United States v. Reinhart

United States Court of Appeals Fifth Circuit F I L E D In the March 7, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 05-30245 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS ROBERT RANDALL REINHART, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Western District of Louisiana ______________________________ Before JOLLY, HIGGINBOTHAM, and SMITH, district court held him accountable for four Circuit Judges. victims in making its sentencing guidelines calculation. The guidelines imprisonment JERRY E. SMITH, Circuit Judge: range was 188 to 235 months, and in May 1998 Reinhart was sentenced to the 235- Robert Reinhart challenges the length of his month maximum. sentence. Finding no error, we affirm. A successful appeal resulted in the elimina- I. tion of one of the victims from Reinhart’s In July 1997 Reinhart pleaded guilty of con- spiracy to commit sexual exploitation of chil- dren through the production of child pornog- raphy in violation of 18 U.S.C. § 2251. The sentencing calculus.1 On remand the district When a judge imposes a more severe sentence court calculated the guidelines range at 168 to on remand, “the reasons for him doing so must 210 months and sentenced Reinhart to the affirmatively appear. Otherwise, a presumption maximum 210 months. Reinhart sought relief arises that a greater sentence has been imposed from his sentence under 28 U.S.C. § 2255, for a vindictive purposeSa presumption that which the district court denied. Reinhart again must be rebutted by objective information successfully appealed, resulting in the elimina- justifying the increased sentence.” Alabama v. tion of two more victims from the sentencing Smith, 490 U.S. 794, 798 (1989) (citations calculus.2 omitted). After a second remand, but before Reinhart A district court can rebut a presumption of was re-sentenced, the Supreme Court decided vindictiveness by providing reasons for the United States v. Booker, 543 U.S. 220 (2005), harsher sentence, which “must be based upon under which the guidelines are no longer man- objective information concerning identifiable datory. Booker, 543 U.S. at 263-64. The new conduct on the part of the defendant occurring guidelines range for Reinhart’s offense, given after the time of the original sentencing pro- the elimination of two more victims from the ceeding.” United States v. Resendez-Mendez, calculation, is 121 to 151 months. The district 251 F.3d 514, 517 n.10 (5th Cir. 2001) (citing court sentenced him to 235 months, just five North Carolina v. Pearce, 395 U.S. 711, 723 months short of the statutory maximum of 240 (1969)). If a presumption of vindictiveness months. See § 2251(e). In justifying the sen- arises in Reinhart’s case, it cannot be rebutted, tence, the court stressed, among other factors, because the district court cited no evidence of the “heinous” nature of the crime, Reinhart’s newly discovered conduct by Reinhart in repeated attempts to contact the victims while justifying the longer sentence. incarcerated, and the court ’s newfound sen- tencing freedom under Booker. Reinhart urges that there is a presumption of vindictiveness because the 235-month sen- II. tence he received on the second remand is Reinhart argues on appeal that the sentence greater than the 210-month sentence from is presumptively vindictive because it is longer which he appealed. The government responds than his immediately preceding sentence. that because the latest sentence does not ex- ceed the original 235-month sentence, no such presumption arises. 1 United States v. Carroll, 190 F.3d 290 (5th Cir. 1999), vacated for reh’g en banc sub nom. On this specific point, the government ad- United States v. Reinhart, 204 F.3d 581 (5th Cir.) vances the wrong comparison. The purpose of (per curiam), returned to panel, 226 F.3d 651 (5th the presumption is to protect litigants from Cir. 2000) (en banc) (per curiam), judgment vacat- fear of judicial retaliation following a success- ed and remanded, 227 F.3d 486 (5th Cir. 2000) ful appeal. United States v. Campbell, 106 (per curiam), denial of relief under 28 U.S.C. F.3d 64, 67 (5th Cir. 1997). Thus the proper § 2255 affirmed, 70 Fed. Appx. 757 (5th Cir. comparison is between the sentence from 2003) (per curiam). which the defendant appealed and the sentence 2 United States v. Reinhart, 357 F.3d 521 (5th handed down on remand following that appeal. Cir. 2004). Reinhart successfully appealed a 210-month 2 sentence and received a 235-month sentence Reinhart offers no reason why we should on remand. Because his sentence was in- find vindictiveness in a longer sentence that creased, we must determine whether to invoke results from the unique situation created by the presumption. Booker. Following the persuasive guidance of the Seventh Circuit, we conclude that there is The “presumption of vindictiveness does no vindictiveness in a post-Booker re-sentenc- not apply in every case where a convicted de- ing that exceeds the original pre-Booker sen- fendant receives a higher sentence on retrial.” tence solely because Booker changed the law. Smith, 490 U.S. at 794 (citing Texas v. Mc- Cullough, 475 U.S. 134, 138 (1986)). The We find convincing the explanation in Smith Court explained as follows: United States v. Goldberg, 406 F.3d 891, 894 (7th Cir. 2005).3 There is no reason to find “The [presumption of vindictiveness] was not designed to prevent the imposition of an increased sentence on retrial “for some 3 The Seventh Circuit explained: valid reason associated with the need for flexibility and discretion in the sentencing Goldberg’s lawyer . . . believe[s] that a sen- process,” but was “premised on the appar- tence meted out in the pre-Booker era of man- ent need to guard against vindictiveness in datory guidelines is the ceiling in the event of a the resentencing process.” re-sentencing unless there are changed factual circumstances, such as additional criminal Id. (quoting Chaffin v. Stynchcombe, 412 U.S. conduct by the defendant. If there are no such 17, 25 (1973)). The presumption applies only changed circumstances, Goldberg’s lawyer told where there exists a “reasonable likelihood that us, the inference would arise that any heavier the increased sentence is the product of actual sentence imposed on remand was vindictively vindictiveness” and “where there is no such motivated and therefore improper. That is a reasonable likelihood, the burden remains upon misunderstanding . . . dangerous to criminal defendants. When there is no relevant legal or the defendant to prove actual vindictiveness.” factual change between sentence and re-sen- Id. (citations omitted). tence, the motive for an increase in punishment is indeed suspect. But Booker brought about a The district court’s justification for the fundamental change in the sentencing regime. longer sentence is its freedom post-Booker to The guidelines, mandatory when Goldberg was step beyond the guidelines range and impose sentenced, are now advisory. Were he to be any reasonable sentence. That justification is re-sentenced, it would be under a different stan- plainly a “valid reason associated with the need dard, one that would entitle the judge to raise or for flexibility and discretion in the sentencing lower the sentence, provided the new sentence process.” Id. Given such an “affirmatively was justifiable under the standard of reason- appear[ing]” reason for the increased sentence, ableness. No inference of vindictiveness would there is no reasonable likelihood that the arise from the exercise of the judge’s new sentence was based on actual vindictiveness. authority. Id. Consequently, the presumption of vindic- . . . [A] defendant who appeals a pre-Booker tiveness does not apply in this case, and the sentence on the basis that the guidelines were burden is on Reinhart to prove actual vindic- misapplied (as in Goldberg’s challenge to the tiveness. (continued...) 3 vindictiveness in a longer sentence that has its should be fact specific and include, for ex- basis in the trial court’s newly expanded sen- ample, aggravating or mitigating circum- tencing authority. Moreover, in Reinhart’s stances relating to personal characteristics case the court believed the longer sentence to of the defendant, his offense conduct, his be the proper one from the start, but its hands criminal history, relevant conduct or other were tied by the mandatory nature of the facts specific to the case at hand which led guidelines. To find vindictiveness in such a the court to conclude that the sentence im- case would be an improper limitation on the posed was fair and reasonable. Such rea- sentencing discretion afforded under Booker. sons are essential to permit this court to re- view the sentence for reasonableness as di- III. rected by Booker. Reinhart contends the sentence is unreason- able. The Court in Booker directed appellate (Footnotes omitted.) We further explained courts to review all sentences for “unreason- that “[w]e use the term ‘non-Guideline’ sen- ableness.” Booker, 543 U.S. at 261-62. The tence to distinguish it from a Guidelines sen- Court further advised that the statutory sen- tence which includes a sentence that has been tencing factors in 18 U.S.C. §3553(a) should adjusted by applying a ‘departure’ as allowed guide the courts of appeals in deciding wheth- by the Guidelines.” Id. at 519 n.7. er a sentence is reasonable. Id. Therefore, under Mares, non-guideline sen- In United States v. Mares, 402 F.3d 511, tences are those that fall outside a calculated 519 (5th Cir.), cert. denied, 126 S. Ct. 43 guideline range. It will be rare for a guideline (2005), we addressed the application of Book- sentence to be found unreasonable, but a non- er’s unreasonableness standard to sentences guideline sentence requires a more thorough that go beyond the guidelines maximum: review. United States v. Smith, 417 F.3d 483, 490 (5th Cir.) (citing Mares, 402 F.3d at 519), When the judge exercises her discretion cert. denied, 126 S. Ct. 713 (2005). We have to impose a sentence within the Guideline addressed the reasonableness of upwardly- range and states for the record that she is departing guideline sentences under Booker doing so, little explanation is required. and Mares and, as a court, have just begun ex- However, when the judge elects to give a amining the reasonableness of non-guideline non-Guideline sentence, she should care- sentences. See United States v. Smith, 2006 fully articulate the reasons she concludes U.S. App. LEXIS 3994 (5th Cir. Feb. 17, that the sentence she has selected is appro- 2006). Reinhart and the government agree priate for that defendant. These reasons that the district court handed down a non-guideline sentence. 3 (...continued) We turn first to the standard of review to vulnerable-victim enhancement) is playing with be applied in a reasonableness review of a non- fire, because if he wins and is resentenced the guideline sentence. In Booker, 543 U.S. at judge will have more sentencing latitude, up as 259, the Court indicated that review for rea- well as down, than he did when the guidelines sonableness is itself a sufficiently plain stan- were deemed mandatory. dard of review. This court, in interpreting the Goldberg, 406 F.3d at 894-95 (citations omitted). Booker reasonableness standard, has applied 4 an abuse of discretion standard to the reason- Our reasonableness review in non-guideline ableness inquiry for upwardly departing guide- cases begins with the requirement in Mares, lines sentences.4 402 F.3d at 519, that the district court justify a non-guideline sentence with “fact specific There is no reason to depart from that stan- reasons involving aggravating circumstances, dard here. In review of non-guideline sentenc- personal characteristics of the defendant, his es, an abuse of discretion standard is consis- offense conduct, criminal history, or other tent with the instruction provided in Booker, conduct specific to the case at hand.” Here, which returned the standard of review for sen- the district court justified its sentence, in part, tencing to its previous status by excising 18 as follows: U.S.C. § 3742(e), which had been amended in April 2003 to change the standard from abuse Number one, the nature and circum- of discretion to de novo. See Smith, 417 F.3d stances of the offense and the history and at 490. characteristics of the defendant. That cer- tainly goes against you, Mr. Reinhart, in Because the standard of review for sentenc- that the nature and circumstances of the es in this circuit before the amendment was offense and the history you’ve exempli- abuse of discretion, one consequence of Book- fied to this point, including writing the er is that we use that standard once again. Id. victims even while you were incarcerated Although our previous cases have dealt with which you were not supposed to do and upwardly departing guideline sentences, Book- you knew you were not supposed to con- er does not distinguish between guideline and tact them. The nature and circumstances non-guideline sentences in requiring a reason- of your particular offense are of the na- ableness review. ture that this Court would presume and believe to be the most heinous of all Thus if reasonableness review requires an crimes in that you took advantage of chil- abuse of discretion standard for guideline sen- dren that were under your care as a Boy tences, the same should follow for non-guide- Scout leader. line sentences. Although Mares demands a more thorough review of non-guideline sen- The court further justified the sentence on a tences than of guideline sentences, our inquiry variety of other grounds. By providing these in conducting that more thorough review will reasons, the district court satisfied the require- be limited to determining whether the trial ment in Mares, id., that it enumerate the fac- judge overreached the discretionary sentencing tors on which its sentence is based so the ap- authority afforded under Booker. We there- pellate court can conduct a reasonableness fore apply an abuse of discretion standard of review. review to the reasonableness inquiry in non-guideline cases such as Reinhart’s. Reinhart’s sentence is not per se reasonable merely because the district court articulated its justification for the sentence as Mares re- 4 quires. Our inquiry turns now to whether the See Smith, 417 F.3d at 489-90; United States court’s proffered justification for the 235- v. Saldana, 427 F.3d 298, 308 (5th Cir.), cert. de- nied, 126 S. Ct. 810 (2005), and cert. denied, 126 month sentence is sufficient to withstand a rea- S. Ct. 1097 (2006). sonableness review under an abuse of discre- 5 tion standard. Under Booker, we evaluate the 261-62. sentence for reasonableness by viewing the district court’s stated justification in light of The court justified the sentence with spe- the sentencing factors enumerated in 18 cific reference to the language of § 3553(a)(1). U.S.C. § 3553(a).5 Booker, 543 U.S. at The court considered the nature and circum- stances of the offense to be particularly repre- hensible in light of its exploitative character 5 The statute reads: and Reinhart’s relationship to the victim. Reinhart’s history and characteristics, includ- (a) Factors to be considered in imposing a sen- ing his attempts to contact the victim, further tence.SSThe court shall impose a sentence exacerbated his culpability in the district sufficient, but not greater than necessary, to court’s evaluation. comply with the purposes set forth in paragraph (2) of this subsection. The court, in determin- The court’s statements also reflect a con- ing the particular sentence to be imposed, shall considerSS cern for the seriousness of the offense and the need to provide just punishment pursuant to (1) the nature and circumstances of the offense § 3553(a)(2)(A). The court specifically ad- and the history and characteristics of the defen- dressed the need to protect the public from dant; further crimes by Reinhart and the need for correctional treatment, as outlined in § 3553- (2) the need for the sentence imposedSS (a)(2)(C) and (D). Each of these factors tends to underscore the reasonableness of the sen- (A) to reflect the seriousness of the offense, to tence. promote respect for the law, and to provide just punishment for the offense; Other § 3553(a) factors operate in Rein- hart’s favor. The court correctly calculated (B) to afford adequate deterrence to criminal the guideline range to be 121 to 151 months, conduct; but it departed from that range dramatically (C) to protect the public from further crimes despite the advice of § 3553(a)(4). The court of the defendant; and also apparently did not consider the need to (D) to provide the defendant with needed edu- 5 cational or vocational training, medical care, or (...continued) other correctional treatment in the most effec- (5) any pertinent [sentencing guidelines] policy tive manner; statement . . . (3) the kinds of sentences available; (6) the need to avoid unwarranted sentence disparities among defendants with similar rec- (4) the kinds of sentence and the sentencing ords who have been found guilty of similar con- range established for . . . the applicable cate- duct; and gory of offense committed by the applicable category of defendant as set forth in the guide- (7) the need to provide restitution to any vic- lines . . . ; tims of the offense. (continued...) 18 U.S.C. § 3553(a). 6 avoid unwarranted sentence disparities among consistent with the factors laid out in similarly-situated defendants as advised by § 3553(a), as instructed by Booker. Accord- § 3553(a)(6). Reinhart’s sentence is undoubt- ingly, the court did not abuse its discretion. edly longer than that received by other similar defendants. IV. Reinhart contends that because he commit- Reinhart’s principal argument for the un- ted his crime when the guidelines were man- reasonableness of his sentence is that it departs datory, the district court’s use of the guide- dramatically from the guideline range. lines as merely advisory violates his rights un- Reinhart essentially asks us to hold that any der the Ex Post Facto Clause of the Constitu- 235-month non-guideline sentence is presumed tion. In Rogers v. Tennessee, 532 U.S. 451, unreasonable where the guidelines maximum is 460 (2001), however, the Court held that that only 151 months. clause, by its own terms, is a limitation on leg- islative powers and does not apply to the Departure from the guidelines range, how- courts. Reinhart’s argument on this point is ever, cannot alone support a finding of unrea- meritless. sonableness after Booker, in which the Court has indicated that the guidelines are merely Reinhart also urges that the district court’s one sentencing factor among many, and the use of a sentencing system that was not in ef- calculated guideline range must be considered fect when he committed his crime violates the in conjunction with the other § 3553(a) fac- ex post facto principles inherent in the Due tors. See Booker, 543 U.S. at 245-46. We Process Clause. This court, however, has re- therefore decline to give the guidelines the cently foreclosed Reinhart’s argument. In quasi-mandatory status urged by Reinhart. United States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005), we rejected the defendant’s Applying an abuse of discretion standard of contention that application of post-Booker review, we defer to the district court’s reason- sentencing principles to a pre-Booker offense able assessment of the statutory factors, with violates the defendant’s ex post facto rights. particular emphasis on the nature and circum- The use of an advisory sentencing scheme did stances of the offense and Reinhart’s history not violate Reinhart’s due process rights. and characteristics. We will not require a dis- trict court to conform a sentence to the guide- The judgment of sentence is AFFIRMED. line range where that court has made a reason- able determination, based on a variety of other equally legitimate factors, that a non-guideline sentence is proper. Viewing the district court’s justification in light of all the § 3553(a) factors, we conclude that Reinhart’s sentence is not unreasonable. The court did not take into account any inap- propriate or unreasonable factors. It enumer- ated its reasons for a non-guideline sentence as required by Mares, and its reasons are largely 7