UNITED STATES of America v. Hugo GUTIERREZ-SANCHEZ
No. 08-50254
United States Court of Appeals, Ninth Circuit
Amended Nov. 18, 2009
Submitted Feb. 13, 2009. Filed March 23, 2009.
The bounds of Lawrence‘s holding are unclear; this is itself a difficult matter оf constitutional law, as we recently recognized in Witt v. Dep‘t of Air Force, 527 F.3d 806 (9th Cir. 2008). Witt held that the military‘s “Don‘t Ask, Don‘t Tell” policy, which prohibits open homosexuality in the armed forces, had to survive heightened scrutiny as applied to each service member discharged. Given the “studied limits of the verbal analysis in Lawrence,” we declined the invitation of the parties to “pick through Lawrence with a fine-toothed comb and to give credence to the particular turns of phrase used.” Id. at 816. We ultimately fashioned a multi-pronged balancing test for state sanction оf homosexuality derived from yet another separate line of Supreme Court authority, Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).
The effect of Lawrence and Witt on a discriminatory benefits law are far from clear. I would have to consider, for example, the relative magnitude of the state sanction here: Lawrence involved a criminal penalty, but that penalty was only a small fine. Golinski pays out of pocket to purchase additional health insurance for her spouse, and her expenses each month exceed the total fine imposed in Lawrence. I would need to apply Witt‘s multi-pronged balancing test or fashion my own interpretation of Lawrence‘s requirements—in either case, a major decision of constitutional law.
When a statute admits two constructions, one of which requires a decision on a hard question of constitutional law, it has long been оur practice to prefer the alternative. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-46, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The discussion above illustrates the constitutional thicket into which the discriminatory construction drags us. I therefore construe the Federal Employee Health Benefits Act to pеrmit the coverage of same-sex spouses.
The Director of the Administrative Office of the United States Courts is therefore ordered to submit Karen Golinski‘s Health Benefits Election form 2809, which she signed and submitted on September 2, 2008, to the appropriate health insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of a listed spouse.
Norma A. Aguilar, Federal Defenders of San Diego, Inc., San Diego, CA, for appellant Hugo Gutierrez-Sanchez.
Karen P. Hewitt, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief Appellate Section, Criminal Division; Douglas Keehn and Mark R. Rehe, Assistant United States Attorneys, San Diego, CA, for appellee United States of America.
ORDER AND AMENDED OPINION
ORDER
The petition for rehearing is grantеd to the extent that the following two changes
On page 1090, in the carry-over paragraph of column 2, paragraph 1:
(1) Delete “returned to” and substitute “entered” in subdivision “(3)“; and (2) Replace “when he lied to the federal officers about his immigration status” in subdivision “(5)” with “when he entered the United States in violation of a prior deportation order and gave a false name to the federal officers.”
In all other respects, the petitiоn for rehearing is denied. No future petitions for panel rehearing or rehearing en banc may be filed.
OPINION
FRIEDMAN, Circuit Judge:
The appellant Hugo Gutierrez-Sanchez challenges his sentence primarily because, although he pleaded guilty to an offense for which the United States Sentencing Guidelines (“the Guidelines“) recommended a particular sentence, he was given a more severe sentence that the Guidelines recommended for a related, more serious offense. The Guidelines, however, prоvide that if a plea agreement “specifically establishes the commission of additional offense(s),” it shall be “treated as if the defendant had been convicted of additional count(s) charging those offense(s).”
I
Prior to his present difficulties, Gutierrez twelve times had entered the United States illegally from Mexico and been removed to Mexico. While in the United States during this period, he was thrice criminally convicted.
In the presеnt case, Gutierrez was apprehended hiding in dense brush several hundred yards north of the United States-Mexican border. He was arrested and charged with being a deported alien found in the United States, in violation of
Gutierrez and the government agreed upon his offense level and criminal history under the Guidelines calculations, which produced а Guidelines range sentence of 6-12 months imprisonment. The parties agreed to recommend a sentence of 9 months imprisonment. In the plea agreement, Gutierrez also stated that he “understands that the sentence is within the sole discretion of the sеntencing judge” and that “the recommendation made by the Government is not binding on the Court, and defendant‘s actual sentence remains uncertain at this time.”
The district court accepted Gutierrez’ guilty plea but rejected the recommended 9 months imprisоnment sentence.
The court stated that it was “inclined to sentence within what I think is the applicable guideline range for the real offense, which is coming back over here.” After
II
A. On appeal, this court “first consider[s] whether the district court committed significant procedural error, then consider[s] the substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). In Carty, we held that
[i]t would be procedural error for a district court to fail to calculate or to calculate incorrectly—the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the
§ 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range.
Gutierrez contends that the district court committed procedural error by not calculating the Guidelines recоmmended sentence for his violation of
B. As noted, the Guidelines provide:
A plea agreement (written or made orally on the record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had beеn convicted of additional count(s) charging those offense(s).
The Guidelines further provide that “in the case of a stipulation to the commission of additional offense(s), the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated.”
In his written plea agreement, after admitting that in 2004 he had made a false statement to a federal official, Gutierrez stated in the next paragraph:
Defendant agrees furthеr that the offense involved a violation of a prior, specific administrative order because defendant is an unlawful alien who was lawfully deported on February 22, 2004[,] prior to the instant offense and as part of that deportation, defendant was ordered by the immigration judge not to reenter the United States without requesting and obtaining permission from the Attorney General or designated successor, and that this fact results in the increase in offense level set forth in paragraph 5 below.
Under the Guidelines, Gutierrez’ statement in his plea agreement constituted a “stipulation that specifically establish[ed] the commission of [the] additional offense” of an alien illegally present in the United States, in violation of
The district court properly treated these statements by Gutierrez as establishing a conviction under the illegal alien presence provision of
C. Since we hold thаt the district court properly calculated Gutierrez recommended Guidelines sentence under
The district court fully explained the rеasons why a more severe sentence than the guideline range under the false statement statute of 6-12 months imprisonment was appropriate. The court twice stated that the “real offense,” “the one that the Guideline calculations should be predicated upon,” was
it‘s incumbent upon me to fashion some kind of sentence which will tell him “we mean business. When we say ‘don‘t come back,’ it‘s not just some mantra that a guy in a black robe waves in front of you or words that are repeated. We mean it. Don‘t come back. Bad things are going to happen to you if you come back. You‘re going to spend a lot of time in an American jail, which has got to be worse than your country.”
The district court also considered the factors that
AFFIRMED.