U.S. v. Pea-Hermosillo, No. 06-8075.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMcConnell
Citation522 F.3d 1108
Decision Date15 April 2008
Docket NumberNo. 06-8075.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Louiz PEÑA-HERMOSILLO, Defendant-Appellee.
522 F.3d 1108
UNITED STATES of America, Plaintiff-Appellant,
v.
Louiz PEÑA-HERMOSILLO, Defendant-Appellee.
No. 06-8075.
United States Court of Appeals, Tenth Circuit.
April 15, 2008.

[522 F.3d 1109]

Kenneth R. Marken, Special Assistant United States Attorney (Matthew H. Mead, United States Attorney, David A. Kubichek, Assistant United States Attorney with him on the briefs), Casper, WY, for the Plaintiff-Appellant.

David L. Serelson, Cheyenne, WY, for the Defendant-Appellee.

Before McCONNELL, SEYMOUR, and EBEL, Circuit Judges.

McCONNELL, Circuit Judge.


The government appeals the district court's decision to sentence the defendant to 121 months in prison, well below the applicable advisory Sentencing Guidelines range. Prior to varying downward, the court rejected the applicability of two sentencing enhancements recommended by the pre-sentence report and urged by the government. We find that the district court committed procedural error in its calculation of the advisory Guidelines range because it did not provide a sufficient explanation for its denial of the enhancements. We also find that the court's alternative holding that the 121-month sentence "would be imposed even if the advisory guideline range was determined to be improperly calculated" was likewise procedurally unreasonable. R. 70. We therefore reverse and remand to the district court to vacate and resentence.

I. Background

All background facts are adopted from the pre-sentence report (PSR) and the sentencing hearing. Defendant-Appellee Louiz Peña-Hermosillo started dealing drugs in 2001 at the age of sixteen. Around this time, he began living with Ms. Janae Kelly, who was twelve. She gave birth to Mr. Peña-Hermosillo's child just after her fourteenth birthday. She began to perform drug-selling activities a month before the child was born, in April 2003. From that time until Mr. Peña-Hermosillo was arrested two years later, Ms. Kelly sold cocaine and methamphetamine and made between thirty and forty trips to Utah and an unstated number of trips to Colorado to deliver money and retrieve drugs. In two separate interviews with police, she stated that she made these trips on the defendant's behalf, but in court she

522 F.3d 1110

stated that the defendant didn't tell her what to do and that she "had a mind of [her] own." R. at 62.

On January 3, 2005, the police stopped Mr. Peña-Hermosillo for a traffic violation. He was driving with companions, one of whom was Roberto Becerill-Garcia. The officer searched the vehicle and found approximately one ounce of methamphetamine, a small amount of marijuana, two handguns, and approximately $3,400 in cash. The officer arrested Becerill-Garcia for possession of methamphetamine and Mr. Peña-Hermosillo for the traffic offense. Later, Becerill-Garcia told an investigator that they had been on a drug run from Casper, Wyoming to Uma, Colorado, and that Mr. Peña-Hermosillo was a major drug dealer who had intimidated Becerill-Garcia into going on the run with him. Becerill-Garcia also told the officers that during the traffic stop, Mr. Peña-Hermosillo called his new girlfriend and ordered her to "clean house," which was code for getting rid of any drugs at Becerill-Garcia's home, one of Mr. Peña-Hermosillo's storage locations. When the police later searched this location, they found a large quantity of different types of ammunition, but no guns or drugs.

Soon after, police started meeting with several confidential informants familiar with Mr. Peña-Hermosillo's activities. These individuals informed the police that Mr. Peña-Hermosillo was using Mike Hogan's home, in addition to Becerill-Garcia's home, as a hiding place for methamphetamine and cocaine. Mr. Peña-Hermosillo also stored methamphetamine at his own home.

On March 11, 2005, Mr. Peña-Hermosillo was again stopped by the police, this time immediately after selling one ounce of methamphetamine to Mike Hogan. During their search, the police found a black wallet with $650 in cash, two small baggies of suspected cocaine, and an additional $1560 in cash, all but ten dollars of which was obtained during the drug deal. After receiving Miranda warnings, Mr. Peña-Hermosillo admitted to selling drugs to Mike Hogan and confessed to obtaining drugs from various sources over the past month. During a subsequent search of the defendant's home, the police found drug paraphernalia, guns, marijuana, and methamphetamine.

Mr. Peña-Hermosillo was arraigned on drug charges in state court as a result of the March 11 arrest. He was released on bond. On June 17, 2005, while he was still out on bond, officers found him in possession of additional methamphetamine.

Mr. Peña-Hermosillo was charged and pleaded guilty to four federal drug charges: (1) conspiracy to possess with intent to distribute and to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A); (2) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (3) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and (4) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The statutory minimum sentence, based on Counts One and Two, was ten years; the maximum was life.

The probation officer prepared a presentence report, recommending an initial offense level of 36 with a criminal history category II. The PSR then recommended a three-level adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1(a), a two-level enhancement for use of a gun, U.S.S.G. § 2D1.1(b)(1), and two additional enhancements for the use of a minor and for acting as a manager/supervisor of criminal activity involving five or more persons. U.S.S.G. § 3B1.4; U.S.S.G. § 3B1.1(b). With the enhancements, the offense level was 40 and the advisory Guidelines range

522 F.3d 1111

was 324-405 months. Mr. Peña-Hermosillo objected to these latter two enhancements.

Both the defendant and the prosecutor sought to introduce witness testimony with respect to the challenged enhancements. Defense counsel informed the court that Ms. Kelly was present and would tell the court that Mr. Peña-Hermosillo

didn't tell her what to do and ... didn't supervise her and ... didn't manage her and she has a drug problem and she has since been through drug treatment ... [and] holds no remorse toward Mr. Peña or any expectation that her conduct was related to anything but her own choices and not any pressure or any management or any supervision of Mr. Peña.

R. at 34. Ms. Kelly was allowed to make an unsworn statement. She informed the court that she had "been around drugs since before [she] was ... born," id. at 61, and that "it's not like he told people what to do. I have a mind of my own," id. at 62.

The prosecutor informed the sentencing judge that an investigator was prepared to testify in support of the challenged enhancements. The district court, however, declined to hear the prosecution's witness. The prosecutor then made an extensive oral proffer of the evidence that would have been presented, which largely tracked the evidence summarized in the PSR.

The district judge denied both enhancements, finding that Mr. Peña-Hermosillo's relationship with Ms. Kelly did not fall within the "spirit" of the use of a minor enhancement, R. 48, and that "I don't feel that you were a manager." Id. at 66. He made few additional factual findings and offered no written explanation.

Without the two disputed enhancements, the range was 188-235 months. The district court found that the minimum Guidelines sentence of 188 months

is entirely wrong for a young man who is 20, and admits his error and wants to do better, and I think because of your youth, and because of these factors in Section 3553, that the need for the sentence imposed should reflect the seriousness of the offense.

I think that a 10-year sentence certainly does that and it should ... afford adequate deterrence to criminal conduct and I think the 10-year mandatory minimum certainly affords deterrence, and third, it should protect the public from further crimes. I think for 10 years the public is going to be protected....

Id. The court therefore decided to reduce the offense level an additional four levels, and to impose a sentence of 121 months — one month above the statutory minimum for Counts One and Two. The court then stated that "the same sentence would be imposed even if the advisory guideline range was determined to be improperly calculated." Id. at 70.

II. Applicability of Guidelines Enhancements

The government challenges the district court's refusal to apply the "manager or supervisor" enhancement of U.S.S.G. § 3B1.1(b) and the "use of a minor" enhancement of U.S.S.G. § 3B1.4. Both enhancements were recommended by the PSR, which recited the evidence supporting them.

The defendant lodged timely objections to both enhancements. These objections triggered the judge's fact-finding and explanatory duties. Under Fed.R.Crim.P. 32(i)(3)(B), the district court is required "for any disputed portion of the presentence report or other controverted matter — [to] rule on the dispute...." Id. Though "[a] ruling on a disputed issue need not be exhaustively detailed ... it must be definite and clear." United States

522 F.3d 1112

v. Williams, 374 F.3d 941, 947 n. 9 (10th Cir.2004). At the very least, the district court must find and articulate sufficient facts and reasons to allow us to review the appropriateness of the enhancement; without such findings, we would have to engage in conjecture to divine the basis for the district court's ruling. Failure to provide proper explanation for the chosen sentence is reversible procedural error. See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

A. The Manager-Supervisor enhancement

A defendant receives a three-point increase in criminal offense level if he "was a manager or...

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31 practice notes
  • United States v. Zar, Nos. 13–1111
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 23, 2015
    ...fails to make adequate findings or comply with Rule 32, we remand for further findings. See, e.g., United States v. Peña–Hermosillo, 522 F.3d 1108, 1113 (10th Cir.2008) ; United States v. Brown, 164 F.3d 518, 522 (10th Cir.1998). But Derek Zar does not seek that remedy. Instead, he urges us......
  • U.S. v. Henson, No. 07-1993.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 24, 2008
    ...3. We respectfully disagree with our dissenting colleague that this case is "analogous" to United States v. Pena-Hermosillo, 522 F.3d 1108 (10th Cir.2008), where the court deemed a district court's explanation inadequate to explain an alternative holding. Post, at 745. In that cas......
  • United States v. Gomez-Jimenez, Nos. 12–5030
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 29, 2014
    ...sentence provided “detailed explanation of the basis for the parallel result”); see also [750 F.3d 390]United States v. Peña-Hermosillo, 522 F.3d 1108, 1117 (10th cir.2008) (“Indeed, it is hard for us to imagine a case where it would be procedurally reasonable for a district court to announ......
  • United States v. Sanchez-Leon, No. 13–1401.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 25, 2014
    ...despite the sentencing court's stating it would give the same sentence irrespective of the error, see United States v. Peña–Hermosillo, 522 F.3d 1108, 1117–18 (10th Cir.2008) (concluding error not cured where district court failed to explain the reasoning behind alternative sentence of same......
  • Request a trial to view additional results
31 cases
  • United States v. Zar, Nos. 13–1111
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 23, 2015
    ...fails to make adequate findings or comply with Rule 32, we remand for further findings. See, e.g., United States v. Peña–Hermosillo, 522 F.3d 1108, 1113 (10th Cir.2008) ; United States v. Brown, 164 F.3d 518, 522 (10th Cir.1998). But Derek Zar does not seek that remedy. Instead, he urges us......
  • U.S. v. Henson, No. 07-1993.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 24, 2008
    ...3. We respectfully disagree with our dissenting colleague that this case is "analogous" to United States v. Pena-Hermosillo, 522 F.3d 1108 (10th Cir.2008), where the court deemed a district court's explanation inadequate to explain an alternative holding. Post, at 745. In that cas......
  • United States v. Gomez-Jimenez, Nos. 12–5030
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 29, 2014
    ...sentence provided “detailed explanation of the basis for the parallel result”); see also [750 F.3d 390]United States v. Peña-Hermosillo, 522 F.3d 1108, 1117 (10th cir.2008) (“Indeed, it is hard for us to imagine a case where it would be procedurally reasonable for a district court to announ......
  • United States v. Sanchez-Leon, No. 13–1401.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 25, 2014
    ...despite the sentencing court's stating it would give the same sentence irrespective of the error, see United States v. Peña–Hermosillo, 522 F.3d 1108, 1117–18 (10th Cir.2008) (concluding error not cured where district court failed to explain the reasoning behind alternative sentence of same......
  • Request a trial to view additional results

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