United States of America v. Emilio Valdez

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMILIO VALDEZ,
Defendant - Appellant.
No. 22-1104
(D.C. No. 1:17-CR-00095-RBJ-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
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Before PHILLIPS, MURPHY, and EID, Circuit Judges.**
_________________________________
Emilio Valdez appeals from an order of the district court revoking his
supervised release and imposing upon him a sentence of six months’
imprisonment. 1 Valdez asserts the district court failed to consider and resolve his
motions for a downward departure and a downward variance. A review of the
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
1 Valdez’s Unopposed Motion for an Expedited Ruling is hereby Granted.
FILED
United States Court of Appeals
Tenth Circuit
August 25, 2022
Christopher M. Wolpert
Clerk of Court
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transcript of the revocation hearing makes clear that the district court did, indeed,
fully consider and reject Valdez’s requests. Thus, exercising jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms the
district court’s judgment.
In 2017, Valdez pleaded guilty to a single count of willful failure to pay
interstate child support in violation of 18 U.S.C. § 228(a)(3). His offense level of
10, combined with a criminal history category of III, established an advisory
sentencing range of 10 to 16 months’ imprisonment. The district court departed
downward to a criminal history category of II, concluding Category III overstated
Valdez’s criminal history. The district court then varied downward from the
newly applicable advisory sentencing range of 8 to 14 months’ imprisonment and
imposed a five-year term of probation.
In December 2021, while Valdez was on supervised release, the United
States filed a “Petition for Summons on Person Under Supervision” in the district
court. The United States alleged that Valdez committed eight violations of
supervised release, the first five of which were for possession and use of a
controlled substance. Valdez admitted those five violations and the government
withdrew the remaining alleged violations.
Valdez filed a Motion for Downward Variance from the Guideline Range
prior to the revocation hearing. His Motion recognized that pursuant to Chapter 7
of the Guidelines, his advisory sentencing range was 8 to 14 months’
imprisonment. He requested, however, that the district court depart downward
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from the applicable Category III criminal history category to a Category II as it
did at the original sentencing proceeding. He also asked the district court to treat
his violation as falling within Grade C, rather than Grade B, based on policy
considerations. If only the first of these requested departures was granted,
Valdez’s advisory sentencing range would be 6 to 12 months’ imprisonment. If
both were granted, his advisory range would be 4 to 10 months’ imprisonment.
He then asked the district court to vary downward based on the sentencing factors
set out in § 3553(a) and impose a term of probation.
At the beginning of the sentencing hearing, the district court noted it had
read Valdez’s motion, indicated it was unlikely to grant Valdez’s request for
probation, but stated it would consider Valdez’s arguments. In response,
Valdez’s counsel acknowledged Valdez used cocaine and Ketamine, but noted
those instances were spread over a four-year period. The district court responded
as follows:
Well, the fact is that the Court gave him a big break and trusted him.
I gave him a departure to no time, probation. The probation office
has spent a lot of time and a lot of money, and you come back in here
asking me to give him another huge break, and I’m just not
interested.
Valdez’s counsel then asserted that Valdez’s drug relapses were during periods of
less intensive therapy and that a mandate for additional outpatient therapy could
ameliorate the district court’s concerns. The district court found this assertion
unconvincing:
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The probation report, I’m quoting from page six. The probation
office has worked extensively with the defendant attempting to guide
him back into compliance, and has spent $8,446.56 on the
defendant’s dual diagnosis treatment throughout his time on
probation. However, he has time and time again resorted to
substance abuse. Now, that’s what this probation officer has
informed the Court.
Valdez’s counsel again asserted therapy was the best way to deal with Valdez’s
lack of compliance with the conditions of his supervision. Counsel also asked the
district court to utilize the same considerations it employed when it both departed
and varied downward at the original sentencing. After hearing from both Valdez
and a witness on his behalf, the district court heard from both the prosecutor and
Valdez’s probation officer. The prosecutor argued the record demonstrated
Valdez was a “schemer” who utilized substantial resources while on supervision
while making minimal progress. The prosecutor further argued that the record
demonstrated Valdez had a history of successfully avoiding the consequences of
his misdeeds and that a sentence of probation would only continue that
unfortunate trend. Valdez’s probation officer testified that Valdez’s drug-usage
problems were not therapy related but, instead, lifestyle issues. Thus, she did not
favor further supervision or therapy. At the conclusion of the hearing, the district
court ruled as follows:
Well, I thought that I was done with child support cases when I left
the state court. Little did I know that there is a federal statute about
failing to pay child support, and Mr. Valdez was convicted of
violating that statute in South Dakota. Our probation, and frankly
the Court itself, had taken him on as an accommodation to the
system in South Dakota.
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When it came before the Court in 2018, he was facing a 10-year
sentence. I don’t really recall what the guidelines were. But in any
event, I didn’t put him in prison at all. I went along with [defense
counsel’s] request for a departure based on her statement his criminal
history was overstated, put him on probation. And part of the reason
was so that he could have a job and pay down that child support. It
really wasn’t that much. It was 50,000 something, but it was
something that the mother should have had.
To my surprise, with the consent of the mother, apparently, he got
out of paying most of that after he left here. Okay. But he also
committed these offenses, and as has been said by probation, the
person that really knows, he has violated time and time again. I kind
of agree with [the prosecutor], frankly. I think we’ve done what we
can in terms of giving him breaks and paying money to provide him
with therapy. I also think it’s important if a person is not a violent
offender, that he be there for the birth of his child. I was there for
the birth of all my children, and I look back at those experiences as
some of the most amazing things that I’ve done in my life.
And I don’t want Mr. Valdez to miss that. The Court is going to
sentence him to six months in federal prison, order that he report on
or about June 1st, 2022. There will be no further supervised release.
The Court will not impose a fine. The Court warns Mr. Valdez that if
he doesn’t comply or report, when he’s brought back here, he will
get a much more substantial sentence. For today, he may leave. . . .
On appeal to this court, Valdez argues the district court erred in failing to
rule on his requests for a downward variance and for a downward departure. 2 As
2 Notably, Valdez did not object on this ground before the district court and,
therefore, it appears the issue is not preserved. See United States v. Romero, 491
F.3d 1173, 1175-76 (10th Cir. 2007) (holding that challenges to the method the
district court employed to calculate a sentence implicate procedural
reasonableness); id. at 1176-78 (noting that unpreserved challenges to the
procedural reasonableness of a sentence are reviewed for plain error). Because
the government did not raise the preservation issue, and because the resolution of
the merits of Valdez’s appeal is so clear, this court exercises its discretion to
resolve this case on the merits.
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the recitation set out above shows, Valdez’s argument in this regard is utterly
inconsistent with the transcript of the revocation hearing. The district court
specifically indicated it had reviewed both Valdez’s motion and the attachments
thereto. It demonstrated its clear understanding of the import of Valdez’s
arguments throughout the hearing. Ultimately, based on case- and defendant-
specific factors, the district court refused to grant Valdez the exaggerated
leniency he requested. The district court, nevertheless, varied downward two
months from the bottom of the applicable Chapter Seven advisory range and
imposed a sentence of six months’ imprisonment. The district court was not
obligated to engage in some type of “ritualistic incantation” or “recite any magic
words” in rejecting Valdez’s request for leniency. See United States v. Kelley,
359 F.3d 1302, 1305 (10th Cir. 2004) (quotation omitted).
The judgment of the United States District Court for the District of
Colorado is hereby AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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