United States v. Jose Gerezano-Rosales
2012 U.S. App. LEXIS 18151
| 5th Cir. | 2012Background
- Gerezano pleaded guilty to illegal reentry under 8 U.S.C. §§ 1326(a) & (b).
- PSR calculated advisory Guidelines range 57–71 months; district court adopted.
- Initial sentence: 71 months, within the Guidelines range.
- Court later learned Gerezano could understand English; court questioned his allocution statements.
- Court sua sponte found “circumstances have changed” and increased sentence to 108 months to punish disrespect and promote respect for the law.
- Appeal challenges: (a) jurisdiction to modify during sentencing, (b) reasonableness of 71-month sentence, (c) reasonableness of 108-month non-Guidelines sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court lacked jurisdiction to modify sentence during sentencing | Gerezano argues initial 71-month sentence was binding. | Gerezano contends § 3582(c) limits modifications after imposition. | Court had jurisdiction to impose 108-month sentence after initial formulation. |
| Whether the 71-month sentence was substantively unreasonable | Gerezano claims improper consideration of uncharged conduct. | Court did not abuse discretion by considering uncharged conduct when Formulating 71-month sentence. | 71-month sentence was not substantively unreasonable. |
| Whether the 108-month non-Guidelines sentence was procedurally and substantively unreasonable | Sentence increased based on disrespectful conduct; no proper basis to depart from guidelines. | Court could justify variance under 3553(a) for respect for law and deterrence. | 108-month sentence was substantively unreasonable; vacated and remanded for resentencing. |
Key Cases Cited
- United States v. Meza, 620 F.3d 505 (5th Cir.2010) (initial sentence formulation not binding; jurisdiction not instantaneously stripped)
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir.2009) (preservation of sentencing challenges under certain circumstances)
- United States v. Rhine, 637 F.3d 525 (5th Cir.2011) (two-step reasonableness review (procedural then substantive))
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (reasonableness review; upholding factors for deviation from guidelines)
- United States v. Broussard, 669 F.3d 537 (5th Cir.2012) (variance balancing; clear error standard)
- United States v. Goldsmith, 192 F.App’x 261 (5th Cir.2006) (unpublished; cautionary on interpreting conduct as basis for variance)
- United States v. Bernal, 814 F.2d 175 (5th Cir.1987) (preservation of sentencing objections where futility would have resulted)
- United States v. Castillo, 430 F.3d 230 (5th Cir.2005) (plain error preservation where objection would have been futile)
- United States v. Hernandez-Martinez, 485 F.3d 270 (5th Cir.2007) (plain error standard for sentencing issues)
- United States v. Whitelaw, 580 F.3d 256 (5th Cir.2009) (open-ended open court statement requirements for reasons)
- United States v. Key, 599 F.3d 469 (5th Cir.2010) (deferential review of district court factual findings)