United States v. Cortez.
No. 23-2177. 6/10/2025. D.N.M. Judge Baldock. Reentry of a Removed Alien—Multiple Criminal Convictions—Recent and Serious Criminal Misconduct—Sentencing—Upward Departure From US Sentencing Guidelines.
June 10, 2025
Cortez is a citizen of El Salvador. In 1999, he was convicted in Maryland state court of malicious destruction of property under $300 and disorderly conduct. In 2001, under the alias Santiago Gayton, he was convicted in the same state court of second degree assault reportedly arising from an attempted robbery. Six months later, he again appeared before the Maryland state court, this time as Santiago Gaitan, and was convicted of manslaughter and sentenced to 10 years’ imprisonment with five years suspended. He was released from Maryland state prison in 2005 and promptly deported. Cortez nevertheless returned to the United States and was convicted in Nevada state court in 2007 of battery with intent to commit a crime and attempted first degree kidnapping of L.P. Cortez was imprisoned in Nevada until 2019 and again deported, but returned to the United States a third time. He was apprehended in the southern New Mexico desert in 2023 and entered a blind plea to reentry of a removed alien subsequent to a conviction for commission of an aggravated felony, in violation of 8 USC § 1326(a)(1), (b)(2). Based on a total offense level of 15 and a criminal history category of II, the presentence investigation report (PSR) calculated Cortez’s US Sentencing Guidelines advisory guidelines range as 21 to 27 months’ imprisonment. At the sentencing hearing for this reentry offense, Cortez and the government requested a within-guidelines-range sentence. The district court recognized that the guidelines-range sentence was presumptively reasonable, but it found the presumption overcome by the facts in Cortez’s case, and further found that Cortez had not shown a sentencing disparity between himself and similarly situated defendants. Alternatively, the court found that if any sentencing disparity existed, such disparity was “warranted by the specific facts of this case,” citing Cortez’s multiple convictions for violent crimes in the United States, his very long time served for an aggravated felony, and his return shortly thereafter to the United States. The court varied upward and sentenced Cortez to 60 months’ imprisonment.
On appeal, Cortez argued that his 60-month sentence is procedurally unreasonable because the district court selected his sentence based on its finding that he “raped” L.P. Reviewing for plain error, the Tenth Circuit determined that the district court’s statements that Cortez “raped” L.P. are not a clearly erroneous finding because Cortez failed to object to the PSR in that matter, which included uncontested facts including that he grabbed L.P., threw her to the ground, dragged her toward bushes, choked her, covered her mouth, forced her pants and underwear off, bit her nose and thumb, fractured two of her vertebrae, and had sex with her.
Cortez also argued that his sentence is substantively unreasonable because it (1) is over twice as high as the high end of his advisory guidelines range; (2) accounts for matters, particularly the need for deterrence and likelihood of recidivism, already accounted for in his guidelines range; and (3) creates an unwarranted sentencing disparity between himself and other reentry offenders with a similar offense level and criminal history category. Section 1326(b)(2) provides for a maximum sentence of 20 years’ imprisonment. But a court may vary upward where, as here, a defendant has recent and serious criminal misconduct. Second, under current precedent, district courts have broad discretion to consider particular facts when arriving at a sentence under 18 USC § 3553(a), even when those facts are already accounted for in the advisory guidelines range. Lastly, Cortez’s use of national sentencing statistics to support his argument on sentencing disparities was insufficient to show how he is similarly situated to defendants with similar records who have been found guilty of similar conduct. Accordingly, given the totality of the circumstances, the court did not abuse its discretion in imposing Cortez’s sentence for his third unlawful entry following a series of convictions for violent crimes in the United States.
The sentence was affirmed.