UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RUFINO VALDEZ-LOPEZ, Defendant-Appellant.
No. 20-10004
United States Court of Appeals for the Ninth Circuit
July 16, 2021
D.C. No. 2:07-cr-00428-SPL-1
Opinion by Judge Miller; Concurrence by Judge W. Fletcher
Steven Paul Logan, District Judge, Presiding
Argued and Submitted February 5, 2021
Phoenix, Arizona
Filed July 16, 2021
Before: William A. Fletcher, Eric D. Miller, and Danielle J. Forrest,* Circuit Judges.
Criminal Law
The panel affirmed a new, longer sentence imposed following a defendant‘s successful motion under
The defendant was convicted for multiple counts of conspiracy, harboring illegal aliens, and hostagе taking, as well as one count of possession of a firearm during and in relation to a crime of violence, in violation of
The panel concluded that no presumption of judicial vindictiveness applied because there was not a reasonable likelihood that the increase in sentence was the product of actual vindictiveness where the district court itself granted the
Because the defendant did not otherwise demonstrate vindictiveness, and because the second sentence wаs both
Concurring, Judge W. Fletcher wrote that he concurred in the opinion and agreed that the presumption of vindictiveness did not apply in the circumstances of this case. Judge W. Fletcher wrote separately to suggest that the Court of Appeals’ resentencing law has gone astray in allowing for a resentencing judge to impose a longer sentence when the only change in the record is the fact that the defendant successfully challenged part of the original sentence as unconstitutional.
COUNSEL
David J. Teel (argued), Law Office of David J. Teel PLLC, Phoenix, Arizona, for Defendant-Appellant.
Raymond K. Woo (argued), Assistant United States Attorney; Krissa M. Lanham, Appellate Division Chief; Michael Bailey, United States Attorney; United States Attorney‘s Office, Phoenix, Arizona; for Plaintiff-Appellee.
MILLER, Circuit Judge:
After successfully moving to set aside one of several counts on whiсh he had been convicted, Rufino Valdez-Lopez was resentenced by a different district judge but received a longer sentence than he had before. He now challenges that sentence as the product of judicial vindictiveness. We conclude that no presumption of vindictiveness applies. Because Valdez-Lopez has not otherwise demonstrated vindictiveness, and because the second sentence was both procedurally аnd substantively reasonable, we affirm.
On April 5, 2007, Immigration and Customs Enforcement agents in Grand Rapids, Michigan, received a call reporting that someone the caller knew was being held hostage at gunpoint by alien smugglers in Arizona. The smugglers had said that they would not release the hostage unless his family wired $3,000 to a bank in Mexico. Agents arranged for a phone call between the hostage and his uncle, and they traced the smugglers’ phone to a house in Peoria, Arizona. Agеnts then raided the house, where they found 75 hostages, six smugglers, and an AK-47 rifle.
A grand jury returned an indictment charging Valdez-Lopez, one of the smugglers, with multiple counts of conspiracy, harboring illegal aliens, and hostage taking, as well as one count of possessing a firearm during and in relation to a crime of violence, in violation of
At the hearing, the district court stated that Valdez-Lopez had harmed “a staggering amount of individuals . . . mentally and emotionally and basically scarred [them] for life” by causing them “[t]o be held in a small location, basically treated like . . . animal[s] with the threat that [they] could be shot down by an AK-47.” The court acknowledged the previous sentence, explaining that the court was “pretty confident that Judge Carroll had access to the same information” that it did. But it went on to observe that it “need[ed] to give some . . . consideratiоn to all of the victims in the case,” one of whom had testified that Valdez-Lopez “personally beat him, stole his money, and locked him in a closet.” It concluded that Valdez-Lopez‘s conduct was “so incredibly outrageous” as to “warrant a significant sentence.” The court sentenced Valdez-Lopez to 300 months of imprisonment.
Valdez-Lopez argues that his new, higher sentence reflects judicial vindictiveness and constitutes an effort to punish him for his successful collateral attack on his section 924(c) conviction. He relies on North Carolina v. Pearce, 395 U.S. 711 (1969), in which the Supreme Court held that the Due Process Clause “requires that vindictiveness against
But the Supreme Court has since made clear that “the evil the Court sought to prevent” in Pearce was not the imposition of “enlarged sentences” as such but rather the “vindictiveness of a sentencing judge.” Texas v. McCullough, 475 U.S. 134, 138 (1986). For that reason, the “presumption of vindictiveness” recognized in Pearce “do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.” Alabama v. Smith, 490 U.S. 794, 799 (1989) (alteration in original) (quoting McCullough, 475 U.S. at 138). Instead, the presumption applies only in circumstances where there is a “‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Id. (citation omitted) (quoting United States v. Goodwin, 457 U.S. 368, 373 (1982)). Two features of Valdez-Lopez‘s resentencing independently make the presumption of vindictiveness inapplicable here.
First, the only reason a new sentencing occurred is that the district court itself granted Valdez-Lopez‘s motion under
Second, Valdez-Lopez‘s new sentence was imposed by a different judge than the judge who imposed his first sentence. The presumption of vindictiveness is “inapplicable [when] different sentencers assessed the varying sentences.” McCullough, 475 U.S. at 140; accord Chaffin, 412 U.S. at 26–28; Colten v. Kentucky, 407 U.S. 104, 116–18 (1972). That is because “the presumption derives from the judge‘s ‘personal stake in the prior conviction,‘” which does not exist when the prior proceedings were conducted by a different judge. McCullough, 475 U.S. at 140 n.3 (quoting Chaffin, 412 U.S. at 27). And when a secоnd sentencer imposes a greater penalty, “it no more follows that such a sentence is a vindictive penalty . . . than that the [first sentencer] imposed a lenient penalty.” Colten, 407 U.S. at 117. Applying McCullough, we have recognized that “[w]hen different courts impose different sentences, . . . there is no presumption of vindictiveness.” United States v. Newman, 6 F.3d 623, 630 (9th Cir. 1993); accord United States v. Curtin, 588 F.3d 993, 999 (9th Cir. 2009).
Valdez-Lopez next argues that a presumption of vindictiveness applies unless the second sentencer provides non-vindictive reasons for the sentence. We recognize that our decision in Newman could be read to suggest that a presumption of vindictiveness applies if the second sentencer does not provide an “on-the-record, wholly logical, nonvindictive reason for the sentence.” 6 F.3d at 630 (quoting McCullough, 475 U.S. at 140); see also United States v. Rodriguez, 602 F.3d 346, 358 (5th Cir. 2010). But we reject that interpretation because it would introduce pointless complexity to sentencing law. Under
We also disagree with Valdez-Lopez‘s suggestion that a presumption of vindictiveness applies unless a district court imposing a higher sentence at resentencing articulates “reasons for increasing the sentence.” Although a court must give reasons for whatever sentence it selects, it need not specifically justify a deviation—whether upward or downward—from any sentence that might have been imposed before. By way of analogy, an administrative agency adopting a new policy must “show that there are good reasons for the new policy,” but that does not mean that it must “demonstrate to a court‘s satisfaction that the reasons for the new policy are better than the reasons for the old one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). The same principle applies here.
Valdez-Lopez emphasizes that in his case “there were no intervening events subsequent to the imposition of the initial sentence to warrant an increase in the sentence.” As the district court observed, “Judge Carroll had access to the same information that I do.” But the law does not require the second sentencer to offer reasons that were unavailable to the first sentencer. See Macomber v. Hannigan, 15 F.3d 155, 157 (10th Cir. 1994) (“[I]t is not necessary that the second
In the absence of a presumption of vindictiveness, “the burden remains upon [Valdez-Lopez] to prove actual vindictiveness,” and he cannot do so. Smith, 490 U.S. at 799. The district court permissibly exercised its discretion and committed neither procedural nor substantive error in
Instead, Valdez-Lopez argues that the district court erred because it impermissibly relied on Valdez-Lopez‘s decision to go to trial. In support of that argument, he points out that, at several times during the hearing, the district court noted that Valdez-Lopez had chosen to go to trial. We have held that a district court may not penalize a defendant “for his assertion of protected Sixth Amendment rights,” including the right to go to trial. United States v. Hernandez, 894 F.3d 1104, 1110 (9th Cir. 2018). But we also hаve recognized that it is not reversible error for a court to “note[] the fact that the defendant went to trial, so long as the court bases its final decision on the facts of the case and record as a whole.” United States v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th Cir. 2013).
That is what the district court did here. In one of the statements to which Valdez-Lopez objects, the district court noted, “there is no acceptance of responsibility. You went to trial.” A defendant‘s decision to go to trial cannot be the sоle
Valdez-Lopez also objects that in response to defense counsel‘s argument about sentencing disparities with his codefendants, the district court asked the rhetorical question, “Which codefendants went to trial?” There was nothing improper about that observation either. Valdez-Lopez‘s codefendants had received shorter sentences after pleading guilty, and a codefendant‘s acceptance of a guilty plea is a permissible explanation for a sentencing disparity. See United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009).
The district court‘s other passing comments do not indicate that the court was punishing Valdez-Lopez for going to trial. In Hernandez, “the district court‘s comments regarding [the defendant‘s] decision to go to trial comprised virtually the entirety of the explanation for the sentence,” such that it was “impossible to avoid the centrality of the comments about [the defendant‘s] decision to go to trial.” 894 F.3d at 1111. Here, by contrast, the district court extensively discussed the sentencing factors and explained
AFFIRMED.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RUFINO VALDEZ-LOPEZ, Defendant-Appellant.
No. 20-10004
United States Court of Appeals for the Ninth Circuit
July 16, 2021
Rufino Valdez-Lopez was convicted of five counts related to hostage smuggling and was sentenced to twenty years in federal prison. He successfully moved to vacate the conviction on one of the counts based on the unconstitutionality of the statute. That count had been responsible for seven years of his original sentence. A different district judge then resentenced Valdez-Lopez to twenty-five years on the four remaining counts, five years more than the original sentence. We affirm the sentence.
I concur in Judge Miller‘s careful opinion. I agree that the presumрtion of vindictiveness does not apply in the circumstances of this case. I write separately to suggest that our resentencing law has gone astray.
I
In 2007, following a six-day jury trial, Valdez-Lopez was convicted on five counts arising out of his participation in a conspiracy to hold hostage aliens who had been smuggled into the United States. Count 5 was brandishing a firearm “during and in relation to [a] crime of violence” under
In 2016, Valdez-Lopez filed a habeas petition challenging his conviction on Count 5 in the wake of the Supreme Court‘s decision in United States v. Johnson, 576 U.S. 591 (2015). The Court in Johnson had struck down as unconstitutionally vague a residual clause providing a sentence enhancement under the Armed Career Criminal Act (“ACCA“) for a crime of violence, defined as a crime that “involves conduct that presents a serious potential risk of physical injury to another.”
Valdez-Lopez had been well behaved in prison, and the information in the record about his crime and background was unchanged. The new pre-sentence report recommended a sentence of 180 months (fifteen years) on the remaining four counts. The Government recommended 240 months (twenty years), the same length as the original sentence.
Judge Logan stated that he was “pretty confident that Judge Carroll had access to the same information” аs he did and “that Judge Carroll sentenced [the defendant] based on what he saw and what he heard.” “But,” he continued, “I also think that I need to give some . . . consideration to all of the victims in the case.” Judge Logan sentenced Valdez-Lopez to 120 months (ten years) concurrent on Counts 1 and 2, and to 180 months (fifteen years) concurrent on Counts 3 and 4, to be served consecutively to the sentence imposed under Counts 1 and 2. The total sentence was 300 months (twenty-five years), 60 mоnths (five years) longer than Valdez-Lopez‘s original sentence.
II
If Valdez-Lopez had been convicted on Counts 1 through 4, if he had the same criminal history and personal background, and if he had come before Judge Logan for sentencing as an original matter rather than for resentencing, Judge Logan‘s twenty-five year sentence would be unobjectionable. However, that is not what happened, and that is not the question before us. The question is whether on resentencing a judge (whether the original judge or a replacement judge) may impose a longer sentence when one count of conviction, responsible for a substantial portion of
A resentencing judge may not increase the sentence vindictively, as a punishment for a prisoner who has the effrontery to chаllenge a conviction and/or a sentence. This is current law. See North Carolina v. Pearce, 395 U.S. 711 (1969); Nulph v. Cook, 333 F.3d 1052 (9th Cir. 2003). This makes sense, for a “vindictive” judge is the antithesis of a neutral magistrate. Further, a resentencing judge may impose the same sentence as before, even when one or more counts have been set aside. This is also current law. See United States v. Handa, 122 F.3d 690 (9th Cir. 1997). This also makes sense, for the original sentence may have been a “package” in which the judge had decided on an appropriate total length of time based on the nature of the crime and the character and history of the defendant, and had then imposed sentences for the specific counts calculated to reach that total.
What does not make sense, and should not be the law, is for a resentencing judge to impose a longer sentence when the only change in the record is the fact that petitioner successfully challenged part of the original sentence as unconstitutional.