Court Opinion: 10th Circuit Court of Appeals Opinion for Sept. 8

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

United States v. Perez-Asuncion

This appeal involved the reasonableness of an 18-month sentence for illegally reentering the United States. Though the guideline range was zero to six months, the district court sentenced Ernesto Perez-Asuncion to prison for 18 months. Is the 18-month prison term reasonable? The 10th Circuit Court of Appeals out of Las Cruces, New Mexico, answered yes.

In sentencing a defendant, the district court has broad discretion, the opinion noted, citing the 10th Circuit decision United States v. Balbin-Mesa. The court must consider the sentencing guidelines; the nature and circumstances of the offense; the characteristics of the defendant; the defendant’s past behavior and characteristics; the sentencing goals of punishment; the promotion of respect for the law; deterrence, and protection of the public; the need to avoid unwarranted sentencing disparities; and the need for restitution, citing 18 U.S. Code 3553(a).

At Perez-Asuncion’s sentencing, the court applied these factors and decided on an 18-month term, the 10th Circuit noted. In reviewing that decision, the 10th Circuit applied the abuse-of-discretion standard, the opinion added, citing the 10th Circuit decision United States v. Sells. That standard requires “substantial deference” to the district court, the opinion furthered, citing the 10th Circuit decisions United States v. Sayad and United States v. Friedman. This level of deference required the 10th Circuit to uphold a sentence unless it was “arbitrary, capricious, whimsical, or manifestly unreasonable” (Friedman).

The district court acted within its broad realm of discretion, the 10th Circuit explained. The court acknowledged the guideline range was zero to six months’ imprisonment. But the court also considered Perez-Asuncion’s conduct after the government had ordered his removal. That conduct included Perez-Asuncion’s return to the United States within roughly four months of his removal, the 10th Circuit explained.

Perez-Asuncion argued he reentered the United States only to get his work materials, but the district court didn’t have to accept this explanation, the 10th Circuit said. After Perez-Asuncion was caught, he made arrangements for someone else to get his work materials, the 10th Circuit noted and in light of those arrangements, the district court could infer Perez-Asuncion had chosen to return rather than get someone else to retrieve his work materials. 

The district court also expressed concern about the potential danger to Perez-Asuncion’s ex-wife, the 10th Circuit explained. This concern stemmed from a finding Perez-Asuncion had threatened to chop off his ex-wife’s head and give it to their children, the 10th circuit noted. After making the threat, Perez-Asuncion was spotted outside of his ex-wife’s house. Inside the car was a hatchet.

According to the opinion, Perez-Asuncion downplayed the danger, stating he was far away from his ex-wife when he later reentered the United States, he had the hatchet only to use in his work and the existing charge in state court involved only a misdemeanor. The 10th Circuit rejected these arguments.

Perez-Asuncion pointed out he was stopped more than 1,000 miles away from his ex-wife’s residence when he reentered the United States. But when he was stopped, Perez-Asuncion explained he was returning to gather his truck and work tools. Given this explanation, the court could infer that Perez-Asuncion had planned to retrieve his truck and tools from the vicinity of his ex-wife’s residence.

Perez-Asuncion defended his possession of a hatchet, saying he needed it for work. But the district court found Perez-Asuncion had threatened to chop off his ex-wife’s head. This threat could appear credible to the sentencing court when Perez-Asuncion was found with a hatchet inside his car.

Finally, the district court could consider the conduct to be serious. Perez-Asuncion downplayed the conduct, pointing out the state prosecutor decided to bring a charge for a misdemeanor. However, according to the opinion, a federal district court need not consider the ways that state prosecutors exercise their discretion, citing the 10th Circuit decision United States v. Craine. The state prosecutor’s decision to charge only a misdemeanor didn’t prevent the federal district court from varying upward based on the seriousness of Perez-Asuncion’s threat to his ex-wife, the opinion added, citing the 10th Circuit decision United States v. Mateo.

Perez-Asuncion also pointed out the median sentence for someone with his guideline range would have been three months and the average sentence would have been only two months. These statistics could support a sentence within the guideline range, for federal law requires consideration of unwarranted sentencing disparities, the opinion noted citing 18 U.S.C. 3553(a)(6). But the district court could conclude a sentence of only two to three months would jeopardize the safety of his ex-wife.

The 10th Circuit affirmed, concluding the district court acted within its discretion when sentencing Perez-Asuncion to 18 months for illegal reentry.

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