U.S. v. Saez, 05-2001.

• Decision Date: 06 April 2006
• Docket Number: No. 05-2001.,05-2001.
• Parties: UNITED STATES of America, Appellee, v. Miguel SAEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

444 F.3d 15

UNITED STATES of America, Appellee, v. Miguel SAEZ, Defendant, Appellant.

No. 05-2001.

United States Court of Appeals, First Circuit.

Heard February 7, 2006.

Decided April 6, 2006.

Jonathan R. Saxe, Assistant Federal Public Defender, Federal Defender Office, for appellant.

Mark E. Howard, Assistant United States Attorney, for appellee.

Peter E. Papps, Assistant United States Attorney, and Thomas P. Colantuono, United States Attorney, on brief, for appellee.

Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

BOUDIN, Chief Judge.

In this appeal, Miguel Saez challenges the refusal of the federal district court in New Hampshire to sentence him below the guideline range. The principal basis urged by Saez for a below-guideline sentence is his claim that another judge in the same district court gave a shorter sentence to another defendant, Gay Finley, who had been involved in the same criminal conduct as Saez. The history is as follows.

In 2002 or 2003, Saez met Finley in a halfway house in Manchester, New Hampshire, after both had been released from prison; they moved in together after completing their terms at the halfway house and soon afterwards started using and selling heroin. The two were arrested in November 2003 after having sold heroin on two consecutive days to a cooperating informant for the Manchester police department.

Finley confessed her guilt and agreed to assist the government, but she first said (falsely) that Saez was not involved in the drug dealing. Confronted with audio tapes of the two drug transactions, Finley recanted her denial of Saez' involvement and cooperated truthfully with the government. She pled guilty in June 2004 to one count of distribution of heroin, 21 U.S.C. § 841(a)(1) (2000). On February 22, 2005, Judge Steven J. McAuliffe sentenced her to 39 months in prison.

Finley qualified as a career offender, see United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1 (2005); this categorization applies to one who is convicted of a felony that is either a crime of violence or a drug trafficking crime, and has at least twice before been convicted for such crimes, see id. § 4B1.1(a). Her career offender status automatically placed Finley in the highest criminal history category and made her subject to a higher offense level than would otherwise be applicable. Id. § 4B1.1(b).

In Finley's case, her resulting guideline range (after certain adjustments were made) was 84 to 105 months. This range seems to reflect Finley's assistance to the government (which recommended a six-level downward departure for substantial assistance, U.S.S.G. § 5K1.1) and Finley's claim that her "criminal history category substantially over-represents the seriousness of [her] criminal history," id. § 4A1.3(b)(1). In any event, her sentence of 39 months was expressly framed as a non-guideline sentence under the post-Booker regime.

Miguel Saez pled guilty in March 2005, before a different judge of the same court, Judge Paul J. Barbadoro, to one count of aiding and abetting the distribution of heroin. 21 U.S.C. § 841(a)(1); see also 18 U.S.C. § 2 (2000). Saez also qualified as a career offender, see U.S.S.G. § 4B1.1, and the amount of drugs attributed to him for sentencing purposes was 0.71 grams of heroin. Judge Barbadoro imposed on Saez a sentence of 130 months.

Saez' sentence was at the bottom of the applicable guideline range after the court applied a three-level downward adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1, and a two-level downward adjustment for rendering "substantial assistance" to federal authorities (which defense counsel agreed at the sentencing hearing was a fair adjustment), see id. § 5K1.1. Saez argued for a lower, non-guideline sentence based on the small amount of drugs in the count to which he pled and the lower sentence imposed on Finley. Judge Barbadoro refused and Saez has now appealed.

The framework for assessing sentences imposed after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has been set forth in our en banc decision in United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006). There we concluded that the guideline range, taking applicable departures into account, is the starting point for analysis but that the proponent of a higher or lower sentence is free to adduce reasons and facts to support it. Jiménez-Beltre, 440 F.3d 514, 518. On appeal, the primary issues will ordinarily be whether the sentence is reasonable and adequately explained, taking account both of the guidelines and of other statutory factors. Id. at 518-519.

Whether the ultimate sentence is within or without the guideline range, an appeal urging unreasonableness is permitted, Jiménez-Beltre, 440 F.3d at 517, as are claims that the court erred on the law or the facts, United States v. Robinson, 433 F.3d 31, 35 (1st Cir.2005). The government in this case argues that a sentence within the guidelines can never be regarded as unreasonable. We have rejected that position, Jiménez-Beltre, 440 F.3d at 517, which (whatever the theoretical claims in its favor) is contrary to explicit language in Booker. See 543 U.S. at 260-61, 125 S.Ct. 738.

Saez says that it was unreasonable to give him a 130-month sentence while Finley, also a career offender involved in the same drug transaction, received only 39 months from a different judge. Relatedly, he contends that the district court "refus[ed] to consider the sentence imposed upon Finley" when calculating his sentence, and thus failed to consider "the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6).

The first problem with Saez' argument is that the district court did not "refus[e] to consider" Finley's sentence in connection with Saez' sentencing, but rather determined that Saez had not provided enough information to the court to enable it to make a meaningful comparison of the two defendants, even if it had been inclined to do so. "In a case in which within the same conspiracy I'm sentencing both defendants," explained the judge at the sentencing hearing,

I hope that I would at least articulate for a defendant why one got a different sentence from the other, but I don't even need to do that here because I don't know anything about that case except for a very limited amount of information that's in [Saez' presentence investigation report] and what you and [the Assistant United States Attorney] ha[ve] told me.

* * *

I would be abdicating the responsibilities I have as the sentencing judge in this case if I were to simply take a sentence that another judge gave and use that as a baseline to either move up from it or down from it. As I said, I can't engage in that kind of analysis, if for no other reason [than] that I simply don't have enough information to make an independent assessment as to whether I would have given that defendant the same sentence, I don't know.

"[T]he proponent of a factor that would work in the proponent's favor has to provide the basis to support it." Jiménez-Beltre, 440 F.3d at 518 (citing United States v. Derbes, 369 F.3d 579, 582 (1st Cir.2004)). Judge Barbadoro had detailed information about the drug crime to which both Saez and Finley pled guilty in this instance, but he had little basis for comparing Finley's criminal history with that of Saez beyond the bare fact that both qualified as career offenders.

Saez conceded in the district court (as he does on appeal) that his record was "more serious" than Finley's; yet he offered no details as to how the two defendants' records differed, saying only that giving him 51 months would account for the difference. Thus, one of the two main variables in sentencing — criminal history — may well have been quite different. No valid comparison of sentences could be made without that information.

As it happens, we know that Judge McAuliffe found that Finley's own career offender status overstated her criminal history. One reason, it appears, is that one of Finley's predicate offenses under the career offender guideline was a failure to return to a halfway house on time; although this might be treated as a violent felony under First Circuit precedent, cf. United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004), it is obviously a pretty tame piece of conduct.

Conversely, Saez' record was indeed more "se...