Professional Documents
Culture Documents
November 1, 2006
Elisabeth A. Shumaker
Clerk of Court
No. 06-2155
v.
Defendant - Appellant .
O R D E R A N D JU D G M E N T *
After examining the briefs and appellate record, this panel has determ ined
unanim ously that oral argum ent would not m aterially assist in the determ ination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered subm itted without oral argum ent.
Defendant/appellant Jesus M anuel M olina-Rascon pled guilty to one count
of illegal reentry into the United States following deportation after conviction for
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
On November 20, 2005, M olina-Rascon was arrested by United States
Border Patrol agents in H idalgo County, New M exico. He adm itted that he w as a
M exican citizen, and further investigation revealed that he had been deported
twice previously, on Novem ber 4, 1996, and on M arch 18, 2003. Authorities also
discovered that, prior to his first deportation, M olina-Rascon had been convicted
in Texas of burglary of a habitation with intent to comm it sexual assault, an
aggravated felony.
In preparation for sentencing under the United States Sentencing
Com m ission, Guidelines M anual (USSG ) (2005), the United States Probation
office prepared a presentence report (PSR). The PSR calculated M olinaRascons base offense level as eight, pursuant to USSG 2L1.2(a). It then added
a sixteen-level upward adjustm ent, pursuant to USSG 2L1.2(b)(1)(A)(ii), based
upon M olina-Rascons 1996 conviction for residential burglary. A three-level
reduction for acceptance of responsibility led to a total adjusted offense level of
twenty-one. The PSR calculated M olina-Rascons criminal history as category
IV, based upon the 1996 residential burglary conviction, a 2000 misdemeanor
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conviction for possession of m arijuana, and a 2000 illegal reentry conviction, for
which he was on supervised release when he was arrested on the instant offense.
A total adjusted offense level of twenty-one w ith a crim inal history category IV
yielded an advisory Guideline range of fifty-seven to seventy-one m onths.
M olina-Rascon objected to the PSR, on the ground that his crim inal history
category over-represented the seriousness of his prior offenses and his crim inal
background. He also filed a motion for a downward departure on the ground that
his crim inal history was over-represented. W ith respect to the residential
burglary conviction, M olina-Rascon argued that the residence involved w as a
trailer house that w as not som eones hom e but a place w here aliens and som e
drug addicts would sleep. M ot. for D ownward Departure at 2, doc. 15, R. Vol. I.
He further argued he had defenses to that charge which were not presented. W ith
respect to the marijuana possession conviction, he argues he was without counsel
and, had he had counsel, his attorney m ight have told him that there are
im m igration consequences before the defendant pled guilty to the possession
charge. Addendum to PSR at 1, R. Vol. II. W ith respect to the reentry
conviction, for which he was on supervised release when he was arrested on the
instant offense, a fact which added two crim inal history points, M olina-Rascon
argues that supervised release had ended before he was sentenced in this case. H e
accordingly requested that the district court depart downward from the crim inal
history category IV calculated in the PSR, and instead apply criminal history
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D ISC U SSIO N
Since the Suprem e Courts decision in United States v. Booker, 543 U.S.
220 (2005), w e review district court sentencing decisions for reasonableness.
Id. at 262. Reasonableness has both procedural and substantive components.
United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). Thus, in assessing the
reasonableness of a sentence, [w ]e consider w hether the district court correctly
applied the Guidelines and whether the ultim ate sentence is reasonable in light of
the factors set forth in 18 U.S.C. 3553(a). United States v. Sanchez-Juarez,
446 F.3d 1109, 1114 (10th Cir. 2006). M olina-Rascon argues his sentence was
both procedurally and substantively unreasonable.
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W e note that there is some confusion creeping into our case law
concerning what arguments can satisfy the requirement that a defendant make a
non-frivolous argument that the 3553(a) factors warrant a below-guideline
sentence.
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C O N C L U SIO N
For the foregoing reasons, we AFFIRM the sentence im posed in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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