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