United States of America v. Filiberto Chavez AKA Big Boy, AKA Freeway Beto

San Francisco, CA - Criminal defense lawyer represented defendant with a conspiracy to distribute and possess with intent to distribute methamphetamine, two counts of possession with intent to distribute and distribution of methamphetamine, conspiracy to engage in interstate transportation for prostitution and two counts of use of interstate commerce to promote prostitution charges.

After his conviction on all counts at trial, a probation officer prepared

Chavez's presentence investigation report (PSR). According to the PSR, Chavez's

initial United States Sentencing Guidelines range was 360 months to life, based on

an offense level of 37 and a criminal history category of VI. Chavez objected to

the inclusion of information not proven at trial in his PSR and the application of

the career criminal sentencing enhancement, maintaining that at least one prior

conviction listed in the PSR was incorrectly attributed to him. He renewed these

objections at his sentencing hearing, which the district court rejected before orally

sentencing him to 400 months imprisonment. Shortly after the hearing, but before

the district court entered judgment against Chavez, the government informed the

court that it needed to confirm the disputed prior conviction belonged to Chavez.

The district court held the judgment in abeyance and scheduled a conference for

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the following week. The government's review revealed that the disputed

conviction in fact did not belong to Chavez, meaning he was not subject to the

career offender enhancement. As a result, Chavez's updated Guidelines range was

210 to 262 months. The court re-sentenced Chavez during a second hearing,

imposing a sentence of 250 months imprisonment.

First, Chavez contends his sentence is substantively unreasonable. A

sentence is substantively reasonable when it is "sufficient, but not greater than

necessary, to comply with the purposes [of sentencing].” 18 U.S.C. § 3553(a);

United States v. Rudd, 662 F.3d 1257, 1261 (9th Cir. 2011). "The touchstone of

'reasonableness' is whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Rudd, 662 F.3d

at 1261 (cleaned up). Chavez argues his sentence is substantively unreasonable

because the district court failed to consider the disparity between his sentence and

those of his co-defendants, and the court engaged in impermissible double

counting under the Sentencing Guidelines. We disagree.

The record reflects that the court rationally and meaningfully considered the

§ 3553(a) factors in sentencing Chavez to a longer sentence than most of his codefendants.1

Serious factual differences existed between Chavez and most of his

1 Chavez was charged on a seventeen-defendant indictment. With the exception of

one co-defendant who received a sentence of 262 months, Chavez's co-defendants

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co-defendants, including that Chavez was identified as an "influential” gang

member and was the only defendant to proceed to trial, meaning he could not

benefit from an acceptance of responsibility reduction. Moreover, at sentencing

the court explained that its sentencing decision was influenced by Chavez's

attitude toward the criminal justice system, views about women, prior parole

violations, and the ages of the individuals involved, all factors encompassed by the

goals of § 3553(a). The district court also did not engage in impermissible double

counting. See United States v. Pham, 545 F.3d 712, 717 (9th Cir. 2008)

("Impermissible double counting occurs when one part of the Guidelines is applied

to increase a defendant's punishment on account of a kind of harm that has already

been fully accounted for by application of another part of the Guidelines.”

(quotation omitted)). The court did not apply any separate Guidelines provisions

to increase Chavez's sentence based on the § 3553(a) factors. Chavez points to

nothing in the record to suggest otherwise.

Nor was Chavez's sentence procedurally unreasonable. As Chavez failed to

object on procedural grounds during the district court's sentencing hearings, we

review for plain error. United States v. Valencia-Barragan, 608 F.3d 1103, 1108

(9th Cir. 2010). In establishing plain error, the defendant bears the burden of

received dispositions ranging from deferred prosecution to ninety months

imprisonment.

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demonstrating (1) an error, (2) that is plain, (3) that affects substantial rights, and

(4) that seriously affects the fairness, integrity, or public reputation of judicial

proceedings. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en

banc). The district court is required to "state in open court the reasons for its

imposition of the particular sentence.” 18 U.S.C. § 3553(c). However, when a

judge imposes a sentence within the Guidelines, as the court did here, "doing so

will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S.

338, 356 (2007). In addition, "when a party raises a specific, nonfrivolous

argument tethered to a relevant § 3553(a) factor . . . the judge should normally

explain why he accepts or rejects the party's position.” United States v. Carty, 520

F.3d 984, 992–93 (9th Cir. 2008) (en banc) (citations omitted).

In imposing Chavez's Guidelines sentence, the court explained that it was

relying on Chavez's attitude toward the law, history of parole violations, the nature

of the offense, and Chavez's views on women. And while Chavez contends the

court erred procedurally by not revisiting his argument that his criminal history

category was overstated, this was the entire purpose behind the second sentencing

hearing. Thus, his position before us is unreasonable. Chavez's sentence is both

substantively and procedurally reasonable.

Finally, Chavez argues the district court violated Rule 32 by not ruling on

his objections and failing to conduct a full resentencing hearing. When a

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defendant fails to object under Rule 32, as Chavez failed to do here, we review for

plain error. United States v. Wijegoonaratna, 922 F.3d 983, 989 (9th Cir. 2019).

Under Rule 32(i)(3)(B), the court is required to either rule on any disputed portions

of the PSR or determine that such a ruling is unnecessary. The district court stated

that it adopted the PSR, which included the probation officer's responses to

Chavez's objections, and further expressed disagreement with each of Chavez's

objections. Chavez also argues Rule 32 required the district court to hold a full

resentencing hearing following the government's correction of his criminal history.

The only authority he cites for this proposition are cases in which defendants were

resentenced after their original sentences were vacated. Chavez's sentence was

never vacated because the district court held the judgment in abeyance until the

conclusion of the second sentencing hearing. Moreover, the district court

reconsidered the § 3553(a) factors at the second sentencing hearing, and reduced

Chavez's sentence by 150 months. Accordingly, Chavez has not shown that the

district court committed plain error under Rule 32.

AFFIRMED