U.S. v. Trujillo-Terrazas

• Decision Date: 13 April 2005
• Docket Number: No. 04-2075.,04-2075.
• Citation: 405 F.3d 814
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogelio TRUJILLO-TERRAZAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

405 F.3d 814

UNITED STATES of America, Plaintiff-Appellee, v. Rogelio TRUJILLO-TERRAZAS, Defendant-Appellant.

No. 04-2075.

United States Court of Appeals, Tenth Circuit.

April 13, 2005.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs.^* Carlos Ibarra-Aguirre, Assistant Federal Public Defender, Las Cruces, NM, for Defendant-Appellant.

David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.

Before, SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Mr. Trujillo appeals his sentence of 41 months imprisonment for illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326(a). Mr. Trujillo argues that his sentence is unconstitutional in light of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We evaluate this claim now that the Supreme Court has issued its decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that the district court committed plain error in sentencing Mr. Trujillo, and we VACATE his sentence and REMAND to the district court for resentencing in accordance with Booker.

I.

On October 8, 2003, a federal grand jury returned an indictment against Mr. Trujillo, charging him with illegal reentry after deportation. He pled guilty to the indictment without the benefit of a plea agreement on December 2, 2003. Applying the Sentencing Guidelines, the probation officer assigned a base offense level of 8, see U.S.S.G. § 2L1.2(a), and applied a 16-level enhancement because Mr. Trujillo had a prior Oklahoma conviction for arson, a crime of violence. See U.S.S.G. § 2L1.2(a)(1)(A)(ii). Mr. Trujillo received a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, resulting in a total offense level of 21. The district court followed the government's suggestion of sentencing Mr. Trujillo to 41 months of incarceration, the low end of the sentencing range.

At sentencing, the district court judge expressed reservations about imposing the sentence required by the then-mandatory Guidelines. A potential source of this hesitation was the comparatively innocuous nature of Mr. Trujillo's prior conviction in Oklahoma for third degree arson. Mr. Trujillo was upset that an ex-girlfriend had begun seeing someone new, and he acted on his frustration by throwing a lighted match into a 1980 Oldsmobile belonging to his ex-girlfriend's new love interest. The Oklahoma state court determined that the appropriate compensation for the fire damage was the paltry sum of $35.00. After hearing Mr. Trujillo's plea for leniency, the district court judge explained that while he was sympathetic to the defendant's argument, he was bound by the Guidelines. The judge stated:

Mr. Trujillo, you suggested that this is a lot of time that I want to give you. You know what? I don't want to send anybody to jail, and I wish that I didn't have to. And the fact is, as [your attorney] has explained to you, I'm sure, these Sentencing Guidelines are something that we're all struggling with, but they say what the minimum is that you have to do. And I'm sorry, you know, under the circumstances, that I have to do what I have to do.

Sentencing Transcript, R. Vol. 3 at 5-6. Mr. Trujillo argues that the district court's expressed reluctance to impose the sentence required by the Guidelines demonstrates the plain error in his sentencing.

II.

Mr. Trujillo did not raise the constitutional challenge during sentencing. Consequently, we review the decision of the district court for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, at 731, 2005 WL 807008 *3 (10th Cir.2005) (en banc); cf. Booker, 125 S.Ct. at 769 ("[W]e expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the `plain-error' test."). To establish plain error, Mr. Trujillo must demonstrate (1) that the district court committed error, (2) that the error was plain, and (3) that the plain error affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Gonzalez-Huerta, 403 F.3d at 732. If the error meets all these conditions, the reviewing court may exercise discretion to correct the error if it would seriously affect the fairness, integrity, or public reputation of judicial proceedings to let the error stand. Cotton, 535 U.S. at 631-32, 122 S.Ct. 1781. The analysis is relaxed when applied to potential constitutional error. United States v. James, 257 F.3d 1173, 1182 (10th Cir.2001).

1. Error

The district court erred in sentencing Mr. Trujillo. In Booker, the Court extended the logic of Blakely to the Federal Sentencing Guidelines, holding that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 125 S.Ct. at 756. To remedy the constitutional infirmity created by applying judge-found facts to mandatory sentencing guidelines, the Court severed the provision of the federal sentencing statute making application of the Guidelines mandatory. Id. at 756-57 (excising 18 U.S.C. § 3553(b)(1)). The effect of the remedy in Booker was to render the Guidelines advisory. Id. This rule applies to all cases on direct review, id. at 769; thus it was erroneous for the district court to treat the Guidelines as mandatory in sentencing Mr. Trujillo.

We stress, however, that the error in this case was not constitutional in nature. Nothing in Booker — or in the logic of the Sixth Amendment or the Due Process Clause — suggests that it is unconstitutional for Congress to establish a sentencing scheme that does not entail judicial discretion. The Booker majority's holding that the Guidelines are not mandatory was remedial in nature. See id. at 756-57 (Breyer, J.). The Court severed the provisions of the statute making the Guidelines mandatory, not because mandatory sentencing ranges are unconstitutional, but because allowing judges to decide contested questions of fact, pursuant to a preponderance of the evidence standard, is unconstitutional when such factfinding leads ineluctably to a higher sentence than would be warranted by the facts found by the jury or admitted by the defendant. By rendering the Guidelines discretionary, the Court saved the process of judicial factfinding from unconstitutionality under the Sixth Amendment. In this case, the sentencing court did not increase Mr. Trujillo's sentence by resolving contested questions of fact; the enhancements to the sentence were purely a product of prior convictions. The error here was therefore not constitutional in nature. See Gonzalez-Huerta, 403 F.3d at 731-732.

2. Plain

There is no doubt that the error here is plain. To be plain, an error must be "clear or obvious" under "well-settled law." United States v. Whitney, 229 F.3d 1296, 1309 (10th Cir.2000). An error is plain "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal." Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). That is the situation here. Because the district court treated the Guidelines as mandatory, Mr. Trujillo's sentence is contrary to Booker. Gonzalez-Huerta, 2005 WL 807008 *3. This observation does not, of course, reflect negatively on the district court, which was simply applying the law in effect at the time.

3. Affects Substantial Rights

The third prong of plain error analysis inquires whether the error in sentencing Mr. Trujillo affected his substantial rights. For an error to have affected substantial rights, "the error must have been prejudicial: It must have affected the outcome of the district court proceedings." United States v. Olano, 507 U.S. at 725, 734, 113 S.Ct. 1770 (1993). The burden to establish prejudice to substantial rights is on the party that failed to raise the issue below. See United States v. Vonn, 535 U.S. 55, 63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Gonzalez-Huerta, 403 F.3d at 731. To demonstrate that the mandatory application of the Guidelines affected substantial rights, a defendant must show a "reasonable probability" that the defects in his sentencing altered the result of the proceedings. Cf. U.S. v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004) ("In cases where the burden of demonstrating prejudice ... is on the defendant seeking relief, we have invoked a standard ... requiring the showing of `a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.'") (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.)). Mr. Trujillo can make this showing by demonstrating a reasonable probability that had the district court applied the post-Booker sentencing framework, he would have received a lesser sentence.

Prior to Booker, district courts were closely tethered to the Guidelines when sentencing. Section 3553(b)(1) permitted sentences outside the range determined by the Guidelines only in a narrow set of circumstances defined by the Sentencing Commission. After Booker, district courts have a freer hand in determining sentences. While the Guidelines still exert gravitational pull on all sentencing decisions — district courts must "consult" the Guidelines, and sentences that unreasonably depart from the suggested sentencing range are at risk of reversal on appeal, Booker, 125 S.Ct. at 767 — district courts now have more discretion to tailor sentences to the individual circumstances of a defendant. Booker suggests that the sentencing factors articulated in § 3553(a), which the mandatory application of the Guidelines made dormant, have a...