PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5007
DARIO MENDOZA-MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
W. Earl Britt, Senior District Judge.
(4:08-cr-00032-BR-1)
Argued: January 28, 2010
Decided: March 5, 2010
Before WILKINSON, NIEMEYER, and DAVIS,
Circuit Judges.
Vacated and remanded by published opinion. Judge Wilkin-
son wrote the opinion, in which Judge Niemeyer joined.
Judge Davis wrote a separate opinion concurring in the judg-
ment.
COUNSEL
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
2 UNITED STATES v. MENDOZA-MENDOZA
Appellant. Anne Margaret Hayes, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Raleigh, North Carolina, for Appellant. George E.
B. Holding, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
OPINION
WILKINSON, Circuit Judge:
Appellant Dario Mendoza-Mendoza, a citizen of Mexico,
pled guilty to one count of illegal entry into the United States
following deportation, in violation of 8 U.S.C. § 1326. Men-
doza argued that a Guidelines sentence was excessive in light
of various facts peculiar to his case. The district court, how-
ever, sentenced Mendoza within the Guidelines.
At the very outset of its explanation, the district court stated
that while it did not agree with the Guidelines range, it was
"obligated" to give Mendoza a Guidelines sentence unless "a
reason for a departure from those Guidelines, or a variance
based on 18 U.S.C. § 3553" was present. Because prefacing
a sentencing explanation with such obligatory terminology
amounts to an impermissible presumption that a Guidelines
sentence is appropriate, see Rita v. United States, 551 U.S.
338, 351 (2007), we believe the prudent course is to remand
for re-sentencing. In doing so, however, we do not imply that
the district court’s Guidelines sentence was substantively
unreasonable or that Rita remands are warranted in cases
where there exists no serious possibility that the district court
treated the Guidelines as presumptively binding.
I.
In 1997, Mendoza, then eighteen years old, illegally
entered the United States from Mexico. He settled in Green-
UNITED STATES v. MENDOZA-MENDOZA 3
ville, North Carolina, and began working in the construction
industry. Mendoza had fathered two children back in Mexico,
but in 2004 he became romantically involved with a Green-
ville woman. They now live together—we accept the govern-
ment’s characterization of the young woman as Mendoza’s
"common-law wife"—and are the parents of two young chil-
dren of their own.
Their story is a bit more complicated, however, and not just
because Mendoza was present in the United States illegally.
At the time they met, the young woman told Mendoza she
was nineteen years old. In fact, she was only fourteen, and her
mother, upon learning of the relationship, promptly called the
police. Mendoza was arrested and convicted in North Caro-
lina court in July 2004 on two counts of taking indecent liber-
ties with a child. See N.C. Gen. Stat. § 14-202.1. He was
given a suspended sentence of fifteen to eighteen months, plus
eighteen months’ probation. Several weeks later, he was
deported.
This was hardly the end of Mendoza’s stay in the United
States, however. Within days of being deported, he was
arrested in Texas by U.S. border officials. He pled guilty to
misdemeanor illegal entry, received a four-day custodial sen-
tence, and was immediately re-deported. Later that year, he
again illegally re-entered the United States, made his way
back to Greenville, and resumed living with his common-law
wife.
For several years, Mendoza managed to avoid attracting the
notice of immigration officials, and it was during this period
that his two children in Greenville were born, the first in 2005
and the second in 2007. In early 2008, however, a state-law
assault charge was brought against him, and although he was
never prosecuted, federal authorities were once again alerted
to his presence. In May of that year, he was charged under 8
U.S.C. § 1326 with illegal entry into the United States follow-
ing deportation.
4 UNITED STATES v. MENDOZA-MENDOZA
He pled guilty on July 7, 2008. A presentence report was
prepared, which calculated Mendoza’s sentence under the
Sentencing Guidelines as forty-six to fifty-seven months’
imprisonment. This calculation reflected a substantial
enhancement based upon his earlier indecent liberties convic-
tion, which, in addition to raising his criminal history cate-
gory, triggered a sixteen-level increase in his offense level
because it was labeled a "crime of violence." See U.S. Sen-
tencing Guidelines Manual §§ 2L1.2(b)(1)(A)(ii), 4A1.1(c),
Ch. 5, Pt. A (Table) (2007); United States v. Diaz-Ibarra, 522
F.3d 343, 353 (4th Cir. 2008). Without the indecent liberties
conviction, his Guidelines range would have been zero to six
months’ imprisonment.
Mendoza argued that while his prior indecent liberties con-
viction might "technically and legally" qualify as a crime of
violence under the Guidelines, "the court is not bound by the
Guidelines and . . . this is a prime example of the type of case
where the Guidelines do not take into consideration suffi-
ciently" the factors listed in 18 U.S.C. § 3553(a), which gov-
ern federal sentencing. Given his five-year continuing
relationship with the young woman at the center of his inde-
cent liberties conviction and given the fact that she and their
two children were financially dependent on him and had been
evicted from their home since his arrest, Mendoza argued his
case was not one in which his prior conviction showed he was
a danger to the public or that a strict sentence would be in the
interest of the victim of his earlier crime.
The government responded that Mendoza had illegally
entered the United States three times and that he "had his
chance." It also argued that Mendoza did represent a danger
to the public, pointing to a prior drunk driving conviction and
three prior drunk driving arrests that had been dismissed, the
assault charge that had led to his prosecution in this case, and
an earlier assault charge that had been dismissed.
After hearing from both sides, the district court sentenced
Mendoza to the Guidelines minimum of forty-six months,
UNITED STATES v. MENDOZA-MENDOZA 5
slightly less than four years. In announcing its conclusion, the
district court made the following prefatory remarks:
I have determined, though I have not agreed with,
that the Guideline calculations are correct, and
unless I find a reason for a departure from those
Guidelines, or a variance based on 18 U.S.C. § 3553,
then I am obligated to pass a sentence within that
Guideline range.
The court then discussed certain § 3553(a) factors and con-
cluded none of them could be used to justify reducing Mendo-
za’s sentence below the Guidelines minimum. The court
rejected the government’s claim that Mendoza was dangerous
to others, but opined that since Mendoza had already illegally
entered the United States three times, "the bottom line is that
viewing it as objectively as I possibly can, I cannot see any
reason for a variance." Mendoza now claims that the sentence
imposed by the district court was procedurally unreasonable.
II.
We review briefly the sentencing framework relevant to
this proceeding. In United States v. Booker, 543 U.S. 220
(2005), the Supreme Court held that sentence enhancements
under the then-mandatory Sentencing Guidelines violated the
Sixth Amendment right to trial by jury. Id. at 244. The Court
chose to remedy the situation by rendering the Guidelines "ef-
fectively advisory." Id. at 245. Post-Booker, a sentencing
court must begin "by correctly calculating the applicable
Guidelines range." Gall v. United States, 552 U.S. 38, 49
(2007). The Guidelines thus serve as "the starting point and
the initial benchmark." Id. The ultimate question, however, is
whether the sentence is "sufficient, but not greater than neces-
sary" in light of the factors identified in § 3553(a). Kimbrough
v. United States, 552 U.S. 85, 111 (2007) (quoting § 3553(a)).
A court therefore must proceed by giving the parties "an
opportunity to argue for whatever sentence they deem appro-
6 UNITED STATES v. MENDOZA-MENDOZA
priate." Gall, 552 U.S. at 49. It must then "make an individu-
alized assessment based on the facts presented" to see whether
the § 3553(a) factors support either party’s claim. Id. at 49-50.
Finally, the court must sufficiently explain its decision "to sat-
isfy [an] appellate court that [it] has considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority" in light of § 3553(a). United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting
Rita, 551 U.S. at 356); see also Nelson v. United States, 129
S. Ct. 890, 891-92 (2009) (per curiam); Gall, 552 U.S. at 50.
Under this regime, appellate courts examine sentencing
determinations under an abuse-of-discretion standard, which
translates to review for "reasonableness." Booker, 543 U.S. at
261-62. Reasonableness review has procedural and substan-
tive components. See Gall, 552 U.S. at 51. Procedural reason-
ableness evaluates the method used to determine a
defendant’s sentence. A sentencing determination that does
not conform to the procedural framework outlined above is
procedurally unreasonable. Id. Substantive reasonableness
examines the totality of the circumstances to see whether the
sentencing court abused its discretion in concluding that the
sentence it chose satisfied the standards set forth in § 3553(a).
Id.
While it is clear that treating the Guidelines as mandatory
is procedurally unreasonable after Booker, the precise role the
Guidelines are to play in sentencing determinations has been
a source of some confusion. In Rita, 551 U.S. 338, the
Supreme Court addressed the question of whether the Guide-
lines could be given presumptive weight. The Court held that
an appellate court is allowed to presume that a district court’s
chosen sentence is substantively reasonable if it is within a
correctly calculated Guidelines range. Id. at 351. Rita was
also clear, however, that a district court making the initial sen-
tencing decision may not presume that the appropriate sen-
tence in a given case will come from the Guidelines. Id.; see
also Nelson, 129 S. Ct. at 892; Gall, 552 U.S. at 50; United
UNITED STATES v. MENDOZA-MENDOZA 7
States v. Raby, 575 F.3d 376, 382 (4th Cir. 2009); United
States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). If a district
court applies such a Rita presumption, its sentence is proce-
durally unreasonable. Gall, 552 U.S. at 50.
We shall refer to any presumption in favor of a Guidelines
sentence as a "Rita presumption." The reason Rita presump-
tions are forbidden in sentencing courts is that they confer the
force of law upon the Guidelines. See id. at 47, 50. Such a
Rita presumption means that, unless there is an effective
rebuttal, a sentencing court is obligated to pronounce a Guide-
lines sentence. Giving mandatory effect to the Guidelines in
this way revives the Sixth Amendment problems Booker laid
to rest. See Rita, 551 U.S. at 347, 351, 353. Additionally, Rita
presumptions at trial conflict with the reason Rita presump-
tions are allowed on appeal. An appeals court may presume
a sentence within the Guidelines is reasonable because the
sentencing court’s independent judgment coincides with that
of the United States Sentencing Commission, which bears
responsibility for the Guidelines. If Rita presumptions were
used at sentencing, appellate courts, as well as the Commis-
sion, would lose the benefit of a district court’s individualized
application of the Commission’s general judgment. See id. at
350-51.
III.
The parties vigorously dispute whether the district court did
in fact apply an impermissible Rita presumption at sentencing
in this case. Because the costs of sentencing review are signif-
icant, it is important to realize not only what an impermissible
Rita presumption is, but also what it is not. First, it was no
Rita presumption for the sentencing court here to use the
Guidelines to orient its thinking. A court must consider and
may be influenced by the Guidelines. The Supreme Court has
been clear that the process of sentencing begins with correctly
calculating the Guidelines sentencing range. Gall, 552 U.S. at
49. And although courts are free to depart from the Guide-
8 UNITED STATES v. MENDOZA-MENDOZA
lines, they are expected to explain the basis of their disagree-
ment. Nelson, 129 S. Ct. at 892. Indeed, "a major departure
should be supported by a more significant justification than a
minor one." Gall, 552 U.S. at 50. Similarly, while sentencing
courts must always conduct an individualized assessment,
they are permitted to provide more abbreviated explanations
when they sentence within the Guidelines. United States v.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010); United States v.
Johnson, 587 F.3d 625, 639 (4th Cir. 2009).
Second, the district court does not apply a Rita presumption
simply by selecting a Guidelines sentence in the case or by
deeming it the most fitting or appropriate sentence for the
case. After all, we may and do treat on appeal a district
court’s decision to impose a sentence within the Guidelines
range as presumptively reasonable. See United States v. Her-
der, No. 08-4420, 2010 WL 476657, at *8 (4th Cir. Feb. 11,
2010). For one thing, "the Guidelines, insofar as practicable,
reflect a rough approximation of sentences that might achieve
§ 3553(a)’s objectives." Rita, 551 U.S. at 350. Moreover, in
devising the Guidelines, the Sentencing Commission "exam-
ined tens of thousands of sentences and worked with the help
of many others in the law enforcement community over a long
period of time." Id. at 349; see also United States v. Johnson,
445 F.3d 339, 342 (4th Cir. 2006). We therefore should hardly
be surprised if Guidelines sentences are often reasonable, as
Rita put it, at the "retail" as well as the "wholesale" level.
Rita, 551 U.S. at 348.
Third, where an appellate court believes that a sentencing
court did not treat the Guidelines sentence as presumptively
applicable, then there is no Rita presumption and a remand
should not follow—even if stray language in the sentencing
court’s discussion, standing alone, could give the impression
that a presumption was used. See Puckett v. United States,
129 S. Ct. 1423, 1432 (2009); Lynn, 592 F.3d at 576-77 (pro-
cedural sentencing errors are subject to either harmless or
plain error review). Sentencing courts are of course well
UNITED STATES v. MENDOZA-MENDOZA 9
advised to avoid words like "presumption" and "obligation."
But what matters on appeal is what a court actually did, not
whether a remark here or there, removed from the larger con-
text in which it was made, is on some list of forbidden
phrases. See United States v. Mooney, 534 F.3d 944, 947 (8th
Cir. 2008) ("[W]hen these statements are considered in their
full context, it is clear that the district court understood the
Guidelines were not mandatory."); United States v. Bain, 586
F.3d 634, 637-38 (8th Cir. 2009); see also United States v.
Sayad, 589 F.3d 1110, 1118 & n.3 (10th Cir. 2009). If the
sentencing court did what it was supposed to do—hearing out
both sides and making an individualized assessment in light
of § 3553(a)—then it should be protected from claims of hav-
ing applied a Rita presumption.
In this regard, the government insists that vacatur here
would indeed involve ripping the contested remarks out of
context, to the detriment of "the sentencing transcript as a
whole." Appellee’s Br. at 14. We agree with the government
as a general matter that nitpicking a district court’s sentencing
judgments for Rita presumptions would be inappropriate. For
one thing, it burdens district courts with unwarranted
remands. Where the district court gave thought to the sentence
it passed and concluded it was appropriate in light of
§ 3553(a), then a remand is almost certainly going to result in
imposition of the same sentence. See Lynn, 592 F.3d at 576-
77. Appellate flyspecking for Rita presumptions wastes both
courts’ time, discourages sentencing courts from freely and
fully explaining their reasoning, and distorts the proper rela-
tionship between trial courts and courts of appeal. Our man-
date is to make sure the trial court made a reasoned, not an
arbitrary, sentencing decision. It is not to fill the federal dock-
ets with yo-yo sentencing litigation.
A flyspecking approach is also inappropriate because it
goes against the grain of Rita and Gall, both of which empha-
sized the greater measure of latitude district courts must be
given in sentencing determinations. To be sure, that latitude
10 UNITED STATES v. MENDOZA-MENDOZA
is hardly unlimited. See, e.g., United States v. Engle, 592 F.3d
495, 501-506 (4th Cir. 2010) (vacating as unreasonable a tax
evasion sentence of probation and home detention with work
release and international travel privileges). But Gall, for
instance, overturned an appellate court’s sentencing reversal
because it did not "reflect the requisite deference" owed to
sentencing courts. Gall, 552 U.S. at 52; see also Rita, 551
U.S. at 357-58 ("The sentencing judge has access to, and
greater familiarity with, the individual case and the individual
defendant before him than the Commission or the appeals
court.").
It would be wholly contrary to the Supreme Court’s confer-
ral of discretion on trial courts if we were to play a game of
"Gotcha!" with respect to the sentencing transcripts we
review. See Johnson, 445 F.3d at 345 (a sentencing court need
not "robotically tick through § 3553(a)’s every subsection.").
This appellate deference is especially appropriate when
Guidelines sentences are imposed because in such a case the
judgment of the sentencing court and the judgment of the Sen-
tencing Commission have converged. See Rita, 551 U.S. at
350-51. To be sure, we review such sentences, like all others,
for procedural error, but we do so under "the deferential
abuse-of-discretion standard of review that applies to all sen-
tencing decisions" and only for error that is "significant."
Gall, 552 U.S. at 51-52. Badgering district courts over minor
procedural flaws simply fails to recognize the sense of
responsibility that our colleagues on the district bench bring
to the important task of sentencing.
IV.
Much of what the district court did in this case was unas-
sailable. The district court consulted the Guidelines, gave both
sides a chance to make their case, and offered an individual-
ized assessment with reference to the § 3553(a) factors. In
imposing sentence, the district court might have concluded
that Mendoza’s indecent liberties conviction justified the lon-
UNITED STATES v. MENDOZA-MENDOZA 11
ger sentence, as the Guidelines advised, but the record sug-
gests it did not do so. In reaching its final decision, the district
court may have concluded that while the indecent liberties
conviction did not justify increasing Mendoza’s sentence to
forty-six months as the Guidelines suggested, the fact that,
among others, he had entered the United States illegally three
times justified increasing his sentence to that length. If this is
what the court did, then its decision may well have been rea-
sonable.
Mendoza, however, argues for another reading of the sen-
tencing proceeding. In his view, the district court reasoned
that while the indecent liberties conviction did not require
such a lengthy sentence, it could not deviate from the Guide-
lines unless some specifically authorized basis for a departure
or variance allowed it to do so. Under Rita, of course, this
would not be permissible. And after fully examining the dis-
trict court’s discussion, this second reading seems at least as
plausible to us as the first.
The comments to which Mendoza objects were not a "mere
passing reference," somewhere in the middle of the sentenc-
ing discussion. Sayad, 589 F.3d at 1118 n.3 (citation and
internal quotation marks omitted). They came at the very out-
set, framing the entirety of the district court’s explanation.
And the words the court used were emphatic: the court
declared that it was "obligated" to impose a Guidelines sen-
tence "unless I find a reason for a departure from those guide-
lines, or a variance based on 18 U.S.C. § 3553." Furthermore,
the court pronounced a Guidelines sentence even though it
had "not agreed with" the range recommended by the Guide-
lines. Taken together, the language and context of these state-
ments convince us that Mendoza’s objection cannot be
dismissed simply as hyper-sensitive second-guessing of the
proceedings below.
Our review of the district court’s comments leads us to
believe that the district court accorded the Guidelines a quasi-
12 UNITED STATES v. MENDOZA-MENDOZA
mandatory effect, and that is impermissible under Rita. We
are acutely conscious of the need to avoid overburdening dis-
trict courts and ordering pointless remands, and we are com-
pelled to re-emphasize that procedural remands do not carry
some hidden appellate message of substantive unreasonable-
ness. But there is a serious possibility the district court felt it
was under an obligation to impose a Guidelines sentence, and
we believe the prudent course is to remand this case to ensure
that Mendoza’s sentence, whatever it may ultimately be, is
procedurally sound. In reviewing a sentencing determination,
"an appellate court may not guess at the district court’s ratio-
nale," Carter, 564 F.3d at 329, and we are left only to specu-
late as to whether the sentence herein was imposed as a matter
of obligation or as an exercise of judgment.
V.
For the foregoing reasons, we vacate Mendoza’s sentence
and remand for re-sentencing.
VACATED AND REMANDED
DAVIS, Circuit Judge, concurring in the judgment:
The distinguished and experienced district judge in this
case gave both sides an opportunity to present whatever argu-
ment they wished as to the appropriate sentence. The record
reflects that both the government and the defendant took
advantage of that opportunity. As a part of her argument,
defense counsel stated:
[A]fter the Booker case, the court is not bound by
the guidelines, and I would suggest to the court that
this is a prime example of the type of case where the
guidelines do not take into consideration sufficiently
the—all of the factors that are outlined in 18 U.S.C.
3553(a).
UNITED STATES v. MENDOZA-MENDOZA 13
J.A. 42. The court then explained its perspective on the case
and its underlying reasoning for imposing the sentence it did
at some length, with sensitivity and a full awareness of the
inevitably tragic circumstances surrounding virtually every
criminal sentencing hearing. Here is what the court said:
The Court: Well, as in most criminal cases, there are
tragic consequences for innocent victims. The court
received a letter through defense counsel with pic-
tures of the family from the young woman who is the
mother of two children by this defendant, and I had
a letter from her attesting to her love for the defen-
dant and desiring that he come back home, all of
which, of course, touch at the heartstrings of any
individual, including an old seasoned judge.
Nevertheless, the court has to remember that the
crime that the defendant is before me on is illegal
entry into the United States. I have determined,
though I have not agreed with, that the guideline cal-
culations are correct, and unless I find a reason for
a departure from those guidelines, or a variance
based on 18 U.S.C. section 3553, then I am obli-
gated to pass a sentence within that guideline range.
And upon reflection, this court is unable to deter-
mine a need for variance. The purposes of sentenc-
ing are to reflect the seriousness of the offense,
promote respect for the law, and provide just punish-
ment for the offense.
As indicated by [the Assistant United States Attor-
ney], this defendant has—this is his third illegal
entry into the United States. So certainly [I] cannot
say that the proposed guideline range fails to achieve
those objectives . . . . to afford adequate deter[r]ence
to criminal conduct. And the criminal conduct we
are talking about, you must remember, is illegal re-
entry. It’s not the activity with the young woman
14 UNITED STATES v. MENDOZA-MENDOZA
who is now his mistress or common law wife or
whatever. And I don’t really know what is adequate
to deter his illegal entry to the United States. I mean,
he has been deported. He is back. Been deported. He
is back again.
And you might say on his behalf that he is coming
back to be with the woman he loves and the children
he loves.
But as [the Assistant United States Attorney]
points out, he has a woman he loved, past tense, and
children as a result of that relationship back in Mex-
ico. So, I don’t—really don’t know what—I can’t
argue with the guideline range as far as providing
adequate deterrence to protect the public from fur-
ther crimes of the defendant, that crime being illegal
entry. I don’t know that the guidelines will even do
it then. Nothing else has up until now.
But in any event, the bottom line is that viewing it
as objectively as I possibly can, I cannot see any rea-
son for a variance. So I feel that it’s my duty, though
I have some sympathy for his—the mother of his
children down in Greenville and those children there,
I am not too concerned about the assault charges
there . . . . I have lived through too many Monday
morning recorders . . . court and district court hear-
ings when women have taken warrants out against
their husband or boyfriend for assault, and by the
time Monday morning gets there, they come into
court and say they want to—as back in those days,
they want to take out the charges, they have kissed
and made up.
So, I know it’s—it would be nice if that type of thing
didn’t happen in our society, but as long as the peo-
ple who are subjected to the messy domestic vio-
UNITED STATES v. MENDOZA-MENDOZA 15
lence don’t pursue it and get it corrected themselves,
there is little anyone else can do.
So, in any event, Mr. Mendoza-Mendoza, if you will
stand up, please. Stand up. Except heretofore stated,
the court finds the basis for findings contained in the
presentence report credible, and therefore adopts
those findings.
Based on those findings, the clerk calculated the
range prescribed by the advisory sentencing guide-
lines. The court has considered that range as well as
all other relevant factors set forth in the advisory
sentencing guidelines, and those set forth in 18
U.S.C. Section 3553(a).
Pursuant to the Sentencing Reform Act of 1984 and
in accordance with the Supreme Court decision in
United States versus Booker, it’s the judgment of the
court that the defendant, Dario Mendoza-Mendoza,
be committed to the custody of the Bureau of Prisons
for a term of 46 months.
J.A. 48-51 (alterations and emphasis added). It is not easy to
discern a "procedural irregularity" in this record. The court
referred to "Booker" and, separately, to the "advisory sentenc-
ing guidelines" several times in its soliloquy. Read in their
entirety, the court’s comments reflect that it was aware that it
possessed the authority to impose a sentence below (or above,
for that matter) the applicable guidelines range.
Nevertheless, as we judges know as well if not better than
most anyone, words matter. And the highlighted portion of
the above excerpt from the sentencing transcript shows that
the court employed the word "obligated" in a way that permits
us, but does not compel us, to find a procedural irregularity
and to remand for a new sentencing hearing. Unlike the
majority, I do not "believe that the district court accorded the
16 UNITED STATES v. MENDOZA-MENDOZA
Guidelines a quasi-mandatory effect." See Maj. Op. at 11-12.
On the other hand, I cannot say that a remand to permit the
court to clarify its language is unwarranted. Accordingly, I
concur in the judgment.