     Case: 12-20166    Document: 00512209116      Page: 1   Date Filed: 04/16/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                    FILED
                                                                   April 16, 2013

                                  No. 12-20166                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff – Appellee

v.


RENE VALERIANO DIAZ SANCHEZ, also known as Rene Valeriano Diaz,
also known as Rene V. Diaz, also known as Rene Valeriano Diaz-Sanchez,

                                            Defendant – Appellant



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Defendant–Appellant Rene Valeriano Diaz Sanchez appeals his sentence
as procedurally and substantively unreasonable. Finding no error, we AFFIRM.
                        FACTS AND PROCEEDINGS
      Diaz Sanchez pleaded guilty to unlawfully reentering the United States
in violation of 8 U.S.C. § 1326(a), (b)(2).     The U.S. Probation Office (the
“Probation Office”) calculated in its presentence investigation report (“PSR”) that
Diaz Sanchez was subject to an advisory guidelines range of forty-six to fifty-
seven months’ imprisonment. The guidelines calculation rested in part on a
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sixteen-level, offense level enhancement predicated on Diaz Sanchez’s 2002
conviction of aggravated assault.
      Diaz Sanchez did not object to the guidelines calculation; rather, Diaz
Sanchez filed a sentencing memorandum requesting a sentence below the
guidelines range. In his memorandum, Diaz Sanchez explained he was removed
from the United States in 2006 and that, upon returning to his native El
Salvador, he opened a restaurant. He alleged he was approached by members
of the Mara Salvatrucha (“MS 13”) gang, who began extorting progressively
larger sums of money from him and, when not content with the funds he
provided, issued death threats against him and his family. In 2008, hoping to
escape MS 13, Diaz Sanchez stated he fled with his family back to the United
States. U.S. authorities removed Diaz Sanchez to El Salvador once more in
2009, but Diaz Sanchez reported he was compelled to return to the United States
after MS 13 resumed its harassment. Attached to the sentencing memorandum
were letters from Diaz Sanchez’s wife and children, asking the court for leniency
and attesting to the peril Diaz Sanchez would face upon return to his home
country. Diaz Sanchez argued the coercion and duress animating his decision
to reenter the United States warranted either a departure below the guidelines
range, under U.S. Sentencing Guidelines Manual § 5K2.12 [hereinafter
“U.S.S.G.”], or a non-guidelines variance. He also urged the court to depart
downward, under U.S.S.G. § 5K2.0, or to vary his sentence below the guidelines
range, because of his difficulty assimilating in El Salvador. He suggested the
district court sentence him within a reduced guidelines range of eighteen to
twenty-four months and that a sentence of eighteen months was sufficient to
achieve the sentencing goals of 18 U.S.C. § 3553(a).


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                                    No. 12-20166

      At sentencing, the district court informed the parties it had “read the
whole file,” including the sentencing memorandum and the letters Diaz Sanchez
appended, and had reviewed Diaz Sanchez’s suggestion of a sentence at the low
end of a reduced range of eighteen to twenty-four months. The district court
then adopted the PSR and all its addenda. The court offered defense counsel the
opportunity to elaborate on its sentencing arguments, and counsel reiterated the
threat posed to Diaz Sanchez by MS 13. The court questioned why Diaz Sanchez
could not obtain a green card, as his wife and children were legal permanent
residents in the United States. Counsel informed the court that Diaz Sanchez
would be unable to earn permanent resident status because of his criminal
history. Counsel added that Diaz Sanchez’s wife faced difficulties in raising the
couple’s son, who struggled with ADHD, and that supporting his family was an
additional reason behind Diaz Sanchez’s decision to return to the United States.
      Acknowledging the argument that Diaz Sanchez returned to the United
States “for refuge,” the court asked why Diaz Sanchez has “a criminal history
category of three, including assault on family member, no driver’s license,
aggravated assault, possession of a controlled substance, and trespass on
property?” The court further observed that the prior aggravated assault and
drug possession offenses were felony convictions. Counsel pointed out this was
Diaz Sanchez’s first federal criminal offense and that he faced more time in
prison than he had ever spent for his prior convictions. The court questioned
how that was a mitigating factor, noting the differences between federal and
state sentencing regimes. Diaz Sanchez then himself delivered a brief statement
asking the court for forgiveness.




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         The court permitted the government to respond. The government argued
for a sentence at the “middle to top” of the guidelines range calculated by the
Probation Office, and explained that Diaz Sanchez’s criminal history was
“telling.” It opposed a variance based on coercion in El Salvador, asserting that
MS 13 is a problem for all Salvadorans.
         The court then pronounced sentence:
         It is the judgment of the Court the defendant is hereby committed
         to the Bureau of the Prisons to be imprisoned in federal penitentiary
         for a term of 46 months. There will be, no, term of supervised
         release. It’s further ordered he’ll pay to the United States a special
         assessment of $100.
Defense counsel objected to the sentence as greater than necessary to achieve
the purposes of punishment. Counsel also objected that the district court had
not adequately addressed Diaz Sanchez’s arguments for a variance or a
departure, pointing to our decision in United States v. Mondragon–Santiago, 564
F.3d 357 (5th Cir. 2009), for authority. The court asked defense counsel to
explain “how was it inadequate? Just tell me how it was inadequate so I can
clean it up,” and offered to “reset” the sentencing hearing. Counsel declined the
offer to reset and responded that the court had not addressed the coercion Diaz
Sanchez faced in El Salvador. The court interjected: “I said I’ve read the
presentence report. I hereby adopt—overrule all objections and adopt the
presentence report and all addendums.” Neither party raised further objections.
Prior to the hearing’s conclusion, the district court offered to assign Diaz
Sanchez to a prison facility close to his family, and defense counsel accepted the
offer.




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                           STANDARD OF REVIEW
      We review sentences for abuse of discretion in a bifurcated inquiry. See
United States v. Fraga, 704 F.3d 432, 437 (5th Cir. 2013). We first assess
whether the district court committed any significant procedural error, like
“failing to adequately explain the chosen sentence.” Gall v. United States, 552
U.S. 38, 51 (2007). If we find no procedural error, we advance to consider the
sentence’s substantive reasonableness. Id.
                                  DISCUSSION
      On appeal, Diaz Sanchez argues that his sentence is procedurally
unreasonable because the district court did not adequately explain its sentence,
neither addressing the arguments for a lower prison term proposed by Diaz
Sanchez nor explicitly applying sentencing factors delineated in 18 U.S.C. §
3553(a) in imposing sentence.       In addition, he maintains his sentence is
substantively unreasonable, contending it is “plainly greater than necessary” in
light of the mitigating factors he presented to the district court.
      I.     Procedural Unreasonableness
      Diaz Sanchez argues the district court erred procedurally both in failing
to offer reasons for dismissing his arguments for a lower sentence and in
omitting to fully, and orally, assess the sentencing factors district courts consider
under 18 U.S.C. § 3553(a). Federal Rule of Criminal Procedure 32(i) outlines
procedural obligations of district courts at sentencing, providing that sentencing
judges must allow the parties an opportunity to review and to comment on the
PSR, and permit counsel, the defendant, and victims to allocute at sentencing.
See FED. R. CRIM. P. 32(i)(1), (4); see also id. 32(k) (specifying the required
elements in the judgment of conviction). Although Rule 32’s apparent focus is


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on permitting the parties the opportunity to present their views, Congress
statutorily also requires that “[t]he court, at the time of sentencing, shall state
in open court the reasons for its imposition of the particular sentence . . . .” 18
U.S.C. § 3553(c) (emphases added). The rule that sentencing courts must
provide a reasoned basis for their sentences is a salutary and necessary
component of our advisory guidelines sentencing regime. See Rita v. United
States, 551 U.S. 338, 356 (2007) (noting this “requirement reflects sound judicial
practice” and that “[a] public statement of . . . reasons helps provide the public
with the assurance that creates . . . trust” in the judicial system); id. (“The
sentencing judge should set forth enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.”); id. at 357–58 (describing that district
courts’ sentencing explanations can inform the “constructive[]” evolution of the
Sentencing Guidelines); cf. Gall, 552 U.S. at 50 (specifying the district court
“may not presume that the Guidelines range is reasonable. . . . [but] must make
an individualized assessment based on the facts presented”) (internal citation
omitted). Those broad principles are easily recited, but are necessarily resistant
to refinement into bright-line rules: the open-court reason-giving requirement
is a flexible, context-specific command. See Rita, 551 U.S. at 356–58. That
flexibility is reflected in § 3553(c)’s language and structure, as the statute
enumerates additional obligations in cases in which the guidelines range exceeds
twenty-four months or the court imposes sentence outside of the guidelines
range. See § 3553(c)(1)–(2).
      We have discerned certain guideposts in evaluating whether § 3553(c)’s
reason-giving requirement is met in a given case. Broadly, the district judge


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“‘should set forth enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.’” United States v. Sanchez, 667 F.3d 555, 567 (5th
Cir. 2012) (quoting Rita, 551 U.S. at 356). We have summarized that “[w]hile
sentences within the Guidelines require little explanation . . . more is required
if the parties present legitimate reasons to depart from the Guidelines.”
Mondragon–Santiago, 564 F.3d at 362 (internal quotation marks and citations
omitted). That means, when the defendant offers relevant arguments in favor
of a lower sentence, the sentencing judge may not rest solely on “a bare
recitation of the Guideline’s calculation.” Id. at 363; see also United States v.
Tisdale, 264 F. App’x 403, 411 (5th Cir. 2008) (unpublished) (“Under Rita . . .
failure to offer any reason whatsoever for rejecting the defendants’ § 3553(a)
arguments or any explanation for following the guidelines range constitutes
failure to consider the § 3553(a) factors.”). We have upheld sentences where the
court at least “acknowledged that § 3553(a) arguments had been made and
devoted a few words to rejecting them.” Mondragon–Santiago, 564 F.3d at 363.
Although a court must generally say more if it imposes a non-guidelines
sentence, it “need not engage in robotic incantations that each statutory factor
has been considered.”     Fraga, 704 F.3d at 439 (internal quotation marks
omitted). We have clarified, further, that “[e]rror does not necessarily result
when the district court’s reasons . . . are not clearly listed for our review.”
United States v. Bonilla, 524 F.3d 647, 657 (5th Cir. 2008). We focus on the
district court’s statements in the context of the sentencing proceeding as a
whole. See id. Ours, therefore, is a pragmatic, totality-of-the-circumstances




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review into whether the district court evaluated the parties’ sentencing
arguments and rooted its sentence in permissible sentencing factors.
      In this case, we find the district court sufficiently discharged its obligation
under § 3553(c). To begin with, it explained that it had reviewed all the relevant
materials and recounted Diaz Sanchez’s principal arguments for a departure or
a variance. On two occasions, the court emphasized that it adopted the PSR and
its addenda, which themselves examine those arguments. It then critically
engaged the positions of both defense and government counsel, emphasizing
Diaz Sanchez’s criminal history. After announcing sentence, the district court
entertained defense counsel’s objection and even offered to “reset” the sentencing
at defense counsel’s election.    Diaz Sanchez does not dispute that all his
arguments were asserted and heard. The government, meanwhile, pressed for
a middle-to-upper guidelines-range sentence, emphasizing Diaz Sanchez’s
criminal history and arguing the court should reject Diaz Sanchez’s reliance on
the abuse he suffered in El Salvador.          After considering that extensive
argument, the district court chose to impose a forty-six month sentence, between
the defendant’s and the government’s suggested results. The choice of sentence
also indicates relative, responsive leniency, as the district court selected a
sentence at the low end of the guidelines range and recommended Diaz Sanchez
be incarcerated near to his family. In this case, we readily find that the district
court weighed Diaz Sanchez’s argument for a below-guidelines sentence, but, in
light of the totality of the factors, the court found the defense’s points only
persuasive enough to warrant a sentence at the guidelines range’s low end. We
find the district court committed no procedural error.




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       II.    Substantive Unreasonableness
       Diaz Sanchez argues his sentence is substantively unreasonable because
it does not sufficiently account for the mitigating factors in his case. We conduct
a substantive reasonableness analysis by examining the totality of the
circumstances under an abuse of discretion standard.                    United States v.
Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011). Our review is “highly deferential,
because the sentencing court is in a better position to find facts and judge their
import under the § 3553(a) factors with respect to a particular defendant.”
Fraga, 704 F.3d at 439 (internal quotation marks omitted); see Gall, 552 U.S. at
51 (“The fact that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of the
district court.”). Sentences within a properly-calculated guidelines range enjoy
a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006).1 “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
       Diaz Sanchez argues his sentence is unreasonable in failing to reflect that
he faced severe hardship in El Salvador, desired to return to the United States
to support his family, earned a sixteen-level, offense level enhancement for a
remote, 2002 conviction for aggravated assault, and would serve, in his forty-


       1
          Diaz Sanchez preserves for further review the argument that the guideline on which
his sentence is based, U.S.S.G. § 2L1.2, is not owed a presumption of reasonableness because
it is not founded on empirical evidence or study, acknowledging that our precedent forecloses
the challenge. See Rodriguez, 660 F.3d at 232–33.

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month term of imprisonment, more time in prison than he did for any of his prior
offenses. As described, however, the district court considered those arguments,
prior to and during sentencing. We perceive no abuse of discretion in the district
court’s conclusion that a bottom-of-the-guidelines sentence was appropriate in
light of the concerns Diaz Sanchez and the government raised. See Cooks, 589
F.3d at 186.      We do not find Diaz Sanchez’s sentence substantively
unreasonable.
                                CONCLUSION
      Concluding the sentence is neither procedurally nor substantively
unreasonable, we AFFIRM.




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