Vacated by Supreme Court, January 7, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5165
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JOSE MEDINA, JR.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-04-419-WDQ)
Argued: October 26, 2006 Decided: March 21, 2007
Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellant. James Paul Krawczyk, Jr., Bel Air,
Maryland, for Appellee. ON BRIEF: Bonnie S. Greenberg, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following the execution of a search warrant at the residence
of Jose Medina, Jr., in Aberdeen, Maryland, federal agents seized
several computers containing over 1,000 images of minors engaged in
sexually explicit conduct. Medina was indicted in two counts for
shipping materials involving the sexual exploitation of minors by
means of a computer, in violation of 18 U.S.C. § 2252(a)(1), and
possession of materials involving the sexual exploitation of
minors, in violation of 18 U.S.C. § 2252(a)(4)(B). Medina pleaded
guilty to Count II with stipulated facts that at least one of his
computers contained “more than 10 pictures and movie images” of
child pornography, including at least one image of a victim known
to be under the age of 12, one picture of a prepubescent female in
bondage, and a video clip of another in “various stages of
bondage.” The maximum sentence for the offense charged in Count II
was, at the time, five years’ imprisonment. The United States
Sentencing Guidelines provided that under the facts agreed to,
Medina be sentenced to between 41 and 51 months’ imprisonment.
That is based on an applicable offense level of 22 and a criminal
history category of I.
The district court sentenced Medina to 12 months and one day
imprisonment, amounting to a nine-level downward departure under
the Sentencing Guidelines and a 70% reduction from the Guidelines’
minimum recommended sentence. To justify the variance, the court
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relied on the fact that Medina had served in the military. As the
court explained:
I start with the understanding that vets should get a
break.
* * *
[T]he old mandatory Guidelines pointed out that military
service is not normally something that is to be rewarded.
I think, however, under the new sentencing regime and in
understanding that there is a necessity to promote
respect for the law, I think one of the things that we
can do to promote respect for the law is to have the law
recognize that people who make positive and significant
contributions to their country’s welfare should have that
considered in the sentencing process. And in an advisory
sentencing scheme, I think I am entitled to do that and
to explicitly do that.
* * *
I am going to sentence you at an offense level 13,
criminal history category I, staying at the -- within the
framework generally of guidelines, but recognizing them
advisory and believing that a nine-level downward
departure is appropriate, because [of] instructions from
the sentencing considerations of the statute that the
sentence should be no more than that necessary to foster
the other goals of sentencing, including such things as
deterrence.
* * *
Your service to your country, your being a fine father
has shown . . . indicates that you are a person who
certainly has more good than bad, and accordingly, the
sentence I would hope is an appropriate and fair one.
The government appealed, alleging that the variance was
unjustified and unreasonable.* The government notes that the court
*
Medina argues that because the government did not object at
the sentencing proceeding to the district court’s application of
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did not even find that the defendant’s military service “was
extraordinary.”
Following United States v. Booker, 543 U.S. 220 (2005), the
Sentencing Guidelines are, of course, only advisory, and “[a]
sentence falling outside of the properly calculated Guidelines
range is not ipso facto unreasonable.” United States v. Green, 436
F.3d 449, 457 (4th Cir. 2006). But if “the district court provides
an inadequate statement of reasons or relies on improper factors
in” rejecting the recommendations of the Guidelines, the sentence
“will be found unreasonable and vacated.” Id. The district
court’s reasons for imposing a variance sentence “must be tied to
the factors set forth in § 3553(a) and must be accompanied by
findings of fact as necessary.” United States v. Moreland, 437
F.3d 424, 432 (4th Cir. 2006). Moreover, the court may not give
“excessive weight” to any single factor. See Green, 436 F.3d at
457. “The farther the court diverges from the advisory guideline
range, the more compelling the reasons for the divergence must be.”
Moreland, 437 F.3d at 434.
In this case, we conclude that the district court’s variance
sentence, based on Medina’s military service, was unreasonable in
the factors under § 3553(a) or to the sentence imposed, it has
“waived any argument” that his sentence is unreasonable. Prior to
the district judge imposing the sentence, however, the government,
both in writing and on the record at the sentencing hearing, argued
against any sentence outside of the advisory Guideline range. This
was sufficient to preserve the government’s claim for appeal. See
United States v. Clark, 434 F.3d 684, 686 n.1 (4th Cir. 2006).
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that it was not adequately justified by the factors found in 18
U.S.C. § 3553(a). Accordingly, we vacate Medina’s sentence and
remand for resentencing.
First, the district court gave excessive weight to a single
factor -- Medina’s military service -- to justify so great a
variance. See Green, 436 F.3d at 457 (stating that a district
court may not give “excessive weight” to any single factor).
Second, not only did the district court rely primarily on
Medina’s military service, but the Sentencing Guidelines include a
policy statement that military service is a discouraged factor when
considering whether a downward departure is warranted. See
U.S.S.G. § 5H1.11 (“Military, civic, charitable, or public service
. . . and similar prior good works are not ordinarily relevant in
determining whether a departure is warranted”); see also United
States v. Rybicki, 96 F.3d 754, 759 (4th Cir. 1996) (“Rybicki’s 20
years of unblemished service to the United States and his
responsibilities to his son and wife, both of whom have medical
problems, are also factors that the Sentencing Guidelines have
expressly addressed, instructing that they are ordinarily not
relevant and therefore ‘discouraged’”). Section 3553(a) expressly
directs sentencing courts to consider such policy statements. See
18 U.S.C. § 3553(a)(5)(A) (“The court, in determining the
particular sentence to be imposed, shall consider . . . any
pertinent policy statement issued by the Sentencing Commission”).
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Third, the district court misapplied the sentencing factors
found in § 3553(a) in its efforts to justify Medina’s sentence,
thereby undermining the stated purposes for sentencing. The
district court believed that “one of the things that we can do to
promote respect for the law is to have the law recognize that
people who make positive and significant contributions to their
country’s welfare should have that considered in the sentencing
process.” This reasoning flips the “promote respect for the law”
factor on its head. “[T]he need for the sentence imposed to
reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense,” see 18 U.S.C.
§ 3553(a)(2)(A), is furthered by ensuring that there are adequate
consequences for violating the law, not by rewarding prior good
works that are unrelated to the law that was violated. Instead of
sufficiently punishing criminal behavior, and thereby promoting
respect for the law, Medina’s sentence demotes the law
criminalizing the possession of child pornography in favor of
rewarding and encouraging military service. This reflects an
erroneous understanding of § 3553(a)(2)(A).
Fourth, the district court also believed that Medina’s one-
year sentence was “no more than that necessary to foster the other
goals of sentencing, including such things as deterrence.” This
conclusory statement is not a satisfactory substitute for an
explanation of why Medina’s reduced sentence satisfies “the need
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for the sentence imposed . . . to afford adequate deterrence to
criminal conduct.” See 18 U.S.C. § 3553(a)(2)(B). Congress and
the Sentencing Commission expressed the judgment, albeit now only
recommended, that a sentence of 41 to 51 months would afford
adequate deterrence of offenses such as that committed by Medina.
The district court thus had a responsibility to explain why
Medina’s 12-month sentence would better serve as a deterrence.
Medina’s sentence, as it now stands, conflicts with the Guidelines’
judgment on the adequate level of deterrence without any
explanation why, other than the fact that Medina served in the
military. We see no improvement in deterrence by reducing a
sentence for military service.
Fifth and finally, we conclude that the district court must
have more compelling reasons than a discouraged factor to reduce a
sentence nine levels -- a sentence 70% below the Sentencing
Guidelines’ minimum recommended sentence. As we have held, a
variance of this size must be justified by compelling reasons
related to factors found in § 3553(a). See Moreland, 437 F.3d at
434 (“The farther the court diverges from the advisory guideline
range, the more compelling the reasons for the divergence must
be”). Instead of providing such compelling reasons based in §
3553(a), the district court’s explanation actually tends to
undermine the factors found therein.
VACATED AND REMANDED
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