UNITED STATES of America, Plaintiff-Appellee, v. Benjamin MENDEZ, Jr., Defendant-Appellant.
No. 11-3022.
United States Court of Appeals, Eighth Circuit.
Submitted: June 11, 2012. Filed: July 19, 2012.
685 F.3d 769
Forde Fairchild, AUSA, Sioux City, IA, for appellee.
Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
MELLOY, Circuit Judge,
Defendant Benjamin Mendez, Jr., appeals the sentence he received after pleading guilty to being a felon in possession of a firearm in violation of
On June 27, 2010, officers responded to multiple reports of fireworks or shots having been fired at a home in Storm Lake, Iowa. After arriving аt the home, officers received an additional report that six to eight shots had been fired. An officer then observed Defendant exit the back of the home carrying a semi-automatic 0.40 caliber handgun. The officer drew his own weapon and repeatedly ordered Defendant to stop. Defendant did not stop, but continued to a fence at the reаr of the home’s yard and threw the handgun over. He then surrendered. Officers subsequently found six spent 0.40 caliber shell casings in a garbage can in the home.
Eventually, Defendant pleaded guilty with no рlea agreement in place. The PSR assessed twenty criminal history points which were reduced to sixteen because eight of the twenty were for “one-point” offenses, and thе Guidelines only permit four such offenses to be counted. See
Based upon
The district court found an upward departure based upon recidivism and understated criminal history appropriate. Because Defendant was already in the highest criminal history category, however, the district court could not depart horizontally to a higher criminal history category. The court elected to depart vertically, adding two offense lеvels to its base calculation. This resulted in an adjusted advisory Guidelines range of 92–115 months. The statutory maximum was 120 months’ imprisonment, and the court imposed a sentence of 108 months, finding the sentenсe to be sufficient but not greater than necessary pursuant to the
Defendant now presents several interrelated arguments which appear to be premised on the mistakеn conclusion that the district court made erroneous factual determinations concerning the details of the present offense and Defendant’s many prior offenses. Defendant argues there was confusion in the record as to whether he actually fired a weapon on the day of the present offense, whether the firearm had an obliteratеd or missing serial number or whether the number was simply not reported, whether he adequately objected to factual narratives in the PSR surrounding his prior offenses, and whether he also pоssessed or fired a shotgun on the day of the present offense.
It is clear to us upon reading the sentencing transcript and reviewing the record in this matter that the district court based its dеparture decision and overall sentencing determination broadly on Defendant’s obvious pattern of recidivism and exclusively on factors clearly supported by the reсord. That the district court and the attorneys at sentencing discussed arguably confusing issues and aspects of the record does not lead to the conclusion that the experienced district court judge in this case relied upon any of those issues or objected-to portions of the PSR in reaching its conclusions.2 Rather, the court itself raised with the attorneys the concerns about confusion in the record. What the court actually found was that “[Defendant’s] criminal history started early at age 17, and it really has never abated.” The court listed convictions by year and concluded, “it’s just an unrelenting pattern of repeated—I mean, he’s a serial recidivist.” The court later stated, “So that’s to me one of the most aggravating factors in this case, maybe the most aggravating factor. Nothing seem[s]—I mean, three prison sentences you think would deter most people from being a felon in possession. But it obviously didn’t deter Mr. Mendez at all.”
The district court, then, concluded Defendant was an incorrigible recidivist based upon the existence and timing of his prior convictions. These facts wеre undis-
Defеndant also argues that the district court abused its discretion by failing to take into consideration the facts that he committed many of his prior offenses before turning twenty-one and that sоme of his prior offenses were already considered for two purposes before he was given a departure. As to the latter, Defendant argues his offenses were counted for criminal history purposes and also to set the heightened base offense level of twenty-four pursuant to
The district court expressly commented upon Defendant’s agе at the time of his earliest convictions. The court, however, elected to emphasize the length of Defendant’s period of criminal behavior as evidence of incоrrigibility rather than focus upon Defendant’s age at the beginning of that period as a mitigating factor. This election was well within the court’s discretion. United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir.2011) (stating that a court may “assign relatively grеater weight to the nature and circumstances of the offense than to the mitigating personal characteristics of the defendant”).
Further, even if Defendant’s double-counting typе argument enjoyed legal merit as a general matter, it rests upon a factually flawed view of the record.
Finally, having determined that the district court committed no error in relation to the traditional departure, we find no abuse of discretion in the District Court’s application of
We affirm the judgment of the district court.