United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2011 Decided July 1, 2011
No. 09-3101
UNITED STATES OF AMERICA,
APPELLEE
v.
MANUEL DE JESUS VENTURA, ALSO KNOWN AS MARIO
HERNANDEZ-CHACON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00288)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender entered an appearance.
Michelle Shamblin Stratton, Attorney, U.S. Department
of Justice, argued the cause for
2
appellee. With her on the brief were Ronald C. Machen, Jr.,
United States Attorney, and Roy W. McLeese III and Angela
G. Schmidt, Assistant U.S. Attorneys.
Before: SENTELLE, Chief Judge, BROWN and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Appellant Manuel DeJesus
Ventura (“Ventura”) pleaded guilty to violating 8 U.S.C.
§ 1326(a), and § 1326(b)(2), which together prohibit the
illegal reentry of an alien who has been deported following an
aggravated felony conviction. The district court twice
sentenced Ventura. We reversed both times, remanding each
time for resentencing—first, because the district court did not
consider Ventura’s U.S. Sentencing Guidelines
(“Guidelines”) range under United States v. Booker, 543 U.S.
220 (2005), and second, because the district court incorrectly
calculated Ventura’s Guidelines range when it did consider it.
The district court’s most recent resentencing of Ventura
resulted in an 84-month sentence, as the court varied upward
from Ventura’s correctly calculated Guidelines range on the
basis of the factors articulated in § 3553(a). The district court
adequately explained its sentencing decision. We affirm.
I1
Ventura, a citizen of El Salvador, first entered the United
States in 1997 and was deported within a month. He returned
1
Our previous opinion, United States v. Ventura, 565 F.3d 870
(D.C. Cir. 2009) (Ventura II), sets out much of the relevant factual
and procedural background of this case. We draw, often verbatim,
from that decision in summarizing the background here.
3
to the United States in 1999 and while here committed the
crime that has become the bugaboo of this case. In 2000, the
Commonwealth of Virginia charged Ventura with felonious
abduction in violation of Va. Code § 18.2-47, which prohibits
the unlawful seizure or detention of another person. Ventura
pleaded nolo contendere and the Virginia court found him
“guilty as charged in the indictment,” Tr. of Plea Colloquy at
17, Commonwealth v. Hernandez-Chacon, No. 98623 (Va.
Cir. Ct. Dec. 18, 2000), sentencing him to 18 months in
prison. Ventura’s run-ins with the law alerted the federal
government (“Government”) that he had reentered the
country; he was removed again.
Ventura soon returned to the country a third time, and to
his criminal ways. In 2004, the D.C. Superior Court
sentenced Ventura to six years in prison for, among other
crimes, armed assault with intent to commit robbery. While
Ventura was serving that sentence, the Government realized
Ventura was in the country yet again. This time, instead of
immediately removing Ventura, the Government charged him
with illegally reentering the United States after having been
removed following conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a), (b)(2).2 Ventura pleaded
guilty.
The district court first sentenced Ventura on March 7,
2005. Then, the central dispute at sentencing was the
2
Section 1326(a) provides that “any alien who (1) has been denied
admission, excluded, deported, or removed . . . and thereafter (2)
enters, attempts to enter, or is at any time found in, the United
States . . . shall be fined under Title 18, or imprisoned not more
than 2 years, or both.” 8 U.S.C. § 1326(a). An alien “whose
removal was subsequent to a conviction for commission of an
aggravated felony . . . shall be fined under such Title, imprisoned
not more than 20 years, or both.” Id. § 1326(b)(2).
4
calculation of the appropriate sentencing range under the
Guidelines. The base offense level for the crime of unlawful
reentry is 8. See U.S. Sentencing Guidelines Manual
(U.S.S.G.) § 2L1.2(a) (2004). The Guidelines direct the court
to apply the greatest of several possible increases based on the
criminal conviction that preceded the defendant’s removal. If
the defendant was convicted of an “aggravated felony,” the
court applies an 8-level increase. Id. § 2L1.2(b)(1)(C).
Because Ventura pleaded guilty to reentering the country after
conviction for an aggravated felony, he did not contest the
eight-level increase. But some aggravated felonies are also
“crimes of violence,” which instead trigger a sixteen-level
increase under the Guidelines. Id. § 2L1.2(b)(1)(A)(ii). The
probation office’s presentence investigation report (“PSR”)
concluded Ventura’s Virginia conviction was one such crime.
Ventura disputed the PSR’s conclusion, arguing his
aggravated felony conviction was not a crime of violence.
Reading United States v. Booker, 543 U.S. 220 (2005), to
alleviate the need to make a specific finding about the
applicable Guidelines range, the district court did not resolve
this dispute. Instead, the court weighed the various factors set
out in 18 U.S.C. § 3553(a) and sentenced Ventura to 93
months in prison—a sentence that would have been within
the applicable Guidelines range had the court expressly found
Ventura to have been convicted of a crime of violence.
Ventura appealed, and we reversed, explaining that under
Booker “sentencing courts remain obligated to calculate and
consider the appropriate guidelines range.” United States v.
Ventura, 481 F.3d 821, 823 (D.C. Cir. 2007) (Ventura I).
Because the district court had “expressly eschewed making a
specific finding as to the guidelines range applicable to
Ventura,” id., we remanded for it to do so.
5
On remand, the district court concluded the Virginia
abduction was a crime of violence and applied a 16-level
increase to Ventura’s base offense level. The resulting
Guidelines range was 77 to 96 months. The court sentenced
Ventura to 84 months’ imprisonment, to be served
consecutive to his six-year D.C. Superior Court sentence.
Ventura again appealed, and we again reversed, explaining
that Ventura’s Virginia’s conviction was not a crime of
violence under the Guidelines. Because “the district court
erred in calculating the advisory sentencing range,” we again
remanded for resentencing. Ventura II, 565 F.3d at 880.
The district court began its third effort at sentencing
Ventura by classifying the Virginia abduction as an
aggravated felony and calculating his Guidelines range as
between 33 and 41 months. The Government sought an
above-Guidelines sentence, however, arguing for an upward
departure from the sentence as calculated under U.S.S.G.
§ 2L1.2, because Ventura’s offense level “understate[d] the
seriousness” of his Virginia abduction conviction. The
Government argued in the alternative for a variance in light of
Ventura’s repeated illegal entries and commission of an
aggravated felony each time that he reentered. The district
court declined the Government’s invitation to depart upward
under the Guidelines, instead sentencing Ventura to 84
months’ imprisonment—a variance based upon its assessment
of the § 3553(a) sentencing factors.
II
On appeal, Ventura contends the district court erred by
considering the underlying facts of his Virginia abduction
conviction when sentencing him—namely, that the abduction
involved the violent sexual assault of a minor. Next, Ventura
argues the district court failed to give adequate reasons for
6
imposing an above-Guidelines sentence, and the sentence
imposed was substantively unreasonable. See 18 U.S.C.
§ 3553(c)(2) (requiring a district court to state the reasons for
a variance). We address each of these arguments in turn.
A
At sentencing, the district court may make findings of
fact under a preponderance-of-the-evidence standard,
regardless of whether “a jury has previously acquitted a
defendant of the same conduct,” or the conduct is “previously
untried.” United States v. Bras, 483 F.3d 103, 108 (D.C. Cir.
2007) (emphasis omitted); see also Booker, 543 U.S. at 251
(noting that the Court “held in United States v. Watts, that a
sentencing judge could rely for sentencing purposes upon a
fact that a jury had found unproved (beyond a reasonable
doubt)” (citation and alteration omitted)). In so doing, the
sentencing court “may accept any undisputed portion of the
[PSR] as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). For
any disputed portion of the PSR, the sentencing court must
either “rule on the dispute or determine that a ruling is
unnecessary.” Fed. R. Crim. P. 32(i)(3)(B). We review a
sentencing court’s factual determinations for clear error,
“without regard to whether the appellant requested findings,
objected to them, or moved to amend the findings before the
trial judge.” In re Sealed Case, 552 F.3d 841, 849 (D.C. Cir.
2009) (Edwards and Silberman, JJ., concurring).3
3
The Government argues “plain error” review applies because
Ventura did not object to the district court’s consideration of the
facts underlying Ventura’s Virginia conviction. Under either
standard, our conclusion is the same.
7
The district court undeniably relied, in part, on the
underlying facts of the Virginia abduction when sentencing
Ventura. The court stated:
[Ventura] has a penchant for returning and not
only returning, but committing violent
crimes . . . And in that most recent violent
crime where he used force to take a minor
down an alley, sexually assault her, and only
through good fortune she escaped, he
demonstrated his willingness to use force
against our most vulnerable citizens, our
minors . . . [T]here’s nobody in a position that
I’m aware of to quibble with the minimum
factual predicate of that prior offense in
Virginia: minor; force; sexual assault, who
escaped through dear good fortune on her part
and resistance on her part.
Sent’g Tr. at 8. The facts supporting the district court’s
characterization of the Virginia abduction derived from the
PSR, which under Rule 32(i)(3)(A) the court may find as fact
unless disputed.
Ventura contends the district court’s reliance on his
Virginia abduction conviction was in error because he pleaded
nolo contendere, and therefore did not admit to the underlying
facts of the offense. It is unclear whether Ventura contends
his nolo contendere plea should prevent the district court from
finding facts in relation to his Virginia conviction altogether,
or whether he contends the district court should not have
accepted the PSR’s findings of facts given his nolo
contendere plea. His argument fails however it is construed.
If a sentencing court may find facts related to acquitted or
untried conduct, a fortiori it may find facts charged in an
8
indictment to which a defendant pleaded nolo contendere. Cf.
United States v. Dorcely, 454 F.3d 366, 372–73 (D.C. Cir.
2006); Booker, 543 U.S. at 251; 18 U.S.C. § 3661 (“No
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of
an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate
sentence.”) Further, Rule 32(f)(1) allows 14 days for a
defendant to “state in writing any objections, including
objections to material information” contained in a PSR.
Ventura failed to do so, and, consequently, the district court
properly accepted the PSR’s findings as fact. Fed. R. Crim. P.
32(i)(3)(A). Ventura’s nolo contendere plea does not
constitute a Rule 32 objection. A contrary holding would
render Rule 32(f) a mere administrative request.
Ventura suggests two other reasons the district court’s
consideration of the facts underlying his Virginia conviction
was in error. First, at oral argument, Ventura argued “[t]here
is no obligation for the defense to dispute facts,” because
“Ventura had a right to remain silent with respect to any
criminal allegations.” Oral Arg. Tr. at 5, 6. It is true, under
Mitchell v. United States, 526 U.S. 314, 327–28 (1999), the
defendant maintains a right to remain silent at a sentencing
hearing and a sentencing court may not draw an adverse
inference from the defendant’s silence in finding facts relating
to the circumstances and details of a crime, id. at 329–30. But
Mitchell and Rule 32(i)(3)(A) are not inconsistent. Had
Ventura disputed the facts contained in his PSR, the district
court would have had to “rule on the dispute or determine that
a ruling is unnecessary.” Fed. R. Crim. P. 32(i)(3)(B). In that
event, Mitchell would preclude the district court from making
an adverse inference from Ventura’s failure to testify. But
because Ventura did not dispute the PSR, no ruling was
necessary and Mitchell does not apply.
9
Finally, Ventura contends Shepard v. United States, 544
U.S. 13 (2005), “limits the evidence a court may rely on at
sentencing,” and a sentencing court cannot “evade
Shepard . . . by imposing a non-guideline sentence.” When
we held Ventura’s Virginia’s conviction was not a crime of
violence under the Guidelines, we reasoned that Shepard
precluded the sentencing court from looking to Ventura’s
state court plea colloquy—the basis for the PSR’s factual
description of the abduction—for the purpose of calculating
the Guidelines range. Ventura II¸ 565 F.3d at 879. Of course,
the oddity of allowing the district court to consider certain
evidence when relying upon the § 3553(a) factors, but not
when determining the applicable Guidelines range is not lost
on us. But Shepard is distinguishable for this very reason—it
pertains to calculating a Guidelines range, not a variance on
the basis of § 3553(a)’s sentencing factors. As the Supreme
Court recently reiterated, the Guidelines serve only as “the
starting point and the initial benchmark” before considering
the § 3553(a) factors. Gall v. United States, 552 U.S. 38, 49
(2007). Here, the district court correctly calculated Ventura’s
Guidelines range, and its subsequent findings of fact about
Ventura’s Virginia offense were not clearly erroneous.
B
Ventura next argues the district court committed
procedural error by failing to give adequate reasons for
imposing a sentence outside the Guidelines and that his 84
month sentence is substantively unreasonable. When a
sentencing court fashions a sentence outside the Guidelines, it
must state “the specific reason for the imposition of a
sentence different from that described, which reasons must
also be stated with specificity in [the written order of
judgment and commitment.]” 18 U.S.C. § 3553(c)(2); see
10
also United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)
(“[T]he farther the judge’s sentence departs from the
guidelines sentence . . . , the more compelling the justification
based on factors in section 3553(a) that the judge must offer
in order to enable the court of appeals to assess the
reasonableness of the sentence imposed.”). “Our review for
both procedural soundness—including whether the district
court considered the necessary factors and adequately
explained a deviation from the Guidelines—and the
substantive reasonableness of sentences is for abuse of
discretion.” United States v. Wilson, 605 F.3d 985, 1033–34
(D.C. Cir. 2010).
Ventura’s arguments are easily dismissed, as each
restates Ventura’s objections to the district court’s
consideration of the facts underlying the Virginia abduction.
First, Ventura says the district court did not give “substantial
consideration to the guidelines and § 3553(a)” because “no
evidence demonstrated that the [Virginia] abduction involved
violence, or a sexual assault, or a victim who was a minor.”
But the sentencing hearing transcript refutes Ventura’s claim.
It shows the district court addressed each of the factors set
forth in § 3553(a), with an especially sharp focus on the
seriousness of Ventura’s offense (§ 3553(a)(2)(A)), the need
to protect the public (§ 3553(a)(2)(C)), and the need to
promote respect for the law (§ 3553(a)(2)(A)). Sent’g Tr. at
9. Similarly, Ventura argues his sentence is substantively
unreasonable because the district court would have
(presumably) given a lower sentence absent consideration of
the Virginia abduction. But given our conclusion above—the
district court’s consideration of the facts underlying the
Virginia abduction was proper—we need not consider the
counterfactual Ventura poses. We must defer to the district
court’s judgment when it has presented a “reasoned and
reasonable decision that the § 3553(a) factors, on the whole,
11
justified the sentence.” Gall, 552 U.S. at 59–60. Because the
district court did that here, it did not abuse its discretion.
III
After its failure to consider the Guidelines when
sentencing Ventura, we reversed the district court. We
reversed again after the district court subsequently calculated
Ventura’s Guidelines range incorrectly. Sentencing Ventura
for a third time, the district court considered the § 3553(a)
factors and gave Ventura a sentence 43 months above the
upper bound suggested by the Guidelines. In so doing, the
district court considered the nature of Ventura’s prior Virginia
abduction conviction. This was not in error because Ventura
did not dispute the PSR’s description of the offense. Neither
did the district court abuse its discretion by failing to give
sufficient reasons for its variance from the Guidelines, nor by
fashioning a substantively unreasonable sentence. The
sentence of the district court is
Affirmed.