United States 10th Circuit Court of Appeals Reports
CALLAHAN v. POPPELL, 06-6090 (10th Cir. 12-26-2006) DAVID E. CALLAHAN PLAINTIFF-APPELLANT v. DAYTON J. POPPELL, WARDEN; RON CHAMPTION; SANDRA ATWOOD; DR. MARK FOGLE; DR JACK GREGSTON; NURSE GLENN; DENNIS COTNER, MAJOR; MAJOR POSVIC; SGT. JOHNSON, MR. CUNNINGHAM; MR. CROW; NURSE WILKERSON; NURSE ARMSTRONG; NURSE SIMON; OFFICER WILLIS; RON WARD; LAWTON CORRECTIONAL FACILITY; WACKENHUT CORRECTIONS CORPORATION; OKLAHOMA DEPARTMENT OF CORRECTIONS; NURSE STORE; DR. GUMERLOCK; NURSE HEATH; MR. MILLER; OU MEDICAL CENTER, DEFENDANTS-APPELLEES. No. 06-6090. United States Court of Appeals, Tenth Circuit.
December 26, 2006.
Appeal from the United States district court for the district of new Mexico (D. Ct. No. CR-04-1219)
Edward O. Bustamante, Albuquerque, New Mexico, appearing for Appellant.
Gregory James Fouratt, Assistant United States Attorney
(David C. Iglesias, United States Attorney, and Laura
Fashing, Assistant United States Attorney, on the brief),
Office of the United States Attorney for the District of
New Mexico, Albuquerque, New Mexico, appearing for
Appellee.
Before TACHA, Chief Circuit Judge, KELLY, and MURPHY,
Circuit Judges.
TACHA, Chief Circuit Judge.
Dennys Mateo pleaded guilty to one count of being a felon
in possession of
a firearm and ammunition in violation of 18 U.S.C. §
922(g)(1) and 924(a)(2). After correctly calculating the
advisory Sentencing Guidelines range of 15 to 21 months’
imprisonment, the District Court considered the sentencing
factors under 18 U.S.C. § 3553(a), determined that
this range was insufficient, and imposed a sentence of 120
months’ imprisonment — the statutory maximum. On
appeal, Mr. Mateo argues that the District Court erred by
considering facts concerning prior arrests that did not
result in convictions and maintains that the sentence
imposed is unreasonable. We take jurisdiction under 28
U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
On May 20, 2004, a confidential informant told a Drug
Enforcement Administration (“DEA”) agent that Mr. Mateo
would be involved in a cocaine transaction at 8:00 p.m. at
a video store parking lot in Albuquerque, New Mexico. Upon
investigation, the DEA agent discovered that Mr. Mateo had
been previously convicted of grand theft, a third degree
felony, on April 13, 1998, in Miami, Florida. The night of
May 20, 2004, the Albuquerque police set up surveillance at
the parking lot. When a white BMW matching the description
given by the informant arrived, the police approached the
car and asked Mr. Mateo, the driver, to step out of the
car. As Mr. Mateo complied, the officer observed a revolver
in plain view in the side pocket of the driver’s side door.
The gun was a Smith & Wesson, Lady Smith, .38 caliber
five-shot revolver, loaded with five rounds of ammunition.
Aware that Mr. Mateo was a felon, officers immediately
arrested Mr. Mateo. A search of the vehicle found suspected
counterfeit currency but no narcotics.
On June 23, 2004, a grand jury indicted Mr. Mateo on a
single count charging him with being a felon in possession
of a firearm and ammunition. Mr. Mateo pleaded guilty to
the indictment. Subsequently, the probation office prepared
a presentence report (“PSR”). The PSR determined Mr.
Mateo’s base offense level to be 14. See United States
Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”)
§ 2K2.1(a)(6)(A). He received a two-level reduction
in his offense level for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1, for a total offense
level of 12. The PSR placed Mr. Mateo at a criminal history
category of III because he had six criminal history points
for five prior convictions. Based on the total offense
level of 12 and a criminal history category of III, the PSR
calculated the advisory Guidelines imprisonment range to be
15 to 21 months. Mr. Mateo filed three objections to the
PSR contesting the application of the Guidelines in
determining his criminal history category, but he did not
object to any of the factual statements included in the
PSR, including those detailing the factual circumstances of
multiple prior arrests. At a hearing on June 13, 2005, the
District Court ruled against Mr. Mateo’s objections to the
PSR and gave notice to the Government and to Mr. Mateo that
it was considering a sentence above the advisory Guidelines
range[fn1].
The PSR discloses the following information. Mr. Mateo was
born in Cuba
in 1972 and lived there until he was granted political
asylum in the United States in 1995. The report assessed
six criminal history points for five convictions including
(1) a 1996 conviction for grand theft of a jewelry store in
Oakland Park, Florida; (2) a 1996 conviction for possession
of marijuana in Miami, Florida; (3) a 1997 conviction for
possession of marijuana in Miami, Florida; (4) a 1997
conviction for grand theft of a home in Miami, Florida; and
(5) a 2003 conviction for shoplifting in Albuquerque, New
Mexico.
Of particular importance in this case, the PSR discloses
the following facts about the 1997 grand theft conviction.
In early May 1997, Mr. Mateo and another individual
approached an apartment where a man was standing at the
front door. Mr. Mateo and his accomplice each aimed a .38
caliber revolver at the victim’s head and forced him into
the apartment. There, they tied him up with a phone cord
and covered his head with a pillow case. Several electronic
items were taken from the apartment. Mr. Mateo was arrested
on May 14, 1997, a few days after the incident, and was
initially charged with robbery and kidnapping with a deadly
weapon. Ultimately, the robbery charge was reduced to a
lesser charge of grand theft and the kidnapping charge was
dismissed. On April 13, 1998, after pleading nolo
contendere to the felony grand theft charge, Mr. Mateo was
sentenced to 364 days in the county jail.
In addition to these five convictions, the PSR includes
records of seven additional prior arrests that did not lead
to convictions, and one additional pending charge.[fn2]
Among the prior arrests was one for attempted murder. The
PSR indicates that police arrested Mr. Mateo on May 14,
1997, in Miami, Florida after receiving a report that Mr.
Mateo and two other individuals fired a gun four to five
times at the victim as he was stopped in his car at a
traffic light. Three rounds struck the victim’s vehicle.
The victim explained that the shooting may have been
related to the home invasion that had occurred a few days
prior (and for which Mr. Mateo was arrested and convicted
in Miami). The subjects were positively identified, but the
victim could not indicate which suspect fired the shots.
The prosecutor filed a nolle prosequi on April 13, 1998.
On October 31, 1999, the Texas Department of Public Safety
arrested Mr. Mateo for conspiracy to deliver a controlled
substance. The PSR indicates that the case was “rejected”
by the District Attorney, but it includes the following
information about the factual background of the arrest:
According to [Mr. Mateo’s] signed statement, [Mr. Mateo]
agreed to take a van that contained cocaine from
Albuquerque, New Mexico to Miami, Florida. [Mr. Mateo] had
two friends drive the van while [he] followed the van in
his car. The van was stopped for a traffic violation and
was subsequently searched. The cocaine was in the form
of a brick rolled in a pair of pants inside a plastic bag
on the floor. A few miles later, [Mr. Mateo] was stopped
and was found to be in possession of a bag of marijuana.
[Mr. Mateo] took full responsibility for the cocaine and
stated to officers his friends did not know the cocaine
was in the van. During a search of the van, officers
located a firearm.
Less than a year later, on August 17, 2000, Mr. Mateo was
arrested in New Mexico, and charged in United States
District Court for the District of New Mexico with
distribution of cocaine, conspiracy, and aiding and
abetting. The indictment in this case was dismissed without
prejudice on October 11, 2000.
On October 19, 2001, police officers in Albuquerque, New
Mexico arrested Mr. Mateo for aggravated battery with a
deadly weapon, armed robbery, conspiracy, kidnapping, and
tampering with evidence related to a jewelry store robbery
in August 2000. According to the PSR, the police reports
indicate that witnesses said three Cuban males jumped the
counter and robbed the store at gunpoint, pushing one victim
onto the floor and putting the barrel of a gun to his head.
A confidential informant indicated that Mr. Mateo was
involved in the robbery and one of the perpetrators
confirmed this information. Mr. Mateo went to trial on
these charges, but the court ordered a mistrial after the
jury could not reach a verdict. On August 27, 2002, the
District Attorney filed a nolle prosequi.
At the sentencing hearing in this case, the Government took
the position that the Guidelines are presumptively
reasonable, and while not advocating a sentence above the
advisory Guidelines range, informed the court that it would
support an upward variance if the court imposed such a
sentence. Mr. Mateo’s attorney maintained that the advisory
Guidelines range was reasonable given the facts surrounding
the current conviction, and observed that Mr. Mateo’s only
prior felony conviction for grand theft was not drug
related.
After correctly calculating the Guidelines range and
acknowledging the advisory nature of the Guidelines after
United States v. Booker, 543 U.S. 220 (2005), the District
Court held that in light of the sentencing factors provided
by 18 U.S.C. § 3553(a), the Guidelines range of 15
to 21 months was unreasonable. The court specifically
discussed the following § 3553(a) factors:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need
for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of
the defendant[.]
See 18 U.S.C. § 3553(a)(1)-(2). The court explained
its concerns regarding the adequacy of the advisory
Guidelines range in relation to the cited sentencing
factors by observing that Mr. Mateo’s record of fourteen
total arrests (including the five for which he was
convicted) and two felony convictions in three different
states since he arrived in the United States from Cuba in
1995 indicates “a commitment to a criminal lifestyle.” The
court acknowledged that Mr. Mateo was never convicted of
the more serious charges for which he was arrested,
including aggravated battery with a deadly weapon,
kidnapping, conspiracy, and attempted murder, “but these
arrests, in Florida, Texas, and New Mexico demonstrate a
pattern of and commitment to a criminal lifestyle by this
defendant that is consistent with criminal activity and
patterns one typically sees for armed career criminals.”
The District Court imposed a sentence of 120 months’
imprisonment, the statutory maximum for the
felon-in-possession conviction.
II. DISCUSSION
Post-Booker, we review sentences for reasonableness. See
United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.
2006). “Sentencing decisions must be reversed when a
sentence is unreasonable considering the factors enumerated
in 18 U.S.C. § 3553(a).” United States v. Cage, 451
F.3d 585, 591 (10th Cir. 2006). To determine whether a
sentence is reasonable, we consider both procedural and
substantive aspects of the district court’s decision. See
id. In order to be procedurally reasonable, “a sentence
must be `reasoned,’ or calculated utilizing a legitimate
method.” Id. We determine substantive reasonableness by
reference to the actual length of the sentence imposed in
relation to the sentencing factors enumerated in §
3553(a). Id. at 594-95.
A. The District Court did not err by considering
uncontested facts included in the PSR relating to prior
arrests that did not result in convictions.
Mr. Mateo argues that the District Court erred in
considering his prior arrests that did not result in
convictions in concluding that the advisory Guidelines
range of 15 to 21 months was unreasonably low. We find no
error in the method by which the District Court determined
the advisory sentence to be insufficient punishment for Mr.
Mateo.
It is well established that the sentencing court is
entitled to rely on At the sentencing hearing prior to the
imposition of sentence, Mr. Mateo 3 made a short statement
through a translator. He said, “I would like to tell you,
Judge, that I had nothing to do with that case, and that is
why I went to trial.” This statement apparently refers to
the six-count indictment relating to the jewelry store
robbery in Albuquerque, New Mexico. On appeal, however, Mr.
Mateo does not claim that the facts in the PSR are
inaccurate or that the PSR includes information that is not
reliable. Instead, he only argues that the court’s
consideration of his arrests generally is error as a matter
of law. uncontested facts contained in the PSR for certain
sentencing purposes. See Fed.R.Crim.P. 32(i)(3)(A) (“At
sentencing, the court . . . may accept any undisputed
portion of the presentence report as a finding of fact. . .
.”); United States v. Wolfe, 435 F.3d 1289, 1299 (10th Cir.
2006) (“[W]e recognize that post-Booker this court has
refused to treat unobjected-to PSR facts as admitted for
Sixth Amendment Booker purposes. . . . [O]utside the Booker
context, [however,] we will still rely on unobjected-to
facts for other sentencing purposes.” (citation omitted)).
As we have explained, “Booker has not relieved a defendant
of his obligation under Rule 32(i)(3)(A) to point out
factual inaccuracies included in the PSR.” Wolfe, 435 F.3d
at 1299. Neither in his formal objections to the PSR at
sentencing nor on appeal did Mr. Mateo challenge any of the
facts included in the PSR, including the facts surrounding
his fourteen arrests, two felony convictions, and the
pending charge.[fn3]
Nevertheless, Mr. Mateo argues that the District Court’s
reference to his prior arrest record violates the
Guidelines’ policy statement prohibiting the consideration
of a “prior arrest record itself” for purposes of an upward
departure. See U.S.S.G. § 4A1.3. To this end, he
notes that 18 U.S.C. § 3553(a)(5) requires a
sentencing court to consider “any pertinent policy
statement” from the Guidelines. The sentencing transcript
makes clear, however, that the District Court did not rely
on Mr. Mateo’s arrest record itself in making its
determination as to the reasonableness of the advisory
Guidelines sentence. Rather, it extrapolated from the
uncontested facts in the PSR — including the number,
frequency, and seriousness of Mr. Mateo’s various arrests
and convictions — to draw conclusions about
characteristics relevant to sentencing factors enumerated
in 18 U.S.C. § 3553(a). Compare United States v.
Dixon, 318 F.3d 585, 591 (4th Cir. 2003) (holding
sentencing court did not run afoul of policy statement
prohibiting consideration of “a prior arrest record itself”
for purposes of upward departure under U.S.S.G. §
4A1.3(a)(3) when it considered uncontested information in
PSR about criminal conduct leading to arrests); United
States v. Williams, 989 F.2d 1137, 1142 (11th Cir. 1993)
(same); United States v. Torres, 977 F.2d 321, 330 (7th
Cir. 1992) (same); with United States v. Zapete-Garcia, 447
F.3d 57, 61 (1st Cir. 2006) (vacating as unreasonable a
sentence that was based in part on the mere existence of a
decade-old unrelated prior arrest).
The sentencing court is well within its discretion and,
indeed, is required to carefully consider the facts
contained in the PSR when evaluating the § 3553(a)
sentencing factors, including “the history and
characteristics of the defendant,” and the need for a
sentence to “afford adequate deterrence to criminal
conduct,” and “to protect the public from further crimes of
the defendant.” 18 U.S.C. § 3553(a)(1), (a)(2)(B),
(a)(2)(C). We have noted that “[n]o limitation” should be
placed on “the information concerning the background,
character, and conduct of a person . . . for the purpose of
imposing an appropriate sentence.” United States v.
Magallanez, 408 F.3d 672, 684 (10th Cir. 2005) (quoting 18
U.S.C. § 3661). Therefore, we conclude that the
District Court did not err in considering the uncontested
facts in the PSR relating to Mr. Mateo’s prior arrests and
by using those facts to determine the adequacy of the
advisory Guidelines sentencing range in fulfilling the
relevant sentencing objectives described in §
3553(a)(2). Cf. Zapete-Garcia, 447 F.3d at 61 (observing
that “a series of past arrests might legitimately suggest a
pattern of unlawful behavior even in the absence of any
convictions”).
B. The District Court did not err by making reference to a
section of the Guidelines that is not applicable under the
facts in this case.
In handing down its sentence, the District Court compared
Mr. Mateo’s history to that of an “armed career criminal.”
An “armed career criminal” is subject to the enhanced
penalties of 18 U.S.C. § 924(e), which imposes a
minimum sentence of 15 years’ incarceration for being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g) if the offender has three previous
convictions for qualifying violent felonies, serious drug
offenses, or both. 18 U.S.C. § 924(e)(1); see also
U.S.S.G. § 4B1.4 (implementing 18 U.S.C. §
924).
When the District Court imposed its sentence, it explained:
I recognize that the most serious crimes the defendant
was arrested For — such as aggravated battery with
a deadly weapon, kidnaping, conspiracy, and attempted
murder — were all nolle prossed, but these arrests
in Florida, Texas, and New Mexico demonstrate a pattern of
and commitment to a criminal lifestyle by this defendant
that is consistent with criminal activity and patterns one
typically sees for armed career criminals.
Mr. Mateo argues that the armed career criminal provision
is inapplicable and is not relevant to determining the
sentence to be imposed[fn4].
In Cage, we explained that “[w]hen a district court makes a
sentencing decision, it must interpret Congress’s
intentions in passing sentencing laws.” 451 F.3d at 593. We
further explained that even though the Guidelines are no
longer mandatory, they represent “an expression of popular
political will about sentencing that is entitled to due
consideration” in fashioning a sentence. Id. We cannot agree
with Mr. Mateo’s claim that the District Court’s reference
to the armed career criminal statute is inappropriate when
considering what sentence to impose. It is clear that the
District Court did not apply the armed career criminal
provision to Mr. Mateo because the minimum sentence
applicable for such an offender is 15 years’ (or 180
months’) incarceration. Rather, the sentencing transcript
indicates that the court sought guidance from the armed
career criminal provision as to the appropriate length of
incarceration given Mr. Mateo’s criminal history as
disclosed by the unchallenged facts in the PSR. The
Guidelines are clearly relevant when determining an
appropriate sentence, and in this case, the District
Court’s reference to the Guidelines in searching for a
guidepost is not error. See id.; cf. Wolfe, 435 F.3d at 1304
n. 12 (“`[A]nalogizing to other guidelines is a primary
method by which district courts may justify the
reasonableness of their departure.'” (quoting United States
v. Neal, 249 F.3d 1251, 1261 (10th Cir. 2001)) (alteration
in original)).
C. The magnitude of the District Court’s deviation from the
advisory Guidelines range was substantively reasonable.
A sentence within the correctly determined advisory
Guidelines range is entitled to a rebuttable presumption of
reasonableness, Kristl, 437 F.3d at 1054, but an “extreme
divergence” from the advisory Guidelines range will be
reasonable “if the facts of the case are dramatic enough to
justify such a divergence,” Cage, 451 F.3d at 594-95. Mr.
Mateo asserts that the length of his sentence — 120
months’ incarceration — is unreasonable given that
the correctly calculated advisory Guidelines sentence range
was 15 to 21 months’ imprisonment. We conclude that the
magnitude of the District Court’s deviation from the
advisory Guidelines range, while extreme, was reasonable.
In Cage, we explained that this Court looks to the
“discrepancy between the advisory guidelines range and the
actual sentence” to determine whether a sentence is
reasonable. Cage, 451 F.3d at 594. “[T]he farther the trial
court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be.” United
States v. Valtierra-Rojas, — F.3d — 2006 WL
3237187, at *3 (10th Cir. 2006) (alteration omitted). In
other words, how compelling the justification must be to
render an extra-Guidelines sentence reasonable “is
proportional to the extent of the difference between the
advisory range and the sentence imposed.” United States v.
Bishop, — F.3d –, 2006 WL 3237027, at *10
(10th Cir. 2006).
In determining how compelling the justification for a
particular sentence must be, we consider both the
“percentage of divergence” from the advisory range and the
“absolute number of months above or below the Guidelines
range.” Valtierra-Rojas, 2006 WL 3237187, at *3. In Cage,
we held that the district court’s six-day sentence was an
“extreme” divergence from the Guidelines recommended
sentence of at least 46 months; therefore, the sentence
“must be supported by extraordinary circumstances.” Cage,
451 F.3d at 594. We found the sentence unsupported by the
type of extraordinary circumstances that might legitimatize
it because the sentencing court failed to cite any §
3553(a) factors that were peculiar to the defendant.
Instead, the court based its divergence only on those
factors that were common to many defendants — in
that case, the defendant’s status as a single mother. Id.;
see also United States v. Rattoballi, 452 F.3d 127, 133 (2d
Cir. 2006) (explaining that under substantive reasonableness
review “a non-Guidelines sentence that rests primarily upon
factors that are not unique or personal to a particular
defendant” is “inherently suspect”). From Cage, it follows
that whether the rationale provided by the sentencing court
for a non-Guidelines sentence is sufficiently compelling is
determined by considering whether the particular
characteristics of the defendant the court relied upon in
fashioning the sentence are commonplace — and
therefore presumably are already part of the Guidelines
calculation — or are sufficiently uncommon to justify
a divergence from the presumptively reasonable Guidelines
sentence. See Cage, 451 F.3d at 595-96 (determining facts
relied upon by district court to justify “extreme
divergence” were not “particularly out of the ordinary” and
therefore could not justify sentence).
Since Cage, we have held that the “comparative difference”
between a defendant’s 78-month sentence and the
advisory-range maximum of 57 months (a 37% increase) was a
“significant increase” requiring “sufficient explanation
and justification,” see Bishop, 2006 WL 3237027, at *10,
and that the difference between a 60-month sentence and the
advisory-range maximum of 27 months (a 122% increase) was
“substantial” and required “compelling reasons” to support
the district court’s decision, see Valtierra-Rojas, 2006 WL
3237187, at *3. Though we required compelling reasons to
support the sentence in Valtierra-Rojas, we did not require
the same kind of “dramatic facts” as we required in Cage
because, we noted, the sentencing court in Cage
“effectively ignore[d] the advice of the Guidelines” to
essentially impose “no prison sentence at all.” See
Valtierra-Rojas, 2006 WL 3237187, at *3 (alteration in
original).
While “[t]he nature of the inquiry announced in Cage (the
greater the divergence, the more compelling the reasons) is
not one that allows for precision in measurement,”
Valtierra-Rojas, 2006 WL 3237187, at *3, it is clear that
the District Court’s divergence from the advisory range
here is of the extreme type akin to that in Cage requiring
a “compelling” justification supported by “dramatic facts.”
Here, the District Court increased Mr. Mateo’s sentence by
471% above the high end of the advisory range of 21 months
— more than eight years longer than he would serve
if he was sentenced in accordance with the advisory
Guidelines.
The District Court determined that this sentence was
warranted because of Mr. Mateo’s exceptional history and
the fact that the advisory Guidelines sentence did not
fully reflect the serious nature of his criminal record.
Mr. Mateo’s history as presented in the uncontested facts
of the PSR discloses significant contact with the criminal
justice systems in three different states over a relatively
short period of time. The sentence reflects the District
Court’s well justified concern that Mr. Mateo’s frequent
brushes with the law indicate “a commitment to a criminal
lifestyle.” The import of this finding and the court’s
citation to the § 3553(a) factors is plain: Mr.
Mateo’s sentences for prior convictions have not been
effective at deterring him from engaging in criminal
behavior and the public requires protection from Mr.
Mateo’s demonstrated penchant for criminality. See §
3553(a)(2)(B), (a)(2)(C); cf. United States v. Fairclough,
439 F.3d 76, 80-81 (2d Cir. 2006) (holding 48-month
sentence, which was 21 months higher than the maximum
advised by Guidelines, was reasonable based on district
court’s conclusion that defendant “had a relatively
uninterrupted string of criminal activity and arrests” and
“interaction after interaction with the criminal justice
system”). Based on these specific circumstances and the
District Court’s use of the armed career criminal provision
as a guidepost to gauge the length of the sentence, the
District Court imposed a reasonable sentence.
III. CONCLUSION
We conclude that the District Court did not err by looking
to the armed career criminal portion of the Guidelines to
help determine the appropriate weight to give to the unique
lifestyle characteristics of this defendant as disclosed by
the uncontested facts available in the PSR. We also
conclude that based on those dramatic facts, the sentence
imposed was reasonable. We AFFIRM the judgment of the
District Court.
[fn1] On appeal, Mr. Mateo does not argue that he was given
inadequate notice as to the basis for the District Court’s
decision to impose a sentence outside of the advisory
Guidelines.
[fn2] The PSR actually lists two pending charges. One of
those charges, however, is the charge in this case.
[fn3] At the sentencing hearing prior to the imposition of
sentence, Mr. Mateo made a short statement through a
translator. He said, “I would like to tell you, Judge, that
I had nothing to do with that case, and that is why I went
to trial.” This statement apparently refers to the
six-count indictment relating to the jewelry store robbery
in Albuquerque, New Mexico. On appeal, however, Mr. Mateo
does not claim that the facts in the PSR are inaccurate or
that the PSR includes information that is not reliable.
Instead, he only argues that the court’s consideration of
his arrests generally is error as a matter of law.
[fn4] The Government does not contend that Mr. Mateo’s prior
arrests, if they had resulted in convictions, would be
sufficient to subject him to the provisions of the armed
career criminal statute. We note, however, that Mr. Mateo’s
1997 arrest for attempted murder, as well as the October
2001 aggravated battery with a deadly weapon and armed
robbery charges arising from the jewelry store robbery,
would presumably qualify under the statute as violent
felonies. See 18 U.S.C. § 924(e)(2)(B)(i)-(ii)
(defining a “violent felony” as “any crime punishable by
imprisonment exceeding one year . . . that . . . (i) has as
an element the use, attempted use, or threatened use of
physical force against the person of another; or (ii) . . .
involves conduct that presents a serious potential risk of
physical injury to another “). Also, the 1999 arrest for
conspiracy to deliver a “brick” of cocaine could have
qualified as a serious drug offense under the statute. See
18 U.S.C. § 924(e)(2) (defining a “serious drug
offense” as “an offense under the Controlled Substances Act
(21 U.S.C. § 801 et seq.) . . . for which a maximum
term of imprisonment of ten years or more is prescribed by
law”).
MURPHY, Circuit Judge, joined by KELLY, Circuit Judge,
concurring.
I concur in the majority’s well-stated opinion. I write
separately, however, to express serious misgivings with
this court’s precedents that usurp the district courts’
sentencing discretion.
On appeal, Mateo asserts as follows: (1) the sentence
imposed by the district court is contrary to the policy
considerations set out in the Sentencing Guidelines; and
(2) the sentence imposed by the district court is
unreasonable in reference to the factors set out in 18
U.S.C. § 3553. The majority persuasively and
correctly rejects both of Mateo’s contentions.
A district court is not free to impose a sentence outside
the range set out in the advisory Sentencing Guidelines
based simply on its disagreement with the policies
underlying the Guidelines. United States v. McCullough, 457
F.3d 1150, 1171-72 (10th Cir. 2006) (discussing variances
from the advisory Guidelines range based on mere
disagreement with the 100:1 crack to powder cocaine ratio
set out in the Guidelines). The Guidelines specifically
prohibit upward departures from an advisory Guidelines
range based solely on a defendant’s arrest record. U.S.S.G.
§ 4A1.3(a)(3) (“A prior arrest record itself shall
not be considered for purposes of an upward departure under
this policy statement.”). Mateo contends the sentence
imposed by the district court is contrary to §
4A1.3(a)(3).
In contrast to Mateo’s assertion, a close review of the
sentencing transcript demonstrates the district court did
not simply rely on the existence of Mateo’s arrest record
in deciding to impose a sentence outside of the advisory
Guideline range. Instead, the district court began the
sentencing process by properly calculating Mateo’s advisory
Guidelines range. The district court then balanced that
range and the policy statements underlying the Guidelines,
18 U.S.C. § 3553(a)(4), (5), with Mateo’s background
and characteristics, the circumstances of the offense, and
the need to provide adequate deterrence and protect the
public from further crimes, id. § 3553(a)(1), (2). As
part of the district court’s balancing of the §
3553(a) factors, the district court concluded Mateo’s
character and background — specifically including
his extensive, consistent, and serious involvement in
criminal activity, as evidenced by his prior convictions,
prior arrests, and the circumstances surrounding the prior
arrests — “demonstrate[d] a pattern of and
commitment to a criminal lifestyle . . . that is consistent
with criminal activity and patterns one typically sees for
armed career criminals.” Thus, under the very unique
circumstances of this case, the factors set out in §
3553(a)(1) and (2) justified a sentence significantly
higher than set out in the advisory Guidelines range. The
sentence imposed by the district court is not a rejection of
the policy statements in § 4A1.3(a)(3), but a
careful balancing of the factors set out in §
3553(a).
I also agree with the majority that the sentence imposed by
the district court is reasonable and that such a conclusion
is faithful to this court’s precedents regarding appellate
review of sentences for reasonableness. See Majority Op. at
13-14 (collecting and analyzing cases). What I question is
this court’s developing insistence that district courts
take extraordinary steps to justify sentences outside the
range set out in the advisory Sentencing Guidelines. United
States v. Cage, 451 F.3d 585, 593-95 (10th Cir. 2006)
(holding that sentencing factors set out in §
3553(a) relating to the advisory Guidelines range are more
important than other statutory factors and that the further
a sentence deviates from the advisory Guidelines range the
greater the justification a district court must provide);
see also United States v. Shaw, No. 05-6074, 2006 WL
3505339, at *4 (10th Cir. Dec. 6, 2006) (applying Cage and
affirming sentence 48% above advisory Guidelines range
because the district court had identified a “substantial
justification” for the divergence); United States v.
Valtierra-Rojas, No. 05-3390, 2006 WL 3237187, at *3 (10th
Cir. Nov. 9, 2006) (holding that in light of Cage, court
was obligated to closely examine sentence 122% above high
end of the advisory sentencing range); United States v.
Bishop, No. 05-3173, 2006 WL 3237027, at *10 (10th Cir.
Nov. 9, 2006) (holding that in light of Cage, a 37%
deviation from the advisory Guidelines range “is a
significant increase that requires sufficient explanation
and justification”).
It is absolutely clear following the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220, 259-60
(2005), that when imposing a sentence the district courts
must consider the factors set out in § 3553(a). As
noted by the Court in Booker, the range set out in the
advisory Sentencing Guidelines and the policy statements of
the Sentencing Commission are among those factors. Id.
Nothing in either Booker or the plain text of §
3553(a) indicates that the sentencing factors relating to
the Sentencing Guidelines have primacy over the sentencing
factors not relating directly to the Guidelines. Under this
circuit’s precedents, however, some of the statutory
sentencing factors are apparently more equal than others.
Cage, 451 F.3d at 593-94 That is, the greater the deviation
from the range set out in the advisory Sentencing
Guidelines, the greater the burden on the district court to
justify the sentence. Id. at 594. The rule set out in Cage
has led to the utterly bizarre circumstance where this
court tries to quantify, in something that looks just like
de novo review, just how extreme the circumstances must be
to justify a 471% (or 122%, 48%, 37%) deviation from the
advisory Guideline range. But see Booker, 543 U.S. at 259
(specifically noting that provision of 18 U.S.C. §
3742(e) requiring de novo review of departures from the
applicable Guideline range must be severed to render the
Sentencing Reform Act constitutional).
This case is a perfect example of the irrationality of
appellate review of sentences in this circuit. The federal
district courts impose sentences on numerous defendants and
have a clear institutional advantage when it comes to
discerning which defendants are in need of harsh punishment
and which are in need of leniency. In this case, the
district court brought that institutional advantage to bear,
concluding that Mateo was an exceptionally dangerous
individual in need of an exceptionally severe sentence. In
so doing, the district court weighed Mateo’s personal
characteristics, the circumstances of his crime, the need
to protect the public, and the need for deterrence with the
policy statements of the Sentencing Commission and the
advisory range set out in the Guidelines. On appeal,
pursuant to the system required by Cage, this court is
required to undertake that same analysis, but without the
institutional advantage native to the district court, all
in what would appear to be an attempt to force the district
courts to hew as close to the Guidelines range as possible.
It is odd, indeed, to see how quickly the appellate
standard of reasonableness set out in Booker has morphed
into a mathematical exercise pegged exclusively to those
sentencing factors in § 3553(a) relating to the
advisory Guidelines. But see Booker, 543 U.S. at 261
(“Section 3553(a) remains in effect, and sets forth
numerous factors that guide sentencing.”)
Although many might bemoan the decision in Booker, it is
the law of the land. The Guidelines are no longer mandatory
and it is improper for this court to impose a system of
appellate review that seeks to return this circuit, de
facto, to a mandatory system. As recently noted by the
Seventh Circuit,
[T]he standard of reasonableness, introduced by the
Booker decision, confers broad sentencing discretion. The
judge must consider the guidelines but is in no sense
bound by them. He is bound only by the statutory
sentencing factors, 18 U.S.C. § 3553(a), which are
both numerous and vague, thus giving the judge a great
deal of running room.
United States v. Bullion, 466 F.3d 574, 575 (7th Cir. 2006).
The district court here recognized that it was required to
consider the factors in § 3553(a) in arriving at a
sentence, and it did in fact consider those factors. Were I
the sentencing judge, I might not have imposed the same
sentence as did the district court. The balance struck by
the district court, however, is certainly not unreasonable.
For that reason alone, I would affirm the district court.
Id. at 577 (holding that arguments like those at issue in
this case, i.e., the district court struck the wrong
balance of mitigating and aggravating circumstances in
arriving at a sentence, “are arguments to address to a
sentencing judge, not to an appellate court. No precise
weights can be assigned to such factors in the sentencing
balance. . . . The striking of a balance of uncertainties
can rarely be deemed unreasonable. . . .”). Nevertheless,
because Cage requires the analysis undertaken in the
majority opinion, I respectfully concur.