United States of America v. Raul Lopez-Reyes

NOT PRECEDENTIAL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 2, 2009)
OPINION
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

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Lopez-Reyes was arrested in October 2005 on a charge that was ultimately1
dismissed. It is unclear how long he had been in the United States prior to that arrest.
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deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). We will affirm.
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 United States. He1
settled in Atlantic City, New Jersey, where 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

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Lopez-Reyes concedes that “this issue is foreclosed by precedent . . . .” (Appellant’s2
Br. at 27 n.3.) We agree.
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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
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.
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

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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.
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 violence,”

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A “crime of violence” includes a state conviction for robbery. U.S.S.G. § 2L1.23
cmt. n.1(B)(iii). Lopez-Reyes does not dispute that he previously committed a robbery
offense. (App. at 84.)
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the offense level is increased by 16 levels. U.S.S.G. § 2L1.2.3
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

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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 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

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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 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).

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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

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that Lopez-Reyes had been deported on other occasions, and it inquired into his criminal
past. The Court also gave him credit where it was deserved:
Appellant’s Attorney: Lopez-Reyes did avail himself to a proffer session
related to activity he knew of coyotes taking people
across the border . . . it did not meet the level of
substantial assistance, but nonetheless he did avail
himself to 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 affirm.” Wise, 515 F.3d at 218.

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CONCLUSION
The judgment of sentence will be affirmed.

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