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United States v. Nunez-Carranza
Alfredo Nunez-Carranza challenged his 51-month sentence for unlawfully reentering the United States after previously being removed. The 51-month sentence fell at the bottom of Nunez-Carranza’s properly calculated advisory guideline range. On appeal, he contended the district court plainly erred in not explaining why it imposed that sentence instead of a below-guideline sentence he requested.
The 10th Circuit Court of Appeals affirmed Nunez-Carranza’s sentence because he failed to establish any error warranting relief, the opinion noted.
Nunez-Carranza pled guilty to unlawfully reentering the United States after previously being removed, in violation of 8 U.S. Code 1326(a) and (b). Using the 2021 sentencing guidelines, the presentence report calculated Nunez-Carranza’s total offense level to be 17 and his criminal history category to be VI, resulting in an advisory imprisonment range of 51 to 63 months.
According to the presentence report, Nunez-Carranza, who was 50 years old at the time of sentencing, had an extensive and continuing criminal history dating back to age 26. The presentence report calculated Nunez-Carranza’s criminal history category to be VI, the highest possible category, based on five prior felony convictions, or groups of felony convictions.
The presentence report further indicated Nunez-Carranza had previously been removed from the United States four times, usually after serving a prison sentence, and had then unlawfully reentered the United States soon after each removal. This particular case stems from his having been found unlawfully in the United States one month after having been removed, following the completion of a 46-month prison sentence for unlawful reentry. Nunez-Carranza didn’t dispute these facts or the presentence report’s guideline calculations, the opinion added.
The district court began the sentencing proceeding by noting its concern about Nunez-Carranza’s criminal history and serial removals.
The court then noted, sua sponte, it was considering imposing a below-guideline sentence because Nunez-Carranza’s 2003 drug convictions involved marijuana, which is now “completely legal in New Mexico and many other states.” The court also indicated its understanding that not counting Nunez-Carranza’s 2003 convictions would lower his criminal history category from VI to V, and lower the guideline sentencing range from 61 to 53 months in prison to 46 to 57 months. The sentencing court decided not to impose a below-guideline sentence on that basis because the 2003 convictions also involved Nunez-Carranza’s possession of methamphetamine for sale.
Nunez-Carranza then requested the court vary downward and impose a below-guideline sentence because two of his prior convictions — the 2003 drug trafficking and 2008 drug possession convictions — were almost too old to count toward his criminal history category. The United States advocated for a prison sentence at the bottom of the advisory guideline range, 51 months. The prosecutor noted 51 months was a few months longer than the 46-month sentence imposed on Nunez-Carranza for his previous unlawful reentry conviction, a sentence which didn’t deter Nunez-Carranza from almost immediately unlawfully returning to the United States after his last removal.
Next, the defense counsel addressed the court’s stated concern “that it seems like Mr. Nunez gets removed after serving time in prison and then comes back pretty much immediately” by acknowledging that was in fact the case. Nunez-Carranza also addressed the court’s concern during his allocution.
Without further discussion, the court asked Nunez-Carranza if he had a request for where he wanted to be imprisoned and then imposed a 51-month prison sentence.
On appeal, Nunez-Carranza argued the district court erred procedurally by not explaining adequately why the court rejected his request for a downward variance and instead imposed a within-guideline sentence. As relief, he sought a remand for resentencing “so that the district court can re-examine its sentence and provide sufficient reasoning for why the sentence it ultimately imposes is justified.”
After evaluation, the 10th Circuit concluded Nunez-Carranza failed to establish the sentencing court erred in explaining why it rejected his request for a below-guideline sentence and, instead, imposed a sentence at the bottom of his advisory guideline range.
The 10th Circuit affirmed his sentence.