647 F.3d 1021 (10th Cir. 2011), 10-2194, United States v. Lente

Docket Nº:10-2194.
Citation:647 F.3d 1021
Opinion Judge:MATHESON, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Camille Suzanne LENTE, Defendant-Appellant.
Attorney:Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque, NM, for Appellant. Andrea W. Hattan, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney with her on the brief), Las Cruces, NM, for Appellee.
Judge Panel:Before GORSUCH, HOLLOWAY, and MATHESON, Circuit Judges.
Case Date:July 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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647 F.3d 1021 (10th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Camille Suzanne LENTE, Defendant-Appellant.

No. 10-2194.

United States Court of Appeals, Tenth Circuit.

July 29, 2011

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[Copyrighted Material Omitted]

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Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque, NM, for Appellant.

Andrea W. Hattan, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney with her on the brief), Las Cruces, NM, for Appellee.

Before GORSUCH, HOLLOWAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Camille Suzanne Lente challenges her sentence as procedurally and substantively unreasonable. Ms. Lente killed three young men and seriously injured a young woman in a car accident that occurred when she was driving while intoxicated. She entered a guilty plea to three counts of involuntary manslaughter and one count of assault resulting in serious bodily injury. 1 She was originally sentenced to 216 months (18 years) in prison, a significant upward variance from her proposed Guidelines range of 46 to 57 months' imprisonment. A divided panel of this court vacated her sentence and remanded for resentencing in a per curiam, unpublished decision with no majority opinion. See United States v. Lente, 323 Fed.Appx. 698, 699 (10th Cir.2009).2 On resentencing, a

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different district court judge sentenced Ms. Lente to 192 months (16 years) in prison. She now appeals from her resentencing. We conclude the district court's failure to address Ms. Lente's argument about the need to avoid unwarranted sentencing disparities constitutes reversible procedural error. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(3), we reverse and remand.

I. BACKGROUND

A. Factual Background

The following factual background is taken from Judge Holmes's opinion in Ms. Lente's first appeal.

On the night of December 2, 2005, after consuming between 13 and 19 beers, Ms. Lente drove her mother's Chevrolet Suburban on the Isleta Indian Reservation, which is located in New Mexico. At approximately 10:40 p.m., her Suburban, which was northbound, crossed the center line of the highway into the southbound traffic lane, causing a head-on collision with a Ford Ranger truck, driven by Jessica Murillo. Ms. Lente's passenger in the Suburban, Anthony Tewahaftewa, and the two passengers in the Ford Ranger, Andres Murillo and Joshua Romero, were declared dead at the scene. Ms. Murillo survived, but sustained fractures to her right femur, right shoulder, and right ankle, and received numerous facial lacerations. Ms. Lente suffered two broken ankles and a dislocated hip. Ms. Murillo and Ms. Lente were transported to a hospital.... Two hours after the accident, a blood sample was taken from Ms. Lente. Ms. Lente's blood alcohol level (" BAL" ) was 0.21-over two times the New Mexico legal limit of .08-and marijuana was present in her system.

Lente, 323 Fed.Appx. at 699-700 (Holmes, J., concurring). Ms. Lente was twenty-two years old on the night of the accident.

At her resentencing, Ms. Lente introduced the following undisputed evidence about the circumstances leading up to the accident. According to interviews taken after the accident, Ms. Lente and Mr. Tewahaftewa had been drinking together that day. They ended up at the home of Elaine Jojola where she and Ms. Lente's mother, Nancy Abeita, had been drinking. According to Ms. Jojola, Mr. Tewahaftewa was trying to kiss and hug her and was boisterous and talking about gangs. She disliked his behavior. She called his sister to come for him, but the sister refused. Ms. Jojola told Mr. Tewahaftewa to leave, but he refused. Ms. Abeita gave Ms. Lente the keys to her car and told her daughter to drive Mr. Tewahaftewa home.

B. Procedural Background

We present the procedural history in some detail as a necessary predicate to the analysis of procedural error.

Ms. Lente was charged with three counts of involuntary manslaughter in violation of 18 U.S.C. §§ 13, 1153, and 1112, and one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6). She entered into a plea agreement and pleaded guilty to all four counts in the indictment. The government stipulated that Ms. Lente had accepted responsibility, which entitled her to a three-level reduction in her base offense level.

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1. The First Sentencing

The Presentence Report (" PSR" ) computed an advisory Guidelines range of 46 to 57 months. For each of the three involuntary manslaughter convictions, the PSR assigned a base offense level of 22 under U.S.S.G. § 2A1.4. Twenty-two is the highest base offense level under that provision and is reserved for those instances in which " the offense involved the reckless operation of a means of transportation." U.S.S.G. § 2A1.4(a)(2)(B). The assault carried a base level of 14, which was adjusted by six levels to a level of 20 based on the severity of Ms. Murillo's injuries. There were no further adjustments.

The PSR then assessed an additional four-level adjustment for Ms. Lente's multiple victims. See U.S.S.G. § 3D1.4. The Guidelines instruct that this four-level adjustment is added on to the highest offense level (22 in this case), which resulted in an offense level of 26. The PSR computed a three-level reduction for acceptance of responsibility, resulting in a total offense level of 23. The PSR placed Ms. Lente in a criminal history Category I. Ms. Lente's Guidelines range was 46 to 57 months.

The PSR found no grounds for a departure, stating: " After assessing the defendant's criminal history and social history, she does not appear to have any circumstances that would take her away from the heartland of cases of similarly situated defendants." R. Vol. 2 at 29 ¶ 101. The PSR did, however, recommend an upward variance. A Guidelines sentence, it stated, would not reflect the seriousness of Ms. Lente's crimes, provide just punishment, promote respect for the law, or deter Ms. Lente from committing further criminal acts.

The government filed a pre-sentencing motion for an upward departure or an upward variance, concurring with the PSR's recommendations. The district court sentenced Ms. Lente to three consecutive 72-month sentences for the three counts of involuntary manslaughter, which was the maximum sentence Ms. Lente could receive for these counts. The court also imposed a concurrent term of 120 months for the assault count. The final sentence was 216 months' imprisonment (18 years). Ms. Lente appealed. This court, with no majority opinion, vacated her sentence and remanded for resentencing by a different district court judge.

2. Briefs on Remand

Ms. Lente renewed and supplemented her objections to the PSR and asked for a sentence within the Guidelines range. She argued that " [t]he need to avoid unwarranted sentencing disparities among defendants with similar records convicted of similar crimes, a required consideration under 18 U.S.C. § 3553(a)(6), supports a sentence within the guideline range." R. Vol. 1 at 151. She summarized her review of federal sentencing practices in manslaughter cases from 2001 to 2009. Ms. Lente noted that her " previous sentence of 216 months was grossly above other manslaughter sentences," based on examining other above-Guidelines sentences for manslaughter during the nine-year period. Id. at 152. Ms. Lente also reviewed sentences from other cases with similar offenders and similar offenses, noting that all of the defendants in those cases received sentences much lower than her sentence. When there was an upward departure or variance, it was moderate compared to the increase urged in her case. She concluded by arguing that the

history and pattern of sentencing for manslaughter offenses support a conclusion that the Sentencing Commission formulated reasonable guidelines for the offense that satisfy the § 3553 goals in the overwhelming majority of cases.

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Thus, sentencing within those guidelines meets the need to avoid unwarranted sentencing disparities among defendants with similar records and convicted of similar offenses.

Id. at 155-56.

The government argued that the § 3553(a) factors " [o]verwhelmingly [w]arrant [a]n [u]pward [v]ariance." Id. at 207. The government analyzed all of the § 3553(a) factors, but focused primarily on the nature and circumstances of the offense, see § 3553(a)(1), emphasizing that Ms. Lente consumed an excessive amount of alcohol, drove without a driver's license, had a high blood alcohol content (" BAC" ) of .21, and killed three people, including a twelve-year-old boy.

With respect to § 3553(a)(6) and the need to avoid unwarranted sentencing disparities, the government argued that Ms. Lente's conduct " caused so much destruction and was so outrageous that [her] case simply does not compare to other drunk-driving related fatalities." Id. at 213. The government reiterated that Ms. Lente had a high BAC and that she killed three people, which is " much more than the ‘ typical’ involuntary manslaughter case." Id. at 214. The government concluded that " to sentence [Ms. Lente] significantly above the guideline range and instead up towards the statutory maximum allowable by law poses little risk of a disparity with other like-criminals, as [Ms. Lente] is wholly in a category of her own." Id.

3. Re-sentencing Hearing

On July 22, 2010, the court heard further testimony and argument by the parties. The government said it did not want to " rehash all of the argument that both sides have already presented," but it did want to " provide [the court] with some additional points and ... tools [to] use in crafting the appropriate decision in this case." R. Vol. 3 at 91. It started by highlighting the § 3553(a)(6) sentencing-disparity issue, noting that it was " one particular factor that [the court] must consider," and asserting that...

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