United States of America v. Raul Lopez-Reyes

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1243
UNITED STATES OF AMERICA
v.
RAUL LOPEZ-REYES,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 08-cr-00277-001)
District Judge: Honorable Renee M. Bumb
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
(Opinion Filed: December 02, 2009)
Christopher H. O'Malley, Esq.
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102-0000
Counsel for Appellant

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George S. Leone, Esq.
John F. Romano, Esq.
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102-0000.
Counsel for Appellee
OPINION OF THE COURT
BARRY, Circuit Judge
Appellant Raul Lopez-Reyes appeals his 46 month prison
sentence, which was imposed after he pled guilty to illegally
reentering the United States following deportation, in violation
of 8 U.S.C. § 1326(a) and (b)(2). We will affirm.
I. BACKGROUND
Lopez-Reyes is a native and citizen of Mexico who, three times,
entered the United States in an effort to secure employment so
that he could financially support his family members living in
Mexico. On December 16, 1994, shortly after his first entry into
the United States, Lopez-Reyes pled guilty to robbery charges in
New Jersey Superior Court and received a ten year prison
sentence. He was deported on June 4, 1997. Less than four
years later, on February 21, 2001, Lopez-Reyes again entered the
United States, this time by way of the Rio Grande River. He was
apprehended two days later at a Texas airport and subsequently
deported after spending one day in prison.
Sometime before October 2005, Lopez-Reyes returned to the

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Lopez-Reyes was arrested in October 2005 on a charge1
that was ultimately dismissed. It is unclear how long he had been
in the United States prior to that arrest.
Lopez-Reyes concedes that “this issue is foreclosed by2
precedent . . . .” (Appellant’s Br. at 27 n.3.) We agree.
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United States. He settled in Atlantic City, New Jersey, where1
he worked at a restaurant. On December 9, 2007, he was pulled
over for a routine traffic stop, but after the police officers
smelled marijuana emanating from the vehicle and Lopez-Reyes
produced a fraudulent driver’s license, he was arrested. While in
custody, he disclosed his illegal status.
Lopez-Reyes was charged with illegally re-entering the United
States subsequent to a conviction for the commission of an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2),
and he pled guilty on August 11, 2008. With a total offense
level of 21 (including a 16 level increase for the deportation
following his state robbery conviction) and a criminal history
category of III, the applicable Guidelines range was 46-57
months’ imprisonment. At the sentencing hearing on January 8,
2009, the District Court imposed a sentence of 46 months’
imprisonment and three years of supervised release.
Lopez-Reyes timely appealed. He argues: (1) the District Court
misapprehended its authority to categorically vary from the
Guidelines range based solely on a policy disagreement with
U.S.S.G. § 2L1.2; (2) his sentence is substantively unreasonable
because the 16 level increase pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(ii) overstates the gravity of the offense; and (3)
the “felony” and “aggravated felony” provisions of 8 U.S.C. §
1326(b)(1)-(2) are unconstitutional.2
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18 U.S.C. §
3121, and we have appellate jurisdiction pursuant to 18 U.S.C. §
3742(a) and 28 U.S.C. § 1291.

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Sentencing courts must engage in a three-step analysis to
determine the appropriate sentence to impose on a defendant.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The
process begins by “correctly calculating the applicable Guidelines
range.” United States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008).
Of course, the Guidelines are only advisory, but they nonetheless
provide the “initial benchmark.” Gall v. United States, 552 U.S.
38, 39 (2007). Next, the sentencing court must “formally rule on
the motions of both parties and state on the record whether [it is]
granting a departure and how that departure affects the Guidelines
calculation . . . .” Wise, 515 F.3d at 216 (quoting Gunter, 462 F.3d
at 247). At the final step, the court is “required to exercise [its]
discretion by considering the relevant § 3553(a) factors in setting
the sentence [it] impose[s] regardless of whether it varies from the
sentence calculated under the Guidelines.” Gunter, 462 F.3d at
247 (internal citations omitted).
When reviewing a sentence on appeal, we first make certain
that the sentencing court did not commit a serious procedural error,
“such as failing to calculate (or improperly calculating) the
Guidelines range [or] treating the Guidelines as mandatory. . . .”
Gall, 552 U.S. at 51. We then “review the substantive
reasonableness of the sentence under an abuse-of-discretion
standard,” while keeping in mind that “[a]s long as a sentence falls
within the broad range of possible sentences that can be considered
reasonable in light of the 3553(a) factors, we must affirm.” Wise,
515 F.3d at 218.
III. DISCUSSION
A. Application of U.S.S.G. § 2L1.2
Pursuant to U.S.S.G. § 2L1.2, a defendant convicted of
unlawfully entering the United States is given a base offense level
of 8. In those instances where the defendant was previously
deported after “a conviction for a felony that is . . . a crime of

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A “crime of violence” includes a state conviction for3
robbery. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Lopez-Reyes does not
dispute that he previously committed a robbery offense. (App. at
84.)
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violence,” the offense level is increased by 16 levels. U.S.S.G. §3
2L1.2.
Lopez-Reyes argues that the District Court “fundamentally
misapprehended its authority to vary from the application of §
2L1.2 in this case based on the fact that the Guidelines range
produced was too high to accomplish the purposes of sentencing
set forth in 18 U.S.C. § 3353(a).” (Appellant’s Br. at 11-12.) He
argues that § 2L1.2 is unreasonable, and that the Court “engaged
in no independent analysis of [his] arguments regarding the
problems with § 2L1.2, including that it was enacted by the
Sentencing Commission with little deliberation and no empirical
justification.” (Id. at 15.)
Lopez-Reyes turns to Kimbrough v. United States, 552 U.S.
85 (2007), to support his argument that a court may disregard the
Guidelines range based on a policy disagreement. As this Court
has made clear, however, Kimbrough does not require a district
court to reject a particular Guidelines range where that court does
not, in fact, have disagreement with the Guideline at issue. United
States v. Arrelucea-Zamudio, __ F.3d __, 2009 WL 2914495, at *6
(3d Cir. Sept. 14, 2009); Gunter, 462 F.3d at 249 (“[T]he District
Court is under no obligation to impose a sentence below the
applicable Guidelines range solely on the basis of the crack/powder
cocaine differential.”) (emphasis added). Furthermore, a district
court is not required to engage in “independent analysis” of the
empirical justifications and deliberative undertakings that led to a
particular Guideline. See United States v. Aguilar-Huerta, 576
F.3d 365, __ (7th Cir. 2009) (“[A judge] should not have to delve
into the history of a guideline so that he can satisfy himself that the
process that produced it was adequate to produce a good
guideline.”); United States v. Duarte, 569 F.3d 528, 530 (5th Cir.
2009) (“Kimbrough does not force district or appellate courts into
a piece-by-piece analysis of the empirical grounding behind each

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part of the sentencing guidelines.”).
At his sentencing hearing, Lopez-Reyes argued that the
Guidelines range (in particular, the 16 level increase) “is
disproportionate and it is not supported through case law as cited
through any type of empirical data or rational basis showing the
need for a 16 point enhancement that my client has suffered.”
(App. at 73.) The District Court gave him a full opportunity to
explain why the relevant Guideline was unreasonable, both in
general and as it applied to his specific case. Having heard from
both parties, the Court noted that “the guidelines represent the
institutional authority of the Commission and Congress.” (Id. at
77.) Although the Court stated that “a court’s determination [that]
a guideline sentence does not satisfy the goals of sentencing in an
ordinary case would be subject to close review,” it was also explicit
that the Guidelines “are no longer mandatory and the Court should
use them in an advisory fashion.” (Id. at 77, 80.) It then explained
that “the Sentencing Commission and Congress have determined
[that this provision] meets the goals of sentencing.” (Id. at 80.)
Finding “nothing before this Court to suggest to the contrary,” the
Court declined to depart from the “advisory guideline range.” (Id.
at 80-81.) Thus, it is apparent that the Court was aware of the
discretionary nature of the Guidelines and its authority to impose
a sentence outside of the prescribed range. It had no obligation to
exercise that discretion in favor of Lopez-Reyes.
B. Reasonableness of Lopez-Reyes’ Sentence
Lopez-Reyes next argues that his 46 month sentence is
“substantively unreasonable because the 16-level enhancement in
§ 2L1.2 severely overstated the gravity of his illegal reentry
offense.” (Appellant’s Br. at 18.) In particular, he argues that §
2L1.2 imposes a base offense level that is equal to or greater than
the level applied to those convicted of violent felonies, that it
“unfairly counts criminal history twice,” and that it overstates a
defendant’s potential for dangerousness and risk of recidivism. (Id.
at 18-20.)
“If we determine that the district court has committed no
significant procedural error, we then review the substantive

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reasonableness of the sentence under an abuse-of-discretion
standard, regardless of whether it falls within the Guidelines
range.” Wise, 515 F.3d at 218; see Gall, 552 U.S. at 50. District
courts are required to consider the § 3553(a) factors as they apply
to a particular defendant, and on appeal, the standard of review is
deferential. We will affirm the sentence imposed “unless no
reasonable sentencing court would have imposed the same sentence
on that particular defendant for the reasons the district court
provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.
2009) (en banc).
The applicable Guidelines range here is not rendered
unreasonable simply because § 2L1.2 establishes a base offense
level for a nonviolent offense that is equal to or greater than that of
certain violent offenses. Congress “has the power to define a crime
and set its punishments.” See United States v. MacEwan, 445 F.3d
237, 252 (3d Cir. 2006). Furthermore, with respect to Lopez-
Reyes’ “double counting” argument, we have “recognized that the
Guidelines explicitly note when double counting is forbidden.”
United States v. Fisher, 502 F.3d 293, 309 (3d Cir. 2007); see also
U.S.S.G. § 2L1.2 cmt. n.6 (“A conviction taken into account under
subsection (b)(1) is not excluded from consideration of whether
that conviction receives criminal history points . . . .”); United
States v. Ruiz-Terrazas, 477 F.3d 1196, 1999 (10th Cir. 2007)
(“[W]e have routinely upheld as reasonable the use of prior
convictions to calculate both the criminal history category and a
sentence enhancement where . . . the Guidelines authorize it.”).
Lopez-Reyes’ claim that the sentence he received resulted from a
Guideline that misjudged his potential for dangerousness and risk
of recidivism is equally without merit.
Lopez-Reyes argues next that given his “acceptance of
responsibility for his actions, sympathetic reasons for reentering the
United States, steady work history while in the United States and
a relative [sic] moderate criminal history, it would appear that the
statutory directives contained in Section 3353(a) would have been
better served by a below-Guidelines sentence.” (Appellant’s Br. at
26.) (citation omitted). The District Court considered these factors,
but it did not share Lopez-Reyes’ conclusion. It noted that Lopez-
Reyes had been deported on other occasions, and it inquired into

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his criminal past. The Court also gave him credit where it was
deserved:
Appellant’s Attorney: Lopez-Reyes did avail
himself to a proffer
se ssio n rela te d to
activity he knew of
coyotes taking people
across the border . . . it
did not meet the level of
substantial assistance,
but nonetheless he did
a v a i l h i m s e l f t o
cooperate.
District Court: You are getting good
grades.
Appellant: Thank You.
District Court: You think you could do
a little better than a
hundred?
Appellant: Yes. I tried to behave
well and to help out in
church and help other
people.
District Court: Well, you’ve done well.
(App. at 84-85.) Nonetheless, the Court noted that however good
Lopez-Reyes’ motives for reentering the United States were, he
broke the law and illegally entered three times. It stated that his
sentence was intended to deter him specifically, as well as provide
general deterrence to others, and it concluded that the sentence
“will promote respect for the law and will be an opportunity for the
defendant to continue the educational training that he has received
that he thus far as [sic] has done well at.” (Id. at 90-91.) With that,
it rejected the government’s call for a sentence in the middle of the
Guidelines range, and instead sentenced Lopez-Reyes to 46
months’ imprisonment – the bottom of the range – followed by a
term of supervised release for three years. Because this sentence
“falls within the broad range of possible sentences that can be
considered reasonable in light of the § 3553(a) factors, we must

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affirm.” Wise, 515 F.3d at 218.
IV. CONCLUSION
The judgment of sentence will be affirmed.

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