Submitted: May 18, 2016
from United States District Court for the District of
Minnesota - St. Paul.
RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Chavarria-Ortiz pleaded guilty to one count of illegal
reentry after removal, in violation of 8 U.S.C. §
1326(a) and (b)(2). The district court determined an
advisory sentencing guideline range of 70 to 87 months'
imprisonment, rejected Chavarria-Ortiz's request for a
downward variance to 36 months, and sentenced him within the
advisory range to a term of 84 months' imprisonment,
followed by three years of supervised release.
contends that the district court committed significant
procedural error by failing to give an adequate explanation
for the sentence. The Supreme Court explained in Gall v.
United States, 552 U.S. 38, 50 (2007), that a district
court, after settling on the appropriate sentence, "must
adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of
fair sentencing." See Rita v. United States,
551 U.S. 338, 351, 356-57 (2007).
failed to object at sentencing to the adequacy of the
district court's explanation, and the government argues
that he thereby waived any claim of procedural error. The
government cites a statement in United States v.
Maxwell, 778 F.3d 719, 734 (8th Cir. 2015), that
"[w]e will not sustain a procedural challenge to the
district court's discussion of the 18 U.S.C. §
3553(a) sentencing factors by a defendant who did not object
to the adequacy of the court's explanation at
sentencing." In Maxwell, however, the court
conducted plain-error review of any challenges to the
district court's explanation, id. at 734-35,
736, so the quoted sentence is dictum insofar as it
suggested that a mere failure to object is a waiver.
waiver, of course, is "the intentional relinquishment or
abandonment of a known right, " whereas forfeiture is
"the failure to make the timely assertion of a
right." United States v. Olano, 507 U.S. 725,
733 (1993) (internal quotation omitted). Waiver precludes
appellate review, while forfeiture limits consideration to a
rigorous plain-error standard. Fed. R. Crim. P. 52(b);
Olano, 507 U.S. at 733-34. To show a waiver, the
government must point to action by the defendant or defense
counsel that establishes an intentional relinquishment or
abandonment of the right. E.g., United
States v. Harrison, 393 F.3d 805, 807-08 (8th Cir.
2005); United States v. Thompson, 289 F.3d 524, 526
(8th Cir. 2002). Classifying a failure to object as a waiver
when a right is well known and regularly involved would
largely collapse the distinction between waiver and
forfeiture. Plain-error review often addresses the forfeiture
of objections asserting familiar rights. See, e.g.,
Molina-Martinez v. United States, 136 S.Ct. 1338,
1344-45 (2016) (reviewing forfeited claim that the district
court miscalculated criminal history points under the
sentencing guidelines); Puckett v. United States,
556 U.S. 129, 136 (2009) (reviewing forfeited claim that the
government violated a plea agreement); United States v.
Cotton, 535 U.S. 625, 631-34 (2002) (reviewing forfeited
claim that the indictment omitted a fact that increased the
statutory maximum sentence); United States v. Vonn,
535 U.S. 55, 62-63 (2002) (holding that plain-error review
applies to forfeited claim that a district court varied from
Rule 11 during a guilty plea colloquy).
cases routinely have conducted plain-error review of claims
that a district court failed adequately to explain a chosen
sentence. See, e.g., United States v. Fry,
792 F.3d 884, 891-92 (8th Cir. 2015); United States v.
Keatings, 787 F.3d 1197, 1202-03 (8th Cir. 2015);
United States v. Butler, 743 F.3d 645, 647 (8th Cir.
2014); United States v. Rice, 699 F.3d 1043, 1049-50
(8th Cir. 2012). We follow that course here.
practical matter, however, a forfeited challenge to the
adequacy of a district court's explanation for a sentence
within an advisory guideline range faces long odds. In
Rita, the Supreme Court deemed adequate a district
judge's cursory explanation that he was unable to find
the advisory range inappropriate, that the public needed to
be protected, and that a sentence at the bottom of the
advisory range was "appropriate." 551 U.S. at 345.
The Court explained that where a matter is conceptually
simple, and the record makes clear that the sentencing judge
considered the evidence and arguments, the law does not
require the judge to write or say more. Id. at 359.
When a defendant does not speak up at sentencing and request
an explanation for some aspect of the district court's
decision, he can hardly expect a sympathetic reaction (or a
lengthy response) to his untimely complaint that the judge
should have delivered a more fulsome statement. And an
appellant raising a forfeited objection to the court's
statement of reasons confronts a daunting task in convincing
a court of appeals that a more detailed explanation would
have resulted in a lighter sentence. See Olano, 507
U.S. at 734.
case, the district court heard from both parties. Defense
counsel sought a below-guidelines sentence of 36 months,
explaining that Chavarria-Ortiz originally had followed his
mother to the United States as a teenager and reentered the
country most recently to earn money for his son in Mexico.
Counsel suggested that a long sentence was unnecessary to
deter Chavarria-Ortiz from illegally reentering the country
again, because he had gained employment skills that were
transferrable to Mexico and his young daughter was now living
in Mexico. The government responded that Chavarria-Ortiz had
three prior convictions for illegal reentry, as well as
convictions for drug offenses and aggravated assault with a
deadly weapon, and urged a sentence within the advisory
range. In his allocution, Chavarria-Ortiz asked the judge to
allow him to be with his daughter.
court imposed a sentence of 84 months, within the advisory
range, citing the nature and circumstances of the offense,
the history and characteristics of the defendant, and the
need to deter future criminal conduct. The court further
characterized the sentence as "appropriate and
reasonable" and "sufficient, but not greater than
necessary." Addressing the defendant, the judge said,
"I'm not going to give you a chance to be with your
child right away, " but added that Chavarria-Ortiz would
still be a young man when released and could see his children
district court's explanation was adequate in the context
of this case. The record shows that the court listened to the
parties' arguments and determined that the circumstances
did not warrant a downward variance. Where the defendant had
sustained four convictions for illegal reentry, in addition
to other criminal convictions, there was no need for an
elaborate discussion of why the court agreed with the range
recommended by the Sentencing Commission. See Rita,
551 U.S. at 356-57. Chavarria-Ortiz, moreover, points to
nothing to suggest a reasonable probability that the district
court would have imposed a more lenient sentence if the court
had elected to discuss the appropriateness of the sentence at
also contends that his sentence is substantively
unreasonable, because the district court gave too much weight
to deterrence and too little weight to his personal history
and circumstances. We review the substantive reasonableness
of a sentence under a deferential abuse-of-discretion
standard. Gall, 552 U.S. at 51. We apply a
presumption of reasonableness to sentences within the
advisory guideline range. United States v.
Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009);
see Rita, 551 U.S. at 347. District courts have wide
latitude to weigh the factors set forth in 18 U.S.C. §
3553(a) and may assign some factors greater weight than
others. United States v. San-Miguel, 634 F.3d 471,
476 (8th Cir. 2011). The record makes clear that the court
thought Chavarria-Ortiz's offense conduct and ...