U.S. v. Guajardo, 91-5508

• Decision Date: 19 December 1991
• Docket Number: No. 91-5508,91-5508
• Citation: 950 F.2d 203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Cardenas GUAJARDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 203

950 F.2d 203

UNITED STATES of America, Plaintiff-Appellee, v. Frank Cardenas GUAJARDO, Defendant-Appellant.

No. 91-5508.

United States Court of Appeals, Fifth Circuit.

Dec. 19, 1991.

John R. Carter, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, San Antonio, Tex. Glenn W. MacTaggart, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., for plaintiff-appellee.

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

Before DUHE, WILLIAMS and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Frank Cardenas Guajardo ("Guajardo") pled guilty to a charge of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Since the offense occurred on August 6, 1990, the district court applied the federal sentencing guidelines in effect on that date. See United States Sentencing Commission, Guidelines Manual (1989 ed.) ("U.S.S.G."). Guajardo appeals, alleging that the district court violated his equal protection and due process rights by application of career offender provisions, and that the district court improperly declined to grant a downward departure in his sentence. We reject Guajardo's contentions and affirm the district court's sentence.

I. BACKGROUND

On August 6, 1990, the San Antonio Police Department obtained a state search warrant to seize narcotics at Guajardo's residence. During the execution of that search warrant, the police officers found Later that month, a federal grand jury sitting in the San Antonio Division of the Western District of Texas returned a two-count indictment charging Guajardo with: (1) conspiracy to possess heroin with intent to distribute heroin in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) (Count One); and (2) possession of heroin with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (Count Two). Guajardo pled guilty to Count Two in exchange for dismissal of Count One.

                heroin and drug paraphernalia. 1  Guajardo was subsequently arrested for possession of heroin
                

A probation officer prepared a Presentence Report. The Presentence Report recommended a finding that Guajardo was a career offender. ² In addition to other adjustments, this finding raised his offense level from 22 to 30. ³ The probation officer recommended the finding that defendant was a career offender because of two prior offenses: Guajardo was convicted of assault with intent to murder on May 28, 1965, and he pled guilty to burglary of habitation on May 20, 1982. The 1965 conviction resulted in a life sentence, but Guajardo was released on parole on June 29, 1976.

Because Guajardo was classified as a career offender, Guajardo's range of imprisonment under the sentencing guidelines was 168 to 210 months. The district court sentenced Guajardo to 168 months imprisonment. ⁴ Had Guajardo not been classified as a career offender, he asserts that his sentencing range under the sentencing guidelines would have been 77 to 96 months. ⁵ Guajardo also sought a downward departure, based on his age and physical condition, pursuant to Sections 5H1.1 and 5H1.4, which the district court denied. ⁶ The crux of Guajardo's appeal is that he should not have been classified as a career offender and that a downward departure was appropriate in his case.

II. ANALYSIS

A. Guajardo's Classification as a Career Offender

Guajardo argues that the district court's use of his 1965 conviction to classify him as a career offender violates his rights to due process and equal protection of laws guaranteed by the Fifth Amendment. This court's standard of review is de novo. See United States v. Lara-Velasquez, 919 F.2d 946, 953-54 (5th Cir.1990) (citation omitted) (de novo standard applies to a defendant's challenge to the district court's interpretation of the requirements of the sentencing guidelines); United States v. Litteral, 910 F.2d 547, 551 (9th Cir.1990) (citation omitted) (court reviews de novo the constitutionality of a statute).

Guajardo contests the use of Section 4A1.2(e)(1), which was used to classify him as a career offender. Section 4A1.2(e)(1), dealing with the computation of criminal history, provides in pertinent part:

Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.

U.S.S.G. § 4A1.2(e)(1) (1989). Guajardo committed this offense on August 6, 1990. Guajardo's earlier conviction was in 1965 for an April 24, 1964 charge of assault with intent to murder. He was released on parole June 29, 1976. Because the sentence for the 1965 conviction "resulted in the defendant being incarcerated during ... part of [the] fifteen-year period" prior to the August 6, 1990 offense, the district court properly used the 1965 conviction to classify Guajardo as a career offender. Id.

i. Due Process

Guajardo contends that the district court's use of the 1965 conviction to classify him as a career offender violates his right to due process guaranteed by the Fifth Amendment. His discussion of this issue, however, centers on his equal protection argument. Guajardo does not squarely set forth a due process argument.

Guajardo appears to allege that Section 4A1.2(e)(1) violates due process because it prevents the consideration of individual mitigating factors in sentencing. We disagree. The sentencing guidelines do not violate due process because they prevent individualized sentencing by establishing mandatory sentences for offenses. See, e.g., United States v. White, 869 F.2d 822, 825 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989), cert. denied, 493 U.S. 1001, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989) (citation omitted) (noting that the Constitution does not require individualized sentences); United States v. Brady, 895 F.2d 538, 539-44 (9th Cir.1990) (holding that sentencing guidelines do not violate substantive or procedural due process by limiting the sentencing discretion of the district court); United States v. Green, 902 F.2d 1311, 1313 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990) (citation omitted) (noting that the Constitution does not guarantee individualized sentencing, except in capital cases; due process not denied by use of career offender provision); United States v. John, 936 F.2d 764, 766-67 n. 2 (3d Cir.1991) (citation omitted) (noting that defendant does not have a substantive due process right to individualized treatment at sentencing). Because the Constitution does not require individualized sentences, the district court was correct to apply Section 4A1.2(e)(1) in determining Guajardo's sentence.

Guajardo also argues that the use of the lengths of prior sentences to help determine his criminal history category violates due process. This argument has also been rejected. In United States v. Litteral, 910 F.2d 547, 552-53 (9th Cir.1990), the court stated that because the defendant did not show that the use of the lengths of prior sentences was necessarily unreliable, such use was not a violation of due process. The court also noted that the sentencing guidelines allow consideration of information other than the lengths of past sentences to minimize the likelihood of any due process violations. Id., citing United States v. White, 869 F.2d 822, 828 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989), cert. denied, 493 U.S. 1001, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). We agree with this reasoning and reject Guajardo's arguments to the contrary.

ii. Equal Protection

Guajardo also argues that the application of Section 4A1.2(e)(1) violates his equal protection rights because the sentencing guidelines bear no rational relationship to policies underlying the Sentencing Reform Act. ⁷ He contends that the use of convictions within this fifteen-year period to classify him as a career offender, while excluding those convictions outside this fifteen-year period, bears no rational relationship to considerations underlying the Sentencing Reform Act. ⁸

More specifically, Guajardo argues that Section 4A1.2(e)(1) violates equal protection because the fifteen-year cut-off point is arbitrary and does not truly aid in administrative convenience. By limiting offenses to those that have occurred within fifteen years of the current offense, Guajardo argues that courts employ a categorical federal standard which is arbitrary. Guajardo also contends that Section 4A1.2(e)(1) subverts the sentencing guidelines' goals of honesty, uniformity, and proportionality because Section 4A1.2(e)(1) applies regardless of the sentence actually imposed or the length of time actually served.

The Government, citing United States v. Colon, 905 F.2d 580, 586 (2d Cir.1990), contends that any system such as the sentencing guidelines requires line-drawing and that the system will fail if those lines are not observed. The Government argues that Section 4A1.2(e)(1) serves a legitimate purpose of having more dangerous criminals serve longer sentences. See United States v. Litteral, 910 F.2d 547, 552 (9th Cir.1990). Implicit in the Government's argument is the contention that the career offender provisions bear a rational relationship to a legitimate governmental purpose because the provisions help prevent repeat offenders from continuing to victimize society. Guajardo has not shown otherwise.

The sentencing guidelines support the Government's position. In the sentencing guidelines, the Sentencing Commission states that a defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. See U.S.S.G. Ch. 4,...