United States Court of Appeals
For the First Circuit
No. 09-1429
UNITED STATES OF AMERICA,
Appellee,
v.
RICARDO RODRIGUEZ,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Boudin, Dyk,* and Thompson,
Circuit Judges.
Stuart W. Tisdale, Jr., with whom Tisdale & Davis, P.A. was on
brief, for appellant.
Jamie L. Wacks, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, and Mark T. Quinlivan,
Assistant United States Attorney, were on brief, for appellee.
December 28, 2010
*
Of the Federal Circuit, sitting by designation.
THOMPSON, Circuit Judge. This appeal pivots on the
intriguing interplay between ex post facto principles and the now-
advisory Sentencing Guidelines.1 Guided by the light of
controlling caselaw, we vacate Ricardo Rodriguez's sentence and
remand for resentencing.
Setting the Stage
Caught selling two sawed-off guns to an undercover police
officer in 2006, Rodriguez pled guilty to a multi-count indictment
charging him with various firearms offenses. See 18 U.S.C. §
922(g)(1); 26 U.S.C. §§ 5861(d), 5861(e), and 5871.2 Sentencing
Rodriguez in 2009, the district judge used the Guidelines then in
force and applied a four-level trafficking-in-firearms enhancement,
see USSG § 2K2.1(b)(5) – a proviso added to the Guidelines after
Rodriguez's crime spree, a fact that apparently escaped everyone's
attention. This is no small matter. The post-offense amendment
meant the difference between a sentencing range of 108-130 months
(again, using the Guidelines in effect at the time of sentencing)
and 70-87 months (using the version in force at the time of the
1
The Guidelines are no longer mandatory after United
States v. Booker, 543 U.S. 220 (2005), as all know. See generally
United States v. Irey, 612 F.3d 1160, 1271 n.2 (11th Cir. 2010)
(Edmondson, J., dissenting).
2
Consistent with past practice, we take the key facts from
the plea colloquy, the uncontested parts of the presentence
investigation report, and the sentencing transcript. See, e.g.,
United States v. Innarelli, 524 F.3d 286, 288 (1st Cir.), cert.
denied, 129 S. Ct. 350 (2008).
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crimes). Ultimately, the judge imposed a 108-month prison term
(comprising concurrent sentences of varying amounts), the very
bottom of what he thought the right range was.
Rodriguez appeals, raising an interesting question: Does
sentencing a defendant under advisory Guidelines made more severe
since the time of the crime violate the Constitution's ex post
facto clause? Some circuits say yes. See, e.g., United States v.
Turner, 548 F.3d 1094, 1098-1100 (D.C. Cir. 2008); United States v.
Ortiz, 621 F.3d 82, 86-88 (2d Cir. 2010); United States v. Lewis,
606 F.3d 193, 198-203 (4th Cir. 2010). At least one circuit says
no. See United States v. Demaree, 459 F.3d 791, 792, 794-95 (7th
Cir. 2006); see also United States v. Sanchez, 527 F.3d 463, 466
n.2 (5th Cir. 2008) (suggesting that the Fifth Circuit might follow
Demaree). One of our cases intimates agreement with the "yes"
camp. See United States v. Gilman, 478 F.3d 440, 449 (1st Cir.
2007) (calling Demaree "doubtful in this circuit"). But this is
dicta and so not binding on us. See Dedham Water Co. v. Cumberland
Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992).
Fascinating as this issue is, we do not have to pick
sides in this split to decide Rodriguez's case. Leery of making
unnecessary constitutional decisions, see, e.g., Buchanan v. Maine,
469 F.3d 158, 172 (1st Cir. 2006), we stick to the practical
approach our cases prescribe for deciding which Guidelines apply –
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an approach we need not elevate to a constitutional level – and
order Rodriguez resentenced.
Surveying the Legal Landscape
Because Rodriguez did not raise any ex post facto
concerns below, we review his claim only for plain error. See,
e.g., United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Under this exacting standard, Rodriguez must show an error that was
obvious and that not only likely affected the result in the lower
court but also threatens a miscarriage of justice if not corrected.
See id.; see also United States v. Sotomayor-Vázquez, 249 F.3d 1,
19 (1st Cir. 2001). When all is said and done, Rodriguez clears
these high hurdles.
Booker and its sequels certainly changed the dynamics of
criminal sentencing. The Guidelines are no longer binding, and
district judges can choose sentences that differ from the
Sentencing Commission's recommendations – provided of course that
they stay within the range set by the statutes of conviction. See,
e.g., Kimbrough v. United States, 552 U.S. 85, 91 (2007).
But this system is not a blank check for arbitrary
sentencing. See, e.g., Gall v. United States, 552 U.S. 38, 49-50
(2007); Rita v. United States, 551 U.S. 338, 350 (2007); Booker, 543
U.S. at 264. Judges still must start out by calculating the proper
Guidelines range – a step so critical that a calculation error will
usually require resentencing. See, e.g., Gall, 552 U.S. at 49, 51;
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United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007).
The reason for this is simple. Congress wants judges to do their
best to sentence similar defendants similarly. See 18 U.S.C. §
3553(a)(6); see also Booker, 543 U.S. at 250-54, 259-60. And
starting with the Guidelines' framework – which gives judges an idea
of the sentences imposed on equivalent offenders elsewhere – helps
promote uniformity and fairness. See, e.g., Gall, 552 U.S. at 49;
Booker, 543 U.S. at 245-60; United States v. Jiménez-Beltre, 440
F.3d 514, 519 (1st Cir. 2006) (en banc). But having done that,
judges can sentence inside or outside the advisory range, as long
as they stay within the statutory range and consider the sentencing
factors arrayed in § 3553(a) – factors that include the nature of
the offense, the background of the defendant, the seriousness of the
crime, the need to deter criminal conduct, and the need to protect
the public from further crimes by the defendant. See, e.g., Gall,
552 U.S. at 41, 49-50 & n.6; Booker, 543 U.S. at 259-60; see also
United States v. Dávila-González, 595 F.3d 42, 46-47 (1st Cir. 2010)
(discussing some additional steps – which we bypass here – that
district judges must take in working with the advisory-only
Guidelines); United States v. Pacheco, 489 F.3d 40, 43-44 (1st Cir.
2007) (similar).
Because most sentences fall within the Guidelines even
after Booker, see, e.g., United States v. Saez, 444 F.3d 15, 19 (1st
Cir. 2006), starting with the right Guidelines is a must, see, e.g.,
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Rita, 551 U.S. at 347-48; Gall, 552 U.S. at 49-51. But the
Commission amends the Guidelines almost yearly, so district judges
must first decide which version applies.
Congress tells them to use the Guidelines in force at the
time of sentencing. See 18 U.S.C. § 3553(a)(4)(A). But if doing
that would infract the Constitution's ex post facto clause, the
Commission directs them to use the edition in effect on the day the
defendant committed the crime. See USSG § 1B1.11(b)(1) (policy
statement). We too tell judges to use the old version if the new
one raises ex post facto concerns. Reduced to essentials, our set
protocol runs this way:
[W]e ordinarily employ the [G]uidelines in
effect at sentencing only where they are as
lenient as those in effect at the time of the
offense; when the [G]uidelines have been made
more severe in the interim, the version in
effect at the time of the crime is normally
used . . . .
United States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001); accord
United States v. Wallace, 461 F.3d 15, 22 n.3 (1st Cir. 2006).
Created in a commonsense way, this firm practice has shaped the
contours of our caselaw pre- and post-Booker, helping judges "avoid
any hint of ex post facto increase in penalty." See Maldonado, 242
F.3d at 5. And avoiding even the slightest suggestion of an ex post
facto problem in these circumstances makes eminently good sense
regardless of whether the practice stems from a constitutional
imperative.
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But that does not mean that judges who start with old
Guidelines cannot consult new ones in choosing suitable sentences.
Quite the contrary. Exercising their Booker discretion, judges
mulling over the multiple criteria in § 3553(a) can turn to post-
offense Guidelines revisions to help select reasonable sentences
that (among other things) capture the seriousness of the crimes and
impose the right level of deterrence. See United States v. Gilmore,
599 F.3d 160, 166 (2d Cir. 2010) (holding that consulting later-
amended Guidelines like this raises no ex post facto concerns).
We come full circle. Because we need not rest our
commonsense protocol on a constitutional command – a holding that
squares with the general principle of steering clear of unnecessary
constitutional decisions – we do not have to take sides in the
inter-circuit conflict highlighted above. And now we turn to
Rodriguez's case.
Applying the Law
Without focusing on which Guidelines controlled, the
district judge here used the version in effect at the time of
sentencing, even though the Commission had made the Guidelines
harsher by adding a four-level enhancement after Rodriguez's crimes.
In other words, the judge used the wrong starting point – an error
that was plain enough given Rita/Gall (holding that district judges
must construct Guidelines ranges accurately) and Maldonado/Wallace
(explaining that judges in this situation must use the earlier
version to avoid even the possibility of ex post facto punishment).
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So, given an error that is plain (although admittedly not
called to the district judge's attention), we must ask whether there
is reasonable likelihood of a different result if we remanded and
whether there is also a threat of injustice if we affirm. See,
e.g., United States v. De La Paz-Rentas, 613 F.3d 18, 25 (1st Cir.
2010); United States v. McCoy, 508 F.3d 74, 80 (1st Cir. 2007).
Most sentences are within the Guidelines range, see United States
v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir.) (en banc) (noting the
"gravitational pull" still exerted by the Guidelines on sentence
selection) (quotations omitted), cert. denied, 129 S. Ct. 92 (2008),
and here there is a large gap between the range mistakenly used
(108-135 months) and the range applicable under the Guidelines in
effect at the time of the crimes (70-87 months). The district judge
could, of course, still have settled on 108 months but that would
have been about 24% higher than the longest sentence within the
applicable range using the proper Guidelines.
The government spends little effort arguing lack of
prejudice or injustice, but it notes briefly that the district judge
at one point said that he "would impose the same sentence without
the guidelines, that is, on a nonguideline basis." But a closer
look at the full quote suggests that it is more ambiguous than might
at first appear.3 In fact, the quotation could easily be read to
3
The full paragraph in the transcript reads as follows. Tr.
38 (emphasis added).
And I'm going to sentence him as if he
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underscore the importance of the Guidelines in the framing of a
sentence.
Certainly there are situations in which a judge might
make clear that a dispute about a Guidelines calculation did not
matter to the sentence. This might be a different case if, for
example, the district judge had been faced with an explicit choice
between the two sets of Guidelines, and thus understood the
magnitude of the difference between them, when he said the choice
did not affect the sentence. But, recognizing that plain error is
a demanding standard, United States v. Padilla, 415 F.3d 211, 221
(1st Cir. 2005) (en banc), we think that a remand in this case is
appropriate.
Summing Up
The parties spend a lot of time debating whether the
district judge committed an error of constitutional dimensions,
which is understandable given the inter-circuit dust-up over this
issue. But we decline to join the fray. Instead we decide
Rodriguez's case in line with the sensible policy outlined above –
were a level 31 and impose a 108-month
sentence. That is a guideline departure
sentence. I would impose the same sentence
without the guidelines, that is, on a
nonguideline basis. It is a nine-year
sentence, which is a long term for someone his
age, but the activity is dangerous and
serious, and I cannot grant any further
departure or downward movement other than
that.
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a policy that holds sway irrespective of any constitutional
pedigree.
Against this legal backdrop, Rodriguez's plain-error
claim prevails, so we exercise our discretion to remand for
resentencing consistent with this opinion.4
So Ordered.
4
Rodriguez also challenges the district judge's § 3553(a)
assessments in several respects. We need not decide these issues
now, however – the district judge can work these matters out as
necessary on remand.
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