*1 complaint it was unclear from the what
disability alleging, and wheth- Surtain was Hamlin ever believed her to have
er
disability. Surtain failed correct these notice, being put even after
deficiencies
thus the District Court did err
dismissing disability-discrimination her
claim.
IV. sum, we AFFIRM the District judgment
Court’s denial of default and dis- disability-discrimination
missal of Surtain’s
and FMLA retaliation claims. We VA- the District
CATE Court’s dismissal with
prejudice of Surtain’s race-discrimination claims,
and FMLA interference as well as judgment
its denial of default as to the
race-discrimination claim and REMAND proceedings
for further consistent with opinion.
this America,
UNITED STATES of
Plaintiff-Appellee, ROSALES-BRUNO,
Jesus
Defendant-Appellant.
No. 12-15089. Appeals,
United States Court of
Eleventh Circuit.
June *2 Herman, Ferrer,
Carol A. Wifredo Schultz, Mary Salyer, Kathleen Anne Ruth Widlanski, Benjamin Attorney’s U.S. Of- fice, Miami, FL, Cooperstein, Theodore Office, Pierce, FL, Attorney’s Fort U.S. sentence was 60 months above high Plaintiff-Appellee. end of Rosales-Bruno’s revised range but 33 months statutory below the Caruso, Michael Federal Public Defend- maximum of 120 imprisonment. months er, Office, Federal Public Defender’s Mia- mi, FL, sole issue in this Peacock, appeal is Fletcher Federal whether Public *3 Office, Pierce, FL, Defender’s Fort that sentence is substantively for unreason- Defendant-Appellant. able.
I. 4, 2007, August On Rosales-Bruno at- girlfriend, tacked his Rodriguez. Edith CARNES, ED Judge, Before Chief stove, He shoved her a into and when she WILSON, Judge, Circuit tried to punched leave he in her the back CORRIGAN,* Judge. District and caused her to fall. When she fell he grabbed by her pinned the face and CARNES, her ED Judge: Chief between two beds. He then took out a This is the second appeal to come before cigarette lighter and threatened to burn involving us a on Jesus her with it. Rosales-Bruno was arrested Rosales-Bruno because of his conviction for that violent conduct. illegally reentering the United States in violation of 8 U.S.C. later, Two months in October appeal original first we vacated his sen- bond, while he out on Rosales-Bruno concluding tence after the district court Rodriguez attacked again. After pulling in finding prior had erred that his Florida their daughter 18-month-old out of her imprisonment conviction for false qualified arms, he punched Rodriguez at least five aas “crime of violence” conviction for en- times and forced her into his car. She purposes hancement under United States struggled managed escape, to but Ro- 2L1.2(b)(l)(A)(ii). down, sales-Bruno chased her threatened Rosales-Bruno, United States v. her, kill grabbed hair, to her by pulled (11th Cir.2012) (Rosales-Bruno 1017, 1024 out, some of it choking and started her I). That error had increased Rosales- with his arm. employees When at a near- advisory Bruno’s sentencing guidelines Rodriguez’s business heard screams for months, to70 and the district help, Rodriguez Rosales-Bruno released court had sentenced him to 87 months but girl took the little with him when he imprisonment. fled from the scene. remand, On the district court recalculat- In November an Indian River advisory ed Rosales-Bruno’s County, Florida court convicted Rosales- range without the crime of violence en- battery Bruno of assault and for the first hancement, which lowered to 27 Rodriguez, attack on sentencing him to months imprisonment. After considering days jail year fifteen probation. factors in 18 U.S.C. 3553(a), awaiting trial for however, battering While Rodri- up- the court varied time, guez from guidelines range, again ward im- second Rosales-Bruno posing an 87-month prison officer, term. That to report probation failed to his * da, Timothy Corrigan, Honorable J. sitting by designation. United States Judge District for the Middle District of Flori- categorically domestic-violence not a crime of violence required within complete
didn’t
pay probation
and didn’t
fees.
programs,
meaning
of that enhancement. He had
result,
the court issued
April
As
pleaded guilty
battery
also
in connection
pro-
for his violation of
an arrest warrant
with the same incident that
led to the
Possibly because Rosales-Bruno’s
bation.
but,
imprisonment
conviction for false
charges arising
trial for
from the second
opinion, battery
we noted in our earlier
scheduled for later
attack was
categorically
under Florida law is not
month,
warrant was not imme-
that arrest
crime of violence either. See Rosales-
diately
Rosales-Bruno was con-
served.
I,
(citing
Bruno
We (5) offense, present protect need to imprisonment false under tention the public. 3553(a)(1), See 18 categorically is not U.S.C. Florida law crime (a)(2)(A)-(C). I, violence. See Rosales-Bruno at 1022. We also decided that the record In determining that an 87-month' sen- did not establish Rosales-Bruno’s tence was appropriate, the district court imprisonment 2008 Florida false conviction placed particular emphasis Rosales- on. statutory had been under a alternative history. Bruno’s criminal At the resen- qualifies as a crime of violence for hearing, tence the court read for the rec- 2L1.2(b)(l)(A)(ii). purposes of Id. ord the descriptions PSR’s of several of reason, For that 1023-24. we vacated the prior Rosales-Bruno’s convictions. Those sentence and remanded the case to the descriptions detailed the crimes that led to district court for resentencing without the his 2007 convictions for battery assault and crime of violence Although enhancement. and his 2008 convictions imprison- for false we the court to directed consider the rec- ment battery. Finally, the court read ord and resentence Rosales-Bruno “in the PSR’s list of Rosales-Bruno’s driv- light factors,” of the 18 U.S.C. ing convictions, offense which included sev- “expressed] opinion no ... as what *5 eral DUI convictions. sentence would be appropriate.” now Id. at 1024. did not rule We out the court objected Rosales-Bruno the reimposing the same sentence on remand procedurally and substan long so as it was not on treating based tively unreasonable.1 He contended that imprisonment Rosales-Bruno’s false con- placed the court had emphasis” “too much
viction as a crime of violence under
prior
on his
convictions
imprison
for false
2L1.2(b)(l)(A)(ii).
§
ment,
assault,
battery.
for
and for
This is
resentenced,
Before Rosales-Bruno was
appeal
his
of the sentence imposed on re
the probation office amended the PSR and
n
mand.
guidelines range
recalculated his
without
the 16-level crime of violence enhance-
II.
ment. The result was a
of 21 to 27
The district court’s task is to impose a
so,
months. Even
the district court im-
(1)
adequately
sentence that will
“reflect
posed
before,
the same sentence as
relying
(2)
offense,”
the seriousness of the
“pro-
3553(a)
§
vary
the
factors to
above the
(3)
law,”
respect
mote
for
“provide
guidelines range by
new
60 months. The
(4)
just punishment,”
adequate
“afford
court did so after conducting a full resen-
(5)
deterrence,”
“protect
public
from
hearing, during
pointed
tence
which it
to
(6)
defendant,”
further crimes of the
and
supporting
several factors
var-
(1)
provide
§
any
iance under
3553:
the defendant with
needed
history
and
(2)
defendant,
characteristics of the
training
and treatment
in the most effec-
were,
procedural objections
("Any
appellant
Whatever his
issue that an
[us]
wants
to
specifically
clearly
Rosales-Bruno has abandoned them
not
address should be
Otherwise,
raising
appeal.
Sapuppo
them on
v. All-
identified in the brief....
the is-
Co.,
678,
state
properly preserved
Floridian Ins.
739 F.3d
680
sue—even if
at trial —will
(11th Cir.2014) (issues
abandoned.”)
appeal
(quotation
not briefed on
be considered
marks
abandoned);
Now,
result,
omitted).
are
Access
Inc. v.
Air-
Sw.
As a
substantive reasonable-
Co.,
1324,
(11th Cir.2004)
lines
385 F.3d
appeal.
ness is the
issue in this
3553(a)(2).
appropriate
§
To arrive at an
18 U.S.C.
sen
tive manner.
tence,
all
that re-
the district court must consider
a holistic endeavor
The task is
3553(a)
applicable
factors.
court
to consider a
the .district
quires
Unit
Shaw,
(1)
1230,
v.
560 F.3d
ed States
factors:
the nature and
variety of
(11th Cir.2009).
mean,
(2)
That does not
how
offense,
the de-
circumstances of
ever,
(3)
give
that it must
all of the
characteristics,
history
fendant’s
Instead,
(4)
equal weight.
factors
the sentenc
available,
the kinds of sentences
attach
ing
permitted
‘great
court “is
to
sentencing guidelines range,
applicable
weight’ to one factor over others.”
Id.
(5)
policy statements of the
pertinent
States,
38,
(quoting
v.
Gall United
U.S.
(5)
Commission,
the need to
57,
600,
Rosales-Bruno’s initial sentencing that his sen- tween and resentencing decrease, tence is substantively is advisory guidelines unreasonable based First, on three range, contentions. he con- court must decrease the tends that the district gave “signifi- defendant’s thinks sentence.4 dissent says 4. The dissent it has "little doubt that if varied on remand. The best evidence correctly Guidelines had been calculated of what the court would have done the first around, the first time would Rosales-Bruno advisory guidelines time around with an have sentenced been to months.” Dissent- 3553(a) of 21 to 27 months and the ing Op. nothing at 1280. There is all in the is, all, factors that exist in this case after what support speculation record it ais —and very range did very it with those groundless guess that is contradicted on remand. factors explanation why district court's careful *9 defendant, because, view, an error was com- anything in its the because that is so that the district demonstrate else would the first time. The dissent would mitted weight at all” to the adviso- “no gave court if hold that the district court In Dissenting Op. at 1278. ry guidelines. higher guide- that was within a view, the the evidence the dissent’s sentencing, initial it range lines at the advisory guide- the ignored district court impose a sentence within the correct- must strong by affirming range is so lines range on remand. See guidelines ed lower “no saying we are court the district in the Dissenting Op. (“Nothing at 1278 to enough be” reverse ever would evidence at initial sentenc- record Rosales-Bruno’s failing give enough to court for a district ing hearing suggests that the court viewed advisory guidelines. Id. at to the weight type Rosales-Bruno as the of defendant isn’t, aren’t. it and no we 1278. No an variance at' who warranted ”). words, advisory all.... other mandatory on remand. guidelines become court resentencing, At the district was involving the error required to correct States That is not the law. See United (ii) 2L1.2(b) (1)(A) enhancement, § to calcu- Booker, 220, 246, 125 S.Ct. U.S. error, range free of that guidelines late the (2005); Irey, L.Ed.2d 621 range. It and to consider that corrected 1183; Spencer F.3d at see also v. United required to consid- did so. The court States, 3553(a) 1141-42 Cir. § the other sentenc- weigh er and 2014) ing as well. It did so. And the “advisory every factors (noting the nature whether, required to determine court was provision guidelines” stating and sentencing judgment, in those other its judge that “a district cannot treat th[e] advisory outweighed the lower factors mandatory”). guideline[s] as As the Book range. judg- It did so. In the guidelines establishes, guidelines er decision district court experienced ment of the application provide their advice about sen 3553(a) factors, judge, espe- the other they it. Book tencing; do not control See cially history criminal Rosales-Bruno’s er, 757; Irey, at 543 U.S. 125 S.Ct. against girlfriend, his record of violence why change at 1183. That is in advisory guidelines range outweighed change guidelines range may lead to a proper 27 months sen- to require does not one. the sentence but months. tence was 87 advisory is that an position The dissent’s The consider the ad- must advisory becomes less visory making guidelines range the sen- if mandatory correctly it was not and more decision, only tencing but it is one of hearing. at the initial sentence calculated or so factors that the court must dozen Dissenting Op. why? at 1278-79. But Booker, take into account. See 543 U.S. Why appeal should the fact that it took an 757; 245, 125 S.Ct. at see also 18 U.S.C. get advisory guidelines and remand 3553(a). has been Supreme Court advisory range correct make the corrected clear that Guidelines are not “[t]he advisory guidelines range any less than Accordingly, consideration.... after if the district court had would have been argue giving parties opportunity both correctly begin calculated it to with? We they appropri- deem for whatever sentence remand cases like this one to correct ate, judge the district should then consider steps leading errors to the district all factors determine decision, punish court’s not to the sentence re- they support the court or the or reward whether government,
1259 Gall, quested by party.” 552.U.S. at 49- show that the district court thought that 50,128 at 596. S.Ct. appropriate sentence in view of all of the facts and circumstances was 87 exactly That is what the district months. At the initial sentencing, no vari- in resentencing court did Rosales-Bruno. ance was necessary to reach appropri- correctly It advisory recalculated the ate sentence. At the resentencing, after guidelines range, gave parties it both reconsidering everything in light of the opportunity argue to they for the sentence guidelines new range, the court concluded thought appropriate, and it then consid that an 87-month was still the sentence 3553(a) § the remaining sentencing ered appropriate light sentence in all of in deciding factors what the sentence circumstances, facts and why which is should be. The court exercised its author varied upward to that same sentence. The ity assign weight heavier to several goal of sentencing is not to change the sentencing other assigned factors than it sentence in lockstep changes with in the guidelines range. Nothing to the requires advisory guidelines range “impose but to sentencing give advisory sufficient, guidelines range greater as much but not weight as it than 3553(a) gives any necessary, § comply other factor or with purposes combi set Shaw, 3553(a)(2) nation factors. See 560 forth F.3d at [§ 18 ].” U.S.C. 3553(a). (noting sentencing 1237 that a court “is The district court did that. permitted great to attach weight” to cer factors)
tain
(quotation
omitted);
marks
Gall,
see also
552 U.S. at
at
S.Ct.
ruling
contention that
out the
Williams,
600;
The dissent “[njothing out that vacate a sentence and remand for resen- the record at Rosales-Bruno’s initial sen- tencing “if we are left with the definite tencing hearing suggests the court firm conviction that the viewed district court ... type Rosales-Bruno as the of de- fendant who a sentence that outside arriv[ed] warranted an vari- lies (cid:127) all, ance let alone significant such a reasonable sentences dictated ”) No, added) one.” Dissenting Op. at 1280. (emphasis but the the case facts of record and result of (quotation omitted); the initial marks Irey, See also *11 (“In court hearing, first sentence the district reviewing the 1189-90 at
612 F.3d
sentence,
must,
underlying
review the facts
his earli-
we
could
of
reasonableness
us,
deciding
proper
con-
on the
has instructed
er convictions
Court
Supreme
and circum-
in this case.
totality
sentence for his conviction
sider
facts
of
added).
stances”) (emphasis
is what the court did.
Which
original
Rosales-Bruno’s
We vacated
to the
assigning weight
government
had
sentence because
weighing
part
factors as
§
showing from
carry
failed to
its burden of
should)
(and
may
consider
a court
process,
documents, in-
the state court
individualized,
specific facts
particularized,
actual
stead of from Rosales-Bruno’s
guidelines label that
merely
not
and
conduct-itself,
false im-
criminal
that his
The
put on the facts.
can be
Florida law
prisonment conviction under
individualized, particular
on the
did focus
fit
definition of
categorically
within the
Ro
ized,
resentencing
specific facts
required
applica-
for
“crime of violence”
against
argument
His
sales-Bruno.
2L1.2(b)(l)(A)(ii) guidelines
§
tion of the
does not focus on
sentence he received
I,
Rosales-Bruno
enhancement.6 See
them.
(citing Shepard
v. United
the facts about Rosales-Bruno’s
None of
States,
1254, 161
544 U.S.
125 S.Ct.
or his extensive
reentry conviction
illegal
(2005)).
L.Ed.2d 205
This Court never
the first
history changed between
criminal
meaning and
given
plain
said—and
sentencing.
only change
second
.and
understanding
common
of the word “vio-
for false
his earlier conviction
was that
say
lence” we would never
what Ro-
—that
categorized as
could not be
imprisonment
actually did to Edith Rodri-
sales-Bruno
conviction for the
a “crime of violence”
not
guez
separate
on two
occasions was
the U.S.S.G.
purposes
limited
and more violence.
violence
2L1.2(b)(l)(A)(ii) enhancement, see Ro-
§
1022-24,
attacked Edith Rodri-
I,
Rosales-Bruno
no
sales-Bruno
was,
her into a
guez and shoved
stove. When
actually
and
matter how violent
grabbed
her
adjusted
escape,
she tried
he
in a lower
change
resulted
her
two
pinned
face and
down between
advisory guide-
offense level and a lower
lighter
cigarette
beds and took out his
and
considered
range.5
lines
The district court
threatened to burn her with it. Then
But
also con-
range.
the correct
the court
charges
while out on bond because of the
unchanged
underlying
facts
his
sidered the
attack,
that violent
Ro-
assault,
stemming from
impris-
false
prior convictions
offenses,
again.
onment,
Rodriguez
sales-Bruno attacked
battery
and
separate
two
pulling
daughter
After
their 18-month-old
including
offenses
some
driving
a dozen
Rodriguez at
punched
conceded at the
out of her arms he
DUIs. As Rosales-Bruno
I,
applied
“single,
the "modi
contain
indivisible set
elements
In Rosales-Bruno
categorical approach”
broadly
correspond-
fied
to determine
sweeping more
than the
imprisonment convic
false
Rosales-Bruno’s
(quo-
ing generic
133 S.Ct. at
offense.”
Florida Statute
787.02 was not
tion under
That,
course,
omitted).
does
tation marks
guidelines purposes.
of violence” for
"crime
change
inapplicability of
F.3d at 1020. Our decision in Ro
See 676
enhancement,
2L1.2(b)(1)(A)
nor does it
Supreme
predated the
Court’s
sales-Bruno I
change
underlying
the facts
Rosales-Bruno’s
States, - U.S.
Descamps
opinion in
v. United
prior
duty
convictions or the district court's
-,
(2013),
world, they may properly and be consid- the district court’s discretion to decide how ered as violent crimes for sentencing pur- 3553(a) much weight give § each factor” poses application other than for the of an previous and that squarely offenses “fit[ ] advisory guidelines enhancement under 2L1.2(b)(1)(A). § factors, into one of the § the histo ry offender”); and characteristics of the The district court was entitled to look (“No see also 18 U.S.C. limitation beyond guidelines labels the actual facts placed shall be on the information concern of Rosales-Bruno’s earlier crimes and to ing background, character, the and con find that some of criminal his conduct was person duct of a convicted of an offense weight. violent and deserved substantial which a Shaw, may court ... receive and consid F.3d at 1240-41. Giv purpose en the broad er for the imposing discretion that of an appro have, sentence.”); district courts we are not “left priate with United v. Early, States the definite and firm conviction that the Cir.2012) (“The 686 F.3d district court a committed clear error of gave great district court weight to [the judgment,” Irey, 612 F.3d at (quota defendant’s] three bank robberies within a omitted), tion marks exactly when it did week, and his substantial criminal histo that. United States Herrera-Gar Cf. ry. This is not a clear in judg error duno, (5th Cir.2008) ment.”). (rejecting argument defendant’s the And history Rosales-Bruno’s criminal possible disagreement district court’s with extensive. already We have described his “drug trafficking how offenses” were de woman, two violent attacks on the same fined under U.S.S.G. 2L1.2 was an insuf the of second which occurred while he was ficient reason to impose non-guidelines a out on bond pending charges trial for sentence). The sentencing statute at least stemming from the first attack. See supra authorizes, arguably requires, a court pp. 1261. He violated the of terms to do what the district court did consid probation his in multiple ways. In addi- hard, ering ugly facts of Rosales-Bru tion, driving- Rosales-Bruno has numerous prior no’s convictions. See 18 U.S.C. related In convictions. November 2000 he 3553(a)(l)-(2) (“The court,.in determin driving was convicted of without a license. ing particular imposed, sentence to be In December 2001 he was convicted of (1) shall ... history and cir consider — driving under the (2) influence with a blood defendant; cumstances of the [and] alcohol (C) legal level twice the limit. In need for the' Feb- —... protect ruary public from 2002 he was of driving further crimes of convicted defendant....”). suspended with a again license. He was pro- ... and to offense seriousness the influence driving under convicted offense,” was for the just punishment in vide license suspended a driving with illegal unreasonable” because “clearly to addi- incident led Another July 2003. view, is, a “rela- in the dissent’s reentry July giving for tional convictions Dissenting Op. offense.” tively low-level or arrested detained name while false to its is entitled The dissent at 1283. license. In June suspended driving with to substitute it is not entitled opinion, but separate on three convicted 2004 he was the crime influence, punishment about the its views driving under for counts the district court. for the views of license, and deserves suspended rer driving with out, are not we review- pointed offenses. As have citations those sign fusing to novo, judgment de district court’s ing 2007 he was convicted Finally, April the court whether only to determine af- but license a valid driver’s driving without discretion. See its considerable speeding him for abused stopped police ter F.3d at 1184. Irey, 512 containers open beer and observed several course, And, present car.7 in his event, the dissent underestimates *13 he was convicted arose because case convic- of Rosales-Bruno’s the seriousness reentering illegally felony of the 2011 committed a tion. Because Rosales-Bruno been de- after he had the United States deported, then felony, and was later felony. for a his conviction following ported illegally, he the United States reentered has someone who is not Rosales-Bruno calls dissent the of what the moved.out complying to or effort much time devoted of 8 category U.S.C. “relatively low-level” 1 the law. with 1326(a) much more serious § and into the 1326(b)(1). Dissenting § category in resen- explained court The district That escalation resulted in Op. it an that believed tencing Rosales-Bruno crime of for his statutory maximum the “appropriate” was sentence 87-month increasing from reentry deportation after history, lengthy his criminal on based latest years. The crime to ten weigh- years two took into account the court which convicted, 3553(a) was for Rosales-Bruno § which the several of ing was sentenced this for which he the one history and characteris- the factors such as case, “relatively low-level offense.” is not a defendant, promote need to tics of law, pro- to and the need for respect give weight to more decision The court’s See 18 U.S.C. adequate deterrence. vide 3553(a) § factors combined other to the (a)(2)(A)-(B). 3553(a)(1), The court also § range alone advisory guidelines than to the that government with the agreed States unreasonable. See United was not 3553(a)(2)(C) need for factor about the § (11th Mateos, F.3d 1368 Cir. v. 623 an 87- public supported of the protection 2010) (“[I]t court’s district] is within [the 3553(a)(1) § did the As month sentence. weight much to to decide discretion how [illegal of the and circumstances “nature long § factors as give each 3553 factor, the court which reentry] offense” judg a clear error it not committed has considered. (“The ment.”); Shaw, at 1237 to ... attach permitted district argues
The dissent others.”) over 3553(a)(2)(A), to one factor great weight §of court’s consideration Williams, omitted); 526 marks (quotation to “reflect requires which account that in take into trajectory fails to suggests that 7. The dissent Rosales-Bruno conduct esca- criminality.'’ Rosales-Bruno’s criminal decreasing pattern of "a shows beating up a driving from drunk rosy picture the Dissenting Op. lated at 1284. criminal woman. paints of Rosales-Bruno’s dissent (noting months, at 1323 F.3d is “within the the variance being justified by district court’s discretion to decide how the defendant’s extensive criminal histo- 3553(a) § weight give much each fac- ry); United States v. Yanez-Rodriguez, tor”). Placing weight substantial on a de- Cir.2009) (af- F.3d 946-49 entirely fendant’s criminal record is consis- firming 144-month sentence for illegal 3553(a) tent with because five of the reentry following removal for an aggra- requires factors it a court to consider are felony vated conviction substantively rea- history. related criminal See 18 U.S.C. sonable even though the guidelines range (a)(6). 3553(a)(1), (a)(2)(A)-(C), 41-51 imprisonment, months upward variance being justified in part by precedent supports Our the conclusion prior defendant’s aggra- conviction for the district court did not abuse its sexual battery), vated overruled in to, part in assigning discretion weight grounds by unrelated weighing, Puckett Unit- sentencing factors. States, 133-34, ed U.S. review, Under substantive reasonableness S.Ct. 1423, 1428, (2009). 173 L.Ed.2d repeatedly we have affirmed sentences major upward that included variances from C. guidelines signifi- defendants with criminal
cant histories that the sentencing Rosales-Bruno’s final contention is that See, weighed e.g., courts heavily. Over- his sentence was substantively unreason- street, 636-40 (affirming because able his case “squarely fell within 420-month sentence where rec- illegal the heartland of reentry cases” and months); ommendation was only 180-210 therefore didn’t merit variance. *14 Early, at 1221-22 686 F.3d (affirming 210- Relying impressions that his attorney moiith sentence guidelines range where has formed from anecdotal “evidence” only months); Shaw, was 78-97 560 F.3d alone, posits Rosales-Bruno many that il- 1238-41 (affirming statutory maximum legal reentry have defendants substantial 120-month sentence guidelines where criminal argues histories and that because range months); only was 30-37 see also his criminal history only is “average” it Turner, 1265, United States v. cannot serve as the upward basis for an 1274, (11th Cir.2007) 1280-81 (affirming Putting legal variance. the premise aside 240-month despite guidelines contention, of this premise its factual range only of 51-63 months and defen- According false. Sentencing Com- dant’s lack of criminal history). mission, illegal reentry 86.9% of offenders in 2013 fell within Other of the first four circuits one have affirmed above history categories criminal guidelines sentences under the sen- illegal reentry for de See, tencing guidelines.8 fendants with criminal histories. Rosales-Bruno does e.g., Rivera-Santana, not. He has a history category United States v. criminal 668 of 95, 98-100, 5, category His 99 n. V. V sets him apart Cir. status 2012) (holding illegal offenders, that from most reentry 240-month sentence illegal reentry for following good. removal not to the Only 13.1% of illegal aggravated felony an reentry conviction was sub offenders fall into a criminal histo- stantively reasonable though even ry category that is comparable to or worse guidelines range 120-150 than his.9 Comm'n, Quick Sentencing
8. See U.S.
Facts:
research-and-publications/quick-facts/Quick_
Illegal
(2014),
Reentry
Facts_Illegal_ReentryFY .pdf.
available at
Offenses
http://www.ussc.gov/sites/default/files/pdi7
Comm’n,
9. See
supra
U.S.
n. 8.
court should
position that
dissent’s
Rosales-Bru
dissent believes
man-
range as
illegal
guidelines
of
treated the
“mine-run case”
have
is a
no’s offense
advisory
vari
deserving
datory.
correctly
A
calculated
reentry not
In sup
at 1280-82.
Dissenting Op.
a defen-
range always reflects
guidelines
ance.
it
belief,
says that
the dissent
that
we’ve
port
history,
yet
as
criminal
dant’s
-history of
criminal
“suspect[s]
discussed,
1255,
courts
district
supra p.
convicted-felon,
criminals
category V
most
guideline
impose sentences outside
than Rosales-Bruno’s
or worse”
is as bad
time,
than half the
because
ranges more
it
at 1281. But
Dissenting Op.
history.
outweigh
other,
factors
non-guidelines
only with its similar
suspicion
up its
backs
Here,
the non-
advisory ranges.
those
is true
that whatever
ly unsupported belief
that most influenced
guidelines factors
history must
criminal
of Rosales-Bruno’s
focus on the
court are those that
district
convicted-
true of other
“equally
also be
earlier
facts of Rosales-Bruno’s
violent
Id.
felon,
illegal reentrants.”10
category V
crimes.
way
all
is ‘turtles
“Truly, this
at 1256.
Indeed,
I deci-
that our Rosales-Bruno
”
States, 547
Rapanos v. United
down.’
technical
stripped
sion
126 S.Ct.
& n.
U.S.
2L1.2(b)(l)(A)(ii)
“crime of violence” de-
(2006)
(plurality
L.Ed.2d
& n.
unques-
from acts that were
scription label
and tautolo
Conjecture
proof,
is not
op.).
suggests
crimes
tionably violent
If
reasoning.
Rosales-Bruno
gy is not
insists
the dissent
—which
court made a clear
believes
everything
longer
else—no
trump
should
him
when it sentenced
judgment
error
“history
accurately
complete
reflects
in a
have done
harshly than would
more
of the defendant.” See
and characteristics
case,”
prove
it is his burden
“mine-run
3553(a)(1).
court
The district
18 U.S.C.
should one was the same appropriate the sentence dissent. See Rosales-Bru- it had before. “[n]othing the that argues dissent (“We no I, express no 676 F.3d at Rosales-Bruno is that suggests record however, sentence as to what opinion, convicted-felon, category other than worse for Rosales- appropriate now be would reentrants, so much let alone illegal V Bruno.”). advisory his high end of that the worse tripled.” Dis- should be sentencing range But the district Op. at
senting
V.
record,
with that
familiar
court—more
criti-
dissenting opinion
II
Part
defendant, and far
the
familiar with
more
message
as a whole for
cizes this Court
“other
than we are with
more familiar
judge
we have sent
dissenting
believes
convicted-felon, category
illegal
V
reen-
we review
courts about how
to district
sense, experi-
common
trants” —exercised
The dis-
for reasonableness.
sentences
it ruled
ence,
judgment when
good
legal
stan-
criticism is not about
sent’s
appropri-
sentence was
that an 87-month
or the hold-
that we have announced
dards
facts and circumstances
ate under
made clear
of our decisions. We
ings
this case.
Irey
prin-
that the
our en banc decision
nature of Rosales-Bruno’s
The extensive
ap-
in that decision
ciples we announced
history
specific
and the
details of
criminal
above and below
plied equally
sentences
an
conduct made him
violent criminal
his
Irey, 612 F.3d
guidelines range. See
upward
an
vari-
outstanding candidate for
(“What
is a
requires
at 1196
advisory guidelines range
from the
ance
sufficient,
greater than
but not
sentence
illegal reentry.
His
a conviction
after
purposes
set
necessary,
comply
with
than
criminal conduct is worse
history of
subsection.”)
(2) of that
paragraph
forth in
reentry
typical illegal
conviction
that of the
omitted);
marks
id. at
(quotation
inside,
outside, not
He falls
defendant.
proper analysis is under
(stating that the
illegal reentry
defendants.
the heartland
means
principle,” which
“the Goldilocks
that
(explaining
The dissent’s criticism of this Court is
tences are being imposed is increasingly
that even though
gotten
we have
the law
favoring downward variances.12
right,
it believes that the results of our
substantive reasonableness decisions have
The table that
is Appendix A to this
message
sent a
to district courts that
opinion,
which is drawn from Sentencing
will not vacate unreasonably long sen- Commission reports survey
of deci-
tences, only unreasonably
Court,
short ones. See
sions of this
story.
tells the
It
1285,
Dissenting Op. at
are not
We
shows that
years
fiscal
2006 through
told whether
2014,
accusation is that
years
nine fiscal
since the Booker
Court has done
deliberately
just
this
or
decision for
available,
which data is
event,
negligently.
if we have been
district courts in this circuit have sen-
sending message
61,866
that contrary to the
tenced
They
defendants.13
imposed
neutral principles we have announced we
upward
sentences,
variance
which
will favor
variances more than
amounts to
1.34% of all sentences.14
ones,
downward
good
contrast,
either we are not
By
9,307
they imposed
downward
sending messages or the district
sentences,
courts of variance
which
ap-
amounts to
Packet,
12. We
2009,
look to these
facts because
Fiscal Year
Eleventh
Information
they,
any graphic
(2010);
one-time occur-
Circuit 11 tbl.8
Sentencing
U.S.
rences,
Comm’n,
are the
Packet,
most reliable method of deter-
Statistical
Fis-
Information
mining
2008,
message
whether the
the dissent fears
cal Year
Eleventh Circuit 11 tbl.8
(2009);
Comm’n,
has been
“Cognitive psy-
sent and received.
Sentencing
U.S.
Statistical
chology
Packet,
2007,
tells us that the unaided human mind
Fiscal Year
Eleventh
Information
many
(2008);
is vulnerable to
fallacies and illusions
Circuit 11 tbl.8
Sentencing
U.S.
Comm’n,
because of
memory
Packet,
its reliance on its
for vivid
Statistical
Fis-
Information
2006,
systematic
anecdotes rather than
(2007).
statistics.”
cal Year
Eleventh Circuit 11 tbl.8
Pinker, quoted
Steven
in "Steven Pinker:
Peace,”
Fighting
Prophet
Talk from the
figures
14.These
also come from Table 8 in
Observer,
15, 2011,
http://
Oct.
available at
Sentencing
reports
Commission
cited su-
www.theguardian.com/science/2011/oct/15/
pra
They
in footnote 13.
exclude instances
steven-pinker-better-angels-violence-interview
imposed departure,
where a district court
(last
9, 2015).
visited June
variance,
opposed to a
above or below the
guidelines range. They also exclude instances
figure
13. This
comes from data collected
in which
appears
the district court
to have
the United
Sentencing
States
Commission.
departure
both a
and a variance
Comm'n,
Sentencing
U.S.
Statistical
above or
range.
below the
Howev-
Informa-
Packet,
2014,
er,
tion
Fiscal Year
Eleventh Circuit
Sentencing
data in Table 8 of those
(2015);
Comm’n,
Sentencing
11 tbl.8
U.S.
reports
Commission
also shows that courts in
Packet,
Statistical
grant
Fiscal Year
our
departures
circuit
downward
far
Information
(2014);
(about
Eleventh Circuit 11 tbl.8
U.S.
more often
five times more often if we
Comm’n,
Sentencing
Statistical
government-sponsored
exclude
downward de-
Information
Packet,
Fiscal
partures,
Year
Eleventh Circuit 11
and about 45 times more often if we
(2013);
Comm'n,
tbl.8
Sentencing
them)
U.S.
they grant upward
Statis-
include
depar-
than
Packet,
tical
Fiscal Year
tures. Which means that if we included de-
Information
(2012);
Eleventh Circuit
partures
11 tbl.8
U.S. Sen-
in our numbers the results would
Comm’n,
tencing
greater
Statistical
Pack-
disparity
show an even
between out-
Information
et,
Fiscal Year
side-the-guidelines
Eleventh Circuit 11 tbl.8
sentences favorable to de-
(2011);
Comm'n,
U.S.
opposed
Statistical
government.
fendants as
to the
*18
so
and have done
variance sentences
ward
of all sentences.15
15.04%
proximately
increasing rate.
at an
era, the
post -Booker
in the
means
That
have been
variances
in which
only
period
that district
real
reason
The
eleven
message
more than
responded
have been
judges
there
have not
possible,
in the results
hidden
variance sen-
that the dissent sees
downward
many
as
times
there is no
is that
our
review
sentences.
upward variance
tences as
in the chart that
The data
message.
such
nine
that,
during those
but
Not
A
that. The district
shows
Appendix
is
variance
the number of downward
years
imposed 828
in our circuit have
courts
every year but
gone up
has
sentences
in the nine
sentences
upward variance
in 2006
one,16
from 437
increasing overall
have data since
years for which we
in down-
1,516
247% increase
in 2014—a
in
released
decision was
year the Booker
at
The rate
sentences.
ward variance
claim
Contrary to the dissent’s
2005.
have
in our circuit
courts
which district
a
set aside
expressly
not ...
have
“[w]e
more
variances has
granted downward
harsh,” Dis
because it was too
sentence
well,
2006 to-
from 6.59%
tripled
than
as
.in
1292,
in fact vacat
at
we have
senting Op.
variances, by
Upward
22.52% in 2014.
variance sen
upward
of those
ed three
(1.67%).and
contrast,
peaked in 2011
unreasonably long.
See United
as
tences
(11th
Valdes,
1291,
years,
of the next three
v.
decreased each
States
Cir.2007)
upward
(1.37%)
(vacating
108-month
by 2014. And
falling to
fraud where
sentence for bank
variance
increase in down-
with the 247%
contrast
months);
range was 41 to 51
guidelines
sentences, upward variance
ward variance
Fed.Appx.
Lopez,
v.
United States
up only 39.4% the
gone
sentences have
Cir.2009)
(11th
(unpublished)
485-86
showing
A chart
post
years.
-Booker
n variance
upward
a 60-month
(vacating
Appen-
contrasting trends is contained
smuggling unlawful aliens
sentence
opinion.
dix to this
C
guidelines
country where the
into the
insists,
If,
the results of
as the dissent
months);
to 41
United
range was 33
have been
our reviews for reasonableness
Gardner,
Fed.Appx.
States
that an
message
courts a
sending district
(va
Cir.2007)
(unpublished)
476-77
likely
is less
upward variance sentence
mis
a sentence for
cating as unreasonable
one,
variance
get vacated than a downward
months,
felony that was 36
prision of a
courts
appear
that the district
does
to 16
guidelines range was 10
where the
they
if
gotten
message.
have
Or
months,
it resulted
regardless of whether
have,
They have
they simply
don’t care.
or
.varia
upward departure
from an
nce).17
have vacated
This means that we
more down-
indisputably
imposing
been
unreasonably long
vacating
figures
supra
cited in
our decisions
15. See
n. 13. Like the
Dissenting
departures.
supra,
'upward
exclude
variance sentences. See
these
footnote
category
They
contends that
Op.
also exclude
1286-88.
It first
"government-sponsored”
calls
Commission
because none of
decisions do not count
those
that includes both
below
sentences
sentencing ceiling
"impose
on re-
them
departures.
variances and
There are two funda-
mand.” Id. at 1287.
is
that criticism.
first
mental flaws with
n
variances de-
16. The number of downward
explains why
never
that mat-
that the dissent
1,272
1,215
(from
year
in 2010 to
creased one
ters,
holding a
not. A decision
and it does
2011).
Every
supra
n. 13.
other one of
unreasonably long is a decision
is
2014, they in-
years
2006 to
nine
from
unreasonably long regard-
that the sentence
creased.
long
opinion specifies
how
less of whether
can be without also
on remand
pages
the sentence
spends
several
on an
The dissent
being
distinguish
unreasonable.
attempt to
or belittle
unsuccessful
*19
position
procedural
The second flaw in the dissent’s
with its
duties: it considered the
that,
3553(a)
ignores
only
§
that
the fact
with
one ex-
Fed.Appx.
factors. 343
at 486.
ception,
sentence,
we
when
have vacated
as
sentences
When we vacated the
we did so on
unreasonably
specified
we
grounds,
short
have not
namely
substantive
that the court’s
imposed
sentence that should be
“justification”
on remand
reason—for the sentence
—its
reasoning
either. So under the dissent's'
inadequate,
own
was
not
jus
its discussion of that
only
Further,
one of our downward variance decisions
tification. See id.
the dissent does
position
counts in favor of its
argue
decision
that the downward variance sen
—one
years.
noting
in nine
It is also worth
that the
we
tences
have vacated for similar reasons
specified
See,
one case in
only
which we
rea-
should
e.g.,
not count.
United States v.
771,
sonable sentence
Hooper,
(11th
that could be
Fed.Appx.
Cir.
it,
Irey.
2014)
top
remand is
and bottom of
(unpublished) (noting that "the court
guidelines range
were the same
sufficiently
failed to cite
significant justifica
maximum,
statutory
100%,
which meant
that
granting
tion for
70-month down
guidelines range
variance”);
sentence within the
McQueen,
was
ward
United States v.
1144,
(11th
the maximum
Cir.2013)
sentence.
Hayes, 762 F.3d
for reasons to vacate
scrutiny, searching
1274
Livesay, 587 F.3d
v.
United States
Instead,
regularly reject rea
them.
we
Cir.2009).
(11th
They
include a case
also
challenges by
government
sonableness
officer’s sentence
where a law enforcement
ap
after
to downward variance sentences
though he had
jail
no
time even
included
that we
principles
neutral
plying the same
a handcuffed
beating
for
been convicted
See,
in
other .decisions.
applied
Irey locking
unresisting arrestee and then
McBride,
v.
511 F.3d
e.g., United States
Hooper,
him in
States v.
a hot car. United
(11th Cir.2007) (affirm
1293, 1295, 1297-98
Cir.2014)
(11th
(unpub
Fed.Appx.
566
771
months,
was a
a
of 84
which
ing
lished).
guidelines
from the
downward variance
months,
a defen
151 to 188
range of
in
we
remaining five cases which
Of the
and 45
possessed
images
dant who
unreasonable downward vari-
vacated as
United
pornography);
videos of child
sentences,
two were cases which
ance
1323,
Gray,
v.
453 F.3d
1323-25
States
committed a serious
the defendant had
(11th Cir.2006)
of 72
(affirming a sentence
virtually
jail time.
received
no
crime but
months,
a downward variance
which was
custodial term was little
In both cases the
guidelines range of 151
from the
tiny
one at
fig
more than a
leaf—and
months,
who distributed
for a defendant
the naked un-
that —insufficient to cover
v.
United States
pornography);
child
of the sentence.
one
reasonableness
Hendrick,
banc);
Fed.
Kuhlman,
v.
APPENDIX A1
Upward Variance Sentences Vacated
as Unreasonable dissent, Twain, thesis, 21. Mark King A Connecticut Yankeein the actual facts refute its (1st 1889). "facts, bemoaning Arthur’s Court 420 should ed. instead be damned facts, and more facts." questioning accuracy Instead of sentencing opinion, data cited in this showing 1. The data the number of defendants “[tjhere quotes the dissent the old cliché that sentenced and the number of variances is lies, lies, are three kinds of lies: Comm’n, damned Sentencing drawn from U.S. Statis- Dissenting Op. Packet, statistics.” at 1291 n. 14. That tical Fiscal Year Information hackneyed (2015); formulation does not fit here be- Eleventh Circuit 11 tbl.8 U.S. Sen- sentencing Comm’n, cause the tencing facts re- Statistical Pack- Information et, opinion view facts cited in this are not mere Fiscal Year Eleventh Circuit 11 tbl.8 Comm’n, extrapolations. 2014);- clearly statistical Given how U.S. Statistical 1274 Upward Number of Number Number of Sentences Variance Upward Defendants Variances as Unreasonable2
Fiscal Year Sentenced Vacated 0 6,731 92 2014 6,716 94 2013 100 6,837
2012 6,932
2011 116 6,989
2010 107 7,098 99
2009 7,038 6,892 6,633
Totals 61,866
2006-14 Upward Rate of Vacatur of Variance Sentences: 0.36% Downward Variance Sentences
Vacated as Unreasonable Number of Downward ' Number of Number of Variance Sentences Fiscal Year Defendants Sentenced Downward Vari- Vacated as Unreasonable2 _anees_
2014_6/731_R516_2__
2013_6/716_1,282_2_
2012_6/337_1/278__0_
2011_6/332_1/215_1_
2010_6,989_1,272_2_
2009_7/098_984_1_
2008_7,038 740_2_
2007_6,892_583_0_
2006_6,633_437_2_
_Totals_
2006-14_61,866_9/507_12
Rate of Vacatur of Downward Variance Sentences: 0.13% Packet, 2012, Packet, 2008, Fiscal Year Eleventh Fiscal Year Eleventh Information Information (2013); Sentencing (2009); Circuit 11 tbl.8 U.S. Sentencing Circuit 11 tbl.8 U.S. Comm’n, Packet, Comm’n, Statistical Packet, Fis- Statistical Fis- Information Information 2011, Eleventh Circuit 11 tbl.8 cal Year Eleventh Circuit 11 tbl.8 cal Year (2012); Comm’n, Sentencing U.S. Statistical Comm’n, (2008); Sentencing U.S. Statistical Packet, Fiscal Year Eleventh Packet, Information Fiscal Year Eleventh Information (2011); Sentencing 11 tbl.8 Circuit U.S. (2007). Circuit 11 tbl.8 Comm’n, Packet, Statistical Fis- Information Sentencing Commission tracks its sta- cal Year Circuit 11 tbl.8 Eleventh (2010); Comm’n, by year year. U.S. tistics fiscal instead of calendar Statistical
APPENDIX B
Downward Variance Sentences Vacated Substantively Unreasonable Sentence Vacated Range
Criminal Conduct as Unreasonable United States v. Business owner masterminded a 135-168 in public months Probation with no prison term of including 762 F.3d Hayes, corruption over imprisonment scheme— (11th Cir. in $600,000 bribes to state officialin 2014) charge higher education, as well as laundering a money conspiracy —that more than yielded million ill- $5 gotten profits. United States v. Officer a much hand- punched smaller, 70-87 months in Probation with no prison term of Hooper, unresisting 566 Fed. cuffed, arrestee multiple imprisonment (11th locking times in the face before him in Appx. Cir.2014) a hot car. United States v. Corrections officers head-slammed, Defendant # 1: 15-21 Defendant # 1: 1 month McQueen, 727 F.3d and beat with a bro- knuckle-rapped, months in prison prison (11th underage Cir. ken broomstick inmates, 2013) provoking fight one inmate to back, and then choked” him while “fiercely Defendant # 1: 1 month Defendant # 122: begged he officers contin- mercy; n prison months priso ued to beat the breathless until inmate he was “curled into a defensive ball,” lured him to his feet him punch in the nose, choked him finally until he was unconscious. Officers vi- beat at least five other ciously inmates leaving injuries occasions, separate that were visible after the at- days tacks, then obstructed an investi- gation into their conduct. United States Doctor bilked insurance 57-71 months in providers Probation with no prison term of Kuhlman, million in nearly over five payments imprisonment $3 Cir. for services he knew were not yeai's 2013) rendered to his He admitted patients. greed, that was motivated not need. *25 United States v. From 1993 to defendants 360 months to in provid- life 208 in months pris- prison Jayyousi, 657 F.3d ed recruits, money, equipment (11th 1085 Cir. radical and violent Islamist terrorist organizations, including De- 2011) al-Qaeda. fendants were also convicted of con- to murder, or maim spiracy kidnap, overseas. persons (11th consistency Cir.2007)
To maintain
practice
with that
(unpublished),
aas
fiscal 2008
purposes
of this chart we have
counted
case and United States v.
587 F.3d
Livesay,
(11th Cir.2009)
Gardner,
Fed.Appx.
255
475
1274
as a fiscal 2010 case.
United States v.
1276
in
210 months in
United,
sodom- 360 months
prison
prison
Remorseless defendant raped,
States
fif-
and humiliated over
ized, tortured,
Irey, Cir.2010) (11th children, Cambodian ty impoverished young were as as four some of whom a five He over old, year span. year’s memorialized the cruel acts more in photographs that he then 1,200 than the Internet. disseminated on knowingly accounting manager with no term of months in Probation 78;-97 prison States v. Senior United a critical role in a massive nine- imprisonment 587 F.3d Livesayfi played (11th mail fraud scheme securities and Cir. year 2009) in in billion that resulted nearly $1.4 of whom shareholders, losses for some savings their life in the had invested stock. company’s guilty with no term of Probation Defendant was of conspiracy, Unspecified States v. United justice, and witness imprisonment 324 Fed. obstruction of Hendrick, (11th tampering. Appx. Cir.2009) in Probation with no term of of several defen- 97-120 months prison States v. Over a period years, United knowingly Pugh, and dis- imprisonment 515 F.3d dant downloaded (11th to other web users at least 68 Cir. tributed 2008) pornography, images child as well of raping an as videos of an adult male young girl girl of a infant ing perform- oral sex on adult male. Defen- that he once saw an dant admitted having image a man sex with a two- dog or who had collar three-year-old around her neck. There were ten images child victims in the known found on defendant’s computer. knowingly Probation with no term of 87-108 months United States v. Treasurer company par- prison in a massive securi- nine-year imprisonment 294 Fed. McVayfi ticipated ties and mail fraud scheme that result- (11th Appx. Cir.2008) ed in billion losses for nearly $1.4 in- some of whom had shareholders, savings in vested their life the compa- stock. ny’s knowingly in detention United States v. CFO a mas- 108-135 months prison days participated 455 F.3d sive securities and mail nine-year Martinf3 n (11th fraud scheme that resulted in nearly Cir. 2006) billion in losses for shareholders, $1.4 some of whom had invested their life savings in the stock. company’s 24-30 months in Probation and 5 hours in United States v. of construction company prison Comptroller knowingly false financial of U.S. Marshal custody Crisp, prepared a bank Cir. statements that defrauded out 2006) $500,000. nearly APPENDIX C Booker) Livesay, were allowed before instead of vari-
3. The defendants in the related cases
(which
not).
Martin,
McVay,
ances
were
Because we re-
all of which arise out of
activity,
originally
under the Booker rea-
the same criminal
were
viewed those sentences
standard,
we have included them
decision
sonableness
sentenced in
before
Booker
merely
and in our totals for variances.
rendered the
in this chart
*26
Doing
advisory.
increases our rate of vacatur of
See
70-87 month
range
Guidelines
con-
cluding
upward
that an
variance was not
A.
warranted, the district court sentenced Ro-
highly subjective,
is
at
top
sales-Bruno
range.
We
standardization,
without
sentencing based vacated that sentence because the district
3553(a)
on the
factors is unpredictable
mistakenly
court
believed that Rosales-
disparate.
why
That is
the Guidelines Bruno had been convicted of a violent felo-
Irey,
were created. See
useful.
Supreme
it,
As the
put
Court
range decreased from 70-87 to 21-27
...
“[t]he
courts
must consult th[e] months, meaning that instead of facing a
Guidelines and take them into account
years,
sentence of 7.25
Rosales-Bruno
sentencing.”
when
Id. at
at
S.Ct.
faced a sentence under the correctly calcu-
Or,
767.
put
Irey,
we
“though not
of, most,
lated Guidelines
years.
2.25
[Guidelines,
bound
a sentencing However, despite this substantial decrease
may
court
not give them so little consider-
applicable
range,
Guidelines
Ro-
ation that it amounts to not giving any real
sales-Bruno received the exact same 87-
weight to the
in imposing month sentence as before. To re-impose
(internal
the sentence.”
eluding one, that, major as the 87- gress’s ance—and a command to consider the Guide- required a 60- imposing month sentence lines when a sentence. See 18 variance, tripling 3553(a)(4). more than month U.S.C. , range. of the Guidelines upper end *29 course, Majority opinion suggests Of the uncanny re- ignore
It is difficult to
the
that,
very beginning,
from the
the sentenc-
the district
ini-
semblance between
court’s
ing judge thought that 87 months was the
imposed
the sentence
on
tial sentence and
Rosales-Bruno;
correct sentence for
the
remand,
I have little doubt that if the
up
court
came
with
87-month
correctly calculated
had been
Guidelines
own,
experi-
sentence all on its
based
around,
the first
time
Rosales-Bruno
ence,
sense,
good judgment.
common
have
sentenced to 27 months.
would
been
sentence,
imprison-
But this
87 months’
in
record at
Nothing
the
Rosales-Bruno’s ment, did not come from the district
heáring
sentencing
suggests
initial
that the
judgment
experience.
court’s
or
It came
as
type
court viewed Rosales-Bruno
the
or,
from the
more
Guidelines—
an upward
defendant who warranted
vari-
accurately, from a miscalculation of the
all,
significant
at
let alone such a
one.
ance
Majority opinion
Guidelines.
rewrites
initial
And between Rosales-Bruno’s
sen-
that,
history
suggesting
regardless
in
tencing
resentencing,
and his
the
Guidelines, the district court was al-
the.
changes that occurred cut in
of a
favor
ways going
impose
an 87-month sen-
Guidelines,
lower sentence. Under
tence, even if it had calculated the Guide-
longer
Rosales-Bruno was no
deemed a
correctly
lines
the first time around.
felon,
advisory range
violent
and his
de-
Indeed,
Majority opinion
even as-
months,
by
roughly
per-
creased
or
serts that the best evidence of what the
Despite
changes,
cent.
these
Rosales-Bru-
district court
have
would
done the first
single
no’s sentence did not decrease
a
time around is
the court
what
did
day.
second time around on remand. Not so.
The conclusion to be drawn from a sen-
The best evidence of what the court would
change
tence that does not
based on such a
have done the first time around is what the
substantial decrease in the Guidelines
time, around,
court did the first
which was
range
given
is that the Guidelines were
no
upper
sentence Rosales-Bruno to the
all,
weight at
requiring
Irey.
vacatur under
range.
n
end of the
Again,
Guidelines
See 612
at
Ordinarily,
it is
product
number 87 was not a
of the sen-
(or,
just
difficult to tell
how much
in this
tencing
judgment;
product
court’s
was a
little) weight
given
how
is
case*
persuasive
Guidelines. There is no
particular sentencing factor because the
explanation
why
in the record as to
many
Guidelines are but one of
factors
defendant,
criminal
whom the district
the court must
take into account.
fact decided to sentence within the
Here, however, one of the variables —the
instance,
Guidelines in the
suddenly
first
isolated,
Guidelines range
perfectly
as
—is
became a
requiring
triple-up-
defendant
nothing
changed
else
between Rosales-
ward variance on remand.
Bruno’s first
and his second.
Further, concluding that a massive de-
The fact that such a dramatic
decrease
range
crease
the Guidelines
should have
had no impact
Guidelines
on the sen-
at
tence
least some influence on the sentence
imposed
clearly
shows
all,
given
weight
suggesting
Guidelines were
no
is not the same as
which,
requiring
aside from
mandatory
vacatur under
the Guidelines
should be
in violation of Booker.
I suggest only
reflect
considerations even in a
binding precedent
Irey
what our
has
Irey,
mine-run case.’”
And the Guidelines
lating
added)).3
then,
recidivism is the
this,
Why,
Rosales-Bruno’s
did the district court
him in
landed
precise characteristic
more than tri-
sentence Rosales-Bruno to
categorization increased
That
category V.
upper
advisory range
of an
ple the
end
again, this
applicable
specifically designed
that was
for eonvict-
months to 21-27 months.
time from 6-12
pat-
illegal
ed-felon
reentrants with similar
Thus,
the 21-27 month advi-
creating
when
terns of recidivism?
case,
applicable
this
sory range
Majority
attempts
to an-
opinion
dealing
knew it was
with ille-
Commission
question by noting
swer this
Rosales-
Rosales-Bruno,
just
like
gal reentrants
outstanding
Bruno is “an
candidate for
felony conviction and at
prior
who have a
advisory guide-
variance from
history points.
10 criminal
least
range” primarily
lines
because he is a cate-
range al-
Accordingly, this Guidelines
criminal,
gory
placing
among
him
V
ready
the fact that Rosales-Bruno
reflects
percent
illegal
worst 13.1
reentrants.
repre-
has done
repeat
is a
criminal who
Maj.
But it
Op.
1263-66.
makes no
all, it
hard
things.
hensible
After
suggest
person
sense to
that a
is “an out-
category
defendant who is not
imagine a
V
standing
being
candidate” for
treated
repeat
criminal or
felon who has not
three times
than other category
harsher
V
reprehensible things. The Commis-
done
*31
category
criminals because he is a
V crimi-
punish
to
designed
sion
the Guidelines
Being
category
nal.
V criminal does no
others,
harshly
more
than
such defendants
more than make
an out-
Rosales-Bruno.
6
by increasing offense levels from to 10
standing candidate to be treated as a cate-
increasing
history catego-
criminal
by
and
criminal, which,
case,
gory V
this
means
short,
In
ries from I to V.
as a result of
being sentenced to somewhere between 21
breaking
doing
the law and
repeatedly
Valdes,
imprisonment.
and 27 months’
(at
once),
reprehensible things
illegal
least
Valdes,
2;
So, again, the
illegal
fact that
reentry],
[his
Rosales-Bruno
that warranted a dif-
has a worse criminal record than most
ferent sentence” than
by
the one advised
Majority
as,
4. The
place
that
insists
I
example,
unrea-
for
defendants in the same crimi-
sonable
by
burden
expecting
on
courts
history
nal
category
having some
—without
them to know the characteristics of the "aver-
"heartland,”
typical,
idea
what
"mine-
age” category
illegal
V
reentrant with a base
category
run”
By
V criminal was like.
insist-
offense level
place
The burden
10.
I would
ing that
"average”
district courts
consider
sentencing
on
courts is no different than—
particular
with a
defendant
offense level and
and, indeed,
carrying
is
essential
out—the
history category,
criminal
I insist
that
placed
sentencing
burden
on
by
courts
Con-
district courts use their common sense and
gress, which directs them to
consider
experience to ensure that defendants with
need to avoid
sentencing dispar-
unwarranted
similar
who
records
similar crimes
commit
ities between defendants with similar records.
similarly.
are sentenced
This calls on district
3553(a)(6).
See 18 U.S.C.
It would be im-
judges
good judgment,
court
to use
not to
possible to avoid
disparities
unwárranted
be-
analysis.
conduct
statistical
tween defendants with similar records —such
And
here.
convicted-felon,
authority requires vacatur
this
other
for
the Guidelines
court abused
the district
concluding that
Irey,
illegal reentrants.
category V
way that would
acting in a
its discretion
F.3d at
in ordi-
sentencing disparities
to wide
lead
way
not mean
Indeed,
I do
while
inconsistent with
not at all
nary cases is
lengthy crimi-
Rosales-Bruno’s
condone
treating the Guide-
prohibition
Booker’s
criminal
that
history,
suspect
I
nal
all, Booker did
mandatory. After
lines
convicted-felon, category V
history of most
vacating Pugh’s sen-
from
prohibit
us
worse. The district
as bad or
criminals is
court’s failure
on the district
tence based
insisted,
Majority opin-
as does
sentencing
reflect
...
“adequately
re-
proper
lacked
ion,
Rosales-Bruno
by the Guidelines.”
established
range
deterred,
law,
to be
needed
spect
(internal quotation
preventing unwarranted sentencing dispar-
ities.
3553(a)(2)(A)
Section
requires
sentence “reflect the seriousness of the
conclusion,
In reaching this
I am not
...
provide just
offense
punishment
seeking to require
unprecedented
de-
3553(a)(2)(A)
for the
18 U.S.C.
offense.”
gree of explicit comparison between of-
added).
(emphasis
The district court’s
fenders before a district court may sen-
consideration of this factor
clearly
was
un-
tence a defendant. All I
require
would
reasonable.
It
is critical here to recall
sentencing judge
give a credible
being
Rosales-Bruno is not
sentenced
justification
major
for a
variance from the
for abusing
girlfriend
his
or for driving
beyond
Guidelines
factors that
typical
are
drunk. He
already
punished
has
been
for
subject
advisory
defendants
to the same
crimes,
those
punishment
his
under
range.
precisely
This is
what is required
for the instant
crime has
by the Supreme
Court and
Judge
Chief
already been
substantially
increased
as a
opinion
Carnes’s
Ivey,
this court
past
result of those
offenses.
Irey’s
where we said
too
low.
(“[T]he
See 612 F.3d at
requirement
being
He is
illegal reentry
sentenced for
justification
is that the
‘sufficiently
1326,6
be
com-
under 8
which is a
U.S.C.
relative
*34
Irey candidly recognizes
5.
tension
6.
internal
illegal
Rosales-Bruno was convicted of
1326(a).
reentry
in the rule that
§
the reason for a
in
of 8
variance must
violation
U.S.C.
(b)(l)-(2),
provide
Subsections
sufficiently
be
which
for en-
compelling
support
the de-
convictions,
prior
hancements based on
gree
are
of the variance but
proportionality
that a
enhancements,
not
different
requirement
prohibited.
is
See 612 F.3d at
See, e.g.,
crimes..
United
Almendarez-Torres
1186-87 &n. 14.
States,
224, 226-27,-230,
523 U.S.
118 S.Ct.
1.219, 1222, 1224,
(1998)
ly low-level
working
continue
here as he
child and to
of
commission
Rosales-Bruno’s
puted that
the offense
the district
the lowest
a factor
offer: 0-6
and
For
circumstances
category
making
months.
was
range
court mentioned
I
offenders,
routine
an 87-month sentence
the Guidelines
of the instant
It is
and unremarkable.
thus
the crime
striking
the nature
offense as
have to
carries
ap
for this offense
And
had before he was
more than
U.S.C.
certainly seems
spending
§
3553(a)(2)(A).
years
[*]
more
is
like
plainly
deported,
than 7
[*]
prison
punishment enough.
too
years
%
much.
for this
but
spending
prison
crime
contrast,
balance,
clearly
§
factors
Commission
On
propriate.
sen-
support
cir
an above Guidelines
nature and
do
the essential
believes
case,
varying
signifi-
so
tence in this
and
offense,
illegal-reentry
of
cumstances
on facts
cantly above the Guidelines based
themselves,
at most a 6-month
make
by
history that are
Rosales-Bruno’s
about
suggesting that an
appropriate,8
sentence
applicable
in the
people
common to most
wildly inappropriate.
is
87-month
range
clearly
was
even more
no basis for dis
court offered
The district
See,
Gall,
e.g.,
552 U.S.
unreasonable.
fac
assessment. This
with this
agreeing
reviewing
(requiring
1287 trict does not by abuse its discretion This forces me to believe that we are upper end of a tripling grading Guidelines harshness and lenience on differ- range in a “mine-run” case By where ent scales. failing to Irey adhere to already incorporate and account and Pugh case, this variance characteristics, for the defendant’s worst it Majority opinion reinforces this unstated difficult imagine any is circumstances double It standard. is true that saywe all under which we would find an abuse of sentences meaningfully are reviewed for discretion because a reasonableness, sentence is harsh. too but in practice, it seems Unlike the I Majority, am left with the that only lenient subject sentences are and firm definite conviction that the dis- vacatur on purely grounds. substantive trict court a committed clear error of judg- The message that we sending are to the ment, I and would vacate Rosales-Bruno’s precedent courts this is that sentence and resentencing remand for they enjoy virtually unfettered sentencing within the discretion, Guidelines. long so they sentence harsh- ly. words, In other while saywe other-
II. wise, we in reality are reading a “severity principle” sentencing We into have never vacated a should sentence be be there. Irey, 612 high, cause was too F.3d at imposing sentenc 1196-97 (explaining ing ceiling By contrast, supports on remand. neither occasions, “parsimony principle” nor a “severity numerous we have vacated sen principle”). tences they because were too and im low See,
posed
sentencing
e.g.,
floor.
Irey,
A.
F.3d
1224-25 & n. 46 (concluding
years
sentence less than
no
would
Our case law has been so one-sided that
suffice); Pugh, 515 F.3d at
(holding
we have convinced at least one member of
that a sentence of probation
court,
without im
Martin,
this
Judge
that we do not
prisonment
supervised
or
release was— actually place an upper limit on sentencing
unreasonable);
and would
discretion,
see also
despite
pretensions
our
to the
be—
United
Livesay,
States v.
is,
contrary. That
she believes that we
(11th Cir.2009) (“Not
only do we hold
have been so obvious in applying our un-
particular
that the
sentence
below written “severity principle” that it is now
unreasonable,
but we also
that any
hold
the law of our circuit.10 In Early, Judge
probation
sentence
would be unreason Martin stated that our precedent “teaches
....”);
able
United States v. McVay, 294
deference to ...
variance above the
(11th
Cir.2008)
Fed.Appx.
(per Guideline
no
range,
large,”
matter how
so
curiam) (prohibiting the district court from long
maximum,
as it is
statutory
under the
time).
imposing a
prison
sentence without
(Martin, J.,
course.11
There is another reason that Valdes and
my point
this case. And
remains: we have
Majority
cites,
opinion
the third case the
expressly
never
a
vacated sentence as sub
unpublished opinion
our
in United States
stantively unreasonable because it
Gardner,
was
Fed.Appx.
Cir.
2007)
simply
long
imposed
too
a
curiam),
sentencing
(per
my
do not alleviate
contrast,
ceiling
By
on remand.
we have
developing
severity
concern that we are
not hesitated to vacate a sentence as
Valdes,
sub
principle
sentencing.
we va
stantively unreasonable
because
cated the sentence because “the reasons
short,
simply
many
too
those
inadequate
support
discussed were
cases,
extraordinary variance.” 500
at
floor
added).
See,
Gardner,
1224-
(emphasis
Similarly,
e.g., Irey,
remand.
III. CORPORATION, MICROSOFT calculated improperly The district Appellant months —a as 87 sentence Rosales-Bruno’s on an er- sentence based within-Guidelines v. On of the Guidelines. calculation roneous PROXYCONN, INC., Cross-Appellant sen- remand, imposed the same the court Having variance. triple-upward tence—a factors, record, and the examined Lee, Director, K. U.S. Michelle this imposing court’s reasons Patent and Trademark major sentence, that this I am convinced Office, Intervenor. signifi- supported by a variance justification, nor were cantly compelling 2014-1542, 2014-1543. Nos. any weight or consid- given the Guidelines Appeals, United States Court Thus, Rosales- I would vacate eration. Circuit. Federal for resen- and remand Bruno’s Moreover, to do so here failure tencing. 16, 2015. June that there is a perception reinforces Eleventh of review the standard double greater deference to sen- giving
Circuit — the recommended
tences above *40 those below.
range than Irey that “there is a recognized
We and abdica- deference
difference between difference, if did If there were no we
tion. meaningful play, role to we have a any sentences never have set aside
would
unreasonable, but we
substantively
(cita-
Irey,
have.” omitted). quotation marks
tion and internal not, however, expressly set aside
haveWe Re- because it was too harsh.
a sentence
fusing to vacate Rosales-Bruno’s all but eliminates
in these circumstances already distinction between weakened when we review
abdication and deference I sentences. Because believe
harsh Irey namely,
meant what we said — meaningful play role to re-
we have
viewing sentences for substantive reason- only way to because the
ableness—and
affirm Rosales-Bruno’s sentence is to ab-
dicate, respectfully I dissent.
