U.S. v. Vasquez, 03-1763.

• Decision Date: 10 November 2004
• Docket Number: No. 03-1763.,03-1763.
• Citation: 389 F.3d 65
• Parties: UNITED STATES of America, Appellee, v. Ricardo VASQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

389 F.3d 65

UNITED STATES of America, Appellee, v. Ricardo VASQUEZ, Defendant-Appellant.

No. 03-1763.

United States Court of Appeals, Second Circuit.

Argued: October 1, 2004.

Decided: November 10, 2004.

George G. Kouros, New Haven, CT (Richard A. Reeve, Sheehan & Reeve, New Haven, CT, on the brief), for Defendant-Appellant.

Anastasia Enos, Asst. U.S. Atty., Bridgeport, CT (Kevin J. O'Connor, U.S. Atty., Jeffrey A. Meyer, William J. Nardini, Asst. U.S. Attys., Akiva Goldfarb, Yale Law Student Intern, Bridgeport, CT, on the brief), for Appellee.

Before: NEWMAN, McLAUGHLIN, and WESLEY, Circuit Judges.

NEWMAN, Circuit Judge.

This sentencing appeal concerns the procedural issue of the standard of review for decisions applying the Sentencing Guidelines to facts — in this case a decision applying the Guidelines' grouping rules — and the substantive issue of whether two episodes of unlawful sexual activity by a prison guard with an inmate, occurring on separate days, should be included in a single group. These issues arise on an appeal by Ricardo Vasquez, formerly a federal prison guard, from the November 6, 2003, judgment of the United States District Court for the District of Connecticut (Alvin W. Thompson, District Judge). The judgment sentenced Vasquez principally to 21 months' imprisonment after his plea of guilty to several counts charging sexual abuse of prisoners at the Federal Correctional Institution at Danbury, Connecticut ("FCI-Danbury") and one count of making a false statement.

Although opinions from this Circuit have used various formulations to describe the standard of review of decisions applying the Guidelines to the facts of a case, we conclude, in light of Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), that the statutory requirement of "due deference to the district court's application of the guidelines to the facts," 18 U.S.C. § 3742(e) (Supp. II 2003), requires us to select either "de novo" review or "clearly erroneous" review depending on the primary nature of the application determination at issue. We further conclude that "de novo" review is appropriate in the circumstances of this case and, applying that standard, that the District Court's decision not to group the sexual offenses against the same inmate that occurred on different days was correct. We therefore affirm.

Background

Vasquez, while serving as a guard¹ at FCI-Danbury, engaged in sexual activity with four female prisoners. He had sexual intercourse with one inmate on one occasion; with a second inmate he had sexual intercourse on two consecutive days; with a third inmate he had sexual intercourse on one occasion and a few days later caused her to perform fellatio on him; and with a fourth inmate he engaged in repeated sexual touchings. The episode with the first inmate, each of the two episodes with the second inmate, and each of the two episodes with the third inmate were the subject of five separate counts of violating 18 U.S.C. § 2243(b), which is captioned "Sexual abuse of a minor or ward."² The several episodes with the fourth inmate were the subject of one count of violating 18 U.S.C. § 2244(a)(4), which is captioned "Abusive sexual contact."³ During the trial, Vasquez pled guilty to the five counts of violating section 2243(b), the one count of violating section 2244(a)(4), and one count of making a false statement in violating of 18 U.S.C. § 1001(a)(2).

The Guidelines calculation concerned only the section 1001(a)(2) count and the five section 2243(b) counts because the section 2244(a)(4) offense is a Class B misdemeanor (maximum sentence of six months), see 18 U.S.C. § 3559(a)(7), which is not subject to the Guidelines, see U.S.S.G. § 1B1.9. The presentence report ("PSR") recommended the base offense level of 6 for the false statement count, see U.S.S.G. § 2B1.1(a)(2), and the base offense level of 9 for each of the five section 2243(b) counts, see id. § 2A3.3(a).

Then, pursuant to the "grouping" rules, id. §§ 3D1.1-.5, the PSR recommended that the section 1001 count and each of the five section 2243(b) counts should be a separate group, see id. § 3D1.2, for a total of six groups. The PSR further recommended a total offense level of 14, calculated by starting with 9, the highest offense level for any one of the six groups, see id. § 3D1.4, and adding one level for each of the five other groups, all of which were counted as a "unit" because they were equally serious and within four levels of the count with the highest offense level, see id. § 3D1.4(a).

The Defendant contended that the two section 2243(b) counts for sexual misconduct with the second inmate should have been included in one group, rather than two, and made the same argument with respect to the two section 2243(b) counts for sexual misconduct with the third inmate. The District Court rejected these claims, ruling that each episode of sexual misconduct with respect to the same victim on separate days was a separate harm for purposes of grouping.

The total offense level of 14 yielded a sentencing range of 15-21 months. The District Court selected a punishment of 21 months, and implemented the punishment by imposing 21 months on the false statement count, which carried a five-year maximum, 12 months concurrently on each of the section 2243(b) counts, which carried a one-year maximum, and six months concurrently on the section 2244(a)(4) count, which carried a six-months maximum. See id. § 5G1.2(c).

Discussion

We consider first the appropriate approach to selecting a standard of review, then the standard of review applicable to the determination on this appeal, and then the merits of the Appellant's claim of improper grouping.

1. Selecting the Standard of Review

It is well settled that upon review of a Guidelines sentence the interpretation of a sentencing guideline is a question of law, subject to de novo review, see, e.g., United States v. Napoli, 179 F.3d 1, 6 (2d Cir.1999), and that a sentencing judge's finding of fact may not be disturbed unless clearly erroneous, see, e.g., United States v. Woodard, 239 F.3d 159, 161 (2d Cir.2001). Some uncertainty is encountered, however, in considering issues that are not easily categorized as issues of either fact or law. The most common problem concerns review of a sentencing judge's application of a guideline to the facts. Sometimes, what appears to be an "application" of a guideline is really an interpretation, as when a sentencing judge says, "I think that Guideline × means y, and I will therefore apply that meaning to facts a, b, and c." Difficulties arise when the sentencing judge is not so precise and simply says, "Based on my interpretation of Guideline × and the facts of this case, as I find them to be, I conclude that the Guideline applies [or is inapplicable]."

Congress endeavored to prescribe the standard of review for decisions applying the guidelines: "The court of appeals ... shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). The Supreme Court has instructed that "[t]he deference that is due depends on the nature of the question presented." Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (ruling that "abuse of discretion" was proper standard for reviewing decision to depart from applicable sentencing range). That instruction is clear enough when the nature of the question is an issue of law, to which de novo review applies, and when the nature of the question is factual, to which the "clearly erroneous" standard applies, but the instruction does not provide guidance when the issue is whether the sentencing judge has properly applied a guideline to the facts.

Our Court has used five different formulations in articulating the standard of review of an application of a guideline to the facts.

(a) De novo. In a long series of decisions we have said that we review a district court's "interpretation and application of the [Sentencing] Guidelines de novo," United States v. Santiago, 384 F.3d 31, 33 (2d Cir.2004) ("Luis Santiago") (emphasis added). See, e.g., United States v. Smythe, 363 F.3d 127, 128 (2d Cir.2004) (same); United States v. Maaraki, 328 F.3d 73, 75 (2d Cir.2003) (same); United States v. Szur, 289 F.3d 200, 215 (2d Cir. 2002) (same). With one exception,⁴ all of our decisions stating the de novo standard can be traced back through a series of citations to a decision that did not state a de novo standard, but instead merely set forth the statutory standard of giving "due deference to the district court's application of the guidelines to the facts," 18 U.S.C. § 3742(e). See United States v. Deutsch, 987 F.2d 878, 884-85 (2d Cir.1993). The chain of citations back to Deutsch is set out in the margin.⁵

(b) Abuse of Discretion. Another line of decisions states that the standard is abuse of discretion. This standard was recently stated in United States v. Ravelo, 370 F.3d 266, 269 (2d Cir.2004) ("We review... the application of the Guidelines to [the district court's] findings for abuse of discretion unless the application presents a purely legal question, in which case we employ a de novo standard of review.") and in United States v. Coriaty, 300 F.3d 244, 249 (2d Cir.2002) ("[W]e ... will not overturn the court's application of the ... Guidelines to the facts before it unless we conclude that there has been an abuse of discretion."). Ravelo and Coriaty cite United States v. Deming, 269 F.3d 107, 109 (2d Cir.2001) (same), which cites United States v. Hernandez-Santiago, 92 F.3d 97, 100 (2d Cir.1996) (same), which cites United States v. Santiago, 906 F.2d 867, 871 (2d Cir.1990) ("Alvin Santiago") (same). Alvin Santiago provides no citation for its statement of an "abuse of discretion" standard.⁶

(c) Clearly erroneous. One decision stated the standard to be "clearly erroneous" review. See United States v. Lanese, 890 F.2d 1284, 1291 (2d Cir.1989) ("The...