UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TOMMY PEÑA, Defendant - Appellant.
No. 19-2050
United States Court of Appeals for the Tenth Circuit
June 24, 2020
PUBLISH. Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:10-CR-2138-WJ-2). FILED June 24, 2020. Christopher M. Wolpert, Clerk of Court.
Marisa A. Ong, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.
Before TYMKOVICH, Chief Judge, SEYMOUR and MORITZ, Circuit Judges.
SEYMOUR, Circuit Judge.
Tommy Peña was convicted in the United States District Court for the District of New Mexico of conspiracy to commit a carjacking in violation of
I. BACKGROUND
Following a bench trial in December 2010, Tommy Peña was convicted in federal court. His conviction was based upon his conduct in four incidents that occurred in April 2010: the Lacey carjacking incident on April 6, 2010; the drive-by shooting on April 10, 2010; the Luna vehicle theft on April 18, 2010; and the car chase and defendant‘s subsequent arrest on April 19, 2010.
1. Lacey Carjacking Incident
Mr. Peña and his co-defendant, Jeremy Conde, were hired by Isabel Saucedo to retrieve cash from the household of Arthur Lacey because Ms. Saucedo believed Mr. Lacey had stolen the cash from her. If they could not retrieve the cash, Ms. Saucedo agreed that they could take Mr. Lacey‘s car that he allegedly purchased with the cash. Ms. Saucedo offered to pay Mr. Peña and Mr. Conde with an ounce of methamphetamine for assisting her.
When the three of them went to the Lacey household, Mr. Peña carried a loaded handgun while Mr. Conde carried a firearm with bullets in the clip but not the chamber. When Mr. Lacey opened the door, Mr. Peña pointed his gun at him and Mr. Conde pointed his gun at both Ms. Lacey, who was nine months pregnant, and one of the Laceys’ children. After Mr. Lacey fled, Mr. Peña and Mr. Conde ransacked the house. Mr. Peña then took the keys to Mr. Lacey‘s car and drove away. The district court found Mr. Peña guilty of four counts related to the Lacey incident, conspiracy to commit carjacking in violation of
On April 10, 2010, Mr. Peña and Mr. Conde were driving when a group of people standing in front of an apartment building shot at them and hit Mr. Conde. Both Mr. Peña and Mr. Conde returned shots, with Mr. Peña reaching out of the passenger window and shooting over the roof of the car. For Mr. Peña‘s involvement in the drive-by shooting, the district court found him guilty of being a felon in possession of a firearm in violation of
3. Luna Vehicle Theft
On April 18, 2010, when Fred Luna drove past the home where Mr. Peña was staying, Mr. Peña and Mr. Conde perceived him to be “mad dogging” them by giving them a “hard look.” Rec, vol. I at 312-13. Armed with handguns, they followed Mr. Luna. He pulled into a church parking lot and got out of his truck, leaving the door open and ignition running. When Mr. Peña and Mr. Conde pulled into the church parking lot and pointed their guns at Mr. Luna, he ran from his vehicle and attempted to enter the church, but it was locked. Mr. Conde got into Mr. Luna‘s truck and began to drive it. Planning to stop Mr. Conde and Mr. Peña from taking his truck, Mr. Luna started to run toward the truck but decided that it was not worth the risk. Mr. Conde and Mr. Peña drove Mr. Luna‘s truck to an abandoned house, removed the stereo and speakers, wiped the truck down, and then left it.
4. Car chase and Mr. Peña‘s arrest
On April 19, 2010, Mr. Peña was the passenger in a car that failed to pull over when a Roswell police officer activated his emergency lights. A chase ensued, the car was wrecked, and Mr. Peña fled on foot. He was subsequently stopped and arrested. He was found in possession of two firearms, almost one hundred rounds of ammunition, and 6.4 grams of methamphetamine. Accordingly, Mr. Peña was convicted of one count of being a felon in possession of a firearm in violation of
In 2011, the district court sentenced Mr. Peña to 480 months’ imprisonment for his convictions arising out of the four incidents. At the time, Mr. Peña was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA),
After the Supreme Court‘s decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Mr. Peña no longer qualified for an enhanced sentence under the ACCA. In Johnson, the Supreme Court held that the residual clause of the ACCA was unconstitutionally vague and therefore could not be a basis for imposing harsher penalties. Id. at 2557. The district court determined that because Mr. Peña‘s prior conviction for shooting at a dwelling or occupied building was based upon the residual clause, he was entitled to resentencing.
In 2018, after extensive briefing by the parties, testimony at the resentencing hearing, and oral argument, the district court assessed a new sentencing range of 63-78 months under the 2016 guidelines, based on an offense level of 22 and a criminal history category IV. With the
II. PROCEDURAL REASONABLENESS
Mr. Peña contends the court failed to consider all the
Mr. Peña first asserts that during his resentencing the district court erred by not considering all of the information required by
Here, the district court thoroughly discussed Mr. Peña‘s history and characteristics but did “not find Pena‘s arguments or his evidence persuasive enough to outweigh the
Mr. Peña next contends the district court erroneously compared him with offenders subject to mandatory minimum sentences under
III. SUBSTANTIVE REASONABLENESS
Mr. Peña also challenges his sentence as substantively unreasonable. We review this issue for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007) (“Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.“). Applying this standard, we give “substantial deference” to the district court and will only overturn a sentence that is “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (citation omitted). As Mr. Peña notes, we should not just provide a rubber stamp of approval to the lower court‘s sentence. United States v. Pinson, 542 F.3d 822, 836 (10th Cir. 2008). We “therefore must determine if the district court‘s proffered rationale, on aggregate, justifies the magnitude of the sentence.” Id. at 837.
“Substantive reasonableness involves whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in
A. Mischaracterization of the Offense Conduct
Mr. Peña maintains that the district court overemphasized the seriousness of his conduct in the Lacey incident, the drive-by shooting, and the Luna incident. First, Mr. Peña contends his conduct during the Lacey incident was not as egregious as his co-defendant‘s conduct because Mr. Peña pointed his gun only at Mr. Lacey while his co-defendant, Mr. Conde, pointed his gun at the pregnant Ms. Lacey and one of the Laceys’ children. Next, Mr. Peña asserts that the district court mischaracterized his conduct during the drive-by shooting as shooting at people, contending instead that he responded to incoming fire by shooting over the roof of the car. Mr. Peña insists he intended only to scare them, not to hurt anyone. Finally, Mr. Peña argues the public danger during the Luna vehicle theft was not extreme because he only pointed his gun at Mr. Luna in an empty church parking lot and did not actually shoot the gun.
Here, the district court carefully considered the facts surrounding Mr. Peña‘s conduct. While the court found that Mr. Peña did not point his gun at Ms. Lacey or her children, Mr. Peña “initiated the entry into the home by pointing his handgun at Arthur Lacey in a threatening manner.” Peña, 2018 WL 6003538, at *6. The court concluded that Mr. Peña‘s brandishing of firearms “in the presence of the children and the pregnant wife makes [his] conduct highly dangerous and reckless” and “implicates completely innocent victims.” Id.
The court also acknowledged that during the drive-by shooting incident Mr. Conde was shot before Mr. Peña and Mr. Conde returned fire. However, the court concluded that “no one can dispute the serious and potentially dangerous threat to innocent life [posed] by Pena‘s conduct of putting his arm out the window of the passenger side and shooting
B. Mr. Peña‘s Post-Conviction Conduct in Prison
Mr. Peña asserts that the district court failed to adequately consider all relevant information regarding his post-conviction conduct. He claims the court overemphasized his weapons violations and failed to consider the impact on recidivism of the programs and classes Mr. Peña completed. We are not persuaded.
Agent Reshay Childress, a senior intelligence analyst for the Bureau of Prisons who worked at the United States Prison at Beaumont (“USP Beaumont“), testified at Mr. Peña‘s resentencing. He explained the four classifications for inmate offenses, 100 series offenses being the most dangerous and 400 series offenses being the least. At the time of the resentencing hearing, Mr. Peña had been subject to eight disciplinary actions while incarcerated at USP Beaumont, including five Number 104 violations for possessing a dangerous weapon. His other three violations were for fighting with another person (Number 201), refusing to obey an order (Number 307), and possessing an unauthorized
Mr. Peña completed the SMU program in sixteen months and returned to the general population at USP Beaumont. After completing the SMU program, Mr. Peña received two of his five Number 104 weapons violations. Both incidents involved possession of knives. After the second incident another inmate requested protective custody, expressing fear for his life based upon his belief that Mr. Peña intended to stab him. Prison officials found the inmate‘s fear to be credible and recommended his transfer to another facility.
Although the district court did give significant weight to Mr. Peña‘s post-conviction conduct, the court also considered the danger at USP Beaumont as a reason why Mr. Peña might have a weapon and acknowledged Mr. Peña‘s participation in vocational and academic classes. After weighing the evidence in the record, the district court concluded that Mr. Peña “is determined to possess dangerous weapons and he will continue to defy the law to do so.” Peña, 2018 WL 6003538, at *12. Moreover, the court was not persuaded by the fact that Mr. Peña has not yet hurt anyone because his “history and characteristics reveal that he is completely capable of causing harm to innocent members of society.” Id.. The court emphasized the need to protect the public from Mr.
C. Sentencing Disparity with Mr. Peña‘s Co-Defendant
Mr. Peña points to the sentencing disparity with his co-defendant, Mr. Conde, as evidence of the substantive unreasonableness of his sentence. In assessing a sentence, “[a] district court may consider sentencing disparities between co-defendants, but the purpose of the Guidelines is not to eliminate disparities among co-defendants, but rather to eliminate disparities among sentences nationwide.” United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir. 2008) (internal citation omitted). Moreover, ”
Here, the district court correctly considered any sentencing disparity between “similarly situated defendants,” as required by
D. Exercising the Right to Trial
Mr. Peña also contends the district court punished him for going to trial, asserting that he “implicitly accepted responsibility” for his conduct. Aplt. Br. at 17. Mr. Peña claims he acknowledged his conduct in the Luna incident and exercised his right to trial only to challenge the government‘s position that his conduct violated the statute. Mr. Peña believes he should have received a reduction in his sentence based on acceptance of responsibility.
We have only approved of acceptance of responsibility adjustments after a trial where the defendant “admitted to all the conduct with which he was charged” but went to trial to preserve issues unrelated to factual guilt. See, e.g., United States v. Gauvin, 173 F.3d 798, 806 (10th Cir. 1999) (affirming the application of the acceptance of responsibility guideline where the defendant only contested the legal element of intent); see also U.S.S.G. §3E1.1 application notes cmt.2 (“This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt . . . .“). Mr. Peña is correct that his decision to go to trial was not frivolous because the district court found that one of the carjacking charges did not meet the elements under federal law and
E. “Windfall” for the Dismissal of a Carjacking Charge
Mr. Peña next takes issue with the district court‘s reasoning that he received a benefit from the Johnson decision and a “windfall” from the dismissal of one count of carjacking for his conduct in the Luna incident. Mr. Peña argues that a defendant does not receive a windfall when the law is correctly applied. This argument disregards the context in which the district court discussed a “windfall.”
While considering the need to avoid unwarranted sentencing disparities as required by
The “similar conduct” the district court referred to included Mr. Peña‘s actions in the drive-by shooting and the Luna incident. The court noted that Mr. Peña was not prosecuted in state court for his conduct in those incidents pursuant to
Significantly, the district court clarified that it did not consider the additional offenses for the drive-by and the Luna incidents when it imposed Mr. Peña‘s sentence. It only mentioned Mr. Peña‘s acquitted conduct for the purpose of comparing him to other similarly situated defendants. See United States v. Todd, 515 F.3d 1128, 1137 (10th Cir. 2008) (“The Supreme Court and this circuit have both expressly held that acquitted conduct can be considered for purposes of sentencing.“) (citing United States v. Watts,
F. Mr. Peña‘s Age and Risk of Recidivism
At resentencing, Mr. Peña cited a 2004 study by the Sentencing Commission observing that “[r]ecidivism rates decline relatively consistently as age increases.” U.S.S.C., Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 12, 28 (May 2004). He argues on appeal that his sentence is substantively unreasonable because the district court discounted his age (33 at the time of resentencing) as well as the fact that even under a within-guidelines sentence he would be less likely to recidivate by the time he was released. He also cites a 2017 study concluding that “[o]lder offenders were substantially less likely than younger offenders to recidivate following release.” U.S.S.C., The Effects of Aging on Recidivism Among Federal Offenders 3 (Dec. 2017).
The district court addressed the 2004 study cited by Mr. Peña by discussing the same 2017 study, which the government cited below. Significantly, the study found that the recidivism rate increases among older federal offenders where the offender committed crimes involving firearms.
G. Extent of the Upward Variance from the Applicable Guidelines Range
Finally, Mr. Peña argues that the sentence‘s upward variance from the applicable guidelines range is substantively unreasonable. “If [the district court] decides that an outside-Guidelines sentence is warranted, [the court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at 50. On review, we must “give due deference to the district court‘s decision that the
Mr. Peña attempts to distinguish the three cases the district court relied on in supporting the upward variance, cases where this court upheld large upward variances as substantively reasonable. Pinson, 542 F.3d at 836 (affirming a 135-month upward variance); United States v. Gantt, 679 F.3d 1240, 1250-51 (10th Cir. 2012) (concluding that a 156-month upward variance was reasonable); and United States v. Worku, 800 F.3d 1195, 1208 (10th Cir. 2015) (determining an upward variance of 31 offense levels was substantively reasonable). Mr. Peña argues that he has no prior convictions for injuring someone and therefore he should not receive a harsher sentence than defendants with “much more egregious histories.” Aplt. Br. at 23.
Mr. Peña also cites a Fourth Circuit case to support his argument that the variance from the guidelines range is so extreme as to be substantively unreasonable. See United States v. Tucker, 473 F.3d 556 (4th Cir. 2007). In Tucker, the Fourth Circuit determined that a 144-month sentence for one count of bank fraud was substantively unreasonable because “the district court did not provide compelling reasons to justify the extent of the variance” and the circumstances of the case did not warrant the extreme variance. Id. at 557. The Fourth Circuit explained the need to “maintain[ ] a strong connection between the sentence imposed and the offender‘s real conduct-a connection important to the increased uniformity of sentencing.” Id. at 564 (quoting United States v. Booker, 543 U.S. 220, 246 (2005)). Mr. Peña argues the district court broke the connection between his conduct and his sentence.
We are not persuaded. We agree with the district court that the cases are useful in providing “guidance in how to satisfy the Tenth Circuit review of procedural and substantive reasonableness,” but the cases do not restrict a district court‘s ability to impose an upward sentence only where specific facts are present. Peña, 2018 WL 6003538, at *18. The reasoning of Pinson, Gantt, and Worku support the court‘s decision to impose an upward variance. In all three cases, the district courts pointed to the defendant‘s history of violent or criminal conduct when reasoning that an above-guidelines sentence was required. Pinson, 542 F.3d at 837; Gantt, 679 F.3d at 1250-51; Worku, 800 F.3d at 1207-08. In two of the cases, the danger the defendant posed to the public was also emphasized as part of the court‘s justification for imposing an upward variance. Pinson, 542 F.3d at 837; Gantt, 679 F.3d at 1250-51. The district court here similarly explained that it “placed great weight on the determination that Pena‘s offense
The decision here stands in contrast to the Fourth Circuit‘s decision in Tucker, where “the district court offered no compelling justification for why a 144 month sentence was necessary to protect society.” 473 F.3d at 564. Here the district court offered significant explanation for the sentence imposed and determined that a within-guidelines sentence would be “woefully inadequate to accomplish the goals of sentencing.” Peña, 2018 WL 6003538, at *5.
Although the variance from the guidelines here is large, the district court addressed each of the
For the foregoing reasons, we AFFIRM.