UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4428
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
URIEL MORENO-MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-248-NCT)
Argued: March 17, 2006 Decided: April 19, 2006
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON,
Winston-Salem, North Carolina, for Appellant. Angela Hewlett
Miller, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Mireille P. Clough, GRACE, HOLTON, TISDALE & CLIFTON,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Uriel Moreno-Mendoza appeals his sentence for illegal reentry
of an aggravated felon, a violation of 8 U.S.C. § 1326(a), (b)(2).
Moreno-Mendoza contends that his sentence, which exceeded the
maximum range recommended under the now advisory United States
Sentencing Guidelines (“Guidelines”), violated his constitutional
rights under the Ex Post Facto Clause and the Due Process Clause.
He alternatively asserts that his sentence was unreasonable.
Although the constitutional arguments raised by Moreno-Mendoza are
without merit, we agree that the sentence was unreasonable and must
be vacated.
I.
After being indicted by a grand jury, Moreno-Mendoza entered
into a plea agreement with respect to the charge of illegal re-
entry of an aggravated felon. The plea agreement stipulated that
Moreno-Mendoza had unlawfully reentered the United States after
receiving a two-year sentence for the sale and transport of
marijuana, in violation of California Health and Safety Code §
11360(a).
The Probation Office subsequently prepared a presentence
investigation report (“PSR”), which initially calculated a base
offense level of eight under § 2L1.2 of the 2003 Guidelines.
Because § 2L1.2 permits enhancements based on the specific nature
2
of the prior conviction, the PSR recommended a sixteen-level
enhancement by characterizing defendant’s prior drug conviction as
a “drug trafficking offense for which the sentence imposed exceeded
13 months . . . .” See § 2L1.2(b)(1)(A)(I); J.A. 61. After
crediting Moreno-Mendoza with a three-level reduction for
acceptance of responsibility, the PSR calculated a total offense
level of twenty-one. The PSR also computed three criminal history
points based on Moreno-Mendoza’s prior drug conviction, thereby
placing him in criminal history category II. Ultimately, the PSR
recommended a Guidelines range of forty-one to fifty-one months.
Moreno-Mendoza objected to the sixteen-level enhancement,
asserting that his prior drug conviction did not qualify as a drug
trafficking offense under § 2L1.2(b)(1)(A)(I). He conceded,
however, that the conviction would qualify as an “aggravated
felony” under § 2L1.2(b)(1)(C), which would have increased his
offense level by eight levels.
At the sentencing hearing, the district court addressed
Moreno-Mendoza’s objection to the sixteen-level enhancement and
determined that the underlying state court documents could not
establish that his prior drug conviction was a drug trafficking
offense. For this reason, the district court declined to impose
the sixteen-level enhancement and, after applying a base offense
level of eight and a two-level reduction for acceptance of
responsibility, calculated a total offense level of six. Finding
3
a criminal history category of II, the district court concluded
that the appropriate Guidelines range was one to seven months.
After finalizing this calculation, the district court
expressed its desire to consider the challenged sixteen-level
enhancement as if the prior drug conviction had qualified as a drug
trafficking offense. See J.A. 26 (“[W]hile under the Guidelines I
could not consider the facts of an individual case in determining
whether the points would be appropriate, . . . under 3553(a), he
should be sentenced as if the 16 levels were appropriate, and will
find that an appropriate Sentencing Guideline range would be 41 to
51 months.” (emphasis added)); see also J.A. 23 (“[A]s I read
Booker, our first task is to determine what the Guideline range
properly is, but I must tell you, then after we determine that
Guideline range, in the exercise of my discretion, I am going to
consider these facts as constituting a drug trafficking crime, so
it’s going to come out to the same thing.”). The district court
thus opined that “[i]n determining a reasonable sentence under
3553, it is my belief that the only way to fairly do that is to
consider what the sentence would have been if the 16 levels were
added in to the consideration.” J.A. 40. In considering the
Guidelines range of forty-one to fifty-one months that would have
resulted from imposing the sixteen-level enhancement, the district
court imposed a sentence of forty-one months. Moreno-Mendoza now
appeals his sentence.
4
II.
A.
Moreno-Mendoza first contends that the district court violated
his constitutional rights under the Ex Post Facto Clause and the
Due Process Clause by imposing a sentence that exceeded the
Guidelines range. Specifically, he claims that the retroactive
application of Justice Breyer’s remedial opinion in United States
v. Booker, 543 U.S. 220, 244-271 (2005), which rendered the
Guidelines advisory, unconstitutionally exposes defendants who
committed their offenses before Booker to higher sentences under
the discretionary sentencing regime of § 3553.1 In seeking
resentencing, Moreno-Mendoza thus argues that the Ex Post Facto
Clause and Due Process Clause required the district court to
sentence him anywhere below, but not above, the sentencing range
prescribed by the Guidelines.
We review these constitutional errors for plain error because
they were never presented to the district court. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Fed. R. Crim. P.
52(b)); United States v. Olano, 507 U.S. 725, 731-32 (1993)).
Under this standard, we conclude that Moreno-Mendoza has failed to
1
Given that he was sentenced under the now advisory Guidelines
regime following Booker, Moreno-Mendoza has not asserted the
typical Sixth Amendment error identified by Justice Stevens’s
merits opinion--i.e., that the district court relied on judicial
factfinding in imposing a sentence greater than the maximum
authorized by the admitted facts or verdict under the previously
mandatory Guidelines regime.
5
establish error in the first instance. As our sister circuits have
concluded, the retroactive application of Booker’s remedial opinion
to sentences for offenses committed prior to Booker does not offend
the Ex Post Facto Clause or the Due Process Clause. This is true
even where the defendant has received a greater sentence under the
now advisory Guidelines regime than the sentence he normally would
have received under the formerly mandatory Guidelines regime. See
United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.), cert.
denied, --- S. Ct. ----, 2006 WL 316714 (2006) (rejecting Ex Post
Facto and Due Process challenges to the application of Justice
Breyer’s remedial opinion in Booker); United States v. Jamison,
416 F.3d 538, 539-40 (7th Cir. 2005) (same); United States v. Lata,
415 F.3d 107, 110-11 (1st Cir. 2005) (same); United States v.
Scroggins, 411 F.3d 572, 575-77 (5th Cir. 2005) (same); United
States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.), cert. denied,
126 S. Ct. 432 (2005) (same). Accordingly, we decline to disturb
the sentence based on these constitutional challenges.
B.
Moreno-Mendoza next asserts that his sentence was unreasonable
in light of the Guidelines range of one to seven months. Although
he concedes that the proper Guidelines range should have been
fifteen to twenty-one months, he nevertheless argues that the
district court improperly applied the § 3553 factors in imposing a
6
sentence of forty-one months. We agree that the sentence must be
vacated as unreasonable.
When reviewing a post-Booker sentence, we must “determine
whether the sentence is within the statutorily prescribed range and
is reasonable.” United States v. Moreland, 437 F.3d 424, 433 (4th
Cir. 2006) (internal quotation marks and citations omitted). This
Circuit’s decision in United States v. Green, 436 F.3d 449 (4th
Cir. 2006), set forth the roadmap to assist sentencing courts in
applying the Guidelines and § 3553 in imposing a reasonable
sentence:
[D]istrict courts must (1) properly calculate the
sentence range recommended by the Sentencing Guidelines;
(2) determine whether a sentence within that range and
within statutory limits serves the factors set forth in
§ 3553(a) and, if not, select a sentence that does serve
those factors; (3) implement mandatory statutory
limitations; and (4) articulate the reasons for selecting
the particular sentence, especially explaining why a
sentence outside of the Sentencing Guideline range better
serves the relevant sentencing purposes set forth in §
3553(a).
Id. at 456 (internal footnote and citation omitted).
Under Green, a sentence imposed within the Guidelines range is
“presumptively reasonable.” Id. at 457 (internal quotation marks
and citations omitted). Where, as here, the sentence deviates from
the Guidelines range, we must determine whether, in light of the
factors set forth in § 3553 and the relevant Guidelines provisions,
the district court “acted reasonably with respect to (1) the
imposition of a variance sentence, and (2) the extent of the
7
variance.” Moreland, 437 F.3d at 434 (internal citations omitted).
Particularly if the degree of variance is substantial, we must
“more carefully scrutinize the reasoning offered by the district
court in support of the sentence.” Id. at 434. In other words,
“[t]he farther the court diverges from the advisory guideline
range, the more compelling the reasons for that divergence must
be.” Id. (internal citations omitted).
In this instance, the district court calculated a Guidelines
range of one to seven months after determining that the facts did
not support a sixteen-level enhancement for Moreno-Mendoza’s prior
drug conviction. Nevertheless, the district court stated its
intent to consider the sixteen-level enhancement as if it applied
to the prior drug conviction for the purposes of fashioning a
reasonable sentence under § 3553. By ultimately imposing a
sentence of forty-one months (the bottom of the Guidelines range
had the sixteen-level enhancement applied), the district court
effectively sought to do at the back end what it could not do at
the front end: enhance Moreno-Mendoza’s sentence by treating his
prior drug offense as a de facto drug trafficking offense.
Although we agree that the initial decision to impose a
variance sentence was sound, the degree of variance between the
forty-one months imposed and the proper Guidelines range, which
8
defendant conceded was fifteen to twenty-one months,2 was
unreasonable. In light of the substantial variance, the district
court was obligated to offer compelling reasons explaining why the
chosen sentence, which nearly doubled the maximum sentence
recommended by the Guidelines, better served the sentencing
considerations enumerated in § 3553(a). Green, 436 F.3d at 456;
Moreland, 437 F.3d at 434. Here, despite the appropriate
Guidelines range of fifteen to twenty-one months, the district
court expressed its intention to apply the Guidelines range that
would have resulted from adding the sixteen-level enhancement in
reaching a sentence of forty-one months. In our view, however, the
district court’s application of a de facto enhancement outside the
Guidelines calculation effectively undermined the first step in the
Green analysis, which requires district courts to calculate the
proper Guidelines range. See Green, 436 F.3d at 456 (district
courts must “properly calculate the sentence range recommended by
the Sentencing Guidelines”).3 Moreover, the district court did not
2
As noted above, Moreno-Mendoza conceded that the prior drug
conviction would qualify for an eight-level enhancement as an
“aggravated felony” under § 2L1.2(b)(1)(C) before the district
court. He reiterated this concession before this Court at oral
argument.
3
The Government has attempted to equate authorized departures
for de facto career offenders under § 4A1.3 with the de facto
enhancement sought here. However, the analogy is imperfect because
departures are limited to the enumerated grounds set forth by the
Guidelines, whereas variances are not bound by the Guidelines. See
Moreland, 437 F.3d at 436 n.8 (noting that previous decisions
regarding departures from a career offender range under the
9
give proper weight to the appropriate Guidelines range in balancing
the § 3553 factors, choosing instead to focus exclusively on the
Guidelines range it could not impose. See id. at 457
(reasonableness depends on whether the sentence was “selected
pursuant to a reasoned process in accordance with law, in which the
court did not give excessive weight to any relevant factor, and
which effected a fair and just result in light of the relevant
facts and law.”).
We therefore conclude that the district court’s reason for the
degree of variance was inconsistent with Green and Moreland, to the
extent that it could not support the sentence.4 See 18 U.S.C. §
3742(f)(2). Accordingly, we vacate the sentence and remand for
resentencing.
VACATED AND REMANDED
formerly mandatory Guidelines regime “may inform,” but “cannot
control,” the analysis of variances from the career offender
range).
4
We of course offer no criticism of the district court, which
did not have the benefit of Green or Moreland at the time of
sentencing.
10