*2 TYMKOVICH, Circuit Judges. EBEL, Judge. Defendant-Appellant Hermilio Manc- pleaded era-Perez guilty illegal reentry into the United an alien previ- ously deported for an aggravated felony and received a sentence of months’ imprisonment. Mancera-Perez appeals, arguing that length sentence is substantively unreasonable. conclude, however, that he has invited any error regarding of his sen- (without tence concluding was, fact, unreasonably long), and his claims now for the first time on appeal are waived.
* After examining 34(a)(2); briefs and R.App. 34.1(G). rec- P. 10th R. The Cir. ord, panel this has unanimously determined case therefore ordered without submitted that oral materially would not assist argument, oral See Fed. appeal. determination submitting or performing “knowingly
BACKGROUND who child a female with intercourse sexual near the Mexi- being apprehended After yet but had age over 2005, Mancera-Perez May can border states of 16.” PSR age attained the reentry of a de- illegal charged *3 bat- charged with was that Mancera-Perez ag- of an convicted previously alien ported charging “the incident: tery the same in 8 U.S.C. felony pursuant gravated know- the defendant alleged also document (b)(2). (a)(2) Mancera- 1326(a)(1), and § man- touched, or insolent in a rude ingly agreement with plea into a entered Perez in victim, resulted ner, which the same agreed he in which cheek.” a swollen injury, specifically bodily a recommen- exchange for guilty plead that However, *4 barely eighteen years old, and thus merit I. Jurisdiction ed a downward variance from the recom Although con mended Guidelines Second, sentence. he Mancera-Perez, tends —and inexplicably, that, contends because the Indiana statuto appeal concedes—that his was untimely, ry rape law “criminalizes conduct our review of the record confirms that his would not punishable be in many states,” was, appeal fact, timely filed. Although increasing his sentence based on a convic judgment was filed on tion under that law would lead to an un January 19, 2006, it was not entered onto warranted sentencing disparity under 18 the court’s 21, docket until February 2006. 3553(a)(6). § U.S.C. “A judgment or is order entered for the Because Mancera-Perez did argue not purposes 4(b) R.App. [Fed. P.] when it for a shorter in front sentence of the dis- is on entered the criminal docket.” Fed. trict and indeed conceded appro- R.App. 4(b)(6); v. Burtzloff, P. Jenkins 69 priateness sentence, month 460, (10th Cir.1995) F.3d (“The we believe this seeks to assert date entry is the beginning point for invited error and is waived.3
when the period ”). time begins to run.... 4(b)(1)(A) Since Rule provides for a ten- Mancera-Perez acknowledges that day deadline, filing period a timely for claims of error he raises on appeal were appeal expired 7, on March 2006. Manc- not previously presented to the district era-Perez filed his notice of appeal on However, court. argues that, he because 24, 2006; thus, February appeal only challenges of his sen- timely. tence and not the method which the jurisdiction
We have
to hear
appeal
it,
court reached
may
we
neverthe-
pursuant
§
28 U.S.C.
1291 and 18 less review these claims for reasonable-
3742(a).
§
U.S.C.
ness, rather than applying
plain
error
may
Cir.2006),
We
enliable,
consider an issue
1048,
of waiver sua
(10th
446 F.3d
1050 n. 3
sponte,
Gimbel,
see United
—
States v.
denied,
782 F.2d
—,
rt.
U.S.
127 S.Ct.
ce
287,
89,
(7th
1986)
92 n. 5
(noting
Cir.
that it
(2006).
is
review er only plain 3553(a), we review Lopez- v. States of error. United claims [Lopez-Flores, (10th Cir.2006), ror. See 1218, 1221 Flores, 444 F.3d merely is — the claim But 3043, 1221]. U.S. —, 127 S.Ct. denied, cert. unreasonably long, (2007). 759 168 L.Ed.2d to ob defendant require dowe preserved properly review issue. See preserve ject in order reasonableness, challenges for Castro-Juarez, 425 id.; v. States United Kristi, 437 v. States United Cir.2005). (7th 430, 433-34 curiam), Cir.2006) stan (per 1053 Torres-Duenas, 461 F.3d United has recent Supreme Court dard de cert. 1178, 1182-83 an abuse of review ly equated — —, nied, 127 S.Ct. U.S. discretion, Rita see sentencing court’s (2007). in Mancera-Perez L.Ed.2d —, States, S.Ct. U.S. claim, arguing category latter vokes (2007) 2456, 2465, L.Ed.2d length, “challenges only appeal that his merely (“[AJpellate ‘reasonableness’ reasonableness, of the sen or substantive its abused trial court whether asks may be re and therefore imposed” *5 discretion.”). the advi sentence within A re without the for reasonableness viewed a rebut- range is afforded sory Guidelines below. objection anof quirement dur of reasonableness presumption table “that review appellate ing process Torres-Duenas, however, not we did In or the the defendant either in defen- a contemplate situation the sen demonstrating that by may rebut object to only failed dant not after against viewed when is unreasonable sentence, but his pronounced court district 3553(a).” §in delineated the other factors sentencing, to offer failed, even before Kristi, 1054. 437 F.3d at a lower sentence argument whatsoever court indeed, and, agreed with preserve to a defendant fails When length of the sentence that below, generally we challenge a circum- these Under was reasonable. Lopez- See only plain error. review re- any error stances, that we conclude However, we Flores, at 1221. 444 F.3d length of the the reasonableness garding al exception to rule carved have and waived. was invited sentence4 of the straight reasonableness lowing a length of to the objections unpreserved contrast, Torres- the defendant In sentence: from the a “requested variance Duenas that his case contending range, Guidelines the defendant that when have held ‘felony conviction was ‘unusual’ because by which object to the method to
fails that occurred old. And years determined, is almost such as was youn- certainly much was misap- were that Guidelines claim addition, he at 1180. In Id. ger....’” adequate- not court did or that the plied culpa- less “one of the that he argued was to reference sentence with ly explain the presump- Nothing seen rebuts we have conclude that we do 4. not Here Indeed, Nevertheless, even if long. here there unreasonably our review because tion. was contraxy. It was suggests to the was record sentence it error in the and, thus, ap range guideline on within indeed was any manner and argued in never presumption entitled to pellate review is invited, of this merits do not reach the we States, v. United Rita reasonableness. issue. 2456, —, 168 L.Ed.2d S.Ct. U.S. ble” of the case, codefendants in his argument for a lesser sentence al- had no felony allegations had been ready presented been to the court during brought against him since the con- original pre-sentence arguments. However, viction. Id. Torres-Duenas therefore scenario of a defendant who entirely failed arguments raised before the district court to argue for a lower sentence before the for a sentence; below-Guidelines he failed district time, at any and then sought only to raise a objection formal to an argument make for a reduced after sen- rejected district court arguments and tence for the first time on appeal, imposed a within-Guidelines sentence. Id. addressed either case. See also United Thus, at 1182. our conclusion that he need Swehla, States v. object to preserve his Cir.2006) substantive rea- (holding that “a only defendant sonableness for appeal ad- need argue for a different sentence before dressed his lack of a objection formal pronounced” sentence is to preserve conclusions, not a appellate total lack review). reasonableness argument to the court. We therefore clarify Torres-Due- Lopez-Flores, which we relied upon in nas’s exception allowing reasonableness Torres-Duenas, presented a similar factu- unpreserved review of substantive sentenc al scenario. In Lopez-Flores, quoted we ing challenges require that the defen extensively from the Seventh dant have at least made the argument for Castro-Juarez, a lower sentence before the district court. “explain[] When argument for a lower why it is unnecessary argue to the sentence was not raised at any time before district court imposition when, to the con *6 tence that sentence unreasonably trary, the defendant affirmatively endorses long.” F.3d added). at (emphasis the appropriateness of the length of the The Seventh Circuit explained that it did sentence court, before the district we con not require defendants raise a post- if, clude error, there it was invit sentence ed and waived. Therefore we AFFIRM
objection probably formulaic—in sentence. every criminal case. Since district court BRISCOE, Judge, concurring: will already have heard I concur the result. I write sepa allocution from the parties weighed however, rately, because the majority’s 3553(a) the relevant factors before proposed clarification of the exception an pronouncing sentence, we fail to see how nounced in United States v. Torres-Due requiring the protest defendant to then nas, 1182-83 Cir. the term handed down will further the 2006) (allowing reasonableness sentencing process in any meaningful forfeited substantive sentencing chal way. lenges) and, is unnecessary thus, dicta. Lopez-Flores, 444 at F.3d 1221 (quoting The long and the short of the matter is Castro-Juarez, 433-34) (em- that Mancera-Perez, by seeking and added). phasis agreeing to the imposed by the
Lopez-Florez and Castro-Juarez thus court, clearly waived the chal addressed whether a defendant is required lenges he now seeks to assert to that objection raise an to the reasonableness sentence. See United States Carrasco- of a sentence it has Salazar, been Cir. 2007) when the defendant’s (discussing waiver and forfeiture in challenges). the context cannot then, Mancera-Perez
Necessarily, review, or any standards from
benefit therefrom, apply that we
exceptions properly has been error where
cases merely forfeited. or
preserved f HOLMAN, Plaintif M.
Donna
-Counter-Defendant-Appel
lee/Cross-Appellant, America, Defen STATES
UNITED
dant-Counter-Claimant-Appel
lant/Cross-Appellee. 05-4114, 05-4123.
Nos. Appeals, Court of Circuit.
Tenth 1, 2007.
Oct. notes also the PSR level offense in his a reduction of dation No addi- was battery charge dismissed. a sen- and responsibility acceptance of for con- prior regarding tional information recommended of the end at low court. the district was available viction Sentencing Guidelines “Guidelines”) range. After (“U.S.S.G.” or objec- not file did Mancera-Perez entered ascertaining that Mancera-Perez sentencing hear- At his to the PSR. tions voluntarily, agreement that, on the based stated the court ing, it. accepted court low end of PSR, “on the a sentence (“PSR”) pre- report presentence The in- and appropriate, range” was guideline calculated office probation pared govern- to comment. The vited counsel at level offense total Mancera-Perez’s low end of that the agreed ment eight including a base level twenty-one, Mancera- range appropriate. was tencing 2L1.2(a); level § a sixteen under U.S.S.G. also agreed: Perez’s counsel convic- prior Mancera-Perez’s increase for govern- and agree I with Court under violence crime of of a tion fur- nothing ment, I have Your Honor. reduc- 2L1.2(b)(l)(A); a three level § and One to the Court. ther to present of responsibility acceptance tion for is at that Mr. Mancera-Perez reasons (b). 3El.l(a) Mancera-Per- § under guideline or at the that he is the zone to fall calculated history was criminal ez’s is, is because that he provisions III, guideline resulting in a into category Court category, as the history criminal fifty-seven months’ forty-six range five, and we aware, is a is well imprisonment. that, I think about have talked vio- “crime prior conviction The is 46 provisions guideline end of low previ- led to Mancera-Perez’s lence” which months.2 which the PSR deportation, and ous indicated, through himself Mancera-Perez increase, awas sixteen level applied a to add nothing had interpreter, misconduct sexual state conviction to this statement. commen- law. Indiana The under minor a sentence The court then specifies expressly tary to the Guidelines doing, so forty-six In months. statuto- of violence” includes that a “crime ais found it “that stated that 2L1.2, § comment rape. U.S.S.G. ry sentence under PSR, reasonable l(B)(iii). age to the According 3553(a), particularly of 18 U.S.C. factors charged with was eighteen Mancera-Perez low correctly stated that history Perez’s counsel score to- criminal 2. Mancera-Perez’s calculation history catego- end of the Guidelines points; his criminal taled five imprisonment. however, months' actually Mancera- level III. ry, taking into account the defendant’s crimi- 11. Substantive reasonableness history nal that, and the nature of some of argues Mancera-Perez that his charges past criminal history.” sentence is unreasonably long in light of judgment was filed on January two of the required factors to be taken into 19, 2006; however, for reasons not re- account in sentencing under 18 U.S.C. record, vealed in the it was not entered 3553(a). First, he argues that prior into the district court docket until Febru- conviction for statutory rape, a “crime of ary 21, 2006. Mancera-Perez filed notice violence” under § 2L1.2(b)(l)(A), U.S.S.G. appeal on February was not as serious as the Guidelines sug gest because it occurred when he was DISCUSSION