U.S. v. Kristl, 05-1067.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Per Curiam
• Citation: 437 F.3d 1050
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kurt A. KRISTL, Defendant-Appellant.
• Docket Number: No. 05-1067.,05-1067.
• Decision Date: 17 February 2006

437 F.3d 1050 UNITED STATES of America, Plaintiff-Appellee,
v.
Kurt A. KRISTL, Defendant-Appellant. No. 05-1067. United States Court of Appeals, Tenth Circuit. February 17, 2006.

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Scott T. Varholak, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, CO, appearing for Appellant.

James C. Murphy, Assistant United States Attorney (William J. Leone, Acting United States Attorney, and Mary Jo Menendez, Assistant United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, CO, appearing for Appellee.

Before TACHA, Chief Circuit Judge, HOLLOWAY and HARTZ, Circuit Judges.

PER CURIAM.

Defendant-Appellant Kurt A. Kristl was charged with and pleaded guilty to knowingly possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). The district court determined that the applicable United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") range was 24-30 months and sentenced him to 28 months' incarceration. On appeal, Mr. Kristl argues that the district court erroneously calculated his criminal history category, thereby rendering his sentence unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We take jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and reverse and remand.

I. BACKGROUND

Mr. Kristl pleaded guilty to being a felon in possession of a firearm in violation of 28 U.S.C. § 922(g)(1). In calculating his sentence under the Guidelines, the presentence report ("PSR") accounted for several of Mr. Kristl's prior offenses for which he had received sentences of imprisonment. Specifically, the PSR recommended that Mr. Kristl be assigned three criminal history points based on his attempted possession and sale of a controlled substance, two points each for two separate offenses involving driving with a suspended license, three points stemming from a burglary, one point for an assault, and one point for driving under the influence. See U.S.S.G. § 4A1.1(a)-(c) (2004). In addition, because the federal firearm violation was committed within two years of Mr. Kristl's release from custody on one of the driving offenses, the PSR recommended that two more points be added to Mr. Kristl's criminal history score. See U.S.S.G. § 4A1.1(e). These fourteen points put Mr. Kristl in criminal history category VI, which, when combined with an offense level of 10, resulted in a Guidelines range of 24-30 months' imprisonment. On January 28, 2005, two weeks after the Supreme Court's decision in Booker, the district court adopted the recommendation of the PSR

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over Mr. Kristl's objection and sentenced him to 28 months' incarceration.

On appeal, Mr. Kristl argues that the district court erred in determining the applicable Guidelines range because the controlled substance offense warranted only one, rather than three, criminal history points. He also argues that he should only have been assigned one point, rather than two, for one of his convictions for driving on a suspended license. Finally, Mr. Kristl argues that the district court erred in applying the § 4A1.1(e) enhancement because the predicate offense—the aforementioned driving offense—did not involve a sentence of imprisonment counted under U.S.S.G. § 4A1.1(a) or (b). Had the district court properly considered these prior convictions, Mr. Kristl contends, he would have had a criminal history score of IV, and the applicable Guidelines range would have been 15-21 months. Mr. Kristl maintains that this error renders his sentence unreasonable in light of Booker and his case should therefore be remanded.

II. DISCUSSION

A. Standard of Review After United States v. Booker

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the mandatory application of the Guidelines to judge-found facts (other than a prior conviction) violates the Sixth Amendment. 125 S.Ct. at 749-50. Rather than declare the Guidelines unconstitutional, however, the Court excised the provision of the federal sentencing statute that made the Guidelines mandatory, 28 U.S.C. § 3553(b)(1), effectively making the Guidelines advisory. The Court also excised 28 U.S.C. § 3742(e), which set forth the standard of review on appeal, and held that the proper standard of review for sentences imposed post-Booker is "reasonableness." See Booker, 125 S.Ct. at 764-66. Given that this court is considering for the first time a sentence imposed after Booker, we now delineate the contours of this newly pronounced standard of review. See United States v. Souser, 405 F.3d 1162, 1165 (10th Cir.2005) (declining to review for reasonableness when the district court had not sentenced the defendant under the new, discretionary regime).

Reasonableness review is guided by the factors set forth in 18 U.S.C. § 3553(a), see Booker, 125 S.Ct. at 766, which include the nature of the offense and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, to provide adequate deterrence, to protect the public, and to provide the defendant with needed training or treatment, see 18 U.S.C. § 3553(a)(1)-(2). Significant to our discussion, the now-advisory Guidelines are also a factor to be considered in imposing a sentence, which means that district courts "must consult those Guidelines and take them into account when sentencing." Booker, 125 S.Ct. at 767 (citing 18 U.S.C. §§ 3553(a)(4) and (5) (Supp.2004)); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 748-749 (10th Cir.2005) (stating that Booker "requires a sentencing court to consider Guidelines ranges"). Although this court has not had the opportunity to decide the issue prior to today, several of our sister circuits have held that a sentence that falls within the properly calculated Guidelines range is presumptively reasonable after Booker. See, e.g., United States v. Williams, 436 F.3d 706, 707, 2006 WL 224067 at *1 (6th Cir.2006); United States v. Alonzo, 435 F.3d 551, 2006 WL 39119 at *3 (5th Cir.2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005).

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Explaining the rationale underlying its holding, the Seventh Circuit in United States v. Mykytiuk reasoned that by requiring district courts to continue to refer to the Guidelines, the Supreme Court arguably expected many sentences to reflect the results of the proper application of the Guidelines. See Mykytiuk, 415 F.3d at 607. The Mykytiuk court went on to note that not every sentence within the Guidelines should conclusively be deemed reasonable because such a scheme would run afoul of one of the primary holdings of Booker itself—that the Guidelines are merely advisory. See id. Nevertheless, because "[t]he Guidelines remain an essential tool in creating a fair and uniform sentencing regime across the country," the court held that the most appropriate way to express the function of appellate review after Booker "is to acknowledge that any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness." Id. at 608; see also United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005) (concluding that the defendant's sentence "was within the guidelines range . . . and, as a result, we think that it is presumptively reasonable"); United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005) ("[I]t will be rare for a reviewing court to say [a sentence within the Guidelines] is `unreasonable.'").

This court, too, has consistently emphasized, even post-Booker, that "the purpose of the Guidelines [is] to promote uniformity in sentencing so as to prevent vastly divergent sentences for offenders with similar criminal histories and offenses." Gonzalez-Huerta, 403 F.3d at 738. Therefore, in light of this purpose, as well as the Supreme Court's instruction that district courts continue to consider the Guidelines after Booker, we join our sister circuits and hold that a sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness. This is a deferential standard that either the defendant or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a). See Mykytiuk, 415 F.3d at 608.

We note that this new standard of review—that of "reasonableness"—does not displace the oft-cited principle that in considering the district court's application of the Guidelines, we review factual findings for clear error and legal determinations de novo. See United States v. Serrata, 425 F.3d 886, 906 (10th Cir.2005); United States v. Bothun, 424 F.3d 582, 586 (7th Cir.2005) ("Post-Booker we continue to review the court's application of the Sentencing Guidelines de novo and its factual findings for clear error."); United States v. Weisser, 417 F.3d 336, 346 (2d Cir.2005) ("When reviewing a district court's application of the Guidelines in the post-Booker era, we examine questions of law de novo and issues of fact for clear error."). Rather, we first apply the latter two standards to determine whether the district court...