U.S. v. Olivares

• Decision Date: 19 December 2006
• Docket Number: No. 05-3058.,05-3058.
• Citation: 473 F.3d 1224
• Parties: UNITED STATES of America, Appellee v. Guidel OLIVARES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1224

473 F.3d 1224

UNITED STATES of America, Appellee v. Guidel OLIVARES, Appellant.

No. 05-3058.

United States Court of Appeals, District of Columbia Circuit.

Argued October 6, 2006.

Decided December 19, 2006.

Appeal from the United States District Court for the District of Columbia (No. 04cr00355-07).

Andrew J. Delehanty, appointed by the court, argued the cause and filed the briefs for appellant.

David B. Goodhand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III and Barbara E. Kittay, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and ROGERS and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Guidel Olivares appeals the judgment of conviction on the ground that the district court erred in denying his request for a downward adjustment of four levels under Sentencing Guidelines § 3B1.2 because of his minimal role in the charged conspiracy and in denying a downward departure of six months because he was an alien facing deportation. Upon examining our standard of review under an advisory sentencing Guidelines scheme, we find neither legal error nor grounds to conclude that the sentence was otherwise unreasonable. Accordingly, we affirm.

I.

Olivares and others were indicted in connection with a series of bank robberies in 2004.¹ He pleaded guilty to conspiracy to commit armed bank robbery, 18 U.S.C. § 371. Although there was no evidence that Olivares was present at any of the bank robberies or related shootings, the proffered evidence showed that on April 23, two of the bank robbers shot two men with a Taurus handgun and a Glock 19 handgun that they had purchased from Olivares. Further, after the June 29 robbery, three of the robbers "stashed" their gear and money at Olivares' apartment on Sherman Avenue in Northwest Washington, D.C. Olivares accepted money for keeping two suitcases. During the execution of a search warrant at Olivares' apartment, officers recovered money from the bank robberies, four AK-47 assault rifles, an AR-15 rifle receiver, an AR-15 assault rifle, three Glock handguns, three INTRATEC TEC-9 semi-automatic assault weapons, a MAC-9 firearm, a MAC-90 assault rifle, a Beretta handgun, two Cobray-11 handguns, and various magazines, barrels, and ammunition. All of the items belonged to the robbers and had been used in connection with the bank robberies.

The district court sentenced Olivares to imprisonment for fifty-seven months, followed by three years of supervised release, and payment of $23,000 in restitution. The Guidelines range was fifty-one to sixty-three months. This was based on the finding that Olivares' base level offense was twenty; the addition of ten points: (1) two points because the property of a financial institution was taken, (2) seven points because a weapon was discharged in the course of the offense, and (3) one point because the loss exceeded $10,000; and the subtraction of three points each because of Olivares' acceptance of responsibility and because of his relatively minimal role in the conspiracy. The district court rejected Olivares' requests for a four-point downward adjustment for his role in the offense as a "minimal participant" and for a six-month downward departure as a deportable alien. The total offense level was twenty-seven and Olivares had a criminal history category of I.

II.

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court rendered the Sentencing Guidelines advisory and instructed appellate courts to review sentences for reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). Id. at 244-45, 260-61, 125 S.Ct. 738. Accordingly, under a post-Booker framework for reviewing the reasonableness of sentences, the court has adopted what amounts to a two-step process. First, the court determines whether there was legal error. "[A] sentence would not be `reasonable,' regardless of length, if legal errors, properly to be considered on appeal, led to its imposition." United States v. Price, 409 F.3d 436, 442 (D.C.Cir.2005) (citation omitted). Legal error encompasses not only incorrect legal interpretations of the Guidelines, but also incorrect applications of the Guidelines to the facts. Id. at 442-45. Second, in the absence of legal error, the court reviews the overall reasonableness of the district court's sentence "to ensure that it is reasonable in light of the sentencing factors that Congress specified in [] § 3553(a)." Id. at 442 (citing Booker, 543 U.S. at 260-64, 125 S.Ct. 738); see also United States v. Dorcely, 454 F.3d 366, 373 (D.C.Cir. 2006) (and cases cited). "These factors include, among others, the nature of the offense, the defendant's history, the need for the sentence to promote adequate deterrence and to provide the defendant with needed educational or vocational training, any pertinent policy statements issued by the Sentencing Commission, the need to avoid unwarranted sentencing disparities among similarly situated defendants, and the need to provide restitution to any victims." Price, 409 F.3d at 442 (citing 18 U.S.C. § 3553(a)).

Olivares appeals the denial of a four-point downward adjustment and of a six-month downward departure on the ground of district court error. Because his claims of error are based on the facts before the district court at sentencing, we understand his claim to be, ultimately, that his sentence was unreasonable. We address our standard of review for each of his claims of error² and then address the reasonableness of his sentence.

A.

Prior to the Supreme Court's decision in Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, this court reviewed the district court's application of the Guidelines to the facts under a due deference standard and would accordingly have reviewed the district court's three-point downward adjustment for Olivares' role in the offense under this standard. See, e.g., United States v. Mellen, 393 F.3d 175, 183 (D.C.Cir.2004) (citing 18 U.S.C. § 3742(e)). In Booker, the Supreme Court struck 18 U.S.C. § 3742(e) as violative of the Sixth Amendment right to a trial by jury and instructed that sentences shall be reviewed for reasonableness. Booker, 543 U.S. at 244-45, 260-61, 125 S.Ct. 738. This court noted the issue of whether our pre-Booker precedent continues to control in United States v. Tabron, 437 F.3d 63, 65 (D.C.Cir. 2006), but had no occasion to address the issue as the sole claim was that in ascribing the weapon possession to the defendant as relevant conduct, the district court erred as a matter of law, id. at 65-66.

A number of circuit courts of appeal have continued after Booker to apply the pre-Booker due deference standard of review to the district court's application of the Guidelines to the facts. See, e.g., United States v. Clay, 176 Fed.Appx. 360, 362 (4th Cir.2006); United States v. Ledesma, 160 Fed.Appx. 183, 185 n. 1 (3d Cir.2005) (citing United States v. Thomas, 327 F.3d 253, 255 (3d Cir.2003)); United States v. Rowe, 159 Fed.Appx. 693, 696 (6th Cir. 2005); United States v. Agudelo, 414 F.3d 345, 348 (2d Cir.2005) (citing United States v. Lincecum, 220 F.3d 77, 80 (2d Cir. 2000)); United States v. Iacullo, 140 Fed. Appx. 94, 96 (11th Cir.2005); United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.2005). The few circuit courts of appeal that applied a de novo or abuse of discretion standard prior to Booker have also continued to apply these standards after Booker. See, e.g., United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005)³ (citing United States v. Barnes, 125 F.3d 1287, 1290 (9th Cir.1997)); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)⁴; United States v. Turner, 400 F.3d 491, 500 (7th Cir.2005).⁵ As explained by the Eleventh Circuit:

Although Booker established a "reasonableness" standard for the sentence finally imposed on a defendant, the Supreme Court concluded in Booker that district courts must still consider the Guidelines in determining a defendant's sentence. Nothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the Guidelines by a district court.

United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005) (citations omitted). Similarly, the Fifth Circuit in Villegas explained:

Booker left standing all sections of the Sentencing Reform Act other than §§ 3553(b)(1) and 3742(e). Thus, § 3742(a) still remains in force, providing that "[a] defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence . . . was imposed as a result of an incorrect application of the sentencing guidelines." Moreover, § 3742(f) still provides: "If the court of appeals determines that . . . the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate." The survival of these provisions further counsels that we maintain our review of the district court's interpretation . . . .

404 F.3d at 361-62 (first two omissions in original) (internal citations omitted).

We need not decide whether our due deference standard, see Mellen, 393 F.3d at 183, survives excision of 18 U.S.C. § 3742(e), because Olivares fails to show legal error. Cf. Tabron, 437 F.3d at 65-66. Olivares does not deny what the evidence shows regarding his participation in the conspiracy or his admissions to the district court during the FED. R. CRIM. P. 11 colloquy. Nevertheless, in challenging the district court's denial of a full four-point downward adjustment as error, Olivares contends that his "participation could hardly be less." Appellant's Br. at 7.

The district court noted Olivares' acts of...