Argued and Submitted, Pasadena, California: December
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cr-05168-BEN-1. Roger T. Benitez, District Judge, Presiding.
The panel affirmed a sentence for illegal re-entry in a case in which the district court applied a 12-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A) after determining that the defendant's 1992 conviction for delivery of heroin under Revised Code of Washington § 69.50.401(a)(1)(i) was for a " drug trafficking offense."
The defendant argued that § 69.50.401 is categorically overbroad because it criminalizes manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance without containing an exemption for " administering," even though federal law exempts " administering" from the definition of distribution. The panel rejected this contention because the defendant has not shown the realistic probability of prosecution for administering a drug.
The panel held that the district court did not rest its sentence on any clearly erroneous fact, and rejected the defendant's claim that his sentence was substantively unreasonable.
Kent D. Young (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Laura E. Duffy, Bruce R. Castetter, Mark R. Rehe (argued), Anne K. Perry, United States Attorney's Office, San Diego, California, for Plaintiff-Appellee.
Before: Susan P. Graber, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Callahan.
CALLAHAN, Circuit Judge:
Defendant-Appellant Alejandro Burgos-Ortega pled guilty to illegal re-entry in violation of 8 U.S.C. § 1326 and received a 46-month sentence. Burgos-Ortega challenges his sentence on appeal, arguing that 1) the district court erred when it applied a 12-level increase to his offense level based on a Washington State drug conviction; 2) the district court erred by basing its sentence on facts not in the record; and 3) his above-Sentencing Guidelines sentence was substantively unreasonable. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
Burgos-Ortega is a citizen of Mexico who crossed into the United States near the San Ysidro Port of Entry on November 19, 2012. Burgos-Ortega was arrested the next day and admitted that he was in the United States illegally. He later pled guilty to illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b).
Burgos-Ortega's presentence report (" PSR" ) calculated his Guidelines range as 18 to 24 months and recommended a 24-month sentence. This recommendation resulted from a base offense level of 8, a 12-level increase based on a prior drug trafficking offense, a 3-level decrease based on acceptance of responsibility, and a 4-level downward departure based on his participation in a " fast track" prosecution. The prior offense leading to the 12-level increase was a 1992 Washington State conviction under Revised Code of Washington (" RCW" ) § 69.50.401(a)(1)(i) for " Delivery
of Heroin."  The Guidelines range was based on the total offense level of 13 and two prior criminal convictions for illegal re-entry in 1998 and 2006, which resulted in 70-month and 46-month sentences, respectively.
At sentencing, the Government recommended, and Burgos-Ortega requested, a 24-month sentence. Burgos-Ortega's counsel argued that while this proposed sentence was shorter than what he had received in the past for illegal re-entry, it was appropriate in light of a change in the Guidelines and the staleness of Burgos-Ortega's prior convictions. Counsel pointed specifically to a 2011 amendment to the Guidelines. The amendment reduced the offense level increase from 16 to 12 if the defendant's prior conviction was too old to receive criminal history points, as was the case here with Burgos-Ortega's 1992 Washington heroin conviction.
Burgos-Ortega's counsel also argued that he had a " diminishing criminal history apart from the illegal entries" and claimed that Burgos-Ortega's criminal record in the 1990s was " driven by his substance abuse," but he had been clean since 1996. Finally, Burgos-Ortega's counsel asserted that a 24-month sentence was appropriate because Burgos-Ortega had only come to the United States because he was worried about his children. He argued that now that Burgos-Ortega had reestablished contact with them, and given that his children planned to continue their relationship with him, including visiting him in Mexico, Burgos-Ortega had no reason to return at this point.
At sentencing, the district court stated that it would " vary up" and impose an above-Guidelines sentence:
Now I have reviewed this file pretty carefully because I knew I was going to vary up. And I've heard the reasons for coming back into the United States. I'd be willing to bet you dollars to donuts that if I went and I got a transcript of the proceedings of his previous 1326's, he probably had a good excuse for coming back into the United States. Now I don't have those transcripts. But, you know, I do enough of these every Monday, I probably do more sentencings than many, many districts combined. And I hear it all the time. There is always, you know, reason to come back. They want to be with their family or what have you. And the story never changes in the sense that they come back.
The only thing that deters them from coming back is a sentence. That is it, plain and simple. And even that doesn't necessarily always work. So, you know, I have to consider -- obviously, I've considered the fact that his prior conviction was stale. I've considered that. I've
considered the fact that as a result of that, he gets a reduction in the Guideline calculations. I've considered the fact that in this district, because of the number of these cases ...