United States v. Christian Guerrero-Alvarez

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1633 _____________ UNITED STATES OF AMERICA v. CHRISTIAN GUERRERO-ALVAREZ, Appellant _____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cr-00477-001) District Judge: Hon. Legrome D. Davis _______________ Submitted Under Third Circuit LAR 34.1(a) January 8, 2018 Before: JORDAN, ROTH, Circuit Judges and STEARNS*, District Judge. (Filed: January 30, 2018) _______________ OPINION** _______________ * Honorable Richard G. Stearns, United States District Court Judge for the District of Massachusetts, sitting by designation. ** This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge. Christian Guerrero-Alvarez pled guilty to illegal reentry after deportation. He now appeals his sentence, arguing that the District Court committed procedural and substantive errors when it sentenced him to thirty months of imprisonment followed by three years of supervised release. We will affirm. I. BACKGROUND Guerrero-Alvarez is a Mexican citizen who does not have a lawful right to be in the United States. He has been deported on eight prior occasions. Three of those removals resulted in misdemeanor convictions for illegal entry in violation of 8 U.S.C. § 1325(a)(1). In October 2016, Immigration and Customs Enforcement apprehended Guerrero-Alvarez after receiving information that he had yet again returned to the United States unlawfully. He was indicted on one felony count of reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(l), and he pled guilty as charged. In the Presentence Investigation Report (“PSR”), Guerrero-Alvarez’s criminal history included two convictions for driving under the influence and the three prior convictions for illegal entry. Based on a total offense level of 13 and a criminal history category of V, the PSR observed that the imprisonment range recommended in the United States Sentencing Guidelines was thirty to thirty-seven months. The PSR also stated that a violation of § 1326(a) and (b)(l) carries a supervised release term of one to three years, a mandatory $100 special assessment, and a fine in the range of $5,500 to $55,000. 2 Although Guerrero-Alvarez objected to a part of the PSR regarding a prior conviction, there were no unresolved objections at the time of sentencing. He did, however, submit a sentencing memorandum in which he sought a downward variance or departure because, in his view, “[b]oth his guideline calculations and criminal history category are artificially elevated based on maximum sentences which he never served, nor was in any danger of ever serving.” (App. at 50.) He also said that a downward variance was warranted because he reentered the United States to support his family, because of his positive work history, and because he does not pose a threat to the public. In addition, he argued that he will likely remain in custody until his eventual deportation, negating any necessity for a term of supervised release. The government responded that Guerrero-Alvarez’s criminal and deportation history called for imprisonment within the guidelines range, and ...

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