United States v. Atencio

not Symington is announce[d ] rule we family, defendant s of the members ken to at Symington, triggered.” counsel, apparently and even defense 621). Moreover, Thomas, the trial (quoting n. 6 himself. the defendant the questioned, that when found judge also Ill all forthcoming about not juror had been jurors’ com- the of contacts. Some of her reasons, the district foregoing For the coun- defense corroborated plaints were when not abuse its discretion court did fiancé. brother’s and the defendant’s sel 23(b). We 7 under Rule excused Juror circumstances, am- the record these Under conviction. affirm Vartanian’s findings court’s district supports the ply AFFIRMED. the “untruthful with 7 was that Juror thus “untrustworthy.” It was and Court” the district well within and

appropriate Juror to dismiss

court’s discretion Beard, 973-74;

Shtyock, 342 F.3d at 1193. America, of UNITED STATES brings this arguably that only fact The Plaintiff-Appellee, that of the one Symington within case dis questioned jurors, being while said court, 7] that ATENCIO, “[Juror volunteered trict Defendant- Harris nobody and guilty not [Vartanian] Appellant. jury is “I think change and can —” No. 05-2279. statements, up.” These going hung to be Appeals, States Court United court, by the trial which were not solicited Tenth Circuit. volunteered not been should have removing the for not be basis could Jan. Nevertheless, we think that juror. Federal Dunleavy, B. Assistant Susan Ju ignored them. properly Defender, of the Federal Office Public miscon of her because ror 7 was dismissed NM, Defender, Albuquerque, Public on the of her views duct and because Defendant-Appellant. thus evokes none This case merits. Williams, Symington. Assistant United we cited N. concerns David (David not — to—and did Iglesias, had no occasion judge Attorney C. States re motivations for jurors’ into the inquire the United Attorney, Office States brief) the course the misconduct porting on the Attorney, with him conduct 7’s jury’s deliberations. Juror NM, Plaintiff-Appel- Albuquerque, outside was behavior investigation under lee. room. Since jury deliberation KELLY, TACHA, Judge, Chief Before competence” juror bias or “questions BRISCOE, LUCERO, HENRY, ... event, or on ‘some

raised here “focus O’BRIEN, HARTZ, MURPHY, party, juror relationship between tymkovich, McConnell, subject easily identifiable that is both HOLMES, GORSUCH, Circuit intru findings without investigation and Judges. process,”’ into the deliberative sion with “oth- case not to discuss the mingle or talk nesses" "not[to] that instructed them case, jury deliberation ... inside the jurors until er includ- anyone with associated

with wit- room.” parties, and the lawyers, the ORDER DENYING INITIAL Montoya decided to leave Atencio on March use, 2005 because of his alcohol

EN BANC REVIEW children, mistreatment of her and violent A sponte member of the active sua abusiveness toward her. night, One after called poll for a of the court to determine family Atencio and his cousin left the home whether this case would be set for initial go drinking and gambling, Montoya and Tacha, Judges Kelly, en banc review. family gathered several of her up members Briscoe, Montoya’s belongings and Murphy, Tymkovich and took her three Gorsuch mother, children to the home of Judy her grant voted to initial en banc review. All Torreón, Montoya, New Mexico. Mon- other active members of the court voted to toya left a note informing for Atencio him deny. majority A being necessary vote ending that she was relationship consideration, order en banc initial en banc instructing him not to contact her her consideration is denied. family. At approximately 4 a.m. the next morn- LUCERO, Judge. Circuit ing, appeared Judy Atencio Montoya’s appeals Harris Atencio his home with sentence of his cousin and a friend. Notice- intoxicated, ably banged loudly he on imprisonment 84 months’ for assault re- door, glass demanding Montoya. to see sulting bodily injury. serious Although answered, no When one Atencio broke the properly district court calculated the door and entered carrying the house an range under the United States Sentencing axe he found outside. He was immediate- Guidelines at 37 to 46 months’ imprison- ly confronted Judy Montoya and Mon- ment, it used its discretion under United sister, toya’s Montoya. Vivian Atencio Booker, States v. 543 U.S. 125 S.Ct. swung Judy, the axe toward but Vivian (2005), 160 L.Ed.2d 621 stepped between them and was struck on upward 38-month variance from that right side of her head with the blade of based considerations listed the axe. companions Atencio’s then re- 3553(a). U.S.C. It imposed spe- also him strained and carried him back to their cial condition that register Atencio as a sex vehicle. offender. Because give the court failed to Montoya Vivian was rushed emergen- notice of its intent the sentence cy helicopter Fe, to a hospital Santa above the range and did not ade- Mexico, New where she was treated for quately explain its reasons for the vari- trauma, massive head a fracture of the ance, we REVERSE and REMAND for bone, right orbital open an fracture of the resentencing. We also REVERSE the lobe, right temporal hemorrhaging of the registration sex-offender requirement due right eye, and facial lacerations. These to the district court’s failure to injuries, deemed life-threatening, required advance notice of its consideration of this surgeries several thirty-three stitches. special condition and REMAND for recon- 15, 2005, April On Atencio was indicted sideration with notice. on one count of assault resulting in serious

bodily injury in violation of 18 U.S.C. 113(a)(6) §§ pled guilty 1153. He I charge day. the same His Presen- In March living with (“PSR”) Report tence assigned a of- base Montoya, Richelle with whom he had one fense level of 14 for the crime. Four child. According to investigative reports, levels were added because Atencio had to the information. intelligently pled guilty and five were weapon, dangerous used the recommendations adopted It serious sustained the victim because added 20 and a PSR, an offense level of applying were subtract- Three bodily injury. levels category of II to calculate responsibili- acceptance Atencio’s ed range of 37 to 46 advisory also an Guidelines The PSR criminal conduct. ty for his than Rather as- imprisonment. months’ history category in criminal Atencio placed range, how- a sentence within signing for sexual prior to his conviction II due ever, a impose sen- the court decided adjusted in 1999. The a minor abuse of the United States “independent tence 20, with the level of combined offense considering After II, Sentencing Guidelines.” resulted category of history criminal 3553(a), §in it sen- set forth 46 the factors of 37 to range advisory guideline an imprison- However, to 84 months’ tenced Atencio the imprisonment. months’ ment, from upward variance history a 38-month criminal that a also noted PSR Prior to the hear- range.1 underrepresen- the Guidelines possibly II was category of no notice to either ing, gave the court prior a not reflect it did because tative from upward party of its intention bat- adjudication aggravated for juvenile to 46 advisory range of 37 months. deadly the assault, of a possession tery, court that the It recommended weapon. hearing, court focused on two At the the history increasing criminal the consider (1) Aten- the variance: factors the for one level to account category by history, including his abuse cio’s yield an adviso- would adjudication, which women; the violence and seri- months. of 41 to 51 range guideline ry finding In Atencio’s crime.2 ousness of women, the regularly abused that Atencio hearing held on During the adopted the court purportedly found district court the district August and the the PSR Ad- of both voluntarily, and statements knowingly, that sentencing terminology post-Booker inconsistency our sion of been some There has 1. States adopts See United v. nomencla- these definitions. post-Booker circuit’s Calzada-Maravillas, (10th Cir.2006). Cage, States v. 591 n. ture. In United 451 F.3d (10th Cir.2006), example, 443 F.3d 1301 During portion of the hear- based on one to a increase we referred sentence 3553(a) "non-guideline depar- mistakenly that the ing, judge as a believed factors the application of based on and an increase of convic- ture” for the offense maximum sentence depar- “guideline Chapter Four as a U.S.S.G. imprisonment. years’ The court was 20 tion Dozier, Id. at 1304. In ture.” a "to sentence its intention announced Cir.2006), (10th we termed which, maximum], years, or 10 the [of of half "upward departure” sentencing increase an side, frankly, may be on the low the enhance- based where the court this case.” what he did in just punishment for argu- impact statements —an on victim ment prosecutor proceedings, Later in the 3553(a) ground but permissible under ably maximum sentence was pointed out that the Sentenc- Chapters or Five of the Four not in imprisonment. Id. at 16. actually years’ ten Id. at Guidelines. then announced: clarify reaches a court We now when pro- change from the the sentence I will the recommended above or sentence below of 84 to a term months posed months through application of range Guidelines think, very light sen- again, is I which Sentencing Chapters Four or Five given defendant’s criminal tence Guidelines, resulting or decrease increase abuse, abuse of wom- violent continuous "departure.” When a court as a is referred to en, exceptionally circum- violent and the the recommended or detracts from enhances pled he to which stances offense fac- through application of range imposing sentence to- guilty which I’m however, tors, decrease increase day. discus- most recent a "variance.” Our called Addendum, procedural Report components. dendum. The and substantive however, other; (10th each Cir.2006). contradicted whereas Cage, 451 F.3d at 591 Report characterized Atencio’s rela- setting sentence, procedurally reasonable tionship Montoya repeated with as one of a district court must calculate the proper abuse, the Addendum filed Atencio stat- apply striking, ed that “Mr. Atencio admitted to 3553(a). id.; §in factors set forth time, or pushing Riehelle one and not to a Kristi, United States v. pattern beating her At as indicated.” It must also afford sentencing hearing, the outset of the rights defendants their under the Federal if any objec- court asked had Dozier, Rules of Criminal Procedure. See PSR, tions to factual materials substantively F.3d at 1217-18. A rea- any and whether there was need for an ultimately sonable sentence reflects the evidentiary hearing to disputed resolve 3553(a) gravity of the crime and the facts. Neither Atencio nor the Govern- applied factors as to Cage, the case. any objections ment made or moved for an at 594. evidentiary hearing. Despite the contra- procedural Because we reverse on rea- statements, dictory proceeded the court to sonableness, we do not reach the substan- adopt findings the Report both the tive reasonableness of Atencio’s sentence. the Addendum in determining that Aten- procedural Atencio attacks two elements of cio’s criminal not score did account (1) imposed the variance sentencing: regular for his abuse of women. It also provide court’s failure to notice of its repeatedly prior stressed Atencio’s sexual upward variance, intention to an conviction, explicitly abuse but stated that adequacy explanation of its rely juvenile not prior adjudi- did on his varying based on factors. varying cation in upward. In addition to Atencio to 84 A imprisonment, months’ imposed the court registration requirement sex-offender In Congress amended Rule 32 of of supervised condition release. It did the Federal Rules of Criminal Procedure notify not Atencio that it contemplat- (h), part to include parties which affords ing requirement. right to advance notice of a district depart court’s intent to applicable from the appeals

Atencio now his sentence of 84 range, grounds and of the imprisonment months’ and the sex-offend- such departure.3 This rule codifies registration requirement. er This court jurisdiction Supreme has Court’s decision in to consider his un- Burns v. appeal 3742(a). States, 129, 138, der 18 U.S.C. 501 U.S. 111 S.Ct. (1991), 115 L.Ed.2d holding

II Rule 32—which afforded defendants the Post-Booker, opportunity we review to deci- comment on sentencing reasonableness, sions for which has both implicitly required such notice.4 matters — 32(h) 3. Fed.R.Crim.P. states: departure. such a specify The notice must any ground may depart appli- Before the court on which from the the court is contem- ground cable plating departure. on a not departure identified for pre- either in the Language requiring 4. report provide sentence party’s prehearing or in a to submission, parties give parties opportunity the court an must to comment on "mat- contemplating relating reasonable notice that appropriate it is ters to an sentence” require- notice apply continue to to We that failure reasoned The Court 32(h) post- Rule ments of Bums and Rule “inconsistent with be notice would Dozier, focused, sentencing departures. Booker adver- promoting purpose 32’s question do not we made clear that “[w]e legal factual resolution sarial 32(h) after viability of Rule and Bums sen- fixing Guidelines relevant issues ” up- court’s reversing Booker a district tences,” id. give it failed to departure ward where that: expressed concern depart. of its intent adequate notice render- best, the Government’s At under Specifically, we held F.3d at notice], require of Rule 32 [to 32(h) Booker and re- that “Rule survives sponte possible address sua parties will any notify parties a court to quires both .in a random and wasteful departures depart from the sen- intention anticipate negate way by trying as the basis for tencing Guidelines as well on which the every ground conceivable is not departure ground such when the depart on might choose to district court presentence report identified worst, At and more initiative. its own Id. at party’s prehearing submission.” try to will not even likely, where anticipate development; such a report Calzadctr-Maravillas, nor the presentence neither the Similarly, in we re- sug- has attorney for the Government sentencing departure, a determin- versed upward departure, for gested ground by failing a that district court erred might ground counsel be reluctant notice of the give defense the defendant depar- to the district possibility contemplated such a on which the court suggest court, rebutting at 1303. Calzadar-Mara- purpose even for the ture. 443 F.3d importance parties again emphasized in which the villas every it. case “To prior' function of notice: an unannounced anticipate fail to opportunity to hone their departure by the district uninvited court must legal arguments, the district court, a critical determina- notice of its intent provide advance go untested the adversarial tion will original; depart.” (emphasis Id. at 1304 by Rule 32 and contemplated process omitted). citations the Guidelines. that the adversarial sentenc- thus leaves no doubt

Id. To effectuate Our caselaw 32(h) 32, for sentenc- contemplated require Rule Rule notice ing process we case, however, the of sua In this required ing departures. advance notice Court and not a imposed a variance under the then-manda- sponte departures it relied Guidelines, explicitly stating that departure,5 reasons for tory and of the a non- factors departure. incorporated indicate that the sentence incorporated Fed.R.Crim.P. now Dozier 444 F.3d at 32(i)(l)(C). a variance. what we now call (describing sentencing enhancement 1217 statements); did court in impact supra 5. The district Calzada-Maravillas see based on victim adopted departure whether it (Dozier not indicate we drew a was written before note 1. the failure to notice the 3553(a)-based or variance. Because increases distinction between reversal, declined to departure we warranted Guidelines-based increases Calzada- required notice for reach the issue of the such, Cage.) has As Maravillas and Dozier 443 F.3d at 1304. variance. 32(h) notice arguably already that Rule held rate, any need we however, applies variances. At note, explic- that while We Dozier case, we that 32(h) on the semantics of required not dwell for itly that Rule notice held holding today. explicitly make this departures, the facts of we there what termed 1104 advisory- sentence above the der the Guidelines.

Guidelines See U.S.S.G. 4A1.3, Moreover, §§ 5K1.1-2.23. for range. both variances, departures and notice of con- Second, circuits—the Four of our sister templated grounds parties to allows focus Sixth, Fourth, and Ninth —have held that their attention on those considerations 32(h) applies Rule notice to variances. See most relevant to the court’s Cousins, 572, 469 United States v. F.3d decision, facilitating pro- the “adversarial (6th Cir.2006) (pub 2006 *6 WL 3435608 “meaningful opportunity cess” and to be Anati, opinion); lished States v. United Bums, contemplated by heard” 501 U.S. (2d 233, Cir.2006); 457 F.3d 237-38 United 137-38, 111 S.Ct. 2182. We therefore hold Evans-Martinez, 1163, v. States 448 F.3d 32(h) that applies Rule to variances as well (9th Cir.2006); v. United States Dav departures, requiring as to give courts to enport, 445 F.3d advance notice of their intent to sentence Seventh, Third, Eighth, Four —the above or below the identified Eleventh —have ruled that such notice is range. required variances. See United Irizarry, 458 F.3d Atencio’s PSR an upward indicated that (11th Cir.2006); Nation, departure might United States v. be warranted because his (3d 189,198-99 Cir.2006); score failed to take into (7th Walker, prior juvenile adjudication States v. account his Cir.2006); Soldier, assault, Long aggravated battery, United States v. posses- (8th Cir.2005). deadly sion of weapon. Cir The Government 32(h) holding cuits argues Rule notice is not that this constitutes notice. How- 32(h) ever, required generally for variances have rea Rule and Bums leave no doubt post-Booker soned that because defendants that the defendant a right has to know in are on notice that the very ground district court must advance the upon which the 3553(a) factors, § consider the the “unfair might upwardly depart district court surprise” Here, underlying vary. rationale Burns does the district court explicitly See, apply. not e.g., Irizarry, 458 at juvenile F.3d disavowed reliance on Atencio’s 1212; Nation, 196; Walker, adjudication 451 F.3d at only ground identified as —the 447 at potential a departure reason for in the such, PSR. As Atencio’s PSR not pro- did Second, Fourth, We take the view of the grounds vide notice of the upward for the and Sixth Ninth Circuits. Bums de- variance, and the district court erred scribes Rule purpose “promoting 32’s as failing give to advance notice of its intent focused, adversarial legal resolution of the and its contemplated reasons. and factual fixing issues relevant to Guide- 32(h) lines sentences.” at Having U.S. decided that Rule error Although occurred, S.Ct. 2182. Booker has rendered we must now determine the advisory, the Guidelines it has not affected standard of apply light review to of “focused, Bums’ mandate for object adversarial Atencio’s failure to to the lack of resolution of legal and factual” sentencing. bases notice at our Since decision in for sentencing; Bartsma, does it negate nor the United (10th Cir.1999), benefits of notice in furthering this end. we have held that a are, indeed, 32(h) constructively object Defendants “on failure to to Rule error at 3553(a) notice” of post factors -Booker. sentencing does not constitute a forfeiture. previous However, Under sentencing regime, today the en banc court over- however, Bartsma, they equally were aware of the requiring rules a defendant to specified object for departure circumstances un- to the lack of notice at 32(h) 32(h) sentencing, the en banc for Rule error Rule error claim of his preserve prospectively. the new rule applies review.6 appellate supra. review note We thus Aten- notice, to the lack objecting Upon error, although claim harmless cio’s move for continu- should then defendant 32(h) of Rule error will be future claims that a generally assume We will ance. plain reviewed for error the absence 32(h) cures Rule continuance reasonable objection. The lower court’s failure by allowing error, rendering it harmless ability diminished Atencio’s provide notice to con- prepare time to adequate parties meaningfully comment just they test or variance — Moreover, considerations. the 38-month have, they prior received notice had could imposed significant, upward variance procedure sentencing hearing. This to the helped notice would have Atencio con- and “focused, adversarial promotes both 32(h) Accordingly, the Rule test its bases. factual legal [sentenc- resolution of harmless. Bums, error was not contemplated by issues” ing] litigation by appellate inefficient avoids B below to its er- the court cure permitting Al- dispute adequacy ror. 501 U.S. of the will 3553(a) that a district court expect we though analysis. sup- district court’s in most cases of Rule a continuance grant variance, of its the district court iden- port 32(h) error, grant we note that failure factors: categories supporting tified two always rever- require continuance will (1) underrepresentation of Atencio’s a modest example, For sal of a variance. (2) history, the violence con- light of a district court’s variance offense. fac- generalized sideration surprise neither entail unfair might

tors notice, may from advance nor profit prior revealed three inci- Atencio’s PSR harmless error. thus constitute juvenile of criminal behavior: dents adjudication for which little information practice under Because our settled explieit- which the court objection need for to was available Bartsma obviated the any opportunity to comment.” 198 point cance of may panel decision overrule A panel through by prior logic persuasive a an law established at This would be F.3d obtaining footnote authorization en banc object to the of requiring defendants to lack if See, e.g., judges active on the court. all from require them to contest the notice would also Meyers, 200 721 n. States v. F.3d United. underlying the sentenc reasons for relevant Cir.2000). (10th opinion This has been However, objection ing to the lack decision. court, all active members to of circulated does not necessitate of notice alone address to overturn it is our unanimous decision and merits; underlying can ing a defendant that a point of law articulated in Bartsma 32(h) merely by pointing object out the Rule appeal right his to does not forfeit defendant requesting a continuance. Because error and failing object error at to to Rule notice that parties now be well aware Rule should sentencing. (Although referred to Bartsma 32(h) them to advance notice of cer entitles "waive[r],” object 198 F.3d at to as a failure decisions, objection requiring tain proper for failure to make term sentencing to the lack of notice is neither at right timely of a is "forfeiture.” assertion reasons, For these unfair nor burdensome. 725, 733, Olano, 507 U.S. States v. and Bartsma banc court now overrules en (1993).) Barts 123 L.Ed.2d 508 32(h) object to Rule parties that must holds application of harmless er that ma reasoned However, sentencing. to time of error at the objection of review even in the absence ror parties, the en to the banc avoid unfairness "complete justified was because the below prospectively. applies this new rule signifi ... short-circuited the of notice lack (2) consider; petty why should at ly did misde- least address the criminal not shouting profanities history adequately meanor for when level fails to account for drunk; prior a 1998 conviction sexual or crime crimes. placed in abuse of a minor. The court also relied on histo- Atencio’s history category criminal II due to the ry physical of abuse of women determin- points three he received for the sexual ing that the Guidelines underrepresented conducting abuse conviction. its history. criminal his The PSR indicates 3553(a) analysis, the district court then Montoya investigating that told agents explain

used this same conviction to its repeated “that had been a victim of she upward variance. physical violent abuse at the of hands pre-Booker precluded Our law sentenc It defendant.” further states that Atenico departing upward from courts based investigating agents admitted to that he already on a used to increase conviction Montoya had a “tumultuous relation- history the criminal level. See United ship” and that he physically “had been Yates, (10th [Montoya] point violent with to the Cir.1994). Yates, course, does not sur striking beating object- her.” Atencio intact; wholly vive Booker that result ed to this characterization of their relation- would be inconsistent with the ship prior sentencing hearing, to the Moreover, nature of the Guidelines. Department consequently the Probation issue the instant case is a attached the First Addendum to the PSR variance, departure. stating it would amend Atencio’s admission Nonetheless, because the Guidelines care investigating agents say the follow- fully prior through account crimes ing: “Mr. Atencio admitted striking, or history categories, a district court time, pushing [Montoya] one and not to a varying departing or on the basis of a pattern of beating her as indicated in this already conviction considered the crimi section.” nal score explain why must least sentencing, At the court if asked that score to reflect fails the seriousness of any objections had to the factual prior crime. Allowing district court statements the PSR or desired an evi- depart in the absence of such dentiary hearing to disputed resolve facts. explanation unjustified would amount After neither Atencio nor the Government double-counting crime, prior objected, the court adopted findings also ability hinder this court’s to review contradictory both the PSR and the Ad- the reasonableness of the variance or de finding dendum in regularly that Atencio parture. See United States v. Sanchez- women, abused and did not address the Juarez, (10th Cir.2006) 1109, 1117 conflict. (“We persuaded are therefore that our previously We have held that failure to pre-Booker requirement object disputed to a fact at the courts provide sufficient reasons to allow forfeiture, hearing constitutes despite pri- meaningful appellate review of their dis objection. submission of a written cretionary sentencing See decisions continues Toledo, context.”). v. apply in the States 985 F.2d post-Booker Explanation of a variance is im We thus review this especially error, portant plain claim for light reasonableness review in which “occurs when (1) (2) error, of the presumptively giv plain, reasonable effect there is that is which (3) en to rights, the Guidelines in this circuit. affects substantial and which Cage, seriously fairness, 451 F.3d at 594-95. explana Such affects the integrity, or detailed, tion need not overly judicial be public reputation but of proceedings.” United, Torres-Duenas, However, already Atencio’s had made 461 F.3d PSR v. Cir.2006) (10th (quotations adjustments to the base offense level two omitted). to account for the seriousness and conse- crime, points four quences adding of his that a court “must—for Rule 32 states “dangerous weapon” of a for the use presentence any disputed portion points five for the “serious” extent of bodi- controverted matter— report or other ly injury sustained the victim. These that a dispute or determine rule on the points point nine were one less than the the unnecessary either because ruling is adjustment permissi- maximum cumulative sentencing, or not affect be- matter will under the Guidelines. ble the the court will not consider cause sentencing.” in Fed.R.Crim.P. matter emphasized The district court Atencio’s 32(i)(3)(B). character- Because Atencio’s injury an of use of axe and extent of in the ization of one incident abuse Montoya, explain why did not Vivian but depiction of controverted the Addendum adjustment point capture the nine failed to PSR, Montoya in the regular abuse of of the violence and heinousness the of- plainly relying erred in the district court Basing the variance on fac- fense. these regular varying abuse in allegedly on the analogous tors was thus to the double- sentence, failing to resolve the but conviction, counting prior rape dis- of deprived This error conflict. 11(B)(1), in supra. cussed Section For the rul- process right due to a his substantial analysis in that same reasons stated —the issue, may disputed on the which facilitation of reasonableness review and significant undermined a basis have impropriety double-counting —we in sen- variance and resulted a lower require why the district court to articulate contradictory factual Adoption tence. adjustments upward failed to account seriously also statements for the violence of the crime. We thus fairness, integrity, public affects the First that: agree with the Circuit Thus, judicial proceedings. reputation already in When a factor is included hold that the district court committed we guidelines sentencing calculation of the failing error to follow Rule plain range, judge rely who wishes to on 32(i)(3)(B). Wolfe, See United States that same factor to a sentence (10th Cir.2006) (re- articu- above or below the must manding for reconsideration where the specifically late the reasons explain district court “did not how differ- particular defendant’s situation is con- finding[ light made factual [a] ] ordinary situation covered ent from the tradictory statements contained guidelines calculation. PSR,” the defendant failed to even where Zapete-Garcia, United States v. object adoption to the of inconsistent Cir.2006). (1st Because the district hearing). statements at the reasons, not articulate such its court did violence of Atencio’s emphasis upward vari- support crime fails to the violence The district court also cites ance.7 of the offense of the variance. imper- "are not relevant in the determination of argues that the court that

7. Atencio district 5H1.10; see also missibly a sentence.” U.S.S.G. enhanced the sentence on the basis 1196, Neary, unequivocally 1198 gender. United States v. The Guidelines race, sex, creed, (10th Cir.1999). origin, response, the Govern- In state that national insists that the sentence not based religion and socio-economic status are factors ment ing incompatible with the III Guidelines were 220, 230-37, Amendment. 543 U.S. Sixth Finally, propriety consider the we (2005). 244, 738, 160 L.Ed.2d 621 imposition, court’s without advance remedy incompatibility, To the Court notice, registration as a of sex-offender Sentencing excised from the Reform Act of In release. Barts- supervised condition of those of the Act that made provisions ma, required provide we a district court to 245^46, mandatory. the Guidelines Id. at special supervised notice of a condition on 258-65, modified, impacts the 125 S.Ct. 738. So release when that condition liberty and is “not on its face Sentencing defendant’s Reform Act of 1984 “makes the charged.” to the offense 198 F.3d related advisory. effectively It re- (citing 1199-1200 States v. Ed quires sentencing consider (10th Cir.1996)). gin, 92 F.3d ranges, permits Guideline but it the court registra held that sex-offender Bartsma fight to tailor the sentence in of other Edgin standard in that tion meets well, statutory concerns as see [18 U.S.C.] charged offense was not a sex crime. On 3553(a).” 245-46, Id. at 125 S.Ct. 738 basis, panel that the Bartsma reversed the (citation omitted); also see United States imposition registration of a sex-offender Bullion, (7th Cir.2006) 466 F.3d requirement the absence of notice. Id. (“[T]he reasonableness, standard of intro- object Atencio failed to to the lack of decision, by duced the Booker confers imposition regis- notice of of a sex-offender broad judge discretion. The requirement. tration our prospec- Given must guidelines, consider the but is no six, application supra, tive of footnote our only by sense bound them. He is bound of Atencio’s claim review remains under factors, statutory sentencing 18 U.S.C. harmless error. Because the district court 3553(a), which are both numerous and failed to notice to Atencio of the vague, giving judge great deal of potential imposition regis- of sex-offender room.”). running requirements in a tration non-sexual of- previously paid This court has lip service context, say fense we cannot the Rule that, Booker, following to the notion dis- 32(h) error was harmless. We reverse the possess trict courts substantial discretion imposition and remand for now-advisory under upon prior notice. Andrews, Guidelines. See United States v. 811-12

IV Nevertheless, noted, I previously have We REVERSE the district court’s sen- serious tension exists this court’s between REMAND tencing decision and for resen- post precedents regarding -Booker appel- tencing opinion. consistent with this

late review of sentences and that portion MURPHY, Judge, Circuit dissents to holding of Booker that the Guidelines are the denial of initial en banc consideration longer mandatory. no United States v. opinion. opinion the court with is Mateo, (10th 1171-72 Cir. BRISCOE, joined by KELLY and Circuit 2006) J., J., (Murphy, joined by Kelly, con- Judges: curring). today fifing pan- With the Atencio, Booker, opinion el United States v. Supreme United States v. No. escap- 05-2279, profound Court held the United States Sentenc- there has been course, gender. gender grounds, unnecessary Of reliance on would on other it is for us impermissible, be but we do not need to reach analyze point. the court’s remarks on the issue. Given our reversal for resentenc- Atencio, Atencio, According requirement in that tension. Under tion specific pre-hearing of detailed and true notice ability of district courts to exercise every case which the fac range set out vary from discretion might justify tors a sentence outside the Sentencing is advisory in the Guidelines advisory range supported by is Federal subject and unwarranted significant 32(h) Rule of Criminal Procedure thereby impediments, threaten- procedural States, Burns v. U.S. ing very discretion mandated Book- (1991). 115 L.Ed.2d 123 Aten procedural impediments er. Because the cio, op. at 1102-04. Neither of these au imposed on the district courts Atencio however, helpful, thorities is inasmuch as Booker, sup- are not are inconsistent with each a specific pre-Booker phe addresses governing or other ported by case law unexpected “departures” nomenon: “from authority, policy, respectful- are bad I generally binding range a Guidelines based ly hearing from the denial of initial dissent pre- on information not contained in the R.App. (providing See Fed. P. 35 en banc. report parties’ sentencing or the sentence rehearing in cases hearing en banc Walker, submissions.” United States v. exceptional impor- involving questions 999, 1007 tance). 32(h) by Rule plain language applies its significant proce imposes Atencio two only to a “departures,” distinct imposition on the of a requirements dural apply post- mechanism that continues to range set out in the sentence outside the Dozier, Booker. United States First, advisory Sentencing Guidelines. a (10th Cir.2006).1 1215, 1217-18 As the no provide pre-hearing district court must however, panel recognizes, Atencio what is tice, pursuant to Federal Rule of Criminal not a “departure” issue this ease is 32(h), of its intent to from Procedure mandatory from a range. Guidelines advisory range set out in the Guide Atencio, Instead, op. this case lines, identify notice must each and which advisory involves a sentence outside an every court is ground the district consider range balancing Guidelines based on a a support of such sentence. Aten 3553(a), factors set out in cio, Second, op. at 1102-04. commonly a sentencing option labeled any advisory variance from an Guidelines Because, Op. at 1103. as the “variance.” range, a district court must undertake a panel recognizes, “departures” analysis propriety detailed distinct, analytically and “variances” are variance, specific with reference to the fac 32(h) Rule does not refer to because 3553(a). tors set out in 18 Aten U.S.C. “variances,” quite it is odd for the Atencio cio, op. proce at 1105-07. Each of these panel to conclude district courts must com- 32(h) dural limitations is inconsistent with the ply with the dictates of Rule before scheme; post sig -Booker each occasions a “varying” from the nificant, Indeed, burden on the range. panel’s impo- untoward the Atencio in the cir- requirement courts in this sition of a notice Circuit. mission, give 1. The Rules of Criminal Procedure the court must Federal contemplating as follows: reasonable notice that specify departure. The notice such a must may appli- depart Before the court from the any ground the court is contem- ground on which cable plating departure. presen- departure either identified for in the 32(h) added). (emphasis report party's prehearing tence sub- Fed.R.Crim.P. or in (1) ly once-mandatory seems more akin on notice that cumstances of this case (2) adjudication than of the rulemaking advisory, to are any Guidelines now 32(h). meaning of Rule range deviation from the Guideline will be premised on at one of the least factors Supreme Court’s decision Nor does the 3553(a). Accordingly, §in listed imposition of a notice support in Burns surprise defendants can claim no as to the courts in the cir requirement on district rely which will upon facts prefatory of this case. The cumstances entirely Thus, portion of Bums notes is based to from the Guidelines. Bums “revolution[ary]” on the and “mechanical” simply pan does not the Atencio sentencing. nature of Guideline 501 U.S. imposition requirement of a notice to el’s 132-35, S.Ct. 2182.2 Because situations in which a district court deter sentencing to occasioned unique changes § mines the factors dictate a sen by Sentencing Reform Act of tence outside the Guidelines in “procedural Court Bums concluded re range. forms,” including specific, advanced notice good Nor is the rule set out Atencio depart, necessary of an intent to were policy. delay The result will be and need- fully implement mandatory expense. Sentencing less additional 133, 138-39, scheme. Id. at judges normally schedule hear- The considerations that drove the deci conviction, ings by at the time of whether sion in are now mere after Bums reasons, plea. many good verdict or For the decision Booker. In the Booker judges frequently district court prepare aftermath, sentencing has to the returned sentencing hearings days within practice prior less formal that existed hearing, newly proposed not weeks. This Sentencing Reform Act of 1984. Bul requirement likely notice will have one of lion, 575; Burns, 466 F.3d at 501 U.S. cf. (“ (1) consequences: judges two trial will be ‘In pre-guidelines S.Ct. 2182 required prepare hear- practice, factors relevant beforehand; ings many weeks or sen- were often in an determined informal fash tencing proceed will stages two in all informality ion. The was to some extent judge cases where the might possibly con- explained by particular the fact that of sider a sentence outside the based rarely fense and offender characteristics 3553(a). the factors set out More- a highly specific required had or sentenc ” over, judges may begin requiring trial ing consequence.’ (quoting U.S.S.G. 6A1.3, commentary)). pre-sentence official submit extensive world, post-Booker most, all parties many, are inherent memoranda in if not cases regard, Supreme In.this Court noted: tences based on the various offense-related by and offender-related factors identified Sentencing The Reform Act of 1984 revo- the Guidelines of the United States Sentenc- lutionized the manner in which district ing Commission. 18 U.S.C. persons courts sentence convicted of feder- 3553(a)(4), (b).... §§ only circum- generally al crimes. See Mistretta v. United stance in which the district court can disre- States, 361, 363-367, 488 U.S. 109 S.Ct. gard the mechanical dictates of the Guide- (1989). 102 L.Ed.2d 714 Before the is Act, lines when it finds "that there exists an Congress generally content to de- aggravating mitigating circumstance of a sentencing ranges, leaving fine broad kind, degree, adequately or to taken imposition ranges of sentences within those Sentencing into judges, consideration Com- to the discretion of individual to be 3553(b). Now, case-by-case ...” on a mission. 18 U.S.C. exercised basis. States, 129, 132-33, "guidelines'1 system under the initiated Burns v. United 501 U.S. Act, (1991). judges district court determine sen- 111 S.Ct. 115 L.Ed.2d 123

mi sentencing hearing procedural requirement before the The second well every possible aggravating completely therein at odds with principles. address these 35(a)(1) consequence, R.App. factor. As a See Fed. P. mitigating (recognizing requirement may very appropriateness new notice well of en banc review complicate sentencing “necessary when slow down and to secure or maintain uni which, decisions”). process formity should be sim- of the court’s post-Booker, The developing informal. in pler and more case law this on the Circuit question appellate of of review sentences Equally at odds with the dis only can be described as hostile to the by cretion returned to district courts advisory by Guidelines scheme mandated panel’s Atencio new require Booker is the Mateo, 1162, Booker. 471 F.3d 1166 ment that to a “variance” the dis J., J., (Murphy,joined by Kelly, concurring) specifically explain, trict court must with (noting this precedents, court’s recent to the factors out in reference set which sliding establish some kind of scale 3553(a) why § appropri “variance” is required under which district courts are to Atencio, op. ate. at 1105-07. This court greater justifications offer the farther a previously has indicated that at advisory sentence varies from the Guide through court need not “march district range, only lines can be understood as 3553(a)’s factors,” § nor does “attempting] to force the district courts to this court “demand that the district court hew as close to the range Guidelines as any magic recite words to show that it possible”). panel With the decision in responsibility fulfilled its to be mindful of Atencio, this court hostility has taken its to Congress the factors that has instructed advisory system Guidelines mandated Rines, to consider.” United States v. 419 (or, by logical Booker to its perhaps, illogi (10th Cir.2005) (quotation F.3d cal) pinnacle: any deviation from the omitted); see Kelley, also United States v. range set out in the purportedly (10th Cir.2004) (hold range specifically justi must be require any this court does not by court, fied the district with reference to part kind of “ritualistic incantation” on the 3553(a) § particular factors invoked. of the district court to establish its consid Atencio, op. at 1105-07. legal (quotation eration of a issue omit ted)). Atencio, in Although required panel we have After the decision it is 3553(a) to in possibly courts consider the factors now as difficult as it could be for a in exercising post-Booker sentencing impose its district court this circuit to discretion, required this court has never sentence outside the set out in the explain “Although many might district courts “to on the record Guidelines. be- Booker, justify how the factors the sen moan the decision in it is the law Lopez-Flores, longer tence.” United States v. of the land. The Guidelines are no mandatory improper In and it is for this court stead, long system appellate as district court is aware review circuit, facto, obligation its consider the numerous that seeks return this de Mateo, vague sentencing mandatory system.” factors set out in to a J., 3553(a), long (Murphy, joined by Kelly, and as as the district court J. actually all out arguments concurring). considers the made For those reasons set Mateo, sentencing hearing, my separate opinion at the the sec- appropri procedural requirement district court’s decision as to an ond set out panel completely Atencio at odds with ate sentence is entitled substantial def erence. Booker. MacFadyen, individually and in his conclusion, decision in panel imposition capacity the ultimate represents as a Director official complexity formality, stringency, iHire, Leasing, Inc.; Asset Value n/k/a/ serious, injects unto-

sentencing. Atencio MacFadyen, individually and in Jason very to the exercise ward obstacles capacity his official as a Director of by the district courts sentencing discretion Leasing, Inc.; iHire, Value Asset n/k/a intended revive. that Booker was Coursey, individually; Megan Melvin outside the advi- imposition of a sentence individually; Coursey, R.J. Friedlan- range in reliance sory Guideline der, individually; Friedlander, Mack §in will be- discretionary factors individually; Friedlander, indi- Katie system- and will painful complex come vidually; Bryan, individually; Laurie It can- ically sentencing process. slow Craft-Denton, individually; Alana job that the sole of this not be overstated Hartman, individually; Eric Dawn court is to determine whether sentence Bair, individually; Mclnyre, Richard court is unreason- imposed the district individually; Hoffman, Bernard indi- Booker, 260-65, able. 543 U.S. vidually; Hoffman, Loma individual- S.Ct. 738. That review should entail ly; Malory Factor, individually; Eric underlying the kind of de novo review Hippel, individually; Greg Von Instead, it long Atencio. as as is clear the Williams, individually; Par- Shawn district court understood and considered ker, individually; Goldberg, Ron indi- arguments parties, the district vidually; individually; Estep, John decision should be af- court’s Fisher, individually; Butch Janine so outside the bounds of firmed unless Rathburn, individually, Defendants- reason as to be considered unreasonable. Appellees. panel Because the decision Atencio is completely principles, with these odds Crusade, Inc., a Consumer Colorado and because the en banc court has chosen corporation, Plaintiff- not to intervene to forestall these deficien- Appellant, cies, I respectfully from the denial dissent hearing en banc. v.

Sunbelt Communications Market ing, LLC, liability a Nevada limited company; Horne-Albrecht, Lara L. its directors, Defendants-Ap officers CENTER, INC., FAX US LAW pellees. corporation,

a Colorado Plaintiff-Appellant, Crusade, Inc., Consumer a Colorado corporation, Plaintiff-

v. Appellant, IHIRE, INC., Leasing, Asset Value n/k/a Inc., Maryland iHire, corporation; LLC, liability a Delaware limited Group, Inc., a Scientific Research Flori- MacFadyen,

company; David individ- corporation; McClintock, da Brian ually its capacity and in his official officer(s) director(s), iHire, President Defendants- CEO n/k/a Inc.; Leasing, Appellees. Value Asset Donald

Case Details

Case Name: United States v. Atencio

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 17, 2007

Citation: 476 F.3d 1099

Docket Number: 05-2279

Court Abbreviation: 10th Cir.