United States v. Sanchez, 17-41233

• Citation: 900 F.3d 678
• Decision Date: 20 August 2018
• Docket Number: No. 17-41233,17-41233
• Parties: UNITED STATES of America, Plaintiff-Appellee v. David SANCHEZ, Jr., Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

900 F.3d 678

UNITED STATES of America, Plaintiff-Appellee

v.David SANCHEZ, Jr., Defendant-Appellant

No. 17-41233

United States Court of Appeals, Fifth Circuit.

FILED August 20, 2018

Amy Howell Alaniz, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Kayla R. Gassmann, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before CLEMENT, HIGGINSON, and HO, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

David Sanchez, Jr., was serving a term of federal supervised release when he killed someone with a knife. Texas prosecutors dismissed the murder charge, concluding that Sanchez had acted in justifiable self-defense. But Sanchez’s conduct still undisputedly violated the condition of supervised release prohibiting him from possessing a deadly weapon. So the district court convened a hearing to assess whether his term of supervised release should be revoked and a revocation sentence imposed. See 18 U.S.C. § 3583(e)(3).

After taking evidence, the district court determined that, contrary to the judgment of Texas prosecutors, Sanchez had not acted justifiably. Specifically, the district court found that Sanchez had unreasonably failed to de-escalate the situation in the lead-up to the homicide. The district court thus determined that an above-Guidelines revocation sentence of 32 months’ imprisonment was necessary to protect the public and deter Sanchez’s future criminal conduct.

Sanchez appeals that revocation sentence on two grounds. First, he says, the district court improperly based the sentence on the retributive need to punish his post-conviction conduct, which the revocation statute tells us is off limits. See 18 U.S.C. § 3583(e) ; United States v. Miller , 634 F.3d 841, 844 (5th Cir. 2011). And even if the district court did not consider impermissibly retributive factors, Sanchez says, his sentence is still plainly substantively unreasonable because no balancing of the properly-considered factors could justify a term of imprisonment nearly three times as high as the top of the advisory range calculated from the U.S. Sentencing Guidelines Manual. For the reasons explained below, we reject both arguments and affirm.

I

Federal sentences that include a term of imprisonment may sometimes append a term of supervised release, during which time the defendant is let out of prison subject to certain enumerated conditions. See 18 U.S.C. § 3583(a), (d). If the defendant then violates one or more of those conditions, the district court may revoke the term of supervised release and impose a new term of imprisonment, called a "revocation sentence." See id. § 3583(e)(3). That is what happened to Sanchez.

Sanchez had been on supervised release for 14 months when he committed homicide. He received a call one night from his recent ex-girlfriend. She told him that a third person, Jose Hernandez, "wanted to fight him one-on-one." Sanchez later told police that he responded: "You know what, fuck you, come over here. We will fight one-on-one and get it over with." Twenty minutes later, Hernandez arrived at Sanchez’s apartment with a group of between five and ten other people. Anticipating a fight, Sanchez grabbed a knife and met them outside. Sanchez stabbed Hernandez. Hernandez died from his wound. A Texas grand jury initially charged Sanchez with murder, but prosecutors dismissed the case ten months later on the ground that Sanchez "had used justifiable deadly force pursuant to Texas Penal Code [sections] 9.31 [and] 9.32."

At that point, probation officers informed the federal district court (who had imposed the term of supervised release) that Sanchez had violated his conditions of supervised release by "possess[ing] a dangerous weapon." The probation officers further alleged that Sanchez had violated more of his supervised-release conditions by testing positive for cocaine, but those drug-use allegations played no apparent role in the revocation hearing that followed.

Sanchez pleaded true to all charges at the revocation hearing’s outset. Nonetheless, the district court proceeded to inquire extensively into whether Sanchez had reasonably feared for his life, and, in particular, whether he could have done more to extricate himself from the situation. Some of the district court’s questions and comments included:

• "He’s on supervised release. He gets a call that his girlfriend says somebody is going to come over to do him harm. He does not call the police. He gets a knife and he goes out and kills somebody is the bottom line."

• "He’s on my supervised release.... And he didn’t call the police before he put a knife in his pocket and went out to fight somebody with a knife."

• "Is there any dispute that [Sanchez] said [in response to the phone call from his ex-girlfriend], ‘You know where I live’?"

• "In front of the whole mob [Sanchez] does this [read: attacks Hernandez]? ... He couldn’t have been too scared of the mob."

• "Did anybody else have any weapons of any kind? ... And did [Sanchez] have any reason to think that anybody was bringing any kind of deadly force against him? ... Who testified that [Sanchez] was being assaulted? ... Did [Sanchez] have any marks on him at all?"

• "He arms himself with a deadly weapon. There was no indication anybody else had a deadly weapon of any kind."

The district court also repeatedly emphasized the fact that Hernandez had died, referring to him as "the dead person" who had been "slashed open" and whom Sanchez had "stabbed and killed."

When defense counsel objected that the district court was improperly forcing Sanchez to re-litigate the dismissed murder case—which Texas authorities had already deemed a nonstarter—the following exchange occurred:

MR. MORALES: I think we should play all of [the videos]. If we’re going to try this as a murder case, then we should play all of them, and that’s—

THE COURT: This is a preponderance of the evidence, Mr. Morales.

MR. MORALES: Yes, Your Honor.

THE COURT: I’m not here for beyond a reasonable doubt.

MR. MORALES: Your Honor, but that’s not—

THE COURT: This is preponderance of the evidence.

Defense counsel later reframed his objection, contending that the district court could not drive up Sanchez’s sentence "because of the outcome" that had resulted from the supervised-release violation—namely, the stabbing death of Hernandez. In response, the district court stated: "I have the authority to go as high as I want to.... I have the powers I feel necessary to protect the public."

The district court then turned to the sentencing factors enumerated in 18 U.S.C. § 3553(a). In doing so, it expressly declined to consider Sanchez’s criminal history. The district court instead focused on the needs "to afford adequate deterrence to criminal conduct" and "to protect the public from further crimes."

§ 3553(a)(2)(B), (C). The district court’s sentencing colloquy provided:

I’ve looked at the factors of 3553(a), except for his history, I’m not sure it’s relevant, but of course, he ... pleaded true to carrying a dangerous weapon, possessing a dangerous weapon. And he’s just ... demonstrated what can happen when you do that, and our man is dead by his dangerous weapon.

And I’m looking at deterring future criminal conduct, protecting the public—also I notice from the video that you had me watch—and I’m glad I did—at least it was 20 minutes ... from the time you got the call to the time the people came to the apartment, and there at no time was a phone call made to the police or did he attempt to put himself out of harm’s way, if he was in harm’s way; no indication that anybody was armed but him and no testimony that anybody laid a hand on him.

Defense counsel recommended a sentence within the advisory range calculated from the policy statements in the U.S. Sentencing Guidelines Manual: 5 to 11 months’ imprisonment. The Government made no recommendation. The district court imposed a prison sentence of 32 months. Sanchez appealed.

II

Because we assume without deciding that Sanchez adequately preserved his objections, see Fed. R. Crim. P. 51(b), we follow the law of our circuit and review his revocation sentence under the "plainly unreasonable" standard, United States v. Warren , 720 F.3d 321, 326 (5th Cir. 2013). That standard has two steps. Id. First we evaluate the reasonableness of the sentence using the standards of appellate review applicable to criminal sentences generally. See Gall v. United States , 552 U.S. 38, 46, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). That is, we ask whether the district court committed "significant procedural error, such as failing to consider the [applicable] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence," United States v. Winding , 817 F.3d 910, 913 (5th Cir. 2016) (quoting Warren , 720 F.3d at 326 ), and we assess "the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard," id. (quoting Miller , 634 F.3d at 843 ). At the second step, however, we vacate the sentence only if the identified error is "obvious under existing law," such that the sentence is not just unreasonable but plainly unreasonable. Miller , 634 F.3d at 843. Law from the "obviousness" prong of Rule 52(b)’s plain error test informs this latter inquiry, see id. at 843–44, notwithstanding that the error was in fact preserved.¹

A

Sanchez argues primarily that the district court fashioned his revocation sentence based on a perceived need for retribution, which Congress and our caselaw plainly disallow. See 18 U.S.C. §§ 3553(a)(2)(A), 3583(e) ; United States v. Rivera , 784 F.3d 1012, 1016–17 (5th Cir. 2015) ; Miller , 634 F.3d at 844. Although Sanchez characterizes this putative error alternatively as one of both procedure and substance, nothing in our analysis...