U.S. v. Mendoza-Mendoza

• Decision Date: 05 March 2010
• Docket Number: No. 08-5007.,08-5007.
• Citation: 597 F.3d 212
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dario MENDOZA-MENDOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

597 F.3d 212

UNITED STATES of America, Plaintiff-Appellee, v. Dario MENDOZA-MENDOZA, Defendant-Appellant.

No. 08-5007.

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2010.

Decided: March 5, 2010.

ARGUED: Stephen Clayton Gordon, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant.

Anne Margaret Hayes, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.

Vacated and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER joined. Judge DAVIS wrote a separate opinion concurring in the judgment.

OPINION

WILKINSON, Circuit Judge:

Appellant Dario Mendoza-Mendoza, a citizen of Mexico, pled guilty to one count of illegal entry into the United States following deportation, in violation of 8 U.S.C. § 1326. Mendoza argued that a Guidelines sentence was excessive in light of various facts peculiar to his case. The district court, however, sentenced Mendoza within the Guidelines.

At the very outset of its explanation, the district court stated that while it did not agree with the Guidelines range, it was "obligated" to give Mendoza a Guidelines sentence unless "a reason for a departure from those Guidelines, or a variance based on 18 U.S.C. § 3553" was present. Because prefacing a sentencing explanation with such obligatory terminology amounts to an impermissible presumption that a Guidelines sentence is appropriate, see Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), we believe the prudent course is to remand for re-sentencing. In doing so, however, we do not imply that the district court's Guidelines sentence was substantively unreasonable or that Rita remands are warranted in cases where there exists no serious possibility that the district court treated the Guidelines as presumptively binding.

I.

In 1997, Mendoza, then eighteen years old, illegally entered the United States from Mexico. He settled in Greenville, North Carolina, and began working in the construction industry. Mendoza had fathered two children back in Mexico, but in 2004 he became romantically involved with a Greenville woman. They now live together—we accept the government's characterization of the young woman as Mendoza's "common-law wife"—and are the parents of two young children of their own.

Their story is a bit more complicated, however, and not just because Mendoza was present in the United States illegally. At the time they met, the young woman told Mendoza she was nineteen years old. In fact, she was only fourteen, and her mother, upon learning of the relationship, promptly called the police. Mendoza was arrested and convicted in North Carolina court in July 2004 on two counts of taking indecent liberties with a child. See N.C. Gen.Stat. § 14-202.1. He was given a suspended sentence of fifteen to eighteen months, plus eighteen months' probation. Several weeks later, he was deported.

This was hardly the end of Mendoza's stay in the United States, however. Within days of being deported, he was arrested in Texas by U.S. border officials. He pled guilty to misdemeanor illegal entry, received a four-day custodial sentence, and was immediately re-deported. Later that year, he again illegally re-entered the United States, made his way back to Greenville, and resumed living with his common-law wife.

For several years, Mendoza managed to avoid attracting the notice of immigration officials, and it was during this period that his two children in Greenville were born, the first in 2005 and the second in 2007. In early 2008, however, a state-law assault charge was brought against him, and although he was never prosecuted, federal authorities were once again alerted to his presence. In May of that year, he was charged under 8 U.S.C. § 1326 with illegal entry into the United States following deportation.

He pled guilty on July 7, 2008. A presentence report was prepared, which calculated Mendoza's sentence under the Sentencing Guidelines as forty-six to fifty-seven months' imprisonment. This calculation reflected a substantial enhancement based upon his earlier indecent liberties conviction, which, in addition to raising his criminal history category, triggered a sixteen-level increase in his offense level because it was labeled a "crime of violence." See U.S. Sentencing Guidelines Manual §§ 2L1.2(b)(l)(A)(ii), 4Al.l(c), Ch. 5, Pt. A (Table) (2007); United States v. Diaz-Ibarra, 522 F.3d 343, 353 (4th Cir.2008). Without the indecent liberties conviction, his Guidelines range would have been zero to six months' imprisonment.

Mendoza argued that while his prior indecent liberties conviction might "technically and legally" qualify as a crime of violence under the Guidelines, "the court is not bound by the Guidelines and ... this is a prime example of the type of case where the Guidelines do not take into consideration sufficiently" the factors listed in 18 U.S.C. § 3553(a), which govern federal sentencing. Given his five-year continuing relationship with the young woman at the center of his indecent liberties conviction and given the fact that she and their two children were financially dependent on him and had been evicted from their home since his arrest, Mendoza argued his case was not one in which his prior conviction showed he was a danger to the public or that a strict sentence would be in the interest of the victim of his earlier crime.

The government responded that Mendoza had illegally entered the United States three times and that he "had his chance." It also argued that Mendoza did represent a danger to the public, pointing to a prior drunk driving conviction and three prior drunk driving arrests that had been dismissed, the assault charge that had led to his prosecution in this case, and an earlier assault charge that had been dismissed.

After hearing from both sides, the district court sentenced Mendoza to the Guidelines minimum of forty-six months, slightly less than four years. In announcing its conclusion, the district court made the following prefatory remarks:

I have determined, though I have not agreed with, that the Guideline calculations are correct, and unless I find a reason for a departure from those Guidelines, or a variance based on 18 U.S.C. § 3553, then I am obligated to pass a sentence within that Guideline range.

The court then discussed certain § 3553(a) factors and concluded none of them could be used to justify reducing Mendoza's sentence below the Guidelines minimum. The court rejected the government's claim that Mendoza was dangerous to others, but opined that since Mendoza had already illegally entered the United States three times, "the bottom line is that viewing it as objectively as I possibly can, I cannot see any reason for a variance." Mendoza now claims that the sentence imposed by the district court was procedurally unreasonable.

II.

We review briefly the sentencing framework relevant to this proceeding. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that sentence enhancements under the then-mandatory Sentencing Guidelines violated the Sixth Amendment right to trial by jury. Id. at 244, 125 S.Ct. 738. The Court chose to remedy the situation by rendering the Guidelines "effectively advisory." Id. at 245, 125 S.Ct. 738. Post-Booker, a sentencing court must begin "by correctly calculating the applicable Guidelines range." Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The Guidelines thus serve as "the starting point and the initial benchmark." Id. The ultimate question, however, is whether the sentence is "sufficient, but not greater than necessary" in light of the factors identified in § 3553(a). Kimbrough v. United States, 552 U.S. 85, 111, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting § 3553(a)).

A court therefore must proceed by giving the parties "an opportunity to argue for whatever sentence they deem appropriate." Gall, 552 U.S. at 49, 128 S.Ct. 586. It must then "make an individualized assessment based on the facts presented" to see whether the § 3553(a) factors support either party's claim. Id. at 49-50, 128 S.Ct. 586. Finally, the court must sufficiently explain its decision "to satisfy [an] appellate court that [it] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority" in light of § 3553(a). United States v. Carter, 564 F.3d 325, 328 (4th Cir.2009) (quoting Rita, 551 U.S. at 356, 127 S.Ct. 2456); see also Nelson v. United States, ___ U.S. ___, ___ - ___, 129 S.Ct. 890, 891-92, 172 L.Ed.2d 719 (2009) (per curiam); Gall, 552 U.S. at 50, 128 S.Ct. 586.

Under this regime, appellate courts examine sentencing determinations under an abuse-of-discretion standard, which translates to review for "reasonableness." Booker, 543 U.S. at 261-62, 125 S.Ct. 738. Reasonableness review has procedural and substantive components. See Gall, 552 U.S. at 51, 128 S.Ct. 586. Procedural reasonableness evaluates the method used to determine a defendant's sentence. A sentencing determination that does not conform to the procedural framework outlined above is procedurally unreasonable. Id. Substantive reasonableness examines the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). Id.

While it is clear that treating the Guidelines as mandatory is procedurally unreasonable after Booker, the precise role the Guidelines are to play in sentencing determinations has been a source of...