UNITED STATES оf America v. Luis Misael CASTRO-VALENZUELA, Appellant.
No. 07-4818.
United States Court of Appeals, Third Circuit.
Filed: Dec. 31, 2008.
550 F.3d 986
Submitted Under Third Circuit LAR 34.1(a) Dec. 2, 2008.
Robert Daniel Boyce, Boyce & Isley, PA, Raleigh, NC, for Diane W. Pace.
Before: AMBRO and GREENBERG, Circuit Judges, O‘NEILL*, District Judge.
O‘NEILL, District Judge.
Appellant Luis Castro-Valenzuela appeals the judgment of sentence entered by the District Court. Appellant contends that the District Court erred because: (1) the guideline range triggered by the base level was excessively increased by a cross-reference, and the Supreme Court‘s holding in Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) permits district judges to impose a lower sentence if the within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, (2) the District Court focused upon the underlying conduct rather than on the offense of conviction in determining the sentence, and (3) application of the cross-reference circumvented the presumption against extraterritorial application of federal criminal laws. We will affirm the District Court‘s sentence because the District Court properly fоllowed the appropriate precedents of this Court and the Supreme Court.
I.
In March 2005, Castro-Valenzuela, a citizen of Chile, was living in Chile with his girlfriend. He arranged to meet his girlfriend‘s seven-year-old niece at his apartment and recorded himself as he forced her to engage in violent, sexually-explicit conduct. In April 2005, he traveled from Chile to the United States with the video-recording. His girlfriend later discovered the video and turned it over to the police. Appellee, the United States, filed a criminal complaint in the District Court for the District of New Jersey on August 18, 2006 charging Castro-Valenzuela with violating
On December 20, 2007, the District Court sentenced Castro-Valenzuela to a term of 220 months’ imprisonment. The statute
Without the cross-reference, Castro-Valenzuela argues that the proper level is that set by
The District Court had subject matter jurisdiction pursuant to
This Court reviews sentences for reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.2006). “The record must demonstrate the trial court gave meaningful consideration to the
In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597-98, 169 L.Ed.2d 445 (2007), the Supreme Court held that sentencing decisions by district courts are to be reviewed under a deferential abuse of discretion standard. “We may not reverse the district court simрly because we would have imposed a different sentence.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008), citing Gall, 128 S.Ct. at 597. A sentencing court should “consider every convicted person as an individual and every case as a unique study in human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue.” Gall, 128 S.Ct. at 598 (quoting Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). This Court noted in United States v. Jackson, 523 F.3d 234 (3d Cir.2008), that ”Cooper continues to be the law in this Circuit, but we will read it in light of Gall.” Similarly, the Supreme Court stated in Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007): “Where a matter is ... conсeptually simple ... and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.” District courts have broad discretion in sentencing. U.S. v. Gunter, 527 F.3d 282, 284-85 (3d Cir.2008). Nevertheless, “[a] district court by definition abuses its discretion when it makes an error of law.” Wise, 515 F.3d at 217 (internal citations and quotations omitted).
III.
Our decision in United States v. Gunter rеquires district courts in this circuit to follow a three-step sentencing procedure:
- They must continue to calculate a defendant‘s Guidelines sentence precisely as they would have before [United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)];
- In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account this Court‘s pre-Booker case law, which continues to have advisory force; and
- Finally, they are required to exercise their discretion by considering the relevant
§ 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.
462 F.3d 237, 247 (3d Cir.2006) (internal citаtions, quotation marks, and brackets omitted). After determining the appropriate sentence, the district judge must adequately explain the chosen sentence to allow for meaningful appellate review, and, if the judge chooses to deviate from the Sentencing Guidelines, the more significant the deviation from the Guidelines the more
Here, the District Court carefully calculated the applicable Guidelines range (including the cross-reference), considered the
Castro-Valenzuela argues that the sentence as applied was substantively unreasonable for three reasons: (1) the Guideline range triggered by the base level was excessively increased by the сross-reference and Kimbrough permits district judges to impose a lower sentence if the within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing; (2) the District Court focused upon the underlying conduct rather than on the offense of conviction in determining the sentence; and (3) application of the cross-reference circumvented the presumption against extraterritorial application of federal criminal laws.
A. The Federal Sentencing Guidelines for Child Pornography
Castro-Valenzuela argues that his sentence was unreasonable because the Guideline range was excessively increased by the relevant cross-reference at
The question of whether the Kimbrough reasoning should apply to the child pornography Guidelines applied in this case is not really at issue here. In Kimbrough, the district court sentenced below the Sentencing Guidelines rаnge based on an explicit disagreement with the Guidelines. Kimbrough, 128 S.Ct. at 575; U.S. v. Garcia, 284 Fed.Appx. 719, 721-722 (11th Cir.2008). Here, the District Court did not explicitly disagree with the Guidelines; indeed, the Court followed the Guidelines’
B. Sentencing based on the underlying cоnduct undermined respect for law
Castro-Valenzuela argues that the District Court erred during sentence determination when it focused on the underlying conduct of the rape and creation of the child pornography rather than on the offense of conviction of bringing child pornography into the United States. While he does nоt suggest that this conduct could not be legally considered, he argues that its inclusion undermines the
Moreover, it was proper to consider the underlying conduct of the rape and creation of child pornography in Chile in sentencing. As the Court of Appeals for the Seventh Circuit noted in U.S. v. Dawn, 129 F.3d 878, 884 (7th Cir.1997), sentencing judges may look to conduct surrounding the offense of conviction in fashioning an appropriate sentence, regardless of whether the defendant was ever charged with or convicted of that conduct or whether he could be. See, e.g., United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam), noting that it is permissible tо consider conduct underlying charges of which the defendant was acquitted during sentencing.
Taking into account conduct related to the offense of conviction in sentencing is not the same thing as holding the defendant criminally culpable for that conduct. Watts, 519 U.S. at 154; Witte v. United States, 515 U.S. 389, 401-04, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). The offense of conviction remains paramount in terms of the statutory minimum and maximum sentences and what is relevant for sentencing purposes. Id. Indeed, the purpose of looking to circumstances beyond the offense of conviction is to decide what degree of punishment to impose within the typically broad range authorized by the criminal statute. Dawn, 129 F.3d at 884, citing Watts, 519 U.S. at
While it may appear that Castro-Valеnzuela was sentenced for a different offense because of the cross-reference, in fact he was sentenced solely for the crime of which he was convicted. Id. He was not sentenced for producing child pornography when the District Court cross-referenced the
C. Extraterritorial Application of Federal Criminal Laws
Castro-Valenzuela argues that applying the cross-reference circumvented the presumption against extraterritorial application of federal criminal laws. Though Congress amended
Additionally, Castro-Valenzuela argues that considering his conduct abroad in sentencing will prevent Chile from prosecuting the child-rape shown on the video. It is unclear why this would be true and the Government notes that Chile will have the opportunity to prosecute Castro-Valenzuela for his conduct. The United States need not refrain from seeking punishment for the transport of child pornography into this country merely because Castro-Valenzuela may be punished for other crimes elsewhere.
Finally, Castro-Valenzuela argues that all of thеse actions, taken as a whole, render the sentence unreasonable. However, as discussed, the District Judge did not abuse his discretion; instead he applied an appropriate within-Guidelines sentence after acknowledging the advisory na
Because we find no basis upon which to conclude that the District Court abused its discretion when it imposed a within-Guidelines sentence, its sentence will be affirmed.
THOMAS N. O‘NEILL, JR.
UNITED STATES DISTRICT JUDGE