U.S. v. A.B.

• Decision Date: 24 June 2008
• Docket Number: No. 06-2164.,06-2164.
• Citation: 529 F.3d 1275
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. A.B.,<SMALL><SUP>*</SUP></SMALL> Defendant-Appellant.

529 F.3d 1275

UNITED STATES of America, Plaintiff-Appellee, v. A.B.,^* Defendant-Appellant.

No. 06-2164.

United States Court of Appeals, Tenth Circuit.

June 24, 2008.

Joseph W. Gandert, Assistant Federal Public Defender (John Van Butcher, Assistant Federal Public Defender, on the brief), Albuquerque, NM, for Defendant-Appellant.

Sharon R. Kimball, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before HENRY, Chief Judge, HARTZ and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

A.B. pleaded guilty to possessing more than fifty grams of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and possessing a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c). After the district court sentenced A.B. to 117 months' imprisonment, he appealed claiming that the district court failed to consider his non-frivolous arguments under 18 U.S.C. § 3553(a) and that under those factors he was entitled to a lesser sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

During a consensual search of A.B.'s vehicle at a traffic stop, officers discovered a small amount of what was later confirmed to be methamphetamine and a loaded .357 caliber handgun. The discovery led to A.B.'s arrest. Law enforcement conducted subsequent searches of his vehicle and found approximately six ounces of methamphetamine. A.B. subsequently pleaded guilty to a two-count indictment charging, respectively, violations of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count I), and 18 U.S.C. § 924(c) (Count II).

Both crimes provided for a mandatory minimum punishment of sixty months (i.e., five years). Focusing on the drug offense in establishing the sentencing range under the United States Sentencing Guidelines,¹ A.B.'s Presentence Investigative Report ("PSR") asserted a base offense level of thirty-two, and recommended a three-level downward adjustment for acceptance of responsibility, resulting in a total offense level of twenty-nine. Applying the criminal history category of II, the PSR calculated his Guidelines range for Count I to be 97 to 121 months. For Count II, the PSR noted the mandatory five-year sentence that must be served consecutively to the sentence on Count I. See 18 U.S.C. § 924(c)(1)(A)(i) and (D)(ii).

The government filed a motion for a downward departure pursuant to Guidelines § 5K1.1 and 18 U.S.C. § 3553(e) for A.B.'s cooperation with the government's investigation and his willingness to testify. The government acknowledged that his cooperation placed A.B. at risk. Claiming that he was entitled to a more lenient sentence because of personal problems, in addition to his cooperation with the government, A.B. filed a motion in support of the government's motion in which he requested a total sentence of sixty months.

At the sentencing hearing, the district court expressly acknowledged having reviewed A.B.'s sentencing memorandum. See R., Vol. III, Tr. at 3 (Transcript of Sentencing Hearing, dated May 24, 2006). It then allowed A.B. (through counsel and personally) and the government to state their positions. A.B. said that he believed a sixty-month sentence would be appropriate. The government objected that, given the mandatory sixty-month consecutive sentence for the firearm count, A.B.'s suggested sentence would effectively relieve him of any punishment on the drug count. The district court responded:

Well, as you know, [A.B.], the consequences in the federal system for dealing in narcotics are extremely severe. I'm sure you and [your counsel] have talked about that at some length.

....

Having a loaded firearm makes that situation much more severe, as it should. I'm going to take account of both of those. I'm also going to take account of your cooperation with the Government, the fact that you have put yourself at risk, and indeed will have a difficult time living around the Albuquerque, Bernalillo area in the future.

R., Vol. III, Tr. at 11-12 (speaker designation omitted).

Before imposing sentence, the district court declared that it had "reviewed the presentence report factual findings and considered the Sentencing Guideline applications, as well as the factors of 18 United States Code, Section 3553." Id. at 12. The district court accepted the Guidelines calculation in the PSR for Count I, which yielded a Guidelines range of 97 to 121 months. Granting the government's § 3553(e) motion, the district court applied a five offense-level downward departure which resulted in an offense level of twenty-four and a criminal history category II, with a corresponding Guidelines range of fifty-seven to seventy-one months. The district court sentenced A.B. to fifty-seven months on Count I and imposed the mandatory sixty-month sentence on Count II to run consecutive to the Count I sentence. Further, the district court urged A.B. to participate in a 500-hour drug and alcohol treatment plan. A.B. raised no contemporaneous objection to the district court's sentencing procedures.

The district court entered judgment, and A.B. timely appealed.

II. DISCUSSION

We review A.B.'s sentence for reasonableness, giving deference to the district court under "the familiar abuse-of-discretion standard." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007); see United States v. Smart, 518 F.3d 800, 805 (10th Cir.2008) (noting that it is now "well settled that we review a district court's sentencing decisions solely for abuse of discretion"). Reasonableness "has both procedural and substantive components." United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir.2007), overruled in part on other grounds by Irizarry v. United States, ___ U.S. ___, 128 S.Ct. 2198, 2201 n. 1, 2203-04, ___ L.Ed.2d ___ (2008); see Gall, 128 S.Ct. at 597 (noting that a reviewing court "must first ensure that the district court committed no significant procedural error" and then it should "consider the substantive reasonableness of the sentence").

The procedural component relates to the manner in which the district court calculated and explained the sentence. See Gall, 128 S.Ct. at 597 (treating "failing to calculate (or improperly calculating) the Guidelines range," "failing to consider the § 3553(a) factors," and "failing to adequately explain the chosen sentence" as examples of "significant procedural error"); United States v. Romero, 491 F.3d 1173, 1176 (10th Cir.2007) (treating defendant's allegation that the district court failed to explain its reasons for rejecting an argument for a below-Guidelines sentence as a claim of procedural unreasonableness). The substantive component relates to the length of the sentence: "In evaluating the substantive reasonableness of a sentence, we ask whether the length of the sentence is reasonable considering the statutory factors delineated in 18 U.S.C. § 3553(a)." United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir. 2007); see Atencio, 476 F.3d at 1102 ("A substantively reasonable sentence ultimately reflects the gravity of the crime and the § 3553(a) factors as applied to the case.").

On appeal, A.B. does not challenge the substantive reasonableness of his sentence.² Instead, he focuses on whether the district court failed to consider the 18 U.S.C. § 3553(a) factors. This procedural objection arises in connection with two distinct arguments.

First, A.B. argues that, even after departing downward from the Guidelines range on substantial assistance grounds to a point below the mandatory minimum sentence, the district court was obliged to consider his § 3553(a) factors in assessing the appropriateness of a downward variance.³ If the district court had done so, reasons A.B., it could have used those factors to vary downward even further to reach (or at least approach) his desired sixty-month total sentence for both counts. See, e.g., Aplt. Op. Br. at 16-17 ("The fact that a court has engaged in a [Guidelines] § 5K1.1 departure cannot foreclose its separate consideration of other factors in setting a sentence below the substantial assistance departure the court may have already determined.").

Second, A.B. alternatively contends that the district court should have first considered the § 3553(a) factors in determining whether to vary downward from the advisory Guidelines range, and then granted a substantial assistance downward departure. Under this approach, says A.B., the district court could have used the § 3553(a) factors to vary downward from the advisory Guidelines range to the sixty-month mandatory minimum sentence, and then departed downward from that mandatory minimum to arrive at a sentence somewhere near his desired total sentence of sixty-months. See, e.g., id. at 23-24 ("If the district court had properly considered the mitigating factors urged by [A.B.], it could have reduced his drug offense sentence from 97 months to a lesser sentence at or near the 60 month mandatory minimum. It could have then ... engaged in the 40 month reduction it deemed appropriate to reflect his substantial assistance to the government.")

A. Standard of Review

A.B. did not challenge the district court's sentencing procedure at his sentencing. Accordingly, we analyze A.B.'s two arguments under the plain error standard.⁴ See Romero, 491 F.3d at 1177-78 (alleviating "confusion" over the "standard of review for unpreserved challenges to the method by which the district court arrived at a sentence" by concluding that where a defendant "did not object on procedural grounds under § 3553(a) or (c) after the district court imposed his sentence, he has forfeited his right to appeal this issue and our review is only for plain error").

Under the plain error standard, A.B. "`must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies...