UNITED STATES of America, Plaintiff-Appellee, v. Tony MIX, Defendant-Appellant.
No. 05-10088
United States Court of Appeals, Ninth Circuit
March 30, 2006
443 F.3d 1191
Submitted Feb. 16, 2006. Filed March 30, 2006.
Linda C. Boone, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee.
Tony Mix was convicted of two counts of kidnaping, five counts of aggravated sexual abuse, and two counts of assault with a deadly weapon committed within the confines of the Navajo Indian Reservation. He appeals from the district court‘s sentencing decision. He contends that the imposition of a life sentence was unreasonable and inconsistent with the requirements of
We affirm because the sentence imposed by the district court was reasonable. We also hold that the district court‘s application of Booker to its sentencing decision did not violate Mr. Mix‘s rights under the Due Process clause of the Fifth Amendment, nor did the district court violate the Sixth Amendment in failing to submit sentence enhancing factors to the jury.
I
A
The evidence presented by the prosecution at trial demonstrated that Mr. Mix committed numerous violent acts of sexual and physical assault against his live-in companion between 1998 and 2000. She was too frightened to report him to the police until October 30, 2000. Her physical injuries on that date were so severe that her examining physician testified that she had never seen so much trauma to a sexual assault victim who had survived. The physician was so distressed by the severity of the victim‘s injuries that she had to leave the room to cry and compose herself before she could administer medical treatment. Two other women testified that they had been physically and sexually abused by Mr. Mix during their relationship with him. During the sentencing proceedings, the district court commented that Mr. Mix‘s violent acts against women were “perhaps one of the most brutal, if not the most brutal, set of circumstances that the [district] Court has had the misfortune to preside over.”
The jury found Mr. Mix guilty of each crime alleged in the indictment. The district court adopted the recommendations set forth in the presentence report (“PSR“). The court departed upward pursuant to U.S.S.G. § 5K2.3 for extreme psychological injury, § 5K2.8 for extreme conduct, § 5K2.21 for uncharged conduct. The court denied Mr. Mix‘s request for a downward departure.
Mr. Mix was sentenced to life imprisonment for committing Kidnaping, as charged in Counts One and Nine, and Aggravated Sexual Abuse, as charged in Counts Two, Three, Four, Five and Six. He was sentenced to serve one hundred and twenty months for committing Assault with a Dangerous Weapon, as charged in Counts Seven and Eight to be served consecutive to each other and concurrent to the sentences imposed on Counts One through Six and Count Nine.
Mr. Mix filed a timely appeal from the judgment and conviction on March 14, 2002. In an unpublished opinion issued before the Supreme Court‘s decision in Booker, we affirmed the judgment of conviction, but reversed the sentence in part, and remanded for resentencing. United States v. Mix, 77 Fed.Appx. 986, 990 (9th Cir.2003). We held that the district court erred in departing upward for uncharged conduct pursuant to § 5K2.21 because that sentencing guideline did not become effective until November 1, 2000, one day after Mr. Mix‘s last charged offenses. Id.
On remand, the district court postponed resentencing until after the publication of Booker; and, in consideration of Booker, the district court again imposed concurrent life sentences as to Counts One through Six and Nine and consecutive 120-month sentences as to Counts Seven and Eight, the latter sentences to run concurrent with the life sentences. Before resentencing Mr. Mix, the court heard lengthy arguments from counsel, and heard Mr. Mix‘s allocution. The district court adopted the presentence report “in all respects, factually, and legally, and insofar as the guideline computations are concerned except as will be further addressed by this court.” The district court then recited at length the grisly circumstances of Mr. Mix‘s offenses, including his long history of violence toward women. Turning to legal considerations, the court observed that ”Apprendi ... has no application to this case.” However, the district court said, “[t]he Booker decision in its majority [decision] issued by Justice Breyer clearly applies to this case.”
Having discussed both the facts of the case and the law applicable to it, the district court turned to the application of Sentencing Commission Guidelines and
At the end of its discussion of
the use of the term “departures” is no longer relevant and/or appropriate. But the Court concludes that the guidelines do not sufficiently provide for the heinous, brutal, continued nature upon the victims in this case and it is going to consider a variance to the degree necessary in imposing the following sentences.
With the foregoing explanations, the court imposed a life sentence. Mr. Mix filed a timely notice of appeal of the sentence imposed upon remand. We have jurisdiction pursuant to
II
Mr. Mix seeks reversal of the district court‘s sentencing decision on discrete grounds. He argues that the life imprisonment sentence imposed by the district court is unreasonable because it erroneously applied § 5K2.21 as the basis for an upward departure and failed to consider
A
In United States v. Cantrell, 433 F.3d 1269, 1279-81 (9th Cir.2006), we adopted a two-step procedure for reviewing sentences imposed following the date the Supreme Court issued its opinion in Booker. We held that district courts are not mandated to sentence within an applicable guideline range because the Sentencing Guidelines are advisory—not mandatory. Id. at 1279 (citing Booker, 543 U.S. at 259-60, 125 S.Ct. 738). District courts, however ” ‘must consult [the] Guidelines and take them into account when sentencing,’ even though they now have the discretion to impose non-Guidelines sentences.” Id. (quoting Booker, 543 U.S. at 264, 125 S.Ct. 738). This consultation requirement from Booker means that a district court must calculate correctly the sentencing range prescribed by the Guidelines. “In other words, as was the case before Booker, the district court must calculate the Guidelines range accurately. A misinterpretation of the Guidelines by a district court ‘effectively means that [the district court] has not properly consulted the Guidelines.’ ” Id. at 1280 (quoting United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir.2005)). In addition, a district court must apply the factors enumerated in
In order to calculate the applicable Guidelines range for a case, a sentencing court must first determine which Guidelines apply to the case. U.S.S.G. § 1B1.11 addresses this subject, and begins with the general proposition that a court will use the Guidelines Manual in effect on the date of sentencing. However, U.S.S.G. § 1B1.11(b)(1) provides:
If the court determines that the use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.
After Booker, the departure Guidelines (U.S.S.G. § 5K1 and § 5K2) remain operative. An accurate guideline range calculation may still properly require consideration and correct application of the departure Guidelines. In an appeal from a sentencing decision, we must first determine whether the district court properly considered the applicable Sentencing Guidelines. Cantrell, 433 F.3d at 1279-81. If the district court incorrectly construed the Sentencing Guidelines, we must vacate the sentence and remand for resentencing. Id. at 1280.2 We review a district court‘s interpretation of the Sentencing Guidelines de novo. We review the application of the Sentencing Guidelines to the facts of the case for abuse of discretion and factual findings for clear error. United States v. Smith, 424 F.3d 992, 1015 (9th Cir.2005). If we conclude that the district court did not err in applying the Sentencing Guidelines, we review the sentence for reasonableness in
The first issue Mr. Mix has raised in this appeal is whether the sentence was reasonable. We conclude that it was.
B
On resentencing Mr. Mix, the district court adopted the guideline analysis of the presentence report and made it clear that, while it believed that it might consider U.S.S.G. § 5K2.21, it did not do so. As reflected by the court‘s long exposition of what took place in sentencing Mr. Mix, it is abundantly clear that the district court imposed a sentence outside of the Guidelines based upon consideration of
We conclude that the district court properly considered the applicable Guidelines because it determined not to effect an upward departure based on U.S.S.G. § 5K2.21. Mr. Mix argues that the life sentence imposed by the district court is unreasonable because it erroneously applied § 5K2.21 as the basis for an upward departure. This argument conflates guideline sentencing review with post-Booker sentencing review. As set out above, the district court was obligated to undertake a correct Guidelines range calculation, and under Booker, the district court was required to take account of
C
As regards post-Booker sentencing, Mr. Mix contends that the district court failed to consider the mitigating sentencing factors set forth in
Mr. Mix contends that in imposing a life sentence, the district court “ignored all the evident
[w]hile the sentencing court here dwelled at length on “the nature and circumstances of the offense” and Mix‘s “history” as it relates to other uncharged conduct ..., the Court failed to so much as pay lip service to the wealth of information available to it regarding Mix‘s “history and characteristics” relating to his mental health.
Mr. Mix also maintains that the district court failed to consider his “record of employment, his military contributions, and his lack of guidance as a youth.”
“Judges need not rehearse on the record all of the considerations that
Two evaluations completed on the defendant indicate that the defendant was not completely truthful in answering questions, and both evaluations concluded his psychopathology was probably overrepresented. And he confirms that today by his rather articulate and extended statement to this Court wherein he refuses to accept responsibility for his conduct and his acts.
He is trying to portray himself as mentally ill. The Interpretative report of the MMPI-2 stated the defendant believed others have harmed him and are working against him, even though almost one year after his attack against Tohannie—or strike that, more like two-and-a-half years now—he is still blaming her and probably Linda Yellowhorse and Florence Russell for his current situation.
He acknowledged losing control, but he has no concept of the harm he caused to these women and their children. His victims live in fear. They fear the defendant will be released and come back to do further harm or kill them.
The facts as regards Mr. Mix‘s history, characteristics, and other
D
In summary, it is both important and legally necessary under
III
Finally, Mr. Mix contends that the district court‘s application of Booker in this matter violated his Fifth Amendment right to due process and his Sixth Amendment right to have a jury determine facts that increased his punishment. We rejected similar arguments in United States v. Dupas, 419 F.3d 916, 920-21 (9th Cir.2005). Mr. Mix argues that application of Justice Breyer‘s remedial holding in Booker, which made the Sentencing Guidelines advisory, should not be applied retroactively because that would violate the ex post facto principles described in Bouie v. City of Columbia, 378 U.S. 347, 353-55, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).
Mr. Mix‘s due process argument is flawed for several reasons. First, the Supreme Court expressly stated that both of its holdings in Booker should be applied to cases on direct review. 543 U.S. at 267, 125 S.Ct. 738; see also United States v. Rines, 419 F.3d 1104, 1106-07 (10th Cir.2005) (commenting “[w]e decline Defendant‘s invitation to hold that the Supreme Court ordered us to violate the Constitution“). Moreover, “our decision in Ameline, under which Sixth Amendment violations can be cured by giving district courts the opportunity to resentence defendants under the now-advisory Guidelines, necessarily implies that appellate courts should apply both Booker holdings retroactively.” Dupas, 419 F.3d at 920. “Fair warning ... is the touchstone of the retroactivity analysis under the Due Process Clause.” Id. at 921 (citing Rogers v. Tennessee, 532 U.S. 451, 462, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001)); see also United States v. Lata, 415 F.3d 107, 110-11 (1st Cir.2005) (commenting that “after-the-offense enlargement of the ... maximum sentence by judicial construction can raise due process objections based on lack of fair warning but only where the alteration is ‘unexpected and indefensible’ by reference to the case law“).
When Mr. Mix committed his crimes, the United States Code informed him that the maximum sentence was life in prison for Aggravated Sexual Abuse pursuant to
AFFIRMED.
ALARCÓN
UNITED STATES CIRCUIT JUDGE