U.S. v. Gomez-Herrera, 07-10153.

• Decision Date: 03 April 2008
• Docket Number: No. 07-10153.,07-10153.
• Citation: 523 F.3d 554
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro GOMEZ-HERRERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

523 F.3d 554

UNITED STATES of America, Plaintiff-Appellee, v. Pedro GOMEZ-HERRERA, Defendant-Appellant.

No. 07-10153.

United States Court of Appeals, Fifth Circuit.

April 3, 2008.

Susan B. Cowger, Dallas, TX, for U.S.

Kevin Joel Page, Jason Douglas Hawkins, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Pedro Gomez-Herrera pleaded guilty to one count of illegal reentry following removal pursuant to 8 U.S.C. § 1326. In this appeal, he argues primarily that Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), requires that this court vacate his sentence and remand his case for resentencing in light of that decision. For the following reasons, we disagree and affirm.

I.

Pedro Gomez-Herrera pleaded guilty to one count of illegal reentry following removal. According to the presentence report (PSR), Gomez-Herrera was born in Mexico in 1952 but lived in Texas since the age of three months. He married twice in the 1970s and had three children through these marriages and a fourth child he never met. His father and five siblings all reside in Texas. In 1988, Gomez-Herrera was convicted of murder in Dallas County Criminal District Court and was sentenced to 45 years in prison. He was released on parole in 2003 and deported.

The PSR set Gomez-Herrera's base offense level at eight. The PSR added 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Gomez-Herrera was previously deported following a conviction for murder, a crime of violence. After a three-level reduction for acceptance of responsibility, Gomez-Herrera's total offense level was 21. With his criminal history category of III, Gomez-Herrera's Guidelines sentencing range was 46 to 57 months.

Gomez-Herrera filed a sentencing memorandum in which he argued, pursuant to various sentencing factors set forth in 18 U.S.C. § 3553(a), that a sentence of 30 months would be reasonable. Specifically, Gomez-Herrera contended that the seriousness of the offense was mitigated because he re-entered the United States to join his father who was undergoing surgery; that he was culturally assimilated because he had lived most of his life in Dallas, where he attended school, built a family and worked; that he was no longer a dangerous individual as evidenced by his steady work history and his completion of his GED and 13 credit hours of college during his incarceration; that an offense level of 24 gave too much weight to his prior conviction, as it is comparable to or greater than the offense level for many other serious offenses.

He further argued that the 16-level enhancement is an anomaly and was adopted without any study to determine whether it was necessary or desirable from a penal standpoint. He also contended that there is a disparity between those districts that employ "fast track programs" which provide lesser sentences to defendants who agree to quick guilty pleas and uncontested removals and other sentencing districts which have no such programs.

Gomez-Herrera's counsel repeated his arguments for a variance below the Guidelines or a downward departure at the sentencing hearing. The Government opposed a sentence outside the Guidelines range on the basis that his criminal history dated to 1985, culminating in his murder conviction in 1988; that his ties to the United States and lack of ties to Mexico made him more likely to return illegally; and that he was not truthful regarding his identity when he was discovered by immigration authorities.

The district court noted Gomez-Herrera's arguments for either a departure or variance and then stated that it was "persuaded on the basis of the arguments made both here today and in the sentencing memorandum that I should not depart downward from the Guideline range." The court found no factors warranting a sentence at either extreme of that range and imposed a sentence at the mid-point of 51 months. Gomez-Herrera appeals.

II.

As his primary argument, Gomez-Herrera asserts that this court's precedent limiting the ability of district courts to impose a non-Guidelines sentence based on disagreement with a policy of the Sentencing Commission or Congress effectively returned the Guidelines to the same mandatory status that existed prior to Booker. He argues that this status prohibited the district court from considering his arguments for a lower sentence based on sentencing disparity created by the availability of early disposition or fast track programs in some sentencing jurisdictions but not others.¹ He contends that this constitutes "Fanfan" error, which occurs when a court sentences a defendant under the formerly mandatory Guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.2005).²

Between the time Gomez-Herrera was sentenced and this appeal, the Supreme Court decided two sentencing cases which affect Gomez-Herrera's argument — Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). In Rita v. United States, the Supreme Court held that appellate courts may apply a presumption that sentences falling within a properly calculated Guidelines range are reasonable. Rita, ___ U.S. ___, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203. Although Rita recognizes that when a judge's decision accords with the Commission's view it is probable that the sentence is reasonable, Rita also contemplates that the judge may impose a different sentence if he concludes that a Guidelines sentence "`fails properly to reflect § 3553(a) considerations'" and that judges may "`disregard the Guidelines.'" Id. at 2465-66.

In Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court held that, in light of Booker, a district court may deviate from the advisory Guidelines range for crack cocaine offenses based on a conclusion that the disparity between ranges for crack and powder cocaine results in a sentence greater than necessary to achieve the sentencing goals of § 3553(a). Id. at 564. Kimbrough's guilty plea acknowledged that he was accountable for 56 grams of crack cocaine and 92.1 grams of powder cocaine. This quantity of drugs yielded a base offense level of 32. U.S.S.G. § 2D1.1(c)(2004). With other adjustments and a criminal history category of II, Kimbrough's Guideline range on the drug charges was 168 to 210 months. He also had a firearm offense for which the Guidelines sentence was the statutory minimum of 60 months. Thus Kimbrough's final advisory Guideline range was 228 to 270 months or 19 to 22.5 years. Id. at 565. The sentencing court stated that this range was greater than necessary to accomplish the sentencing goals in 18 U.S.C. § 3553(a). The judge considered the sentencing factors and also commented that the case exemplified the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing." Id. The comparable range if the defendant had been sentenced under the powder cocaine guidelines was 97 to 106 months, including 60 months for the firearm charge. Id. The sentencing court concluded that the statutory minimum sentence was "clearly long enough" to satisfy the sentencing goals of § 3553(a) and imposed a sentence of 15 years or 180 months.

The Supreme Court held that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the cocaine Guidelines, like all other Guidelines, are advisory only and appellate courts err in holding that the crack/powder disparity reflected in the Guidelines is effectively mandatory. Id., 128 S.Ct. at 564. Significantly, the Court rejected the Government's argument that the sentencing disparity in the Guidelines was in accordance with a policy mandated by Congress. Rather it found that Congress mandated only statutory maximum and minimum sentences for certain quantities of the drug, not the 100 to 1 ratio reflected in the Guidelines for the full range of drug quantities.³ Id. at 571-72. The Supreme Court held that a district court could treat as advisory the Guidelines range for crack cocaine offenses based on a conclusion that the disparity between ranges for crack and powder cocaine results in a sentence greater than necessary to achieve the sentencing goals of § 3553(a). However, "possible variations among district courts are constrained by the mandatory minimums Congress prescribed in the 1986 Act" which district courts may not ignore. Id. at 574.

After Rita and Kimbrough, a district court should consider the applicable Sentencing Guidelines range, as well as any Guidelines policy — but the district court may deviate from both to the extent that any deviation is done to tailor the sentence in light of § 3553(a) and Congressional sentencing policy. Rita and Kimbrough do not completely unfetter a district court's sentencing discretion. Sentencing courts are still constrained by Congressional policies, for example the mandatory minimum sentences contained in the Anti-Drug Abuse Act of 1986, 100 Stat. 3207.

Gomez-Herrera argued in his initial brief that this court should vacate and remand for resentencing so the district court could consider his fast track disparity argument in light of its authority to disagree with the policy choices of the Guidelines. In his supplemental brief he argues that Kimbrough overrules the line of Fifth Circuit authority that limited the district court's ability to consider such arguments at the time of sentencing, namely Aguirre-Villa, United States v. Duhon, 440 F.3d 711 (5th Cir.2006), and United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir.2006). As set forth below, Kimbrough, which concerned a district court's ability to sentence in disagreement with Guideline policy, does not control this case, which concerns a district court's ability to sentence in...