United States v. Raymundo Garibay
698 F. App'x 176
| 5th Cir. | 2017Background
- Defendant Raymundo Gonzalez Garibay was convicted of illegal reentry under 8 U.S.C. § 1326 and sentenced to 78 months (top of the Guidelines range).
- He appealed, arguing (1) a due-process defect: the indictment did not allege a prior conviction necessary for the enhanced sentencing exposure, so his sentence exceeded the § 1326(a) two-year maximum; and (2) substantive unreasonableness: the district court failed to adequately weigh his cultural assimilation as a mitigating factor.
- He did not raise the due-process argument in the district court; appellate review of that claim is therefore for plain error.
- Gonzalez Garibay conceded Almendarez-Torres controls the due-process issue but sought to preserve it for Supreme Court review.
- The district court calculated a within-Guidelines sentence, considered the 18 U.S.C. § 3553(a) factors, and expressly considered but rejected a downward variance based on cultural assimilation, emphasizing his significant criminal history (including violent offenses).
- He also filed a pro se motion asking to relieve appointed counsel, asserting abandonment and conflict; the court treated this as a request for hybrid or pro se representation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due-process: sentencing enhancement must be alleged in indictment | Gonzalez Garibay: indictment lacked allegation of prior conviction that triggers enhanced statutory maximum, so sentence exceeded § 1326(a) two-year cap | Government: Almendarez-Torres permits prior-conviction fact to be treated as sentencing fact; appellant concedes that precedent controls | No plain-error relief; Almendarez-Torres forecloses the claim and appellant preserved issue only for possible Supreme Court review |
| Substantive reasonableness of within-Guidelines sentence | Gonzalez Garibay: district court failed to give adequate weight to cultural assimilation as mitigating factor | Government: court properly weighed § 3553(a) factors and defendant's serious criminal history; cultural assimilation is discretionary and not entitled to equal weight | Sentence is substantively reasonable; presumption of reasonableness for a properly calculated within-Guidelines sentence not rebutted |
| Appropriateness of downward departure/variance for cultural assimilation | Gonzalez Garibay: cultural assimilation warranted a reduced sentence | Government: departure is discretionary and may be inappropriate if it increases public risk; court considered and rejected the downward variance | No abuse of discretion; district court permissibly declined a downward departure given criminal history and public-safety concerns |
| Right to hybrid or pro se representation on appeal | Gonzalez Garibay: pro se motion to relieve counsel due to abandonment/conflict | Government: defendant is represented by appointed counsel; hybrid representation is not allowed and motion is untimely after counsel’s brief | Pro se motion denied; hybrid representation disallowed and request to proceed pro se untimely once counsel’s appellate brief filed |
Key Cases Cited
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior-conviction enhancement permissible as sentencing fact)
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir.) (plain-error review for unpreserved challenges)
- United States v. Delgado-Martinez, 564 F.3d 750 (5th Cir.) (abuse-of-discretion standard for substantive-reasonableness review)
- United States v. Castillo, 386 F.3d 632 (5th Cir.) (cultural assimilation can justify downward departure but is discretionary)
- United States v. Cooks, 589 F.3d 173 (5th Cir.) (presumption of reasonableness for within-Guidelines sentences)
- United States v. Ogbonna, 184 F.3d 447 (5th Cir.) (defendant represented by counsel may not pursue hybrid representation)
- United States v. Wagner, 158 F.3d 901 (5th Cir.) (motion to proceed pro se is untimely after counsel’s withdrawal or appellate brief)