USA v. Escobedo-Quezada

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 16, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10747
Non-Argument Calendar
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D.C. Docket No. 8:10-cr-00398-SDM-TGW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
RODOLFO ESCOBEDO-QUEZADA,
a.k.a. Ricardo Maldonado,
a.k.a. Jose Diaz-Gutierrez,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(November 16, 2011)
Before MARCUS, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Rodolfo Escobedo-Quezada appeals his sentences and convictions for

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reentering the United States illegally, 8 U.S.C. § 1326(a), and entering the United
States illegally, id. §§ 1325(a)(1), 1329. Escobedo-Quezada argues, for the first
time, that his multiple punishments violate the Double Jeopardy Clause of the
Fifth Amendment. Escobedo-Quezada also argues that his sentence of 20 months
of imprisonment for his illegal reentry is procedurally and substantively
unreasonable. We affirm Escobedo-Quezada’s sentences, and we vacate the
written judgment and remand to correct a clerical error.
The district court did not err, much less plainly err, by imposing two terms
of imprisonment. Escobedo-Quezada’s crimes “constitute[] a violation of two
distinct statutory provisions” because “each provision requires proof of a fact
which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.
Ct. 180, 182 (1932). Escobedo-Quezada pleaded guilty to reentering the United
States illegally after having been deported three times previously, 8 U.S.C. §
1326(a), and to entering the United States “at a time and place other than as
designated by immigration officers,” id. § 1325(a). Because the government could
prosecute Escobedo-Quezada under both statutes, he “waived his double jeopardy
argument by pleading guilty.” United States v. Smith, 532 F.3d 1125, 1129 (11th
Cir. 2008).
The district court did not abuse its discretion by varying upward from the
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advisory guideline range to sentence Escobedo-Quezada to term of 20 months of
imprisonment for his illegal reentry that would run concurrent with a term of 6
months for entering the United States illegally. Escobedo-Quezada was deported
from the United States in January and February of 1999 and again in March 2003;
he pleaded guilty to drug crimes in December 2003 and November 2004; and he
has outstanding warrants for his arrest in Florida and Illinois. The district court
decided to vary upward because of Escobedo-Quezada’s “dismissive attitude
towards the laws of the United States” governing “immigration and . . . other
behavior,” the lack “of effect” of previous within-guidelines sentences, his
previous election of an eight-month sentence of imprisonment “over making his
own way [on probation] for six or eight months,” and his “persistence in
reentering repeatedly and . . . remaining in the United States for a protracted time.”
The district court reasonably determined that the advisory guideline range of 2 to 8
months would not adequately reflect Escobedo-Quezada’s criminal history or
“achieve the statutory purposes of sentencing,” see United States v. Shaw, 560
F.3d 1230, 1237–40 (11th Cir. 2009), and that a sentence of 20 months of
imprisonment was necessary to “promote respect for the law,” provide adequate
punishment, deter similar future crimes, and protect the public, see 18 U.S.C. §
3553(a). Escobedo-Quezada’s sentences are reasonable.
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We notice a clerical error in the written judgment. The written judgment
states mistakenly that Escobedo-Quezada pleaded guilty to two counts of illegal
reentry. Because “it is fundamental error for a court to enter a judgment of
conviction against a defendant who has not been charged, tried, or found guilty of
the crime recited in the judgment,” United States v. James, 642 F.3d 1333, 1343
(11th Cir. 2011) (internal quotation marks omitted), we vacate the written
judgment and remand for the district court to enter a new judgment stating that
Escobedo-Quezada pleaded guilty to one count of illegal reentry and one count of
illegal entry into the United States.
We AFFIRM Escobedo-Quezada’s sentences, and we REMAND for
correction of the written judgment.
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