United States v. Baldemar Carrillo, Jr.
696 F. App'x 167
5th Cir.2017Background
- Defendant Baldemar Carrillo, Jr. convicted of conspiracy to transport an undocumented alien; district court imposed an upward (above-Guidelines) sentence.
- Carrillo was on probation for aggravated sexual assault of his daughter at the time he committed the instant offense.
- The district court considered Carrillo’s criminal history, the recent probationary sentence, the timing of the offense (within two months of probation), and public-protection/deterrence concerns under 18 U.S.C. § 3553(a).
- Carrillo argued the district court gave undue weight to facts already accounted for in the Guidelines (his probationary status) and failed properly to weigh his intellectual limitations and history of sexual victimization.
- The district court adopted the presentence report (including the addendum noting Carrillo’s background) and articulated § 3553(a) factors to justify the variance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the upward-variance sentence is substantively unreasonable | Carrillo: district court abused discretion in balancing § 3553(a) factors and gave undue weight to probation for sexual-assault conviction | Government: district court reasonably relied on criminal history, probation status, and need to deter/protect public; facts in PSR were considered | Affirmed: court finds no abuse of discretion; sentence substantively reasonable |
| Whether relying on facts already considered by the Guidelines is improper when imposing an upward variance | Carrillo: court double-counted probationary status already reflected in Guidelines | Government: district court may rely on factors already accounted for in Guidelines when explaining a non-Guidelines sentence | Rejected Carrillo’s claim; reliance on such factors is permissible |
| Whether court failed to consider defendant’s personal characteristics (intellectual limits, victimization) | Carrillo: these mitigating characteristics were not adequately weighed | Government: those facts were in the PSR addendum adopted by the court | Court held the characteristics were before the court and considered |
| Whether the extent of the upward variance was excessive compared to precedent | Carrillo: variance was greater than appropriate | Government: similar or greater variances have been affirmed based on criminal history and risk | Court found variance within bounds of precedent and not an error |
Key Cases Cited
- United States v. Brantley, 537 F.3d 347 (5th Cir. 2008) (abuse-of-discretion standard for substantive reasonableness review)
- United States v. Smith, 440 F.3d 704 (5th Cir. 2006) (non-Guidelines sentence unreasonable if it fails to account for or gives weight to improper factors or is clear error in balancing § 3553(a))
- United States v. Key, 599 F.3d 469 (5th Cir. 2010) (district court may rely on factors already considered by the Guidelines when imposing a non-Guidelines sentence)
- United States v. Moreno Molina, [citation="433 F. App'x 304"] (5th Cir. 2011) (affirming significant upward departure based on repeated criminal history)