U.S. v. Estevez, 03-1496.

• Decision Date: 17 August 2005
• Docket Number: No. 03-1496.,03-1496.
• Parties: UNITED STATES of America, Appellee, v. Nicholas ESTEVEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

419 F.3d 77

UNITED STATES of America, Appellee, v. Nicholas ESTEVEZ, Defendant, Appellant.

No. 03-1496.

United States Court of Appeals, First Circuit.

Heard February 6, 2004.

Decided August 17, 2005.

COPYRIGHT MATERIAL OMITTED

Raymond E. Gillespie, on brief for appellant.

David H. Hennessy, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

The Supreme Court remanded this appeal so that we might consider whether the defendant's sentence comports with the appropriate implementation of the U.S. Sentencing Guidelines, as expounded in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We hold that it does.

I. Background

After a jury trial, Nicholas Estevez was convicted of (1) conspiracy to possess with intent to distribute a quantity of cocaine base; (2) possession of cocaine base with intent to distribute and distribution of same on or about August 6, 1999 in Worcester, Massachusetts; and (3) possession of cocaine base with intent to distribute and distribution of same on or about September 2, 2000 in Worcester, Massachusetts. The latter two counts also included charges of aiding and abetting such distribution.

The district court found that Estevez qualified as a Career Offender under § 4B1.1 of the Sentencing Guidelines, based on two prior simple assault convictions under Massachusetts law, which the court found to be crimes of violence. This finding placed Estevez in Career History Category VI pursuant to U.S.S.G. § 4B1.1, and raised Estevez's Total Offense Level ("TOL") to 37. The sentencing range corresponding to a TOL of 37 and a Category VI Criminal History is between 360 months and life.¹

The sentencing court, however, found sua sponte that the Career Offender Guideline overstated Estevez's criminal history and warranted a downward departure. Accordingly, the court imposed a sentence of 262 months. His sentence was affirmed on appeal by this court on May 4, 2004. The Supreme Court granted certiorari on January 24, 2005, vacated the judgment, and remanded to this court for further consideration in light of its decision in Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621. Estevez v. United States, ___ U.S. ___, 125 S.Ct. 1034, 160 L.Ed.2d 1020 (2005).

II. Analysis

A. Booker

We begin our analysis by noting that Estevez concedes that his claim of Booker error was not preserved. See United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005) ("The argument that a Booker error occurred is preserved if the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional.").² Thus, we review the district court's sentencing decision for plain error. Id. at 75.

Since the "defendant's Guidelines sentence was imposed under a mandatory Guidelines system," we recognize that a clear and obvious error has occurred. Id. Still, for Estevez's claim to survive plain error review, he must show a "reasonable probability" that the district court would have imposed a lower sentence had it treated the Sentencing Guidelines as advisory. Id. Because we recognize that judges may not have expressed their reservations to what, at that time, they understood were mandatory Guidelines, "we are inclined not to be overly demanding as to proof of probability." United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005). Nevertheless, the defendant must point to something, "either in the existing record or by plausible proffer," that indicates that there is a reasonable probability that the district judge would have imposed a different sentence. Id.

In this case, it appears unlikely that the district court would have sentenced Estevez more leniently under advisory Guidelines. The sentencing judge made a number of statements indicating his belief in the appropriateness of the sentence imposed. He stated: "I intend to impose a sentence of 262 months. It is a deserved sentence by this defendant. I don't think 30 years is. And therefore, I would be departing downward by [about] eight years." He further stated, "It's not that I feel that this defendant is not a serious felon, nor that he doesn't deserve a very substantial sentence for the crime he committed. But I do feel under the circumstances that . . . [he] is entitled to a relatively modest departure." He explained:

As I said at the outset of these proceedings, I feel that defendant deserves a very lengthy sentence for all of the reasons stated by the government in its argument that I ought to impose a 30-year sentence. I have, for the reasons stated, decided not to impose a 30-year sentence because I think under these circumstances that sentence is draconian and uncalled for. That does not mean for a moment that I believe that this defendant deserves a slap on the wrist or a short sentence because what he did in his short stay in this country, after illegally entering it, was to commit several heinous crimes. He was afforded a trial. The jury found him guilty, and I am now going to impose a severe sentence against him, notwithstanding the fact that I have departed downward from what otherwise would be the requirement of a 30-year sentence.

Having concluded that thirty years would be too severe a sentence for the crimes committed, the court chose to depart downward by approximately eight years. From the sentencing transcript, it appears that the judge felt that he could have granted a greater departure if he felt that one was warranted. Instead, he concluded that he would impose a 262 month sentence "equivalent [to] the high end of the range . . . that would be authorized but for the provisions applicable to career offenders." Given that the judge did not appear to feel constrained by the Guidelines from departing further downward, and given the judge's statements affirming the appropriateness of the sentence, we see no indication that he would have further decreased Estevez's sentence under an advisory Guidelines regime. Cf. United States v. González-Mercado, 402 F.3d 294, 304 (1st Cir.2005) ("When, under a mandatory guidelines regime, a sentencing court has elected to sentence the defendant substantially above the bottom of the range, that is a telling indication that the court, if acting under an advisory guidelines regime, would in all likelihood have imposed the same sentence."); United States v. Martins, 413 F.3d 139, 153 (1st Cir.2005) (defendant could not show reasonable probability of lower sentence where district court found him eligible for departure but chose not to depart).

Defendant claims that our holding in United States v. Fornia-Castillo, 408 F.3d 52, 73-74 (1st Cir.2005), indicates that where the sentencing was complex, and the judge expressed a mixture of both leniency and stringency, we should remand for resentencing. We disagree. Unlike the instant case, Fornia-Castillo was a preserved error case in which the burden was on the government to prove beyond a reasonable doubt that the defendant would have received the same sentence. Id. In this case, under our unpreserved error analysis, it is the defendant who bears the burden of proving that there is a reasonable probability that the district court would have imposed a lower sentence under advisory Guidelines. See Antonakopoulos, 399 F.3d at 78-79. Estevez cannot meet this burden. Unlike Fornia-Castillo, 408 F.3d at 74, where the court found that "the reasons for [imposing the minimum sentence as to one count and the maximum as to others] are not entirely clear," the sentencing court here transparently articulated its reasons for deciding upon a "modest departure." Essentially, the court thought that the career offender range was too harsh given Estevez's criminal history, but still considered the crimes to be very serious, and thus chose to depart only to the top of the range in which Estevez would have been sentenced without the career offender finding.

Nor do we find a reasonable probability that the court would have departed further on other grounds, such as defendant's history of drug and alcohol addiction, child sexual abuse and diminished capacity. The court was aware of these factors, but nevertheless, stated repeatedly that it felt the sentence it was imposing was appropriate. Under these circumstances, the mere fact that other grounds for departure were presented does not warrant remand. See United States v. Brennick, 405 F.3d 96, 102 (1st Cir.2005) (rejecting defendant's argument that this court "should remand for resentencing so that the district court may give more emphasis to mitigating factors that ordinarily have little influence under the Guidelines, such as his troubled childhood and drug addiction"); Villafañe-Jiménez, 410 F.3d at 86 n. 15.

B. Shepard

In his petition to the Supreme Court, Estevez sought certiorari on the Booker issues addressed above. The Supreme Court granted certiorari, vacated the judgment, and remanded his case "for further consideration in light of [Booker ]." Estevez, 125 S.Ct. at 1034. However, in his brief filed in response to this court's request for supplemental briefing on Booker's application to this case, Estevez now raises the claim...