U.S. v. Miqbel

• Decision Date: 17 April 2006
• Docket Number: No. 05-10033.,05-10033.
• Citation: 444 F.3d 1173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jawad MIQBEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

444 F.3d 1173

UNITED STATES of America, Plaintiff-Appellee, v. Jawad MIQBEL, Defendant-Appellant.

No. 05-10033.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2005.

Filed April 17, 2006.

Quin Denvir, Federal Public Defender; Timothy Zindel, Assistant Federal Public Defender (argued), Sacramento, CA, for the defendant-appellant.

McGregor W. Scott, United States Attorney; Samantha S. Spangler, Assistant U.S. Attorney (argued), Sacramento, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief Judge, Presiding. D.C. No. CR-00-00377-WBS.

Before STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges, and JANE A. RESTANI,^* Chief Judge, United States Court of International Trade.

REINHARDT, Circuit Judge.

Jawad Miqbel appeals the sentence imposed by the district court on the grounds that the court failed to set forth sufficient reasons for its imposition of a sentence outside the recommended range, in violation of 18 U.S.C. § 3553(c), and that the sentence was unreasonable because it was imposed to provide "just punishment," a factor he alleges to be impermissible in revocation sentencing. We vacate the sentence and remand for resentencing.

I.

On February 21, 2001, Jawad Miqbel pled guilty to a charge of conspiracy to possess a listed chemical with knowledge and reasonable cause to believe it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 846 and § 841(d)(2). On September 5, 2001, Chief Judge William Shubb of the United States District Court for the Eastern District of California sentenced him to three years imprisonment and three years of supervised release in addition to requiring mandatory drug testing. Miqbel served his prison sentence and was released under the supervision of the court on March 18, 2003.

Following his release, Miqbel used methamphetamine sporadically in violation of the conditions of his release. On September 3, 2003, he admitted to his probation officer that he had used methamphetamine on or around August 31, 2003. On October 27, 2003, he tested positive for amphetamine and methamphetamine. On May 3, 2004, Lodi Police initiated a traffic stop on a vehicle driven by Miqbel and during a subsequent search, conducted with his consent, found 7.1 grams of marijuana and 1.3 grams of methamphetamine in the car. He was released the following day and immediately reported the arrest to his probation officer. Based on these incidents, the probation officer filed a petition with the court on June 1, 2004 alleging that Miqbel had violated the conditions of his release. In the petition, the probation officer noted that Miqbel had "been in high frequency substance abuse testing and group and individual counseling" since late 2003 and that since he had started that treatment, "[a]ll indications were that he was doing well."

Appearing before the district court at the revocation hearing on December 22, 2004, Miqbel was found in violation of one charge, use of methamphetamine, a Grade C violation under the federal Sentencing Guidelines. For a Grade C violation, the Chapter 7 policy statements recommend a range of imprisonment of three to nine months for those who, like Miqbel, have a Category I criminal history. U.S. SENTENCING GUIDELINES MANUAL § 7B1.4 (2004) (Term of Imprisonment (Policy Statement)).¹ At the revocation hearing, however, the district court sentenced Miqbel outside of the recommended three- to nine-month range, to a term of twelve months of imprisonment, despite the recommendations of the probation officer and the government that he receive a six month sentence.² The only reason provided by the court for the upward departure was: "I have considered the guidelines under Chapter 7, and I have carefully given consideration to a sentence within those guidelines, but I find that a sentence within those guidelines would be insufficient to meet the purposes of sentencing under these circumstances."

On May 25, 2005, the district court heard and denied Miqbel's motion for bail pending appeal. At this hearing, the court acknowledged that it "could have and probably should have been more explicit in the reasons given for the sentence" that it had imposed at the earlier revocation proceeding, and suggested that Miqbel's counsel raise on appeal the issue whether a court can consider punishment as a factor in deciding what sentence to impose upon revocation of supervised release. In the course of the bail hearing, the court stated that in its view, "punishment is the sentence imposed in order to promote respect for the law and to provide just punishment for the offense"³ and stated its belief that punishment could be taken into account in revocation sentencing.

Miqbel appeals his sentence.⁴ This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

Whether the district court provided an adequate statement of reasons for the sentence it imposed is a question of law that we review de novo. United States v. Duran, 37 F.3d 557, 560 (9th Cir.1994) (citing United States v. Upshaw, 918 F.2d 789, 792 (9th Cir.1990), cert. denied, 499 U.S. 930, 111 S.Ct. 1335, 113 L.Ed.2d 266 (1991)). If a defendant fails to object to the district court's failure to adequately state reasons, however, the sentence is reviewed for plain error. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999).

We have historically reviewed the district court's consideration of non-binding policy statements, such as Chapter 7, for abuse of discretion. United States v. Tadeo, 222 F.3d 623, 625 (9th Cir.2000); United States v. George, 184 F.3d 1119, 1120 (9th Cir.1999). We review the sentence ultimately imposed for reasonableness. United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).⁵

III.

On appeal, Miqbel argues, first, that the trial court erred by failing to explain adequately the reasons for his sentence, as required by 18 U.S.C. § 3553(c).⁶ Section 3553(c) requires the court:

at the time of sentencing, [to] state in open court the reasons for its imposition of the particular sentence, and, if the sentence —

(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence within a particular point within the range; or

(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must be stated with specificity in the written order of judgment and commitment. . . .

18 U.S.C. § 3553(c) (emphasis added). The requirement applies to sentences imposed following consideration of the Sentencing Commission's policy statements, as well as those imposed following consideration of the guidelines' previously mandatory provisions.⁷ For an offense like Miqbel's, classified as Grade C and involving an offender with a Category I criminal history, the recommended range for sentencing under the Chapter 7 policy statements is three to nine months. U.S. SENTENCING GUIDELINES MANUAL § 7B1.4 (2004). The district court, however, imposed what would appear to be an out-of-range sentence of twelve months.

The government argues that according to United States v. Lockard, 910 F.2d 542 (9th Cir.1990), there is "no `range' for revocation of a term of supervised release and imposition of the term of that sentence." Id. at 545. Therefore, the government contends, the court "need not comply with section 3553(c)(2) when sentencing for a supervised release violation, but need only set forth its general reasons for a sentence pursuant to the prefatory language of section 3553(c)." The government overlooks, however, the fact that Lockard was decided in 1990, four years before an amendment to § 3553(a)(4)(B) added the phrase "policy statements." See § 3553(a)(4)(B) ("[I]n the case of a violation of probation or supervised release, [the court shall consider] the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to [28 U.S.C. § 994(a)(3)]." (emphasis added)); see also George, 184 F.3d at 1120 (explaining the effect of the 1994 amendments). Because § 7B1.4, which is a policy statement prescribing sentencing ranges for defendants in Miqbel's position, was not made applicable to § 3553 until the 1994 amendment was adopted, it could not have been applied to Lockard.

Miqbel's supervised release sentencing clearly falls within § 3553(c)(2). Because § 3553(a)(4), as amended, includes the ranges of imprisonment applicable upon revocation of supervised release listed in the § 7B1.4 table, any sentence less than three months or more than nine months is "outside the range" of sentences described in § 3553(a)(4). Therefore, when it imposed a sentence that fell outside that three-to-nine-month range, the district court was required to provide "the specific reason for the imposition of a sentence different from that described." 18 U.S.C. § 3553(c)(2) (emphasis added).

In United States v. Musa, 220 F.3d 1096 (9th Cir.2000), the defendant made a claim similar to Miqbel's based on the trial court's failure to "adequately set forth its reasons for departing from the recommended guidelines as required by 18 U.S.C. § 3553(c)." Id. at 1101. Because Musa's sentence "went outside the policy statement range" — in Musa's case, the sentence imposed was the three-year statutory maximum, instead of the three-to-nine-month range listed in § 7B1.4 — we held that the district court was required to provide specific reasons for its departure from the recommended sentencing range. Id.⁸

In Miqbel's case, the only reason the district court provided at sentencing for imposing an out-of-range twelve-month sentence was that it found that "a sentence within [the] guidelines would be insufficient to meet the purposes of sentencing under these circumstances."⁹ Although the...