F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
December 26, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-2266
D EN N Y S M A TEO ,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D. Ct. No. CR-04-1219)
Edward O. Bustamante, A lbuquerque, New M exico, appearing for A ppellant.
Gregory James Fouratt, Assistant United States Attorney (David C. Iglesias,
United States Attorney, and Laura Fashing, Assistant United States Attorney, on
the brief), Office of the United States Attorney for the District of New M exico,
Albuquerque, New M exico, appearing for Appellee.
Before TA CH A, Chief Circuit Judge, KELLY, and M U RPH Y, Circuit Judges.
TA CH A, Chief Circuit Judge.
Dennys M ateo pleaded guilty to one count of being a felon in possession of
a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
After correctly calculating the advisory Sentencing Guidelines range of 15 to 21
months’ imprisonment, the District Court considered the sentencing factors under
18 U.S.C. § 3553(a), determined that this range was insufficient, and imposed a
sentence of 120 months’ imprisonment— the statutory maximum. On appeal, M r.
M ateo argues that the District Court erred by considering facts concerning prior
arrests that did not result in convictions and maintains that the sentence imposed
is unreasonable. W e take jurisdiction under 28 U.S.C. § 1291 and AFFIRM .
I. BACKGROUND
On M ay 20, 2004, a confidential informant told a Drug Enforcement
Administration (“DEA”) agent that M r. M ateo would be involved in a cocaine
transaction at 8:00 p.m. at a video store parking lot in Albuquerque, New M exico.
Upon investigation, the DEA agent discovered that M r. M ateo had been
previously convicted of grand theft, a third degree felony, on April 13, 1998, in
M iami, Florida. The night of M ay 20, 2004, the Albuquerque police set up
surveillance at the parking lot. W hen a white BM W matching the description
given by the informant arrived, the police approached the car and asked M r.
M ateo, the driver, to step out of the car. As M r. M ateo complied, the officer
observed a revolver in plain view in the side pocket of the driver’s side door. The
gun was a Smith & W esson, Lady Smith, .38 caliber five-shot revolver, loaded
with five rounds of ammunition. Aware that M r. M ateo was a felon, officers
immediately arrested M r. M ateo. A search of the vehicle found suspected
counterfeit currency but no narcotics.
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On June 23, 2004, a grand jury indicted M r. M ateo on a single count
charging him with being a felon in possession of a firearm and ammunition. M r.
M ateo pleaded guilty to the indictment. Subsequently, the probation office
prepared a presentence report (“PSR”). The PSR determined M r. M ateo’s base
offense level to be 14. See United States Sentencing Guidelines M anual
(“U.S.S.G.” or “Guidelines”) § 2K2.1(a)(6)(A). He received a two-level
reduction in his offense level for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1, for a total offense level of 12. The PSR placed M r. M ateo at a
criminal history category of III because he had six criminal history points for five
prior convictions. Based on the total offense level of 12 and a criminal history
category of III, the PSR calculated the advisory Guidelines imprisonment range to
be 15 to 21 months. M r. M ateo filed three objections to the PSR contesting the
application of the Guidelines in determining his criminal history category, but he
did not object to any of the factual statements included in the PSR, including
those detailing the factual circumstances of multiple prior arrests. At a hearing
on June 13, 2005, the District Court ruled against M r. M ateo’s objections to the
PSR and gave notice to the Government and to M r. M ateo that it was considering
a sentence above the advisory Guidelines range. 1
The PSR discloses the following information. M r. M ateo was born in Cuba
1
On appeal, M r. M ateo does not argue that he was given inadequate notice
as to the basis for the District Court’s decision to impose a sentence outside of the
advisory Guidelines.
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in 1972 and lived there until he was granted political asylum in the United States
in 1995. The report assessed six criminal history points for five convictions
including (1) a 1996 conviction for grand theft of a jewelry store in Oakland Park,
Florida; (2) a 1996 conviction for possession of marijuana in M iami, Florida; (3)
a 1997 conviction for possession of marijuana in M iami, Florida; (4) a 1997
conviction for grand theft of a home in M iami, Florida; and (5) a 2003 conviction
for shoplifting in Albuquerque, New M exico.
Of particular importance in this case, the PSR discloses the following facts
about the 1997 grand theft conviction. In early M ay 1997, M r. M ateo and another
individual approached an apartment where a man was standing at the front door.
M r. M ateo and his accomplice each aimed a .38 caliber revolver at the victim’s
head and forced him into the apartment. There, they tied him up with a phone
cord and covered his head with a pillow case. Several electronic items were taken
from the apartment. M r. M ateo was arrested on M ay 14, 1997, a few days after
the incident, and was initially charged with robbery and kidnapping with a deadly
weapon. Ultimately, the robbery charge was reduced to a lesser charge of grand
theft and the kidnapping charge was dismissed. On April 13, 1998, after pleading
nolo contendere to the felony grand theft charge, M r. M ateo was sentenced to 364
days in the county jail.
In addition to these five convictions, the PSR includes records of seven
additional prior arrests that did not lead to convictions, and one additional
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pending charge. 2 Among the prior arrests was one for attempted murder. The
PSR indicates that police arrested M r. M ateo on M ay 14, 1997, in M iami, Florida
after receiving a report that M r. M ateo and two other individuals fired a gun four
to five times at the victim as he was stopped in his car at a traffic light. Three
rounds struck the victim’s vehicle. The victim explained that the shooting may
have been related to the home invasion that had occurred a few days prior (and
for which M r. M ateo was arrested and convicted in M iami). The subjects were
positively identified, but the victim could not indicate which suspect fired the
shots. The prosecutor filed a nolle prosequi on April 13, 1998.
On October 31, 1999, the Texas D epartment of Public Safety arrested M r.
M ateo for conspiracy to deliver a controlled substance. The PSR indicates that
the case was “rejected” by the District Attorney, but it includes the following
information about the factual background of the arrest:
According to [M r. M ateo’s] signed statement, [M r. M ateo] agreed to
take a van that contained cocaine from Albuquerque, New M exico to
M iami, Florida. [M r. M ateo] had two friends drive the van while
[he] followed the van in his car. The van was stopped for a traffic
violation and was subsequently searched. The cocaine was in the
form of a brick rolled in a pair of pants inside a plastic bag on the
floor. A few miles later, [M r. M ateo] w as stopped and was found to
be in possession of a bag of marijuana. [M r. M ateo] took full
responsibility for the cocaine and stated to officers his friends did not
know the cocaine was in the van. During a search of the van,
officers located a firearm.
2
The PSR actually lists two pending charges. One of those charges,
however, is the charge in this case.
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Less than a year later, on August 17, 2000, M r. M ateo was arrested in New
M exico, and charged in United States District Court for the District of New
M exico with distribution of cocaine, conspiracy, and aiding and abetting. The
indictment in this case was dismissed without prejudice on October 11, 2000.
On October 19, 2001, police officers in Albuquerque, New M exico arrested
M r. M ateo for aggravated battery with a deadly weapon, armed robbery,
conspiracy, kidnapping, and tampering with evidence related to a jew elry store
robbery in August 2000. According to the PSR, the police reports indicate that
witnesses said three Cuban males jumped the counter and robbed the store at
gunpoint, pushing one victim onto the floor and putting the barrel of a gun to his
head. A confidential informant indicated that M r. M ateo was involved in the
robbery and one of the perpetrators confirmed this information. M r. M ateo went
to trial on these charges, but the court ordered a mistrial after the jury could not
reach a verdict. On August 27, 2002, the District Attorney filed a nolle prosequi.
At the sentencing hearing in this case, the Government took the position
that the Guidelines are presumptively reasonable, and while not advocating a
sentence above the advisory Guidelines range, informed the court that it would
support an upward variance if the court imposed such a sentence. M r. M ateo’s
attorney maintained that the advisory Guidelines range was reasonable given the
facts surrounding the current conviction, and observed that M r. M ateo’s only
prior felony conviction for grand theft was not drug related.
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After correctly calculating the Guidelines range and acknowledging the
advisory nature of the G uidelines after United States v. Booker, 543 U.S. 220
(2005), the District Court held that in light of the sentencing factors provided by
18 U.S.C. § 3553(a), the Guidelines range of 15 to 21 months was unreasonable.
The court specifically discussed the follow ing § 3553(a) 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 promote respect
for the law , and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant[.]
See 18 U.S.C. § 3553(a)(1)–(2). The court explained its concerns regarding the
adequacy of the advisory Guidelines range in relation to the cited sentencing
factors by observing that M r. M ateo’s record of fourteen total arrests (including
the five for which he was convicted) and two felony convictions in three different
states since he arrived in the United States from Cuba in 1995 indicates “a
comm itment to a criminal lifestyle.” The court acknowledged that M r. M ateo was
never convicted of the more serious charges for which he was arrested, including
aggravated battery with a deadly weapon, kidnapping, conspiracy, and attempted
murder, “but these arrests, in Florida, Texas, and New M exico demonstrate a
pattern of and commitment to a criminal lifestyle by this defendant that is
consistent with criminal activity and patterns one typically sees for armed career
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criminals.” The District Court imposed a sentence of 120 months’ imprisonment,
the statutory maximum for the felon-in-possession conviction.
II. D ISC USSIO N
Post-Booker, we review sentences for reasonableness. See United States v.
Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “Sentencing decisions must be
reversed when a sentence is unreasonable considering the factors enumerated in
18 U.S.C. § 3553(a).” United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006).
To determine whether a sentence is reasonable, we consider both procedural and
substantive aspects of the district court’s decision. See id. In order to be
procedurally reasonable, “a sentence must be ‘reasoned,’ or calculated utilizing a
legitimate method.” Id. W e determine substantive reasonableness by reference to
the actual length of the sentence imposed in relation to the sentencing factors
enumerated in § 3553(a). Id. at 594–95.
A. The District Court did not err by considering uncontested facts included in
the PSR relating to prior arrests that did not result in convictions.
M r. M ateo argues that the District Court erred in considering his prior
arrests that did not result in convictions in concluding that the advisory
Guidelines range of 15 to 21 months w as unreasonably low. W e find no error in
the method by which the District Court determined the advisory sentence to be
insufficient punishment for M r. M ateo.
It is well established that the sentencing court is entitled to rely on
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uncontested facts contained in the PSR for certain sentencing purposes. See Fed.
R. Crim. P. 32(i)(3)(A) (“At sentencing, the court . . . may accept any undisputed
portion of the presentence report as a finding of fact . . . .”); United States v.
Wolfe, 435 F.3d 1289, 1299 (10th Cir. 2006) (“[W ]e recognize that post-Booker
this court has refused to treat unobjected-to PSR facts as admitted for Sixth
Amendment Booker purposes. . . . [O]utside the Booker context, [however,] we
will still rely on unobjected-to facts for other sentencing purposes.” (citation
omitted)). As we have explained, “Booker has not relieved a defendant of his
obligation under Rule 32(i)(3)(A) to point out factual inaccuracies included in the
PSR .” Wolfe, 435 F.3d at 1299. Neither in his formal objections to the PSR at
sentencing nor on appeal did M r. M ateo challenge any of the facts included in the
PSR, including the facts surrounding his fourteen arrests, two felony convictions,
and the pending charge. 3
Nevertheless, M r. M ateo argues that the District Court’s reference to his
prior arrest record violates the Guidelines’ policy statement prohibiting the
consideration of a “prior arrest record itself” for purposes of an upward departure.
3
At the sentencing hearing prior to the imposition of sentence, M r. M ateo
made a short statement through a translator. He said, “I would like to tell you,
Judge, that I had nothing to do with that case, and that is why I w ent to trial.”
This statement apparently refers to the six-count indictment relating to the
jewelry store robbery in A lbuquerque, New M exico. On appeal, however, M r.
M ateo does not claim that the facts in the PSR are inaccurate or that the PSR
includes information that is not reliable. Instead, he only argues that the court’s
consideration of his arrests generally is error as a matter of law.
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See U.S.S.G. § 4A1.3. To this end, he notes that 18 U.S.C. § 3553(a)(5) requires
a sentencing court to consider “any pertinent policy statement” from the
Guidelines. The sentencing transcript makes clear, however, that the District
Court did not rely on M r. M ateo’s arrest record itself in making its determination
as to the reasonableness of the advisory Guidelines sentence. Rather, it
extrapolated from the uncontested facts in the PSR— including the number,
frequency, and seriousness of M r. M ateo’s various arrests and convictions— to
draw conclusions about characteristics relevant to sentencing factors enumerated
in 18 U.S.C. § 3553(a). Compare United States v. Dixon, 318 F.3d 585, 591 (4th
Cir. 2003) (holding sentencing court did not run afoul of policy statement
prohibiting consideration of “a prior arrest record itself” for purposes of upward
departure under U.S.S.G. § 4A1.3(a)(3) when it considered uncontested
information in PSR about criminal conduct leading to arrests); United States v.
W illiam s, 989 F.2d 1137, 1142 (11th Cir. 1993) (same); United States v. Torres,
977 F.2d 321, 330 (7th Cir. 1992) (same); with United States v. Zapete-Garcia,
447 F.3d 57, 61 (1st Cir. 2006) (vacating as unreasonable a sentence that was
based in part on the mere existence of a decade-old unrelated prior arrest).
The sentencing court is well within its discretion and, indeed, is required to
carefully consider the facts contained in the PSR when evaluating the § 3553(a)
sentencing factors, including “the history and characteristics of the defendant,”
and the need for a sentence to “afford adequate deterrence to criminal conduct,”
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and “to protect the public from further crimes of the defendant.” 18 U.S.C.
§ 3553(a)(1), (a)(2)(B), (a)(2)(C). W e have noted that “[n]o limitation” should be
placed on “the information concerning the background, character, and conduct of
a person . . . for the purpose of imposing an appropriate sentence.” United States
v. M agallanez, 408 F.3d 672, 684 (10th Cir. 2005) (quoting 18 U.S.C. § 3661).
Therefore, we conclude that the District Court did not err in considering the
uncontested facts in the PSR relating to M r. M ateo’s prior arrests and by using
those facts to determine the adequacy of the advisory Guidelines sentencing range
in fulfilling the relevant sentencing objectives described in § 3553(a)(2). Cf.
Zapete-Garcia, 447 F.3d at 61 (observing that “a series of past arrests might
legitimately suggest a pattern of unlawful behavior even in the absence of any
convictions”).
B. The District Court did not err by making reference to a section of the
Guidelines that is not applicable under the facts in this case.
In handing down its sentence, the D istrict Court compared M r. M ateo’s
history to that of an “armed career criminal.” A n “armed career criminal” is
subject to the enhanced penalties of 18 U .S.C. § 924(e), which imposes a
minimum sentence of 15 years’ incarceration for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g) if the offender has three previous
convictions for qualifying violent felonies, serious drug offenses, or both. 18
U.S.C. § 924(e)(1); see also U.S.S.G. § 4B1.4 (implementing 18 U.S.C. § 924).
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W hen the District Court imposed its sentence, it explained:
I recognize that the most serious crimes the defendant was arrested
for— such as aggravated battery with a deadly weapon, kidnaping,
conspiracy, and attempted murder— were all nolle prossed, but these
arrests in Florida, Texas, and New M exico demonstrate a pattern of
and commitment to a criminal lifestyle by this defendant that is
consistent with criminal activity and patterns one typically sees for
armed career criminals.
M r. M ateo argues that the armed career criminal provision is inapplicable and is
not relevant to determining the sentence to be imposed. 4
In Cage, we explained that “[w]hen a district court makes a sentencing
decision, it must interpret Congress’s intentions in passing sentencing laws.” 451
F.3d at 593. W e further explained that even though the Guidelines are no longer
mandatory, they represent “an expression of popular political will about
sentencing that is entitled to due consideration” in fashioning a sentence. Id. W e
4
The Government does not contend that M r. M ateo’s prior arrests, if they
had resulted in convictions, would be sufficient to subject him to the provisions
of the armed career criminal statute. W e note, however, that M r. M ateo’s 1997
arrest for attempted murder, as well as the October 2001 aggravated battery with a
deadly weapon and armed robbery charges arising from the jewelry store robbery,
would presumably qualify under the statute as violent felonies. See 18 U.S.C.
§ 924(e)(2)(B)(i)–(ii) (defining a “violent felony” as “any crime punishable by
imprisonment exceeding one year . . . that . . . (i) has as an element the use,
attempted use, or threatened use of physical force against the person of another;
or (ii) . . . involves conduct that presents a serious potential risk of physical
injury to another ”). Also, the 1999 arrest for conspiracy to deliver a “brick” of
cocaine could have qualified as a serious drug offense under the statute. See 18
U.S.C. § 924(e)(2) (defining a “serious drug offense” as “an offense under the
Controlled Substances Act (21 U.S.C. § 801 et seq.) . . . for which a maximum
term of imprisonment of ten years or more is prescribed by law”).
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cannot agree with M r. M ateo’s claim that the District Court’s reference to the
armed career criminal statute is inappropriate w hen considering what sentence to
impose. It is clear that the District Court did not apply the armed career criminal
provision to M r. M ateo because the minimum sentence applicable for such an
offender is 15 years’ (or 180 months’) incarceration. Rather, the sentencing
transcript indicates that the court sought guidance from the armed career criminal
provision as to the appropriate length of incarceration given M r. M ateo’s criminal
history as disclosed by the unchallenged facts in the PSR. The G uidelines are
clearly relevant when determining an appropriate sentence, and in this case, the
District Court’s reference to the Guidelines in searching for a guidepost is not
error. See id.; cf. Wolfe, 435 F.3d at 1304 n.12 (“‘[A]nalogizing to other
guidelines is a primary method by which district courts may justify the
reasonableness of their departure.’” (quoting United States v. Neal, 249 F.3d
1251, 1261 (10th Cir. 2001)) (alteration in original)).
C. The magnitude of the D istrict Court’s deviation from the advisory
Guidelines range was substantively reasonable.
A sentence within the correctly determined advisory Guidelines range is
entitled to a rebuttable presumption of reasonableness, Kristl, 437 F.3d at 1054,
but an “extreme divergence” from the advisory Guidelines range will be
reasonable “if the facts of the case are dramatic enough to justify such a
divergence,” Cage, 451 F.3d at 594–95. M r. M ateo asserts that the length of his
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sentence— 120 months’ incarceration— is unreasonable given that the correctly
calculated advisory Guidelines sentence range was 15 to 21 months’
imprisonment. W e conclude that the magnitude of the District Court’s deviation
from the advisory Guidelines range, while extreme, was reasonable.
In Cage, we explained that this Court looks to the “discrepancy between the
advisory guidelines range and the actual sentence” to determine w hether a
sentence is reasonable. Cage, 451 F.3d at 594. “[T]he farther the trial court
diverges from the advisory guideline range, the more compelling the reasons for
the divergence must be.” United States v. Valtierra-Rojas, — F.3d — , 2006 W L
3237187, at *3 (10th Cir. 2006) (alteration omitted). In other words, how
compelling the justification must be to render an extra-Guidelines sentence
reasonable “is proportional to the extent of the difference between the advisory
range and the sentence imposed.” United States v. Bishop, — F.3d — , 2006 W L
3237027, at *10 (10th Cir. 2006).
In determining how compelling the justification for a particular sentence
must be, we consider both the “percentage of divergence” from the advisory range
and the “absolute number of months above or below the Guidelines range.”
Valtierra-Rojas, 2006 W L 3237187, at *3. In Cage, we held that the district
court’s six-day sentence w as an “extreme” divergence from the G uidelines-
recommended sentence of at least 46 months; therefore, the sentence “must be
supported by extraordinary circumstances.” Cage, 451 F.3d at 594. W e found the
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sentence unsupported by the type of extraordinary circumstances that might
legitimatize it because the sentencing court failed to cite any § 3553(a) factors
that were peculiar to the defendant. Instead, the court based its divergence only
on those factors that were common to many defendants— in that case, the
defendant’s status as a single mother. Id.; see also United States v. Rattoballi,
452 F.3d 127, 133 (2d Cir. 2006) (explaining that under substantive
reasonableness review “a non-Guidelines sentence that rests primarily upon
factors that are not unique or personal to a particular defendant” is “inherently
suspect”). From Cage, it follows that whether the rationale provided by the
sentencing court for a non-Guidelines sentence is sufficiently compelling is
determined by considering whether the particular characteristics of the defendant
the court relied upon in fashioning the sentence are commonplace— and therefore
presumably are already part of the Guidelines calculation— or are sufficiently
uncomm on to justify a divergence from the presumptively reasonable Guidelines
sentence. See Cage, 451 F.3d at 595–96 (determining facts relied upon by district
court to justify “extreme divergence” were not “particularly out of the ordinary”
and therefore could not justify sentence).
Since Cage, we have held that the “comparative difference” between a
defendant’s 78-month sentence and the advisory-range maximum of 57 months (a
37% increase) was a “significant increase” requiring “sufficient explanation and
justification,” see Bishop, 2006 W L 3237027, at *10, and that the difference
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between a 60-month sentence and the advisory-range maximum of 27 months (a
122% increase) was “substantial” and required “compelling reasons” to support
the district court’s decision, see Valtierra-Rojas, 2006 W L 3237187, at *3.
Though we required compelling reasons to support the sentence in Valtierra-
Rojas, we did not require the same kind of “dramatic facts” as w e required in
Cage because, we noted, the sentencing court in Cage “effectively ignore[d] the
advice of the Guidelines” to essentially impose “no prison sentence at all.” See
Valtierra-Rojas, 2006 W L 3237187, at *3 (alteration in original).
W hile “[t]he nature of the inquiry announced in Cage (the greater the
divergence, the more compelling the reasons) is not one that allows for precision
in measurement,” Valtierra-Rojas, 2006 W L 3237187, at *3, it is clear that the
District Court’s divergence from the advisory range here is of the extreme type
akin to that in Cage requiring a “compelling” justification supported by “dramatic
facts.” Here, the District Court increased M r. M ateo’s sentence by 471% above
the high end of the advisory range of 21 months— more than eight years longer
than he w ould serve if he w as sentenced in accordance with the advisory
Guidelines.
The District Court determined that this sentence was warranted because of
M r. M ateo’s exceptional history and the fact that the advisory Guidelines
sentence did not fully reflect the serious nature of his criminal record. M r.
M ateo’s history as presented in the uncontested facts of the PSR discloses
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significant contact with the criminal justice systems in three different states over
a relatively short period of time. The sentence reflects the District Court’s w ell-
justified concern that M r. M ateo’s frequent brushes with the law indicate “a
commitment to a criminal lifestyle.” The import of this finding and the court’s
citation to the § 3553(a) factors is plain: M r. M ateo’s sentences for prior
convictions have not been effective at deterring him from engaging in criminal
behavior and the public requires protection from M r. M ateo’s demonstrated
penchant for criminality. See § 3553(a)(2)(B), (a)(2)(C); cf. United States v.
Fairclough, 439 F.3d 76, 80–81 (2d Cir. 2006) (holding 48-month sentence,
which was 21 months higher than the maximum advised by Guidelines, was
reasonable based on district court’s conclusion that defendant “had a relatively
uninterrupted string of criminal activity and arrests” and “interaction after
interaction with the criminal justice system”). Based on these specific
circumstances and the District Court’s use of the armed career criminal provision
as a guidepost to gauge the length of the sentence, the District Court imposed a
reasonable sentence.
III. C ON CLU SIO N
W e conclude that the District Court did not err by looking to the armed
career criminal portion of the Guidelines to help determine the appropriate weight
to give to the unique lifestyle characteristics of this defendant as disclosed by the
uncontested facts available in the PSR. W e also conclude that based on those
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dramatic facts, the sentence imposed was reasonable. W e AFFIRM the judgment
of the District Court.
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No. 05-2266, United States v. M ateo
M U RPH Y, Circuit Judge, joined by KELLY, Circuit Judge, concurring.
I concur in the majority’s well-stated opinion. I write separately, however,
to express serious misgivings with this court’s precedents that usurp the district
courts’ sentencing discretion.
On appeal, M ateo asserts as follows: (1) the sentence imposed by the
district court is contrary to the policy considerations set out in the Sentencing
Guidelines; and (2) the sentence imposed by the district court is unreasonable in
reference to the factors set out in 18 U.S.C. § 3553. The majority persuasively
and correctly rejects both of M ateo’s contentions.
A district court is not free to impose a sentence outside the range set out in
the advisory Sentencing Guidelines based simply on its disagreement with the
policies underlying the Guidelines. United States v. M cCullough, 457 F.3d 1150,
1171-72 (10th Cir. 2006) (discussing variances from the advisory Guidelines
range based on mere disagreement with the 100:1 crack to powder cocaine ratio
set out in the Guidelines). The Guidelines specifically prohibit upward departures
from an advisory Guidelines range based solely on a defendant’s arrest record.
U.S.S.G. § 4A1.3(a)(3) (“A prior arrest record itself shall not be considered for
purposes of an upward departure under this policy statement.”). M ateo contends
the sentence imposed by the district court is contrary to § 4A1.3(a)(3).
In contrast to M ateo’s assertion, a close review of the sentencing transcript
demonstrates the district court did not simply rely on the existence of M ateo’s
arrest record in deciding to impose a sentence outside of the advisory Guideline
range. Instead, the district court began the sentencing process by properly
calculating M ateo’s advisory Guidelines range. The district court then balanced
that range and the policy statements underlying the Guidelines, 18 U.S.C. §
3553(a)(4), (5), with M ateo’s background and characteristics, the circumstances
of the offense, and the need to provide adequate deterrence and protect the public
from further crimes, id. § 3553(a)(1), (2). As part of the district court’s balancing
of the § 3553(a) factors, the district court concluded M ateo’s character and
background— specifically including his extensive, consistent, and serious
involvement in criminal activity, as evidenced by his prior convictions, prior
arrests, and the circumstances surrounding the prior arrests— “demonstrate[d] a
pattern of and commitment to a criminal lifestyle . . . that is consistent with
criminal activity and patterns one typically sees for armed career criminals.”
Thus, under the very unique circumstances of this case, the factors set out in §
3553(a)(1) and (2) justified a sentence significantly higher than set out in the
advisory Guidelines range. The sentence imposed by the district court is not a
rejection of the policy statements in § 4A1.3(a)(3), but a careful balancing of the
factors set out in § 3553(a).
I also agree with the majority that the sentence imposed by the district
court is reasonable and that such a conclusion is faithful to this court’s precedents
regarding appellate review of sentences for reasonableness. See M ajority Op. at
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13-14 (collecting and analyzing cases). W hat I question is this court’s developing
insistence that district courts take extraordinary steps to justify sentences outside
the range set out in the advisory Sentencing Guidelines. United States v. Cage,
451 F.3d 585, 593-95 (10th Cir. 2006) (holding that sentencing factors set out in
§ 3553(a) relating to the advisory Guidelines range are more important than other
statutory factors and that the further a sentence deviates from the advisory
Guidelines range the greater the justification a district court must provide); see
also United States v. Shaw, No. 05-6074, 2006 W L 3505339, at *4 (10th Cir. Dec.
6, 2006) (applying Cage and affirming sentence 48% above advisory Guidelines
range because the district court had identified a “substantial justification” for the
divergence); United States v. Valtierra-Rojas, No. 05-3390, 2006 W L 3237187, at
*3 (10th Cir. Nov. 9, 2006) (holding that in light of Cage, court was obligated to
closely examine sentence 122% above high end of the advisory sentencing range);
United States v. Bishop, No. 05-3173, 2006 W L 3237027, at *10 (10th Cir. Nov.
9, 2006) (holding that in light of Cage, a 37% deviation from the advisory
Guidelines range “is a significant increase that requires sufficient explanation and
justification”).
It is absolutely clear following the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220, 259-60 (2005), that when imposing a sentence the
district courts must consider the factors set out in § 3553(a). As noted by the
Court in Booker, the range set out in the advisory Sentencing Guidelines and the
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policy statements of the Sentencing Commission are among those factors. Id.
Nothing in either Booker or the plain text of § 3553(a) indicates that the
sentencing factors relating to the Sentencing Guidelines have primacy over the
sentencing factors not relating directly to the Guidelines. Under this circuit’s
precedents, however, some of the statutory sentencing factors are apparently more
equal than others. Cage, 451 F.3d at 593-94 That is, the greater the deviation
from the range set out in the advisory Sentencing Guidelines, the greater the
burden on the district court to justify the sentence. Id. at 594. The rule set out in
Cage has led to the utterly bizarre circumstance where this court tries to quantify,
in something that looks just like de novo review, just how extreme the
circumstances must be to justify a 471% (or 122% , 48% , 37% ) deviation from the
advisory Guideline range. But see Booker, 543 U.S.. at 259 (specifically noting
that provision of 18 U.S.C. § 3742(e) requiring de novo review of departures from
the applicable Guideline range must be severed to render the Sentencing Reform
Act constitutional).
This case is a perfect example of the irrationality of appellate review of
sentences in this circuit. The federal district courts impose sentences on
numerous defendants and have a clear institutional advantage when it comes to
discerning which defendants are in need of harsh punishment and which are in
need of leniency. In this case, the district court brought that institutional
advantage to bear, concluding that M ateo was an exceptionally dangerous
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individual in need of an exceptionally severe sentence. In so doing, the district
court weighed M ateo’s personal characteristics, the circumstances of his crime,
the need to protect the public, and the need for deterrence with the policy
statements of the Sentencing Commission and the advisory range set out in the
Guidelines. On appeal, pursuant to the system required by Cage, this court is
required to undertake that same analysis, but without the institutional advantage
native to the district court, all in what would appear to be an attempt to force the
district courts to hew as close to the Guidelines range as possible. It is odd,
indeed, to see how quickly the appellate standard of reasonableness set out in
Booker has morphed into a mathematical exercise pegged exclusively to those
sentencing factors in § 3553(a) relating to the advisory Guidelines. But see
Booker, 543 U.S. at 261 (“Section 3553(a) remains in effect, and sets forth
numerous factors that guide sentencing.”)
Although many might bemoan the decision in Booker, it is the law of the
land. The Guidelines are no longer mandatory and it is improper for this court to
impose a system of appellate review that seeks to return this circuit, de facto, to a
mandatory system. As recently noted by the Seventh Circuit,
[T]he standard of reasonableness, introduced by the Booker
decision, confers broad sentencing discretion. The judge must
consider the guidelines but is in no sense bound by them. He is
bound only by the statutory sentencing factors, 18 U.S.C. § 3553(a),
which are both numerous and vague, thus giving the judge a great
deal of running room.
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United States v. Bullion, 466 F.3d 574, 575 (7th Cir. 2006). The district court
here recognized that it was required to consider the factors in § 3553(a) in
arriving at a sentence, and it did in fact consider those factors. W ere I the
sentencing judge, I might not have imposed the same sentence as did the district
court. The balance struck by the district court, however, is certainly not
unreasonable. For that reason alone, I w ould affirm the district court. Id. at 577
(holding that arguments like those at issue in this case, i.e., the district court
struck the wrong balance of mitigating and aggravating circumstances in arriving
at a sentence, “are arguments to address to a sentencing judge, not to an appellate
court. No precise weights can be assigned to such factors in the sentencing
balance . . . . The striking of a balance of uncertainties can rarely be deemed
unreasonable . . . .”). Nevertheless, because Cage requires the analysis
undertaken in the majority opinion, I respectfully concur.
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