment

complex. Id. (citing Booker, 125 S. Ct. at 757 (explaining that the Booker remedy

endeavors to maintain “a strong connection between the sentence imposed and the

offender's real conduct”).

The same anomaly thwarts the end of uniformity in Mr. Marquez’ case: his

twenty-year-old failed attempt to open a neighbor’s window with a shovel that caused

no harm now subjects him to the same penalty as that applied to a major drug dealer,

a murderer, an armed robber, or a rapist. Just as in Trujillo-Terrazas, “[t]he relatively

trivial nature of Mr. Trujillo’s criminal history is at odds with the substantial 16-level

enhancement recommended by the Guidelines for this conduct.” Id. at 819.

This Court in Trujillo-Terrazas held that this “disconnect between the newly

relevant § 3553(a) factors and the sentence given to Mr. Trujillo” supported the

imposition of a lesser sentence under the new sentencing regime. See id. at 820. In a

case such as Trujillo’s or Mr. Marquez’, this Court reasoned, departing from the

Guidelines range would do the opposite of “magnifying the whim and caprice

inherent in less restrictive sentencing determinations” because of the “mismatch”

between the sentence imposed by the Guidelines framework and the sentence that

meets the § 3553(a) objectives. Id. at 821. The same is true in Mr. Marquez’ case.

Another § 3553(a) factor in favor of a below-Guidelines sentence is this case is

to point out other cases very much like this one that have refused to apply the 16-level

28
increase. One such case is Trujillo-Terrazas, discussed above. A second such case is

United States v. Oscar Ortuno-Caballero, 187 Fed. Appx. 814, 2006 U.S. LEXIS 16649

(10th Cir. 2006) (Unpublished). Although unpublished and not citable as precedent

or authority, the Ortuno-Caballero case is illustrative of the fact that other federal

defendants in a very similar situation as Mr. Marquez have had the courts avoid

applying the 16-level increase. Mr. Ortuno-Caballero was given a 16-level increase in

his offense level based on almost identical conduct to Mr. Marquez’—his prior

conviction was a Colorado conviction for attempted first degree criminal trespass of a

dwelling. The district court imposed the 16-level increase, over Mr. Ortuno-

Caballero’s argument that the enhancement was unreasonable under Booker. The

Presentence Report writer, and the district court, apparently reasoned that the

Colorado conviction posed the same “substantial risk that physical force would be

used against the residents or property” as the risk posed by an (attempted) burglary,

an enumerated offense for the 16-level enhancement. This Court reversed, finding

plain error in the 16-level enhancement.

The concurring opinion in Ortuno-Caballero illustrates rather starkly how

arbitrary and illogical the Guidelines are in their various definitions of “crime of

violence”. Id. at 818-19 (O’Brien, J., concurring). Reviewing all the different

definitions and enhancements in the Guidelines, the concurrence stated: “The lesson

seems to be that logic plays no role; rote application of the various guideline

definitions is the order of the day.” Id. at 820. “It’s a funny way to run a railroad.”

29
Id. It noted that in “Colorado the potential risk of injury is virtually the same for first

degree criminal trespass and burglary.” Id. And, it noted that in the case of the

enumerated crime of burglary, the mental state inside a person’s mind (the element of

“intended crime therein”) required for a burglary does not have to be a felony—it

does not even have to be more than trivial. Id. This “distinction without a difference

leads to a guidelines sentence of 18 to 24 months [without the 16-level enhancement]

instead of a sentence of 46 to 57 months imposed by the district court.” Id. “It is

capricious, indeed.” Id.

As the Ortuno-Caballero concurrence laments, in a case with a minor predicate

crime like Mr. Marquez’, the enhancement is “capricious, indeed.” A better more

principled approach would be the application of the § 3553(a) factors, and the

sentence that those factors suggest is reasonable (probably, 18 to 24 months).

III. THE DISTRICT COURT APPEARS TO HAVE VIOLATED THE LESSON

FROM R IT A AND B EG A Y THAT THE DISTRICT COURT SHOULD NOT
AND MAY NOT EMPLOY A PRESUMPTION IN FAVOR OF A
GUIDELINES SENTENCE.

In Rita v. United States, ___ S.Ct.___, 2007 WL 1772146 (June 21, 2007), the

Supreme Court held that a court of appeals may apply a presumption of

reasonableness to a district court sentence imposed within a properly calculated

guideline range.

Critically, however, the Court said that such a presumption does not apply in

the district court. There, a defendant may argue for a non-Guidelines sentence (1) on

30
the basis of traditional departure grounds, (2) “because the Guidelines sentence itself

fails properly to reflect §3553(a) considerations,” or (3) “because a case warrants a

different sentence regardless.” Id. at *9. “In determining the merits of these

arguments, the sentencing court does not enjoy the benefit of a legal presumption that

the Guidelines sentence should apply.” Id.

In a concurring opinion, Justice Stevens, joined by Justice Ginsberg,

emphasized that while “[m]atters such as age, education, mental or emotional

condition, medical condition (including drug or alcohol addiction), employment

history, lack of guidance as a youth, family ties, or military, civic, charitable, or public

service are not ordinarily considered under the Guidelines[,]” they are relevant

considerations under 18 U.S.C. § 3553(a)(1). Id. at *13.

In United States v. Begay, 470 F.3d 964 (10th Cir. 2006), before Rita, this Court

concluded that it is error for a district court to apply this appellate standard when

sentencing. Specifically, this Court concluded it is error for the district court to refuse

to consider a non-guideline sentence unless a guideline sentence would be

unreasonable, reasoning that a district court “may impose a non-Guidelines sentence

if the sentencing factors set forth in § 3553(a) warrant it, even if a Guidelines sentence

might also be reasonable.” Id. at 975-76.

In Rita the Supreme Court confirmed the holding in Begay that a presumption

of reasonableness may attach to a guidelines sentence on appeal, but not when the

31
district court initially considers what sentence to impose. As the Supreme Court

explained,

We repeat that the presumption before us is an appellate

court presumption. Given our explanation in Booker that
appellate “reasonableness” review merely asks whether the
trial court abused its discretion, the presumption applies
only on appellate review. . . . In determining the merits of [the
parties'] arguments, the sentencing court does not enjoy the benefit of a
legal presumption that the Guidelines sentence should apply.
Id. at *23-24 (citations omitted) (emphasis in original). In other words, both Rita and

Begay require that the sentencing court actually do some authentic sentencing work.

The district court sentenced Mr. Marquez in four minutes, addressing all of his

arguments for departure from the Guidelines range with the conclusory: “Well, there

was a departure requested. I did not depart….How much more do you want?” Then

it stated, “No appellate court is going to overturn me on that.” (Vol. III at 4-5.) It

appears on this record that it is highly likely that Judge Conway employed a

presumption of reasonableness to the Guidelines calculation. After Begay and Rita,

such a presumption is misplaced.

Even worse, it appears that the district court did not even consider an out-of-

Guidelines-range sentence, and stopped working once it felt that the Guideline-

advised sentence was reasonable. The district court, one minute into the hearing and

even before allocution, stated: “I have considered it [the requests for downward

adjustment], and nothing about the sentence I’m going to give him causes me any problems.” This

made clear that the district court’s sentencing decision consisted of determining

32
whether it thought the Guidelines range was reasonable, and stopped there. This,

Begay said, is error.

IV. IN THE ALTERNATIVE TO POINT I, MR. MARQUEZ ASKS THIS

COURT TO REVISIT G ON Z A LEZ - C OR O NA DO ’S ADOPTION OF THE
NINTH CIRCUIT’S P IME N TA L -F LO RE S .

Mr. Marquez respectfully requests this Court to revisit its favorable citation to

the decisions in United States v. Ramirez, 367 F.3d 274, 278 (5th Cir. 2004) and United

States v. Pimentel-Flores, 339 F.3d 959, 964 (9th Cir. 2003) in its case of United States v.

Gonzalez-Coronado, 419 F.3d 1090, 1095 (10th Cir. 2005). In that case this Court briefly

rejected the defendant’s argument that under the Guidelines § 2L1.2(b)(1)(A)(ii) a

state conviction can not be considered a “crime of violence” where is was not first an

“aggravated felony” under 8 U.S.C. § 1326(b)(2). In Gonzalez-Coronado, the defendant

was sentenced to probation rather than to imprisonment. This Court reasoned,

consistent with the analysis in Point I, above, that “unlike 8 U.S.C. § 1326(b)(2)’s

requirement that an aggravated felony must result in a sentence of at least one year,

U.S.S.G. § 2L1.2(b)(1)(A)(ii) does not require that, to be a ‘crime of violence,’ a prior

conviction result in a sentence of any particular length.” Id. (citing Ramirez, 367 F.3d at

278 and Pimentel-Flores, 339 F.3d at 964). This Court held that the district court did

not err in applying the guidelines when it enhanced Gonzalez's base offense level by

sixteen under § 2L1.2(b)(1)(A)(ii), based upon Gonzalez's prior Kansas conviction for

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attempted aggravated assault, even though that prior conviction resulted in only

probation.

The argument that this Court should reject the Pimental-Flores analysis is a

logical one: the argument that a prior conviction could only qualify as a “crime of

violence” if it also constituted an “aggravated felony,” which, under 8 U.S.C. §

1101(a)(43), requires a term of imprisonment of at least one year. From the

perspective of a Congress that enacted a statute with a series of graduated maximum

penalties dependent on status as an “aggravated” or not-aggravated felon From the

perspective of a Congress that enacted a statute with a series of graduated maximum

penalties dependent on status as an “aggravated” or not-aggravated felony, follows

that the Guidelines provision should reflect the same graduations in penalty. Unless

the Court adopts this construction, the 2001 amendment to the guidelines would have

been meaningless. See U.S.S.G. app. C, Amendment 632 (2001)(“This amendment

responds to concerns raised by a number of judges . . . particularly in districts along

the south-west border between the United States and Mexico, that § 2L1.2 . . .

sometimes results in disproportionate penalties because of the 16-level

enhancement”).

Mr. Marquez’ 1987 Texas conviction did not qualify as an aggravated felony

and, therefore, could not be a crime of violence under this analysis. But see United States

v. Pimentel-Flores, 339 F.3d at 964 (“under United States Sentencing Guideline § 2L1.2,

amended as effective November 1, 2001, a 'crime of violence' needed only to be a

34
'felony' as defined in the application notes--and not an 'aggravated felony' as

statutorily defined--to qualify for a 16-level enhancement.”). The Ninth Circuit based

this holding on the plain language of the guideline—using the term “felony,” not

“aggravated felony” in § 2L1.2(b)(1)(A)—but did not analyze the question of

Congress’ intent under the statute to set clearly disparate levels of culpability. See 339

F.3d at 964. Mr. Marquez submits that the analysis should be different.

CONCLUSION
For the foregoing reasons, Mr. Marquez respectfully requests this Court to

reverse his sentence and remand for new sentencing.

STATEMENT OF REASON FOR ORAL ARGUMENT

Counsel for Mr. Marquez respectfully requests on Mr. Marquez’ behalf oral

argument, to provide the Court an opportunity to explore in greater depth the issues

raised in this brief in a setting of dialogue between Court and counsel. The arguments

are rather legal in nature, and the panel may or may not feel the need to explore them

further at argument.

/S/ electronically submitted

______________
TRACE L. RABERN
1626 Ben Hur Drive
Santa Fe, New Mexico
87501
505-690-7969
rabernlaw@mindspring.com

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 Certificate of Service

I hereby certify that (1) on Saturday, September 8, 2007, I caused to be

deposited in the United States mail, with First Class Postage prepaid, a true and

correct copy of the foregoing Brief together with a copy of this Certificate of Service,

addressed to Terri Abernathy, Assistant United States Attorney, 555 Telshore Blvd.

#300, Las Cruces, New Mexico; (2) a copy of this brief in chief was provided to Ms.

Abernathy, by electronic mail on Sunday, September 9, 2007; (3) all required privacy

redactions have been made, and, with the exception of those redactions, this

document is an exact copy of the written document filed with the Clerk; and (4) this

submission has been scanned for viruses with the most recent version of OS X disk

utility (Ver. 10.3.9), and, according to that utility, this digital submission is free of

viruses.

/S/ electronically submitted

______________
TRACE L. RABERN
1626 Ben Hur Drive
Santa Fe, New Mexico
87501
505-690-7969
rabernlaw@mindspring.com

36
 Certificate of Compliance with Rule 32(A)(7)

I, Trace L. Rabern, counsel for defendant-appellant Juan Eduardo Marquez,

certify that this brief in chief conforms to the type-volume limitations of Fed. R. App.

P. 32(a)(7)(B)(i). The brief is typed on a proportionally-spaced 14-point typeface

(Garamond). Including table of contents, table of authorities, and certificate of

service, and footnotes, it contains 9,128 words. To count the words I relied on MS

Word 97 for the Mac.

I certify that this certificate of compliance is true and correct to the best of my

knowledge and belief formed after reasonable inquiry.

/S/ electronically submitted

______________
TRACE L. RABERN
1626 Ben Hur Drive
Santa Fe, New Mexico
87501
505-690-7969
rabernlaw@mindspring.com

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