U.S. v. Angel-Guzman

• Decision Date: 30 October 2007
• Docket Number: No. 06-4303.,06-4303.
• Citation: 506 F.3d 1007
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gustavo ANGEL-GUZMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

506 F.3d 1007

UNITED STATES of America, Plaintiff-Appellee, v. Gustavo ANGEL-GUZMAN, Defendant-Appellant.

No. 06-4303.

United States Court of Appeals, Tenth Circuit.

October 30, 2007.

Stephen J. Sorensen, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Kent R. Hart (Steven B. Killpack with him on the brief), Utah Federal Defender's Office, Salt Lake City, Utah, for Defendant-Appellant.

Before HARTZ, McCONNELL and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

Defendant-Appellant Gustavo Angel-Guzman appeals his sentence which the district court set at the low end of the range recommended by the United States Sentencing Guidelines. Because this is the first appeal challenging the substantive unreasonableness of a within-Guidelines sentence to be orally argued in this Circuit since the Supreme Court's decision in Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), we take this occasion to discuss our understanding of the current state of the law applicable to such challenges. Cf. United States v. Garcia-Lara, 499 F.3d 1133, 1135-38 (10th Cir.2007) (discussing post-Rita appellate review of below-Guidelines sentence).

I. APPELLANT'S OFFENSE AND SENTENCING

On Nov. 21, 2006, Gustavo Angel-Guzman pleaded guilty to knowingly transporting eight illegal aliens within the United States, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II). In his plea agreement, Mr. Angel-Guzman acknowledged that he "knew each of them had entered the United States illegally and . . . knew that at least some of them would be required to pay money when they arrived at their final destination as a smuggling fee." R. Vol. I, at 4. The total offense level appropriate for illegally transporting between six and twenty-four illegal aliens for private financial gain is 15. U.S.S.G. §§ 2L1.1.

The Probation Office prepared a presentence report (PSR) detailing the defendant's six prior misdemeanor convictions, which included four alcohol-related offenses, assault with a deadly weapon, and infliction of corporal injury on a spouse. The resulting criminal history score of 11 included two points for committing offenses while on parole and one point for committing offenses less than two years after being released from confinement. This put Mr. Angel-Guzman in criminal history category V. The Guidelines range thus calculated was 30 to 37 months' imprisonment.

At the sentencing hearing, Mr. Angel-Guzman requested a downward departure, claiming that the PSR exaggerated the seriousness of his criminal history. He argued that his "criminal history is not prolific," and that he does not merit treatment "as if he was one of the worst of the worst." R. Vol. I, Doc. 4, at 2. He claimed that his assault charge was a result of throwing a bottle in self-defense, and that his spousal injury conviction stemmed from an incident in which he pulled his wife's hair. The government, in response noted both the seriousness of the underlying crimes and the fact that Mr. Angel-Guzman had, despite his multiple arrests, thus far avoided deportation.

The district court sentenced the defendant to 30 months' incarceration, the low end of the applicable Guidelines range. It offered that "the defendant has been somewhat—I won't say lucky—fortunate in that his record is not worse, given the nature of the offenses, and I don't think that these alcohol related incidents involving driving should be diminished in terms of the danger they impose to the community." R. Vol. III, at 10.

Mr. Angel-Guzman timely appealed his sentence, raising both procedural and substantive claims.

II. APPELLATE REVIEW

A. Appellate review standards under Booker

In United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a majority of the Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." This rendered many applications of the Federal Sentencing Guidelines, as enacted by Congress in the Sentencing Reform Act of 1986, unconstitutional. A differently-composed majority of the Court fashioned a remedy that would cure the constitutional problem by making the Guidelines non-mandatory, but at the same time would continue to serve "Congress' basic statutory goal" of "achiev[ing] greater uniformity in sentencing." Id. at 255-56, 125 S.Ct. 738. The Court repeatedly described uniformity in sentencing as Congress's central goal in enacting the Sentencing Reform Act, see id. at 246, 250, 253, 255, 256, 263, 264, 125 S.Ct. 738, and fashioned its remedy with that goal primarily in mind.

An important part of the Court's remedy was to retain appellate review of sentences. Because appellate courts could no longer review sentences for conformity to the Guidelines, however, the Court had to fashion a new appellate standard of review, which it termed "reasonableness." The Court did not provide a detailed analysis of what is entailed by this "reasonableness" standard, but it noted that 18 U.S.C. § 3553(a) "sets forth numerous factors that guide sentencing" and instructed that those factors "will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Id. at 261, 125 S.Ct. 738. The Court stated that appellate review under this "reasonableness" standard "would tend to iron out sentencing differences." Id. at 263, 125 S.Ct. 738. "We cannot and do not claim that use of a `reasonableness' standard will provide the uniformity that Congress originally sought to secure," the Court commented, id., but appellate review for "reasonableness" would "nonetheless continue to move sentencing in Congress' preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary." Id. at 264-65, 125 S.Ct. 738.

This raised the question—still unanswered—of how much discretion the district courts had to retain to solve the Sixth Amendment problem. To the extent that appellate courts police divergence from the Guidelines under the rubric of reasonableness, the system tends toward replicating, albeit in softer form, the mandatory character of the system that five Justices held unconstitutional in Booker.¹ But if district courts are essentially free to sentence at any point within the statutory range, without substantive review either of their reasons for so doing or the extent of their variance, the congressional goal of uniformity which the Booker remedial decision sought to preserve would be seriously impaired.

Many courts of appeals, including this one, responded to this challenge by adopting a rebuttable presumption that properly calculated sentences within the recommended Guidelines range are substantively reasonable, while reviewing non-Guidelines sentences on a sliding scale, requiring more compelling justification for sentences the farther they diverge from the advisory guidelines range. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (per curiam); United States v. Valtierra-Rojas, 468 F.3d 1235, 1239 (10th Cir.2006). This approach was justified on the theory that it recognized the discretion of district courts to sentence outside the Guidelines for sufficient reasons, while continuing to reduce unwarranted sentencing disparity by reference to the only available benchmark for national practice, the Sentencing Guidelines. Critics, however, charged that the combination of a presumption in favor of within-Guidelines sentences and an increasingly rigorous standard of review in proportion to the degree of variance from the Guidelines range rendered the Guidelines "advisory" in name only. See, e.g., United States v. Atencio, 476 F.3d 1099, 1108-12 (10th Cir.2007) (Murphy, J., dissenting from denial of en banc consideration).

Last Term, the Supreme Court appeared poised to resolve the apparent tension between the objectives of discretion and uniformity. It granted certiorari in two cases, one involving a within-Guidelines sentence and one a below-Guidelines sentence.² These cases offered three logical possibilities for resolving the tension: (1) upholding the system of constrained discretion created by most Courts of Appeals; (2) making the system even more discretionary, at the expense of uniformity, by reducing the rigor of appellate review or eliminating appellate review for substantive reasonableness altogether; or (3) returning to a system of mandatory Guidelines, stripped of enhancements based on judge-found facts. In the within-Guidelines case, Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), the Court affirmed the legitimacy of the appellate presumption of substantive reasonableness for properly calculated within-Guidelines sentences. Unfortunately, due to the untimely death of the criminal defendant in the below-Guidelines case, Claiborne v. United States, No. 06-5618, that case became moot. ___ U.S. ___, 127 S.Ct. 2245, 167 L.Ed.2d 1080 (2007) (per curiam). The lower courts were therefore left to ponder the Court's response to only one side of the balance.

After Claiborne's death, the Supreme Court granted certiorari, and has now heard oral argument, in two new cases involving non-Guidelines sentences, Gall v. United States, ___ U.S. ___, 127 S.Ct. 2933, 168 L.Ed.2d 261 (2007) (mem.), and Kimbrough v. United States, ___ U.S. ___, 127 S.Ct. 2933, 168 L.Ed.2d 261 (2007) (mem.). In Gall, the defendant challenges the sliding-scale approach to appellate review of non-Guidelines sentences, while in Kimbrough the government challenges the discretion of district courts to vary from the Guidelines based on disagreement with specific policy judgments made by Congress....