U.S. v. Zavala

• Decision Date: 11 April 2006
• Docket Number: No. 05-30120.,05-30120.
• Citation: 443 F.3d 1165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio ZAVALA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

443 F.3d 1165

UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio ZAVALA, Defendant-Appellant.

No. 05-30120.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2006.^*

Filed April 11, 2006.

Dennis M. Charney, Eagle, ID, for the defendant-appellant.

Monte J. Stiles, Assistant United States Attorney, Boise, ID, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CR-02-00079-12-BLW.

Before: FERNANDEZ, TASHIMA, and PAEZ, Circuit Judges.

PER CURIAM:

Juan Antonio Zavala appeals the sentence that was imposed upon him after he was convicted of conspiracy to distribute or to possess with intent to distribute methamphetamine and of distribution of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. His sole claim on appeal is that the district court violated Booker¹ when it "presumed" that the advisory Sentencing Guideline calculation set forth the proper range for sentencing. We vacate the sentence and remand.

BACKGROUND

After Zavala was convicted, the sentencing process took hold, but before it was complete the Supreme Court decided Booker. The parties and the district court were well aware of that fact. Because it knew that it must consult the Sentencing Guidelines, which were now advisory, the district court then issued a presentencing order in which it calculated the Guideline range. That calculation generated a life sentence as the "range."² At the commencement of the sentencing hearing, the district court assumed that the calculated "Guideline range becomes a presumptive sentence," and the court must then decide if the other factors in 18 U.S.C. § 3553(a) "would justify the Court in imposing a lesser sentence than that set forth in the Guideline range." Moreover, the district court declared that the burden was on Zavala to explain any justification for imposing a different sentence—one below life imprisonment.

The government then argued for a life sentence. When Zavala's attorney's turn to address the district court came around, he started by noting that the court had commented that the Guideline range was the "presumptive sentence." The court rejoined: "Well, in the sense that it is a Guideline.... So that's the starting point." Counsel started to argue the point, but the district court said: "Wait, wait, wait, counsel.... [A]lthough the Supreme Court in Booker and Fanfan said that they are advisory ... they still clearly indicated, in fact I think they used the language that `the majority'—they may even have used the words `the vast majority'—of the sentences may fall within the Guideline range.... How then can I say the starting point is not the Guideline range, but, rather, the statutory minimum?"

The argument went on, with counsel insisting that the starting point should be the statutory minimum. Finally, the district court came to the sentencing itself and explained its thinking as follows:

I am most impressed by the Supreme Court's suggestion in Booker and Fanfan; that the majority or vast majority of sentences will still fall within the Guideline range is an indication that, although the Guidelines are now advisory, that they should provide the starting point of our evaluation, and the Court should then determine whether there is some grounds for a non-Guidelines-based departure or non-Guidelines-based deviation because the Guidelines, when applied in this case, are not justified in terms of 3553(a) and all of the factors listed.

So, I think the "sufficient but not greater than necessary" to accomplish those purposes really is language which we use to answer that question of whether there is in fact a need to impose the Guideline range or something less or something more.

But I think it is clear, at least in my mind, and it will be my view until I am persuaded by the Court of Appeals or the Supreme Court that I am incorrect, that we start with the Guideline range and then work from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion.

The district court then went on to consider the 18 U.S.C. § 3553(a) factors and came to the ultimate conclusion that Zavala's sentence should be thirty years' imprisonment, rather than imprisonment for life. The court then stated that the difference would amount to no more than a one-level reduction of Zavala's criminal offense level according to the Guideline table.³

Zavala then appealed.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) because Zavala's claim here is that the sentence was imposed in violation of law due to the district court's misconception that the calculated Guideline range was the presumptive sentence. See United States v. Beck, 418 F.3d 1008, 1011, 1016 (9th Cir.2005); see also United States v. Sahanaja, 430 F.3d 1049, 1050 (9th Cir.2005); United States v. Cirino, 419 F.3d 1001, 1002 (9th Cir.2005) (per curiam).

"[A]fter Booker we continue to review the district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the district court's factual findings for clear error." United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006) (internal quotation marks omitted, second alteration in original). Similarly, we review the district court's construction of the sentencing statute—18 U.S.C. § 3553(a)—de novo. See United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir.2003) (en banc); United States v. Auld, 321 F.3d 861, 863 (9th Cir.2003). And, we review the ultimate sentence for reasonableness. See Booker, 543 U.S. at 264, 125 S.Ct. at 767; Cantrell, 433 F.3d at 1280.

DISCUSSION

As we have already noted, Zavala asserts that his sentence was legally improper because the district court's whole approach was adversely affected when it treated the Guideline calculated sentence as the presumptive sentence. In fact, he asserts, even treating it as a starting point was legal error. We agree in part.

The Guidelines are, no doubt, entitled to credence. They are an attempt to indicate that, based on experience, in the mine run of cases a defendant who has a certain kind of background and who has participated in a certain kind of crime in a certain way should receive a sentence within a certain range. There can be many, many differences between defendants and that is why "in the mine run" is central to the above statement.

We know, of course, that the Guidelines are not, and cannot be, binding on sentencing judges. Rather, a judge must consider many things besides the Guidelines themselves, that is: "the nature and circumstances of the offense and the history and characteristics of the defendant"; "the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, . . . to provide just punishment for the offense," to deter, "to protect the public," and to provide rehabilitation; "the kinds of sentences available"; the need to avoid sentencing disparities; and the need to provide victims with restitution. 18 U.S.C. § 3553(a)(1), (2), (3), (6), (7). But in that regard, the Sentencing Commission presumably considered all of those factors when it proposed the Guideline ranges— indeed, it had to do so and it says that it did. See 28 U.S.C. § 994; USSG § 1A1.1 & ed. n.

And in ultimately upholding the constitutionality of the Guidelines, the Supreme Court stated: "Without the `mandatory' provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals." Booker, 543 U.S. at 259, 125 S.Ct. at 764. Thereafter the Court went on to say:

As we have said, the Sentencing Commission remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly. The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.

Id. at 264, 125 S.Ct. at 767 (citation omitted); see also Cantrell, 433 F.3d at 1279 ("[T]he Guidelines are now advisory.").

That said, we must consider how a district court should "consult" and use the advisory Guideline calculation when it decides a case. In doing so, let us first say what this issue is not: It is not a question of whether a reviewing court should entertain a presumption that a sentencing decision which does fall within the Guideline range is reasonable. Many have said that reviewing courts should do just that. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (per curiam); United States v. Green, 436 F.3d 449, 457 (4th Cir.2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006); United States v. Welch, 429 F.3d 702, 705 (7th Cir.2005); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 840, 163 L.Ed.2d 715 (2005); see also United States v. Mares, 402 F.3d 511, 519 (5th Cir.) (if discretion exercised properly, a Guideline range sentence rarely unreasonable), cert. denied, ___ U.S. ___, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Contra United States v. Jimenez-Beltre, 440 F.3d 514, 517-18 (1st Cir.2006) (en banc) (no presumption); United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.2006) (same); United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir.2005) (same), abrogated in part on other grounds by United States v. Fagans, 406 F.3d 138, 142 (2d Cir.2005). We have not yet opined on that question, and will not do so now. We will focus solely on the issue of how a district court should approach its duties.

In that respect, we have already said that a district court should use the...