U.S. v. Atencio

• Decision Date: 17 January 2007
• Docket Number: No. 05-2279.,05-2279.
• Citation: 476 F.3d 1099
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harris ATENCIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

476 F.3d 1099

UNITED STATES of America, Plaintiff-Appellee, v. Harris ATENCIO, Defendant-Appellant.

No. 05-2279.

United States Court of Appeals, Tenth Circuit.

January 17, 2007.

Susan B. Dunleavy, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, NM, for the Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, Office of the United States Attorney, with him on the brief) Albuquerque, NM, for the Plaintiff-Appellee.

Before TACHA, Chief Judge, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

ORDER DENYING INITIAL EN BANC REVIEW

A member of the active court sua sponte called for a poll of the court to determine whether this case would be set for initial en banc review. Judges Tacha, Kelly, Briscoe, Murphy, Tymkovich and Gorsuch voted to grant initial en banc review. All other active members of the court voted to deny. A majority vote being necessary to order en banc consideration, initial en banc consideration is denied.

LUCERO, Circuit Judge.

Harris Atencio appeals his sentence of 84 months' imprisonment for assault resulting in serious bodily injury. Although the district court properly calculated the range under the United States Sentencing Guidelines at 37 to 46 months' imprisonment, it used its discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to impose a 38-month upward variance from that range based on considerations listed in 18 U.S.C. § 3553(a). It also imposed a special condition that Atencio register as a sex offender. Because the court failed to give notice of its intent to vary the sentence above the advisory range and did not adequately explain its reasons for the variance, we REVERSE and REMAND for resentencing. We also REVERSE the sex-offender registration requirement due to the district court's failure to provide advance notice of its consideration of this special condition and REMAND for reconsideration with notice.

I

In March 2005, Atencio was living with Richelle Montoya, with whom he had one child. According to investigative reports, Montoya decided to leave Atencio on March 10, 2005 because of his alcohol use, mistreatment of her children, and violent abusiveness toward her. One night, after Atencio and his cousin left the family home to go drinking and gambling, Montoya and several of her family members gathered up Montoya's belongings and took her three children to the home of her mother, Judy Montoya, in Torreon, New Mexico. Montoya left a note for Atencio informing him that she was ending the relationship and instructing him not to contact her or her family.

At approximately 4 a.m. the next morning, Atencio appeared at Judy Montoya's home with his cousin and a friend. Noticeably intoxicated, he banged loudly on a glass door, demanding to see Montoya. When no one answered, Atencio broke the door and entered the house carrying an axe he found outside. He was immediately confronted by Judy Montoya and Montoya's sister, Vivian Montoya. Atencio swung the axe toward Judy, but Vivian stepped between them and was struck on the right side of her head with the blade of the axe. Atencio's companions then restrained him and carried him back to their vehicle.

Vivian Montoya was rushed by emergency helicopter to a hospital in Santa Fe, New Mexico, where she was treated for massive head trauma, a fracture of the right orbital bone, an open fracture of the right temporal lobe, hemorrhaging of the right eye, and facial lacerations. These injuries, deemed life-threatening, required several surgeries and thirty-three stitches.

On April 15, 2005, Atencio was indicted on one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153. He pled guilty to this charge the same day. His Presentence Report ("PSR") assigned a base offense level of 14 for the crime. Four levels were added because Atencio had used a dangerous weapon, and five were added because the victim sustained serious bodily injury. Three levels were subtracted for Atencio's acceptance of responsibility for his criminal conduct. The PSR also placed Atencio in criminal history category II due to his prior conviction for sexual abuse of a minor in 1999. The adjusted offense level of 20, combined with the criminal history category of II, resulted in an advisory guideline range of 37 to 46 months' imprisonment. However, the PSR also noted that a criminal history category of II was possibly underrepresentative because it did not reflect a prior juvenile adjudication for aggravated battery, assault, and possession of a deadly weapon. It recommended that the court consider increasing the criminal history category by one level to account for the adjudication, which would yield an advisory guideline range of 41 to 51 months.

During the sentencing hearing held on August 15, 2005, the district court found that Atencio knowingly, voluntarily, and intelligently pled guilty to the information. It adopted the recommendations of the PSR, applying an offense level of 20 and a criminal history category of II to calculate an advisory Guidelines range of 37 to 46 months' imprisonment. Rather than assigning a sentence within this range, however, the court decided to impose a sentence "independent of the United States Sentencing Guidelines." After considering the factors set forth in § 3553(a), it sentenced Atencio to 84 months' imprisonment, a 38-month upward variance from the Guidelines range.¹ Prior to the hearing, the court gave no notice to either party of its intention to vary upward from the advisory range of 37 to 46 months.

At the hearing, the court focused on two factors to support the variance: (1) Atencio's criminal history, including his abuse of women; and (2) the violence and seriousness of Atencio's crime.² In finding that Atencio regularly abused women, the district court purportedly adopted the statements of both the PSR and the Addendum. The Report and Addendum, however, contradicted each other; whereas the Report characterized Atencio's relationship with Montoya as one of repeated abuse, the Addendum filed by Atencio stated that "Mr. Atencio admitted to striking, or pushing Richelle one time, and not to a pattern of beating her as indicated." At the outset of the sentencing hearing, the court asked if the parties had any objections to the factual materials in the PSR, and whether there was any need for an evidentiary hearing to resolve disputed facts. Neither Atencio nor the Government made any objections or moved for an evidentiary hearing. Despite the contradictory statements, the court proceeded to adopt the findings of both the Report and the Addendum in determining that Atencio's criminal history score did not account for his regular abuse of women. It also repeatedly stressed Atencio's prior sexual abuse conviction, but explicitly stated that it did not rely on his prior juvenile adjudication in varying upward.

In addition to sentencing Atencio to 84 months' imprisonment, the court imposed a sex-offender registration requirement as a condition of supervised release. It did not notify Atencio that it was contemplating this requirement.

Atencio now appeals his sentence of 84 months' imprisonment and the sex-offender registration requirement. This court has jurisdiction to consider his appeal under 18 U.S.C. § 3742(a).

II

Post-Booker, we review sentencing decisions for reasonableness, which has both procedural and substantive components. Cage, 451 F.3d at 591 (10th Cir.2006). In setting a procedurally reasonable sentence, a district court must calculate the proper advisory Guidelines range and apply the factors set forth in § 3553(a). See id.; United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006). It must also afford defendants their rights under the Federal Rules of Criminal Procedure. See Dozier, 444 F.3d at 1217-18. A substantively reasonable sentence ultimately reflects the gravity of the crime and the § 3553(a) factors as applied to the case. Cage, 451 F.3d at 594.

Because we reverse on procedural reasonableness, we do not reach the substantive reasonableness of Atencio's sentence. Atencio attacks two procedural elements of the variance imposed at sentencing: (1) the court's failure to provide notice of its intention to impose an upward variance, and (2) the adequacy of its explanation for varying based on § 3553(a) factors.

A

In 2001, Congress amended Rule 32 of the Federal Rules of Criminal Procedure to include part (h), which affords parties the right to advance notice of a district court's intent to depart from the applicable Guidelines range, and of the grounds for such departure.³ This rule codifies the Supreme Court's decision in Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), holding that Rule 32 — which afforded defendants the opportunity to comment on sentencing matters — implicitly required such notice.⁴ The Court reasoned that failure to provide notice would be "inconsistent with Rule 32's purpose of promoting focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences," id. at 137, 111 S.Ct. 2182, and expressed concern that:

At best, under the Government's rendering of Rule 32 [to not require notice], parties will address possible sua sponte departures in a random and wasteful way by trying to anticipate and negate every conceivable ground on which the district court might choose to depart on its own initiative. At worst, and more likely, the parties will not even try to anticipate such a development; where neither the presentence report nor the attorney for the Government has suggested a ground for upward departure, defense counsel might be reluctant to suggest such a possibility to the district court, even for the purpose of rebutting it. In every case in which the...