U.S.A v. Evans-martinez

• Decision Date: 08 July 2010
• Docket Number: No. 09-10098.,09-10098.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Jesus Norberto EVANS-MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

611 F.3d 635

UNITED STATES of America, Plaintiff-Appellee,v.Jesus Norberto EVANS-MARTINEZ, Defendant-Appellant.

No. 09-10098.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 11, 2010.

Filed July 8, 2010.

Peter C. Wolff, Jr., Federal Public Defender, and Alexander Silvert, First Assistant Federal Defender, District of Hawaii, Honolulu, HI, for the defendant-appellant.

Edward H. Kubo, Jr., United States Attorney, and Lawrence L. Tong, Assistant U.S. Attorney, District of Hawaii, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. 1:03-cr-00187-DAE-1.

Before JEROME FARRIS, DOROTHY W. NELSON and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge:

This case involves a criminal defendant's claim that the district court committed various procedural errors when it imposed concurrent sentences of 160 months' imprisonment after the defendant pleaded guilty to three counts: (1) sexual abuse of a child, (2) sexual exploitation of children, and (3) witness tampering. The defendant also claims the sentences imposed by the district court were unreasonably harsh, amounting to substantive unreasonability.

When a defendant has been convicted of three counts, one of which carried a Congressionally mandated minimum sentence, one might think the logical place to start reckoning his sentence under the Sentencing Guidelines would be with that minimum sentence. It could become the advisory Guidelines sentence from which-after taking into consideration relevant aggravating and mitigating factors-all three counts could be sentenced.

Alas, such logic is overcome by the precise language of the Sentencing Guidelines and the possibility that the conviction on the count carrying the mandatory minimum sentence could be vacated or reversed, putting in doubt any sentence based on it.

Under the Sentencing Guidelines, a mandatory minimum sentence becomes the starting point for any count that carries a mandatory minimum sentence higher than what would otherwise be the Guidelines sentencing range. All other counts, however, are sentenced based on the Guidelines sentencing range, regardless the mandatory minimum sentences that apply to other counts.

Here, perhaps understandably, the district court erred when it used the mandatory minimum sentence for one count as the starting point for sentencing all counts. Thus, to ensure the procedural requirements of the Sentencing Guidelines are properly followed, we must vacate the sentences imposed on counts other than the one that carried a mandatory minimum sentence and remand them, once again, for sentencing by the district court.

The sentence the district court imposed on the count that carried a mandatory minimum sentence was properly calculated. In a separate memorandum disposition filed concurrently with this opinion, we hold the sentence imposed on that count is not substantively unreasonable. It is affirmed.

I. Background¹

Jesus Norberto Evans-Martinez (“Evans-Martinez”) was an active duty member of the United States Army, stationed in Hawaii. He lived at Schofield Barracks, which is within the special maritime and territorial jurisdiction of the United States.

Evans-Martinez was indicted on charges of (1) sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a), for the sexual abuse of a minor in his custody; (2) sexual exploitation of children, in violation of 18 U.S.C. § 2251(c), for sending e-mails that advertised the creation of his child pornography-related e-group; and (3) witness tampering, in violation of 18 U.S.C. § 1512(b), for asking his wife to destroy evidence. He entered a plea agreement with the government in which he agreed to plead guilty to all three counts. The government agreed not to seek additional charges against Evans-Martinez that related to sexual abuse of minors or to child pornography. The agreement provided that the government would inform the district court of any aggravating or mitigating evidence that would be relevant to sentencing.

At the sentencing hearing that gave rise to this appeal,² the district court noted that the Guidelines sentencing range for all three counts was 120 months' imprisonment-the statutory minimum sentence for sexual exploitation of children (Count 2). The government moved for a downward departure and recommended concurrent sentences of 96 months' imprisonment on all three counts. Defense counsel argued the district court should depart downward to 60 months' imprisonment and use that as the starting point for any upward variance based on the 18 U.S.C. § 3553(a) sentencing factors.

The district court granted the government's motion for a downward departure. However, the district court did not announce the extent of the departure or calculate a new Guidelines sentencing range. Instead, the district court proceeded to consider the § 3553(a) factors. The district judge explained that, while he had presided over many child pornography cases in his 20 years on the bench, he had “never seen one with some of the compelling, disturbing and egregious circumstances that exist in this case.” He identified numerous aggravating factors to support the imposition of an above-Guidelines sentence. ³ The district judge also considered the assistance Evans-Martinez provided to authorities, which helped to convict seven others on child pornography charges and the steps Evans-Martinez took toward rehabilitation while he was in prison. The district court imposed concurrent sentences of 160 months' imprisonment for each of the three counts.

II. Discussion

We review sentences imposed by district courts under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We must first “ensure that the district court committed no significant procedural error” when it sentenced Evans-Martinez. Id. If the district court committed no significant procedural error, we must “consider the substantive reasonableness of the sentence imposed.” Id.

A. Procedural Error1. Calculation of Guidelines Sentencing Range

The first question we must answer is whether we are required to review the sentence imposed by the district court for procedural errors beyond those raised by the parties. “Yes,” holds our recent decision in United States v. Ressam, 593 F.3d 1095 (9th Cir.2010). As we explained in Ressam, “appellate courts have a sua sponte duty to undertake a review for procedural error even where ... no such error is expressly asserted by the [parties].” Id. at 1115. In Ressam, the government appealed the sentence imposed by the district court on the ground the sentence was unreasonably lenient. Id. at 1114. In its briefs, the government asserted that the “sole issue presented” was whether the defendant's sentence was “substantively unreasonable.” Id. (citation omitted). Despite the government's position that procedural error was not at issue on appeal, we proceeded to review the sentencing decision for procedural error. Id. at 1122-23. Thus, where a party challenges the substantive reasonableness of a sentence on appeal, we “must review [the] sentencing decision[ ] for procedural error, even where no claim of procedural error is raised.” Id. at 1116.

We begin by reviewing the district court's calculation of the Guidelines sentencing range applicable to all three counts:

First, the district court was required to group closely related counts. U.S.S.G. § 3D1.1(a)(1). The district court did not group sexual abuse of a minor (Count 1) and sexual exploitation of children (Count 2) because those counts did not “involve substantially the same harm”-the counts involved different victims. See id. § 3D1.2. Count 1 involved Evans-Martinez's sexual abuse of a minor in his custody. Count 2 involved Evans-Martinez's sending an e-mail in which he advertised the creation of a child-pornography related e-group that contained photographs and videos of other unidentified children. The district court did group sexual exploitation of children (Count 2) with witness tampering (Count 3) because the witness tampering obstructed the investigation of the sexual exploitation offense. See id. § 3C1.1 cmt. n. 8. We refer to the two groups as Group A, which includes only Count 1, and Group B, which includes Counts 2 and 3.

Second, the district court was required to calculate an offense level for each group (the “grouped offense level”). Id. § 3D1.1(a)(2). The grouped offense level is “the highest offense level of the counts in the Group.” Id. § 3D1.3(a). The offense level for sexual abuse of a minor (Count 1) is 20 where, as here, the minor was in the defendant's custody at the time of the abuse. Id. § 2A3.2.⁴ Because Count 1 was the only count in Group A, Group A's grouped offense level was 20. The offense level for sexual exploitation of children (Count 2) is 17.⁵ Id. § 2G2.2. Witness tampering (Count 3) increases by two levels the offense level of the count with which it is grouped. Id. § 3C1.1. Thus, the grouped offense level for Group B is 19-an offense level of 17 for sexual exploitation of children (Count 2), plus a two-level increase for witness tampering (Count 3).

Third, the district court was required to calculate the “combined offense level applicable to all Groups taken together.” Id. § 3D1.1(a)(3). The starting point is the highest grouped offense level. Id. § 3D1.4. Here, Group A had the highest grouped offense level: 20. The table in section 3D1.4 requires a two-level increase where there are two groups that have grouped offense levels within four levels of one another. Here, a two-level increase applies because the grouped offense levels for Group A(20) and Group B(19) are within four levels of one another. Thus, the combined offense level is 22.

Fourth, to calculate the “total offense level,” the district court was required to adjust Evans-Martinez's combined offense level based on acceptance of...