United States v. Chavez-Morales

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 3, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-2124 MANUEL CHAVEZ-MORALES, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:16-CR-04013-WJ-1) _________________________________ John V. Butcher, Assistant Federal Public Defender (Michael A. Keefe, Assistant Federal Public Defender on the briefs), Albuquerque, New Mexico, for Defendant – Appellant. Paul J. Mysliwiec, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff – Appellee. _________________________________ Before MATHESON, McKAY, and McHUGH, Circuit Judges. _________________________________ McHUGH, Circuit Judge. _________________________________ Manuel Chavez-Morales appeared before the district court following his fifth conviction for an illegal reentry offense. At sentencing, Mr. Chavez-Morales argued that higher wages in the United States motivated his decision to illegally reenter the United States. Focusing heavily on Mr. Chavez-Morales’s criminal history and noting that none of the earlier sentences deterred Mr. Chavez-Morales from reoffending, the district court imposed an upward variant sentence of thirty-six months’ imprisonment. The district court also imposed a three-year term of supervised release.1 On appeal, Mr. Chavez-Morales challenges the procedural reasonableness of his term of imprisonment. Specifically, he contends the district court did not meaningfully consider his argument that economic opportunities motivated his decision to illegally reenter the United States and thereby mitigated the seriousness of his offense. Mr. Chavez-Morales separately contends the district court committed plain error by imposing a term of supervised release without acknowledging or considering United States Sentencing Guidelines Manual (U.S.S.G.) § 5D1.1(c), which states a court “ordinarily” should not impose a term of supervised release when “the defendant is a deportable alien who likely will be deported after imprisonment.” We affirm the district court’s judgment. As to Mr. Chavez-Morales’s term of imprisonment, the transcript of the sentencing hearing establishes that, on three occasions, the district court addressed Mr. Chavez-Morales’s economic motivation argument. As to the imposition of a term of supervised release, while the district 1 The term of supervised release was, in fact, “unsupervised with mandatory and standard conditions” and the special condition that Mr. Chavez-Morales “not illegally re-enter the United States.” ROA Vol. 3 at 30. Although Mr. Chavez- Morales was not subject to supervision, for ease of reference, we refer to the term as a term of supervised release. 2 court erred by not acknowledging and considering U.S.S.G. § 5D1.1(c), Mr. Chavez- Morales has not carried his burden on the third prong of the plain error analysis. I. BACKGROUND A. Mr. Chavez-Morales’s History, Characteristics, & Offense Conduct Mr. Chavez-Morales, age fifty-six at the time of his most recent offense, is a citizen of Mexico. As a result of his family’s financial struggles, Mr. Chavez- Morales entered the work force at a young age. By the 1980s, Mr. Chavez-Morales lived in the United States. According to records obtained by probation services, Mr. ...

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