United States v. Vasquez-Alcarez
2011 U.S. App. LEXIS 14221
| 10th Cir. | 2011Background
- Vasquez-Alcarez pleaded guilty to illegal reentry after deportation following an aggravated-felony conviction.
- He previously was convicted in 1995 of cocaine trafficking and deported, later committing DUI (2000) and a 2009 state misdemeanor assault.
- PSR assigned 2 criminal history points (DUI 2000 and 2009 assault) and 0 for the 1995 cocaine conviction due to stale timing, yielding Criminal History II.
- Offense level calculated as 8 base plus a 12-level enhancement for the prior cocaine conviction and a 3-level acceptance-of-responsibility adjustment, totaling level 17.
- Guidelines range: 27–33 months; District Court sentenced Vasquez-Alcarez to 27 months after considering 3553(a) factors.
- During appeal, Vasquez-Alcarez argued the court over-relied on the stale 1995 conviction and that an amendment proposed later by the Sentencing Commission would reduce the enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stale conviction argument was preserved or forfeited. | Vasquez-Alcarez did not waive but preserved the argument. | Court should consider the stale-conviction issue on the merits. | No reversible error; either plain-error or abuse-of-discretion review supports affirmance. |
| Whether the sentence is substantively reasonable given the stale-conviction and proposed amendment. | Amendment suggests overreliance on stale conviction and renders sentence unreasonable. | Sentence within Guidelines was reasonable regardless of proposed amendment. | Court affirmed; within-Guidelines sentence and 12-level enhancement were reasonable. |
| Whether the proposed amendment to § 2L1.2(e) affects reasonableness or requires remand. | Amendment clarifies staleness should lessen the enhancement; implies unreasonableness. | Amendment is prospective and not retroactive; does not retroactively affect the case. | Amendment not retroactive; no remand required. |
Key Cases Cited
- Rita v. United States, 551 U.S. 338 (2007) (permits presumption of reasonableness for within-Guidelines sentences)
- Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion review for substantive reasonableness within Guidelines)
- United States v. McBride, 633 F.3d 1229 (10th Cir. 2011) (applies presumption of reasonableness to within-Guidelines sentences)
- Chavez-Suarez v. United States, 597 F.3d 1137 (10th Cir. 2010) (staleness may warrant below-Guidelines in some cases; within-range analysis upheld)
- Torres-Duenas v. United States, 461 F.3d 1178 (10th Cir. 2006) (discussion of preservation/forfeiture for unpreserved sentencing challenges)
- Richison v. Ernest Group Inc., 634 F.3d 1123 (10th Cir. 2011) (standard for preserving or forfeiting substantive-error claims in appeals)
- Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (staleness affects 3553(a) analysis, not guidelines calculation)
- Godin v. United States, 522 F.3d 133 (1st Cir. 2008) (considered remand in light of amended guidelines (criticized))
- Ahrendt v. United States, 560 F.3d 69 (1st Cir. 2009) (remand avoided after proposed amendment not retroactive)
- Mancera-Perez v. United States, 505 F.3d 1054 (10th Cir. 2007) (unpreserved challenges may be treated as forfeited or preserved depending on context)