United States of America v. Denis Calderon-Minchola

Honorable Eugene E. Siler, Jr., Senior Judge of the United States Court of Appeals for*
the Sixth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3972
UNITED STATES OF AMERICA
v.
DENIS CALDERON-MINCHOLA,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 06-cr-00309)
District Court: Honorable Christopher C. Conner
Argued October 30, 2008
Before: McKee, Nygaard, and Siler, Circuit Judges*
(Opinion filed: November 6, 2009)
OPINION

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Daryl F. Bloom, Esq.
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-0000
Attorney for Appellee
Guillermo L. Bosch, Esq.
109 Hanover Street
New Oxford, PA 17350-1605
Attorney for Appellant
McKEE, Circuit Judge
Denis Segundo Calderon-Minchola was convicted by a jury of one count of willful
failure and refusal to make a timely application in good faith for documents necessary to
remove him from the United States pursuant to a final order of removal, in violation of 8
U.S.C. § 1253(a)(1)(B). He now appeals the sentence of 60 months of imprisonment that
was imposed for that conviction. Because we conclude that the record does not establish
the reasonableness of the sentence, we will vacate the sentence and remand for
resentencing consistent with this opinion.
I.
We have jurisdiction over Calderon-Minchola’s challenge to the reasonableness of
his sentence pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291. See United States
v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). However, we have no jurisdiction to
review his claim that the district court erred in not granting a downward departure under
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) §4A3.1(b). See United

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Calderon-Minchola’s habeas petition was dismissed by the district court as untimely on1
June 14, 2007. His subsequent appeal to our Court was denied on October 12, 2007, nine days
after his sentencing for refusal to sign his travel documents. We also rejected his petition to
review the order for removal from the Board of Immigration Appeals (“BIA”) on December 12,
2007.
Previously, the BIA issued the order dismissing his appeal and denying his motion to
defer judgment pending his federal litigation on May 17, 2006. An order of removal made by the
immigration judge at the conclusion of proceeding under Section 240 of the Act becomes final
upon dismissal of an appeal by the BIA. See 8 U.S.C. § 1101(a)(47)(B); see also 8 C.F.R. §
1241.1.
3
States v. Powell, 268 F.3d 175, 179 (3d Cir. 2001)(“[I]f the court chose to [deny
downward departure] as an exercise of discretion, we have no jurisdiction to review its
decision.”) (citing United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir.1989)). The
record here clearly establishes that the district court understood that it had discretion to
grant the requested departure, but refused to exercise that discretion. See App. at 441.
Thus, we will only review Calderon-Minchola’s claim that his sentence was unreasonable
under 18 U.S.C. § 3553(a).
II.
Inasmuch as we write primarily for the parties who are familiar with the factual
and procedural history of this case, we will set forth only those facts necessary to our
brief discussion.
On April 3, 2007, Calderon-Minchola was convicted of failure to cooperate with
deportation proceedings brought against him for violation of 8 U.S.C. § 1253(a)(1)(B).
That prosecution was based on his refusal to sign deportation documents while his federal
habeas petition was pending in the Eastern District of Pennsylvania. As detailed in the1

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Presentence Investigation Report (“PSR”), the probation office calculated a recommended
sentencing range under the Guidelines of 77 to 96 months of imprisonment. That was
based on Calderon-Minchola’s total offense level of 24 and criminal history category of
IV.
Our review focuses on the third step of the sentencing process under United States
v. Gunter, 462 F.3d 237 (3d Cir. 2006). In Gunter, we explained that a sentencing court
must properly calculate the sentencing range suggested by the Guidelines, rule on any
motions for upward or downward departure, and then undertake a meaningful
consideration of all of the factors mandated by § 3553(a). See id. at 247.
Section 3553(a) requires sentencing courts to consider several factors, including
the nature and circumstances of the offense; the history and characteristics of the
defendant; the need for the sentence imposed; the kinds of sentences available; and the
advisory range and policies of the Guidelines. In considering these factors, the
sentencing court “should set forth enough to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis for exercising his own legal
decision making authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
Here, the district court primarily expressed a concern for the likelihood of
recidivism based on the defendant’s prior contact with the criminal justice system. See
App. at 460. However, according to testimony offered by an Immigration Customs

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Enforcement Agent during the two-day trial, Calderon-Minchola would have been
deported to Peru within thirty days of the removal order. See App. at 179, Trial Tr. 124-
25, Apr. 2, 2007. Therefore, to the extent that considerations of recidivism might have
otherwise been relevant, they were greatly attenuated here.
As we noted above, we lack jurisdiction to review the district court’s refusal to
grant the downward departure that Calderon-Minchola requested based on his contention
that his criminal history points exaggerated his prior record. We also note that the
sentencing court was particularly attentive in listening to the very eloquent pleas that
defense counsel made on his client’s behalf at sentencing. Notwithstanding the district
court’s statement that “a variance of 17 months below the low end of the guideline range
is sufficient [to meet the objectives of sentencing] and not greater than necessary to
achieve sentencing objectives,” N.T., 10/5/07, at 340, we can not conclude, given the
totality of circumstances here, that a sentence of 5 years imprisonment is “not greater than
necessary.” 18 U.S.C. § 3553(a).
Section 3553(a) clearly states that a court must impose a sentence that is
“sufficient but not greater than necessary, to comply with the purposes of [sentencing].”
In United States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009), we explained that this concept
has been referred to as the “principle of parsimony” and that the Supreme Court has
emphasized that it is the overarching instruction of 18 U.S.C. § 3553(a). Id. at 548 (citing
Kimbrough v. United States, 552 U.S. 85 (2007)). That principle is particularly important

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here because nothing on this record suggests that a shorter period of incarceration would
not have adequately addressed each of the § 3553(a) factors.
Although the sentencing court “note[d] that the defendant has a criminal history
dating back to 1987,” N.T., 10/5/07, at 339, the offense referenced was retail theft of
sunglasses valued at less than twenty dollars when Calderon-Minchola was 19 years old.
Moreover, the court did not explain why a 5 year incarcerative sentence was necessary
given the defendant’s noteworthy involvement with his family, his consistent and
protracted history of employment, his continuous pursuit of education, and his pending
removal to Peru. We understand and appreciate the sentencing court’s concern that
Calderon-Minchola had been convicted of aggravated assault, and we are not
unsympathetic to concerns about the potential for recidivism that is often a consideration
in sentencing proceedings. However, it is undisputed that Calderon-Minchola was to be
deported to Peru. The court’s concerns that Calderon-Minchola might reoffend were
therefore inconsistent with the reality facing Calderon-Minchola at the end of his
incarceration. We therefore can not conclude that a period of incarceration of 5 years was
necessary or appropriate under § 3553(a). Accordingly, on this record, we are unable to
conclude that the sentence that was imposed was reasonable.
We realize that the final sentence is less than the sentence recommended under the
Sentencing Guidelines. However, the recommended Guideline range is only one of
several factors that must be considered. We have declined “to adopt a rebuttable

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presumption of reasonableness for within-guidelines sentences.” Cooper, 437 F.3d at
331-32. We will therefore not presume that a sentence that is less than the Guideline
range is necessarily the minimum sentence that is consistent with the sentencing factors in
§ 3553(a). Allowing such a presumption to control our assessment of the compliance
with the principle of parsimony would elevate the Guidelines above all of the other §
3553(a) factors that must considered at sentencing.
III.
For the reasons stated above, we will vacate the judgment of the district court and
remand for resentencing.
SILER, Circuit Judge dissenting.
With all due respect to my colleagues, I respectfully dissent. In my opinion, when the
district court considered all of the factors under 18 U.S.C. § 3553(a), and departed below the
Guidelines range for 17 months, the court complied with the sentencing discretion under Gall v.
United States, 552 U.S. 38, 128 S. Ct. 586 (2007).
I agree that the Guidelines range for this offense appears to be unduly harsh for such
conduct by Calderon-Minchola. Moreover, had I been the district judge in the case, I might very
well have rendered a different sentence. However, “[t]he fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Id. at ___, 128 S. Ct. at 597.

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As the majority declares, we have not adopted a rebuttable presumption of reasonableness
for within-Guidelines sentences. See United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.
2006). The majority goes on to say that a sentence below the Guidelines range also does not
have a presumption of reasonableness. Nevertheless, I would follow the decision in United
States v. Tomko, 562 F.3d 558, 573-74 (3d Cir. 2009) (en banc), where this court found a
downward variance from a Guidelines range of 12 to 18 months to probation and home
detention was not an unreasonable sentence. Therefore, in this case, I would likewise find that
the variance of 17 months below the Guidelines range was not unreasonable.

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