U.S. v. Candia

• Decision Date: 27 June 2006
• Docket Number: No. 05-30213.,05-30213.
• Citation: 454 F.3d 468
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Delio Jesus CANDIA, also known as Big Mike, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.3d 468

UNITED STATES of America, Plaintiff-Appellee, v. Delio Jesus CANDIA, also known as Big Mike, Defendant-Appellant.

No. 05-30213.

United States Court of Appeals, Fifth Circuit.

June 27, 2006.

COPYRIGHT MATERIAL OMITTED

Camille Ann Domingue, Asst. U.S. Atty., Lafayette, LA, for U.S.

Christopher Albert Aberle, Mandeville, LA, for Candia.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Delio Jesus Candia pled guilty to conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, and was sentenced within an applicable sentencing range properly calculated under the advisory U.S. Sentencing Guidelines Manual ("U.S.S.G.," "federal guidelines," or "guidelines") (2006). Candia appeals this post-Booker¹ advisory guidelines sentence as unreasonable and as an abuse of discretion because it was imposed consecutively to an undischarged state sentence.

This appeal presents a question of first impression: When the district court imposes a sentence within a properly calculated advisory guidelines range, what is the standard applied to review its order that the sentence run consecutively to an undischarged state sentence? We hold that, under Booker, the consecutive nature of a properly calculated guidelines sentence is reviewed for unreasonableness. We further hold that when a district court imposes a sentence according to the applicable advisory guidelines for imposition of a consecutive sentence, and also imposes that sentence within a properly calculated sentencing range, the sentence's consecutiveness enjoys a rebuttable presumption of reasonableness.

The record reveals that the district court properly interpreted and applied advisory federal sentencing guidelines in its determination to run Candia's sentence consecutive to his state sentence as well as in its calculation of the applicable advisory sentencing range. Both the term of imprisonment and its consecutiveness were imposed within the applicable sentencing provisions. Candia does not cite any statutory or jurisprudential support for his argument that this sentence is unreasonable and does not challenge the district court's calculation of the applicable guidelines range. Accordingly, we affirm this consecutive sentence as not unreasonable.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2003, Candia pled guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, the first count of his eight count indictment. The factual basis for Candia's plea stated that between January 1, 1988, and November 14, 2000, Candia conspired with Kenneth Leday and others to possess and distribute cocaine and cocaine base, and that Candia had possessed and distributed over ten kilograms of cocaine. The record reflects that Candia's was a voluntary plea and that the district court advised Candia that he could be sentenced anywhere within the statutory range of imprisonment-ten years to life. The district court ordered a presentence investigation report ("PSR").

Applying the federal guidelines, the PSR recommended a base offense level of 38 due to information that Candia had distributed more than 150 kilograms of cocaine. According to the PSR, Kenneth Leday stated that Candia began selling cocaine powder to Leday in late 1995. Leday indicated that he and Candia jointly trafficked cocaine and that, during the twenty-two month period ending in November 1997, Candia had supplied Leday with no less than ten kilograms per month. The PSR also indicated that Brian Lemelle, one of Leday's contacts in Atlanta, Georgia, estimated that of about one hundred fifty kilograms of powder cocaine he received from Candia and Leday, all but twenty-five to thirty kilograms belonged to Candia.

The PSR also recommended a two point reduction for acceptance of responsibility and a total offense level of 36. The PSR indicated that in January 2003 Candia had pled guilty to a Texas state possession of cocaine charge for offense conduct that occurred in May 2002. This conviction resulted in an eight year state sentence of imprisonment. The PSR reflected a total of four criminal history points comprised of three points for this state conviction and one point for a January 2003 state conviction for evading arrest on New Year's Eve in 1999—thus resulting in a Category III criminal history. The PSR's recommended sentencing range of 235 to 293 months imprisonment is the range provided in the sentencing table, U.S.S.G. Chapter Five, Part A., for a Category III criminal history at offense level 36.

Candia objected, inter alia, to the quantities of drugs attributed to him in the PSR, and the sentencing hearing took place in February 2005. In response to Candia's objections, the Government adduced evidence that included the following: Kenneth Leday testified that Candia had supplied him with 10 to 20 kilograms of cocaine per month over the course of two years, for a total of approximately 168 kilograms. Leday and other co-conspirators distributed the cocaine purchased from Candia in Lake Charles, Lafayette, and Baton Rouge, Louisiana, and in Atlanta, Georgia. Leday introduced Candia to Brian and Robert Lemelle, Leday's contacts in Atlanta, and Candia began to sell cocaine directly to them.

In light of Booker, the district court declined to address the individual objections to the PSR. Instead, the district court stated that it had considered all 18 U.S.C. § 3553(a) sentencing factors. The district court orally applied most of the factors, noting the absence of aggravating or mitigating factors that warranted a sentence outside the sentencing range applicable under the guidelines. The district court found the factual statements in the PSR to be "in harmony with the evidence presented," adopted those factual findings, and concluded that the sentencing range applicable under the advisory federal guidelines was between 235 and 293 months of imprisonment.

Candia requested a concurrent sentence. The Government did not oppose his request. Nevertheless, the district court sentenced Candia to serve 280 months imprisonment, to run consecutively to the undischarged 8 year Texas sentence, followed by a five year term of supervised release. Candia appeals this sentence and its consecutive nature as unreasonable.

II. STANDARDS OF REVIEW

A. General Standard of Review

Even after Booker, we review a district court's interpretation of the Guidelines, de novo. United States v. Duhon, 440 F.3d 711, 714 (5th Cir.2006) (citing United States v. Smith, 440 F.3d 704, 705 (5th Cir.2006)). This court accepts the district court's findings of fact unless they are clearly erroneous. Id. (citing United States v. Creech, 408 F.3d 264, 270 n. 2 (5th Cir.2005)).

A sentence is ultimately reviewed for "unreasonableness." Smith, 440 F.3d at 705; Duhon 440 F.3d at 714. The factors enumerated in 18 U.S.C. § 3553(a), a statute left undisturbed by Booker, "guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Booker, 543 U.S. at 261, 125 S.Ct. 738.

B. Specific Standard of Review

Prior to Booker, we reviewed for abuse of discretion the district courts' decisions about the § 5G1.3(c) imposition of consecutive or concurrent sentences. United States v. Richardson, 87 F.3d 706, 709 (5th Cir.1996) (citing United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.1991)); United States v. Lynch, 378 F.3d 445, 447 (5th Cir.2004) (citing United States v. Rangel, 319 F.3d 710, 714 (5th Cir.2003)). Under Booker, it is the sentence itself, including its consecutive nature, that is ultimately reviewed for reasonableness. See Smith, 440 F.3d at 705; Duhon, 440 F.3d at 714.

A sentence imposed within a properly calculated guidelines range is presumptively reasonable and is accorded great deference on review. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). This court will rarely say that such sentence is unreasonable. Id. Nevertheless, although presumptively reasonable, the sentence is not "reasonable per se." Id. The presumption can be rebutted. See id. (observing that there is no practical difference between imposing upon a defendant "the burden [to] rebut[] a presumption of reasonableness afforded a properly calculated Guideline range sentence and the burden [to] overcom[e] the great deference afforded such a sentence," and concluding that a guidelines sentence is reasonable per se would ignore the requirement that the district court must consider all the § 3553(a) sentencing factors). Additionally, for a sentence imposed within a properly calculated guidelines range, our Booker unreasonableness review infers that the district court "has considered all the factors for a fair sentence set forth in the Guidelines." United States v. Johnson, 445 F.3d 793, 798 (5th Cir.2006) (citing United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005), cert. denied, Mares v. United States, ___ U.S. ___, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)).

The reasonableness of the consecutive nature of a sentence that was properly calculated under advisory federal guidelines is an issue of first impression in this circuit. We hold that a rebuttable presumption of reasonableness also applies to a consecutive sentence imposed within the parameters of the advisory federal guidelines. Although a consecutive sentence that conforms to the federal guidelines provisions is not "reasonable per se," the sentence is presumptively reasonable and is accorded great deference. A consecutive or concurrent sentence imposed contrary to the applicable federal guidelines provision is akin to a departure because it deviates from the recommended punishment and enjoys neither the presumption of reasonableness nor the deference accorded a consecutive or concurrent determination made pursuant to the guidelines.

III. DISCUSSION

For the first time post-Booker, we are asked to review...