759 F.3d 1149 (10th Cir. 2014), 13-2021, United States v. Lente

Docket Nº:13-2021
Citation:759 F.3d 1149
Opinion Judge:LUCERO, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff--Appellee, v. CAMILLE SUZANNE LENTE, Defendant--Appellant
Attorney:Benjamin A. Gonzles, Assistant Federal Public Defender, Office of the Federal Public Defender, District of New Mexico, Albuquerque, New Mexico for the Defendant-Appellant. Laura Fashing, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney with her on the briefs), ...
Judge Panel:Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.
Case Date:July 18, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1149

759 F.3d 1149 (10th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff--Appellee,

v.

CAMILLE SUZANNE LENTE, Defendant--Appellant

No. 13-2021

United States Court of Appeals, Tenth Circuit

July 18, 2014

Page 1150

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of New Mexico. (D.C. No. 1:05-CR-02770-WJ-1).

Benjamin A. Gonzles, Assistant Federal Public Defender, Office of the Federal Public Defender, District of New Mexico, Albuquerque, New Mexico for the Defendant-Appellant.

Laura Fashing, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney with her on the briefs), Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico for the Plaintiff-Appellee.

Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.

OPINION

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LUCERO, Circuit Judge.

Camille Lente appeals a sentence of 192 months' imprisonment, well above her advisory Guidelines range of 46 to 57 months, for three counts of involuntary manslaughter and one count of assault resulting in serious bodily injury. The district court relied on several specific factual circumstances in fashioning its sentence, including Lente's excessive recklessness, her underrepresented criminal history, and her post-conviction conduct. It expressed disagreement with the Guidelines' treatment of multiple-fatality involuntary manslaughter cases and devoted significant attention to other federal sentences involving similar conduct as part of its duty to avoid unwarranted sentencing disparities. The district court's determinations were fully supported by the extensive record created by the parties. We conclude that the district court thoroughly considered the relevant sentencing factors and adequately explained the basis of its decision to vary substantially upward, and that the sentence imposed was reasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

A

This is the third appeal of Lente's sentence. Following a drunk-driving crash on

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the Isleta Pueblo in New Mexico, in which three people were killed and another severely injured, Lente pled guilty to three counts of involuntary manslaughter and one count of assault resulting in serious bodily injury. According to the pre-sentence investigation report (" PSR" ), her advisory Guidelines range was 46 to 57 months' imprisonment. However, the district court varied upward and imposed a sentence of 216 months.

A divided panel of this court vacated Lente's sentence and remanded to a different judge for resentencing. United States v. Lente, 323 F.App'x 698, 699 (10th Cir. 2009) (unpublished) (per curiam) (" Lente I" ). Judge Hartz concurred. He concluded that the government breached the plea agreement by stipulating that Lente was " entitled to a guidelines reduction in offense level for acceptance of responsibility" but subsequently " endors[ing] a presentence-report recommendation that the court vary upward because of the defendant's failure to accept responsibility." Id. at 699 (Hartz, J., concurring). Judge Holmes also concurred. After noting seven bases identified by the district court for its variance, he stated that although " the district court's reasons might well justify some upward variance, I simply cannot conclude on this record that they justify the major variance that Ms. Lente received." Id. at 705-06 (Holmes, J., concurring) (emphasis omitted). Judge McWilliams would have affirmed the sentence. Id. at 699 (McWilliams, J., dissenting).

On remand, both sides submitted additional evidence. The district court also took testimony and heard victim impact statements during a resentencing hearing. In a written order, the district court concluded that a sentence of 192 months' imprisonment was appropriate. It cited several factors that contributed to its upward variance: (1) the Guidelines did not adequately reflect Lente's criminal history; (2) the Guidelines did not sufficiently account for the multiple deaths caused by Lente; and (3) Lente exhibited extreme recklessness, as evidenced by her blood alcohol content (" BAC" ) reading after the crash, her failure to ever obtain a driver's license, and her decision to drive drunk in a non-remote area. It concluded that a within-Guidelines sentence would not adequately reflect the seriousness of the offense, deter Lente from future criminal conduct, or protect the public. After Lente submitted objections, the district court entered an amended order with minor revisions.

We reversed and remanded a second time. United States v. Lente, 647 F.3d 1021, 1024 (10th Cir. 2011) (" Lente II" ). Although we expressly declined to reach the issue of substantive reasonableness, we concluded that the district court had procedurally erred by failing to address Lente's argument that the sentence would create unwarranted disparities. Id. at 1032-39. We also concluded that the district court committed procedural error by failing to address Lente's contention that the circumstances prior to the crash mitigated her degree of recklessness, id. at 1036-37, noting that Lente " introduced undisputed evidence about pre-accident developments, including that her mother gave her the keys to her mother's car and told her to drive," id. at 1036. We stated, however, that this latter procedural error " may have been harmless." Id. at 1038.1

The parties once again supplemented the record with extensive additional evidence.

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At an evidentiary hearing, the court heard competing expert testimony. It re-imposed a sentence of 192 months.

B

The district court described the factual background of the crash as follows:

On December 2, 2005, after consuming excessive amounts of alcohol, Defendant drove her mother's Chevrolet Suburban on New Mexico State Road 47 within the exterior boundaries of the Isleta Indian Reservation in New Mexico. Anthony Tewahaftewa, a friend of Defendant's, was riding in the front passenger seat. At approximately 10:40 p.m., Defendant, who was traveling northbound, swerved across the center line of the highway and crossed into the southbound traffic lane. She collided with a Ford Ranger pickup truck driven by Jessica Murillo. Ms. Murillo was driving her 12-year-old brother, Andres Murillo, and her 17-year-old boyfriend, Joshua Romero, back from Albuquerque where the three had gone to see a movie. Anthony Tewahaftewa, Andres Murillo and Joshua Romero all died immediately on impact. The autopsy reports for the three deceased victims indicate that all three died of severe, multiple blunt force injuries sustained during the crash. Jessica Murillo survived, but sustained fractures to her right femur, right shoulder, and right ankle, and received numerous facial lacerations. In the intervening months, Ms. Murillo underwent many hours of physical therapy just so she could walk again. Defendant suffered two broken ankles and a dislocated hip. Immediately after the accident, both Jessica Murillo and Defendant were transported to the University of New Mexico Hospital.

Two hours after the accident, hospital workers took a blood sample from Defendant. The blood sample test results showed a blood alcohol level of 0.21--over two and one-half times the New Mexico legal limit of [0.08]. In addition, the test revealed that Defendant had marijuana present in her system. In subsequent interviews with agents from the Bureau of Indian Affairs, Defendant admitted to drinking between 13 and 19 beers before the crash. Finally, the agents discovered that Defendant had never held a valid New Mexico drivers' license and that the [Suburban] she was driving was not insured.

After discussing its sentencing discretion, identifying the sentencing factors listed in 18 U.S.C. § 3553(a), and accurately noting the undisputed Guidelines range of 46 to 57 months, the court held that a within-Guidelines sentence would be " woefully inadequate." Incorporating the legal analysis from its prior order, the court stated that it would focus primarily on the procedural errors identified by this court in Lente II.

First, the district court ruled that the Guidelines did not adequately account for Lente's prior criminal history. It characterized Lente as showing " a repeated willingness to abuse alcohol and engage in violent and/or reckless behavior." However, Lente's prior convictions did not generate criminal history points under the Guidelines because they occurred in tribal court.

Second, the district court concluded that the Guidelines did not adequately account for the multiple fatalities involved in the crash, describing this as perhaps the most important factor in its decision to vary upward. As the court explained in its prior order, the Guidelines assessed only one offense level increase per victim, resulting in approximately five to six month increases in the advisory Guidelines range for each. See U.S.S.G. § 3D1.4 (describing the formula for grouping multiple counts). The court stated that " the Guidelines may be adequate" for involuntary

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manslaughter cases with a single victim or cases in which the victims " share some minor culpability," but in cases with " multiple victims who are entirely blameless, and sadly just happened to be in the wrong place at the wrong time," the Guidelines were insufficient.

Third, the court ruled that Lente had been extraordinarily reckless. It cited her BAC of .21, measured approximately two hours after the crash. Although the court heard competing expert testimony as to whether Lente's BAC at the time of the crash was higher or lower than .21, it declined to rule on that issue, stating instead that its finding of extreme recklessness rested on the fact that Lente chose to drive after consuming enough alcohol to reach a .21 BAC. It also noted that Lente had never obtained a driver's license, and that she chose to drive drunk on State Road 47, which was...

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