United States v. Mix

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10088
Plaintiff-Appellee, D.C. No.
v. CR-00-01163-PGR
TONY MIX,  ORDER
Defendant-Appellant. AMENDING
OPINION AND
AMENDED
 OPINION

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding

Submitted February 16, 2006*
San Francisco, California

Filed March 30, 2006
Amended Opinion Filed June 8, 2006

Before: Arthur L. Alarcón and M. Margaret McKeown,
Circuit Judges, and H. Russel Holland,**
Senior District Judge.

Opinion by Judge Alarcón

*The panel unanimously finds this case suitable for submission on the
record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth
Circuit Rule 34-4.
**The Honorable H. Russel Holland, Senior United States District
Judge for the District of Alaska, sitting by designation.

6355
6358 UNITED STATES v. MIX

COUNSEL

Tonya J. McMath, Phoenix, Arizona, for the defendant-
appellant.

Linda C. Boone, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.

ORDER

We hereby recall the mandate. The court’s opinion, filed
March 30, 2006, is amended as follows:

Footnote 2 at slip op. 3586 that reads:
 UNITED STATES v. MIX 6359
Pursuant to 18 U.S.C. § 3742(f)(1), guideline
sentences are reviewed for violations of law and
incorrect application of the Guidelines, not reason-
ableness. Pursuant to § 3742(f)(2), departures from
the Guidelines are reviewed in several respects,
including reasonableness.

is deleted.

At slip op. 3587 in the last sentence of the first full para-
graph insert “departure or impose a sentence based on a
guideline departure” after “There was no guideline calculation
error because the district court did not calculate a guideline
range including a § 5K2.21” and before the “.”

With these amendments, mandate shall issue forthwith.

OPINION

ALARCÓN, Circuit Judge:

Tony Mix was convicted of two counts of kidnaping, five
counts of aggravated sexual abuse, and two counts of assault
with a deadly weapon committed within the confines of the
Navajo Indian Reservation. He appeals from the district
court’s sentencing decision. He contends that the imposition
of a life sentence was unreasonable and inconsistent with the
requirements of 18 U.S.C. § 3553(a). He also maintains that
the district court’s application of the Supreme Court’s deci-
sion in United States v. Booker, 543 U.S. 220 (2005), in its
sentencing decision violated his rights under the Fifth and
Sixth Amendments of the United States Constitution.

We affirm because the sentence imposed by the district
court was reasonable. We also hold that the district court’s
application of Booker to its sentencing decision did not vio-
6360 UNITED STATES v. MIX
late Mr. Mix’s rights under the Due Process clause of the
Fifth Amendment, nor did the district court violate the Sixth
Amendment in failing to submit sentence enhancing factors to
the jury.

I

A

The evidence presented by the prosecution at trial demon-
strated that Mr. Mix committed numerous violent acts of sex-
ual and physical assault against his live-in companion
between 1998 and 2000. She was too frightened to report him
to the police until October 30, 2000. Her physical injuries on
that date were so severe that her examining physician testified
that she had never seen so much trauma to a sexual assault
victim who had survived. The physician was so distressed by
the severity of the victim’s injuries that she had to leave the
room to cry and compose herself before she could administer
medical treatment. Two other women testified that they had
been physically and sexually abused by Mr. Mix during their
relationship with him. During the sentencing proceedings, the
district court commented that Mr. Mix’s violent acts against
women were “perhaps one of the most brutal, if not the most
brutal, set of circumstances that the [district] Court has had
the misfortune to preside over.”

The jury found Mr. Mix guilty of each crime alleged in the
indictment. The district court adopted the recommendations
set forth in the presentence report (“PSR”). The court
departed upward pursuant to U.S.S.G. § 5K2.3 for extreme
psychological injury, § 5K2.8 for extreme conduct, § 5K2.21
for uncharged conduct. The court denied Mr. Mix’s request
for a downward departure.

Mr. Mix was sentenced to life imprisonment for commit-
ting Kidnaping, as charged in Counts One and Nine, and
Aggravated Sexual Abuse, as charged in Counts Two, Three,
 UNITED STATES v. MIX 6361
Four, Five and Six. He was sentenced to serve one hundred
and twenty months for committing Assault with a Dangerous
Weapon, as charged in Counts Seven and Eight to be served
consecutive to each other and concurrent to the sentences
imposed on Counts One through Six and Count Nine.

Mr. Mix filed a timely appeal from the judgment and con-
viction on March 14, 2002. In an unpublished opinion issued
before the Supreme Court’s decision in Booker, we affirmed
the judgment of conviction, but reversed the sentence in part,
and remanded for resentencing. United States v. Mix, 77 Fed.
Appx. 986, 990 (9th Cir. 2003). We held that the district court
erred in departing upward for uncharged conduct pursuant to
§ 5K2.21 because that sentencing guideline did not become
effective until November 1, 2000, one day after Mr. Mix’s
last charged offenses. Id.

B

On remand, the district court postponed resentencing until
after the publication of Booker; and, in consideration of
Booker, the district court again imposed concurrent life sen-
tences as to Counts One through Six and Nine and consecu-
tive 120-month sentences as to Counts Seven and Eight, the
latter sentences to run concurrent with the life sentences.
Before resentencing Mr. Mix, the court heard lengthy argu-
ments from counsel, and heard Mr. Mix’s allocution. The dis-
trict court adopted the presentence report “in all respects,
factually, and legally, and insofar as the guideline computa-
tions are concerned except as will be further addressed by this
court.” The district court then recited at length the grisly cir-
cumstances of Mr. Mix’s offenses, including his long history
of violence toward women. Turning to legal considerations,
the court observed that “Apprendi . . . has no application to
this case.” However, the district court said, “[t]he Booker
decision in its majority [decision] issued by Justice Breyer
clearly applies to this case.”
6362 UNITED STATES v. MIX
Having discussed both the facts of the case and the law
applicable to it, the district court turned to the application of
Sentencing Commission Guidelines and 18 U.S.C. § 3553(a)
sentencing factors. In the discussion that followed, the district
court expressly touched upon § 3553(a)(1) and (2) factors:
nature of the offense, history and characteristics of the defen-
dant, the promotion of respect for law, just punishment for
offenses, deterrence, and protection of the public.1

At the end of its discussion of § 3553(a) sentencing factors,
the district court briefly returned to the matter of a guideline
sentence calculation, which had been adopted from the pre-
sentence report. As it had done in the first sentencing of Mr.
Mix, the district court made express mention of an upward
departure for extreme conduct, U.S.S.G. § 5K2.8, and for
extreme psychological injury, U.S.S.G. § 5K2.3. Also, but
without express reference to U.S.S.G. § 5K2.21, the applica-
tion of which had occasioned the remand of the case for
resentencing, the district court observed that it had previously
imposed an upward departure on the basis of that guideline
and that “in view of the Booker decision, it is not unreason-
able for this Court to conclude that any guideline that is effec-
tive at the date of sentencing would be appropriate for the
Court to consider as an advisory nature. I see no ex post facto
issues . . . .” The district court ended its presentence discus-
sion with the conclusion that

the use of the term “departures” is no longer relevant
and/or appropriate. But the Court concludes that the
guidelines do not sufficiently provide for the hei-
nous, brutal, continued nature upon the victims in
this case and it is going to consider a variance to the
degree necessary in imposing the following sen-
tences.
1
In consideration of the sentencing factors just discussed, the court
observed that the educational or vocational needs of the defendant were
in this instance “subservient” to the other requirements of § 3553(a).
 UNITED STATES v. MIX 6363
With the foregoing explanations, the court imposed a life
sentence. Mr. Mix filed a timely notice of appeal of the sen-
tence imposed upon remand. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II

Mr. Mix seeks reversal of the district court’s sentencing
decision on discrete grounds. He argues that the life imprison-
ment sentence imposed by the district court is unreasonable
because it erroneously applied § 5K2.21 as the basis for an
upward departure and failed to consider mitigating sentencing
factors pursuant to 18 U.S.C. § 3553(a)(1). He also maintains
that the district court’s application of the Booker decision in
resentencing him violated his Fifth Amendment right to due
process and his Sixth Amendment right to have a jury make
findings regarding facts that would support an upward depar-
ture.

A

[1] In United States v. Cantrell, 433 F.3d 1269, 1279-81
(9th Cir. 2006), we adopted a two-step procedure for review-
ing sentences imposed following the date the Supreme Court
issued its opinion in Booker. We held that district courts are
not mandated to sentence within an applicable guideline range
because the Sentencing Guidelines are advisory—not manda-
tory. Id. at 1279 (citing Booker, 543 U.S. at 259-60). District
courts, however “ ‘must consult [the] Guidelines and take
them into account when sentencing,’ even though they now
have the discretion to impose non-Guidelines sentences.” Id.
(quoting Booker, 543 U.S. at 264). This consultation require-
ment from Booker means that a district court must calculate
correctly the sentencing range prescribed by the Guidelines.
“In other words, as was the case before Booker, the district
court must calculate the Guidelines range accurately. A misin-
terpretation of the Guidelines by a district court ‘effectively
means that [the district court] has not properly consulted the
6364 UNITED STATES v. MIX
Guidelines.’ ” Id. at 1280 (quoting United States v. Crawford,
407 F.3d 1174, 1178-79 (11th Cir. 2005)). In addition, a dis-
trict court must apply the factors enumerated in 18 U.S.C.
§ 3553(a) in its sentencing decision. Id. at 1279-80.

[2] In order to calculate the applicable Guidelines range for
a case, a sentencing court must first determine which Guide-
lines apply to the case. U.S.S.G. § 1B1.11 addresses this sub-
ject, and begins with the general proposition that a court will
use the Guidelines Manual in effect on the date of sentencing.
However, U.S.S.G. § 1B1.11(b)(1) provides:

If the court determines that the use of the Guidelines
Manual in effect on the date that the defendant is
sentenced would violate the ex post facto clause of
the United States Constitution, the court shall use the
Guidelines Manual in effect on the date that the
offense of conviction was committed.

After Booker, the departure Guidelines (U.S.S.G. § 5K1
and § 5K2) remain operative. An accurate guideline range cal-
culation may still properly require consideration and correct
application of the departure Guidelines. In an appeal from a
sentencing decision, we must first determine whether the dis-
trict court properly considered the applicable Sentencing
Guidelines. Cantrell, 433 F.3d at 1279-81. If the district court
incorrectly construed the Sentencing Guidelines, we must
vacate the sentence and remand for resentencing. Id. at 1280.
We review a district court’s interpretation of the Sentencing
Guidelines de novo. We review the application of the Sen-
tencing Guidelines to the facts of the case for abuse of discre-
tion and factual findings for clear error. United States v.
Smith, 424 U.S. 992, 1015 (9th Cir. 2005). If we conclude that
the district court did not err in applying the Sentencing Guide-
lines, we review the sentence for reasonableness in light of
the factors set forth in 18 U.S.C. § 3553(a). Cantrell, 433 F.3d
at 1280.
 UNITED STATES v. MIX 6365
The first issue Mr. Mix has raised in this appeal is whether
the sentence was reasonable. We conclude that it was.

B

[3] On resentencing Mr. Mix, the district court adopted the
guideline analysis of the presentence report and made it clear
that, while it believed that it might consider U.S.S.G.
§ 5K2.21, it did not do so. As reflected by the court’s long
exposition of what took place in sentencing Mr. Mix, it is
abundantly clear that the district court imposed a sentence
outside of the Guidelines based upon consideration of
§ 3553(a) factors that the district court believed had not been
adequately taken account of by the Guidelines calculation.
The district court’s statement that use of the term “departure”
was not relevant or appropriate in this case clearly signaled
that the court was not imposing a guideline sentence. Having
considered the applicable Guidelines range based upon the
presentence report, the district court expressly stated that in
Mr. Mix’s case, “the guidelines do not sufficiently provide for
the heinous, brutal, continued nature [of violence] upon the
victims in this case and it is going to consider a variance to
the degree necessary to impose the following sentences.”

[4] We conclude that the district court properly considered
the applicable Guidelines because it determined not to effect
an upward departure based on U.S.S.G. § 5K2.21. Mr. Mix
argues that the life sentence imposed by the district court is
unreasonable because it erroneously applied § 5K2.21 as the
basis for an upward departure. This argument conflates guide-
line sentencing review with post-Booker sentencing review.
As set out above, the district court was obligated to undertake
a correct Guidelines range calculation, and under Booker, the
district court was required to take account of § 3553 sentenc-
ing factors as well. The district court did both. There was no
guideline calculation error because the district court did not
calculate a guideline range including a § 5K2.21 departure or
impose a sentence based on a guideline departure.
6366 UNITED STATES v. MIX
C

[5] As regards post-Booker sentencing, Mr. Mix contends
that the district court failed to consider the mitigating sentenc-
ing factors set forth in 18 U.S.C. § 3553(a)(1). As discussed
in considerable detail above, the district court considered at
length and in great detail the nature of Mr. Mix’s offenses.
Section 3553(a)(1) also required the district court to consider
Mr. Mix’s personal history and characteristics. That is exactly
what the court did when it considered Mr. Mix’s 17-year his-
tory of violence toward women. There is no ex post facto
problem here because § 3553(a) has been the law of the land
since 1984. The district court aptly considered other
§ 3553(a)(2) factors as well.

Mr. Mix contends that in imposing a life sentence, the dis-
trict court “ignored all the evident § 3553(a) factors which
militate in favor of leniency.” He argues that

[w]hile the sentencing court here dwelled at length
on “the nature and circumstances of the offense” and
Mix’s “history” as it relates to other uncharged con-
duct . . . , the Court failed to so much as pay lip ser-
vice to the wealth of information available to it
regarding Mix’s “history and characteristics” relat-
ing to his mental health.

Mr. Mix also maintains that the district court failed to con-
sider his “record of employment, his military contributions,
and his lack of guidance as a youth.”

[6] “Judges need not rehearse on the record all of the con-
siderations that 18 U.S.C. § 3553(a) lists; it is enough to cal-
culate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.” United
States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005). A dis-
trict court is not required to refer to each factor listed in
§ 3553(a). United States v. Simpson, 430 F.3d 1177, 1186
 UNITED STATES v. MIX 6367
(D.C. Cir. 2005); see also United States v. Ayers, 428 F.3d
312, 315 (D.C. Cir. 2005) (“[W]e ordinarily presume a district
court imposing an alternative non-Guidelines sentence took
into account all the factors listed in § 3553(a) and accorded
them appropriate significance.”). “[A] checklist recitation of
the section 3553(a) factors is neither necessary nor sufficient
for a sentence to be reasonable.” United States v. Smith, ___
F.3d ___, 2006 WL 367011, at *2 (5th Cir. Feb. 17, 2006)
(citing United States v. Dean, 414 F.3d 725, 729 (7th Cir.
2005)). Contrary to Mr. Mix’s contention and as summarized
above, the district court expressly considered the factors set
forth in § 3553(a). The record also shows that the district
court considered the expert’s reports concerning Mr. Mix’s
alleged psychological and neuropsychological impairments.
In this respect, the district court commented as follows:

Two evaluations completed on the defendant indi-
cate that the defendant was not completely truthful
in answering questions, and both evaluations con-
cluded his psychopathology was probably overrepre-
sented. And he confirms that today by his rather
articulate and extended statement to this Court
wherein he refuses to accept responsibility for his
conduct and his acts.

He is trying to portray himself as mentally ill. The
Interpretative report of the MMPI-2 stated the defen-
dant believed others have harmed him and are work-
ing against him, even though almost one year after
his attack against Tohannie—or strike that, more like
two-and-a-half years now—he is still blaming her
and probably Linda Yellowhorse and Florence Rus-
sell for his current situation.

He acknowledged losing control, but he has no
concept of the harm he caused to these women and
their children. His victims live in fear. They fear the
6368 UNITED STATES v. MIX
defendant will be released and come back to do fur-
ther harm or kill them.

[7] The facts as regards Mr. Mix’s history, characteristics,
and other § 3553(a) factors were not the subject of an eviden-
tiary hearing and have never been disputed. We conclude that
in light of Mr. Mix’s seventeen-year history of unspeakably
inhuman sexual abuse of women, and his continuing charac-
terization of his conduct as unintentional, during the sentenc-
ing proceedings, the district court’s imposition of a sentence
outside the Guidelines range was well explained by the dis-
trict court and justified the sentences imposed.

D

[8] In summary, it is both important and legally necessary
under 18 U.S.C. § 3553(a) and under Booker that the district
court conduct parallel analyses — first employing the Guide-
lines, and then considering non-guideline sentencing factors
under § 3553(a).2 In many instances, there will be no non-
Guidelines issues in sentencing; and, in those cases, review by
this court will be de novo for accuracy as regards the calcula-
tion of Guidelines ranges. In other cases, such as this one,
substantial questions may arise as to whether or not the
Guidelines adequately take account of the § 3553(a) sentenc-
ing factors. Where, as here, the district court determines that
the Guidelines do not adequately take account of § 3553(a)
sentencing factors, the district court, may, in furtherance of
Booker, impose a sentence outside and apart from the Guide-
lines. Because the scope of review differs depending upon the
sentencing methodology employed by the district court, it is
important that district courts clearly and carefully differentiate
2
We again leave open the question left open in Cantrell, 433 F.3d at
1280 n.3, “whether, and under what circumstances, district courts may
find it unnecessary to calculate the applicable Guidelines range.” We note
only that this was a case in which it was necessary for the district court
to calculate the applicable Guidelines range.
 UNITED STATES v. MIX 6369
between the findings and conclusions as regards the applica-
tion of the Guidelines, and the findings and conclusions as
regards the application of non-Guidelines factors pursuant to
18 U.S.C. § 3553(a). Here, we are able to discern the sentenc-
ing methodology that the district court ultimately applied, and
why it did so. In light of the non-Guidelines, § 3553(a)(1) and
(2) analysis performed by the district court, we conclude that
the sentence imposed on Mr. Mix was reasonable.

III

Finally, Mr. Mix contends that the district court’s applica-
tion of Booker in this matter violated his Fifth Amendment
right to due process and his Sixth Amendment right to have
a jury determine facts that increased his punishment. We
rejected similar arguments in United States v. Dupas, 419
F.3d 916, 920-21 (9th Cir. 2005). Mr. Mix argues that appli-
cation of Justice Breyer’s remedial holding in Booker, which
made the Sentencing Guidelines advisory, should not be
applied retroactively because that would violate the ex post
facto principles described in Bouie v. City of Columbia, 378
U.S. 347, 353-55 (1964).

[9] Mr. Mix’s due process argument is flawed for several
reasons. First, the Supreme Court expressly stated that both of
its holdings in Booker should be applied to cases on direct
review. 543 U.S. at 267; see also United States v. Rines, 419
F.3d 1104, 1106-07 (10th Cir. 2005) (commenting “[w]e
decline Defendant’s invitation to hold that the Supreme Court
ordered us to violate the Constitution”). Moreover, “our deci-
sion in Ameline, under which Sixth Amendment violations
can be cured by giving district courts the opportunity to resen-
tence defendants under the now-advisory Guidelines, neces-
sarily implies that appellate courts should apply both Booker
holdings retroactively.” Dupas, 419 F.3d at 920. “Fair warn-
ing . . . is the touchstone of the retroactivity analysis under the
Due Process Clause.” Id. at 921 (citing Rogers v. Tennessee,
532 U.S. 451, 462 (2001)); see also United States v. Lata, 415
6370 UNITED STATES v. MIX
F.3d 107, 110-11 (1st Cir. 2005) (commenting that “after-the-
offense enlargement of the . . . maximum sentence by judicial
construction can raise due process objections based on lack of
fair warning but only where the alteration is ‘unexpected and
indefensible’ by reference to the case law”).

[10] When Mr. Mix committed his crimes, the United
States Code informed him that the maximum sentence was
life in prison for Aggravated Sexual Abuse pursuant to 18
U.S.C. § 2241, and Kidnaping, 18 U.S.C. § 1201. See United
States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005) (holding
that Defendant had fair warning because his sentence was
within the maximum spelled out in the United States Code);
see also United States v. Duncan, 400 F.3d 1297, 1307 (11th
Cir. 2005) (commenting “at the time of Duncan’s criminal
conduct, the recognized state of the law looked to the U.S.
Code as establishing maximum sentences”). Accordingly, the
sentence imposed in the instant case did not violate due pro-
cess, because at the time Mr. Mix committed his crimes, life
imprisonment was a potential consequence of his actions.

[11] We also held in Dupas that the advisory Guidelines
remedy in Booker “gives the sentencing judge discretion to
sentence outside the guideline range, but still allows the sen-
tencing judge (as distinct from a jury) to make the findings of
fact necessary to determine the guideline range in the first
place.” Dupas, 419 F.3d at 919. The fact that the district court
considered uncharged conduct in imposing a sentence of life
imprisonment did not violate the Sixth Amendment.

AFFIRMED.