U.S. v. Cage

• Decision Date: 08 June 2006
• Docket Number: No. 05-2079.,05-2079.
• Citation: 451 F.3d 585
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Sabrina CAGE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 585

451 F.3d 585

UNITED STATES of America, Plaintiff-Appellant, v. Sabrina CAGE, Defendant-Appellee.

No. 05-2079.

United States Court of Appeals, Tenth Circuit.

June 8, 2006.

Laura Fashing, Assistant U.S. Attorney (David C. Iglesias, United States Attorney; and James R.W. Braun, Assistant U.S. Attorney with her on the briefs), Albuquerque, NM, for the Plaintiff-Appellant.

Robert J. Gorence, Robert J. Gorence & Associates, P.C., Albuquerque, NM, for the Defendant-Appellee.

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.

LUCERO, Circuit Judge.

This case asks us to determine the limits of reasonableness in the context of sentencing decisions. The United States appeals a district court decision sentencing Sabrina Cage to six days in prison and three years of supervised release for the crimes of conspiracy to distribute 500 grams or more of a mixture and substance containing methamphetamine and using a telephone to facilitate a drug trafficking offense. Although the district court properly calculated the sentence range under the Federal Sentencing Guidelines at 46-57 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 conclude that six days' imprisonment was sufficient, but not greater than necessary to meet the considerations enumerated in 18 U.S.C. § 3553(a). Under Booker, we review district court sentencing decisions for reasonableness. Because the facts of this case are not so dramatic as to justify such an extreme divergence from the advisory guidelines range, the district court's sentencing decision was unreasonable. As such, we REVERSE and REMAND for resentencing.

I

Conducting operations out of both California and New Mexico, the Cuevas family orchestrated a major methamphetamine distribution ring: Nelida Cuevas, the family matriarch, was deeply involved in the family's drug distribution enterprise and her four sons, Arturo, Francisco, Ricardo, and Jorge Cuevas were the ring leaders of the operation in New Mexico. Their sister Veronica Cuevas, Nelida Cuevas's youngest child and only daughter, was frequently dispatched to pick up large quantities of methamphetamine from an uncle in California to be sold in New Mexico. Once the methamphetamine was transported to San Juan County, the Cuevas family distributed it to users through a distribution chain including Cuevas family members and outsiders.

In the course of investigating the Cuevas family criminal enterprise, the federal government obtained authorization to tap a cell phone to which Ricardo Cuevas subscribed and that Ricardo's girlfriend, Sabrina Cage, frequently used. Cage lived in Ricardo's home and was not employed during the time that she lived with him. They had a son together, who was an infant at the time of the investigation. Although not central to the conspiracy, Cage did substantially and knowingly assist the enterprise. Evidence obtained from the wiretap shows that Cage took orders for drug sales and helped facilitate drug transactions. Cage also relayed messages between Ricardo and other members of the Cuevas family about drug deals, vouched for the reliability of members of the family as drug couriers, and, on one occasion, tried unsuccessfully to convince a friend to rent a car under a false name for Cuevas family use.

On April 23, 2003, Nelida and Veronica were at Ricardo's house. Ricardo called Cage and instructed her to give $1,000 in cash to Nelida and $200 to Veronica. After Nelida and Veronica drove away, agents stopped and arrested them, and found $17,000 in Veronica's luggage and $3,815 in Nelida's luggage. Within an hour, agents began executing search warrants in various locations controlled by the Cuevas family. At Ricardo and Cage's residence, agents found 945 net grams of methamphetamine, over $2,000 in cash, a loaded handgun, and two gram-capable scales. In total, the searches of all Cuevas family properties uncovered well over two kilograms of methamphetamine and several firearms.

Cage pled guilty to one count of conspiracy to distribute 500 grams or more of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (B)(1)(a) & 846, and one count of using a telephone to facilitate a drug trafficking offense, in violation of 21 U.S.C § 843(b). She agreed that 1.5 kilograms or more of actual methamphetamine is attributable to her, which, she acknowledged, would place her at a base offense level of 38. With the parties' agreement that Cage should receive an adjustment for her mitigating role in the offense, and with the government's concession that Cage was a minor participant in the criminal activity and that she met the requirements of the "safety valve" provision,¹ Cage faced a total offense level of 23. Given that her criminal history placed her conduct in sentencing category I, Cage was exposed to a guidelines range of 46 to 57 months.

Although she declined to object to the guidelines calculations in the Pre-Sentence Report, Cage did move for a downward departure. She argued that her incarceration would leave her infant son in the care of her mother, who was already raising three children under the age of five, thereby justifying a departure under U.S.S.G. § 5H1.6. Upon finding that "this is not a situation where the family ties and responsibilities fall outside the heartland of cases," the court denied the motion for downward departure. The court then sentenced Cage at the bottom of the guidelines range to 46 months' imprisonment. Aware of the Supreme Court's pending decision in Booker, 543 U.S. at 220, 125 S.Ct. 738, the district court fashioned an alternative sentence that it would apply if the Sentencing Guidelines were found unconstitutional. The alternative sentence imposed by the district court was six days' imprisonment.

Cage began serving a 46 month term of imprisonment, but, on the day that Booker was decided, she filed a motion to apply the alternative sentence. In opposing the motion, the government argued that the court lacked jurisdiction to impose the alternative sentence, that the Booker decision did not meet the condition precedent to the alternative sentence because it did not hold that the Guidelines were unconstitutional in their entirety, and that the sentence of six days' imprisonment was unreasonable. After overruling the government's objections, the court issued an "Order Directing Bureau of Prisons to Apply Alternative Sentence and to Immediately Release Defendant Sabrina Cage from Custody," with which the Bureau of Prisons complied. The order explained that the district court had examined the evidence and calculated the proper sentencing range under the Guidelines and that the alternate sentence of six days' imprisonment was sufficient, but not greater than necessary, to meet the considerations enumerated in 18 U.S.C. § 3553(a). The government appeals and seeks reversal of this order.

II

Before determining the reasonableness of the alternative sentence, we must assure ourselves that we have jurisdiction to hear this appeal. Cage moves to dismiss the appeal, arguing that the government filed its notice of appeal late and that we thus lack jurisdiction. Under the unique circumstances of this case, we think that the government filed its appeal within the specified time limit. Cage's motion to dismiss, therefore, is denied.

"The filing of a timely notice of appeal is an absolute prerequisite to our jurisdiction." Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir.1996). The government must file its appeal within thirty days of the entry of the order being appealed. Fed. R.App. P. 4(b)(1)(B). Cage asserts that the government is appealing the initial judgment, which imposed a sentence of 46 months' imprisonment with an alternative sentence if the Sentencing Guidelines were found unconstitutional. Because this judgment was entered on September 2, 2004, and the government filed its appeal on March 23, 2005, Cage argues that the government filed its notice of appeal late. We disagree. What the government is appealing, instead, is the "Order Directing Bureau of Prisons to Apply Alternative Sentence and to Immediately Release Defendant Sabrina Cage from Custody," entered on February 24, 2005.

Pursuant to 18 U.S.C. § 3742(b), the government may appeal sentences: (1) imposed in violation of the law; (2) imposed as a result of an incorrect application of the Guidelines; (3) that are less than the minimum guidelines sentence; or (4) imposed for an offense for which there is no Guideline. No statutory justification existed for appealing the 46 month sentence imposed on September 2, 2004.

Because of finality requirements, the government did not have statutory authority to appeal the six day sentence prior to February 24, 2005. The pertinent statute authorizes the government to "file a notice of appeal in the district court for review of an otherwise final sentence," 18 U.S.C. § 3742(b), and we conclude that the sentence of six days' imprisonment was not a "final sentence" within the meaning of the statute until the court entered the February 24th order that made the six day sentence enforceable. Until that date, Cage was serving a 46 month sentence, not a six day sentence, and accordingly the latter sentence was not final. See, e.g., United States v. Jackson, 903 F.2d 1313, 1316 (10th Cir.1990) (discussing the "finality" of a sentence, where the district court attempted to anticipate the Supreme Court's decision in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)).

Moreover, the alternative sentence relied upon a condition precedent, which did not occur until well after the time lapsed for appealing the September 2nd order. Further, it was unclear to the parties whether the condition precedent ever occurred — they disputed whether the Booker decision met the condition listed in the alternative...