Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, Senior District Judge, Presiding D.C. Nos. 3:06-CR-02188-WFN, 3:06-CR-02026-WFN.
The opinion of the court was delivered by: Mosman, District Judge
Argued and Submitted February 2, 2010-Seattle, Washington.
Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Michael W. Mosman,*fn1 District Judge.
Defendant--appellant Ernesto Gallegos appeals his two criminal sentences, imposed at the same time for separate offenses. The sentences arose from Mr. Gallegos's entry of two guilty pleas-one for illegal re-entry, and the other for escape while awaiting sentencing on the first charge. On appeal, Mr. Gallegos argues that the district court's imposition of a partially concurrent and partially consecutive sentence for the escape charge violates 18 U.S.C. § 3584. He also argues that the district court's refusal to offer a reduction for acceptance of responsibility on the illegal re-entry charge in combination with an enhancement for obstruction of justice resulted in impermissible double counting. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Mr. Gallegos was arrested for violating 8 U.S.C. § 1326, reentering the country illegally, on July 13, 2006. On October 12, 2006, Mr. Gallegos pleaded guilty to the illegal re-entry charge in case CR-06-2026.
On or about November 29, 2006, while awaiting sentencing on the illegal re-entry charge, Mr. Gallegos escaped from federal custody. In a December 12, 2006 indictment, the Government charged Mr. Gallegos with escape, in violation of 18 U.S.C. § 751(a). Following his January 8, 2007 arrest, Mr. Gallegos pleaded guilty to the escape charge in case CR-06-2188 on March 21, 2007.
The district court sentenced Mr. Gallegos for both the illegal re-entry and escape charges on May 30, 2007. In the illegal re-entry case, the court declined to grant a reduction for acceptance of responsibility and also imposed a two-level enhancement for obstruction of justice, resulting in a U.S. Sentencing Guidelines ("U.S.S.G." or "Guidelines") range of 37-46 months. The district court made no adjustments in the escape case, identifying Mr. Gallegos's sentencing range as 33-41 months on that charge. At sentencing, Mr. Gallegos requested completely concurrent sentences, while the Government requested consecutive sentences totaling 79 months.
The district court reviewed and discussed Mr. Gallegos's lengthy criminal history before issuing a sentence, noting the court's obligation "to create a sentence that is sufficient but not excessive." At the time of sentencing, Mr. Gallegos had previously been deported five times, received two assault convictions, and escaped from custody on three occasions. The court explained that "[t]he seriousness of your conduct, as indicated by your criminal history, suggests that you have total disregard for the law, that punishment doesn't deter your conduct."
The district court then imposed a 40-month sentence in the illegal re-entry case. The court also imposed a 40-month sentence in the escape case, with 20 months to be served concurrently with, and 20 months to be served consecutive to, the illegal re-entry sentence.
Mr. Gallegos did not object below to the district court's imposition of the partially concurrent and partially consecutive sentence, nor did he raise the double counting argument. We therefore review the district court's sentences for plain error. See United States v. Guzman-Mata, 579 F.3d 1065, 1068 (9th Cir. 2009) (reviewing for plain error because defendant did not object to sentencing enhancement at time of sentencing); see also United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (explaining that an unpreserved constitutional argument is generally reviewed for plain error). ...