U.S. v. Tzep-Mejia, 05-40386.

• Decision Date: 15 August 2006
• Docket Number: No. 05-40386.,05-40386.
• Citation: 461 F.3d 522
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel TZEP-MEJIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

461 F.3d 522

UNITED STATES of America, Plaintiff-Appellee, v. Miguel TZEP-MEJIA, Defendant-Appellant.

No. 05-40386.

United States Court of Appeals, Fifth Circuit.

August 15, 2006.

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Katherine L. Haden and James Lee Turner, Asst. U.S. Attys., Houston, TX, Juan Felipe Alanis (argued), McAllen, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def., Philip G. Gallagher (argued), Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas,

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Miguel Tzep-Mejia appeals his sentence for illegal reentry following deportation. Based on our conclusion that the non-Guideline sentence imposed by the district court is reasonable, we AFFIRM.

I.

Miguel Tzep-Mejia (Tzep) pleaded guilty to an indictment charging him with reentering the United States after previously being deported. The Presentence Investigation Report (PSIR) calculated his base offense level at 8, under U.S.S.G. § 2L1.2. After initially recommending against a crime of violence enhancement, the PSIR ultimately recommended a 16 level enhancement as a result of the probation officer's determination that a prior New York conviction for attempted assault in the first degree qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). With other adjustments, the defendant's total offense level was 21, with a criminal history category of III, resulting in a recommended Guideline sentencing range of 46-57 months.

In support of the enhancement, the PSIR reported that Tzep was indicted in New York on eight counts, including one count of assault in the first degree. Tzep pleaded guilty to the lesser offense of attempted assault in the first degree. The certificate of disposition and the commitment order also specified the statutory subsection of conviction as New York Penal Law § 120-10(1), assault in the first degree.¹ Further, the Government, in describing the New York conviction at the rearraignment proceeding, recited this same subsection of the statute and Tzep agreed with the government's recitation.

After hearing Tzep's objection to the enhancement, the district court overruled it. The district court then considered the appropriateness of the sentence that would result under the Guidelines with and without the crime of violence enhancement. The district court found that if the prior conviction was not a crime of violence, a Guideline range of 10-16 months was applicable and, based on the violent nature of the prior offense, a sentence within this range was not reasonable.² It also found that the Guideline range of 46-57 months, which included the crime of violence enhancement for the prior offense, in conjunction with his criminal history category of III, unfairly exaggerated the defendant's criminal history. The district court found that a criminal history Category II fairly represented his criminal history. It also recognized that the defendant had been in the United States for several years and had a degree of cultural assimilation— a proper basis for a downward departure from the Guidelines.³ Recognizing the non-binding nature of the Guidelines, the district court imposed a non-Guideline sentence of 36 months. Tzep appeals.

II.

Both the government and the defendant devote the bulk of their argument to discussing whether Tzep's prior conviction for attempted assault is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). If Tzep was convicted of an attempted assault in the first degree under subsection 1 of the New York assault statute, the crime is a clearly a crime of violence under the Sentencing Guidelines.⁴ Because Tzep did not plead to a count of the indictment but rather to the lesser offense of attempted assault, Tzep argues that the district court erred in looking to the indictment. Under this court's categorical approach to determining whether offenses constitute crimes of violence, Tzep also argues that the court could not refer to the certificate of disposition or the commitment order to determine under which subsection of the New York assault statute the defendant was convicted. Tzep also argues that his global agreement with the government's factual recitation of the offense, which included the subsection of the statute under which he was convicted, does not constitute an admission which can bind him for these purposes. Based on our disposition of this case as a reasonable non-Guideline sentence, we need not resolve these issues.

III.

Post-Booker⁵ case law recognizes three types of sentences under the new advisory sentencing regime: (1) a sentence within a properly calculated Guideline range; (2) a sentence that includes an upward or downward departure as allowed by the Guidelines, which sentence is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence. United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006).

Before the court imposes a non-Guideline sentence, it must first calculate the Guideline range and consider the appropriateness of a sentence within that sentencing range to fulfill its duty to consider the Sentencing Guidelines as advisory and as a frame of reference. Id.; United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.2005) ("Even in the discretionary sentencing system established by [Booker], a sentencing court must still carefully consider the detailed statutory scheme created by the [Sentencing Reform Act] and the Guidelines which are designed to guide the judge toward a fair sentence while avoiding sentence disparity . . . . This duty to consider the Guidelines will ordinarily require the sentencing judge to determine the applicable Guideline range even though the judge is not required to sentence within that range."). This first step ordinarily requires that the district court determine a properly calculated Guideline sentence. If the district court makes an error in an application of the Guidelines, we vacate the resulting sentence without reaching the sentence's ultimate reasonableness. United States v. Duhon, 440 F.3d 711, 716 (5th Cir.2006), (citing United States v. Villegas, 404 F.3d 355, 362 (5th Cir.2005)). This is so because Booker did not excise 18 U.S.C. § 3742(f). Section 3742(f) requires that if a sentence is imposed "as a result of an incorrect application of the sentencing guidelines" the sentence must be vacated and the case remanded for further sentencing proceedings. If, however, the district court imposes a non-Guideline sentence and that advisory sentence did not directly "result" from any Guideline error, it need not be vacated. Duhon, 440 F.3d at 716.⁶

The district court in this case elected to exercise its discretion to give a non-Guideline sentence after considering the two possible properly calculated Guideline ranges that could apply to the defendant. The district court calculated Tzep's Guideline range with the enhancement at 46-57 months. This range incorporates the only enhancement that is in dispute in this appeal, a 16-point enhancement for a prior conviction for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). At the sentencing hearing, the district court commented on the confusion relating to crime of violence determinations. The court then looked at the violent nature of the prior offense and determined that even if the prior offense was technically not a crime of violence, the Guideline range without the enhancement, 10-16 months, would not yield a reasonable result. Considering the seriousness of the prior offense, the court stated that the sentence without the enhancement would be unreasonably low and would not protect the public from further crimes. This finding was permissible because under an advisory system "the sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guidelines sentencing range and all facts relevant to the determination of a non-Guidelines sentence." Mares, 402 F.3d at 518. Both of these factors-the history and characteristics of the defendant and the need for the sentence to protect the public from further crime—were relevant facts for the district court to consider under 18 U.S.C. § 3553(a).

The district court also considered the Guideline range with the enhancement, 46-57 months. It stated that the offense level including the enhancement properly considered the seriousness of the crime. However, because all of the defendant's criminal history points arose out of one incident, the district court concluded that the criminal history category overstated the seriousness of the defendant's record. The district court also noted that the defendant had been in the United States for many years and had some degree of cultural assimilation and was going to be deported for the rest of his life. The district court then elected to sentence the defendant to 36 months imprisonment.

Tzep's sentence did not "result" from an incorrect application of the Guidelines. Based on facts presented in the PSIR, the district court carefully considered the two possible Guideline ranges that could result depending on how it ruled on the defendant's objection to the crime of violence enhancement. The court then rejected both options and elected to exercise its discretion to impose a non-Guideline sentence.

Both the Second and Eighth Circuits have recognized that the approach followed by the district court in this case is an appropriate one. See United States v. Haack, 403 F.3d 997 (8th Cir.2005); United States v. Crosby, 397 F.3d 103 (2d. Cir.2005). In Haack, the court stated: "[t]here may be situations where sentencing factors may be so complex, or other § 3553(a) factors may so predominate, that the determination of a precise sentencing range may not be necessary or practical. However, in those cases the court...