FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10098
Plaintiff-Appellee, D.C. No.
v. 1:03-cr-00187-
JESUS NORBERTO EVANS-MARTINEZ, DAE-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
February 11, 2010—Honolulu, Hawaii
Filed July 8, 2010
Before: Jerome Farris, Dorothy W. Nelson and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
9749
9752 UNITED STATES v. EVANS-MARTINEZ
COUNSEL
Peter C. Wolff, Jr., Federal Public Defender, and Alexander
Silvert, First Assistant Federal Defender, District of Hawaii,
Honolulu, Hawaii, for the defendant-appellant.
Edward H. Kubo, Jr., United States Attorney, and Lawrence
L. Tong, Assistant U.S. Attorney, District of Hawaii, Hono-
lulu, Hawaii, for the plaintiff-appellee.
OPINION
BEA, Circuit Judge:
This case involves a criminal defendant’s claim that the
district court committed various procedural errors when it
imposed concurrent sentences of 160 months’ imprisonment
after the defendant pleaded guilty to three counts: (1) sexual
abuse of a child, (2) sexual exploitation of children, and (3)
UNITED STATES v. EVANS-MARTINEZ 9753
witness tampering. The defendant also claims the sentences
imposed by the district court were unreasonably harsh,
amounting to substantive unreasonability.
When a defendant has been convicted of three counts, one
of which carried a Congressionally mandated minimum sen-
tence, one might think the logical place to start reckoning his
sentence under the Sentencing Guidelines would be with that
minimum sentence. It could become the advisory Guidelines
sentence from which—after taking into consideration relevant
aggravating and mitigating factors—all three counts could be
sentenced.
Alas, such logic is overcome by the precise language of the
Sentencing Guidelines and the possibility that the conviction
on the count carrying the mandatory minimum sentence could
be vacated or reversed, putting in doubt any sentence based
on it.
Under the Sentencing Guidelines, a mandatory minimum
sentence becomes the starting point for any count that carries
a mandatory minimum sentence higher than what would oth-
erwise be the Guidelines sentencing range. All other counts,
however, are sentenced based on the Guidelines sentencing
range, regardless the mandatory minimum sentences that
apply to other counts.
Here, perhaps understandably, the district court erred when
it used the mandatory minimum sentence for one count as the
starting point for sentencing all counts. Thus, to ensure the
procedural requirements of the Sentencing Guidelines are
properly followed, we must vacate the sentences imposed on
counts other than the one that carried a mandatory minimum
sentence and remand them, once again, for sentencing by the
district court.
The sentence the district court imposed on the count that
carried a mandatory minimum sentence was properly calcu-
9754 UNITED STATES v. EVANS-MARTINEZ
lated. In a separate memorandum disposition filed concur-
rently with this opinion, we hold the sentence imposed on that
count is not substantively unreasonable. It is affirmed.
I. Background1
Jesus Norberto Evans-Martinez (“Evans-Martinez”) was an
active duty member of the United States Army, stationed in
Hawaii. He lived at Schofield Barracks, which is within the
special maritime and territorial jurisdiction of the United
States.
Evans-Martinez was indicted on charges of (1) sexual
abuse of a minor, in violation of 18 U.S.C. § 2243(a), for the
sexual abuse of a minor in his custody; (2) sexual exploitation
of children, in violation of 18 U.S.C. § 2251(c), for sending
e-mails that advertised the creation of his child pornography-
related e-group; and (3) witness tampering, in violation of 18
U.S.C. § 1512(b), for asking his wife to destroy evidence. He
entered a plea agreement with the government in which he
agreed to plead guilty to all three counts. The government
agreed not to seek additional charges against Evans-Martinez
that related to sexual abuse of minors or to child pornography.
The agreement provided that the government would inform
the district court of any aggravating or mitigating evidence
that would be relevant to sentencing.
At the sentencing hearing that gave rise to this appeal,2 the
district court noted that the Guidelines sentencing range for
1
We provide only a limited recitation of the facts because many of the
relevant facts were filed under seal. Those facts are not relevant to the res-
olution of the legal issues we address in this opinion.
2
In a previous appeal in this case, we vacated and remanded the sen-
tence imposed by the district court because the district court failed to
notify Evans-Martinez in advance of the sentencing hearing of its intent
to impose an upward departure, as required by Federal Rule of Criminal
Procedure 32. United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th
Cir. 2008).
UNITED STATES v. EVANS-MARTINEZ 9755
all three counts was 120 months’ imprisonment—the statutory
minimum sentence for sexual exploitation of children (Count
2). The government moved for a downward departure and rec-
ommended concurrent sentences of 96 months’ imprisonment
on all three counts. Defense counsel argued the district court
should depart downward to 60 months’ imprisonment and use
that as the starting point for any upward variance based on the
18 U.S.C. § 3553(a) sentencing factors.
The district court granted the government’s motion for a
downward departure. However, the district court did not
announce the extent of the departure or calculate a new
Guidelines sentencing range. Instead, the district court pro-
ceeded to consider the § 3553(a) factors. The district judge
explained that, while he had presided over many child por-
nography cases in his 20 years on the bench, he had “never
seen one with some of the compelling, disturbing and egre-
gious circumstances that exist in this case.” He identified
numerous aggravating factors to support the imposition of an
above-Guidelines sentence.3 The district judge also consid-
ered the assistance Evans-Martinez provided to authorities,
which helped to convict seven others on child pornography
charges and the steps Evans-Martinez took toward rehabilita-
tion while he was in prison. The district court imposed con-
current sentences of 160 months’ imprisonment for each of
the three counts.
II. Discussion
We review sentences imposed by district courts under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). We must first “ensure that the district court
committed no significant procedural error” when it sentenced
Evans-Martinez. Id. If the district court committed no signifi-
3
Because the facts underlying many of these aggravating factors were
filed under seal and are not relevant to the legal issues we address in this
opinion, we do not discuss them here.
9756 UNITED STATES v. EVANS-MARTINEZ
cant procedural error, we must “consider the substantive rea-
sonableness of the sentence imposed.” Id.
A. Procedural Error
1. Calculation of Guidelines Sentencing Range
[1] The first question we must answer is whether we are
required to review the sentence imposed by the district court
for procedural errors beyond those raised by the parties.
“Yes,” holds our recent decision in United States v. Ressam,
593 F.3d 1095 (9th Cir. 2010). As we explained in Ressam,
“appellate courts have a sua sponte duty to undertake a review
for procedural error even where . . . no such error is expressly
asserted by the [parties].” Id. at 1115. In Ressam, the govern-
ment appealed the sentence imposed by the district court on
the ground the sentence was unreasonably lenient. Id. at 1114.
In its briefs, the government asserted that the “sole issue pre-
sented” was whether the defendant’s sentence was “substan-
tively unreasonable.” Id. (citation omitted). Despite the gov-
ernment’s position that procedural error was not at issue on
appeal, we proceeded to review the sentencing decision for
procedural error. Id. at 1122-23. Thus, where a party chal-
lenges the substantive reasonableness of a sentence on appeal,
we “must review [the] sentencing decision[ ] for procedural
error, even where no claim of procedural error is raised.” Id.
at 1116.
We begin by reviewing the district court’s calculation of
the Guidelines sentencing range applicable to all three counts:
First, the district court was required to group closely
related counts. U.S.S.G. § 3D1.1(a)(1). The district court did
not group sexual abuse of a minor (Count 1) and sexual
exploitation of children (Count 2) because those counts did
not “involve substantially the same harm”—the counts
involved different victims. See id. § 3D1.2. Count 1 involved
Evans-Martinez’s sexual abuse of a minor in his custody.
UNITED STATES v. EVANS-MARTINEZ 9757
Count 2 involved Evans-Martinez’s sending an e-mail in
which he advertised the creation of a child-pornography
related e-group that contained photographs and videos of
other unidentified children. The district court did group sexual
exploitation of children (Count 2) with witness tampering
(Count 3) because the witness tampering obstructed the inves-
tigation of the sexual exploitation offense. See id. § 3C1.1
cmt. n.8. We refer to the two groups as Group A, which
includes only Count 1, and Group B, which includes Counts
2 and 3.
Second, the district court was required to calculate an
offense level for each group (the “grouped offense level”). Id.
§ 3D1.1(a)(2). The grouped offense level is “the highest
offense level of the counts in the Group.” Id. § 3D1.3(a). The
offense level for sexual abuse of a minor (Count 1) is 20
where, as here, the minor was in the defendant’s custody at
the time of the abuse. Id. § 2A3.2.4 Because Count 1 was the
only count in Group A, Group A’s grouped offense level was
20. The offense level for sexual exploitation of children
(Count 2) is 17.5 Id. § 2G2.2. Witness tampering (Count 3)
increases by two levels the offense level of the count with
which it is grouped. Id. § 3C1.1. Thus, the grouped offense
level for Group B is 19—an offense level of 17 for sexual
exploitation of children (Count 2), plus a two-level increase
for witness tampering (Count 3).
Third, the district court was required to calculate the “com-
bined offense level applicable to all Groups taken together.”
4
The sentencing court must apply the version of the Guidelines in effect
at the time of the offense if application of a later version of the Guidelines
would lead to a higher punishment. United States v. Ortland, 109 F.3d
539, 546 (9th Cir. 1997). Here, the offense level under the current version
of the Guidelines would be 22, but under the version applicable at the time
of the offenses, the offense level was 20.
5
The offense level under the current version of the Guidelines would be
22, but under the version applicable at the time of the offenses, the offense
level was 17.
9758 UNITED STATES v. EVANS-MARTINEZ
Id. § 3D1.1(a)(3). The starting point is the highest grouped
offense level. Id. § 3D1.4. Here, Group A had the highest
grouped offense level: 20. The table in section 3D1.4 requires
a two-level increase where there are two groups that have
grouped offense levels within four levels of one another.
Here, a two-level increase applies because the grouped
offense levels for Group A (20) and Group B (19) are within
four levels of one another. Thus, the combined offense level
is 22.
Fourth, to calculate the “total offense level,” the district
court was required to adjust Evans-Martinez’s combined
offense level based on acceptance of responsibility. Id.
§ 3E1.1. Because Evans-Martinez accepted responsibility for
each offense, section 3E1.1(a) required a two-level downward
adjustment. He was entitled to an additional one-level down-
ward adjustment under section 3E1.1(b) because the com-
bined offense level was 16 or greater and the government
filed a motion stating he “timely notif[ied] authorities of his
intention to enter a plea of guilty.” A three-level downward
adjustment from the combined offense level of 22 results in
a total offense level of 19.
Fifth, the district court was required to calculate Evans-
Martinez’s criminal history category. Id. § 4A1.1. Because
Evans Martinez has no prior convictions, his criminal history
category is I. Id.
Sixth, the district court was required to use the Sentencing
Table to calculate the Guidelines sentencing range based on
the total offense level (19) and his criminal history category
(I). Id. at Ch. 5, Pt. A. Based on the Sentencing Table, the
Guidelines sentencing range is 30-37 months’ imprisonment.
The district court correctly calculated the Guidelines sentenc-
ing range.
However, the Guidelines sentencing range does not take
into account statutory maximum or minimum sentences. Sec-
UNITED STATES v. EVANS-MARTINEZ 9759
tions 5G1.1 and 5G1.2 are used to take into account statutory
maximum and minimum sentences. Here, we must first apply
section 5G1.2, which applies where there are multiple counts
of conviction. Section 5G1.2(a)6 does not apply because none
of the counts on which Evans-Martinez was convicted man-
date consecutive sentences. Section 5G1.2(b)7 does apply, and
it required the district court to apply sections 5G1.1(a) and (b)
and to compare the Guidelines sentencing range of 30-37
months’ imprisonment with any applicable statutory maxi-
mum or minimum sentence.
“Where the statutorily authorized maximum sentence is
less than the minimum of the applicable guideline range, the
statutorily authorized maximum sentence shall be the guide-
line sentence.” Id. § 5G1.1(a). Here, all of the statutorily
authorized maximum sentences—160 months for sexual
abuse of a minor (Count 1), 240 months for sexual exploita-
tion of children (Count 2), and 120 months for witness tam-
pering (Count 3)—are above the Guidelines sentencing range.
Thus, section 5G1.1(a) does not affect the Guidelines sentenc-
ing range; none of the statutory maximums become a guide-
line sentence.
[2] However, “[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable guide-
line range, the statutorily required minimum sentence shall be
the guideline sentence.” Id. § 5G1.1(b). Here, neither Count
1 nor Count 3 carries a statutory minimum sentence, but the
statutorily required minimum sentence for sexual exploitation
6
“Except as provided in subsection (e), the sentence to be imposed on
a count for which the statute (1) specifies a term of imprisonment to be
imposed; and (2) requires that such term of imprisonment be imposed to
run consecutively to any other term of imprisonment, shall be determined
by that statute and imposed independently.” U.S.S.G. § 5G1.2(a).
7
“Except as otherwise required by law (see § 5G1.1(a), (b)), the sen-
tence imposed on each other count shall be the total punishment as deter-
mined in accordance with Part D of Chapter Three, and Part C of this
Chapter.” U.S.S.G. § 5G1.2(b).
9760 UNITED STATES v. EVANS-MARTINEZ
of children (Count 2) is 120 months’ imprisonment. Thus, the
guideline sentence for Count 2 is 120 months’ imprisonment.
[3] At this point, the district court erred in its interpretation
of the Guidelines. The district court used the 120-month statu-
torily required minimum sentence for sexual exploitation of
children (Count 2) as the guideline sentence for all three
counts, based on its erroneous conclusion that section
5G1.1(b) required it to use 120 months’ imprisonment as the
guideline sentence for all three counts.8 However, that inter-
pretation ignores section 5G1.2(b), which requires that the
sentence for “each other count”—here, Counts 1 and 3—be
determined based on the Guidelines sentencing range of 30-37
months’ imprisonment. Id. § 5G1.2(b). Therefore, the Guide-
lines sentencing range for sexual abuse of a child (Count 1)
is 30-37 months’ imprisonment, the Guidelines sentence for
sexual exploitation of children (Count 2) is 120 months’
imprisonment, and the Guidelines sentencing range for wit-
ness tampering (Count 3) is 30-37 months’ imprisonment.
This interpretation of sections 5G1.1 and 5G1.2 is consis-
tent with the D.C. Circuit’s interpretation of those sections.
See United States v. Kennedy, 133 F.3d 53, 60-61 (D.C. Cir.
1998); see also United States v. Lee, 359 F.3d 194, 209-10
(3d Cir. 2004) (“Section 5G1.2(b) of the Guidelines instructs
a court to apply the same sentence to each count in the same
group, unless the statutorily authorized maximum for that
count is less than the minimum of the guideline range or the
statutory minimum is greater than the maximum of the guide-
line range.”).9 In Kennedy, the defendant was charged with
8
Evans-Martinez contends the district court erred when it used the statu-
torily authorized maximum sentence of 240 months’ imprisonment,
instead of the applicable guideline sentence of 120 months’ imprisonment,
as the “starting point” for determining his sentence. Opening Br. 3. This
contention lacks merit because the district court used 120 months’ impris-
onment as the starting point for determining Evans-Martinez’s sentence.
9
The Fifth Circuit, without analysis, reached the opposite conclusion.
United States v. Salter, 241 F.3d 392, 395-96 (5th Cir. 2001). In Salter,
UNITED STATES v. EVANS-MARTINEZ 9761
robbery and with being a felon in possession of a firearm. Id.
at 60. The Guidelines sentencing range was 262-327 months’
imprisonment. Id. at 61. However, based on a third-strike law,
the robbery count carried a mandatory life sentence. Id. The
district court imposed concurrent life sentences, and the
defendant appealed. Id. The D.C. Circuit held the district
court erred when it imposed a mandatory life sentence for the
felon-in-possession count instead of using the Guidelines sen-
tencing range of 262-327 months’ imprisonment for that
count. Id.
[4] This interpretation of sections 5G1.1 and 5G1.2 also
avoids the potential for the application of section 5G1.1(a)
and section 5G1.1(b) to lead to an absurd result. The potential
for an absurd result would always exist if the term “guideline
sentence” in sections 5G1.1(a) and (b) meant the guideline
sentence applicable to all counts, rather than the guideline
sentence applicable to only the count that carried the statutory
maximum or minimum sentence. For example, assume the
Guidelines sentencing range applicable to two counts is 15-18
months’ imprisonment. If one of the counts has a mandatory
minimum sentence of 24 months’ imprisonment, the guideline
sentence would be 24 months’ imprisonment, pursuant to sec-
tion 5G1.1(b). But if the other count has a mandatory maxi-
mum of 12 months’ imprisonment, the guideline sentence
the defendant was convicted of money laundering and conspiracy to pos-
sess with intent to distribute more than 100 kilograms of marijuana. Id. at
393. The district court imposed concurrent sentences of 130 months’
imprisonment. Id. at 394. The Fifth Circuit held the district court erred
when it failed to group the two counts. Id. at 395. Had the district court
grouped the counts, the Guidelines sentencing range would have been 87-
108 months’ imprisonment. Id. The Fifth Circuit explained the district
court should have imposed concurrent sentences of 120 months’
imprisonment—the statutory minimum sentence for the marijuana count.
Id. at 396. But the Fifth Circuit did not explain why the 120-month mini-
mum sentence for the marijuana count should have applied to the money
laundering count. Absent analysis or explanation, we find the case unper-
suasive.
9762 UNITED STATES v. EVANS-MARTINEZ
would be 12 months’ imprisonment, pursuant to section
5G1.1(a). Two different guideline sentences would apply to
each count: 24 months’ and 12 months’ imprisonment. This
is an absurd result. To avoid this result, it is necessary to
interpret “guideline sentence” as the guideline sentence appli-
cable to only the count that carries the mandatory maximum
or minimum sentence. Thus, in the preceding example, the
count with a mandatory maximum of 12 months’ imprison-
ment would have a guideline sentence of 12 months’ impris-
onment, and the count with a mandatory minimum of 24
months’ imprisonment would have a guideline sentence of 24
months’ imprisonment.
Ressam was silent as to the standard of review we must
apply once we fulfill our sua sponte duty to review the sen-
tence imposed by the district court for procedural error.
Where, as here, a party fails to raise an issue before the dis-
trict court, plain error review generally applies. See United
States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008). “How-
ever, we are not limited to this standard of review when we
are presented with a question that ‘is purely one of law’ and
where ‘the opposing party will suffer no prejudice as a result
of the failure to raise the issue in the trial court . . . .’ ” United
States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.
2009) (quoting United States v. Echavarria-Escobar, 270
F.3d 1265, 1267-68 (9th Cir. 2001)). Here, we are presented
with a question that “is purely one of law”—the interpretation
of the Guidelines. Echavarria-Escobar, 270 F.3d at 1268.
Further, the government is not prejudiced by our requirement
that the district court correctly calculate the Guidelines sen-
tencing range before it imposes a sentence, even though
Evans-Martinez did not raise the issue below. Therefore, we
do not apply plain error review.
[5] Because the district court committed procedural error
when it used 120 months’ imprisonment as the Guidelines
sentence for all three counts, we vacate and remand the sen-
tences for sexual abuse of a child (Count 1) and witness tam-
UNITED STATES v. EVANS-MARTINEZ 9763
pering (Count 3) to allow the district court to impose
sentences based on the correct Guidelines sentencing range of
30-37 months’ imprisonment.10
2. Failure to Announce the Extent of the Departure
[6] The district court did not err when it granted the gov-
ernment’s motion for a downward departure but failed to
announce the extent of that departure and to calculate a new
Guidelines sentencing range before it considered the 18
U.S.C. § 3553(a) sentencing factors and imposed an above-
Guidelines sentence. A district court may, upon the govern-
ment’s motion, depart below the statutorily required minimum
sentence, 18 U.S.C. § 3553(e),11 and below the Guidelines
sentencing range, U.S.S.G. § 5K1.1,12 when a defendant ren-
ders substantial assistance to authorities. A district court’s
decision to grant such a motion does not bind the court either
to begin at the sentence recommended by the government or
to stay at the level recommended by the government. See
United States v. Hanna, 49 F.3d 572, 576 (9th Cir. 1995)
(“The extent of [the defendant’s] assistance and its impact on
the sentence are matters left within the sound discretion of the
sentencing judge.” (citation omitted)). Here, the district court
granted the government’s motion for a downward departure
10
The 160-month sentence imposed by the district court for witness tam-
pering (Count 3) also exceeded the 120-month statutorily authorized maxi-
mum sentence for that count. See 18 U.S.C. § 1512(b) (2003). On remand,
the district court shall resentence Evans-Martinez in conformity with the
statutorily authorized maximum sentence.
11
Section 3553(e) states: “Upon motion of the Government, the court
shall have the authority to impose a sentence below a level established by
statute as a minimum sentence so as to reflect a defendant’s substantial
assistance in the investigation or prosecution of another person who has
committed an offense.”
12
Section 5K1.1 states: “Upon motion of the government stating that the
defendant has provided substantial assistance in the investigation or prose-
cution of another person who has committed an offense, the court may
depart from the guidelines.”
9764 UNITED STATES v. EVANS-MARTINEZ
and acknowledged that the departure “relieve[d] the Court of
the ten-year mandatory minimum sentence.” The district court
then considered the § 3553(a) factors and imposed a sentence
without first announcing the extent of the downward depar-
ture or calculating a new Guidelines sentencing range.
Evans-Martinez contends the district court’s failure to
announce the extent of the downward departure or to calculate
a new Guidelines sentencing range interferes with our ability
to review the sentence imposed by the district court for sub-
stantive reasonableness because, on review, we must compare
the sentence imposed with the correctly calculated Guidelines
sentencing range. He contends the relevant Guidelines sen-
tencing range is the post-departure Guidelines sentencing
range. But it is the pre-departure Guidelines sentencing range
that the district court must correctly calculate and that we
must use when we review a sentence for substantive reason-
ableness. See United States v. Mohamed, 459 F.3d 979, 987
(9th Cir. 2006) (“[W]e elect to review the district court’s
application of the advisory sentencing guidelines only insofar
as they do not involve departures.”); see also United States v.
Tankersley, 537 F.3d 1100, 1114 n.11 (9th Cir. 2008) (hold-
ing Mohamed is still good law).13
We used the pre-departure sentence for comparison
because we held that United States v. Booker, 543 U.S. 220
(2005), essentially replaced “the scheme of downward and
upward ‘departures’ ” with “the requirement that judges
13
In Mohamed, the district court calculated a Guidelines sentencing
range of 12-18 months’ imprisonment. 459 F.3d at 983. The district court
then applied an eight-level upward departure, which resulted in a post-
departure Guidelines sentencing range of 37-46 months’ imprisonment. Id.
Finally, the district court considered the § 3553(a) factors and imposed a
sentence of 60 months’ imprisonment. Id. On review for substantive rea-
sonableness, we compared the 60-month sentence imposed by the district
court with the 12-18 month pre-departure Guidelines sentencing range, not
with the 37-46 month post-departure Guidelines sentencing range. Id. at
988.
UNITED STATES v. EVANS-MARTINEZ 9765
impose a ‘reasonable’ sentence.” Mohamed, 459 F.3d at 986.
We concluded it would be “redundant” to require “two
exercises—one to calculate what departure would be allow-
able under the old mandatory scheme and then to go through
much the same exercise to arrive at a reasonable sentence.”
Id. at 986. Therefore, based on our holding in Mohamed, we
reject Evans-Martinez’s contention that a district court cannot
simultaneously consider—or, in his words, “toggl[e] back and
forth between”—any relevant departures and the § 3553(a)
sentencing factors when it considers whether to impose an
above- or below-Guidelines sentence.
[7] Here, the only relevant figures for purposes of our sub-
stantive reasonableness analysis are the pre-departure Guide-
lines sentence for sexual exploitation of children (Count 2)—
120 months’ imprisonment—and the sentence the district
court imposed for that count after it considered the relevant
departures and the § 3553(a) sentencing factors—160 months’
imprisonment.14 We can use these figures to calculate the
extent to which the sentence imposed by the district court
deviated from the Guidelines sentence: 40 months or a 33%
upward deviation.15 Thus, the district court’s failure to
announce the extent of the upward departure, and then to cal-
culate a new Guidelines sentencing range, does not interfere
with our ability to consider the extent of the district court’s
upward deviation when we review the sentence for substan-
tive reasonableness.
Some of the language in our decision in United States v.
Jackson, 577 F.3d 1032 (9th Cir. 2009), is in tension with our
decisions in Mohamed and Tankersley. In Jackson, we stated:
14
We discuss only the sentence for sexual exploitation of children
(Count 2) because we vacate and remand the sentences for sexual abuse
of a child (Count 1) and for witness tampering (Count 3) on other grounds.
15
We use the term “deviation” to describe the extent to which the sen-
tence imposed reflects an upward or downward departure, variance, or
combination thereof from the Guidelines sentencing range.
9766 UNITED STATES v. EVANS-MARTINEZ
“[O]nly after the court has determined the full extent of the
downward departure it would award based on [the defen-
dant’s] substantial assistance does the court consider other
factors, including those in § 3553(a), to decide whether to
depart to that full extent.” 577 F.3d at 1036 (citation omitted).
However, in Jackson, unlike the instant case, the district court
imposed a sentence below the statutorily required minimum
sentence. Id. A district court has authority to impose a sen-
tence below a statutory minimum based on a defendant’s sub-
stantial assistance to authorities. See 18 U.S.C. § 3553(e). But
a district court lacks authority to impose a sentence below the
statutorily required minimum sentence based on the § 3553(a)
sentencing factors. See Jackson, 577 F.3d at 1036. Thus, in
Jackson, the district court was required to announce the extent
of the downward departure under § 3553(e) before it consid-
ered the § 3553(a) sentencing factors; otherwise, we would
have been unable to determine whether the district court
relied on the § 3553(a) factors when it imposed a sentence
below the statutory minimum. See id.
Jackson does not control the outcome here. The district
court did not impose a sentence below the mandatory mini-
mum, so it is clear the district court did not rely on the
§ 3553(a) factors to impose a sentence below the statutorily
required minimum. Further, Jackson does not undermine
Mohamed’s holding that the district court commits procedural
error only if it fails correctly to calculate the pre-departure
Guidelines sentencing range. See Mohamed, 459 F.3d at 987.
B. Remand
Evans-Martinez contends we are required to remand all
three sentences for resentencing because the sentences were
part of one “sentencing package” that will become “unbun-
dled” if we remand any one of the sentences. Appellant’s
Opening Br. 61. As support for that rule, Evans-Martinez cites
United States v. Radmall, 340 F.3d 798 (9th Cir. 2003). In
Radmall, the defendant pleaded guilty to mail fraud, bank
UNITED STATES v. EVANS-MARTINEZ 9767
fraud, and perjury. Id. at 799. The district court sentenced the
defendant to three concurrent terms of imprisonment: 42
months for mail fraud, 12 months for bank fraud, and 12
months for perjury. Id. This court reversed his conviction for
mail fraud and remanded the bank fraud and perjury convic-
tions for resentencing. Id. at 799-800. On remand, the district
court sentenced the defendant to 42 months’ imprisonment for
bank fraud and 12 months’ imprisonment for perjury. Id. The
defendant appealed and contended the district court violated
the double jeopardy clause of the Fifth Amendment when it
increased his sentence for bank fraud from 12 to 42 months’
imprisonment on resentencing. Id. at 800.
We affirmed because the defendant had no “legitimate
expectation of finality” in his original sentence at the point he
appealed his conviction and sentence for mail fraud. Id. at
801. As we explained, “[t]he district court was entitled to put
together a wholly new sentence, even for the counts concern-
ing which there had been no error.” Id. at 801. Evans-
Martinez interprets our statement as requiring that we vacate
and remand all of his sentences if we vacate any of his sen-
tences.
[8] But Evans-Martinez misinterprets Radmall, which held
a district court may resentence a defendant on each count
remanded by the appellate court, even if the district court had
made no error with respect to a particular count. That holding
describes the district court’s authority—the power to resen-
tence on remand. It also describes our authority—the power
to vacate all of the sentences imposed by a district court when
the district court erred with respect to one of the sentences.
However, this rule is phrased in the permissive; it is not a
requirement that we vacate all of the sentences imposed. So
here, we have discretion to remand only the sentences for sex-
ual abuse of a child (Count 1) and witness tampering (Count
3) or to remand all three sentences.
9768 UNITED STATES v. EVANS-MARTINEZ
[9] We explained in Radmall that when a district court
imposes multiple sentences on a defendant, “the degree to
which each offense contributes to the total sentence is usually
affected by the other offenses of conviction.” Id. at 801. Thus,
remand of all sentences is often warranted. But here, the
Guidelines sentence for exploitation of children (Count 2) will
remain 120 months’ imprisonment on remand. Further, the
district court will still be able to consider all of the facts it
considered when it originally imposed an above-Guidelines
sentence of 160-months’ imprisonment. There is no reason to
expect the district court would impose a lower sentence on
remand. Indeed, given the statements made by the district
court at the sentencing hearing, it is clear the district court
would impose the same sentence on remand.16 Therefore, we
do not vacate and remand the sentence for exploitation of
children (Count 2), even though we vacate and remand the
sentences for the other two counts.
[10] Evans-Martinez asks that we reassign the case to a
different district judge on remand because the district judge
suggested at the sentencing hearing that, if the case were
remanded, it should be remanded to a different judge. The dis-
trict judge based his suggestion on the fact that he did not “be-
lieve in good conscience . . . [he] could impose a different
sentence upon the defendant.” Because we affirm the sentence
imposed by the district court for sexual exploitation of chil-
dren (Count 2), Evans-Martinez remains subject to a 160-
month sentence. Thus, we do not believe remand to a different
district judge is necessary. The district judge may, however,
recuse himself if he does not believe Evans-Martinez would
receive a fair hearing on remand.
16
The district court stated: “I do not believe in good conscience, having
looked at all of the factors as carefully as I have and having made a rea-
soned judgment as I believe I have in this case, that I could impose a dif-
ferent sentence upon the defendant in good conscience upon
resentencing.”
UNITED STATES v. EVANS-MARTINEZ 9769
III. Conclusion
[11] We hold the district court committed procedural error
when it used the statutorily required minimum sentence for
sexual exploitation of children (Count 2) as the Guidelines
sentence for all three counts. We vacate and remand the sen-
tences for sexual abuse of a child (Count 1) and witness tam-
pering (Count 3) to the district court for resentencing based on
the correctly calculated Guidelines sentencing range of 30-37
months’ imprisonment. We hold the district court also com-
mitted procedural error when it imposed a sentence that
exceeded the statutorily authorized maximum sentence for
witness tampering (Count 3). On remand, the sentence the
district court imposes for witness tampering (Count 3) cannot
exceed the statutorily authorized maximum sentence. Finally,
we hold the district court correctly calculated the Guidelines
sentence for sexual exploitation of children (Count 2). In a
memorandum disposition filed concurrently with this opinion,
we affirm the 160-month sentence imposed by the district
court because that sentence is substantively reasonable.
AFFIRMED in part; VACATED and REMANDED in
part.