U.S. v. Carty, 05-10200.

• Decision Date: 24 March 2008
• Docket Number: No. 05-10200.,No. 05-30120.,05-10200.,05-30120.
• Citation: 520 F.3d 984
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alphonso Kinzar CARTY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Juan Antonio Zavala, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

520 F.3d 984

UNITED STATES of America, Plaintiff-Appellee, v. Alphonso Kinzar CARTY, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Juan Antonio Zavala, Defendant-Appellant.

No. 05-10200.

No. 05-30120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2006.

Submission Vacated December 6, 2006.

Filed March 24, 2008.

Resubmitted March 24, 2008.

Jeffrey T. Green, Assistant Federal Public Defender, Phoenix, AZ, (argued); Milagros A. Cisneros, Assistant Federal Public Defender, Phoenix, AZ, for defendant-appellant Alphonso Kinzar Carty.

Dennis M. Charney, Eagle, ID, for defendant-appellant Juan Antonio Zavala.

Michael R. Dreeben, Department of Justice, Washington, D.C, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CR-03-01135-RGS.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CR-02-00079-12-BLW.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, STEPHEN REINHARDT, PAMELA ANN RYMER, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, KIM McLANE WARDLAW, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, JAY S. BYBEE, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge RYMER; Concurrence by Chief Judge KOZINKSKI; Concurrence by Judge SILVERMAN.

RYMER, Circuit Judge:

We ordered rehearing en banc in these cases to clarify our sentencing law in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).¹ Events overtook us, however, when the United States Supreme Court granted certiorari in Claiborne v. United States and Rita v. United States. As the issues were similar to those in our appeals, we deferred submission pending the Court's decisions.

The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sentence is reasonable when a district judge's discretionary decision accords with the sentence the United States Sentencing Commission deems appropriate in the mine-run of cases. ___ U.S. ___, 127 S.Ct. 2456, 2465 168 L.Ed.2d 203 (2007). Mario Claiborne's case was mooted by his death, Claiborne v. United States, ___ U.S. ___, 127 S.Ct. 2245, 167 L.Ed.2d 1080 (2007) (per curiam), so the Court granted certiorari in Gall v. United States to address the question whether a sentence that amounts to a substantial variance from the Guidelines needs to be justified by extraordinary circumstances. ___ U.S. ___, 127 S.Ct. 2933, 168 L.Ed.2d 261 (2007). It held on December 10, 2007 that appellate courts must review all sentences, within and without the Guidelines range, under a deferential abuse-of-discretion standard. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). On the same day, the Court held that, under Booker, the cocaine Guidelines, like all others, are advisory only and that the Guidelines, formerly mandatory, serve as one factor among several that district courts must consider in determining an appropriate sentence. Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007).

Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate "presumption" of reasonableness for sentences imposed within the Guidelines range. We decline to do so, although we recognize that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal. Applying Rita, Gall and Kimbrough, we conclude that there was no significant procedural error in either Carty or Zavala, and that the sentences imposed were not unreasonable. Accordingly, we affirm in each case.²

I

Zavala's appeal turns on whether the district court improperly presumed the reasonableness of a sentence within the Guidelines range. Carty's turns on whether the district court adequately articulated reasons for its choice of sentence.³

Zavala. Juan Antonio Zavala was convicted of one count of conspiring to distribute methamphetamine, cocaine, and ecstacy and one count of distribution of methamphetamine. His sentencing took place after Booker, but before Rita, Gall and Kimbrough. After making various adjustments which Zavala does not dispute, the district court determined that his adjusted offense level was 43 and his criminal history category was III. This yielded a life sentence as the applicable range under the November 2004 version of the Sentencing Guidelines.

At the outset of the hearing, the court indicated that it was required to consider the advisory Guidelines range, but in the context of the goals and purposes of sentencing as reflected in 18 U.S.C. § 3553(a).⁴ The judge commented that "the Guideline range becomes a presumptive sentence, and it is then for the Court to determine whether or not a specific factor exists in this case under those factors set forth in 3553(a) which would justify the Court in imposing a lesser sentence than that set forth in the Guideline range." The judge also stated that he needed to justify any departure from the Guidelines range by reference to the sentencing factors set forth in § 3553(a), and looked to the defense to "at least explain to [him] what those justifications are and what those factors are" that would warrant a sentence less than life imprisonment. Recognizing that he had to "impose a sentence sufficient, but not greater than, necessary to comply with the purposes set forth in [§ 3553(a)(2)]," the judge elicited, and heard, the parties' view as to "why would a sentence of, say, 360 months not be sufficient?"

When Zavala took issue with the statement that the presumptive sentence was the Guidelines range (a life sentence), arguing that the presumptive sentence should instead be the bottom of the statutory range (a ten-year sentence) pursuant to § 3553(a), the judge indicated that he believed the Guidelines should serve as "the starting point." He explained that "we start with the Guideline range and then work from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion" in terms of § 3553(a) and all the factors listed.

The court reviewed the relevant § 3553(a) factors and found that a life sentence was "not necessary" to promote respect for law, to deter others, or to protect the public; was "simply excessive" and would be disproportional to sentences received by Zavala's co-defendants. Correspondingly, the court found that a 360-month sentence would reflect that this is a serious matter, would promote respect for the law and provide just punishment, and would afford adequate deterrence to others. Accordingly, the judge "exercise[d] [his] discretion to depart from the Guidelines or to deviate from the Guidelines based upon [his] consideration of the factors set forth in 18 U.S.Code Section 3553(a)" by imposing a term of 360 months imprisonment.

Carty. A jury convicted Alphonso Kinzar Carty on seven counts of abusive sexual contact and aggravated sexual abuse of his minor niece. He confessed to having molested her on four different occasions when she was between 14- and 16-years old, but later backtracked. The Presentence Report (PSR) considered the offense conduct, Carty's criminal history, and offender characteristics before recommending a sentence at the top of the 235-293 months Guidelines range. It also advised that there "is no information concerning the offense or the offender which would warrant a departure from the sentencing guidelines."

Carty's sentencing memorandum argued generally for a lower sentence in consideration of the § 3553(a) factors. It stressed his history and characteristics (Carty was a breadwinner for his family with no criminal history; he stopped drinking as a young man; he had a strong family relationship; and he had an underprivileged upbringing and diminished capacity to understand fully the world around him); the need for the sentence imposed (his parents would likely not be alive when he got out of prison; his young boys would be left without his guidance and support; and the goals of deterrence and protecting the public would be served by a much shorter sentence); and the availability of alternative sentences (a lengthy period of supervised release). The government's memorandum acknowledged that the Guidelines were advisory, but argued that the Guidelines sentence outlined in the PSR was appropriate in light of the factors set forth in § 3553(a). It also posited that neither Carty's conduct nor his circumstances differed from the multitude of other sex offenders that the Sentencing Commission took into consideration in promulgating the Guidelines.

At the sentencing hearing, the court indicated that it had reviewed the PSR and the parties' sentencing memoranda. Seven members of Carty's family testified. Counsel submitted that Carty has "no criminal history to speak of," "he is hard working, and he is a good role model for his children"; and urged that alternative sentences such as sex offender registration and a lifetime of supervised release would be sufficient to protect the public and keep Carty from reoffending. Counsel asked the court to impose "something sufficient but not greater than necessary," arguing that the sentence recommended by the PSR was much greater than necessary as it would be equivalent to having committed second degree murder. In imposing sentence, the judge recognized that Carty had strong family support and that the matter was "a familial tragedy of enormous proportion." He then sentenced Carty to a term of 235 months, the bottom of the Guidelines range.

II

The basic framework is now settled for the district courts' task, and ours on appeal, under the Booker...