United States v. Garcia-Lara

TACHA, Chief Judge. Circuit Defendant-Appellee Guadalupe Garcia- pleaded Lara guilty to one pos- count of session with intent to grams distribute 500 or more of methamphetamine in violation 841(a)(1). of 21 U.S.C. Because Mr. Garcia-Lara had two convictions for offenses, controlled substance the “career offender” applied enhancement to his advi- sory sentence Sentencing under the U.S. (“U.S.S.G.” “Guidelines”). See U.S.S.G. 4B1.1. Believing the career offender enhancement overstated Mr. Gar- history, cia-Lara’s criminal the District Court sentenced him ato below-Guidelines imprisonment. 140 months’ appeals The Government that sentence as substantively Exercising unreasonable. jurisdiction pursuant § 3731, to 18 U.S.C. we vacate Mr. Garcia-Lara’s sentence and resentencing. remand for enhance- offender if the career Lara as I. BACKGROUND advi- Noting that the apply. did not ment High- a Kansas November On a non-career sory Guidelines Mr. Garcia- stopped trooper way Patrol im- months’ 140 to 175 would be driving he was speeding Lara sentenced the District Court prisonment, Kansas. Emporia, 35 near Interstate to 140 months. Mr. Garcia-Lara the ve- search consent trooper received Garcia-Lara, occu- the sole Mr. hicle from II. DISCUSSION vehicle, approxi- and found of pant and 557 marijuana pounds mately 18 Sentencing Review A. Post-Rita inside hidden methamphetamine grams of Booker, U.S. v. States Since United in the trunk tires found spare two (2005), 738, 220, 160 L.Ed.2d 125 S.Ct. indict- an jury returned grand A vehicle. we stated that repeatedly Court has Garcia-Lara, charging Mr. against ment sentencing deter court’s a review district in- possession count of with one him reasonableness, guid which is mination for more grams or to distribute tent in 18 factors delineated statutory by the ed 21 U.S.C. in violation methamphetamine 3553(a). See, e.g., United § 841(a)(1). pleaded Mr. Garcia-Lara § (10th 1050, Cir. Kristl, agree- plea a charge without to the guilty 2006). recently Supreme Court’s 17, 2005. February ment on — States, Rita v. opinion United issued a prepared Office Probation The U.S. 2456, U.S.-, 168 L.Ed.2d 203 127 S.Ct. (“PSR”) Report Investigation Presentence reason- (2007), majority referred sen- Garcia-Lara’s anticipation of Mr. of discretion” anas “abuse ableness review criminal reported a tencing. The PSR (“Given our at 2465 id. standard. base and an initial category of V history ‘rea- appellate in Booker explanation of Mr. Because of 32. two level offense merely asks whether review sonableness’ were convictions Garcia-Lara’s discretion, the abused its trial court as defined offenses substance controlled applied to reasonableness presumption [of 1.2(b), applied PSR § 4B U.S.S.G. only applies sentence] a within-Guidelines Guide- of the provision “career offender” review.”). now, in write We appellate 4Bl.l(b)(A), his raising lines, § U.S.S.G. the Su- detail, to make clear some his history category VI to reason- in Rita reference Court’s preme a applying After level to base offense abuse-of-discretion as an review ableness level the offense reduction three-level change appel- nothing does standard the PSR responsibility, acceptance this Circuit standard late reasonableness a total had Mr. Garcia-Lara concluded explain, weAs since Booker. applied has and a criminal of 34 offense level consistently has post-Booker our case law advisory VI, resulting category reasonableness, principle that applied the months’ to 327 of 262 3553(a), the measure § by as defined imprisonment. a district court’s use of appropriate 3553(a), the Dis- 18 U.S.C. Applying differently, we discretion; or, review put that a sentence concluded trict Court dis- for abuse of court’s sentence district months, of the at the bottom cretion, asking whether Mr. over-represented range, factors. under the resulting in history, Garcia-Lara’s reasonableness Our to ac- necessary greater a sentence has neces- Booker review since standard of 3553(a). Accord- goals of complish a review of sarily been Garcia- Mr. ingly, the sentenced decision for abuse of discretion. 3553(a), For ex and this Court may ignore ample, legal because a standard based on district court’s errors interpretation. inherently reasonableness is depen fact Gell, Cooter & U.S. 110 S.Ct. dent, see Cooter & v.Gell Hartmarx Corp., 2447 (noting that an abuse-of-discretion 384, 401-05, 496 U.S. 110 S.Ct. 110 standard “preclude does not (1990), L.Ed.2d 359 implicitly have ac court’s correction of a district court’s legal knowledged that employ an abuse-of- errors”). discretion standard reviewing a district short, in determining whether a court’s factual findings error, for clear reasonable, sentence is we defer to the United States v. Valtierra-Rojas, 468 F.3d district court’s exercise of discretion within Cir.2006). 1241 n. 8 Moreover, the bounds of “[T]he reasonableness: fact as the recognizes, dissent Booker itself that there inevitably is a range sen implicitly equates reasonableness review tences that could be held reasonable means discretion, review abuse of that our affirmance of a Rita sentence simply makes will nec equivalence that explic short, defer, essarily effect, it. in says Rita nothing new about district of review. standard court’s exercise of discretion choosing a particular sentence within range.” that But though even we accord deference to United Sanchez-Juarez, v. States 446 F.3d a district decision, court’s sentencing it is 1109, (10th Cir.2006) 1117 (emphasis add clear that district courts apply, must ed). The fact that a appellate our review is guided by, the fac exists, 3553(a). tors set sentences beyond § forth 18 U.S.C. which we will not Pruitt, United v. States defer 1298, court, 487 F.3d to a district makes clear that (10th Cir.2007) (“The district court there are definite limits on a sentencing must the sentencing consider factors set court’s exercise of Rita, discretion. See forth in § 18 U.S.C. impos when (“In at S.Ct. sentencing, as in ing sentence.”); Kristl, a 437 F.3d at 1053 areas, other judges at times make (noting appellate reasonableness re mistakes that are substantive.... Circuit “guided view is by the set factors forth in courts exist to correct such mistakes when 3553(a)”). U.S.C. Because reason occur.”). they appellate Our review cannot in sentencing ableness defined statu merely stamp rubber the district court’s tory factors, it necessarily legal involves decision. Consequently, determinations. even if we Rather than announcing new or a re- defer to lower courts’ of the review, vised standard of simply Rita af- factors, we cannot do so they commit when firmed the appellate courts’ application of See, legal errors. e.g., United States v. “presumption” a reasonableness with- (10th 1095, 1108 Cir.2002) 316 F.3d Soussi in-Guidelines sentences appellate on re- (“A district court abuses its discretion if it 2462; view. Id. at see id. at also law.”). makes an Thus, error of a district (“[T]he presumption that, reflects the fact may court abuse when, its discretion by the time appeals an court is considering example, it gives statutory one factor too a review, within-Guidelines sentence on see, much weight, e.g., United v. States both the sentencing judge and the Sen- Cage, 585, 451 F.3d Cir.2006), or tencing Commission will expressly have reached the disregards another, see, e.g., same United proper conclusion as to the (10th Cir.2007). case.”). in the is, particular Indeed, That may courts ignore not applicable holding case law Court’s in Rita simply was interpreting reasonableness under appellate a employ presump- ness,” applicable id. at reviewing when of reasonableness tion of the policy statements sen- within-Guidelines proper proeedurally re- nevertheless Court’s refer- Sentencing Commission purpose tences. review statutory to reasonableness factors in Rita ence main to em- standard abuse-of-discretion an See 18 must consider. of reason- presumption phasize (5). Court 3553(a)(4), Supreme theAs (i.e., presumption appellate is an ableness Booker, the sen- recognized explicitly it): “We apply may not sentencing courts del- contained tencing factors before us presumption that the repeat discretion. 543 U.S. imit district court’s Given presumption. appellate (disagreeing with 264, 125 S.Ct. 738 at ‘rea- appellate in Booker that emphasis Booker, sentencing court that, after view merely asks whether review sonableness’ possessed discretion has the same discretion, the its court abused the trial Act). Because the Sentencing to the re- only appellate applies presumption 3553(a)(4) are a factor words, the In other at 2465. Id. view.” its dis- (5), sentencing court abuses (i.e., proposition a settled noted consider them. when it cretion does review ‘reasonableness’ “that Booker, 125 S.Ct. 738 543 U.S. court abused the trial merely whether asks (“The courts, bound to while not discretion”) a emphasize in order to its Guidelines, those must consult the apply may be inferred logical conclusion account them into and take Guidelines (i.e., applies presumption that “the it from Cage, 451 also sentencing.”); see when review”). appellate only on (“Booker origi- does not place regarding Court’s statement To turn the entirely in the sentencing decisions nal presumption of the nature the the judges; Guidelines— of trial discretion of the standard holding regarding into a political will of the expression as an out review, the statement the takes dissent advisory in- to assert Congress—continue by relying expands upon of context decisions.”). on those fluence concurring opinion, on Justice Stevens’s relying joined. Ginsburg Justice which im continued the recognizing concurrence, the dis- on Justice Stevens’s Guidelines, not treat we do of the portance duty apply Su- sent misunderstands dissent mandatory, as the nearly them Stevens Justices precedent. preme Court a Indeed, emphasize suggests. majority the fully joined Ginsburg discretion, a conclude may, in its (not the judgment), and merely the opinion serves best sentence non-Guidelines only two votes. garnered concurrence 3553(a). purposes re- may have been compromises Whatever its discretion But a exercises and Gins- bring Justices Stevens quired to, weight little give or majority disregard, were made burg on board (5), 3553(a)(4), majority factors, § in the reflected text Guideline are legal sentence, no find reasonable has it must crafting the concurrence opinion. As remaining supplement as a in the doing not read it so weight, we justification will majority clear conclusion Court’s A court’s Supreme to the factors. “wrong” opinion. simply are that the statutory inadequate reflection an Rita that, while Finally, note an unreasonable sentencing purposes clear that sentence made also unless factors is not enti- falling outside imposed the sentence justify can the court unreasonable- “presumption tled to in light of the facts of the particular case District Court’s reasons sentence 3553(a). considered under imposed support the conclusion that sentence is substantively reasonable. B. Mr. Garciar-Lara’s Sentence that, We have held “[t]he farther We now turn specifically to Mr. Garcia- court diverges [trial] Lara’s Applying sentence. the “career of- guideline range, the more compelling the fender” provision Guidelines, reasons for the divergence must be.”1 § 4Bl.l(b)(A), U.S.S.G. adjustment and an Valtierra-Rojas, 468 F.3d at 1239 (quota for acceptance responsibility, the Dis- omitted) (alterations tion in original). trict Court correctly an advisory calculated Specifically, an “extreme” divergence is range of 262 to 327 months’ reasonable given Cage, “dramatic” facts. imprisonment. The court then sentenced 451 F.3d at 594. A “substantial” variance Mr. Garcia-Lara to 140 imprison- months’ requires reasons, “compelling although 47%, ment —a 122-month decrease from they need not be as dramatic as the rea the 262-month Guidelines minimum. supporting sons divergence.” extreme We note at outset the Hildreth, F.3d at (quotations problem here does not inhe manner omitted). A lesser “significant” but still which the District Court set forth its rea variance only needs “sufficient explanation soning concerning the imposed. justification” to be within the words, In other reasonableness. United States v. Bishop, in a procedural sense. Cage, 451 F.3d Cir.2006). “[rjeasonableness at 591 (explaining has To magnitude assess the of a variance, both procedural and substantive compo we look to the difference between the advi nents”). Indeed, the District Court cor sory Guidelines range and sentence rectly the advisory calculated imposed in terms of both percentage and then pertinent noted the absolute number of 3553(a) § months. Valtierra- factors in varying considered Rojas, 468 F.3d at 1240. from that In terms advisory of the sentence. See United months, absolute number of Sanchez-Juarez, States v. 1109, 122-month F.3d (10th Cir.2006) divergence in this case (holding closely more re “provide must sembles variances sufficient reasons we have characterized allow meaningful appellate “extreme,” see, review of e.g., their United States v. discretionary decisions”). Mateo, sentencing The F.3d Cir.2006) issue before (99 us is therefore whether the months), than those we have character- 1. This method follows recognition from our Guidelines, not to follow the "represent which that the "Guidelines expression pop- are an of advisory aspect 3553(a) critical § of political ular will sentencing about that is Cage, factors." By F.3d at 594. looking entitled to due consideration when we deter- justification for more sentencing from a mine Cage, reasonableness." 451 F.3d at the further it varies from Guide- By requiring justification more the fur- sentence, lines simply we hold sentencing ther the court varies from the rec- statutory duty courts to their to consider all of sentence, ommended Guidelines we do not case, any factors. we note accord a non-Guidelines presump- sentence a Supreme that the Court will address the valid- Instead, tion of un recog- reasonableness. we ity type of this of "proportionality” review that, nize imposes when during Gall, its next Term. See United States v. sentence, provide non-Guidelines it must rea- then, No. Until prece- 06-7949. our Circuit application sons justifying its regarding dent sentences non-Guidelines re- case, factors to particular the facts see binding. mains 3553(c)(2), 18 U.S.C. including its decision do The history. criminal his see, “substantial,” e.g., ized as of- the career months). not condition (27 The 47%- at 1128 commission prior closely provision however, fender decrease, more percent indeed, § re- violence; 4B1.1 have character- crimes divergences resembles felony prior convictions only “two quires See “significant.” or as “substantial” ized a controlled violence or a crime of categorizing either (reviewing at id. 4Bl.l(a) cases). offense.” U.S.S.G. need not decide But substance variance added). career does Nor is “extreme” divergence (emphasis whether quantity because, the level a threshold provision set offender even “substantial” vari- sub- for a controlled substantial in order apply requirement scrutiny we Indeed, the not reason- qualify. ances, imposed conviction the sentence stance below, guide- the District career offender explain behind the purpose As we able. the variance intent justify congressional out carry did is to line Court recidivism, repeat including reasons.” “compelling target specific § 4B1.1 U.S.S.G. drug traffickers. the 140-month based The District background. cmt. the “defen- on its conclusion category and history PSR, is no there in dant’s reflected As ad- the career impact of is a recid- overall that Mr. Garcia-Lara question seriousness overstates justment Mr. Garcia-Lara drug dealer. Since ivist pro- defendant’s from Mexico [the] the United entered greater which a sentence duces his time most of spent he has of 18 goals accomplish necessary to con- largely for probation, prison or on this reaching conclu- § 3553.” PSR offenses. substance trolled none noted that sion, specifically the court 1990 for August beginning lists arrests for were convictions of Mr. Garcia-Lara’s Mr. indicates that offenses and narcotics convic- violence, drug his crimes of was ordered deportation Garcia-Lara’s “large quantities” not involve thereafter, tions did in March Shortly was at drug last conviction drugs, his Ap- selling cocaine. convicted he was (Mr. years was 30 Garcia-Lara age of 22 was Garcia-Lara Mr. while parently his sentencing), time of offense, old he serving probation 2]é been has about prison term in “longest aof or sale transport for the arrested facts, Based on these years.” arrested, substance; con- was controlled of 140 months jail concluded for days in ten victed, spent and to “reflect and reasonable” “proper for was was arrested and trespass; criminal offense, provide to the seriousness a week Less of cocaine. the sale from public protect cocaine, just punishment, selling for arrest this last after defendant, and crimes of the further probation Garcia-Lara’s Mr. disparities avoid unwarranted It revoked. was 1991 conviction March similar records among defendants over one served he then appears con- of similar guilty have been found who prison term year three-year of his 3553(a)(2)(A), See 18 duct.” Approxi- January 1994. in paroled was (6). (2)(C), released being after two months mately was arrested Mr. Garcia-Lara parole, Mr. Garcia-Lara’s First, fact that possession subsequently convicted mod- involved nonviolent crimes were two sentenced and was of cocaine support does not drugs quantities erate one serving over prison. in After years Court’s conclusion the District May paroled he was prison, year overstates enhancement career offender Just short of two months after factors, be- that justify imposi- ing from prison, released Mr. Garcia- tion of a Here, non-Guidelines sentence. Lara was arrested and subsequently con- the District provided Court has none. possession victed of cocaine base for particular, decision sale. He a five-year prison received sen- not to apply the career guideline tence and served over two-and-a-half justified is not by “particular characteris years prison before being released on tics of the defendant” that are “sufficiently parole in June 1998 and subsequently de- Mateo, uncommon.” 471 F.3d at 1169. ported. Less than years two after he Rather, Mr. Garcia-Lara’s criminal history was deported, Mr. Garcia-Lara was requirement satisfies the guide for the again arrested —this time for re-entry af- application, line’s namely two con prior deportation ter was sentenced to 48 —and trolled substance offenses. In addition to months in custody followed three offenses, these the PSR notes several con years supervised release. He served trolled substance arrests that did not re years three-and-a-half in prison and was sult in conviction or for which disposi released custody from in November 2003. tion Further, is unknown. the fact that Mr. later, Less year than one on November Garcia-Lara’s last controlled of substance 20, 2004, he committed the instant of- fense occurred years when he was old fense involving pounds marijuana ignores the fact spent that he much of the grams over 500 of methamphet- intervening in prison or, time presumably, amine. every For separate criminal con- outside country after he deported. viction, gave Mr. Garcia-Lara a different Similarly, even fact that Mr. Garcia- alias. Lara’s longest prison term was three-and-

We recount Mr. (not Garcia-Lara’s years criminal a-half half, two and a as the history in such detail illustrate found) his dem- District Court ignores reality onstrated propensity and, to break the law that he had sentences, several such many particular, drug commit following just offenses. a few prior months after Thus, to the extent the District Court be- prison. short, release Mr. Garcia- lieved the career offender enhancement Lara’s characteristics and over-represented Mr. Garcia-Lara’s are not “out of ordinary.”3 Cage, 451 history, ignored Congress’s pol- F.3d at 596. As clear, our case law makes icy of targeting drug recidivist offenders a sentencing not accord ordi for more punishment.2 severe nary Such extraordinary weight. Id. at exercise of the 595; District Court’s discretion see also 485 F.3d at 1129 may be reasonable if there are sufficiently (holding that sentence was unreasonable reasons, compelling after considering the because the court did not distinguish the note, out, 2. We as the points District Court prior dence of criminal behavior the inter- that encourage the departures Guidelines vening period.” "[i]f § U.S.S.G. app. 4A1.3 cmt. reliable information indicates that the defen- n. As 3. the lengthy recitation of Garcia- Mr. history dant's category indicates, substantially Lara’s record his case is not the over-represents the type seriousness of the defen- of case that departure. warrants such a dant's criminal or the likelihood that the defendant will Pruitt, commit other crimes.” (affirming at 1310 F.3d as Cf. 4A1.3(b)(1). § U.S.S.G. Application The reasonable a 292-month Guidelines sentence clear, however, Notes make that the Guide- for a career offender who a had nonviolent contemplate when, lines departure a such history and whose controlled substance example, ‘‘for the had defendant two minor involved quantities offenses drugs small misdemeanor years close to convictions ten years and occurred before the for offense prior to the instant offense no evi- other the imposed). which sentence was added). 3553(a)(6) Be- (emphasis § the ordi- duct.” “from his offense defendant Mr. distinguish not the court did cause upon which nary defendant of- ordinary career the from calculated”). is, a sen- Garcia-Lara That sentence have considered fender, should the court the Guide- ignore may not tencing court would further the chosen sentence how ordinary defendant calculation lines uniformity respect with sentencing sentencing phi- goal of adopt its own instead rec- with similar offenders at 1129. career F.3d to other losophy.4 of the same offense. convicted ords case, because Moreover, present in the ap- from the divergence court’s substantial Mr. distinguish failed to the District Court clearly does not range plicable offenders, career other Garcia-Lara goal. that further 3553(a) factor § incorrectly applied sum, career sentencing “the need a requiring consideration crim- sentencing disparities career offender’s not have a if he did avoid unwarranted sufficiently compelling record, defendants.”5 absent inal among [similar] explained 3553(a)(6). circumstances, Court the statuto- The District does not serve cre- did not District Court. by sentence the 140-month noted ry purposes with among defendants sentence 140-month “disparity” Court’s ate The District the sentence records because unreasonable. similar is therefore of a “would be within III. CONCLUSION same who under the defendant reasons, VACATE we foregoing this But For offender.” as a career not treated RE- unreasonable Mr. Garcia-Lara’s on the depends logic resentencing. MAND for Garcia-Lara that Mr. determination career offender. as a not be treated should dissenting. LUCERO, Judge, Circuit requires specifically The statute to ac- majority fails panel Because “the need court consider deference cord disparities avoid unwarranted abuse of under an entitled it is which similar records among defendants Unit- standard, as announced con- discretion of similar guilty found have who been erroneous), clearly they are that, conclude remanding not by insists 4. The dissent legal conclusion nullify "credit” its "necessarily trial we need not but resentencing, long- finding” "a sentence one. it is not court’s 3553 if greater be it would selected er than that goals of accomplish the necessary to conclusion, ig- we do not reaching this dissent, According § 3553.” Shaw, in United States precedent nore "finding,” we were to "credit” Cir.2006). Tension 471 F.3d 1136 resentencing. The District remand for factors as among the exist in fact not, however, that a Guidelines "find” did defendant, and it is particular they apply to necessary ac- greater than sentence was that ten- job to resolve sentencing court's Here, Dis- goals. complish the Shaw, we dis- But at 1141. sion. Mr. Garcia-Lara's “found” that trict Court suggestion that such agree with dissent's nonviolent, small involved were past crimes tension to this case. For exists in tension years ago, several drug quantities, occurred (“the 3553(a)(1) history and between exist then long It sentences. result and did not defendant”) characteristics these considered sentencing), the 3553(a)(6) (uniformity in factors, reaching legal conclusion ultimately distinguish Mr. Gar- first Court must District fulfills sentenc- particular sentence that a history from characteristics cia-Lara’s 3553(a). reviewing In ing purposes under weAs ordinary career offender. sentence, those we have "credit- Mr. Garcia-Lara's to do so. Court failed (i.e., explain, the District findings dowe court’s factual ed” the Booker, 220, States v. ed 543 U.S. 125 S.Ct. trict court has abused its discretion in 738, (2005), 160 L.Ed.2d 621 applying fails to factors. follow the letter spirit of the Court’s While Booker itself implicitly equates — States, mandate in Rita v. United U.S. reasonableness review of sentences with -, 2456, 127 S.Ct. 168 L.Ed.2d 203 discretion, review for abuse of see 543 U.S. (2007),I respectfully dissent. 261-62, at 738, 125 S.Ct. the Court made my In opinion, equivalence explicit decision announced Rita. “Given today explanation Booker,” stands as A our exhibit points: two the Rita ma- First, instructs, jority it “appellate shows that notwithstanding the ‘reasonableness’ review repeated merely reaffirmation asks whether the trial clarification of Rita, its appellate an abused discretion.” abuse discretion 127 S.Ct. at standard (emphasis added). by majority I Rita, disagree and concurrence in the majority that in pull “mak[ing] the Newtonian that equiva- of the Guidelines to- explicit,” lence “says ward a Court near-mandatory nothing center remains. new Second, about the (Maj. standard of review.” demonstrates that the “trust 1136). atOp. Rather, the Court’s Judges holding those who had treated the Rita, while primarily addressed Guidelines as to the virtually mandatory during propriety of an appellate the post-Booker presumption of interregnum will now rec- reasonableness when reviewing ognize the within- truly Guidelines are advisory,” sentences, nonetheless (Stevens, J., id. at 2474 demands concurring), that we revisit our post -Booker misplaced. sentencing jurisprudence. I argued Victor Rita that an appellate Rita, the Court addressed whether presumption of reasonableness for within- the Courts of Appeals apply pre Guidelines sentences impair would the ex- sumption of reasonableness to review with ercise of district court discretion and thus sentences, in-Guidelines by as employed raise the same Sixth Amendment concerns many See, Circuit and others. e.g., sought Booker to remedy use of —the Kristl, United States v. 437 F.3d judge-found facts to increase sentences be- (10th Cir.2006) (adopting a pre yond range permitted by jury-found sumption reasonableness); United Rita, facts alone. See 127 S.Ct. at 2465. Williams, (6th 436 F.3d Souter, Scalia, Justices and Thomas es- Cir.2006) (same); United States v. Myky poused the view that the Sixth Amend- tiuk, Cir.2005) ment would indeed be violated by either (same). In discussing the role of appellate the use of the presumption, id. at 2488 in sentencing Booker, courts following (Souter, J. dissenting), any form of emphatically reaffirmed the proper appellate review, substantive id. at 2476 standard of review applicable to sentencing (Scalia, J. dissenting, Thomas, joined by challenges: J.).1 merely We ask whether dis- rejecting challenge Rita’s and the 1. All justices three of adopt those would an late presumption of reasonableness because approach even more deferential view, in his it strongly encourages district Scalia, majority. review than the Justice choose sentences within the Guide- Thomas, joined by Justice give range. (Souter, lines Id. at 2488 J. dissent- courts unfettered discretion to any- ing) ("Only are decisions re- statutory range where in the and would elimi- according viewed same standard of nate substantive review of sentences reasonableness they whether or not fall within J., altogether. (Scalia, Id. concur- will district courts be ring). reject Justice appel- Souter would (Stevens, J., concurring). at 2470-71 Id. majority justices, the those positions the bases notes that that, Justice Stevens notwithstand- clear instruction gave standard-“a of discretion using an abuse of reason- presumption appellate an ing than an positioned judge [is] better district must have discre- ableness, district courts issue,” “may judge to appellate decide the Guidelines or below vary above tion to record,” by the conveyed insights not have swayed or even being bound range without narrow facts “special, may consider sentencing. at presumption by a similar utterly generalization” apply resist that (“A nonbinding appellate at 2466 id. See — sentencing context. See in full force in that a Guidelines presumption (Stevens, J., concurring) id. at sentencing require does States, 81, 518 U.S. (citing Koon v. United Still less that sentence. impose judge (1996); 2035, 135 L.Ed.2d 392 116 S.Ct. judge from sentencing does forbid 496 U.S. Corp., v. Hartmarx & Gell than the Cooter higher a sentence imposing 2447, L.Ed.2d 403-05, 384, S.Ct. jury-determined for the provide Underwood, 487 (1990); alone.”). Pierce Accordingly, cir- 359 standing 2541, 101 558-560, 552, 108 S.Ct. U.S. review the individualized must cuit courts (1988)). eliminating the By L.Ed.2d 490 significant courts of district decisions required of review de standard novo sentencing courts deference, allowing 3742(e), Booker “restored just and not practice in exercise discretion identified standard ac- abuse-of-discretion implicitly the Court theory. As (Ste at 2471 Id. earlier cases.” [these] restrictions knowledges, imposing undue stan vens, J., concurring). Under that run of discretion the exercise di dard, specifically the extent “except to defendants’ Sixth undermining risk statute, ‘it is not the role by rected id. jury trial. See to a right Amendment judgment its substitute others, appellate reason, I among read For this as to the sentencing court that “appellate ‘reason- that statement Court’s sen particular appropriateness merely asks whether review ableness’ ” (Stevens, J., concur at 2472 discretion,” tence.’ Id. at id. its court abused trial States, v. United Williams ring) (quoting grant 2465, require that 1112, 205, 112 S.Ct. sentencing at U.S. greater discretion added). (1992)) (emphasis L.Ed.2d 341 over have, provided practice, than we post-Booker review. years of two eventful instructs accordingly concurrence The also be clear “It courts: should circuit off shrugs of Rita discussion panel’s in- review sentences courts must Justices Stevens concurring opinion of they deferentially whether dividually and underpin also Ginsburg, whose votes (and thus range are inside That concurrence majority holding.2 ‘presump- to a review, subject potentially the evolution traces formal reasonableness) or outside tion’ juris- how Court’s in detail explaining J., (Stevens, concur- Id. at 2474 range.” de novo review evolved from has prudence added). Yet, notwith- ring) (emphasis discretion, a standard to abuse of majority, the Rita standing the direction review.” ‘reasonableness’ Booker “called Gins- it was Justice It bears mention set entire assured that Thus, them.”). deciding Part III of vote while burg cast who is available statute Booker, exact dissented. on the differ Justice Stevens of the Court from which the members Booker, sub- scope, S.Ct. a unanimous method and 543 U.S. re- markedly circuit circumscribed scribes to view. 1144 provided

the clarification by the Stevens did not abuse its discretion and that the concurrence, and the fact all that three both procedurally and sub- justices join who declined to espouse Rita reasonable.”). stantively an even more deferential view of appellate Even if the majority were correct that majority, panel review dismis- have, voce, we equated sotto reasonable- sively applying pre-i?iia insists on case law ness with review review for abuse of dis- in reversing the individualized and rea- cretion, it is the nature of our reasonable- soned determination of the district court in ness review that ultimately square must this case. with the Court’s mandate in Rita. And it is my view that the nature of our review has II come off the rails privileging certain panel’s rejection of the district elements of substantive reasonableness particularized and reasoned deter over others. Since the Court’s decision in mination accomplished in part by a neat Booker, we have woven a rich tapestry of semantic tap dance over the nature of case law assessing propriety of district post-Booker. “reasonableness” review Con courts’ applications various trary majority’s position, we have factors to individual defendants. While anything been but consistent about new, some of that case law is much of it daylight, any, amount of between reason precedent extends predates Booker. ableness and abuse of discretion review.3 (1) To take examples, two we have reaf- For example, frankly we admitted in Unit pre-Booker that, firmed our holding except ed Rodriguez-Quintanilla States v. circumstances, in limited co-defendant dis- “the relationship between the abuse of dis parity does not warrant a variance under standard, ‘plainly cretion unreasonable’ 3553(6), Davis, see United States v. 437 post standard and the -Booker ‘reasonable (10th 989, Cir.2006), (2) F.3d 997 sanc- ness’ standard is less than crystal clear.” tioned district courts’ consideration of the (10th 1254, Cir.2006). 442 F.3d Rath characteristics of a defendant’s of- er question head-on, than address this we (as record) fense well conduct as his arrest have typically held that our determination 3553(a)(2)(B) (C), see United be the same under either standard. Mateo, (10th States v. See, e.g., Cordova, United Cir.2006). Cir.2006) (“We need explore exact contours Armed post- precedent, of our with this we have review, however, Booker standard of typically be then taken a divide conquer cause we conclude that review, the District Court approach examining on arriving at the conclusion that we have whether finding the district court erred in consistently equated Valtierra-Rojas posed reasonableness review present or future discretion, with review for abuse of the ma- risk on account his alcoholism. See id. at jority Valtierra-Rojas, cites to United States v. review the appli Our district court’s a case nothing factors, in which we said respect however, cation of the discretion, to abuse of but held spans legal determinations, instead factual and we argues “where ... a defendant recognized that the dis- in Kristi. See 437 F.3d at Kristl. unreasonably departed ("We trict court from the note that this new standard of based erroneous review-that reasonableness-does not dis fact, findings of findings place will review those principle the oft-cited that in consider for clear error.” 468 F.3d ing 1241 n. the district court’s (10th Cir.2006). Valtieira-Rojas Guidelines, reached that findings review factual holding only by characterizing question legal clear error de determinations posed purely novo.”). on review aas factual one- that would system sought fac- relied-upon of each court’s sentencing fairness in greater bring as our about the case. Correct facts of to the tor Booker, uniformity.”); of are, effect through the net increased legal constructions (“This point the district require 125 S.Ct. 738 is to at exercise 543 U.S. this one hoops, any of through Congress’ a series basic jump critically important. is legal as require reversal might which Act was to Sentencing of the passing in goal under- somewhat reality which error —a in di- system the sentencing move the have approach “sliding scale” the mines United uniformity.”); of increased rection Maj. See post-Booker. to variance taken Gonzalez-Huerta, 403 v. plow often Although we at Op. 1138. Cir.2005) (“[T]he purpose of related histories factual detailed through in uniformity promote Guidelines was offense and background defendant’s to the vastly diver- prevent sentencing so as legal er- conduct, review for we generally similar for offenders gent sentences misapplica- district court’s ror-namely, the The fed- and offenses. criminal histories A factor. particular of a tion this striving towards have been eral in holding recent is our typical example 1987.”). so we have And worthy goal since United States substantive reasonableness our structured (10th Cir.2007), we reversed in which dispari- of the white whale to hunt review vari- downward substantial district court’s us to exer- required which has ty, a hunt of the Guide- misapplication to its ance due de novo scrutiny closer to degree cise Although lines factors. discretion, to the exclusion than abuse of carefully considered that case in to a sub- that contribute elements of other concert, 3553(a) in singularly and factors sentence.4 stantively reasonable varying its rationale articulated and nobility purpose, Notwithstanding its that we held length, some downward at square does not simply type of review this essentially ignored the “the District Court pri- locate mandate with Rita’s sentencing Guide- recommendation retail sentencing at the authority for mary then went 1129. Id. at We lines.” at See S.Ct. court. level-the justification individual through each (“The sentencing upshot is none suffi- detail, why explaining some sentencing both envision statutes defendant] “distinguishfed ciently carrying out the and Commission judge convicted histories with similar defendants one, at objectives, variance. basic support a same the same crime” wholesale.”). im- More retail, at the other Id. occa- disparity has our focus portantly, ground- is review type This procedural neglect of the sioned serious ignoble and serves a in reason ed dis- authority with locating values elimination, miti- or at least purpose —the important court, were which values trict disparity between sentencing gation, reaffirm- have been Booker Court Rita, 127 offenders. similarly situated reempha- majority Rita ed Rita. sought to dimin- (“Congress at 2467 S.Ct. process very sized the worth It sentencing disparity. unwarranted ish will un- ("[DJisparities S.Ct. at This, "disparity” easi- despite fact that discretionary system in a doubtedly term in increase ly most contested literature, who justices factor a those are one but law in which portion of Booker the remedial dissented from a defen- judge must consider the notion strong issue with (Ste- took statutory range.") a broad within dant provide mean- could ever advisory Guidelines vens, J., dissenting). U.S. sentencing. See 543 uniformity in ingful adversarial testing that is accomplished by interference, recognizes that allocution the district court’s consideration of the plays an inherent role sentencing and presentence report, the arguments of the that the district court is not a mere aba- parties, factors. See id. cus. Until very opinion, we have not independent There value not equated reasonableness with abuse of dis- just in the district ability to consid- cretion, and present semantic effort to er sentencing itself, and to hear the do so is but a neat elision of the trial arguments of parties, but also to visi- court’s Rita discretion. present Our prac- bly play the role of setting a sentence tice substitutes that discretion with sup- statutory within the range and to state its posed mathematical certitude that rejects reasons to the defendant face to face. See trial court judgment regarding proportion- (“Judicial id. at decisions are rea- ality repentance, and thereby accommodat- soned decisions. in a judge’s Confidence ing neither trial nor discretion Rita. use of reason underlies the public’s trust My view is that we have sight lost of one judicial public institution. A statement of the broader instructions of Booker. of those helps provide reasons public Booker's, While applying mandate that the with the assurance that creates that Guidelines henceforth play only (impor- trust.”), (“By reasons, articulating tant) advisory role sentencing, we have brief, even the sentencing judge only paid too little attention implication to its (and assures reviewing public) courts the benefits of placing au- primary that the sentencing process is a reasoned thority for sentencing in district courts process helps but also process beyond extend their traditional role in evolve.”). fact-finding. example, For in this case the Justices Stevens and Ginsburg firmly majority takes issue with the district defend primacy individualized, of this factors, retail-level process: but accords no weight to the thoroughness While reviewing presume of its consideration. This lack of attention that a sentence within the advisory to the district court’s satisfaction of its reasonable, appellate procedural duties underweights the pro- judges always must still defer to the cess values supra. discussed sentencing judge’s individualized sen- Read in its entirety, the district court tencing determination. As we stated in explained its choice of Koon, sentence in an ex- ‘[i]t has been uniform and con- pansive and well-reasoned stant in statement: judicial the federal tradition for the sentencing judge to every consider The court believes that defendant’s person convicted as an individual history and criminal category and the overall every as a unique study case in the impact of the career adjust- offender human failings that mitigate, sometimes ment overstates the seriousness of de- magnify, sometimes the crime and the fendant’s criminal produces and punishment to ensue.’ a sentence greater which is than neces- sary Id. at (Stevens, J., accomplish goals of 18 concurring) (citation omitted). § 3553. The This career process- adjust- more offender minded places view federal ment sentencing, sensi- defendant at a Category tive to the interplay VI in history. But, between trial defendant judge, jury, prosecutor, defendant, has no violence, conviction for a crime of and skeptical of efforts to undermine that there is no indication that prior con- his interplay either legislative or victions large involved quantities of be of 140 months conviction drug last his

drugs, range of a defen- term the Guidelines longest within his age of Al- was not who years. same facts under the about dant has been 2/á prison under the a serious has career offender defendant as a though treated VI, Category amerit history, it does not Guidelines. should next defendant’s a sen- finding that Crediting the court’s years.

not escalate greater be set would longer than tence have noted and commentators Courts goals accomplish necessary to provisions the career 3553(a), to understand how I fail ex- lead to sometimes be defendant that the can insist majority increases traordinary inappropriate ma- “resentencing,” the By resentenced. Phelps, U.S. in sentences. See a shorter not mean assuredly does jority (E.D.Tenn.2005); 580, 590 F.Supp.2d insisting on But in sentence. equal 274, 277 Woodley, F.Supp.2d v.U.S. the sentence, necessarily nullify we longer Guidelines, (D.Mass.2004). them- hard- finding. I am § trial the where selves, departures encourage with today’s square to decision pressed significantly history category “truly advi- as the Guidelines duty to treat a de- of the seriousness over-represents panel’s the treatment sory.” particular, likeli- history or the fendant’s of the provision career of the fu- will commit the defendant hood that for district little room leaves Guidelines 4A1.3(b)(l). § U.S.S.G. ture crimes. downward, effectively, and vary to case is one where We believe intentionally, treats the Guidelines if not be the under departure mandatory. system pre-Booker the justified under justified dis- is un- given sentence the reasons Although a non-Guidelines produce to system Gareia- post-Booker der the variance-that for its trict court less than sentence a crime no conviction “has Lara case.... in this his violence, no is indication there and cir- nature quantities examined large We have involved convictions and the histo- of the offense cumstances at drug conviction his last drugs, We defendant. characteristics ry and longest term and his age sen- guideline the proposed find years” about has been prison 2% —would greater or more tence of months the Guide- departure under not warrant adequate deter- necessary afford to than charac- history and lines, they reflect for the law. respect promote and rence properly are of the defendant teristics of the the seriousness In order reflect Rita, 3553(a)(1). See under considered just punishment, offense, provide J., (Stevens, concurring) S.Ct. further crimes public protect “not examples of factors (listing numerous defendant, unwarranted to avoid Guide- ordinarily considered among defendants disparities sentence “ sen- authorizes lines” that have who been similar records with consider”). judge tencing conduct, the court guilty of similar found exer- my opinion, months of 140 that a sentence finds in the manner precisely its discretion cised greater no and reasonable proper by consider- “beg[a]n It by Rita: directed pur- comply with necessary to inter- and its report ing presentence note We of 18 U.S.C. poses Guidelines,” “subjected] pretation disparity the issue regard with thorough to the the defendant’s similar records among defendants testing contemplated by adversarial feder- missibly judgment substitute our as to the al sentencing procedure,” and selected a appropriateness particular aof reasonable sentence without “enjoy[ing] for that of the sentencing court. legal the benefit of a presumption that the only Not system does this impermissibly Guidelines sentence apply.” should Id. at upon intrude authority of the district 2465. Garcia-Lara’s 140-month sentence court, but it produces also inconsistent re- reasonably addresses the protect need to sults. Our case law dictates that we treat public and rehabilitate the defendant 47%, Garcia-Lara’s 122-month variance as and reflects the seriousness of his crime. “substantial” uphold it if the 3553(a). On those I findings, say cannot provide his case compelling justification. that the trial court’s selection of an eleven 485 F.3d at 1128. When year and one half sentence was an abuse of assessing magnitude variance, of a discretion. look to the discrepancy between the sen- imposed tence and the

Ill range in both percentage terms and abso- Instead of substantial according weight lute number of months. United States v. to evidence that the district court’s sen- Valtierra-Rojas, tencing determination was thorough and Cir.2006). “there reasoned, Although is no formula we have instituted a baroquely into which input complicated degree “sliding scale” approach to diver- gence,” review, “comparison substantive reasonableness with which other cases ais subjects the district justifications court’s useful Allen, to tool.” Id. In United States v. ever higher depending hurdles on the de- (10th 488 Cir.2007), F.3d 1253 we gree of the variance. Born in this court’s required only justification” “compelling for holding in United Cage, States v. 451 F.3d 167%, a upward 225-month variance.5 Ac- (10th Cir.2006), that involved an cordingly, under pre-Rita jurispru- imposed sentence of days compared to dence, I would consider Garcia-Lara’s Guidelines minimum of 46 47%, 122-month downward variance as months, the scale” “sliding has now “substantial,” requiring no more than a by evolved repeated such rococo refine- “compelling justification.” ment of species as to do Charles Darwin Mateo, United States v. approved we and Louis proud. Hildreth, XIV See a district court’s use the armed career F.3d at 1127-28 (detailing the standards criminal enhancement as a “guidepost” in variance). to applied degrees different sentencing a defendant who did not meet It seems that every problem has led to a the criteria for that enhancement. different, new mutation with sometimes Cir.2006); see also conflicting, rhetoric and resulting outcome U.S.S.G. Although 4B1.4. Mateo’s a PSR sliding in scale primarily that is notable properly calculated a range Guidelines preference for its scaling for and aversion 15 to 21 months’ sliding. By imprisonment, to majority’s fe, the the district auto de system this court preserved, determined range rendering the under virtually Thus, mandatory. represented we criminal history. Mateo’s have assumed a role in which imper- F.3d at 1166. court referred to the Although we termed the variance in Alien (explaining at 1128 precedent that our circuit "sufficiently calling extreme" requires rather than "dramatic facts” for "extreme” vari- "substantial,” ances, we treated it as "substantial” "compelling reasons” for “substantial” by requiring "compelling variances, justification” and explanation” and "sufficient not "dramatic facts.” "significant variances”). 485 F.3d Mateo, is not “extreme.” at issue anee to ac Cf. enhancement career criminal armed Instead, Garcia-Lara’s a at 1170. imposed discrepancy, the count a represents proper variance incarceration.6 substantial months’ of 120 discretion variance, held that court of district exercise reviewing this by ref- his case—with provided factors of rationale individualized “whether sen compelling non-Guidelines 3553(a) provide for a court erence — is deter compelling sufficiently him from other distinguish tence reasons particu considering whether mined offenders. career the defendant lar characteristics ex- persuasively court the district As the sen fashioning upon relied criminal Garcia-Lara’s plained, are suffi ... or commonplace are tence for application minimum the bare meets divergence a justify uncommon ciently enhancement; he has career offender Guide presumptively convictions, drug-related prior only two Although we Id. at lines sentence.” long prison resulted of which neither sen in Mateo’s increase 471% termed large to involve shown or were terms his “extreme,” we concluded tence facts, and these drugs. Given quantities jus contact “significant age at the young relatively Garcia-Lara’s over different three states systems tice crimes, drug his he committed time were of time” period relatively short vary down- court’s decision the variance. justified dramatic of the career impact to offset ward circum specific [Mateo’s] “Based Id.7 within the enhancement use District Court’s stances Like discretion. provision career armed carefully Mateo, consid- the court the sen length of gauge guidepost circumstances specific the defendant’s ered a reason imposed tence, the District an alternative used Id. able sentence.” length of gauge “guidepost” as a compara- a presents case Garcia-Lara’s sentence. court Here, the district ble scenario. sentence, the Garcia-Lara’s imposing In range that a Guidelines calculated properly disregard” “express not show did court offender enhancement. the career reflected requires a 3553(a)(6), which § a sentence such concluded Having un- avoid need to “the to consider court crimi- over-represent Garcia-Lara’s would among disparities warranted § fac- considering history, nal Hildreth, 485 defendants.” [similar] Cf. sentence a lesser imposed tors, court Instead, sentenced the court F.3d the Guidelines consulting again after a “that reasoning only after Garcia-Lara advisory Garcia-Lara’s what determine within be would 140 months sentence career absent would range be under of a defendant range the Guidelines were reasons The court’s enhancement. aas not treated who was same facts Mateo, but as those “dramatic” not as In the Guidelines.” under career dowe jurisprudence pre-Rita under our having incor- court faulting the district vari- when facts” “dramatic require that in- uncontested was based but formally the en- apply did not 6. The ad- seven noted PSR hancement, resulted in violence-Mateo’s have volved which Mateo, not lead did 180 months. prior arrests sentence ditional convictions, minimum pending at 1168. F.3d additional and one the facts contest did not charge. Mateo listing convictions-one five addition concerning arrests. these PSR of violence charged aas crime was not which rectly 3553(a)(6), § applied Maj. Op. over-represents the seriousness of a defen- panel majority fails to credit our dant’s or the likelihood point. case law on will defendant commit future crimes.” Shaw, United States v. (10th Cir.2006), we held: recently We recognized, any “In given The district court concluded that Shaw’s case there could be of reasonable conduct was more serious than his code- sentences that includes sentences both fendant’s because Shaw was the one who within outside actually assaulted the bank manager. range- may impose [C]ourt[s] a non- 3553(a)(1) (“the § See nature and cir- Guidelines sentence if the sentencing fac- offense”). cumstances of tors set forth in it, warrant even explicitly do not distinguish if a Guidelines might also be rea- between principals and accessories for sonable.” United v. Begay, States purposes of bodily injury” “serious (10th Cir.2006). Accord- enhancement at issue here. USSG ingly, ample I And support for the district lB1.3(a)(l)(A). 3553(a)(2)(A) But court’s variance even under pre-Rita does authorize a sentencing court to im- case law. This is say not to there pose nonguideline the court may not also be in our support case law for guideline concludes the range does not facts, a reversal on these argued by as adequately “reflect the seriousness of majority, but to emphasize that our exist- the offense.” adjustment While ing precedent gives neither clear direction based on a factor already that was built to district courts nor allows the discretion guideline into the calculation chal- afforded to them Rita. lenge the uniformity overall of sentences 3556(a)(6), any tension between (a)(2)(A) (a)(6) subsection and subsection IV can be resolved by the district court in light it, all the facts before long as The United Supreme Court un- it does reasonably. so Cage, 451 ambiguously pronounces na- (“The F.3d at 595 problem with the sen- ture of the Guidelines and reemphasizes decision, tencing however, is not in the district court discretion and deferential re- factors; consideration of these it is in solely view for abuse of discretion. Given weight placed on today’s rejection mandate, of this clear it is them.”). evident the Court is to move the Shaw’s reasoning applies equally to this universe review away from 3553(a)(1) case. Section permits a sen- quo status of micro-management at the tencing court to impose a non-Guidelines appellate level, the going Court is to need sentence if the does not a longer Archimedean lever than Rita to adequately reflect “the history and charac- accomplish the task.

teristics of the defendant.” The court’s decision, made after careful it,

consideration of the facts before reason-

ably any resolved tension between subsec- (a)(1) (a)(6). And,

tions as the district pointed out, Guidelines, “[t]he them-

selves, encourage departures where the

criminal history category significantly

Case Details

Case Name: United States v. Garcia-Lara

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 22, 2007

Citation: 499 F.3d 1133

Docket Number: 06-3054

Court Abbreviation: 10th Cir.