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United States v. Nunez-Carranza.

No. 22-2100. 10/11/2023. D.N.M. Judge Ebel. Removal Proceedings—US Sentencing Guidelines—Section 3553(a) Sentencing Factors—Downward Variance Request—Sentencing Court’s Duty to Explain Sentencing Decision.

October 11, 2023

Nunez-Carranza, a Mexican citizen, pleaded guilty to unlawfully reentering the United States after previously being removed, in violation of 8 USC § 1326(a) and (b). His extensive criminal history dates back to age 26. The presentence report (PSR) calculated Nunez-Carranza’s criminal history category to be VI, based on prior felony convictions, or groups of felony convictions, including drug trafficking, drug possession, and unlawful weapons possession. Nunez-Carranza requested a downward variance from the US Sentencing Guidelines (USSG) because his prior 2003 drug-trafficking conviction and his 2008 drug-possession conviction were almost too old to count toward his criminal history category. The United States argued for a 51-month prison sentence, which was at the bottom of the USSG advisory range, and the district court imposed that sentence.

On appeal, Nunez-Carranza contended that the district court plainly erred by imposing the 51-month sentence and not expressly explaining on the record why it rejected his non-frivolous argument for a downward variance. A sentencing court must consider the 18 USC § 3553(a) sentencing factors, one of which is the advisory guideline range. But under Tenth Circuit precedent, a sentencing court is not required to address every argument a defendant asserts for a more lenient sentence. A sentencing court’s decision to reject a defendant’s non-frivolous request for a downward variance will be upheld if the sentencing court (1) considered the defendant’s argument for a downward variance; (2) considered the § 3553(a) sentencing factors, including the calculation of the advisory sentencing range under the USSG; and (3) concluded that a within-guideline sentence was appropriate under the § 3553(a) factors. Here, the district court stated that it considered the § 3553(a) factors as well as the PSR, which itself analyzed the § 3553(a) factors before recommending a within-guideline sentence. Further, the sentencing court’s stated concerns, and the discussion during sentencing between the parties and the court, implicated several of the § 3553(a) factors. Accordingly, the sentencing court adequately explained why it imposed its sentence and did not err. Further, even if the sentencing court had erred, Nunez-Carranza failed to show that the alleged error was clear and obvious under current law or that it affected his substantial rights. Therefore, Nunez-Carranza failed to establish the remaining requirements for relief under the plain-error analysis.

The sentence was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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