U.S. v. Rodriguez-Rodriguez

• Citation: 530 F.3d 381
• Decision Date: 09 June 2008
• Docket Number: No. 06-41160 Summary Calendar.,06-41160 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Bernardo RODRIGUEZ-RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

530 F.3d 381

UNITED STATES of America, Plaintiff-Appellee, v. Jose Bernardo RODRIGUEZ-RODRIGUEZ, Defendant-Appellant.

No. 06-41160 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 9, 2008.

Mary Jane Harmon, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Sarah Beth Landau, Houston, TX, for Defendant-Appellant.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARWOOD, CLEMENT and PRADO, Circuit Judges.

PER CURIAM:

Defendant-appellant Rodriguez-Rodriguez was convicted on his plea of guilty of one count of having been found in the United States following deportation contrary to 8 U.S.C. § 1326. In July 2006, he was sentenced to 57 months' imprisonment. In his direct appeal to this court, he challenged his sentence, and we affirmed. United States v. Rodriguez-Rodriguez, 238 Fed.Appx. 16 (5th Cir.2007) (per curiam) (unpublished). Appellant did not file a motion for rehearing in this court, but in September 2007 he filed a Petition for Writ of Certiorari in the United States Supreme Court. On January 7, 2008, the United States Supreme Court entered its order therein, Rodriguez-Rodriguez v. United States, ___ U.S. ___, 128 S.Ct. 876, 169 L.Ed.2d 717 (2008), stating:

"Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)."

The case is now before us again pursuant to that order of the Supreme Court.

Pursuant to our February 25, 2008 letter directive the parties have filed letter briefs addressing what further action this court should take in light of the Supreme Court's above referenced order.¹

The PSR reflected an advisory guideline range of 57 to 71 months² and the district court rejected appellant's request for some wholly unspecified lower sentence, and sentenced him to 57 months' confinement (with credit for time served).

Discussion

In Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court held that the court of appeals, in reversing the district court's below guideline-range sentence, erred by failing to give "the requisite deference" to the district court's decision as required by the "deferential abuse-of-discretion standard of review," id. at 598, that "applies to appellate review of all sentencing decisions — whether inside or outside the Guidelines range." Id. at 596. The Court further held that "[i]f the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness", "id." (citing Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)),³ "[b]ut if the sentence is outside the Guidelines range, the [appellate] court may not apply a presumption of unreasonableness." Gall at 597.⁴

Gall went on to emphasize at some length the "[p]ractical considerations" favoring appellate deference to district court sentencing decisions, quoting with approval language from the amicus brief of the Federal Public and Community Defenders, including that "`[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case'" and "`gains insights not conveyed by the record.'" Id. (emphasis added). The Court also quoted from Rita, 127 S.Ct. at 2469, that "`[t]he sentencing judge has . . . greater familiarity with . . . the individual defendant before him,'" and from Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996), that "`[d]istrict courts have an institutional advantage over appellate courts . . . especially as they see so many more Guidelines sentences than appellate courts do.'" Gall, 128 S.Ct. at 597-98. We note in this latter connection that the district judge here, at the time of the instant sentencing, had served as such in the Laredo Division of the Southern District of Texas for more than twenty-five years. Gall further quotes language from Koon, 116 S.Ct. at 2053, emphasizing the federal sentencing tradition of considering "`every convicted person as an individual'" and every case as "`unique'", but Gall then immediately goes on to say "[t]he uniqueness of the individual case, however, does not change the deferential abuse-of-discretion standard of review that applies to all sentencing decisions." Id. at 598.

Gall also contains the following general statements as to the proper sentencing process and appellate review, viz:

". . . a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range . . . . the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. . . . He must make an individualized assessment based on the facts presented.

. . .

Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. at 596-97 (footnote omitted).

As directed by the Supreme Court, we have given further consideration to this sentencing appeal in light of Gall. Having done so, we remain convinced that affirmance of the sentence is called for and that Gall does not call for any other result.

The relevant differences between this case and Gall are vast. Here we affirmed a sentence within the advisory guideline range which had been correctly calculated by the district court, a sentence properly subjected on appeal to a nonbinding presumption of reasonableness, and we did not fail to give due deference to the district court's sentencing decision. By contrast, in Gall the court of appeals reversed the district court's out-of-guideline sentence, erroneously presuming it to be unreasonable for that reason and failing to accord the district court's sentence the deference it was due under the applicable abuse-of-discretion standard of review. Nothing of that kind happened here.

Appellant appears to argue that the district court committed some kind of unspecified significant procedural error. The court did not fail to calculate or improperly calculate the advisory guideline range, and properly used the Guidelines as the starting point and the initial benchmark. It did not treat the Guidelines as mandatory (indeed, the PSR specifically noted that they were advisory only and this was a year and half after Booker) or fail to consider the section 3553(a) factors or select a sentence based on clearly erroneous facts or fail to adequately explain the chosen sentence. The district court gave the parties an opportunity to argue for whatever sentence they deemed appropriate.

Apart from a brief, unsworn statement by the appellant, no evidence was presented at the sentencing hearing. The relevant facts are all contained in the PSR, as to which no relevant objection was made (see note 2, supra).

At the sentencing hearing the court first ascertained from appellant that he had gone over the PSR with his lawyer, was 39 years old, had been deported in 1999 and reentered in the summer of 2005. The court then stated "You say you had come to see your daughter?" to which appellant replied "yes."⁵ Then the court stated:

"You have a pretty bad record. You have an assault in 1990, attempted burglary of a habitation in 1994, possession of drugs in 1994, failure to identify in 1995, another burglary in 1997, and then a few other things that did not come to fruition. You've had several relationships with P[ ] and S[ ] and A[ ]. Different children along the way."⁶

Appellant responded "yes" and, after asked if he wanted to say anything further, responded as follows:

"I only came to see my daughter and to work for a while, and then I was going to go back. In Mexico, my family is waiting. My daughter was sick. My daughter has been suffering from bronchitis since she was a baby, and that's the reason why I came. I have not seen her for six years and I wanted to see her. If you could give me a small time and I'm not coming back."

The court responded "No. Your record is too bad for that. I can't give you a small time. Anything else?" Appellant responded "That is all."

Appellant's counsel then addressed the court on the objections to the PSR (see note 2, supra), which he conceded were foreclosed by this court's precedents and Almendarez-Torres, and which the court announced were overruled. Then appellant's counsel further argued:

". . . we would ask the Court to consider a downward variance in this case. The prior offenses for which — which drive the 16 level enhancement are 1994 and 1997, Your Honor. The Defendant, as he indicated, was here wanting to make one last ditch effort to see his — his daughter, who is very...