United States v. Lente

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH July 29, 2011

Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 10-2194

CAMILLE SUZANNE LENTE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:05-CR-02770-WJ-1)

Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque, New Mexico,
for Appellant.

Andrea W. Hattan, Assistant United States Attorney (Kenneth J. Gonzales, United States
Attorney with her on the brief), Las Cruces, New Mexico, for Appellee.

Before GORSUCH, HOLLOWAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Camille Suzanne Lente challenges her sentence as procedurally and substantively
unreasonable. Ms. Lente killed three young men and seriously injured a young woman in

a car accident that occurred when she was driving while intoxicated. She entered a guilty

plea to three counts of involuntary manslaughter and one count of assault resulting in

serious bodily injury.1 She was originally sentenced to 216 months (18 years) in prison, a

significant upward variance from her proposed Guidelines range of 46 to 57 months’

imprisonment. A divided panel of this court vacated her sentence and remanded for

resentencing in a per curiam, unpublished decision with no majority opinion. See United

States v. Lente, 323 F. App’x 698, 699 (10th Cir. 2009).2 On resentencing, a different

district court judge sentenced Ms. Lente to 192 months (16 years) in prison. She now

appeals from her resentencing. We conclude the district court’s failure to address

Ms. Lente’s argument about the need to avoid unwarranted sentencing disparities

constitutes reversible procedural error. Exercising our jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a)(3), we reverse and remand.

I. BACKGROUND

A. Factual Background

The following factual background is taken from Judge Holmes’s opinion in

1
These offenses fall under federal jurisdiction because they were major crimes
committed by an Indian within Indian country. See 18 U.S.C. § 1153.
2
Judge Hartz and Judge Holmes voted to vacate the sentence and remand for
resentencing but for different reasons. Judge Hartz concluded that remand was necessary
because the government had breached its plea agreement. Judge Holmes determined that
remand was necessary because Ms. Lente’s sentence was substantively unreasonable.
Judge McWilliams in dissent voted to affirm the sentence.

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Ms. Lente’s first appeal.

On the night of December 2, 2005, after consuming between 13 and 19 beers,
Ms. Lente drove her mother’s Chevrolet Suburban on the Isleta Indian
Reservation, which is located in New Mexico. At approximately 10:40 p.m., her
Suburban, which was northbound, crossed the center line of the highway into the
southbound traffic lane, causing a head-on collision with a Ford Ranger truck,
driven by Jessica Murillo. Ms. Lente’s passenger in the Suburban, Anthony
Tewahaftewa, and the two passengers in the Ford Ranger, Andres Murillo and
Joshua Romero, were declared dead at the scene. Ms. Murillo survived, but
sustained fractures to her right femur, right shoulder, and right ankle, and received
numerous facial lacerations. Ms. Lente suffered two broken ankles and a
dislocated hip. Ms. Murillo and Ms. Lente were transported to a hospital. . . .
Two hours after the accident, a blood sample was taken from Ms. Lente. Ms.
Lente’s blood alcohol level (“BAL”) was 0.21-over two times the New Mexico
legal limit of .08-and marijuana was present in her system.

Lente, 323 F. App’x at 699-700 (Holmes, J., concurring). Ms. Lente was twenty-two

years old on the night of the accident.

At her resentencing, Ms. Lente introduced the following undisputed evidence

about the circumstances leading up to the accident. According to interviews taken after

the accident, Ms. Lente and Mr. Tewahaftewa had been drinking together that day. They

ended up at the home of Elaine Jojola where she and Ms. Lente’s mother, Nancy Abeita,

had been drinking. According to Ms. Jojola, Mr. Tewahaftewa was trying to kiss and hug

her and was boisterous and talking about gangs. She disliked his behavior. She called

his sister to come for him, but the sister refused. Ms. Jojola told Mr. Tewahaftewa to

leave, but he refused. Ms. Abeita gave Ms. Lente the keys to her car and told her

daughter to drive Mr. Tewahaftewa home.

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B. Procedural Background

We present the procedural history in some detail as a necessary predicate to the

analysis of procedural error.

Ms. Lente was charged with three counts of involuntary manslaughter in violation

of 18 U.S.C. §§ 13, 1153, and 1112, and one count of assault resulting in serious bodily

injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6). She entered into a plea agreement

and pleaded guilty to all four counts in the indictment. The government stipulated that

Ms. Lente had accepted responsibility, which entitled her to a three-level reduction in her

base offense level.

1. The First Sentencing

The Presentence Report (“PSR”) computed an advisory Guidelines range of 46 to

57 months. For each of the three involuntary manslaughter convictions, the PSR

assigned a base offense level of 22 under U.S.S.G. § 2A1.4. Twenty-two is the highest

base offense level under that provision and is reserved for those instances in which “the

offense involved the reckless operation of a means of transportation.” U.S.S.G.

§ 2A1.4(a)(2)(B). The assault carried a base level of 14, which was adjusted by six levels

to a level of 20 based on the severity of Ms. Murillo’s injuries. There were no further

adjustments.

The PSR then assessed an additional four-level adjustment for Ms. Lente’s

multiple victims. See U.S.S.G. § 3D1.4. The Guidelines instruct that this four-level

adjustment is added on to the highest offense level (22 in this case), which resulted in an
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offense level of 26. The PSR computed a three-level reduction for acceptance of

responsibility, resulting in a total offense level of 23. The PSR placed Ms. Lente in a

criminal history Category I. Ms. Lente’s Guidelines range was 46 to 57 months.

The PSR found no grounds for a departure, stating: “After assessing the

defendant’s criminal history and social history, she does not appear to have any

circumstances that would take her away from the heartland of cases of similarly situated

defendants.” R. Vol. 2 at 29 ¶ 101. The PSR did, however, recommend an upward

variance. A Guidelines sentence, it stated, would not reflect the seriousness of

Ms. Lente’s crimes, provide just punishment, promote respect for the law, or deter

Ms. Lente from committing further criminal acts.

The government filed a pre-sentencing motion for an upward departure or an

upward variance, concurring with the PSR’s recommendations. The district court

sentenced Ms. Lente to three consecutive 72-month sentences for the three counts of

involuntary manslaughter, which was the maximum sentence Ms. Lente could receive for

these counts. The court also imposed a concurrent term of 120 months for the assault

count. The final sentence was 216 months’ imprisonment (18 years). Ms. Lente

appealed. This court, with no majority opinion, vacated her sentence and remanded for

resentencing by a different district court judge.

2. Briefs on Remand

Ms. Lente renewed and supplemented her objections to the PSR and asked for a

sentence within the Guidelines range. She argued that “[t]he need to avoid unwarranted
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sentencing disparities among defendants with similar records convicted of similar crimes,

a required consideration under 18 U.S.C. § 3553(a)(6), supports a sentence within the

guideline range.” R. Vol. 1 at 151. She summarized her review of federal sentencing

practices in manslaughter cases from 2001 to 2009. Ms. Lente noted that her “previous

sentence of 216 months was grossly above other manslaughter sentences,” based on

examining other above-Guidelines sentences for manslaughter during the nine-year

period. Id. at 152. Ms. Lente also reviewed sentences from other cases with similar

offenders and similar offenses, noting that all of the defendants in those cases received

sentences much lower than her sentence. When there was an upward departure or

variance, it was moderate compared to the increase urged in her case. She concluded by

arguing that the

history and pattern of sentencing for manslaughter offenses support a conclusion
that the Sentencing Commission formulated reasonable guidelines for the offense
that satisfy the § 3553 goals in the overwhelming majority of cases. Thus,
sentencing within those guidelines meets the need to avoid unwarranted
sentencing disparities among defendants with similar records and convicted of
similar offenses.

Id. at 155-56.

The government argued that the § 3553(a) factors “[o]verwhelmingly [w]arrant

[a]n [u]pward [v]ariance.” Id. at 207. The government analyzed all of the § 3553(a)

factors, but focused primarily on the nature and circumstances of the offense, see

§ 3553(a)(1), emphasizing that Ms. Lente consumed an excessive amount of alcohol,

drove without a driver’s license, had a high blood alcohol content (“BAC”) of .21, and

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killed three people, including a twelve-year-old boy.

With respect to § 3553(a)(6) and the need to avoid unwarranted sentencing

disparities, the government argued that Ms. Lente’s conduct “caused so much destruction

and was so outrageous that [her] case simply does not compare to other drunk-driving

related fatalities.” Id. at 213. The government reiterated that Ms. Lente had a high BAC

and that she killed three people, which is “much more than the ‘typical’ involuntary

manslaughter case.” Id. at 214. The government concluded that “to sentence [Ms. Lente]

significantly above the guideline range and instead up towards the statutory maximum

allowable by law poses little risk of a disparity with other like-criminals, as [Ms. Lente]

is wholly in a category of her own.” Id.

3. Re-sentencing Hearing

On July 22, 2010, the court heard further testimony and argument by the parties.

The government said it did not want to “rehash all of the argument that both sides have

already presented,” but it did want to “provide [the court] with some additional points

and . . . tools [to] use in crafting the appropriate decision in this case.” R. Vol. 3 at 91. It

started by highlighting the § 3553(a)(6) sentencing-disparity issue, noting that it was “one

particular factor that [the court] must consider,” and asserting that the cases presented by

Ms. Lente were distinguishable because they were “pre-Booker”3 cases. Id. at 91-92.

The government compared Ms. Lente’s case to Pettigrew, a “post-Booker” case in which

3
United States v. Booker, 543 U.S. 220 (2005).

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the district court departed upward from the Guidelines range of 70 to 87 months to

impose a sentence of 126 months for one count of involuntary manslaughter, two counts

of assault resulting in serious bodily injury, and one count of misdemeanor assault.4 The

government argued that the “discrepancy” between the ten years in Pettigrew and the

eighteen years it was requesting in this case “doesn’t seem like much when here we have

two additional people who lost their lives due to Ms. Lente’s conduct.” Id. at 94.

Ms. Lente also opened her argument with the sentencing-disparity issue. Counsel

began by reading a letter from the director of the Office of Policy and Legislation for the

U.S. Department of Justice, Criminal Division to Judge Sessions, the head of the United

States Sentencing Commission:

In our consideration of federal sentencing policy, we begin from the principle that
offenders who commit similar offenses and have similar criminal histories should
be sentenced similarly. This was the foundational principle of the Sentencing
Reform Act of 1984. We are concerned that our sentencing system may be
meeting this principle of sentencing reform less and less.

Id. at 168-69. Counsel explained that “this principle is what the debate today is all

about.” Id. at 169. He claimed that, in this case, the government was inviting the district

court “to move away from Congress’s goal of sentencing uniformity—that goal being

avoiding unwarranted disparities among defendants with similar records found guilty of

similar conduct.” Id. at 172.

Ms. Lente argued that the government was ignoring the facts of comparable

4
United States v. Pettigrew, 468 F.3d 626, 633 (10th Cir. 2006).

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cases—Wolfe, Jones, and Whiteskunk.5 She asserted that other similarly situated

defendants did not receive sentences significantly outside the Guidelines for their

offenses, yet the government was asking the court to impose a sentence that was almost

twice what the defendant in Pettigrew received, noting that “he got the highest sentence

of all, and he had almost the worst criminal history of all.” Id. at 193. She concluded by

arguing that “under all the circumstances, a sentence of 57 months in this case is

sufficient but not greater than necessary, and it is not in disparity with people who have

committed similar crimes like this who have similar criminal histories and backgrounds.”

Id. at 194.

4. Second Sentencing Decision

At the close of the sentencing hearing, the district court took the matter under

advisement. The court subsequently issued a written decision. The first half of the

decision recounts the factual and procedural background. See R. Vol. 1 at 425-435. The

court noted that it was “resentencing on a clean slate” because there was no consensus on

the Tenth Circuit panel as to the reasons for remand. Id. at 437. Agreeing with the

government’s request to vary upward, the court concluded that the Guidelines range of

46 to 57 months was “woefully inadequate to accomplish the goals of sentencing in this

case,” because “the Guidelines do not appropriately capture the seriousness of [Ms.]

5
United States v. Wolfe, 435 F.3d 1289 (10th Cir. 2006); United States v. Jones,
332 F.3d 1294 (10th Cir. 2003); United States v. Whiteskunk, 162 F.3d 1244 (10th Cir.
1998).

-9-
Lente’s offense.” Id. at 440.6 The court stated that “after carefully considering all the

statutory factors set forth in 18 U.S.C. § 3553(a), I find that a sentence of 192 months is

sufficient, but not greater than necessary to accomplish the goals of sentencing.” Id. The

court then explained its reasoning.

a. Underrepresented criminal history

First, the court found that the Guidelines did not adequately represent Ms. Lente’s

criminal history because she did not receive any criminal history points for her five prior

tribal convictions. The court noted that four of the five convictions involved the use of

alcohol and all involved violent and/or reckless behavior. It concluded that “[t]hese prior

convictions show a pattern of alcohol abuse and reckless behavior—a pattern that led to

[Ms.] Lente’s decision to drink 13 to 19 beers on December 2, 2005 and drive on State

Road 47.” Id. at 441.

Because three of the five convictions occurred when Ms. Lente was a juvenile, the

court did not rely on them to enhance Ms. Lente’s sentence. But the court found it

“entirely appropriate to enhance Lente’s sentence on the basis of her two adult tribal

convictions—one for assault and battery and one for disorderly conduct.” Id. The court

noted further that if the convictions had occurred in state or municipal court, her

6
Before discussing its reasons for the upward variance, the court indicated that
upward departures might have been available under U.S.S.G. § 4A1.3 and § 5K2.1, but
the court stated it would “not go out of its way to impose an upward departure where the
PSR has not recommended one and the United States has not requested one.” R. Vol. 1 at
438-39.

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Guidelines range would have increased to 57 to 71 months. The court concluded it would

be “highly unjust” for Ms. Lente “to avoid[] the consequence[s] of these prior

convictions merely because they occurred in tribal court.” Id.

b. Failure of Guidelines to account adequately for each additional victim

Second, the court found that the Guidelines did not adequately account for

Ms. Lente’s offense causing multiple deaths. Under the Guidelines’ grouping rules,

Ms. Lente was assessed four units for her four convictions (three involuntary

manslaughter and one assault resulting in serious bodily injury), which resulted in a

four-level increase to her Guidelines range. See U.S.S.G. § 3D1.4. The district court

noted that “[i]n accordance with these rules, the bottom end of Lente’s sentencing range

was increased by 5-6 months for each of her four victims.” R. Vol. 1 at 442. The court

concluded that 5 or 6 months did not adequately represent the value of each of these

young lives.

The court stressed it was not finding the Guidelines are categorically inadequate at

accounting for the value of the victims’ lives. It explained that the Guidelines may be

adequate when there is one victim or when the victim or victims shared some minor

culpability (e.g., the victims themselves were intoxicated or willfully rode in a car with

an intoxicated driver). But here, where the victims are “entirely blameless,” the court

concluded that “the Guidelines do not sufficiently enhance a defendant’s sentence for

these additional victims.” Id. at 443.

Finally, the court noted that the government had proffered data showing the rarity
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of drunk driving offenses that result in three deaths—in 2005, the average number of

fatalities per drunk-driving related crash was 1.16. Ms. Lente killed almost three times as

many people as the average and seriously injured another. The court stated that “[t]hese

statistics help show the tragic nature of this particular crash . . . [and] they help illustrate

why the 5-6 month enhancement provided by the Guidelines for each victim

insufficiently represents the unusual violence of this crime.” Id.

c. Presence of additional factors demonstrating extreme recklessness

Third, the court said there were additional factors that demonstrate Ms. Lente’s

“extraordinary recklessness and show why this case is outside the ‘heartland’ of cases

contemplated by the Guidelines.” Id. The court gave three examples: (1) Ms. Lente’s

excessively high BAC; (2) driving without a valid New Mexico driver’s license; and

(3) driving on State Road (SR) 47, a well-traveled road just outside of Albuquerque.

The court first noted Ms. Lente’s .21 BAC measured two hours after the crash—

over two-and-a-half times the New Mexico legal limit of 0.8. The court further noted

that Ms. Lente’s BAC was “significantly over the statewide average” in drunk driving

cases, citing to 2005 statistics showing that .16 was the mean BAC for drunk drivers in

New Mexico. Id. at 444.

Second, the court observed that Ms. Lente had never held a valid New Mexico

driver’s license. “While I acknowledge that the lack of a driver’s license does not

necessarily correlate with a lack of driving experience, it certainly suggests that [Ms.]

Lente has never had any formal driving training.” Id. The court also said that Ms.
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Lente’s decision to drive without a valid driver’s license “demonstrates [her] further

disregard for the law.” Id.

Finally, the court noted that SR 47 is well-traveled and the crash occurred in the

Isleta Pueblo, just twelve miles outside of the city of Albuquerque. The court said Ms.

Lente must have been aware of these road characteristics because she had lived in this

area her whole life and yet “still chose to drive while highly intoxicated on this well-

traveled road.” Id. at 445.

d. Sentencing goals

Finally, the court found that the Guidelines sentence of 46 to 57 months does not

achieve the sentencing goals set forth in 18 U.S.C. § 3553 because it does not reflect the

seriousness of the offense, and it would not adequately deter Ms. Lente from future

criminal conduct nor protect the public from Ms. Lente. The court noted that Ms. Lente’s

“criminal history shows a repeated willingness to drink to excess and engage in reckless

behavior, often endangering the safety of others. Despite multiple terms of imprisonment

by tribal authorities7 and five separate terms of probation, [Ms.] Lente has continued to

engage in such reckless behavior.” Id. Accordingly, the court found that a “substantial

sentence is necessary to deter Lente from future offenses and to protect the public.” Id.

at 446.

7
According to the PSR, Ms. Lente spent time in tribal jail twice—once for ten days
and once for thirty days.

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 5. The Sentence

To arrive at the sentence of 192 months, the district court imposed a term of 72

months for each of the involuntary manslaughter counts (72 months is the statutory

maximum for involuntary manslaughter). Two of the 72-month terms, for Joshua

Romero and Andres Murillo (the passengers in the other car), were set to run

consecutively.8 The other 72-month term, which related to Anthony Tewahaftewa (the

passenger in Ms. Lente’s car), was split so that 48 months was set to run consecutively,

while the remaining 24 months was set to run concurrently. The court explained that it

was running the sentence related to Mr. Tewahaftewa partially concurrent because,

although Mr. Tewahaftewa had been the victim of involuntary manslaughter, he had

engaged in risky behavior by consuming alcohol with Ms. Lente and then choosing to

ride in the car with her. In contrast, “[t]he other three victims . . . did not engage in any

risky behavior whatsoever and, tragically, just happened to be at the wrong place at the

wrong time.” Id. at 446 n.9. The court also imposed a term of 120 months for the assault

on Jessica Murillo (the driver of the other car) resulting in serious bodily injury. That

120-month term was set to run concurrently.

6. Objections to the Sentence

8
See 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment imposed at the same
time run concurrently, unless the court orders . . . that the terms are to run
consecutively.”); United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256 (10th Cir.
2006) (“[A] district court has the discretion to impose consecutive or concurrent
sentences.”).

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 Ms. Lente filed written objections to the district court’s sentencing decision. She

lodged various procedural objections, including the court’s reliance upon the frequency

of traffic on SR 47 and other features regarding the location of the accident, failure to

address mitigating circumstances leading to the accident, and “failure to address 18

U.S.C. § 3553(a)(6), the need to avoid unwarranted sentencing disparities among

defendants with similar records,” noting that “[s]he ha[d] made extensive argument to the

court on this point.” R. Vol. 1 at 362.

The court held a hearing on the objections. The main focus was on SR 47 as an

aggravating factor. Ms. Lente claimed she had no notice it would be used to support an

upward variance. She further complained the court improperly inferred that the road was

well-traveled at the time of the accident and that she was aware of that fact. After the

hearing, the court entered a written order sustaining in part and overruling in part Ms.

Lente’s objections. The court issued an amended decision to reflect slight modifications

or deletions to four statements. The sentence remained the same. Ms. Lente appealed.

II. DISCUSSION

Ms. Lente argues that the district court imposed a procedurally and substantively

unreasonable sentence. We review the district court’s sentencing decision under an abuse

of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Our review

proceeds in two steps. First, we must “ensure that the district court committed no

significant procedural error.” Id. If the district court’s decision is “procedurally sound,”

we move on to the second step and “consider the substantive reasonableness of the
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sentence imposed.” Id. Because we do not reach the substantive reasonableness of a

sentence if there is reversible procedural error, we will address Ms. Lente’s procedural

challenges first. See United States v. Cerno, 529 F.3d 926, 937 (10th Cir. 2008), cert.

denied 129 S. Ct. 1905 (2009) (“Only if the district court follows sound procedure may

we then consider whether the resulting sentence is reasonable in substance.”); id. at 940

(“[B]ecause [defendant] must be sentenced anew, we do not reach his challenge to the

substantive reasonableness of his present sentence.”).

In general, a procedural challenge relates to the “method by which the sentence is

calculated.” United States v. Wittig, 528 F.3d 1280, 1284 (10th Cir. 2008), cert. denied,

129 S. Ct. 1985 (2009). The Supreme Court has identified the following procedural

errors: “failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, [and] selecting a

sentence based on clearly erroneous facts.” Gall, 552 U.S. at 51. A procedural challenge

is also proper when the district court has “fail[ed] to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.” Id.

“[A] major departure should be supported by a more significant justification than a minor

one.” Id. at 50. A substantive challenge concerns the reasonableness of the sentence’s

length and focuses on the district court’s consideration of the § 3553(a) factors and the

sufficiency of the justifications used to support the sentence. See Wittig, 528 F.3d at

1284-85.

A. Identifying Procedural Challenges
-16-
 With this framework in mind, we turn to what Ms. Lente argues are procedural

errors: (1) increasing her sentence based on features of SR 47; (2) increasing her

sentence because the offense was unusually reckless, and failing to address circumstances

of the accident that mitigated the level of her recklessness; (3) increasing the sentence

because three people died; (4) failing to address the impact of Ms. Lente’s disadvantaged

background on her criminal history and failing to explain how her history bore the weight

of the variance; (5) failing to address the disparity between the court’s sentence and those

of similar offenses and offenders; (6) failing to explain the court’s rejection of

uncontradicted evidence of Ms. Lente’s positive potential for rehabilitation.

Although Ms. Lente characterizes all of these issues as affecting the procedural

reasonableness of her sentence, some of them are actually substantive reasonableness

challenges. Our preliminary task is to identify the procedural challenges.

(1) Ms. Lente argues that the district court violated her procedural due process

rights by “basing its sentence on irrelevant facts and unproven assumptions that on the

night and place of the accident, the road was busy and [she] knew it was, and by not

allowing her to challenge meaningfully the bases for the court’s assumptions.” Aplt. Br.

at 23. This is a proper procedural argument because it challenges the district court’s

method of fact-finding on a fact that it used to increase her sentence.

(2) Ms. Lente argues that the court erred by (a) increasing her sentence based on

her “extraordinary recklessness” due to her high BAC of .21 and her driving without a

license and (b) failing to address her argument that the circumstances leading to the
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accident mitigated against a finding of extraordinary recklessness. The second part is a

proper procedural challenge to the court’s failure to adequately explain her sentence by

not addressing her material, non-frivolous argument. See United States v. Pinson, 542

F.3d 822, 833-834 (10th Cir. 2008).

The first part of her argument, however, challenges the substantive reasonableness

of her sentence. Although she argues it is procedural error to rely on an irrelevant factor,

her BAC and lack of a driver’s license are not irrelevant factors and concern the

circumstances of her offense. See 18 U.S.C. § 3553(a)(1). Her true objection is to the

weight that the court placed on these factors to support its “extraordinary recklessness”

determination. A challenge to the sufficiency of the justifications for the sentence is a

substantive reasonableness challenge. See Wittig, 528 F.3d at 1284-85.

(3) Ms. Lente argues that the district court erred in increasing her sentence because

three people died. She contends it was procedural error for the court to give inadequate

explanation of its policy disagreement with the Guidelines. Although the absence of

explanation could constitute procedural error, see, e.g., United States v. Merced, 603 F.3d

203, 217-219 (3d Cir. 2010), the court did give a procedurally adequate explanation for

why it disagreed with the Guidelines. Ms. Lente’s true complaint is with the substance of

that explanation, i.e., whether the district court presented a persuasive reason for

disagreeing with the Guidelines. This challenge speaks to substantive reasonableness.

(4) Ms. Lente argues that the district court failed to address the impact of her

disadvantaged background on her criminal history. But she admits that the district court
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summarized Dr. Rapoport’s testimony about her upbringing, and that the court concluded

her abusive background did not support mitigating her sentence. See Aplt. Br. at 35

(citing R. Vol. 1 at 434-35; id. at 440 n.5). The court’s statement that “the testimony of

Dr. Rapoport . . . did not give me any reason to mitigate [Ms. Lente’s] sentence,” R. Vol.

1 at 440 n.5, indicates no procedural shortcoming. Ms. Lente’s true challenge appears to

be to the district court’s balancing of her background characteristics and her criminal

history and the weight the court gave to those factors. This is a substantive, not

procedural, challenge. See, e.g., Pinson, 542 F.3d at 835-36 (“[T]he weight the district

court places on certain factors is reviewed for substantive unreasonableness.”).

(5) Ms. Lente asserts that the district court failed to address her § 3553(a)(6)

argument about the disparity between her sentence and those of similar offenses and

offenders. This is a proper procedural challenge that we will address at some length

below.

(6) Ms. Lente argues that the district court failed to explain its rejection of

uncontradicted evidence of her potential for rehabilitation, citing to testimony from

Dr. Rapoport that, in his opinion, her depression could be successfully treated through

medication.

The court gave somewhat inconsistent statements about Dr. Rapoport’s testimony.

Compare R. Vol. 1 at 440 n.5 (acknowledging Dr. Rapoport’s opinion that Ms. Lente

could be treated successfully and stating that the court had “no reason to doubt

Dr. Rapoport’s assessment”) with id. (stating that the court had “no credible evidence
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suggesting that Lente is particularly amenable to treatment”). But the court adequately

explained that Dr. Rapoport’s assessment that Ms. Lente’s “depression (and, accordingly,

her alcoholism) could be treated successfully” did not “lessen[] [her] culpability for her

crimes nor does it detract from the horrific nature of her crimes.” Id. And the district

court acted consistently with Dr. Rapoport’s assessment by recommending Ms. Lente for

mental health treatment. See id. (“[G]iven Dr. Rapoport’s assessment, I have

recommended to the Bureau of Prisons that [Ms.] Lente undergo mental health treatment

while she serves her sentence.”).

There is no procedural issue here. Rather, Ms. Lente’s true complaint is that the

district court should have given more weight to her amenability to treatment when

considering § 3553(a)(2). See Aplt. Br. at 39. But that argument speaks to the

substantive reasonableness of her sentence, not to procedural error.

B. Procedural Error Analysis

The Supreme Court has instructed appellate courts to “ensure that the district court

committed no significant procedural error.” Gall, 552 U.S. at 51. Having sorted through

Ms. Lente’s arguments, we are left with three procedural challenges: improper fact-

finding about SR 47, failure to address mitigating circumstances on recklessness, and

failure to address the need to avoid unwarranted sentencing disparities. We address them

in order of significance.

1. Failure to address the § 3553(a)(6) sentencing-disparity argument

Ms. Lente argues the district court committed procedural error when it failed to
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address her argument that the government’s proposed variant sentence of 18 years would

create unwarranted sentencing disparities with sentences of similar offenses and

offenders. This was Ms. Lente’s main argument for a within-Guidelines sentence. The

parties devoted substantial briefing and oral argument to this issue before the district

court. See, e.g. R. Vol. 1 at 131-132, 138, 141, 151-56 (Ms. Lente’s Objections to the

PSR); id. at 213-214 (Government’s Memorandum in Response to the PSR); id. Vol. 3 at

91-94, 202, 207-210 (Government’s argument at sentencing hearing); id. at 168, 172-73,

191-93, 211 (Ms. Lente’s argument at sentencing hearing); id. Vol. 1 at 351-52, 358, 362

(Ms. Lente’s Sentencing Objections).

Ms. Lente submitted Sentencing Commission data to the district court on

manslaughter sentences from 2001 to 2009. The data aggregate sentences for both

involuntary and voluntary manslaughter, so the sentences themselves are probably higher

than they would be if only involuntary manslaughter were the data set. To put

Ms. Lente’s sentence in context, the year with the highest median percentage increase

over the maximum end of the Guidelines range was 2004 at 68.6 percent. Ms. Lente’s

sentence was 237 percent above the end of the range. The year with the highest median

number of months above the maximum end of the range was 2009 at 49.05 months. Ms.

Lente’s sentence was 135 months above the end of the range. The highest average

sentence was 65.8 months in 2009. Ms. Lente’s sentence was 192 months.

The data on manslaughter non-departure upward-variance sentences after Booker

from 2005 to 2009 add further perspective. The average portion of such cases per year
-21-
was eight percent. The average median percentage increase was 43.1 percent (237

percent for Ms. Lente). The average median number of additional months was 24 (135

for Ms. Lente). Over the past five years, an upward variance that exceeded 43 percent

occurred in only four percent of all manslaughter cases, and an increase of over 24

months above the Guidelines occurred in only four percent of such cases.

In addition, Ms. Lente presented to the district court comparative involuntary

manslaughter cases and argued that the defendants in these cases with more serious

criminal histories received much lower sentences than Ms. Lente received in her first

sentencing. See United States v. Pettigrew, 468 F.3d 626 (10th Cir. 2006) (126 months

for involuntary manslaughter, two assaults causing serious injury, and misdemeanor

assault from DUI accident; criminal history included second degree murder); United

States v. Jones, 332 F.3d 1294 (10th Cir. 2003) (71 months for three counts of

involuntary manslaughter from DUI accident; criminal history included five prior DUI

convictions); United States v. Whiteskunk, 162 F.3d. 1244 (10th Cir. 1998) (24 months

for involuntary manslaughter; criminal history included prior DUI).

Ms. Lente also cited to United States v. Wolfe, 435 F.3d 1289, 1294 (10th Cir.

2006), as a comparable case where the defendant was convicted of two counts of

involuntary manslaughter from a DUI accident, and, like Ms. Lente, had no criminal

history points. In Wolfe, the district court initially departed upward and imposed a

41-month sentence. We reversed and remanded for resentencing because “the district

court departed upward to an extraordinary degree without sufficient explanation.” See id.
-22-
at 1305. The defendant in Wolfe was sentenced to 20 months on resentencing. See

United States v. Wolfe, D. N.M. Case No. 03-cr-02056, R. Doc. 36 (Judgment entered

April 5, 2006).

Finally, Ms. Lente presented cases from outside the circuit to demonstrate that the

variance recommended by the PSR and the government was “far afield” of the

punishment for similar offenses and offenders. R. Vol. 1 at 153-154. For example, she

cited to United States v. Kathman, 490 F.3d 520, 521-22 (6th Cir. 2007), where a

twenty-two year-old first offender killed two people in a DUI accident. The Sixth Circuit

affirmed a sentence of 20 months for two counts of DUI involuntary manslaughter, which

was a downward departure from the proposed Guidelines range of 41 to 51 months. Id. at

526.

The government presented counterarguments to a few of these cases and

responded with one case of its own, an unpublished decision from the Western District of

Oklahoma, United States v. Leonard, W.D. Okla. Case No. 03-cr-203, R. Doc. 118

(Judgment entered October 26, 2004). The government argued that this case, which it

characterized as a “pre-Booker” case, demonstrated the problem with considering

pre-Booker sentencing cases for comparative purposes. See R. Vol. 3 at 92-93. The

government explained that in Leonard the court imposed an 87-month sentence for two

counts of involuntary manslaughter and one count of serious bodily injury from a DUI

accident, but the court also indicated in the alternative that it would impose a 120-month

sentence if the Guidelines were determined to be unconstitutional. See id.
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 We do not attempt to resolve which side had stronger comparative case examples

or arguments. That is for the district court to resolve in the first instance and for this

court to consider on substantive reasonableness review. The point here is to show that

Ms. Lente presented to the district court a material, non-frivolous argument based on

sentencing data and comparative cases on the need to avoid unwarranted sentencing

disparities. The district court did not mention any of these cases or the sentencing data,

and it did not address this sentencing factor after Ms. Lente devoted much of her briefing

and argument to this issue.

Even if Ms. Lente had not raised a specific argument on the sentencing-disparity

issue, a sentencing court must consider the seven § 3553(a) factors, see Gall, 552 U.S. at

49-50, and “[o]ne factor that a district court must consider in imposing an appropriate

sentence is ‘the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct . . . .’” United States v.

Martinez, 610 F.3d 1216, 1228 (10th Cir.), cert. denied, 131 S. Ct. 543 (2010) (quoting

18 U.S.C. § 3553(a)(6)). Although the district court stated at the sentencing hearing that

it took “into account extensively the sentencing factors of 18 U.S.C. 3553(a)(1) through

(7),” R. Vol. 3 at 223, and stated in its sentencing decision that it “carefully consider[ed]

all the statutory factors set forth in 18 U.S.C. § 3553(a),” R. Vol. 1 at 440, there is no

express mention of § 3553(a)(6) or any discussion of the apparent disparity between Ms.

Lente’s sentence and the sentences of other offenders, especially similar offenders.

The government acknowledges that the district court did not “expressly consider
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18 U.S.C. § 3553(a)(6) and its directive that sentences avoid unwarranted sentence

disparities,” Aplee Br. at 49, but contends that this does not constitute procedural error

because the court was not required to expressly consider this or any other factor on the

record, see id. at 49-52. We disagree.

The government relies primarily on United States v. Ruiz-Terrazas, 477 F.3d 1196

(10th Cir. 2007), and United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir.

2008). Both, however, were appeals of within-Guidelines sentences after the defendants

had requested a below-Guidelines sentence. See Martinez-Barragan, 545 F.3d at 898,

902; Ruiz-Terrazas, 477 F.3d at 1198. When a district court imposes a within-Guidelines

sentence, “the court must provide only a general statement of its reasons, and need not

explicitly refer to either the § 3553(a) factors or respond to every argument for leniency

that it rejects in arriving at a reasonable sentence.” Martinez-Barragan, 545 F.3d at 903

(quotation and citation omitted). This precedent is inapplicable here because Ms. Lente’s

sentence is 135 months above the applicable Guidelines range.

We have explained that, “[u]nder 18 U.S.C. § 3553(a), the court must state . . . the

reasons for its imposition of the particular sentence, and, if the sentence is . . . outside the

[guidelines] range, . . . 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.” United States v. Pinson, 542 F.3d 822, 833 (10th Cir. 2008)

(quotations omitted). We further instructed that “[t]he court must also address, in its

statement of reasons, the material, non-frivolous arguments made by the defendant.” Id.;
-25-
see also United States v. Ausburn, 502 F.3d 313, 329 (3d Cir. 2007) (“[W]e have stated at

least one concrete requirement to establish that the sentencing court gave meaningful

consideration to the relevant § 3553(a) factors: the court must acknowledge and respond

to any properly presented sentencing argument which has colorable legal merit and a

factual basis.”).

Beyond the district court’s saying at the sentencing hearing and in its written

decision that it had considered all of the § 3553(a) factors, there is no further indication

that the district court considered Ms. Lente’s material, non-frivolous § 3553(a)(6)

sentencing-disparity argument, which she supported with sentencing data and case

examples. Our precedent does not allow us to presume that it did so. See Pinson, 542

F.3d at 833 (“The district court is not required to recite any magic words to demonstrate

that it has considered all of the relevant arguments, but we will not presume the district

court weighed a party’s arguments in light of the 3553(a) factors where the record

provides no indication that it did so.” (quotations omitted)); see also United States v.

Harris, 567 F.3d 846, 854 (7th Cir.), cert. denied, 130 S. Ct. 1032 (2009) (“[W]hen a

court has passed over in silence the principal argument made by the defendant even

though the argument is not so weak as not to merit discussion, we do not have the

assurance we need to satisfy ourselves that the defendant’s individual circumstances have

been thoroughly considered.” (quotation omitted)).

For us to conduct “meaningful appellate review,” of the district court’s significant

upward-variant sentence, the district court must expressly consider § 3553(a)(6) and
-26-
address Ms. Lente’s argument that her sentence would create unwarranted sentencing

disparities. See Gall, 552 U.S. at 50; Rita v. United States, 551 U.S. 338, 356 (2007)

(“The sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.”); see also United States v. Merced, 603 F.3d 203, 215 (3d Cir.

2010) (“[I]t is not enough for the district court to carefully analyze the sentencing factors.

A separate and equally important procedural requirement is demonstrating that it has

done so.”).

Because the district court failed to address Ms. Lente’s material, non-frivolous

§ 3553(a)(6) sentencing-disparity argument, we conclude that the court committed

procedural error.9 See Pinson, 542 F.3d at 833 (“The court must also address, in its

9
Our conclusion is consistent with United States v. Merced, 603 F.3d 203, 213,
216 (3d Cir. 2010). In Merced, the district court granted a significant downward
variance. The government argued on appeal that the district court committed procedural
error by ignoring the government’s § 3553(a)(6) sentencing-disparity argument. The
Third Circuit agreed, explaining that “[o]ne factor the court must consider is the need to
avoid unwarranted sentencing disparities,” and that the court’s “failure to do so in the
face of a colorable argument that an outside-the-Guidelines sentence will create a risk of
such disparities constitutes procedural error.” Merced, 603 F.3d at 222 (quotation
omitted). The court noted further that “[t]his is especially true if the sentence falls
outside of the Guidelines, or where . . . a party specifically raises a concern about
disparities with the district court and that argument is ignored.” Id. at 224. The decision
explained that “the government voiced unmistakable concern that granting [defendant] a
significant variance could create unwarranted sentencing disparities.” Id. Because the
government raised a colorable legal argument with a factual basis in the record, “the
District Court should have addressed it as part of its meaningful consideration of the
sentencing factors.” Id. The court ultimately concluded that “[b]efore the District Court
granted such a large variance [(128 months from similarly situated offenders)], it should
Continued . . .
-27-
statement of reasons, the material, non-frivolous arguments made by the defendant.”).

2. Failure to address mitigating circumstances

Ms. Lente argues that the district court erred when it failed to address her

argument that the circumstances leading up to the accident mitigated against a finding

that she was acting with more than normal recklessness. She introduced undisputed

evidence about pre-accident developments, including that her mother gave her the keys to

her mother’s car and told her to drive Mr. Tewahaftewa home because he was drunk and

acting inappropriately. She argued these circumstances mitigated against a finding that

she acted with excessive recklessness. See R. Vol. 1 at 132-133 (Objections to the PSR);

id. Vol. 3 at 190-191 (Sentencing hearing), id. Vol. 1 at 362 (Objections to the

Sentencing Decision).

The district court identified three aggravating factors to support a finding of

“extraordinary recklessness.” But it did not address Ms. Lente’s undisputed evidence

about Mr. Tewahaftewa’s drunken behavior just before the accident, her mother’s and

Ms. Jojola’s attempts to convince Mr. Tewahaftewa to leave Ms. Jojola’s home on his

own, Ms. Jojola’s asking his sister to come get him, and Ms. Lente’s mother’s decision to

give Ms. Lente the keys to her car and tell Ms. Lente to drive him home.

The government argues that the district court was not required to “to respond to

have explained why that variance would not contribute to unwarranted sentencing
disparities pursuant to § 3553(a)(6),” and “[i]ts failure to do so was procedural error.” Id.
at 225.

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every argument for leniency that it reject[ed] in arriving at a reasonable sentence.”

Aplee. Br. at 44 (quoting Martinez-Barragan, 545 F.3d at 898). The government’s

reliance on Martinez-Barragan is again misplaced because the defendant there was

arguing for a downward variance from a within-Guidelines sentence. As we explained in

Pinson, when a court imposes a sentence outside of the Guidelines range, it must address

the material, non-frivolous arguments made by the defendant. 542 F.3d at 833.

Ms. Lente’s contention that the circumstances immediately preceding the crash mitigated

against a finding that she was acting with excessive recklessness is a material,

non-frivolous argument in response to the PSR and government’s recommendation for a

significant upward-variant sentence.

The government also contends that the district court’s “written opinion

demonstrates that the court carefully considered Lente’s mitigation argument” because

“the court explained that two years of Lente’s sentence for count 3 would run concurrent

because Mr. Tewahaftewa, unlike Lente’s other victims, engaged in risky behavior.”

Aplee Br. at 44. But this part of the district court’s decision did not respond to Ms.

Lente’s mitigating-circumstances argument about her behavior leading up to the accident.

It was based instead on the district court’s conclusion that Mr. Tewahaftewa engaged in

risky behavior by choosing to ride with Ms. Lente after he had consumed alcohol with

her, as compared to the other victims who “just happened to be at the wrong place at the

wrong time.” R. Vol. 1 at 446 n.9. The district court’s decision did not address

Ms. Lente’s argument that her mother influenced her decision to drive by giving her the
-29-
keys to her car and instructing her to drive Mr. Tewahaftewa home. This fact mitigated

against a finding that Ms. Lente was acting with excessive recklessness.

When it imposed a 135-month upward variance based in part on Ms. Lente’s

excessive recklessness, the district court should have addressed Ms. Lente’s

mitigating-circumstances argument. Cf. United States v. Vrdolyak, 593 F.3d 676, 682

(7th Cir.), cert. denied, 131 S. Ct. 200 (2010) (concluding that district court erred in

granting a downward variance when it gave “without adequate articulated consideration,

enormous weight to letters urging leniency for the defendant, while virtually ignoring the

evidence that tugged the other way.”). The court’s failure to do so constitutes procedural

error.

3. State Road 47

The district court took judicial notice of SR 47’s location and characteristics to

infer that a longtime local resident such as Ms. Lente would know it is a “well-traveled

road.” R. Vol. 1 at 445. The court relied on this inference to support its finding that Ms.

Lente was excessively reckless when she drove on SR 47 after a day of heavy drinking.

Id. Ms. Lente complains that the court made assumptions about traffic conditions on SR

47 at the specific time and place of the accident and that she was not provided sufficient

notice or opportunity to be heard on this issue.

The court did not, as Ms. Lente suggests, do anything more than find SR 47 to be a

well-traveled road and that Ms. Lente knew it to be so. These findings combined with a

drunk driver’s choosing to drive on SR 47 are relevant to recklessness and relate to the
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nature and circumstances of the offense. See § 3553(a)(1). Although more specific

information about traffic congestion at the time and place of the accident may have been

more probative, we find no procedural error in the court’s considering the general nature

of the road in its recklessness analysis. If Ms. Lente objects to the weight of this factor in

determining recklessness, that is a substantive reasonableness argument, which we do not

address here.

As for Ms. Lente’s procedural due process argument, although she received late

notice about the SR 47 issue, the court afforded her a hearing on this subject. We do not

discern a significant procedural error. Even if we did, we do not think its correction

would have affected the sentence, and it is therefore harmless. We turn next to harmless

error on the other procedural matters.

C. Harmless Error Analysis

The government asserts that, even if the district court committed procedural error,

any such error was harmless. “Harmlessness must be proven by a preponderance of the

evidence, and the burden of making this showing falls on the beneficiary of the error—in

this case, the government.” Cerno, 529 F.3d at 939. A harmless error “is that which did

not affect the district court’s selection of the sentence imposed.” United States v.

Kaufman, 546 F.3d 1242, 1270 (10th Cir. 2008), cert. denied, 130 S. Ct. 1013 (2009).

The government states that “[t]he record makes clear that the court carefully

considered 18 U.S.C. 3553(a)’s sentencing factors and believed they warranted a

significant upward variance.” Aplee. Br. at 52 (citing R. Vol. 1 at 440; id. Vol. 3 at
-31-
223).10 The government contends that “[r]emanding the case to the district court for

further elaboration on why the court concluded sixteen years was warranted is highly

unlikely to change the result.” Aplee. Br. at 52.

Although the procedural error regarding the district court’s failure to address

Ms. Lente’s mitigating-circumstances argument may have been harmless, we cannot

reach that conclusion about the district court’s failure to address Ms. Lente’s § 3553(a)(6)

sentencing-disparity argument. We conclude that this error requires reversal for two

reasons.

First, the district court’s express consideration of Ms. Lente’s § 3553(a)(6)

sentencing-disparity argument might have convinced the court to reach a different

sentence. See United States v. Lynn, 592 F.3d 572, 582 (4th Cir. 2010) (concluding that

procedural failure to adequately explain sentence was not harmless error because “the

district court’s explicit consideration of [defendant’s] arguments for a lower sentence

might have convinced the court to impose such a sentence”). The government bears the

burden to show that the error did not affect the sentence. Its argument consists of

assertions that the district court considered the § 3553(a) factors and that a different

sentence on remand is “highly unlikely.” That is not enough.

Second, the district court’s failure to address this significant, material, and

10
These record citations are to the court’s statements that it “carefully consider[ed]
all the statutory factors set forth in 18 U.S.C. 3553(a),” R. Vol. 1 at 440, and had “taken
into account extensively the sentencing factors of 18 U.S.C. 3553(a)(1) through (7),” id.
Vol. 3 at 223.

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non-friviolous argument prevents us from conducting meaningful appellate review of the

substantive reasonableness of the sentence. See Gall, 552 U.S. at 50 (explaining that

district court “must adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair sentencing”); Rita, 551 U.S. at 356

(“The sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.”); Merced, 603 F.3d at 225 (reversing for procedural error for

failing to address § 3553(a)(6) argument and explaining that insistence that sentencing

courts follow the requisite procedures allows the court to fulfill its important role of

exercising effective appellate oversight).

Ms. Lente and the government devoted extensive briefing and oral argument to the

unwarranted disparity issue. They no doubt decided it was incumbent on them to do so in

view of § 3553(a)(6) and the significantly variant sentence proposed in the PSR and

imposed in the first sentencing proceeding. Ms. Lente marshaled sentencing data and

comparative case sentencing decisions for the court’s consideration. Whether or not the

court considered Ms. Lente’s arguments, its opinion’s avoidance of a response to them

leaves us without understanding the role of a critical sentencing factor in shaping the

sentence in this case. Perhaps the government is right that the district court will reach the

same outcome after it fills in this gap, but the government has not convinced us by a

preponderance. We cannot fulfill our appellate role, however deferential, in assessing the

substantive reasonableness of the sentence without the gap having been filled. See
-33-
United States v. Pena-Hermosillo, 522 F.3d 1108, 1116 (10th Cir. 2008) (reversing for

procedural error for failure to adequately explain a sentence because it was not clear from

the record why the district court denied an enhancement); Cerno, 529 F.3d at 937 (“Only

if the district court follows sound procedure may we then consider whether the resulting

sentence is reasonable in substance.”); see also United States v. Gapinski, 561 F.3d 467,

469 (6th Cir. 2009) (reversing sentence as procedurally unreasonable because “the record

[did] not show that the district court considered and explained its reasons for rejecting

[defendant’s] non-frivolous argument for a lower sentence”).

The need to avoid unwarranted disparities is a critical sentencing factor. Equal

justice is a core goal of our constitutional system. We require courts to justify sentences

to meet that goal. When justification is not forthcoming, the credibility of the sentence

suffers. Whether the sentence is five years, ten years, or sixteen years, we insist on the

procedural safeguard of explanation to assure us that justice has been done. We make no

judgment about the proper length of Ms. Lente’s sentence. We remand for proper

procedural foundation.

III. CONCLUSION

For the foregoing reasons, we conclude that Ms. Lente’s sentence is procedurally

unreasonable. Accordingly, we REVERSE and REMAND for resentencing consistent

with this opinion.

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