FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT February 4, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-1119 (D.C. No. 1:17-CR-00295-MSK-GPG-1) JUAN RAMON RODRIGUEZ- (D. Colo.) BARBOSA, a/k/a Manuel Olmos Rodrigues, a/k/a June R. Rodriguez- Barbosa, a/k/a Fernando Rodriguez-Ponce, a/k/a J. Guadalupe-Joaquin, a/k/a Oscar Rodriguez, a/k/a Juan Ramone Rodriguez- Barbosa, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges. _________________________________ Defendant Juan Ramon Rodriguez-Barbosa pled guilty, pursuant to a plea agreement, to illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). He was ultimately sentenced to fifty-five months’ imprisonment, followed by three years of supervised release. He contends on appeal that the government breached its plea agreement to recommend that the district court impose * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. a sentence within the United States Sentencing Guideline range of 30-37 months. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I. BACKGROUND Rodriguez-Barbosa was charged with one count of unlawfully reentering the United States after deportation in violation of 8 U.S.C. § 1326(a), (b)(2). He pled guilty to the charge on November 21, 2017, pursuant to a plea agreement that provided that the government would recommend “the Court impose a sentence within the Guideline range, as calculated by the Court.” R. Vol. I at 11. In its presentence report (“PSR”), the probation office determined that Rodriguez-Barbosa had a total offense level of 13 with a criminal history category of V, resulting in a guideline range of 30-37 months. Ultimately, the probation office recommended the district court impose a sentence of 37 months, on the high end of the guideline range, “due to the nature of the defendant’s prior criminal history.” R. Vol. II at 50. The PSR listed Rodriguez-Barbosa’s criminal history as including five prior felony convictions, two of which were illegal reentry convictions. For his first illegal reentry conviction, in 2002, Rodriguez-Barbosa was sentenced to 41 months in prison. For the second, in 2011, he was sentenced to 51 months in prison. Importantly, after Rodriguez-Barbosa’s 2011 illegal reentry conviction but before his 2017 illegal reentry conviction, the Sentencing Commission amended the guidelines that apply to that crime. The changes in the guidelines explain why the probation office recommended a sentence in 2017 that was lower than the within-guideline 2 sentences Rodriguez-Barbosa had previously received for committing the same crime. Neither Rodriguez-Barbosa nor the government objected to the PSR. Rodriguez-Barbosa’s sentencing hearing took place on March 19, 2018. The district court first heard from defense counsel on Rodriguez-Barbosa’s motion for a downward variance. Defense counsel asked for a downward variance and a sentence of 24 months’ imprisonment followed ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals