IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2009
No. 08-20620 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PEDRO DAVID GUTIERREZ-HERNANDEZ
also known as Pedro David Gutierrez,
also known as Pedro Gutierrez
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM:
Gutierrez-Hernandez pled guilty to being in the United States following
deportation. The district court increased his prison sentence by applying two
guideline departures that were recommended by the probation officer. Gutierrez
appeals his sentence.
I
The district court adopted the presentence report which preliminarily
calculated a guideline sentence range of 10 to 16 months based on a total offense
level of 10 and a criminal history category of III. The PSR then recommended
two guideline departures. First, it pointed to a 2008 state handgun conviction
No. 08-20620
for which Gutierrez was sentenced to 20 days imprisonment. The report
suggested a departure under § 4A1.3, Inadequacy of Criminal History Category,
because if the crime had been federally prosecuted, Gutierrez would have faced
a greater sentence. Second, the PSR recommended a departure under § 5K2.0,
Other Grounds for Departure, based on a 2003 state drug conviction, which,
based on a police department offense report, the probation officer considered
more serious than the guidelines accounted for. Gutierrez filed written
objections to the upward departures in the PSR. In its statement of reasons, the
district court repeated the language from the PSR and checked the boxes
indicating that both departure provisions applied, thereby increasing Gutierrez’s
offense level from 10 to 17. This resulted in a guidelines range of 30 to 37
months. Gutierrez was sentenced to 30 months.
II
A
Under Gall v. United States,1 our process of reviewing a sentence is
bifurcated. “We first examine whether the district court committed any
significant procedural error, such as: (1) failing to calculate (or improperly
calculating) the applicable Guidelines range; (2) treating the Guidelines as
mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; (4) determining
a sentence based on clearly erroneous facts; or (5) failing to adequately explain
the chosen sentence, including an explanation for any deviation from the
Guidelines range.” 2 Under this step of analyzing for procedural error, we review
the district court’s interpretation or application of the sentencing guidelines de
novo, and its factual findings for clear error.3 Next, if the district court’s decision
1
552 U.S. 38 (2007).
2
United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008).
3
Id.
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No. 08-20620
is procedurally sound, we consider the substantive reasonableness of the
sentence, considering the factors in 18 U.S.C. § 3553(a).4 We apply a
presumption of reasonableness to guideline sentences and review for abuse of
discretion sentences that include an upward or downward departure as provided
for in the guidelines.5
B
Gutierrez asserts that the district court misapplied the departure
guidelines, a procedural challenge that we review de novo. The district court
justified a § 4A1.3 departure by reasoning that Gutierrez’s 2008 state gun
conviction understated his criminal history because if the crime had been
federally prosecuted Gutierrez would have been exposed to prosecution as a felon
in possession of a firearm, an offense that carries a substantially higher sentence
than the state offense.
The prior state sentence may well under-represent the seriousness of
Gutierrez’s criminal history. However, we need not reach that question because
the district court erred in determining the manner in which an adequate
criminal history score is accounted for. The guidelines make plain that a
departure based on the inadequacy of the defendant’s criminal history is made
by adjusting the criminal history category.6 Here, however, despite citing the
departure provision for inadequacy of criminal history, the district court
increased Gutierrez’s offense level, not his criminal history category. A
4
Id.
5
Id.
6
U.S.S.G. § 4A1.3(a)(4)(A) (“[T]he court shall determine the extent of a departure under
this subsection by using, as a reference, the criminal history category applicable to defendants
whose criminal history or likelihood to recidivate most closely resembles that of the
defendant’s.”); United States v. Jones, 905 F.2d 867, 869 (5th Cir. 1990).
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No. 08-20620
departure based on the inadequacy of criminal history is not made by adjusting
the factor that accounts for the offense level of the instant crime.
The procedural error creates a significant difference in the sentencing
range in this case. Increasing Gutierrez’s offense level from 10 to 17 resulted in
a sentencing range of 30 to 37 months. In comparison, a movement from
criminal history category III to category IV would have resulted in a range of 15
to 21 months. Even moving to the highest criminal history category of VI would
have resulted in a range of 24 to 30 months—below the range of 30 to 37 months
reached by adjusting the offense level.
C
The district court also cited § 5K2.0 as a ground for departure. To justify
this guideline departure, the court looked to Gutierrez’s 2003 Texas state
conviction for delivery of a controlled substance. The district court recognized
that the offense did not qualify for the felony drug trafficking enhancement in
§ 2L1.2 as this Court has directly held that, without more detail in the
indictment or other Shepard 7 -approved document, the Texas delivery offense
does not qualify for the enhancement: “The statutory definition of delivery of a
controlled substance in Texas . . . encompasses activity that does not fall within
section 2L1.2's definition of ‘drug trafficking offense.’” 8 For the departure, the
district court looked to the police report—a document it could not consider under
the § 2L1.2 enhancement 9 —to determine that Gutierrez’s conduct involved an
actual sale of cocaine, activity within the federal definition of a drug trafficking
offense, and not merely an offer to sell, which is outside the definition. It
determined that Gutierrez’s conduct would have triggered the enhancement if
7
Shepard v. United States., 544 U.S. 13, 26 (2005).
8
United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007).
9
See Shepard, 544 U.S. at 26; Taylor v. United States, 495 U.S. 575, 600 (1990).
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No. 08-20620
the indictment had described Gutierrez’s conduct in detail. It therefore applied
the § 5K2.0 departure.
A district court cannot escape Taylor and Shepard by looking to a police
report—which it could not earlier use to determine whether a prior conviction
was a drug trafficking offense—to later justify a departure on the basis that the
enhancement should have applied. Even more fundamentally, the 2003
conviction cannot support this departure because prior offenses serve as the
basis for § 4A1.3 departures, which specifically focus on criminal history, and not
§ 5K2.0 departures, which consider circumstances of the instant offense. The
provision identifies inter alia as relevant circumstances death, physical injury,
psychological injury, abduction, and property damage, all pertinent to the
offense at hand.10 The district court committed procedural error under the first
step of Gall; it gave no valid basis for the § 5K2.0 departure and misapplied the
§ 4A1.3 departure.
D
The government urges that this Court can affirm the sentence as
reasonable, under the second step of Gall, despite the procedural error in
calculating the guideline sentencing range. If this case were in the Seventh or
Ninth Circuit that argument might have traction. Those circuits, after United
States v. Booker 11 directed that the Guidelines were advisory, found that the
guideline departures provisions had been “rendered obsolete”12 and “replaced by
the requirement that judges impose a ‘reasonable’ sentence.”13
10
U.S.S.G. §§ 5K2.1–5K2.5.
11
543 U.S. 220 (2005).
12
United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005).
13
United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006).
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No. 08-20620
This Circuit, however, has found otherwise. In a case vacating and
remanding because the district court misapplied a guideline enhancement, we
stated “nothing suggests that Booker injected a reasonableness standard into the
question whether the district court properly interpreted and applied the
Guidelines or that an appellate court no longer reviews a district court's
interpretation and application of the Guidelines de novo.”14 Booker left in force
18 U.S.C. § 3742(f) which provides: “If the court of appeals determines that . . .
the sentence was imposed in violation of law or imposed as a result of an
incorrect application of the sentencing guidelines, the court shall remand the
case for further sentencing proceedings with such instructions as the court
considers appropriate.” A district court must correctly apply the sentencing
guidelines.
Of course, a court may impose a non-guidelines sentence based on the
reasonableness factors in 18 U.S.C. § 3553(a). But one of those factors is the
sentence established by the guidelines.15 The properly-calculated guideline
sentencing range is the point from which the court may vary, a necessary factor
in determining reasonableness. The Eleventh Circuit labels this the
“consultation requirement,”16 and the Third Circuit recognizes that error in
14
United States v. Villegas, 404 F.3d 355, 361 (5th Cir. 2005). It is no salient
distinction that the error in Villegas involved the application of an enhancement provision and
not a departure provision because departures are part of the guidelines: “a sentence that
includes an upward or downward departure as allowed by the Guidelines . . . is also a
Guideline sentence.” United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).
15
18 U.S.C. § 3553(a)(4).
16
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (“This consultation
requirement, at a minimum, obliges the district court to calculate correctly the sentencing
range prescribed by the Guidelines.”). See also United States v. McBride, 434 F.3d 470, 477
(6th Cir. 2006) (“[T]he appropriate Guideline range—including Guideline departures—must
still be considered. . . . This Guideline sentence is then considered in the context of the section
3553(a) factors.”).
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No. 08-20620
calculating the guideline range “may presage the sentence ultimately set.” 17
Without the correct guideline range, the court varies from the wrong point.
Because the district court erred in the application of the departure
provisions we VACATE Gutierrez’s sentence and REMAND for resentencing.
17
United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006).
7