PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5078
JAIME ALEJANDRO ALVARADO PEREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:07-cr-00435-RWT-1)
Argued: May 11, 2010
Decided: July 1, 2010
Before GREGORY and SHEDD, Circuit Judges, and
Arthur L. ALARCÓN, Senior Circuit Judge of the United
States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by published opinion. Senior Judge Alarcón wrote
the opinion, in which Judge Gregory joined. Judge Shedd
wrote a separate concurring opinion.
COUNSEL
ARGUED: Eun Kyung Cho, HALL & CHO, PC, Rockville,
Maryland, for Appellant. Michael Joseph Leotta, OFFICE OF
2 UNITED STATES v. ALVARADO PEREZ
THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Solette Magnelli, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee.
OPINION
ALARCÓN, Senior Circuit Judge:
Jaime Alejandro Alvarado Perez ("Alvarado-Perez")
entered a conditional plea to a one-count felony indictment of
unlawful possession of a firearm and ammunition by a person
previously convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1). He appeals from the district court’s sentencing
decision on two grounds: (1) the district court clearly erred by
applying three sentencing enhancements pursuant to the advi-
sory United States Sentencing Guidelines §§ 2K2.1(b)(6),
5K2.3, and 5K2.7 relating to Alvarado-Perez’s conduct of
taking a loaded firearm inside a "backpack"1 into the office of
a probation officer, and (2) the district court’s 96-month sen-
tence is unreasonable in light of 18 U.S.C. § 3553(a).
We affirm because we conclude that the district court did
not err in applying the sentencing enhancements. We also
have determined that the district court did not abuse its discre-
tion in sentencing Alvarado-Perez to 96 months of imprison-
ment.
1
The parties refer to it as a "backpack." The photograph of the object
introduced into evidence shows that it was a cloth bag with a draw string
that could be carried on a person’s back.
UNITED STATES v. ALVARADO PEREZ 3
I
A
The facts of this case are not in dispute. In their plea agree-
ment, the parties stipulated that the United States would prove
the following facts beyond a reasonable doubt:
The defendant, JAIME ALEJANDRO
ALVARADO-PEREZ, entered the United States
from his native country of El Salvador on December
21, 2001 as a non-immigrant child of a legal perma-
nent resident. This status was valid until December
20, 2003, after which the defendant’s status became
that of an illegal alien. Since that date, the defendant
has been in the United States and has not filed any
applications with the U.S. Citizenship and Immigra-
tion Services. His status, to date, remains that of an
illegal alien.
On June 30, 2006, [ALVARADO-]PEREZ was
convicted in the Circuit Court for Montgomery
County, Maryland on the offense of Third Degree
Sexual Offense, which involves the use or threatened
use of force as an element. This offense was commit-
ted against a minor. [Alvarado-]Perez was sentenced
to three years’ imprisonment and two years of super-
vised release. His civil rights have not been restored.
In September of 2007, agents from Immigration and
Customs Enforcement ("ICE") became aware that
[ALVARADO-]PEREZ was illegally within the
United States. On September 6, 2007,
[ALVARADO-]PEREZ visited the Montgomery
County Parole and Probation Office for his regular
meeting with his probation officer. On August 23,
2007, that probation officer had visited
[ALVARADO-]PEREZ and had told him that
4 UNITED STATES v. ALVARADO PEREZ
because he had missed several appointments and had
failed to maintain the conditions of his probation,
that [he] was on the verge of violating his probation
that would result in his re-incarceration. When
[ALVARADO-]PEREZ arrived for his September
6th meeting, ICE Agents approached him.
[ALVARADO-]PEREZ acknowledged his identity
and admitted that his visa from 2001 expired. ICE
agents then arrested [ALVARADO-]PEREZ for
immigration violations. During a search incident to
this arrest, agents found a .38 caliber revolver,
Model MR 102, serial number 09644, and 16 rounds
of Winchester .38 caliber cartridges in the bag that
the defendant was wearing when he entered the pro-
bation office. The firearm was loaded. The firearm
and ammunition were manufactured outside of
Maryland and crossed state lines, in and affecting
interstate commerce. [ALVARADO-]PEREZ
knowingly possessed the firearm and ammunition
and brought it to the probation office.
[ALVARADO-]PEREZ was subsequently advised
of his Miranda rights, which he waived. During this
interview, [ALVARADO-]PEREZ stated, among
other things, that: (1) he had arrived in the United
States on December 21, 2001 with a visa that had
since expired; (2) he had brought the firearm with
him to his probation meeting on that date; (3) he did
not need the gun for protection against gang mem-
bers; and (4) he was an MS-13 gang member in El
Salvador, as reflected by his tattoos.
(Plea Agreement 9.)
B
On September 26, 2007, a federal grand jury returned an
indictment charging Alvarado-Perez with one count of unlaw-
UNITED STATES v. ALVARADO PEREZ 5
ful possession of a firearm and ammunition by a person previ-
ously convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1).2 Alvarado-Perez pled guilty to the one-count
indictment. Section 924(a)(2) provides that "[w]hoever know-
ingly violates . . . section 922 shall be fined as provided in this
title, imprisoned not more than 10 years, or both." 18 U.S.C.
§ 922(a)(2). At Alvarado-Perez’s sentencing hearing on Octo-
ber 17, 2008, the district court noted that the presentence
report provided for a base offense level of 20 and a criminal
history category II. After a 3-point reduction for acceptance
of responsibility, Alvarado-Perez’s total base offense level
was 17.
The district court imposed three sentencing enhancements,
however, which increased Alvarado-Perez’s offense level to
25. First, the district court imposed a 4-point sentencing
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) based on its
determination that Alvarado-Perez’s conduct of carrying a
loaded firearm in a backpack at least facilitated or had the
potential of facilitating the crime of reckless endangerment.
Second, the district court imposed a 2-point sentencing
enhancement pursuant to U.S.S.G. § 5K2.3 based on its deter-
mination that Alvarado-Perez’s conduct of bringing a loaded
firearm into the office of a probation officer caused the officer
psychological injury. Finally, the district court imposed a 2-
point sentencing enhancement pursuant to U.S.S.G. § 5K2.7
based on its determination that Alvarado-Perez’s conduct of
bringing a loaded firearm into the probation officer’s office
also caused a significant disruption of a government function.
With a new base offense level of 25 and a criminal history
category II, Alvarado-Perez’s Sentencing Guidelines range
was 63 to 78 months.
After considering the 18 U.S.C. § 3553(a) factors, the dis-
2
The indictment also charged Alvarado-Perez with one count of posses-
sion of a firearm and ammunition by an alien under 18 U.S.C. § 922(g)(5).
That count was dismissed on the motion of the Government.
6 UNITED STATES v. ALVARADO PEREZ
trict court imposed an upward variance and sentenced
Alvarado-Perez to 96 months imprisonment and 3 years
supervised released. Alvarado-Perez filed this timely appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II
A
Alvarado-Perez contends that the district court erred in
applying an enhancement for facilitating or potentially facili-
tating the crime of reckless endangerment under U.S.S.G.
§ 2K2.1(b)(6). Alvarado-Perez argues that "[b]ased upon the
facts admitted [ ] and agreed upon by [the parties], the
enhancement does not apply." (Appellant’s Br. 13.)
"In assessing a challenge to a sentencing court’s application
of the Guidelines, we review the court’s factual findings for
clear error and its legal conclusions de novo." United States
v. Allen, 446 F.3d 522, 527 (4th Cir. 2006) (citing United
States v. Ebersole, 411 F.3d 517, 536-36 (4th Cir. 2005)).
Section 2K2.1(b)(6) of the Sentencing Guidelines provides:
If the defendant used or possessed any firearm or
ammunition in connection with another felony
offense; or possessed or transferred any firearm or
ammunition with knowledge, intent or reason to
believe that it would be used or possessed in connec-
tion with another felony offense, increase by 4
levels. If the resulting offense level is less than level
18, increase to level 18.
U.S.S.G. § 2K2.1(b)(6).
In interpreting § 2K2.1(b)(6), this Court has previously
held that "a firearm is possessed ‘in connection with’ another
felony offense if the firearm ‘facilitated, or had the potential
UNITED STATES v. ALVARADO PEREZ 7
of facilitating’ the other offense." United v. Jenkins, 566 F.3d
160, 162 (4th Cir. 2009) (quoting U.S.S.G. § 2K2.1). "This
requirement is satisfied if the firearm ‘ha[d] some purpose or
effect’ with respect to the other offense,[ ] including if the
firearm ‘was present for protection or to embolden the actor.’"
Id. (quoting United States v. Blount, 337 F.3d 404, 411 (4th
Cir. 2003) and United States v. Lipford, 203 F.3d 259, 266
(4th Cir. 2000)).
The term "another felony" is defined in § 2K2.1(b)(6) as
"any federal, state, or local offense . . . punishable by impris-
onment for a term exceeding one year, regardless of whether
a criminal charge was brought, or a conviction obtained."
U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(C).
Section 3-204 of the Maryland Code of Criminal Law pro-
vides as follows:
(a) [a] person may not recklessly:
(1) engage in conduct that creates a substantial risk
of death or serious physical injury to another; or
(2) discharge a firearm from a motor vehicle in a
manner that creates a substantial risk of death or
serious physical injury to another.
(b) A person who violates this section is guilty of the
misdemeanor of reckless endangerment and on con-
viction is subject to imprisonment not exceeding 5
years or a fine not exceeding $5,000 or both.
Md. Code Ann. Crim. Law § 3-204(a) (emphasis added).3
3
Although, under Maryland law, a person who is guilty of reckless
endangerment is guilty of a misdemeanor, Boyer v. State, 107 Md.App.
32, 39 (Md. Ct. Spec. App. 1995), the offense constitutes a felony under
the Guidelines because it is punishable by imprisonment for a term
exceeding one year. U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(C).
8 UNITED STATES v. ALVARADO PEREZ
"Maryland’s reckless endangerment statute is aimed at deter-
ring the commission of potentially harmful conduct before an
injury or death occurs. As a consequence, a defendant may be
guilty of reckless endangerment even where he has caused no
injury." Boyer, 107 Md.App. at 39. "Accordingly, guilt under
the statute does not depend upon whether the accused
intended that his reckless conduct create a substantial risk of
death or serious injury to another; rather, the trier of fact must
determine whether the accused’s conduct, when viewed
objectively, was so reckless as to constitute a gross departure
from the standard of conduct that a law-abiding person would
observe." Id. (internal quotation marks omitted).
The district court found that Alvarado-Perez recklessly
endangered other persons. It determined that Alvarado-
Perez’s conduct of carrying a loaded firearm in his backpack
was a gross departure from the standard of conduct that a law-
abiding person would observe and that it created a substantial
risk of death or serious physical injury to another. The district
court reasoned as follows:
Anybody who gets on a public transportation bus,
and who carries with him a fully loaded weapon with
no safety, and a lot of bullets in a bag that can be jos-
tled and easily make the trigger go off is clearly
endangering the public and doing so recklessly.
...
A law-biding person would not want to get on a pub-
lic bus with a gun, much less with a gun fully
loaded, no safety, in a bag that, with the slightest
agitation, could cause death or serious bodily harm
on that bus. . . . I conclude that it certainly meets the
level of reckless endangerment.
Based upon this record, we agree with the district court that
carrying a fully loaded handgun that has no safety mechanism
UNITED STATES v. ALVARADO PEREZ 9
in a cloth bag constitutes reckless endangerment. The district
court did not clearly err in determining that Alvarado-Perez’s
conduct constituted reckless endangerment under Maryland
law.
Alvarado-Perez further maintains that the district court’s
finding that he was guilty of reckless endangerment was
based solely on the court’s determination that "the firearm did
not have a safety." (Appellant’s Br. 16.) Alvarado-Perez
argues that "[t]he district court relied heavily and repeatedly
on [this] fact [which was] not admitted by [him], nor proven
to a jury." (Id.)
This Court has previously held that:
[s]entencing judges may find facts relevant to deter-
mining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is
treated as advisory and falls within the statutory
maximum authorized . . . Indeed, ‘many individual
Guidelines apply higher sentences in the presence of
special facts’ and ‘[i]n many cases, the sentencing
judge, not the jury, will determine the existence of
those facts.’ Rita v. United States, 551 U.S. 338, 127
S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). That
‘does not violate the Sixth Amendment,’ however,
because ‘[a]s far as the law is concerned, the judge
could disregard the Guidelines and apply the same
sentence . . . in the absence of the special facts.’ . . .
The point is thus that the Guidelines must be advi-
sory, not that judges may find no facts.
United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).
Accordingly, the district court was entitled to consider rele-
vant conduct that was not admitted by Alvarado-Perez in
determining an appropriate sentencing decision. The follow-
ing colloquy demonstrates that Alvarado-Perez’s counsel was
mindful of this principle at sentencing:
10 UNITED STATES v. ALVARADO PEREZ
THE COURT: I’m entitled to consider conduct
other than the conduct involved in offense of convic-
tion, am I not?
MS. CHO [defense counsel]: I’m sorry, your
Honor?
The Court: I’m entitled to consider conduct includ-
ing uncharged and acquitted conduct of the defen-
dant that is not part of the offense of conviction
under the sentencing guidelines, am I not?
MS. CHO [defense counsel]: Absolutely your
honor.
Whether or not Alvarado-Perez admitted that the revolver
did not have a safety mechanism, or whether this fact was
presented to a jury, is not controlling because the evidence
presented by the Government was sufficient to meet the pre-
ponderance of the evidence standard. See Benkahla, 530 F.3d
at 312. At the sentencing hearing, ICE Special Agent Sergeant
Paul Morris testified that the firearm found in Alvarado-
Perez’s backpack did not have a safety and that it could have
fired on its own. He testified as follows:
THE COURT: Was the safety on the gun on or off?
WITNESS: [Agent Morris]: I do not believe the
gun had a safety, sir. It was a revolver.
THE COURT: So there would be no safety? In
other words, it could fire —
WITNESS: [Agent Morris]: Correct.
THE COURT: — without any additional effort
required?
UNITED STATES v. ALVARADO PEREZ 11
WITNESS: [Agent Morris]: Correct.
Because the district court’s finding that Alvarado-Perez’s
conduct of carrying a loaded firearm in a backpack at least
facilitated or had the potential of facilitating the crime of
reckless endangerment was not clearly erroneous, the court
did not err in applying the 4-point sentencing enhancement
pursuant to U.S.S.G. § 2K2.1(b)(6).
B
Alvarado-Perez contends that the district court erred in
applying the enhancement under U.S.S.G. § 5K2.3. Section
5K2.3 provides:
If a victim or victims suffered psychological injury
much more serious than that normally resulting from
commission of the offense, the court may increase
the sentence above the authorized guideline range.
The extent of the increase ordinarily should depend
on the severity of the psychological injury and the
extent to which the injury was intended or know-
ingly risked.
U.S.S.G. § 5K2.3. Specifically, Alvarado-Perez argues that
the distress caused to Probation Officer Donna Billeter, which
caused her to wear a bullet proof vest and request a job trans-
fer, was based on inaccurate information.
The district court imposed this enhancement because it
found that Alvarado-Perez’s conduct in bringing a loaded fire-
arm into Officer Billeter’s office caused her psychological
injury. Officer Billeter’s testimony that the fact that Alvarado-
Perez brought a gun into Billeter’s office caused her to wear
a bullet proof vest and request a transfer from a job that she
had performed for 25 years is undisputed.
The district court’s determination that Alvarado-Perez’s
action of bringing a firearm to Billeter’s office caused her
12 UNITED STATES v. ALVARADO PEREZ
serious psychological injury was not clearly erroneous.
Accordingly, the district court did not err in applying the 2-
point sentencing enhancement pursuant to U.S.S.G. § 5K2.3.
C
Alvarado-Perez contends that the district court erred in
applying the enhancement under U.S.S.G. § 5K2.7. Section
5K2.7 of the advisory Sentencing Guidelines, in pertinent
part, provides:
If the defendant’s conduct resulted in a significant
disruption of a governmental function, the court may
increase the sentence above the authorized guideline
range to reflect the nature and extent of the disrup-
tion and the importance of the governmental func-
tion affected. Departure from the guidelines
ordinarily would not be justified when the offense of
conviction is an offense such as bribery or obstruc-
tion of justice[.]
U.S.S.G. § 5K2.7.
Alvarado-Perez contends that the district court failed to
indicate what precautions the probation office took to justify
an enhancement for disruption of a governmental function.
The record supports the district court’s finding that the proba-
tion office was significantly disrupted by Alvarado-Perez’s
conduct of bringing a firearm into the probation office. The
probation office transferred Officer Billeter to another posi-
tion and it posted a new sign stating its policy against bring-
ing weapons into the office. As the district court noted,
Alvarado-Perez’s actions caused the probation office to
come to the realization that they can no longer
assume that those who are on probation are going to
be reasonably well-behaved when [they are] in [the
probation] office.
UNITED STATES v. ALVARADO PEREZ 13
It[ ] required [probation officers] to post new sign-
age, required them to give additional notifications,
additional precautions, and . . . it certainly disrupted
the operations of this office.
The district court’s determination that Alvarado-Perez’s
actions had caused a significant disruption of a governmental
function was not clearly erroneous.
III
Alvarado-Perez maintains that the district court abused its
discretion because his sentence of 96 months imprisonment is
unreasonable. He claims that the sentence is "greater than
necessary to conform with the sentencing goals of 18 U.S.C.
§ 3553(a)." (Appellant’s Br. 25.) Alvarado-Perez contends
that the district court incorrectly assumed that the firearm was
fully loaded, that the failure to have a safety heightened the
normal threat posed by the firearm, and gave undue weight to
uncharged allegations of general criminal activity. (Id. at 25-
26.) In addition, Alvarado-Perez asserts that his sentence of
96 months imprisonment provides no deterrence because he
has never served a sentence of this length. The length of his
previous sentence was 44 days. (Id. at 27.)
In Gall v. United States, 552 U.S. 38 (2007), the Supreme
Court instructed that
[r]egardless of whether the sentence imposed is
inside or outside the Guidelines range, the appellate
court must review the sentence under an abuse-of-
discretion standard. It must first ensure that the dis-
trict court committed no significant procedural error,
such as failing to calculate (or improperly calculat-
ing) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence-
14 UNITED STATES v. ALVARADO PEREZ
including an explanation for any deviation from the
Guidelines range. Assuming, that the district court’s
sentencing decision is procedurally sound, the appel-
late court should then consider the substantive rea-
sonableness of the sentence imposed under an abuse-
of-discretion standard. When conducting this review,
the court will, of course, take into account the total-
ity of the circumstances, including the extent of any
variance from the Guidelines range. If the sentence
is within the Guidelines range, the appellate court
may, but is not required to, apply a presumption of
reasonableness. But if the sentence is outside the
Guidelines range, the court may not apply a pre-
sumption of unreasonableness. It may consider the
extent of the deviation, but must give due deference
to the district court’s decision that the § 3553(a) fac-
tors, on a whole, justify the extent of the variance.
The fact that the appellate court might reasonably
have concluded that a different sentence was appro-
priate is insufficient to justify reversal of the district
court.
Practical considerations also underline this legal
principle. The sentencing judge is in a superior posi-
tion to find facts and judge their import under
§ 3553(a) in the individual case. The judge sees and
hears the evidence, makes credibility determinations,
has full knowledge of the facts and gains insights not
conveyed by the record. 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. Moreover, dis-
trict courts have an institutional advantage over
appellate courts in making these sorts of determina-
tions, especially as they see so many more Guide-
lines sentences than the appellate courts do.
UNITED STATES v. ALVARADO PEREZ 15
Gall, 552 U.S. at 51-52 (citing Rita, 551 U.S. at 357-58 and
Koon v. United States, 518 U.S. 81, 98 (1996) (internal quota-
tions omitted)).
Section 3553(a) requires that a sentencing court consider
the following factors:
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punish-
ment for the offense;
(B) to afford adequate deterrence to criminal con-
duct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educa-
tional or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines . . .
(5) any pertinent policy statement . . .
16 UNITED STATES v. ALVARADO PEREZ
(6) the need to avoid unwarranted sentence dispari-
ties among defendants with similar records who have
been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of
the offense.
18 U.S.C. § 3553(a).
The district court did not commit a procedural error in
applying § 3553(a). The district court correctly calculated the
Guidelines range and allowed the parties to argue for a sen-
tence they believed to be appropriate. The district court fully
explained its reasoning in consideration of the § 3553(a) fac-
tors. The district court reasoned as follows:
[T]he conduct involved in this case is fairly unique
and not just stupid but reckless and outrageous, and
[ ] therefore a variance sentence is going to be neces-
sary in my judgment in order to reflect the factors set
forth in Section 3553.
First of all, the nature and circumstances of the
offense, which at first glance appears to be a garden
variety felon in possession of a firearm case, are by
no means garden variety. This is an extremely seri-
ous offense which congress has provided for sub-
stantial possible punishment of up to ten years, and
ordinarily it is under circumstances quite different
from this one. In this one, however, the circum-
stances of the possession by this convicted felon are
truly not stupid, but outrageous. That one would
come to the offices of a government agency that is
required to supervise him because of earlier criminal
conduct, and to march into that building with a
loaded weapon which either does not have a safety
or the safety is off, and with a large supply of addi-
tional ammunition, is an extremely serious offense
UNITED STATES v. ALVARADO PEREZ 17
when you take into account the full circumstances
relating to this felon’s possession of that weapon.
The history and characteristics of this defendant
are not helpful to this case. This is a person who
wasn’t recruited to MS-13 here in the United States
but came here as a member already, overstayed his
visa, and clearly has been involved in fairly signifi-
cant and deep involvement with the MS-13 gang as
reflected by the tattoos and by the testimony that’s
been given to me today by the witnesses who I’ve
heard.
This is an especially troublesome gang that endan-
gers the public in a most profound way with a cul-
ture that calls for crime as part of its existence, and
it is one to be dealt with in the interest of the public
severely and harshly. My sentence is required to pro-
mote respect for the law. . . .
I’m required to consider the need to protect the
public from further crimes of the defendant. This
defendant has endangered the public enough. What
he’s done has been truly outrageous, and the public
must be protected from further conduct of this
nature.
I’m required to consider the need to provide the
defendant with needed educational or vocational
training, medical care, or other correctional treat-
ment in the most effective manner. I think the most
effective manner will be in jail.
I am required to consider the need to avoid unwar-
ranted sentence disparities, and I will attempt to do
so, but I must do so with appropriate measurement
of the seriousness of this offense.
18 UNITED STATES v. ALVARADO PEREZ
I am required to consider the need to provide resti-
tution to any victims. And unfortunately, this defen-
dant has no resources, and the — I’m not sure that
I could provide adequate restitution to the impact
this has had, and that I’ve already mentioned, on the
probation officer.
I am going to impose a variance sentence of 96
months, and I want to state very clearly that whether
the guideline recommendation produced a range of
63-78 months, which is what it did produce after I
applied the guidelines, or a sentencing range of 41-
51 months, which would be the way the probation
officer’s original calculations had it, or a sentencing
range of 27-33 months, which would be without the
four level enhancement as provided by the probation
officer, not any one of those sentences to me would
be sufficient to reflect all of the 3553 factors here.
So if I assume for the moment that this defendant
were to prevail on every single argument on every
single offense level adjustment and every single
departure upward, and that I had in front of me a rec-
ommended sentence of 27-33 months, I would
impose the exact same sentence. This is a sentence
that must be imposed to reflect more accurately all
of the factors set forth in Section 3553. That is a sen-
tence that is still well below the statutory maximum
in this case. It is 80 percent of a maximum sentence.
And if ever were there a case where an argument
could be made as has been made by the prosecutor
today of seeking the most that congress would autho-
rize, this is one of those cases. But the sentence I’ve
imposed is only 80 percent of that way towards what
would be recommended or authorized by congress in
its wisdom in enacting this regulation. So I’m impos-
ing a sentence of 96 months in custody.
UNITED STATES v. ALVARADO PEREZ 19
This Court has held that "the resulting sentence is procedur-
ally reasonable [when] the district court adequately explain[s]
its sentence on alternative grounds supporting a variance sen-
tence, by reference to the 18 U.S.C. § 3553(a) factors." United
States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009). "This
additional, § 3553(a)-based, explanation of [the] sentence pro-
vides independent grounds for a variance sentence and veri-
fies the reasonableness of the district court’s sentencing
determination." Id. at 805. The record shows that the district
court adequately explained the basis for Alvarado-Perez’s
sentence under the § 3553(a) factors apart from the sentencing
enhancements.4
Alvarado-Perez’s argument that a sentence of 96 months is
too long to provide adequate deterrence because his previous
sentence was only for a duration of 44 days is also meritless.
The district court stated that a 96 month sentence was neces-
sary because:
[A] light sentence under the circumstances of this
case, [ ] would utterly undermine the law and would
totally fail to afford adequate deterrence to criminal
conduct. A sentence by a court occasionally needs to
send a message that would deter others, like this
defendant, who have cheerfully disregarded their sta-
tus of convicted felons and do have not only pos-
sessed weapons but possessed them in a government
building on their way to see a government probation
officer. There really must be and will be deterrence
to that kind of behavior.
4
Alvarado-Perez argues that the district court gave undue weight to
hearsay testimony that he engaged in gang activity. However, this Court
previously held that "there is no bar to the use of hearsay at sentencing.
‘United States courts have a long history of using reliable hearsay for sen-
tencing. The trial court may properly consider uncorroborated hearsay evi-
dence that the defendant has had an opportunity to rebut or explain.’"
United States v. Love, 134 F.3d 595, 607 (4th Cir. 1998) (quoting United
States v. Terry, 916 F.2d 157, 160-61 (4th Cir. 1990)).
20 UNITED STATES v. ALVARADO PEREZ
The totality of the circumstances demonstrates that
Alvarado-Perez’s sentence is substantively reasonable. The
district court did not abuse its discretion in sentencing
Alvarado-Perez to 96 months of imprisonment.
Conclusion
The sentencing decision of the district court is
AFFIRMED.
SHEDD, Circuit Judge, concurring:
Because I agree that the district court did not err in either
calculating Perez-Alvarado’s advisory guideline range or
varying upward from that range, I concur in the majority
opinion. I write separately to note that, in my view, the sen-
tence could also be affirmed, as the government urges in its
supplemental brief, on the alternate reasoning given by the
district court without deciding whether the court erred in its
calculation of the advisory guideline range. See United States
v. Keene, 470 F.3d 1347 (11th Cir. 2006).1
As the majority notes, the district court used an advisory
sentencing range of 63-78 months in imposing the 96-month
variance sentence. To reach this range, the court used several
guideline enhancements. However, the court stated that it
would impose that sentence even if the sentencing range was
27-33 months, which is what Alvarado-Perez contends is
appropriate:
1
Alternate sentences are not completely uncommon. Indeed, in a more
limited context, we have previously recommended that district courts
impose alternate sentences. See United States v. Hammoud, 378 F.3d 426
(4th Cir. 2004) (en banc order holding that the sentencing guidelines are
mandatory but recommending that district courts impose alternate sen-
tences treating the guidelines as advisory pending Supreme Court guid-
ance), vacated, 543 U.S. 1097 (2005) (for further consideration in light of
United States v. Booker, 543 U.S. 220 (2005)).
UNITED STATES v. ALVARADO PEREZ 21
I am going to impose a variance sentence of 96
months, and I want to state very clearly that whether
the guideline recommendation produced a range of
63-78 months, which is what it did produce after I
applied the guidelines, or a sentencing range of 41-
51 months, which would be the way the probation
officer’s original calculations had it, or a sentencing
range of 27-33 months, which would be without the
four level enhancement as provided by the probation
officer, not any one of those sentences to me would
be sufficient to reflect all of the 3553 factors here.
So if I assume for the moment that this defendant
were to prevail on every single argument on every
single offense level adjustment and every single
departure upward, and that I had in front of me a
recommended range of sentence of 27-33 months, I
would impose the exact same sentence. This is a sen-
tence that must be imposed to reflect more accu-
rately all of the factors set forth in Section 3553.
That is a sentence that is still well below the statu-
tory maximum in this case. It is 80 percent of a max-
imum sentence. And if ever were there a case where
an argument could be made as has been made by the
prosecutor today of seeking the most that [C]ongress
would authorize, this is one of those cases. But the
sentence I’ve imposed is only 80 percent of the way
towards what would be recommended or authorized
by [C]ongress in its wisdom in enacting this legisla-
tion. So I’m imposing a sentence of 96 months in
custody.
J.A. 233-34 (emphasis added).
In Keene, the district court sentenced the defendant using
a contested sentencing enhancement, but it also stated that
even if the enhancement did not apply it would impose the
same sentence. On appeal, the Eleventh Circuit affirmed with-
22 UNITED STATES v. ALVARADO PEREZ
out deciding the enhancement issue because it found that the
alternate sentence was reasonable. The Eleventh Circuit
termed its analysis "an assumed error harmlessness inquiry"
that has two components: (1) "knowledge that the district
court would have reached the same result even if it had
decided the guidelines issue the other way," and (2) "a deter-
mination that the sentence would be reasonable even if the
guidelines issue had been decided in the defendant’s favor.
. . ." 470 F.3d at 1349. Applying that analysis to the facts
before it, the Eleventh Circuit concluded that even if there
was any misapplication of the guideline enhancement,
"the error did not affect the district court’s selection
of the sentence imposed." Put a little differently, it
would make no sense to set aside this reasonable
sentence and send the case back to the district court
since it has already told us that it would impose
exactly the same sentence, a sentence we would be
compelled to affirm.
Id. at 1350 (quoting Williams v. United States, 503 U.S. 193,
203 (1992)). See also United States v. Dean, 517 F.3d 1224,
1232 (11th Cir. 2008), cert. denied sub nom. Lopez v. United
States, 129 S. Ct. 2155 (2009) (applying the Keene analysis
to affirm the variance sentence).
Improper calculation of an advisory guideline range consti-
tutes a procedural error, Gall v. United States, 552 U.S. 38,
51 (2007), and "procedural errors at sentencing . . . are rou-
tinely subject to harmlessness review," Puckett v. United
States, 129 S. Ct. 1423, 1432 (2009). Thus, "[i]n evaluating
a district court’s error in its sentencing calculations, we must
determine whether the error was harmless." United States v.
Mehta, 594 F.3d 277, 283 (4th Cir. 2010). A sentencing cal-
culation error is harmless "if the resulting sentence was not
‘longer than that to which [the defendant] would otherwise be
subject.’" Id. (quoting United States v. Stokes, 261 F.3d 496,
499 (4th Cir. 2001)).
UNITED STATES v. ALVARADO PEREZ 23
I am not aware of any published decision in which we have
applied the Keene analysis in the precise situation before us:
that is, where we have entirely given the benefit of the doubt
regarding the appropriate advisory sentencing range to the
defendant and then simply decided the reasonableness of an
alternate variance sentence from that range.2 However, such
an approach seems entirely consistent with our caselaw.
For example, it is not uncommon for us to assume, without
deciding, error in the context of conducting a harmless error
analysis. See, e.g., United States v. Johnson, 587 F.3d 625,
637 (4th Cir. 2009), cert. denied sub nom. Martin v. United
States,___ U.S. ___, 78 U.S.L.W. 3611 (2010) ("Martin raises
several potential errors that the district court made in admit-
ting the 1980 conviction, but we need not address them.
Assuming that the district court erred in admitting the convic-
tion, that error was harmless."); United States v. Lipford, 203
F.3d 259, 273 (4th Cir. 2000) ("[W]e need not decide whether
the conduct here meets that broad definition because even if
we assume, without deciding, that there was error, any such
error would be harmless.").
Indeed, we recently did so in a sentencing case. In United
States v. Boulware, ___ F.3d ___, 2010 Westlaw 1874806
(4th Cir. 2010), the defendant challenged her sentence on
appeal, arguing that the district court did not offer sufficient
reasons to show that it made an individual assessment of the
specific circumstances in her case in light of the relevant
§ 3553(a) factors. Without deciding whether such an error
occurred, we rejected this argument because the alleged error
was harmless:
In light of the strong indications that the district
court fully considered Boulware’s argument for a
2
Cf. United States v. Lee, 321 Fed. Appx. 298, 302 (4th Cir.) (Shedd,
J., concurring) (noting that the sentence could have been affirmed under
the Keene analysis), cert. denied, 130 S. Ct. 204 (2009).
24 UNITED STATES v. ALVARADO PEREZ
below-guidelines sentence, and in light of the weak-
ness of that argument, the notion that having to
explain its analysis further might have changed the
district court’s mind . . . is simply unrealistic in the
present case, and remand for resentencing would be
a pointless waste of resources. We therefore hold
that even assuming that the district court committed
procedural error in failing to sufficiently explain the
sentence imposed in light of the § 3553(a) factors,
any error was harmless.
2010 Westlaw 1874806, at *6.
Moreover, in a slightly different context, we have affirmed
a sentence that was erroneously imposed because we con-
cluded that the district court’s statement of an alternate sen-
tence rendered the error harmless. See United States v.
Shatley, 448 F.3d 264 (4th Cir. 2006). We explained in that
case:
Thus, even though the district court did impose a
sentence under the Sentencing Guidelines that vio-
lated Shatley’s Sixth Amendment rights, it
announced at the same time that if the Sentencing
Guidelines became advisory, it would impose the
same sentence. In making that determination, it
properly considered the § 3553(a) factors. . . . We
take the district court at its word when it stated
plainly that it would impose the same sentence under
an advisory guideline system. Thus, the error was
harmless; to remand this case now in view of these
facts would amount to an "empty formality."
448 F.3d at 268 (citation omitted).
We have come close to applying the Keene analysis on at
least two occasions. For example, in United States v. Evans,
526 F.3d 155 (4th Cir.), cert. denied, 129 S.Ct. 476 (2008),
UNITED STATES v. ALVARADO PEREZ 25
the defendant did not challenge the calculation of his advisory
sentencing range, but he did challenge the district court’s use
of a guideline provision to depart upward from the range.
Without deciding whether the court erred in its use of the
guideline provision, we found the ultimate sentence to be rea-
sonable because the court imposed it by relying on both the
guideline provision and, independently, the § 3553(a) factors.
We noted: "When, as here, a district court offers two or more
independent rationales for its deviation, an appellate court
cannot hold the sentence unreasonable if the appellate court
finds fault with just one of these rationales." 526 F.3d at 165
(emphasis in original). We then concluded: "Accordingly,
even assuming the district court erred in applying the Guide-
line departure provisions, Evans’ sentence, which is well-
justified by § 3553(a) factors, is reasonable." Id.
More recently, in United States v. Grubbs, 585 F.3d 793
(4th Cir. 2009), cert. denied, 130 S. Ct. 1923 (2010), the
defendant argued that the district court committed two proce-
dural errors involving two enhancements used to calculate his
guideline range. We rejected the defendant’s argument as to
the first enhancement, finding it to be proper. However, we
noted regarding the second enhancement that the court "may
have erred." 585 F.3d at 804. Nonetheless, we affirmed the
sentence, finding it to be procedurally reasonable "because the
district court adequately explained its sentence on alternative
grounds supporting a variance sentence, by reference to the 18
U.S.C. § 3553(a) factors." Id.
As the foregoing authorities illustrate, (1) we review proce-
dural sentencing errors (such as guideline range calculations)
for harmlessness, (2) we have previously assumed without
deciding that sentencing errors occurred in affirming sen-
tences under a harmless error analysis, and (3) we have
accepted a district court’s statement of an alternate sentence
as a basis to conclude that a sentencing error was harmless.
Taken together, these analytical approaches form the Keene
"assumed error harmlessness" analysis.
26 UNITED STATES v. ALVARADO PEREZ
Applying that analysis to this case, we (1) initially give
Alvarado-Perez the benefit of the doubt and assume (without
deciding) that he is correct that the sentencing range is 27-33
months and (2) proceed to decide the question of whether a
variance from that range to 96 months is reasonable. Based on
the reasons stated by the district court, and in light of our def-
erential standard of review, I believe that the variance from
27-33 months to 96 months is reasonable. Accordingly, the
sentence could be affirmed on this basis without reaching the
merits of the claimed guideline calculation errors.