United States of America v. Juan De Los Santos-Martínez

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2177
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN DE LOS SANTOS-MARTÍNEZ,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fusté, U.S. District Judge]
Before
Torruella, Selya, and Howard, Circuit Judges.
Irma R. Valldejuli, on brief for defendant, appellant.
German A. Rieckehoff, Assistant United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
September 22, 2006

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The district court also relied on De Los Santos's "mak[ing] 1
up excuses as to why he came [back to the United States]" after
twice being deported even though "[he] knew he could not come
again," and commented adversely on this pattern of misconduct by
saying that "we don't need this kind of situation in this country."
In the district court, De Los Santos argued only that his 2
violation of the conditions of his supervised release for the prior
illegal reentry conviction would be taken into account in a pending
revocation proceeding in the earlier case. In fact, however, the
record of the earlier case indicates that no action was taken on
the violation. Accordingly, to the extent that De Los Santos
presses that argument here, we reject it.
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Per Curiam. Juan De Los Santos-Martínez ("De Los
Santos"), an alien who pled guilty to illegal reentry in violation
of 8 U.S.C. § 1326(a), challenges his sentence on the sole ground
that, in sentencing him to the top of the applicable guideline
range, the district court impermissibly "double-counted" factors
that were also taken into account in calculating his criminal
history category. Specifically, De Los Santos faults the district
court for relying, in large part, on his prior illegal reentry 1
conviction in concluding that he had no respect for the laws of the
United States (and therefore rejecting the government's
recommendation that he be sentenced at the bottom of the applicable
guideline range) even though that prior conviction and its
proximity to the instant offense were also reflected in his
criminal history category. Assuming that De Los Santos did not
forfeit this ground for objection by not raising it below, we 2
reject it as a basis for invalidating the resulting sentence as

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unreasonable under United States v. Booker, 543 U.S. 220, 261
(2005).
Some overlap between the guidelines and the other
sentencing factors enumerated in 18 U.S.C. § 3553(a) is neither
surprising nor impermissible since Congress directed the Sentencing
Commission to take into account many of the same factors in
constructing the guidelines that it directed sentencing courts to
consider, along with the guidelines, in sentencing individual
defendants. Compare 28 U.S.C. § 994 with 18 U.S.C. § 3553(a). As
we recently reiterated in rejecting a double-counting objection to
a guideline calculation, "'Sentencing factors do not come in
hermetically sealed packages, neatly wrapped and segregated one
from another. Rather, several factors may draw upon the same
nucleus of operative facts while nonetheless responding to discrete
concerns. Consequently, a degree of relatedness, without more,
does not comprise double counting.'" United States v. Wallace, No.
05-1142, 2006 WL 2336923, *16 (1st Cir. Aug. 14, 2006) (quoting
United States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994)). The same
is true of overlap between the guidelines and the statutory
sentencing factors. See United States v. Scherrer, 444 F.3d 91, 93
(1st Cir. 2006) (en banc) (rejecting an argument that considering
the nature of the offense in imposing an above-guidelines sentence
impermissibly double-counted factors already taken into account in
calculating the defendant's offense level under the guidelines).

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Therefore, we see nothing unreasonable about the district
court's imposing a higher sentence than the government recommended
based largely on De Los Santos's prior illegal reentry conviction,
even though that conviction and its proximity in time to the recent
offense were also reflected in his criminal history category. Nor
does the resulting 16-month, within-guidelines sentence strike us
as unreasonably long for this repeated felony offense.
Affirmed. See 1st Cir. R. 27(c).

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