United States v. Cage

F I L E D
United States Court of Appeals
Tenth Circuit

June 8, 2006
PU BL ISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT O F APPEALS

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellant,
v. No. 05-2079

SABRINA CA GE,

Defendant-Appellee.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR -03-766 JP)

Laura Fashing, Assistant U.S. Attorney (David C. Iglesias, United States
Attorney; and James R.W . Braun, Assistant U.S. Attorney with her on the briefs),
Albuquerque, New M exico for the Plaintiff-Appellant.

Robert J. Gorence, Robert J. Gorence & Associates, P.C., Albuquerque, New
M exico, for the Defendant-Appellee.

Before L UC ER O, Circuit Judge, M cW ILLIAM S, Senior Circuit Judge, and
T YM K O VIC H, Circuit Judge.

L UC ER O, Circuit Judge.
 This case asks us to determine the limits of reasonableness in the context of

sentencing decisions. The United States appeals a district court decision

sentencing Sabrina Cage to six days in prison and three years of supervised

release for the crimes of conspiracy to distribute 500 grams or more of a mixture

and substance containing methamphetamine and using a telephone to facilitate a

drug trafficking offense. Although the district court properly calculated the

sentence range under the Federal Sentencing Guidelines at 46-57 months

imprisonment, it used its discretion under United States v. Booker, 543 U.S. 220

(2005), to conclude that six days’ imprisonment was sufficient, but not greater

than necessary to meet the considerations enumerated in 18 U.S.C. § 3553(a).

Under B ooker, w e review district court sentencing decisions for reasonableness.

Because the facts of this case are not so dramatic as to justify such an extreme

divergence from the advisory guidelines range, the district court’s sentencing

decision was unreasonable. As such, we REV ER SE and REM AND for

resentencing.

I

Conducting operations out of both California and New M exico, the Cuevas

family orchestrated a major methamphetamine distribution ring: Nelida Cuevas,

the family matriarch, was deeply involved in the family’s drug distribution

enterprise and her four sons, Arturo, Francisco, Ricardo, and Jorge Cuevas w ere

the ring leaders of the operation in N ew M exico. Their sister Veronica Cuevas,

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Nelida Cuevas’s youngest child and only daughter, was frequently dispatched to

pick up large quantities of methamphetamine from an uncle in California to be

sold in New M exico. Once the methamphetamine was transported to San Juan

County, the Cuevas family distributed it to users through a distribution chain

including Cuevas family members and outsiders.

In the course of investigating the Cuevas family criminal enterprise, the

federal government obtained authorization to tap a cell phone to which Ricardo

Cuevas subscribed and that Ricardo’s girlfriend, Sabrina Cage, frequently used.

Cage lived in Ricardo’s home and was not employed during the time that she

lived with him. They had a son together, who was an infant at the time of the

investigation. Although not central to the conspiracy, Cage did substantially and

knowingly assist the enterprise. Evidence obtained from the wiretap shows that

Cage took orders for drug sales and helped facilitate drug transactions. Cage also

relayed messages between Ricardo and other members of the Cuevas family about

drug deals, vouched for the reliability of members of the family as drug couriers,

and, on one occasion, tried unsuccessfully to convince a friend to rent a car under

a false name for Cuevas family use.

On April 23, 2003, Nelida and Veronica were at Ricardo’s house. Ricardo

called Cage and instructed her to give $1,000 in cash to Nelida and $200 to

Veronica. After Nelida and Veronica drove away, agents stopped and arrested

them, and found $17,000 in Veronica’s luggage and $3,815 in Nelida’s luggage.

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W ithin an hour, agents began executing search warrants in various locations

controlled by the Cuevas family. At Ricardo and Cage’s residence, agents found

945 net grams of methamphetamine, over $2,000 in cash, a loaded handgun, and

two gram-capable scales. In total, the searches of all Cuevas family properties

uncovered well over two kilograms of methamphetamine and several firearms.

Cage pled guilty to one count of conspiracy to distribute 500 grams or more

of a mixture and substance containing methamphetamine, in violation of 21

U.S.C. § 841(a)(1), (B)(1)(a) & 846, and one count of using a telephone to

facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b). She

agreed that 1.5 kilograms or more of actual methamphetamine is attributable to

her, w hich, she acknowledged, would place her at a base offense level of 38.

W ith the parties’ agreement that Cage should receive an adjustment for her

mitigating role in the offense, and with the government’s concession that Cage

was a minor participant in the criminal activity and that she met the requirements

of the “safety valve” provision, 1 Cage faced a total offense level of 23. Given

1
The sentencing provision of the drug statutes to which Cage pleaded
guilty contains a safety valve that allows for the court to depart downward from
the statutory minimum sentence. 18 U.S.C. § 3553(f). The safety valve applies if
“(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines; (2) the defendant did not use
violence . . . or possess a firearm or other dangerous weapon . . . in connection
with the offense; (3) the offense did not result in death or serious bodily injury to
any person; (4) the defendant was not an organizer, leader, manager, or supervisor
of others in the offense . . . and was not engaged in a continuing criminal
enterprise . . .; and (5) . . . the defendant has truthfully provided to the
(continued...)

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that her criminal history placed her conduct in sentencing category I, Cage was

exposed to a guidelines range of 46 to 57 months.

Although she declined to object to the guidelines calculations in the Pre-

Sentence Report, Cage did move for a downward departure. She argued that her

incarceration would leave her infant son in the care of her mother, who was

already raising three children under the age of five, thereby justifying a departure

under U.S.S.G. § 5H1.6. Upon finding that “this is not a situation where the

family ties and responsibilities fall outside the heartland of cases,” the court

denied the motion for downward departure. The court then sentenced Cage at the

bottom of the guidelines range to 46 months’ imprisonment. Aware of the

Supreme Court’s pending decision in Booker, 543 U.S. at 220, the district court

fashioned an alternative sentence that it would apply if the Sentencing Guidelines

were found unconstitutional. The alternative sentence imposed by the district

court was six days’ imprisonment.

Cage began serving a 46 month term of imprisonment, but, on the day that

Booker w as decided, she filed a motion to apply the alternative sentence. In

opposing the motion, the government argued that the court lacked jurisdiction to

impose the alternative sentence, that the Booker decision did not meet the

1
(...continued)
Government.” Id.; see also United States v. Tolase-Cousins, 440 F.3d 1237, 1244
(10th Cir. 2006).

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condition precedent to the alternative sentence because it did not hold that the

Guidelines w ere unconstitutional in their entirety, and that the sentence of six

days’ imprisonment was unreasonable. After overruling the government’s

objections, the court issued an “Order D irecting Bureau of Prisons to Apply

Alternative Sentence and to Immediately Release Defendant Sabrina Cage from

Custody,” with which the Bureau of Prisons complied. The order explained that

the district court had examined the evidence and calculated the proper sentencing

range under the G uidelines and that the alternate sentence of six days’

imprisonment was sufficient, but not greater than necessary, to meet the

considerations enumerated in 18 U.S.C. § 3553(a). The government appeals and

seeks reversal of this order.

II

Before determining the reasonableness of the alternative sentence, we must

assure ourselves that we have jurisdiction to hear this appeal. Cage moves to

dismiss the appeal, arguing that the government filed its notice of appeal late and

that w e thus lack jurisdiction. Under the unique circumstances of this case, we

think that the government filed its appeal within the specified time limit. Cage’s

motion to dismiss, therefore, is denied.

“The filing of a timely notice of appeal is an absolute prerequisite to our

jurisdiction.” Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir. 1996).

The government must file its appeal within thirty days of the entry of the order

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being appealed. Fed. R. App. P. 4(b)(1)(B). Cage asserts that the government is

appealing the initial judgment, which imposed a sentence of 46 months’

imprisonment with an alternative sentence if the Sentencing Guidelines were

found unconstitutional. Because this judgment was entered on September 2,

2004, and the government filed its appeal on M arch 23, 2005, Cage argues that

the government filed its notice of appeal late. W e disagree. W hat the

government is appealing, instead, is the “Order Directing Bureau of Prisons to

Apply Alternative Sentence and to Immediately Release Defendant Sabrina Cage

from Custody,” entered on February 24, 2005.

Pursuant to 18 U .S.C. § 3742(b), the government may appeal sentences:

(1) imposed in violation of the law; (2) imposed as a result of an incorrect

application of the Guidelines; (3) that are less than the minimum guidelines

sentence; or (4) imposed for an offense for which there is no Guideline. No

statutory justification existed for appealing the 46 month sentence imposed on

September 2, 2004.

Because of finality requirements, the government did not have statutory

authority to appeal the six day sentence prior to February 24, 2005. The pertinent

statute authorizes the government to “file a notice of appeal in the district court

for review of an otherwise final sentence,” 18 U.S.C. § 3742(b), and we conclude

that the sentence of six days’ imprisonment was not a “final sentence” within the

meaning of the statute until the court entered the February 24th order that made

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the six day sentence enforceable. U ntil that date, Cage was serving a 46 month

sentence, not a six day sentence, and accordingly the latter sentence was not final.

See, e.g., United States v. Jackson, 903 F.2d 1313, 1316 (10th Cir. 1990)

(discussing the “finality” of a sentence, where the district court attempted to

anticipate the Supreme Court’s decision in M istretta v. United States, 488 U.S.

361 (1989)).

M oreover, the alternative sentence relied upon a condition precedent, which

did not occur until well after the time lapsed for appealing the September 2nd

order. Further, it was unclear to the parties whether the condition precedent ever

occurred – they disputed whether the Booker decision met the condition listed in

the alternative sentence. Given this uncertainty, the government could not have

appealed the conditional alternative sentence until after the district court found

that the condition precedent it imposed actually had occurred and ordered

execution of the alternative sentence. A ruling to the contrary would leave this

court in the unacceptable position of either ruling on the legality of a sentence

that a defendant may never suffer or withholding decision until an uncertain

future date and then deciding for the district court whether conditions it imposed

had or had not been met. Because the government appealed the district court’s

February 24th order within the statutory time period, we have jurisdiction to

consider the government’s challenge.

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 Further, we reject the government’s position that the district court lacked

jurisdiction to impose the alternative sentence in this case. The government

readily concedes that district courts have authority to impose alternative

sentences. Although we generally disapprove of alternative sentences, and under

certain circumstances – unlike like those present in this case – will find them

procedurally unreasonable under Booker, we have affirmed alternative sentences

in the past. See United States v. Garcia, 893 F.2d 250, 251, 256 (10th Cir.1989).

Rather than quarrel with the district court’s authority to impose alternative

sentences in general, the government maintains that the court below conditioned

application of the six day alternative sentence on circumstances that did not

occur. The district court stated that the alternative sentence would apply “only in

the event the United States Sentencing Guidelines and the Sentencing Reform Act

of 1984 are determined to be unconstitutional.” Because the Supreme Court in

Booker did not hold that the Sentencing Guidelines w ere unconstitutional in their

entirety, but rather held “that mandatory application of the Guidelines violates the

Sixth Amendment when judge-found facts, other than those of prior convictions,

are employed to enhance a sentence,” United States v. Gonzalez-Huerta, 403 F.3d

727, 731 (10th Cir. 2005), the government argues that the district court lacked

authority to order application of the alternative sentence. The district court

addressed this argument, stating: “The intent, when I said that the alternative

sentence would apply in the event the guidelines sentence were determined to be

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unconstitutional, was that if the Court were to rule that the guideline sentence was

not a mandatory sentence, but that a district judge would have discretion to apply,

then the alternative sentence was the proper sentence.” Upon review of the

record, it appears plain that the district court fashioned an alternative sentence

reflecting the sentence it would impose in the exercise of its discretion, and which

it intended to apply if the Court in Booker afforded district courts such discretion.

Because Booker held that a district court comm its error “by applying the

Guidelines in a mandatory fashion, as opposed to a discretionary fashion, even

though the resulting sentence was calculated solely upon facts that were admitted

by the defendant, found by the jury, or based upon the fact of a prior conviction,”

Gonzalez-Huerta, 403 F.3d at 731-32, we conclude that the district court had

jurisdiction to order application of the alternative sentence under the specific

facts of this case. See, e.g., United States v. Simpson, 430 F.3d 1177, 1181 (D.C.

Cir. 2005) (approving alternative sentence that would apply “if the Guidelines

were ‘not controlling’ but could be looked to ‘for whatever assistance . . . [the

court] might be able to get from them’”). The February 24th order was not a new

sentence, but rather a clarification of the original sentence that made the six day

sentence enforceable, and hence appealable, under § 3742(b).

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 III

As noted, Cage pled guilty to one count of conspiracy to distribute 500

grams or more of a mixture and substance containing methamphetamine and one

count of using a telephone to facilitate a drug trafficking offense. Under her plea

agreement, the government agreed that Cage was a minor participant in the

criminal activity, that she met the requirements of the safety valve provision, that

she did not posses a firearm or other dangerous weapon, and that she accepted

responsibility for her criminal conduct. Based on these stipulations, Cage’s total

offense level was 23. At criminal history category I, this corresponds to a

guidelines range of 46 to 57 months and the district court sentenced her at the

bottom of that range. It also imposed an alternative sentence, calculated without

reference to the Guidelines, of six days’ imprisonment.

After Booker was decided, the district court again considered the proper

sentence for Cage. It evaluated the proper range under the Guidelines and the

factors listed in 18 U.S.C. § 3553(a), and decided to impose the alternative

sentence of six days’ imprisonment and three years of supervised release. 2 The

2
Although the Sentencing Guidelines are now advisory following Booker,
it has remained common among courts around the country to refer to sentencing
decisions that enhance the recommended guideline range under Chapter 5 as
“departures.” Courts now frequently refer to sentencing decisions that are outside
the Guideline ranges under the district court’s discretion in applying the § 3553(a)
factors as “variances.” See, e.g., United States v. Hampton, 441 F.3d 28, 287 (4th
Cir. 2006); United States v. Gatewood, 438 F.3d 894, 896-97 (8th Cir. 2006).
W hile recognizing the advisory nature of the Guidelines, this opinion uses this
(continued...)

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government appeals this sentencing decision on the grounds that such a short

sentence is unreasonable given the gravity of the crimes committed.

A

Under Booker, we are required to review district court sentencing decisions

for “reasonableness.” 543 U.S. at 261. Sentencing decisions must be reversed

when a sentence is unreasonable considering the factors enumerated in 18 U.S.C.

§ 3553(a). Id.

Reasonableness has both procedural and substantive components. See

United States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006). To be

reasonable, a sentence must be “reasoned,” or calculated utilizing a legitimate

method. Id. As such, sentences based on miscalculations of the G uidelines are

considered unreasonable because “the manner in which [they were] determined

was unreasonable.” Id. Even if a sentence is calculated properly, i.e. the

Guidelines were properly applied and the district court clearly considered the

§ 3553(a) factors and explained its reasoning, a sentence can yet be unreasonable.

Id. In this case, there is no allegation that the method by which the sentence was

arrived at was improper. Rather, the government simply argues that a sentence of

six days’ imprisonment was unreasonably short given the gravity of the crimes

2
(...continued)
terminology.

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and the proper understanding of the application of the § 3553(a) factors in this

case.

In Kristl, we held that a sentence within the advisory guidelines range is

presumptively reasonable. Id. In this case, we must address whether a sentence

that is extremely light when compared to the applicable advisory guidelines range

was reasonable. This is an issue of first impression for this court; we have

neither explained what causes a sentence below the recommended guidelines

range sentence to be unreasonable, nor how such decisions are treated on appeal. 3

B

Given Booker’s confusing nature and seemingly internally inconsistent

holdings, as w ell as the voluminous amount of case law it has created, it is easy to

lose sight of the source of the Supreme Court’s decision: The right to a jury trial

enshrined in the Sixth Amendment. The right to a jury trial is not only the right

to have a set of fact-finders consider the individual factors at issue in one’s case,

but also the right to have a democratic cross-section of society sit in judgment.

Compare Booker, 543 U.S. at 244 (“[T]he interest in fairness and reliability

protected by the right to a jury trial [is] a common-law right that defendants

3
W e have twice considered whether a below guideline range sentence is
unreasonably high. See United States v. Chavez-Diaz, 444 F.3d 1223 (10th Cir.
2006) (31 month sentence reasonable when the guideline range was 41 to 51
months); United States v. Terrell, 445 F.3d 1261, 2006 U.S. App. LEXIS 9961,
slip. op. at 8-11 (10th Cir. April 20, 2006) (63 month sentence not unreasonably
high when the guidelines range was 92-115 months).

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enjoyed for centuries and . . . is now enshrined in the Sixth Amendment.”); w ith

Blakely v. W ashington, 542 U.S. 296, 305-06 (2004) (“Our commitment [is] to . .

. the need to give intelligible content to the right of jury trial. That right is no

mere procedural formality, but a fundamental reservation of power in our

constitutional structure. Just as suffrage ensures the people’s ultimate control in

the legislative and executive branches, jury trial is meant to ensure their control

in the judiciary.”); see also W illiam Stuntz, The Political Constitution of Criminal

Justice, 119 Harv. L. Rev. 780, 820 (2006) (“Of course, the Sixth Amendment

right to a jury trial embodies majoritarianism, by (apparently) guaranteeing local

democratic control over the allocation of criminal punishment.”).

M any commentators have noted a strong internal contradiction in the

Booker decision. See, e.g., M . K. B. Darmer, The Federal Sentencing Guidelines

After Blakely and Booker: The Limits of Congressional Tolerance and a Greater

Role for Juries, 56 S.C. L. Rev. 533, 564 (2006) (“W hile Booker A was a natural

outgrowth of the Court's recent jurisprudence, Booker B produced a jarring result

in attempting to salvage as many current features of the Guidelines as possible

while effecting an end-run around the Sixth A mendment requirements Booker A

recognized.”); Frank O . Bow man III, Punishment and Crime: Beyond Band-Aids:

A Proposal for Reconfiguring Federal Sentencing After Booker, 2005 U. Chi.

Legal F. 149, 182 (The “mystery about the Booker remedial opinion is how it can

possibly be squared with either the announced black-letter rule or the underlying

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theory of the Blakely opinion it purports to apply.”); Douglas Bloom, United

States v. Booker and United States v. Fanfan: The Tireless M arch of Apprendi

and the Intracourt Battle To Save Sentencing Reform, 40 Harv. C.R.-C.L. L. Rev.

539, 556 (2005) (Booker’s “split majority finds itself caught in the paradox it

brought upon itself”).

Part I of Booker, written by Justice Stevens on behalf of five justices,

invalidated the judicial fact-finding that underpinned the Sentencing Guidelines

because the Sixth Amendment requires facts to be proven beyond a reasonable

doubt to a jury. 543 U.S. at 226. Part II, written by Justice Breyer on behalf of

five justices – although only one who was in the majority for Part I – held that the

Sentencing Guidelines maintained authority as an advisory source for sentencing

decisions. Id. at 244 (“So modified, the Federal Sentencing Act . . . makes the

Guidelines effectively advisory. It requires a sentencing court to consider

Guidelines ranges . . . but it permits the court to tailor the sentence in light of

other statutory concerns as well.”) (citations omitted). Thus, a decision that

struck down judicial fact-finding resulted in a system where judges had more

rather than less discretion. “The most striking feature of the Booker decision is

that the remedy bears no logical relation to the constitutional violation. . . . Trial

by jury has no greater role in sentencing than it did before Booker.” M ichael

M cConnell, The Booker M ess, 83 Den. U. L. Rev. 665, 677 (2006).

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 Viewing the Booker decisions through the lens of the competing values

underlying the Sixth Amendment provides a searching explanation for this

seeming conflict. Part I requires individualized judgment: Sentencing must be

done by either by a judge in the exercise of her discretion or by a jury that finds

facts to enhance a sentence. Booker, 543 U.S. at 232-33. That is, without the

individual attention of a jury to find facts, a defendant cannot constitutionally be

sentenced by a judge without discretion to consider all relevant factors under the

sentencing statutes. Part II honors the democratic spirit of the amendment by

refusing to use the Sixth Amendment to nullify the entirety of Congress’s purpose

in passing the 1984 Sentencing Act that judicial discretion on sentencing should

be limited by the decisions of a publicly accountable body, the Sentencing

Commission. See id. at 246 (“The other approach, which we now adopt, would . .

. make the guidelines system advisory while maintaining a strong connection

between the sentence imposed and the offender’s real conduct – a connection

important to the increased uniformity of sentencing that Congress intended its

Guidelines system to achieve.”).

W hen a district court makes a sentencing decision, it must interpret

Congress’s intentions in passing sentencing laws. The Sentencing Guidelines are

an expression of that intent, albeit now in an advisory manner:

It would be startling to discover that while Congress had created an
expert agency, approved the agency’s members, directed the agency
to promulgate G uidelines, allowed those Guidelines to go into effect,

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 and adjusted those Guidelines over a period of fifteen years, that the
resulting Guidelines did not well serve the underlying congressional
purposes [behind sentencing].

United States v. W ilson, 350 F. Supp. 2d 910, 915 (D. Utah 2005). Booker II

holds that the Sixth Amendment does not require invalidating the entirety of

Congress’s intent to use an insulated but ultimately politically responsive group

to check judicial discretion. Further, it clearly provides that, although the

Guidelines are listed as only one of the § 3553(a) factors, they are not just one

factor among many. Instead, the Guidelines are an expression of popular political

will about sentencing that is entitled to due consideration when we determine

reasonableness. “[T]he Guidelines ‘represent at this point eighteen years’ worth

of careful consideration of the proper sentence for federal offenses.’” Terrell,

445 F.3d at 1265 (quoting United States v. M ykytiuk, 415 F.3d 606, 607 (7th Cir.

2005)). Because Booker represents a balance between the competing values of

the Sixth Amendment, an appellate court reviewing a sentencing decision must

take into account not only the individual factors that determine reasonableness

listed in § 3553(a), but also should give particular advisory weight to the

judgments made by the political process represented in the Guidelines.

This is why, in United States v. Kristl, 437 F.3d at 1054, we held that

sentences within the guidelines range are presumptively reasonable. This rule has

been adopted by the Fourth, Fifth, Sixth, Seventh, and Eighth Circuits; it is

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rejected by the First, Second, Third, and Ninth Circuits. See United States v.

Green, 436 F.3d 449, 457 (4th Cir. 2006); United States v. Alonzo, 435 F.3d 551,

555 (5th Cir. 2006); United States v. W illiams, 436 F.3d 706, 708 (6th Cir. 2006);

M ykytiuk, 415 F.3d at 606 (adopting presumption in Seventh Circuit); United

States v. Lincoln, 413 F.3d 716 (8th Cir. 2005); but see United States v. Jimenez-

Beltre, 440 F.3d 514 (1st Cir. 2006) (en banc); United States v. Crosby, 397 F.3d

103 (2d Cir. 2005); United States v. Cooper, 437 F.3d 324 (3d Cir. 2006); United

States v. Cantrell, 433 F.3d 1269 (9th Cir. 2006). 4

Our holding in Kristl, that within-the-guidelines sentences are entitled to a

presumption of reasonableness, speaks to how we should consider sentences

outside the guidelines range. W e reject the concept that we, as judges, should

determine “reasonableness” under § 3553(a) without reference to the fact that the

Guidelines represent a critical advisory aspect of the § 3553(a) factors. “The

continuing importance of the Guidelines in fashioning reasonable sentences . . .

simply reflect that the Guidelines are generally an accurate application of the

factors listed in § 3553(a).” Terrell, 445 F.3d at 1265. Booker does not place

original sentencing decisions entirely in the discretion of trial judges; the

4
The Eleventh Circuit’s jurisprudence on whether sentences inside the
applicable guidelines range are presumptively reasonable is less than clear. Its
only published opinion on the matter, U nited States v. Talley, 431 F.3d 784 (11th
Cir. 2005), stated: “A lthough either a defendant or the government can appeal a
sentence within the Guidelines range and argue that it is unreasonable, ordinarily
we would expect a sentence within the Guidelines range to be reasonable.” Id. at
787.

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Guidelines – as an expression of the political will of Congress – continue to assert

advisory influence on those decisions. Similarly, Booker should not be

interpreted to exempt appellate courts from the influence of Congress’s

sentiments about reasonableness in sentencing.

C

Cage received a sentence of six days’ imprisonment. Under the G uidelines,

the bottom of the applicable sentencing range would have been 46 months. This

discrepancy between the advisory guidelines range and the actual sentence is both

extraordinary and unreasonable for crimes of this level.

Several of our sister circuits have held that “[a]n extraordinary departure

‘must be supported by extraordinary circumstances.’” United States v. Kendall, _

F.3d _, 2006 U.S. App. LEXIS 10877 at *5 (8th Cir. M ay 2, 2006) (quoting

United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)); see also United

States v. M oreland, 437 F.3d 424, 432 (4th Cir. 2006) (“However, when the

variance is a substantial one, . . . we must more carefully scrutinize the reasoning

offered by the district court in support of the sentence. The farther the court

diverges from the advisory guideline range, the more compelling the reasons for

the divergence must be.”); United States v. Dean, 414 F.3d 725, 729 (7th Cir.

2005) (“However, the farther the judge’s sentence departs from the guidelines

sentence (in either direction – that of greater severity, or that of greater lenity),

the more compelling the justification based on factors in section 3553(a) that the

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judge must offer in order to enable the court of appeals to assess the

reasonableness of the sentence imposed.”).

Because this case presents such an extreme divergence from the best

estimate of C ongress’s conception of reasonableness expressed in the Guidelines,

it should be considered reasonable only under dramatic facts. Had the

comparative difference been smaller but still outside the guidelines range, the

district court’s decision would not have been presumptively reasonable but an

appropriate justification would suffice for this court to determine that it is

reasonable. However, where as here, a district court effectively ignores the

advice of the Guidelines that the crimes of conspiracy to distribute

methamphetamine and using a telephone to facilitate drug trafficking merit a

substantial term in prison, we should only treat the actual sentence as being a

reasonable application of § 3553(a) factors if the facts of the case are dramatic

enough to justify such a divergence from the politically-derived guideline range. 5

5
The same rules of appellate review must apply to district court sentencing
decisions that are above an advisory guidelines range as to those below an
advisory guidelines range. See Dean, 414 F.3d at 729. Early evidence about
appellate review of sentencing decisions for reasonableness creates concerns that
below guidelines-range sentences are treated less deferentially by appellate courts
than above guidelines-range sentences. According to the United States
Sentencing Commission, nearly three times as many below guidelines-range
sentences have been reversed for unreasonableness as have been affirmed as
reasonable. See Final R eport on the Impact of United States v. Booker On
Federal Sentencing, United States Sentencing Commission (M arch 2006) at 30.
In contrast, the same report states that close to seven times as many above
guidelines-range sentences have been found reasonable than have been found
(continued...)

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 W hen the district court issued its order enforcing the application of the

alternative sentence, it clarified its reasons for imposing a six day sentence under

Booker. The reasons given were: (1) Cage has a son with medical problems, the

son’s father was jailed following his participation in the criminal conspiracy of

which she was a part, and no one else could take care of the child; (2) Cage did

not play a major role in the conspiracy and her background, education, work

history, family responsibilities, and post-conviction behavior indicated that she

was unlikely to commit further crimes; (3) Cage does not have a continuing drug

problem and had no previous criminal history; and (4) the time spent in jail was

sufficient to impress upon her the wrongfulness of her action. 6

5
(...continued)
unreasonable. Id. According to a leading academic chronicler of sentencing
decisions, “it seems all post-Booker within-guideline sentences and nearly all
above-guidelines sentences are being found reasonable, whereas many
below-guideline sentences are being reversed as unreasonable.” Professor
Douglas A. Berman, Sorting Through the Circuit Circus, Sentencing Law and
Policy, at
http://sentencing.typepad.com/sentencing_law_and_policy/2006/04/tracking_reaso
n.html (April 28, 2006).

There have been more downward than upward variances since Booker, see
M cConnell, The Booker M ess, 83 Den. U. L. Rev. at 675. Even so, it is difficult
to explain the magnitude of the differences in the rates of reversal. Although this
case reverses a below guidelines-range sentence as unreasonable, nothing in it
should be read as applying a higher standard to below guidelines-range sentences.
6
The district court also said that it was “influenced” by some completely
irrelevant commentary from an Assistant United States Attorney. During the
original sentencing hearing, which took place before Booker, the AUSA was
asked whether an alternative sentence proposed by the court was legal. In
(continued...)

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 It is beyond doubt that these factors are all properly considered under

§ 3553(a). See 18 U.S.C. § 3553(a)(1), (2)(A), (2)(C). The problem w ith the

sentencing decision, however, is not in the consideration of these factors; it is in

the weight the district court placed on them. Cage’s role in the criminal

conspiracy was not central, but neither was it negligible. She repeatedly and

knowingly aided in its operations, took orders and arranged for the delivery of

methamphetamine, transmitted messages among members of the conspiracy,

attempted to arrange for the false registration of vehicles for a drug courier and

transferred cash among members of the conspiracy to aid its objectives.

Although Cage has managed to avoid continuing drug use and did not have a

criminal history, neither of these factors are particularly out of the ordinary.

Nor does her status as a single mother, because the father of her child is in

jail, justify such an extreme variance. W e are not insensitive to the problems of

incarcerating a single mother; doing so creates enormous costs for an innocent

child and for society at large. However, we cannot find reasonable a sentencing

6
(...continued)
response, the AUSA stated, “Since M s. Cage did serve some time in jail after her
arrest, the C ourt [c]ould also sentence her to time served, plus five years
supervised release, or however much supervised release was appropriate.” This
testimony only spoke to what was required and possible under the sentencing
statute; the court and the AUSA were discussing what types of alternative
sentences could apply if the Sentencing Guidelines were struck down. The
statement has absolutely nothing to do with what the government thought was
proper under § 3553(a). Any judicial reliance on this statement in determining a
sentence under § 3553(a) is unreasonable.

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decision that would effectively immunize single mothers from criminal sanction

aside from supervised release. Her situation is, unfortunately, not very

uncommon. The district court noted this itself w hen it denied a downward

departure on the basis of her family ties and responsibilities because it did not fall

outside the heartland of cases. Although these facts may justify some discrepancy

from the advisory guidelines range, they simply are not dramatic enough to

warrant such an extreme downward variance. As such, the district court’s

sentencing decision was unreasonable.

IV

The district court had jurisdiction to impose its alternative sentence of six

days’ imprisonment on Sabrina Cage and the United States filed a timely appeal

of this sentencing decision. That decision, however, was unreasonable. W e

REV ER SE the district court’s sentencing decision and REM AND for

resentencing.

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05-2079, United States v. Cage

T YM K O VIC H, J., concurring.

I concur in the opinion, but write separately to express my views about the

district court’s jurisdiction to enforce an alternative sentencing.

This is an odd case. The district court imposed two sentences: a guidelines

sentence of 46 months, and an alternative sentence of six days to be applied only

if the Supreme Court found the Sentencing Guidelines unconstitutional in United

States v. Booker, 543 U.S. 220 (2005), which was pending at the time of

sentencing. The Supreme Court did so, in part, ruling that the m andatory

application of the guidelines violated the Sixth Amendment. Although Cage had

begun to serve her 46-month sentence, since it violated Booker, the district court

vacated the sentence and ordered enforcement of the six-day alternative sentence.

Unfortunately, the alternative sentence, like the original sentence, was also

unlawful: it failed to account for the reasonableness factors set forth in 18 U.S.C.

§ 3553(a).

The rub here is that Cage waived her right to appeal her sentence pursuant

to a plea bargain. And the government had nothing to appeal either. The original

sentence was within the then-applicable mandatory sentencing guidelines range,

and the alternative sentence was wholly speculative at the time it was

pronounced. Ordinarily, either the government or Cage should have appealed her
sentence within thirty days of the court’s sentencing in September 2004. Neither

did.

Now we are faced with a jurisdictional muddle: both the original and the

alternative sentence are unlawful under Booker. That leaves us with the

questions, when were the sentences final and when could they be appealed?

This conundrum arises from the use of alternative sentences. W e first

sanctioned them in the era surrounding M istretta when the constitutionality of the

sentencing guidelines were in doubt. Courts would announce two sentences, the

alternative to be enforced if the sentencing guidelines were determined to be

constitutional. See United States v. Smith, 888 F.2d 720, 722 n.2 (10th Cir.

1989); United States v. Garcia, 893 F.2d 250, 252 n.4 (10th Cir. 1989); United

States v. Stokes, 986 F.2d 1431 at *4 (10th Cir. Feb. 23, 1993) (unpublished);

United States v. Scott, 16 F.3d 418 at *2 (10th Cir. Feb. 7, 1994) (unpublished).

After a period of stability since M istretta, recent years have taught us that

uncertainty may instead be the new norm in federal sentencing law. Thus, prior

to the Supreme Court’s decision in Booker, many sentencing courts again

announced alternative sentences. On appeal we relied on the alternative sentences

in our plain or harmless error analysis. United States v. Gonzales-Huerta, 403

F.3d 727 (10th Cir. 2005) (en banc).

In times of uncertainty, alternative sentencing appears tempting: if district

courts are able to predict future legal developments, the interests of judicial

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efficiency are arguably served by announcing alternative sentences and avoiding

the burdens of resentencing. Yet, we should not encourage alternative sentencing

for a variety of reasons. First, the practice fundamentally conflicts w ith the rule

that a court may enter only one final judgment. Second, alternative sentences

undermine finality, by allowing the sentencing court to peer into the future and

retain power over a defendant’s fate based on developments at the Supreme Court,

the sentencing commission, or perhaps even the Congress. Third, given the

unsettled nature of sentencing law in our era, alternative sentences frustrate

certainty for both the government and the defendant: who is to appeal what, and

when are they to appeal it? Finally, alternative sentences can create jurisdictional

difficulties, as in this case, because of the necessary legal fiction that they are

“imposed” at the time of judgment even though they may never take effect unless

the condition precedent is triggered.

Other courts have recognized these problems and concluded that alternative

sentences are not worth the trouble, and are generally unenforceable. For

example, in a recent case, United States v. Booker, 436 F.3d 238 (D.C. Cir. 2006),

the D.C. Circuit rightly held that “an ‘alternative sentence’ is not really a

‘sentence’. . . . Once the court pronounces a criminal sentence— which

constitutes a ‘judgment’— the court has no lawful authority to supplement that

sentence with a second one.” Id. at 245. The court went on to hold that a

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sentencing court, after a sentence has been announced, has no authority to

pronounce a different alternative sentence. I think this reasoning is correct.

Our precedents, however, sanction the use of alternative sentences. W e

have used alternative sentences to guide the analysis in plain or harmless error as

an indication of whether the court might impose a different sentence on remand.

W hile these cases are not directly on point, our M istretta era cases allowed

district courts to enforce alternative sentence long after the time to appeal had

run. See United States v. Scott, 16 F.3d 418 at *2 (10th Cir. Feb. 7, 1994)

(unpublished). Accordingly, our cases seem to allow district courts to enforce

alternative sentences, and the government has not argued that courts lack the

authority to do so. Given the Supreme Court’s holding in Booker, however,

Cage’s sentence here has not been subject to the proper application of the § 3553

factors. Remand is thus the correct result. Nevertheless, the circumstances of

this case well illustrate why alternative sentences should be eliminated.

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