FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50434
Plaintiff-Appellee,
v. D.C. No.
09-CR-687 (W)
CYNTHIA CHAVEZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted May 7, 2010*
Pasadena, California
Filed July 8, 2010
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Frederic Block,** District Judge.
Per Curiam Opinion
*The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
9663
UNITED STATES v. CHAVEZ 9665
COUNSEL
Karen P. Hewitt, United States Attorney for the Southern Dis-
trict of California, by Bruce R. Castetter and Amie D.
Rooney, Assistant United States Attorneys, San Diego, Cali-
fornia, for the plaintiff-appellee.
James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for the defendant-appellant.
OPINION
PER CURIAM:
Defendant-Appellant Cynthia Chavez (“Chavez”) timely
appeals her sentence of 15 months’ incarceration for narcotics
convictions. Chavez claims that her personal characteristics
entitled her to a maximum sentence of probation on the theory
that the parsimony clause of 18 U.S.C. § 3553(a) establishes
the “statutory maximum” for Apprendi purposes. Apprendi v.
New Jersey, 530 U.S. 466 (2000). We write principally to
reject Chavez’s flawed understanding of Apprendi, because
the criminal statute of conviction—not the parsimony clause
of the sentencing statute—sets the Apprendi maximum. We
affirm.
I
Driving an automobile laden with more than 30 kilograms
of marijuana, Chavez attempted to enter the United States at
9666 UNITED STATES v. CHAVEZ
Calexico, California, on February 13, 2009. Customs and Bor-
der Protection officers stopped her, searched her car, and dis-
covered her marijuana. Chavez was indicted on one count of
importation of a controlled substance, 21 U.S.C. § 960(b)(4);
and one count of possession of a controlled substance with
intent to distribute, 21 U.S.C. § 841(b)(1)(D). Each conviction
authorized a sentence of not more than five years of incarcera-
tion. Chavez pleaded guilty to these charges on June 1, 2009,
without a plea agreement.
The pre-sentence report (“PSR”) computed an adjusted
offense level of 16; with Chavez’s criminal history category
of II, the PSR reached an advisory Guidelines range of 24 to
30 months’ imprisonment for each count. The PSR recom-
mended a Guidelines sentence on each count, running concur-
rently.
At sentencing, the district court granted an additional
reduction of one point for acceptance of responsibility; it also
sua sponte gave Chavez a two point minor-role adjustment.
The new adjusted offense level of 13 produced an advisory
Guidelines range of 15 to 21 months’ imprisonment.
Chavez argued that incarceration was not warranted in light
of her personal characteristics; she stressed in particular that
she was a single mother raising two young children. She
requested probation.
The district court noted that the Guidelines range was advi-
sory, and imposed a sentence of 15 months’ imprisonment for
each count, to run concurrently: “Mindful of the fact that the
statutory maximum for [both offenses] is five years, and
reviewing the criteria set forth in title 18, section 3553(a), I
find that the low end of the adjusted guideline range would be
a sufficient sentence but not greater than necessary.”
II
[1] Chavez believes that her sentence was greater than nec-
essary because it was more than probation, relying on the
UNITED STATES v. CHAVEZ 9667
“parsimony clause” of 18 U.S.C. § 3553(a): “The court shall
impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this
subsection.” See 18 U.S.C. § 3553(a)(2) (listing applicable
sentencing factors). Because her sentence was, in her view,
“greater than necessary,” it violated the Sixth Amendment
under Apprendi. 530 U.S. at 489-90. She also contends that it
was procedurally and substantively unreasonable.
A
Chavez failed to make her Apprendi argument in the dis-
trict court. Apprendi claims “raised for the first time on
appeal” are “reviewed for plain error.” United States v. Lopez,
500 F.3d 840, 848 (9th Cir. 2007) (citing United States v.
Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001)).
[2] The district court did not commit error, let alone plain
error, in determining Chavez’s sentence. Apprendi and its
progeny proscribe any sentence “above the statutory maxi-
mum based on a fact, other than a prior conviction, not found
by a jury or admitted by the defendant.” Cunningham v. Cali-
fornia, 549 U.S. 270, 274-75 (2007) (emphasis added; cita-
tions omitted). The applicable “statutory maximum” is “the
maximum [a judge] may impose without any additional find-
ings.” Blakely v. Washington, 542 U.S. 296, 303-04 (2004)
(emphasis in original); see also United States v. Booker, 543
U.S. 220, 244 (2005).
[3] Chavez’s guilty pleas exposed her to a maximum of
five years’ imprisonment for each count. The statutes of
conviction—not the parsimony clause—set the statutory max-
imum. United States v. Ray, 484 F.3d 1168, 1171 (9th Cir.
2007) (“[T]he definition of ‘statutory maximum’ continues to
come from the United States Code.”); see also United States
v. Bond, 414 F.3d 542, 545 (5th Cir. 2005) (holding that the
“usual and ordinary” meaning of “statutory maximum” is “the
upper limit of punishment that Congress has legislatively
9668 UNITED STATES v. CHAVEZ
specified for violation of a statute”) (citation and internal quo-
tation marks omitted); United States v. Archuleta, 412 F.3d
1003, 1007 (8th Cir. 2005) (“[T]he criminal statute of convic-
tion still provides ‘the maximum [penalty] authorized by the
facts established by a plea of guilty or a jury verdict.’ ”)
(quoting Booker, 543 U.S. at 244).
[4] The parsimony clause does not set a separate statutory
maximum for Sixth Amendment purposes. The clause is a
guidepost, an overarching principle that directs judges in the
appropriate exercise of their sentencing discretion within the
sentencing range authorized and consideration of factors pre-
scribed by Congress. See Booker, 543 U.S. at 233 (“We have
never doubted the authority of a judge to exercise broad dis-
cretion in imposing a sentence within a statutory range.”); see
also, e.g., Kimbrough v. United States, 552 U.S. 85, 101
(2007) (referring to clause as “overarching provision” that,
post-Booker, “permits the court to tailor the sentence” to the
individual defendant and crime in light of the goals of the
Sentencing Reform Act of 1984) (citing Booker, 543 U.S. at
245-46); United States v. Rodriguez, 527 F.3d 221, 228 (1st
Cir. 2008) (referring to sentencing purposes of § 3553(a) as “a
tapestry of factors, through which runs the thread of an over-
arching principle” that is “sometimes referred to as the ‘parsi-
mony principle’ ”) (citing Kimbrough, 552 U.S. at 101);
United States v. Borho, 485 F.3d 904, 912 (6th Cir. 2007)
(“[T]he guidepost for sentencing decisions post-Booker is the
‘parsimony requirement[.]’ ”); cf. United States v. Jones, 460
F.3d 191, 195 (2d Cir. 2006) (“Selection of an appropriate
amount of punishment inevitably involves some degree of
subjectivity that often cannot be precisely explained.”).
Chavez’s construction would make any criminal sentence
subject to a Sixth Amendment challenge—not because the
sentence imposed is more than that authorized by “the fact of
a prior conviction” or a verdict of guilt, Apprendi, 530 U.S.
at 489-90—but simply because it is harsher than a defendant
would prefer. We do not read the parsimony clause to com-
UNITED STATES v. CHAVEZ 9669
mand a particular result. We do read it to direct sentencing
judges to use the concept of “sufficient, but not greater than
necessary,” 18 U.S.C. § 3553(a), as an “overarching principle
[that] necessarily informs a sentencing court’s consideration
of the entire constellation of section 3553(a) factors[.]” Rodri-
guez, 527 F.3d at 228 (citing Kimbrough, 552 U.S. at 101).
B
[5] Chavez’s claim that her sentence was procedurally
unreasonable is equally without merit. A sentencing judge is
required to give adequate consideration to the § 3553(a) fac-
tors, Gall v. United States, 552 U.S. 38, 51 (2007), and the
district court did so. The sentencing judge reviewed the
§ 3553(a) factors and concluded that 15 months’ imprison-
ment was sufficient but not greater than necessary. A sentenc-
ing judge “need not rehearse on the record all of the
considerations” listed in § 3553(a). United States v. Mix, 457
F.3d 906, 912 (9th Cir. 2006) (citation omitted). Such a
“checklist recitation” of sentencing factors “is neither neces-
sary nor sufficient for a sentence to be reasonable.” Id. at 912-
13 (citations omitted).
C
Chavez lastly claims that her sentence is substantively
unreasonable, again relying upon the parsimony provision.
We review for abuse of discretion. United States v. Overton,
573 F.3d 679, 700 (9th Cir. 2009) (citing Gall, 552 U.S. at
51).
[6] “[W]here judge and [the Sentencing] Commission both
determine that the Guidelines sentence is an appropriate sen-
tence for the case at hand, that sentence likely reflects the
§ 3553(a) factors (including its ‘not greater than necessary’
requirement).” Rita v. United States, 551 U.S. 338, 355
(2007) (emphasis in original). “[I]n the overwhelming major-
ity of cases, a Guidelines sentence will fall comfortably
9670 UNITED STATES v. CHAVEZ
within the broad range of sentences that would be reasonable
in the particular circumstances.” United States v. Treadwell,
593 F.3d 990, 1015 (9th Cir. 2010) (citation and internal quo-
tation marks omitted). Chavez’s case was a rather ordinary
one, and 15 months’ imprisonment was at the low end of a
Guidelines range that was appropriately calculated. The dis-
trict court did not abuse its discretion.
AFFIRMED.