United States v. Ernesto Fuentes
2014 U.S. App. LEXIS 24068
| 5th Cir. | 2014Background
- Fuentes pleaded guilty to being found unlawfully present after deportation in the Southern District of Texas under 8 U.S.C. § 1326(a).
- The PSR started with base offense level 8 under § 2L1.2(a) and, after a two-level reduction for acceptance of responsibility, totaled 6.
- Fuentes’s criminal history scored nine points, placing him in Criminal History Category IV, with five prior misdemeanors.
- The PSR noted the possibility of an upward departure under § 2L1.2, cmt. n.7, due to the underlying seriousness of his prior convictions and the way charges were reduced.
- Fuentes objected, arguing the departure was improper because it relied on hypothetical or non-convicted conduct; Gutierrez-Hernandez had disapproved such departures.
- At sentencing, the district court adopted the PSR, found a range of 6–12 months, and then upwardly departed under § 2L1.2, cmt. n.7 to a new range of 57–71 months, but imposed the statutory maximum of 24 months due to the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the upward departure under § 2L1.2, cmt. n.7 was procedurally reasonable | Fuentes contends n.7 relies on convictions and uses hypothetical conduct. | Fuentes argues the district court erred by considering non-convicted or hypothetical prior conduct. | Procedurally reasonable; court allowed consideration of conduct underlying convictions. |
| Whether the sentence is substantively reasonable under 18 U.S.C. § 3553(a) | Fuentes claims the sentence overweights an improper factor and is too harsh. | Court weighed § 3553(a) factors and justified non-Guidelines sentence. | Sentence is substantively reasonable given totality of circumstances and departure basis. |
Key Cases Cited
- Gutierrez-Hernandez v. United States, 581 F.3d 251 (5th Cir. 2009) (upward departures based on § 2L1.2, cmt. n.7 and underlying conduct)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (reasonableness review includes procedural and substantive steps)
- Harris v. United States, 702 F.3d 226 (5th Cir. 2012) (PSR reliability and reliance on factual underpinnings at sentencing)
- Lopez-Velasquez v. United States, 526 F.3d 804 (5th Cir. 2008) (prior criminal conduct may be considered at sentencing; not bare arrests)
- United States v. Vela, 927 F.2d 197 (5th Cir. 1991) (PSR evidentiary basis and reliability for sentencing fact-finding)