U.S. v. Sanchez, 89-1356
| Citation | 893 F.2d 679 |
| Decision Date | 19 January 1990 |
| Docket Number | No. 89-1356,89-1356 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sylvano SANCHEZ, Jr., Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Michael L. Brandes, Austin, Tex. (court appointed), for defendant-appellant.
LeRoy M. Jahn, AUSA, Asst. U.S. Atty. and Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court For the Western District of Texas.
Before GOLDBERG, GARWOOD and DAVIS, Circuit Judges.
Sylvano Sanchez (Sanchez) appeals the district court's application of the sentencing guidelines in determining Sanchez's sentence for a firearms violation. We affirm.
Sanchez pled guilty to a charge of making a false statement in the acquisition of a firearm. The court imposed a 36-month sentence, a three-year term of supervised release, a fine of $1000 and a special assessment of $50.
After Sanchez's arrest on this charge and while he was free on bond he unsuccessfully attempted to purchase a pistol. He then secured the help of another to acquire the firearm. He was also arrested for possession of marijuana and he continued to use a controlled substance, which violated the conditions of his release.
Under the sentencing guidelines, Sanchez had a total offense level of 9 with a criminal history category level of V, resulting in a sentencing range of 18 to 24 months. Based on Sanchez' conduct while on release, the district court departed from the sentencing guidelines and imposed a 36-month sentence. Sanchez lodged a timely appeal from that sentence.
Sanchez first contends that, because he surrendered to government agents after learning of the outstanding warrant for his arrest and he pled guilty, he should have received a two-level reduction in his offense level for acceptance of responsibility. The district court's determination of whether an accused is entitled to a reduction for acceptance of responsibility is subject to the clearly erroneous standard of review. United States v. Barreto, 871 F.2d 511, 513 (5th Cir.1989).
The district court declined to give the two-level reduction because it determined that Sanchez's conduct while he was on release "mitigate[d] against ... acceptance of responsibility." This determination was not clearly erroneous. Sentencing Guidelines Sec. 3E1.1 Application Note 3. Also, the "Background " explanation to Sec. 3E1.1 suggests that a showing of "sincere remorse" by the accused is the underlying rationale for reducing a sentence. The district court had every reason to conclude that Sanchez's involvement with firearms and controlled substances demonstrated a lack of remorse to justify this reduction. See United States v. Jordan, 890 F.2d 968 (7th Cir.1989).
Sanchez also challenges the district court's upward departure from the guidelines for his conduct while on release. This court must sustain the district court's departure from the applicable sentencing guideline range if the departure was reasonable. United States v. Mejia-Orosco, 867 F.2d 216, 218-19 (5th Cir.), clarified on reh'g, 868 F.2d 807, (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989).
A court may depart from the guidelines if " 'there exists an aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the ... guidelines.' " Sentencing Guidelines Sec. 5K2.0. The sections following Sec. 5K2.0 list specific circumstances where departures are appropriate. Increasing a sentence for conduct after the defendant's arrest and while he is free on bond, is not specifically covered. However, the enumerated considerations are not intended to be exclusive. Id. The Seventh Circuit has allowed such an upward departure. See Jordan, 890 F.2d 968 ().
A district court must provide acceptable reasons for a departure from the guidelines. United States v. Campbell, 878 F.2d 164, 165 (5th Cir.1989). The district court explained that it departed from the guidelines because they did not take into account Sanchez's "continuing unlawful behavior" while on release. In particular, the district court cited Sanchez's attempts to purchase a firearm and his continued use of controlled substances. The court also determined that the greater sentence would better enable Sanchez to obtain treatment for his drug addiction which was a likely cause of his illegal behavior. Based on the reasons given by the district court, its decision to depart from the guidelines was not an unreasonable one.
Sanchez next argues that even if an upward departure was warranted, the district court's departure was excessive. The degree of departure...
To continue reading
Request your trial
-
U.S. v. Branch
...v. Waloke, 962 F.2d 824, 832 (8th Cir.1992) (rejecting § 3E1.1 reduction where defendant claimed self-defense); United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990) (rejecting reduction due to defendant's lack of Finally, Branch argues that the district court departed upwards from the......
-
U.S. v. Lambert, 91-1856
...v. Harvey, 897 F.2d 1300, 1306 (5th Cir.1990).4 See, e.g., United States v. Carter, 953 F.2d 1449 (5th Cir.1992); United States v. Sanchez, 893 F.2d 679 (5th Cir.1990); United States v. Campbell, 878 F.2d 164 (5th Cir.1989); United States v. Geiger, 891 F.2d 512 (5th Cir.1989); United State......
- U.S. v. Mitchell
-
U.S. v. O'Banion, 90-2675
...justified in terms of the policies underlying the sentencing guidelines." Mejia-Orosco, 867 F.2d at 221. See also United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990). At the sentencing hearing, the district court determined that it would depart downward for the following And the cour......