United States v. Gustavo Perez-Paz
3 F.4th 120
| 4th Cir. | 2021Background
- Defendant Gustavo Perez-Paz, a Honduran national, previously convicted of California drug felonies (1990, 1993), was removed in 1995, reentered illegally, convicted of various state offenses, removed again in 2013 after a 2012 federal illegal-reentry conviction, and then illegally reentered a second time leading to the 2018 indictment.
- Indicted in 2018 for illegal reentry after deportation following an aggravated felony conviction under 8 U.S.C. § 1326(a), (b)(2); he pleaded guilty without a plea agreement.
- The PSR set a Guidelines range of 18–24 months (Criminal History Category III); the government sought an upward variance arguing the CHC understated his criminal history; the district court sentenced Perez-Paz to 42 months.
- Perez-Paz raised two constitutional challenges to § 1326: (1) that reliance on an administrative removal order as an element shifts factfinding away from a jury (Sixth Amendment); and (2) that incorporating an executive discretionary removal decision violates due process (Fifth Amendment).
- Perez-Paz also argued the sentence was procedurally unreasonable because the district court failed to address several non-frivolous mitigation arguments (notably that two decades-old drug convictions were stale and the sentencing-disparity statistics).
- The Fourth Circuit affirmed § 1326 as constitutional (relying on Mendoza-Lopez and § 1326(d) judicial-review protections) but vacated and remanded for resentencing because the district court failed to address two non-frivolous mitigation arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1326 unconstitutionally shifts element-finding from a jury by relying on an administrative removal order | Perez-Paz: § 1326 effectively incorporates underlying removal facts decided administratively, depriving jury of elements | Government: § 1326 does not incorporate the facts supporting the removal order; Mendoza-Lopez controls | Rejected — § 1326 does not incorporate underlying removal facts; jury-right claim fails under Mendoza-Lopez and Apprendi framework |
| Whether § 1326 violates due process by basing criminality on an executive discretionary removal decision | Perez-Paz: relying on discretionary administrative decisions to establish criminal liability violates due process | Government: statutory collateral-review protections (§ 1326(d)) and Mendoza-Lopez ensure meaningful judicial review, curing due-process concerns | Rejected — availability of judicial review (§ 1326(d)) protects against unfettered executive discretion; due-process claim fails |
| Whether the sentence was procedurally unreasonable for failing to address argument that two 28- and 30-year-old drug convictions were stale and properly excluded from CHC | Perez-Paz: the district court ignored a non-frivolous stale-conviction argument and improperly relied on his full criminal history | Government: court adequately considered criminal history and rejected mitigation | Held for Perez-Paz — court failed to acknowledge or explain rejection of the stale-conviction argument; procedural error requiring remand |
| Whether the sentence was procedurally unreasonable for failing to consider sentencing-disparity statistics showing most comparable defendants received below-range sentences | Perez-Paz: disparity data warranted consideration and rebutted an above-range variance | Government: the court’s remarks and exchange show the court implicitly rejected the argument | Held for Perez-Paz — district court did not meaningfully engage or explain why it rejected the disparity argument; procedural error requiring remand |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (jury must find beyond a reasonable doubt any fact that increases penalty for a crime beyond statutory maximum)
- United States v. Mendoza-Lopez, 481 U.S. 828 (U.S. 1987) (under § 1326, defendants may collaterally attack removal orders that were fundamentally unfair; administrative findings are not automatically incorporated as elements)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (standard for appellate review of sentencing reasonableness)
- United States v. Carter, 564 F.3d 325 (4th Cir. 2009) (district court must provide an individualized assessment; appellate court may not guess district court’s rationale)
- United States v. Ross, 912 F.3d 740 (4th Cir. 2019) (district courts must address or consider all non-frivolous reasons presented for a different sentence)
- United States v. Webb, 965 F.3d 262 (4th Cir. 2020) (procedural-reasonableness error where court failed to acknowledge non-frivolous mitigation)
- United States v. Moreno-Tapia, 848 F.3d 162 (4th Cir. 2017) (§ 1326(d) codifies Mendoza-Lopez’s judicial-review protections)
- Class v. United States, 138 S. Ct. 798 (U.S. 2018) (a guilty plea does not bar a defendant from challenging the constitutionality of the statute of conviction on direct appeal)