Case: 10-40068 Document: 00511401524 Page: 1 Date Filed: 03/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2011
No. 10-40068
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JOSE MANUEL GUTIERREZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, WIENER, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Jose Manuel Gutierrez appeals his sentence after pleading guilty to escape
from a halfway house, his second violation of 18 U.S.C. § 751(a). He contends
that his sentence is procedurally unreasonable because the district court did not
consider a departure pursuant to § 4A1.3 of the United States Sentencing
Guidelines before imposing a non-Guidelines sentence and that the district court
did not adequately explain the reasons for the sentence imposed. He further
argues that his sentence is substantively unreasonable because it is greater than
necessary to achieve the goals of sentencing. We affirm.
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No. 10-40068
I
Gutierrez pled guilty to transporting illegal aliens and was sentenced to
41 months of imprisonment. After serving much of that sentence, Gutierrez was
released to a halfway house. He escaped nine days later, only to be arrested,
ordered to complete his unserved time, and sentenced to an additional 15
months of imprisonment. Released again to a halfway house, he escaped once
more, but was again arrested and pled guilty to escape, in violation of
18 U.S.C. § 751(a).
Gutierrez’s advisory Guidelines sentencing range for his second escape
conviction was 15 to 21 months of imprisonment. He requested that the court
impose a 15-month sentence, in light of his two serious health conditions and
drug addiction. The Government did not request a sentence outside of the
Guidelines. The court noted Gutierrez’s health issues and drug and alcohol
abuse but determined that the Guidelines range was not “in any way, shape, or
form appropriate.” The court explained that it had significant concerns due to
Gutierrez’s criminal history, noting convictions for theft, drug trafficking, and
transporting illegal aliens. The court emphasized Gutierrez’s 1998 conviction
for transporting undocumented aliens, his twice-revoked supervised release in
connection with that conviction, and his subsequent conviction for once again
transporting undocumented aliens in 2005. The court also discussed at length
Gutierrez’s inability to complete his term of confinement at a halfway house,
even given what the court saw as a highly unusual second opportunity to serve
part of his sentence in such an institution. Citing the need to promote respect
for the law, provide just punishment for the offense, deter further criminal
conduct, and protect the public from harm, the court imposed a 50-month
sentence of imprisonment.
Gutierrez objected that the sentence was unreasonable based on the 18
U.S.C. § 3553(a) factors, and that due to his health problems, the sentence
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imposed could be a “life sentence.” Gutierrez also objected that the court failed
to explain adequately its reasons for imposing a sentence beyond the Guidelines
range. The court responded that it had considered the § 3553(a) factors, as well
as Gutierrez’s medical condition as reflected in the PSR, which stated that
Gutierrez had Hepatitis C and a “life threatening disease.” The court disagreed
that the sentence was a life sentence, noting it had no information that
Gutierrez’s life expectancy was less than five years. Gutierrez’s counsel
approached the bench and explained in more detail the nature of Gutierrez’s
illness. The court expressed its awareness of the disease afflicting Gutierrez and
again stated that it had no information concerning life expectancy. The court
declined to reduce the sentence it had selected, and this appeal followed.
II
We first address Gutierrez’s argument that the district court was required
to calculate a departure under § 4A1.3(a) of the Guidelines before it imposed a
non-Guidelines sentence. “This court recognizes three types of sentences: (1) ‘a
sentence within a properly calculated Guidelines range’; (2) ‘a sentence that
includes an upward or downward departure as allowed by the Guidelines’; and
(3) ‘a non-Guideline sentence’ . . . that is outside of the relevant Guidelines
range.”1 The 50-month sentence imposed by the district court was a non-
Guidelines sentence. The district court could have considered imposing an
upward departure within the Guidelines by applying the policy statement in
§4A1.3 and determining whether Gutierrez’s “criminal history category
substantially under-represent[ed] the seriousness of [his] criminal history or the
likelihood that [he] will commit other crimes.” 2 If the court found that an
upward departure was warranted, the court could then have determined the
1
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (quoting United States v.
Smith, 440 F.3d 704, 706-08 (5th Cir. 2006)).
2
U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 4A1.3(a)(1) (2008).
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extent of the upward departure in accordance with § 4A1.3(a)(4). A sentence so
derived would be “a sentence that includes an upward . . . departure as allowed
by the Guidelines.”3 The district court did not perform such a calculation. It
instead imposed a non-Guidelines sentence, as we have noted. Gutierrez
contends that this was significant procedural error because, he asserts, a district
court must first properly calculate the advisory Guidelines range, including the
application of § 4A1.3(a), before it may impose a non-Guidelines sentence. In
other words, he argues that in complying with the Supreme Court’s directive in
Gall4 that a district court must properly calculate and consider the applicable
advisory Guidelines range, a district court must calculate any appropriate
departure under § 4A1.3.
Gutierrez did not assert this argument in the district court. He objected
to other procedural aspects of his sentence, but that is not sufficient to preserve
error with regard to his contentions concerning § 4A1.3. “A party must raise a
claim of error with the district court in such a manner so that the district court
may correct itself and thus, obviate the need for our review.”5 Because the
district court could not have understood from Gutierrez’s objection that he
wanted the court to consider the departure policy statement set forth in § 4A1.3,
we review that contention for plain error only.6
We note initially that it is not clear that the district court failed to consider
§ 4A1.3. The PSR expressly asserted that it might be appropriate to apply
3
Brantley, 537 F.3d at 349 (internal quotation marks omitted).
4
Gall v. United States, 552 U.S. 38, 49-50 (2007).
5
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (internal
citations and quotation marks omitted).
6
See id. (applying a plain error standard of review to a procedural reasonableness
challenge because “[a] district court hearing an objection that a sentence is ‘greater than
necessary’ would not know from those words that the defendant wanted further explanation
of the sentence”).
4
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§ 4A1.3 and upwardly depart, and the district court stated at sentencing that it
had considered all of the information in the PSR. To the extent that the district
court did not actually perform a calculation of an upward departure based on
§ 4A1.3, however, it did not err, let alone plainly err. In United States v. Mejia-
Huerta, we held that a district court is not required to employ the methodology
set forth in § 4A1.3 before imposing a non-Guidelines sentence.7
Gutierrez acknowledges Mejia-Huerta’s holding but argues that our earlier
decision in United States v. Smith8 controls. In Smith, we “agree[d] with the
framework articulated by the Eighth Circuit” in United States v. Haack 9 for
“assessing the reasonableness of a court’s statutory support” for imposing a non-
Guidelines sentence.10 We cited Haack only with regard to its three-part test for
determining whether a non-Guidelines sentence is reasonable.11 We did not
adopt or approve of Haack’s directive that a district court should decide whether
a departure under § 4A1.3 is appropriate in order to derive an applicable
“guidelines sentence” before considering “whether to impose the sentence under
the guidelines or a non-guidelines sentence.”12 In Smith, we determined only
whether the non-Guidelines sentence at issue was reasonable, not whether the
district court was required to perform a calculation of a departure under
§ 4A1.3.13 Indeed, our opinion in Smith expressly stated that “we do not examine
whether an upward departure or an enhancement was available under the
7
480 F.3d 713, 723 (5th Cir. 2007).
8
440 F.3d 704 (5th Cir. 2006).
9
403 F.3d 997 (8th Cir. 2005).
10
Smith, 440 F.3d at 708.
11
Id. (citing Haack, 403 F.3d at 1004).
12
Haack, 403 F.3d at 1003.
13
Smith, 440 F.3d at 706.
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Guidelines.”14 We held in Smith that the district court “properly followed the
procedure for imposing a non-Guideline sentence,” notwithstanding the lack of
a determination under § 4A1.3(a).15 Our decision in Mejia-Huerta is entirely
consistent with Smith.
We more recently held in United States v. Gutierrez-Hernandez 16 that a
district court had erred when it misapplied the departure methodology in
§ 4A1.3 in calculating a departure under that provision of the Guidelines.17 The
decision in Gutierrez-Hernandez speaks to how a district court must apply
§ 4A1.3 when it chooses to depart under the Guidelines, not whether it must
consider § 4A1.3 before selecting a non-Guidelines sentence. The opinion in
Gutierrez-Hernandez did cite, in a footnote, the Sixth Circuit’s statement that
“‘the appropriate Guideline range–including Guideline departures–must still be
considered. . . . This Guideline sentence is then considered in the context of the
section 3553(a) factors.’”18 To the extent that this citation in Gutierrez-
Hernandez could arguably be construed to require a district court to apply the
Guidelines’ departure methodology before imposing a non-Guidelines sentence,
this passage in Gutierrez-Hernandez is dicta. Our earlier precedent in Mejia-
Huerta controls.19
14
Id. at 708 n.3.
15
Id. at 708.
16
581 F.3d 251 (5th Cir. 2009).
17
Id. at 255-56.
18
Id. at 256 n.16 (citing United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006)).
19
Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 542
(5th Cir. 2007) (“When there are conflicting panel decisions, the earliest panel decision
controls.”).
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Gutierrez additionally points to this court’s en banc decision in United
States v. Lambert20 for the proposition that “a district court must evaluate each
successive criminal history category above or below the guideline range for a
defendant as it determines the proper extent of departure” under § 4A1.3.21 Of
course, that decision predated the Supreme Court’s seminal decision in United
States v. Booker,22 and was decided when the Guidelines were mandatory. A
non-Guidelines sentence was unavailable. Our decision in Lambert did not
consider whether the calculation described must occur under § 4A1.3 before a
district court may impose a non-Guidelines sentence. That simply was not at
issue in Lambert.
The district court did not plainly err in failing to calculate an upward
departure using the methodology set forth in § 4A1.3 of the Guidelines prior to
imposing a non-Guidelines sentence.
III
Gutierrez did preserve his argument that the district court failed to state
adequately its reasons for imposing a non-Guidelines sentence. Congress
requires the sentencing court to state “the reasons for its imposition of the
particular sentence.”23 If the district court “decides that an outside-Guidelines
sentence is warranted, [it] must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the degree of the
variance.”24 “[A] major departure should be supported by a more significant
justification than a minor one. After settling on the appropriate sentence, [the
20
984 F.2d 658 (5th Cir. 1993) (en banc).
21
Id. at 662.
22
543 U.S. 220 (2005).
23
18 U.S.C. § 3553(c).
24
Gall v. United States, 552 U.S. 38, 50 (2007).
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court] must adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.” 25
The district court’s explanation for the sentence in this case was sufficient
to permit meaningful appellate review. The court stated that it had considered
Gutierrez’s drug abuse and impaired health, and then engaged in a lengthy
examination of Gutierrez’s criminal history, including his inability to abide by
the terms of supervised release and his repeated escapes. The court also cited
a variety of other § 3553(a) factors, including the need to promote respect for the
law, provide just punishment for the offense, deter further criminal conduct, and
protect the public from harm. Moreover, after Gutierrez objected that the court
did not properly take into account his serious health condition, the court
responded that it had taken into account Gutierrez’s health problems in applying
the § 3553(a) factors. The court engaged in an extended colloquy with defense
counsel. Gutierrez’s disagreement is with the length of the sentence itself, not
the explanation for the court’s decision to impose a 50-month term of
imprisonment.
IV
Finally, Gutierrez argues that his sentence is substantively unreasonable
because the district court failed to give significant weight to his health issues
and long-term drug addiction. Because he properly preserved these complaints
below, our review is for an abuse of discretion.26 Ultimately our review of a
sentence is for reasonableness.27 We must take into account “‘the totality of the
circumstances, including the extent of any variance from the Guidelines
25
Id.; see also Rita v. United States, 551 U.S. 338, 357 (2007).
26
Gall, 552 U.S. at 51.
27
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citing Gall,
552 U.S. at 46, 51).
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range.’”28 We owe deference, however, “to the district court’s determination of
the appropriate sentence based on the § 3553(a) factors and may not reverse the
district court’s ruling just because [we] would have determined that an
alternative sentence was appropriate.”29 A sentence is unreasonable when it (1)
does not account for a factor that should have received significant weight, (2)
gives significant weight to an irrelevant or improper factor, or (3) represents a
clear error of judgment in balancing the sentencing factors.30
When reviewing the appropriate balancing of the § 3553(a) factors, we are
mindful that “[t]he sentencing judge is in a superior position to find facts and
judge their import” in the individual case.31 A district court is in a position to
hear the evidence, make credibility determinations, and gain insights not
conveyed by the record.32 We also recognize that “‘district courts have an
institutional advantage over appellate courts in making these sorts of
determinations, especially as they see so many more Guidelines sentences than
appellate courts do.’” 33
The district court did not abuse its discretion in balancing the factors set
forth in § 3553(a) with its consideration of Gutierrez’s ill health and drug abuse.
The district court’s selection of 50 months of imprisonment was not
unreasonable. The top of Gutierrez’s advisory Guidelines sentence was 21
28
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (quoting Gall, 552 U.S.
at 51).
29
Id. (citing Gall, 552 U.S. at 51).
30
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006) (citing United States v.
Haack, 403 F.3d 997, 1004 (8th Cir. 2005)).
31
Gall, 552 U.S. at 51.
32
See United States v. Williams, 517 F.3d 801, 812 (5th Cir. 2008) (citing Gall, 552 U.S.
at 51).
33
Gall, 552 U.S. at 52 (citing Koon v. United States, 518 U.S. 81, 98 (1996)).
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months, and the 29-month difference between that period of confinement and the
sentence imposed is well within the range of upward departures that we have
previously upheld.34 The district court was not unreasonable in determining
that, even taking into account Gutierrez’s health issues and drug abuse, a 50-
month sentence was necessary to achieve the goals of sentencing, especially in
light of Gutierrez’s persistent inability to abide by the law or terms of supervised
release and his propensity to escape from confinement.
* * *
For the foregoing reasons, we AFFIRM the sentence imposed by the
district court.
34
See, e.g., Brantley, 537 F.3d at 348, 350 (finding no plain error in the imposition of
a 180-month sentence where the top of the advisory range was 51 months); Williams, 517 F.3d
at 806, 813 (upholding a 172-month sentence where the top of the advisory range was 97
months); Smith, 417 F.3d at 492-93 (upholding a 120-month sentence when the top of the
advisory range was 41 months).
10