REVISED APRIL 16, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 10, 2008
No. 06-40894 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CARLOS CONSTANTINO BONILLA
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas, Laredo
5:06-CR-10-ALL
Before JONES, Chief Judge, DAVIS and GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.
Carlos Constantino Bonilla (“Bonilla”) pleaded guilty to being unlawfully
present in the United States after deportation, in violation of 8 U.S.C. § 1326.
The district court sentenced Bonilla to serve forty-one months in prison, followed
by a three-year term of supervised release. Bonilla contends that the district
court erred in adjusting his base offense level upward based upon his prior
conviction for attempted manslaughter under New York Penal Law § 125.15.
Bonilla also challenges the presumption of reasonableness that attaches to a
sentence within a properly calculated guidelines range; and he challenges the
constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony
No. 06-40894
convictions as sentencing factors. These latter two arguments are foreclosed by
Supreme Court precedent.1 Although the district court erred in applying the
crime of violence enhancement, because it imposed a reasonable alternative non-
guideline sentence, we affirm.
I
Bonilla pleaded guilty to his § 1326 offense of illegal reentry without the
benefit of a plea agreement. The presentence investigation report (“PSR”)
calculated a base offense level of eight pursuant to U.S. SENTENCING GUIDELINES
MANUAL (“USSG”) § 2L1.2(a) (2005). The PSR recommended adding sixteen
levels under USSG § 2L1.2(b)(1)(A)(ii) because Bonilla’s New York conviction for
attempted manslaughter qualified as a “crime of violence.” The PSR then
recommended subtracting three levels for acceptance of responsibility under
USSG § 3E1.1(a) and (b). A total offense level of twenty-one, coupled with
Bonilla’s criminal history category of II, resulted in a recommended
imprisonment range of forty-one to fifty-one months.
Bonilla lodged objections to the PSR. First, Bonilla objected to the sixteen-
level enhancement on the ground that the government had not carried its
burden of showing that his prior conviction for attempted manslaughter
qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii). The PSR reveals that
the crime occurred while the defendant was homeless, and he became embroiled
in a fight over mattress space; he struck the victim over the head with a cinder
block causing his death. Bonilla’s attempted manslaughter conviction arose
from his 1998 violation of § 125.15. Section 125.15 provides that:
1
Bonilla properly concedes that these two arguments are foreclosed, and he raises them only
to preserve them for further review. Bonilla’s challenge to our presumption of reasonableness that
attaches to sentences within the proper guidelines’ range is foreclosed by Rita v. United States, 127 S.
Ct. 2456, 2462-63 (2007). Bonilla’s challenge to the constitutionality of § 1326(b)’s treatment of prior
felony and aggravated felony convictions is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). We have held that the latter issue is “fully foreclosed from further debate.” United
States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
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A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes
her death, unless such abortional act is justifiable pursuant
to subdivision three of section 125.05; or2
3. He intentionally causes or aids another person to commit
suicide.
N.Y. PENAL LAW § 125.15 (McKinney 2008). As proof of the conviction, the
probation officer submitted the New York criminal information that originally
charged Bonilla with committing second-degree manslaughter. There is no
evidence that Bonilla was reindicted for the attempt charge. The probation
officer also submitted the Certificate of Disposition (“COD”), which is a state
record of the defendant’s offense of conviction. The criminal information charged
Bonilla with manslaughter in the second degree based on a violation of Section
125.15(1). However, the COD noted only that Bonilla pleaded guilty to
attempted manslaughter in the second degree under § 125.15 without identifying
the subsection under which Bonilla pleaded guilty. Bonilla contended that the
COD did not establish the subdivision he violated and that the criminal
2
The statute defines “abortional act” to mean, “an act committed upon or with respect to a
female, whether by another person or by the female herself, whether she is pregnant or not, whether
directly upon her body or by the administering, taking or prescription of drugs or in any other manner,
with intent to cause a miscarriage of such female.” N.Y. PENAL LAW § 125.05(2) (McKinney 2008). An
abortional act is justifiable:
when committed upon a female with her consent by a duly licensed physician acting (a)
under a reasonable belief that such is necessary to preserve her life, or, (b) within
twenty-four weeks from the commencement of her pregnancy. A pregnant female's
commission of an abortional act upon herself is justifiable when she acts upon the
advice of a duly licensed physician (1) that such act is necessary to preserve her life, or,
(2) within twenty-four weeks from the commencement of her pregnancy. The
submission by a female to an abortional act is justifiable when she believes that it is
being committed by a duly licensed physician, acting under a reasonable belief that
such act is necessary to preserve her life, or, within twenty-four weeks from the
commencement of her pregnancy.
Id. at § 125.05(3).
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information could not be used to establish that fact, as it did not charge the
attempt crime to which Bonilla eventually pleaded. Because no particular
subdivision could be identified, Bonilla argued that § 125.15 must be analyzed
as a whole to determine whether it fits within the guidelines’ definition as a
crime of violence. He claimed that when analyzed as such, the statute did not
fit within the generic, contemporary definition of manslaughter.
Bonilla raised further objections to the PSR that mirror his remaining
arguments on appeal.3 At sentencing, Bonilla reurged these objections but the
district court overruled them. The district court found that Bonilla’s violation
of Section 125.15 qualified under the guidelines as an enumerated offense of
manslaughter, and thus as a crime of violence. The court sentenced Bonilla to
a non-guideline sentence of forty-one months in prison, followed by a three-year
term of supervised release, and a $100 mandatory assessment. Bonilla timely
filed a notice of appeal.
II
Bonilla’s first objection is that the district court erred in applying the
crime of violence enhancement to determine his guideline sentence.
Determining whether a prior offense qualifies as a crime of violence requires
interpretation and application of the sentencing guidelines. We review a district
court’s interpretation and application of the guidelines de novo. See United
States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc) (reviewing
de novo a district court’s application of USSG § 2L1.2).
The application notes of USSG § 2L1.2 define a “crime of violence” in two
different ways. A crime of violence either “(1) has the use, attempted use, or
threatened use of physical force against the person of another as an element of
the offense, or (2) it qualifies as one of several specifically enumerated offenses
3
See, supra, note 1.
4
No. 06-40894
[including manslaughter].” United States v. Murillo-Lopez, 444 F.3d 337, 339
(5th Cir. 2006) (citing USSG § 2L1.2 cmt. n. 1(B)(iii)). Attempts can trigger a
crime of violence enhancement. See USSG § 2L1.2 cmt. n. 5 (stating that “[p]rior
convictions of offenses counted under subsection (b)(1) include the offenses of
aiding and abetting, conspiring, and attempting, to commit such offenses”). In
this case, the government argues only that Bonilla’s offense under § 125.15
qualifies as the enumerated offense of “manslaughter.” See USSG § 2L1.2 cmt.
n. 1 (B)(iii) (stating that “‘[c]rime of violence means any of the following. . .
manslaughter”). The parties dispute how specifically we can define the offense
committed by Bonilla, as well as the documents we may use to make such a
determination.
A
The New York law at issue here provides three separate subsections, each
of which independently constitutes manslaughter in the second degree. To
determine which subpart formed the basis of Bonilla’s conviction, we may
examine, “the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” See United States v. Mungia-Portillo, 484 F.3d
813, 815 (5th Cir. 2007) (quoting Shepard v. United States, 544 U.S. 13, 16
(2005)).
Bonilla argues that the district court erred by relying on the COD and the
original criminal information charging him with second degree manslaughter to
establish that his prior conviction amounted to a crime of violence. Bonilla
contends that the district court could not use either document to “pare down” the
statute in order to establish the subsection to which Bonilla pleaded guilty.
Finally, he argues that Section 125.15, when taken as a whole, does not fit the
guidelines definition of manslaughter, and therefore that his crime of violence
enhancement was improper. The Government responds by arguing that the
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No. 06-40894
district court properly relied on the criminal information as well as the COD.
These two documents, contends the Government, show that Bonilla’s prior
conviction qualifies as the enumerated offense of manslaughter.
Recent panel decisions of this court confirm Bonilla’s position as to the
criminal information. Because the criminal information charges a crime of
which Bonilla was not convicted, it cannot be used to “pare down the statute of
conviction to determine under which subsection [Bonilla] pleaded guilty.”
United States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir. 2007); see United
States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir. 2007) (reaching same
conclusion when defendant pleaded guilty to attempted kidnapping but
indictment charged only aggravated kidnapping); see also United States v.
Turner, 349 F.3d 833, 836 (5th Cir. 2003) (holding that, in the context of USSG
§ 4B1.2, “a district court may not rely on a charging document without first
establishing that the crime charged was the same crime for which the defendant
was convicted”). Therefore, the district court could not consider the criminal
information to establish that Bonilla’s offense qualified as a crime of violence.4
As to the COD, we have recognized that New York Certificates of
Disposition have “sufficient indicia of reliability” such that they can be used to
establish the existence of a prior conviction. See Neri-Hernandes, 504 F.3d at
591-92 (distinguishing between establishing facts underlying prior conviction
and existence of prior conviction). In Neri-Hernandes, the defendant argued that
a COD did not provide sufficient evidence to establish a prior conviction for a
4
The government relies on our decision in United States v. Martinez-Vega, 471 F.3d 559 (5th
Cir. 2006) to argue otherwise, but this case is distinguishable. In Martinez-Vega, we held that a
judgment entered against the defendant showed that he was convicted of “the lesser charge contained
in the indictment. Id. at 563 (emphasis in original). Because the lesser charge was made clear from
the judgment, and was found by the court as actually being charged in the original indictment, the
appellant could not carry his “burden of demonstrating plain error.” Id. In this case, we have a
certificate of disposition that does not refer back to a lesser offense in the original indictment. And
unlike Martinz-Vega, where we reviewed only for plain error, we exercise de novo review of the issue
in this case. Further, extending Martinez-Vega to this situation would unnecessarily bring it into
conflict with Neri-Hernandes and Gonzalez-Ramirez.
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No. 06-40894
crime of violence. We disagreed and noted that the Certificate in Neri-
Hernandes’ case “details [his] guilty plea and sentence, and it specifies a
subsection of the statute under which Neri was convicted.” Id. at 591 (emphasis
added). Because the COD established the subsection of conviction, the court was
able to find that Neri-Hernandes committed a crime of violence. Id. Bonilla’s
COD does not provide the same specificity to aid us or the district court. The
COD states only that Bonilla pleaded guilty to attempted manslaughter in the
second degree under § 125.15. It establishes the fact of Bonilla’s conviction
under the statute, but it does not provide the specific subsection under which he
was convicted.
B
Because the criminal information may not be considered, and the COD
provides no aid as to which subsection Bonilla violated, we consider § 125.15 as
a whole to determine whether Bonilla’s conviction qualifies as a crime of violence
under the guidelines enumerated offense of manslaughter. We determine the
meaning of the guidelines’ reference to manslaughter by using a “common sense
approach” and looking to the “ordinary, contemporary, [and] common meaning”
of the term. Murillio-Lopez, 444 F.3d at 339 (internal quotation marks and
citation omitted). “To distill the plain, ordinary meaning, this court looks to
sources such as the Model Penal Code, Professor LaFave’s treatise and legal
dictionaries.” Mungia-Portillo, 484 F.3d at 816. “When the statute of conviction
encompasses prohibited behavior that is not within the plain, ordinary meaning
of the enumerated offense, the conviction is not a crime of violence as a matter
of law.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006)
(internal citation and quotation marks omitted).
As noted above, § 125.15 provides three different subsections, the violation
of each defined as second degree manslaughter under New York law. The first
defines second-degree manslaughter as, “recklessly caus[ing] the death of
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No. 06-40894
another person.” The second notes that if one commits certain abortional acts
that cause a female’s death, then that person may be prosecuted for
manslaughter in the second degree. The third subsection provides for a second-
degree manslaughter charge against anyone who “intentionally causes or aids
another person to commit suicide.” The question before us then, is whether the
New York statute encompasses behavior beyond that included in the plain,
ordinary meaning of manslaughter.
Traditionally, manslaughter has been divided into two categories:
voluntary and involuntary manslaughter. This is still the norm in most
American jurisdictions. 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 15.1
490 (2d ed. 2003). “Voluntary manslaughter in most jurisdictions consists of an
intentional homicide committed under extenuating circumstances which
mitigate, though they do not justify or excuse, the killing.” Id. at § 15.2 491.
(emphasis added). The Model Penal Code includes a similar definition. See
MODEL PENAL CODE § 210.3(1)(b) (defining manslaughter as, inter alia, “a
homicide which would otherwise be murder” but “is committed under the
influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse”). At least subsections (1) and (2) of 125.15
encompass criminal acts involving a less culpable mens rea than intentional
homicide and, therefore, criminalize conduct broader than the plain and
ordinary definition of voluntary manslaughter.5 Therefore, we turn our focus to
involuntary manslaughter to determine whether New York’s statute is at least
as narrow as the generic, contemporary version of that offense. See United
States v. Dominguez-Ochoa, 386 F.3d 639, 642 (5th Cir. 2004) (noting that Texas’
5
Subsection (1) requires only a reckless mens rea, and subsection (2) requires, for an abortional
act, the intent to cause a miscarriage. Neither of these subsections requires a homicidal intent to
establish a violation. It is not as clear whether subsection (3) would fall into a contemporary, generic
definition of voluntary manslaughter. See generally, LaFave, supra, § 15.6 (discussing the varied state
approaches to criminalizing the aiding and assisting of suicide). However, the breadth of subsection (3)
is not determinative in this case.
8
No. 06-40894
criminal negligent homicide statute must be analyzed in relation to involuntary
manslaughter because voluntary manslaughter requires a “different level of
intent”).
As to involuntary manslaughter, the Model Penal Code provides that,
“[c]riminal homicide constitutes manslaughter when. . . it is committed
recklessly.” MODEL PENAL CODE § 210.3(1)(a).6 The Model Penal Code’s
recklessness standard requires “proof of conscious disregard of perceived
homicidal risk.” Dominguez-Ochoa, 386 F.3d at 645 (quoting MODEL PENAL
CODE § 210.3 cmt. 4 at 53). We have recognized that the recklessness standard
adopted in the Model Penal Code provides the minimal necessary mens rea for
“generic contemporary manslaughter (including involuntary manslaughter).”
Id. at 646; see also LAFAVE, supra, at § 15.4(a) 523 (noting that most of the
comprehensive criminal codes follow the Model Penal Code on this matter).
Therefore, § 125.15 will be broader than the plain ordinary definition of
manslaughter))and thus not a crime of violence under the guidelines))if one of
its subsections requires less than a reckless state of mind.
Section 125.15(1) encompasses all of the conduct contemplated by the
Model Penal Code’s reference to manslaughter as reckless homicide.
Specifically, it provides that “a person is guilty of manslaughter in the second
degree if. . . he recklessly causes the death of another person.” N.Y. PENAL LAW
§ 125.05(1) (McKinney 2008) The inclusion of subsections (2) and (3) indicates
that the statute was intended to criminalize a broader swath of conduct than
just recklessly caused deaths. Further, subsection (2) indicates that it can be
violated by unjustified abortional acts that result in the death of a female. To
constitute an “abortional act,” the act must be taken “with intent to cause a
6
The Model Penal Code defines “criminal homicide” as “purposely, knowingly, recklessly, or
negligently caus[ing] the death of another human being.” In other words, “[c]riminal homicide is
murder, manslaughter, or negligent homicide.” MODEL PENAL CODE § 210.1.
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No. 06-40894
miscarriage.” N.Y. PENAL LAW § 125.05(2) (McKinney 2008). However, the
statute says nothing in terms of the defendant’s mental state towards the risk
of death created by his behavior. New York law provides that “if an offense or
some material element thereof does not require a culpable mental state on the
part of the actor, such offense is one of strict liability.” N.Y. PENAL LAW § 15.10
(McKinney 2008). This suggests that if an act intended to cause a miscarriage
results in a female’s death, a defendant could be prosecuted under subsection (2)
irrespective of the defendant’s mental state towards the risk of death posed by
his behavior. Therefore, subsection (2) makes § 125.15 broader than the generic,
contemporary meaning of involuntary manslaughter. See Dominguez-Ochoa,
386 F.3d at 646 (finding that the lower mens rea requirement of Texas’ criminal
negligence statute prevented it from falling within the generic, contemporary
definition of involuntary manslaughter which requires at least recklessness).
The government argues that there is no possibility that Bonilla was
convicted under subsection (2) because nothing in the record indicates that he
committed an abortional act on a female victim. This argument, however,
misses the broader point that there is no evidence indicating which of the three
subsections applies. Further, the government bears the burden of establishing
a factual predicate justifying the adjustment, here that Bonilla’s offense
constitutes a crime of violence. See United States v. Rabanal, 508 F.3d 741, 743
(5th Cir. 2007) (“The general rule is that the party seeking an adjustment in the
sentence level must establish the factual predicate justifying the adjustment.”
(internal quotation marks omitted)). Had the government produced useable
evidence indicating that Bonilla was convicted under subsection (1), then his
conviction certainly would qualify under the contemporary, generic definition of
involuntary manslaughter. However, the government cannot rely on a lack of
evidence to foreclose the possibility that Bonilla’s conviction fell under another
subsection.
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No. 06-40894
For the foregoing reasons, we find that New York Penal Law § 125.15
criminalizes a broader range of conduct than that encompassed by the generic,
contemporary offense of manslaughter. Subsections (2) and (3) encompass a
broader scope of criminal behavior than the generic offense of voluntary
manslaughter, as they cannot be said to require an intentional homicide. And
subsection (2) can be violated without the recklessness towards a homicidal risk
required under the generic, contemporary version of involuntary manslaughter.
Therefore, the district court erred in applying the sixteen-level crime of violence
enhancement when calculating Bonilla’s sentence. See Fierro-Reyna, 466 F.3d
at 329 (5th Cir. 2006).
III
Bonilla argues that as a result of the district court’s error in applying the
sixteen-level crime of violence enhancement, this court should vacate Bonilla’s
sentence and remand for resentencing. For the following reasons, we disagree.
The Supreme Court recently reaffirmed that prior to reviewing a sentence
under the abuse-of-discretion standard, we:
must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence))including a deviation from the
Guidelines range.
Gall v. United States, 128 S. Ct. 586, 597 (2007). This presents no change to the
law. United States v. Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir. 2006) (noting
that before the district court imposes a non-Guideline sentence it must first
properly calculate the applicable Guideline range); United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006) (holding that when a district court imposes a non-
guidelines sentence, it should provide “fact-specific” reasons “consistent with the
sentencing factors enumerated in section 3553(a)”).
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No. 06-40894
Not all errors in determining a defendant’s guideline sentence require
reversal.
If the district court makes an error in an application of the
Guidelines, we vacate the resulting sentence without reaching the
sentence’s ultimate reasonableness. United States v. Duhon, 440
F.3d 711, 716 (5th Cir. 2006), (citing United States v. Villegas, 404
F.3d 355, 362 (5th Cir. 2005)). . . . If, however, the district court
imposes a non-Guideline sentence and that advisory sentence did
not directly “result” from any Guideline error, it need not be
vacated. Duhon, 440 F.3d at 716.
Tzep-Mejia, 461 F.3d at 526. In Tzep-Mejia, we held that the district court
properly exercised its discretion in imposing a non-guideline sentence. The
district court considered the possible guideline ranges that might apply to the
defendant with and without a disputed enhancement for a crime of violence
under U.S.S.G. § 2L1.2(b)(1)(A). After rejecting both ranges as alternatively too
high and too low, the district court properly applied the individualized, case-
specific factors as required by § 3553(a) and sentenced the defendant to a prison
term between the two. Accordingly, Tzep-Mejia’s sentence did not “result” from
an incorrect application of the guidelines.
We find that the district court followed a similar process in this case and
the resulting non-guideline sentence did not result from the district court’s error
in applying the crime of violence enhancement. The only aspect of Bonilla’s
guideline calculation that was in dispute was the crime of violence enhancement
discussed previously. Neither party disagrees with the district court’s guideline
calculation before the enhancement. The district court erroneously concluded
that the enhancement should apply to the defendant. However, like the district
court in Tzep-Mejia, the court in this case imposed an alternative non-guideline
sentence stating, “I believe that I have calculated the guidelines correctly, but
even if I am wrong about the guidelines, this is the sentence that I would impose
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No. 06-40894
in any event.” Although the district court did not comment on the guideline
ranges that would apply with and without the enhancement, the record reflects
no disagreement between the parties or confusion by the district court about the
guidelines range before and after the enhancement. The defendant argued in his
objections to the PSR that without the enhancement “he should be scored at
Level 6, at a Category I, with a sentencing range of 0-6 months, at Zone A.” At
sentencing the district court specifically referenced his consideration of the
parties’ arguments made at sentencing and in the reports before exercising its
discretion to impose a sentence of 41 months. As in Tzep-Mejia, Bonilla’s
sentence did not result from an incorrect application of the guidelines.
Bonilla argues that the district court committed an additional procedural
error by failing to adequately explain the chosen sentence. Gall, 128 S.Ct at 597.
There is some dispute as to whether plain error review should apply to this issue
because Bonilla did not object to the adequacy of the district court’s reasons at
sentencing. We need not decide the appropriate level of review, because as
explained below, the district court’s reasons were sufficient under any standard.
Prior to Rita, this court held that if a district court imposes a sentence
within the properly determined Guidelines range, little explanation is required.
See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In Rita, the Court
indicated that more than a brief statement may be required when a district court
is presented with nonfrivolous arguments for a sentence outside the Guidelines.
127 S. Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s
reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines
sentence in that case were, although brief, legally sufficient. Id. at 2469.
Specifically, the Court noted that the record made clear that the judge listened
to and considered the arguments and evidence but simply found the
circumstances insufficient to warrant a sentence below the Guidelines range.
Id. The judge said that the range was not “inappropriate” and that a sentence
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No. 06-40894
at the bottom of the range was “appropriate.” Id. The Court acknowledged that
the judge might have said more, but was not required to do so. Id.
Error does not necessarily result when the district court ‘s reasons, as in
this case, are not clearly listed for our review. As stated in Rita,
The statute does call for the judge to "state" his "reasons." And that
requirement reflects sound judicial practice. Judicial decisions are
reasoned decisions. Confidence in a judge's use of reason underlies
the public's trust in the judicial institution. A public statement of
those reasons helps provide the public with the assurance that
creates that trust.
That said, we cannot read the statute (or our precedent) as insisting
upon a full opinion in every case. The appropriateness of brevity or
length, conciseness or detail, when to write, what to say, depends
upon circumstances. Sometimes a judicial opinion responds to every
argument; sometimes it does not; sometimes a judge simply writes
the word "granted," or "denied" on the face of a motion while relying
upon context and the parties' prior arguments to make the reasons
clear. The law leaves much, in this respect, to the judge's own
professional judgment
Id. (underlining added.) In this case, examining the district court’s statement
at sentencing in the context of the full sentencing hearing confirms that the
court’s reasons for the non-guideline sentence it imposed were minimally
sufficient.
Immediately before imposing sentence, the district court made the
following statement:
Okay. Mr. Bonilla, the court has considered the arguments made
earlier and as well as the information in the report. And keeping in
mind the factors that the court has to consider in imposing a
sentence, the court is going to impose a sentence that it believes to
be reasonable. And the sentence that the court imposes is one that
the court believes to be reasonable. And that is true whether or not
the court turns out to be wrong about the enhancement.
Because of the district court’s reference to “arguments made earlier” and
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No. 06-40894
“information in the report” we must look at the entire sentencing record to
determine if those sources provide adequate information about the “factors that
the court” considered in imposing sentence to determine whether the district
court’s reasons were adequate.
The “arguments made earlier” in the sentencing hearing include the
government’s argument that the court consider under its discretionary powers
the type of crime the defendant committed that resulted in the conviction for
attempted manslaughter. The government pointed out that the victim died as
a result of what the defendant did - “And the victim was killed with a brick,
Your Honor.” The arguments also included the defendant’s arguments for a non-
guideline sentence on the basis of the history and characteristics of the
defendant. 18 U.S.C. § 3553(a)(1). The defense argued that Bonilla was sixty
years old, was in this country for several years with no confrontations with the
law, and has several children living in the United States. Bonilla concluded by
asking the court to impose a sentence “that is reasonable and that is fair.” The
government asked for a sentence in the low end of the guideline range, including
the enhancement as the appropriate punishment given the defendant’s past
history and personal characteristics. The government noted the defendant’s
sporadic work and employment history, his problems with alcohol and
homelessness. He also noted that the defendant had several arrests related to
alcoholism and homelessness that were not prosecuted, a reference to the
defendant’s criminal history that the court could take into account when
determining the appropriate sentence within the advisory guideline range.
The “reports” referenced by the district court contained an argument by
the defendant for a sentence that is sufficient but not greater than necessary
based on his arguments under § 3553(a) in Defendant’s Objections to
Presentence Report. The objections noted that the defendant entered the
country to seek work and visit his children, not to commit further crimes. The
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No. 06-40894
“reports” also include the probation office’s recommendation for a sentence of 41
months.
The district court’s reference to these arguments before imposing a non-
guideline sentence of 41 months provide the background to clarify the “factors”
considered by the district court in determining the chosen sentence and provide
adequate reasons for that decision. Clearly the factors the court considered were
those argued at sentencing and in previously filed reports - the nature of the
circumstances of the offense and the defendant’s history and characteristics,
including his unprosecuted criminal history. 18 U.S.C. § 3553(a)(1). After
considering these factors, the district court concluded that a sentence of 41
months was reasonable. “The sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) in the individual case,” Gall, 128
S. Ct. at 597. Examining the full sentencing record reveals the district court’s
reasons for the chosen sentence and allows for effective review by this court.
Our task would have been easier had the district court stated its reasons
explicitly on the record, a procedure we strongly recommend. A clear statement
of reasons on the record also serves to prevent the inefficiency that would result
from remand and resentencing if on appeal we had been unable to determine the
court’s reasons from the record. In this case however, our review makes clear
both the reasons for the sentence and their adequacy as a matter of law.
IV
The district court erred in applying a sixteen-level crime-of-violence
enhancement based on Bonilla’s conviction for attempted manslaughter under
New York Penal Law § 125.15. However, because the district court imposed an
alternative non-guideline sentence, the advisory sentence did not result from the
guideline error and we need not vacate the sentence on that basis. Based on our
examination of the sentencing record, the district court’s reasons for the
sentence under the § 3553(a) factors are adequate. Accordingly, we AFFIRM
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No. 06-40894
Bonilla’s sentence.
AFFIRMED.
17
No. 06-40894
EMILIO M. GARZA, Circuit Judge, dissenting:
The panel majority, like the district court, ignores the obvious dictates
of Gall: there can be no properly calculated Guidelines range when the
district court errs in applying a 16-level crime-of-violence enhancement.
Moreover, the majority seems to condone the district court’s statement: “I
believe that I have calculated the guidelines correctly, but even if I am wrong
about the guidelines, this is the sentence that I would impose in any event.”
This statement flies in the face of Gall, which states that a properly
calculated guidelines range is a prerequisite to a reasonable sentence.
In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court
articulated that appellate review of sentences post-Booker involves a
bifurcated process. Prior to reviewing a sentence for reasonableness under an
abuse-of-discretion standard, we:
must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence))including a deviation from the
Guidelines range.
Gall, 128 S. Ct. at 597; see United States v. Cisneros-Gutierrez, No. )) F.3d
18
No. 06-40894
)), 2008 WL 383024 (5th Cir. Feb. 13, 2008) (recognizing that Gall bifurcates
the process for reviewing a sentence). Implied in the majority opinion is a
viewpoint that Gall relaxed our appellate review of district court sentencing.
I agree to an extent. See Gall, 128 S. Ct. at 600 (noting that the appellate
court “failed to demonstrate the requisite deference to the District Judge’s
decision”). However, this relaxation applies to our review of a sentence’s
reasonableness. Gall makes clear that we must first determine whether
district courts have complied with certain procedural requirements before
sentences can be tested for reasonableness. See Gall, 128 S. Ct. at 597
(“Assuming that the district court’s sentencing decision is procedurally sound,
the appellate court should then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.”).
Although (perhaps the proper word is “because”) I agree with the
majority’s conclusion that the district court erred in treating Bonilla’s New
York conviction as a crime of violence, by affirming the district court’s
sentence in this case, the majority effectively ignores Gall’s procedural
requirements and commits three distinct errors in the process. First, the
majority errs by imputing two Guidelines range calculations to the district
court: one including the erroneous crime-of-violence enhancement and one
without the enhancement. But the district court failed to calculate an
alternative Guidelines range without the enhancement, and therefore the
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No. 06-40894
majority has no basis for finding that the district court properly calculated
the Guidelines range before imposing a non-Guidelines sentence. Second,
given the record in this case, the majority mistakenly concludes that the
district court imposed a non-Guidelines sentence. The district court’s
statement that it would impose the same sentence “whether or not the court
turns out to be wrong about the enhancement,” is insufficient to trigger a
Rita/Gall reasonableness review of Bonilla’s sentence as a non-Guidelines
sentence. Finally, even assuming we could review the sentence as a non-
Guidelines sentence, the district court failed to “adequately explain the
chosen sentence” in light of the factors set forth in § 3553(a). Gall 128 S. Ct.
at 597. For these reasons, I respectfully dissent.
Relying on United States v. Tzep-Mejia, 461 F.3d 522 (5th Cir. 2006),
the majority concludes that we need not vacate Bonilla’s sentence because it
did not result from an incorrect application of the sentencing guidelines. See
id. at 525-26 (noting that Booker did not excise 18 U.S.C. § 3742(f)). However,
the majority does not confront the stark differences between this case and
Tzep-Mejia. In Tzep-Mejia, the district court carefully calculated two
potentially applicable Guidelines’ ranges and then provided fact-specific
reasons for applying a non-Guidelines sentence between those two ranges.
See Tzep-Mejia, 461 F.3d at 526-27. Unlike Tzep-Mejia, the district court
here did not state the multiple Guidelines ranges that it considered.
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No. 06-40894
Presumably, the alternative Guidelines range would be the applicable
Guidelines range without the crime-of-violence enhancement. Without the
enhancement, the Guidelines range is 4 to 10 months’ imprisonment, which
results from Bonilla’s base offense level of 8, coupled with his criminal history
category of II. See U.S. SENTENCING GUIDELINES MANUAL (“USSG”) § 2L1.2(a)
(2005). Taking into account the three-level reduction for Bonilla’s acceptance
of responsibility, the proper range would be 0 to 6 months. See USSG Ch. 5.
Pt. A, Sentencing Table. However, the district court never adopted an
alternative Guidelines range. And the district court never indicated that it
was considering both a Guidelines sentence of 41 months based on the crime-
of-violence enhancement, and a non-Guidelines sentence of 41 months based
on an upward variance of 35 to 41 months from an alternative Guidelines
range of 0 to 6 months that did not include the enhancement. Significantly,
the panel majority’s opinion does not explicitly deny that a crime-of-violence
enhancement under USSG § 2L1.2 is essential to a properly calculated
Guidelines range.
To avoid the erroneous enhancement, the majority attributes to the
district court an alternative, properly calculated Guidelines range that did
not include the enhancement. But as noted above, the district court never
articulated any Guidelines range aside from the range including the
enhancement. By recognizing a properly calculated alternative Guidelines
21
No. 06-40894
range in this case, the majority implicitly approves of a procedure whereby an
appellate court can ignore an erroneous crime-of-violence enhancement to
create a proper Guidelines range calculation, even when the district court has
not done the same. When the district court does not provide a separate
Guidelines calculation, we cannot ignore an erroneous crime-of-violence
enhancement, as it is an essential component of the Guidelines calculation
under USSG § 2L1.2. The application instructions charge courts to
“[d]etermine the base offense level and apply any appropriate specific offense
characteristics, cross references, and special instructions contained in the
particular guideline.” USSG § 1B1.1(b). The crime-of-violence enhancement
is a “specific offense” characteristic under § 2L1.2. See USSG § 2L1.2(b)
(providing for the crime-of-violence enhancement as a “specific offense
characteristic” applied to the base offense level of 8). Clearly, the Supreme
Court had more in mind, when it set out the requirement that district courts
properly calculate the Guidelines range, than simply requiring district courts
to locate the initial base offense level for the crime. See Gall, 128 S.Ct. at
597. Without a clear indication that the district court considered multiple
Guidelines ranges, as we had in Tzep-Mejia, we cannot separate an erroneous
crime-of-violence enhancement from the initial base offense level in
evaluating the district court’s Guidelines calculation. Therefore, the district
court erred in calculating Bonilla’s Guidelines range.
22
No. 06-40894
Although the district court stated that it would have imposed the same
sentence regardless of the Guidelines calculation, the district court’s actions
strongly indicate that it sought to impose a Guidelines sentence relying on
the crime-of-violence enhancement. During the sentencing hearing, the
district court overruled Bonilla’s objection to the crime-of-violence
enhancement, stating that “the court does find that the enhancement is
warranted.” The judge also stated that “I believe I have calculated the
guidelines correctly,” and that the sentence imposed “does happen to be a
sentence within the guideline range.” The district court’s written statement
of reasons for the judgment adopted the PSR without change. The PSR
indicated that the 16-level enhancement was proper and that the resulting
Guidelines range was 41-51 months. The PSR did not provide reasons for
considering any other Guidelines range or a non-Guidelines sentence,
notwithstanding the panel majority’s indication to the contrary. The majority
states that the “reports [considered by the district court] also include the
probation office’s recommendation for a sentence of 41 months.” The majority
fails to include the fact that the probation office’s 41-month recommendation
relied on the erroneous crime-of-violence enhancement. Also, the district
court’s statement of reasons reflects the “court determination of the advisory
guideline range” as 41-51 months. In the statement of reasons for the
judgment, the district court checked off the section signaling that it was
23
No. 06-40894
imposing a “sentence within an advisory guideline range.” The statement of
reasons includes no indication that the district court also sought to impose an
alternative, non-Guidelines sentence. Further, treating the district court’s
sentence as a non-Guidelines sentence leads to application of 18 U.S.C. §
3553(c)(2), which requires the district court to provide “reasons . . . stated
with specificity in the written order of judgment and commitment” to justify a
non-Guidelines sentence. See United States v. Jones, 444 F.3d 430, 442-43
(5th Cir. 2006) (explaining that § 3553(c)(2) remains binding post-Booker).
Here, the district court’s statement of reasons provides no support for a non-
Guidelines sentence.
I fail to see how the majority can separate the district court’s erroneous
crime-of-violence enhancement from the sentence imposed. Unlike the
situation in Tzep-Mejia, the record in this case shows that the district court
improperly calculated the Guidelines range, and that it imposed a sentence
resulting from the improper calculation. See 18 U.S.C. § 3742(f)(1) (requiring
remand of sentences “imposed as a result” of error in Guidelines calculation).
Gall makes clear what our precedent and § 3742(f)(1) already require in this
situation: we must vacate and remand for resentencing. See Gall, 128 S. Ct.
at 597 (instructing appellate courts to first ensure that district courts
properly calculate the applicable Guidelines range); Tzep-Mejia, 461 F.3d at
526 (“If the district court makes an error in an application of the Guidelines,
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No. 06-40894
we vacate the resulting sentence without reaching the sentence’s ultimate
reasonableness.”).
Even assuming that the district court properly calculated the
Guidelines range such that we could review the sentence as a non-Guidelines
sentence, the district court failed to meet Gall’s requirement that the court
adequately explain its non-Guidelines sentence based on the factors set forth
in § 3553(a). See Gall, 128 S. Ct. at 597. The district court’s statement that it
“considered the arguments made earlier as well as the information in the
report,” suggests that it was aware of the government’s position that the court
could use Bonilla’s prior crime to justify a non-Guidelines sentence. However,
the district court never adopted this reason during the hearing, nor did it
state any other reasons consistent with § 3553(a) to justify a non-Guidelines
sentence. The fact that the district court provided a statement of reasons
consistent with the application of a Guidelines sentence including the
erroneous enhancement undermines the idea that the district court adopted
the government’s non-Guidelines argument.
The statutory problem with the district court’s lack of reasons has
already been noted. But the Supreme Court cases cited by the majority also
indicate that the district court was required to provide more than it did to
adequately explain the non-Guidelines sentence in this case. As quoted by
the majority, Rita indicates that § 3553(c) does not “insist[] upon a full
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No. 06-40894
opinion in every case.” Rita v. United States, 127 S. Ct. 2456, 2468 (2007).
However, the “appropriateness of brevity or length, conciseness or detail,
when to write, what to say, depends upon circumstances.” Id. In the specific
circumstances presented by Rita, the Supreme Court found the district
judge’s brief statement to be legally sufficient for a sentence imposed within
the properly calculated Guidelines range. See id. (“[W]hen a judge decides to
simply apply the Guidelines to a particular case, doing so will not necessarily
require lengthy explanation.”). Rather than reviewing a within-Guidelines
sentence, here, the majority struggles to analyze Bonilla’s sentence as an
alternative non-Guidelines sentence. Under the circumstances of this case,
where the crime-of-violence enhancement was challenged below and the
imposition of a non-Guidelines sentence is dubious, we must require more of
the district court than a simple generalization: “the court has considered the
arguments made earlier . . . and as well as the information in the report
. . . [a]nd keeping in mind the factors that the court has to consider in
imposing a sentence, the court is going to impose a sentence it believes to be
reasonable.” See id. (“Where the judge imposes a sentence outside the
Guidelines, the judge will explain why he has done so.” (emphasis added));
Gall, 128 S. Ct. at 597 (“If [the judge] decides that an outside-Guidelines
sentence is warranted, he must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of
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No. 06-40894
the variance.”). Our deference to district courts in sentencing stems from
their “superior position to find facts and judge their import under § 3553(a)”
and their “institutional advantage” in seeing many more Guidelines sentences
than do appellate courts. See Gall, 128 S. Ct. at 597-98. When a district
court exercises these advantages and provides reasons for its non-Guidelines
sentences, it promotes the perception of fair sentencing and our deference is
certainly warranted. See id. at 597; Rita, 127 S. Ct. at 2463 & 2467. In
contrast, a non-Guidelines sentence based on the district court’s unsupported
conclusion as to reasonableness does not promote perception of fair
sentencing; it hinders it. Moreover, the appellate court is left to speculate as
to the reasons supporting the district court’s sentence, like the majority does
in this case.
The majority’s strained attempt in Part III to explain the
reasonableness of the district court’s sentence provides a glaring example of
the speculation required when the district court fails to provide any reasons
of its own. To provide support for the non-Guidelines sentence that the
district court did not impose, the majority tasks itself with reviewing “the
entire sentencing record” to find reasons the district court may have used had
it imposed a non-Guidelines sentence. But none of the majority’s rationale
was ever mentioned or adopted by the district court. Moreover, the panel
majority seems to admit the inadequacy of the rationale provided by the
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No. 06-40894
district court, finding the district court’s reasons to be “minimally sufficient,”
and “strongly recommend[ing]” that future district courts state reasons
explicitly on the record. The majority recognizes that “[a] clear statement of
reasons on the record also serves to prevent the inefficiency that would result
from remand and resentencing if on appeal we had been unable to determine
the court’s reasons from the record.” This perceived inefficiency in remanding
Bonilla’s individual case, rather than the Supreme Court’s dictates in Gall
and Rita, seemingly drives the majority’s decision to affirm.
While the majority suggests that remand in this individual case may be
inefficient, I believe that affirming this non-Guidelines sentence could create
more troubling inefficiencies in the future. The majority’s opinion may be
taken to say that if the district court indicates any intent to impose an
alternative non-Guidelines sentence, then we as an appellate court will scour
the record to determine whether we can affirm such a sentence. Rita and
Gall made clear that the job of justifying such sentences is not ours. And
while I do not intend to preclude the practice of alternative sentencing by
district courts, alternative sentences must comply with the requirements set
forth in the Sentencing Reform Act and the Supreme Court’s decisions. See
United States v. Smalley, 517 F.3d 208, 213-14 (3d Cir. 2008). I recognize
that were we to remand, the district court could have at its disposal the
necessary tools to impose a reasonable non-Guidelines sentence of 41-months’
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No. 06-40894
imprisonment. See United States v. Lopez-Salas, 513 F.3d 174, 181 (5th Cir.
2008) (per curiam) (noting that a prior violent offense, even if not a “crime of
violence” under the Guidelines, could be used to justify a non-Guidelines
sentence under § 3553(a)). And while this may be true, the Supreme Court’s
recent precedent makes it clear that sentencing is the job of the district court,
not the appellate court. As such, we should vacate and remand to allow the
district court to resentence Bonilla without the erroneous crime-of-violence
enhancement.
For the foregoing reasons, I respectfully dissent.
29