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United States v. Ortiz-Lazaro

United States Court of Appeals, Tenth Circuit

March 16, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DAVID ORTIZ-LAZARO, Defendant-Appellant.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CR-02006-TM-1)

          Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

          James R. W. Braun, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.

          SEYMOUR, CIRCUIT JUDGE.

         Defendant Ortiz-Lazaro pled guilty to illegal reentry after deportation in violation of 18 U.S.C. § 1326(a)(1) and (b)(1), and he admitted that he violated the supervised release terms of his prior illegal reentry charge. He appeals his above-guidelines sentence for the supervised release violation as procedurally and substantively unreasonable. We affirm.

         I.

         On September 4, 2015, Mr. Ortiz-Lazaro pled guilty to one count of reentry of a deported alien, in violation of 8 U.S.C. § 1326(a). He was sentenced to eight months in prison and three years of supervised release, and upon his release from prison he was deported to Mexico. One of his release conditions was that he not illegally reenter the United States. Mr. Ortiz-Lazaro disregarded that condition and on March 19, 2016, he was apprehended by U.S. Border Patrol agents in New Mexico and ultimately charged with reentry after deportation in violation of 8 U.S.C. § 1326(a)(1) and (b)(1).

         Mr. Ortiz-Lazaro pled guilty to the § 1326 charge pursuant to a fast track plea agreement. On June 14, 2016, he appeared before the district court for sentencing concerning his most recent illegal reentry charge, and also for a hearing on revocation of his supervised release relating to his prior illegal reentry charge. Regarding the § 1326 charge, the court noted that Mr. Ortiz-Lazaro had illegally reentered the United States a little over a month after his most recent deportation and stated, "I mean, it's obvious to me that you don't respect the law of the United States." Supp. ROA vol. 1 at 12. The court sentenced him to twelve months imprisonment, the high end of the guideline range for the illegal reentry charge.

         The district court then held a hearing on revocation of Mr. Ortiz-Lazaro's supervised release. He admitted to violating the supervised release terms. With respect to sentencing, the court noted that the Grade B violation with a criminal history category of II equated to an advisory guideline range of six to twelve months. But the court found that several factors warranted a departure from that range, including that Mr. Ortiz-Lazaro had illegally reentered the United States barely a month after his term of supervised release commenced, had been deported twice before, had also been voluntarily returned to Mexico on three prior occasions, and had previously been convicted of serious violent offenses.

         The district court ultimately sentenced Mr. Ortiz-Lazaro to twenty-four months imprisonment on his supervised release violation, to run consecutively to the twelvemonth sentence for his current violation of § 1326. Mr. Ortiz-Lazaro did not lodge any objection to the court's explanation of reasons, nor did he ask for clarification of the material on which the court relied in imposing the sentences. The court entered judgment on June 17, 2016, and Mr. Ortiz-Lazaro appeals.

         II.

         Mr. Ortiz-Lazaro makes multiple arguments on appeal. He contends that (1) his sentence for violation of supervised release condition was both procedurally and substantively unreasonable; (2) his due process rights were violated by the court's consideration of sentencing information that was not provided to him; and (3) his double jeopardy rights were violated because the district court punished him twice for the same reentry. We address each argument in turn.

         A. Reasonableness of Sentences

         "Since the Supreme Court's decision in Booker, which relegated the Sentencing Guidelines to an advisory status, district courts have been free to apply any sentence that is 'reasonable' under the sentencing factors listed at 18 U.S.C. § 3553(a)." United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (citing United States v. Booker, 543 U.S. 220, 261 (2005)). When we review for reasonableness, our review "includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence." Id. Mr. Ortiz-Lazaro argues that his sentence for the supervised release violation was both procedurally and substantively unreasonable.

         1. ...


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