United States v. Alonzo

United States Court of Appeals
Fifth Circuit
F I L E D
January 9, 2006
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

No. 05-20130

UNITED STATES of AMERICA,

Plaintiff-Appellee,

v.

AURELIO ALONZO, Jr.,

Defendant-Appellant.

Appeal from the United States District Court for the
Southern District of Texas

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge.

The defendant-appellant Aurelio Alonzo, Jr. (“Alonzo”) appeals his post-Booker1 Guidelines

sentence, arguing that the district court’s use of his relevant conduct to calculate his base offense level

violates the Sixth Amendment. Alonzo also argues that his Guidelines sentence is unreasonable

because it was calculated based solely upon his relevant conduct without respect to the conduct

1
United States v. Booker, 125 S. Ct. 738 (2005).
underlying his offense of conviction. Finding no error, we affirm.

Alonzo was charged in three counts of a thirteen-count superceding indictment that alleged

a large drug-trafficking conspiracy involving twenty codefendants. Alonzo pleaded guilty to count

twelve, which charged him with aiding and abetting the possession with intent to distribute fifty-three

kilograms of marijuana on June 1, 2003, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. At his

plea hearing, Alonzo admitted the conduct underlying this count.

The Presentence Report (PSR) determined his base offense level to be twenty-four pursuant

to U.S.S.G. § 2D1.1(c)(8), finding that he was responsible for eighty-eight kilograms of marijuana that

had been seized on May 14, 2003. After receiving certain reductions and a § 5K1.1 downward

departure, his total offense level was seventeen. With a criminal history score of I, his Guideline range

was twenty-four to thirty months of imprisonment.

Alonzo objected, arguing it was error to hold him responsible for the eighty-eight kilograms

of marijuana seized May 14, 2003, because he had pleaded only to possessing fifty-three kilograms

of marijuana on June 1, 2003. The dist rict court overruled his objections, adopted the PSR, and

denied his motion to withdraw his plea. The court sentenced him at the lowest end of the range and

stated that it had “considered the Guidelines” and found that “the sentence within those Guidelines is

consistent and takes into account the purposes of 18, United States Code, Section 3553(a).” Alonzo

was sentenced to 24 months imprisonment and a three-year term of supervised release. Alonzo now

appeals.

I. Sixth Amendment Challenge

Alonzo argues that because his sentence was based entirely on relevant conduct that was not

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proven beyond a reasonable doubt or admitted by him, it violates the Sixth Amendment as interpreted

by the Supreme Court in United States v. Booker, 125 S. Ct. 738 (2005). However, at sentencing for

the instant conviction, Alonzo did admit to the court his involvement in the May 14, 2003, delivery

and seizure of eighty-eight kilograms o f marijuana, the relevant conduct at issue. Under these

circumstances, even if Alonzo had been sentenced under the mandatory regime, there would not have

been a Sixth Amendment violation. See Booker, 125 S.Ct. at 756 (“Any fact . . . which is necessary

to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty

or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”)

(emphasis added).

Moreover, regardless of whether Alonzo admitted his involvement in the relevant conduct, he

was sentenced after the Supreme Court decided Booker and therefore sentenced under a discretionary

regime. Contrary to Alonzo’s argument, “Booker contemplates that, with the mandatory use of the

Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts

relevant to sentencing.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126

S.Ct. 43 ( 2005) (citing Booker, 125 S.Ct. at 750, 764); see also United States v. Malveaux, 411 F.3d

558, 560 n.9 (5th Cir. 2005) (recognizing that it is a direct contradiction of Mares to contend that

“Booker prohibits a judge from finding any facts used to enhance a sentence” ). It is apparent that

facts relevant to sentencing include relevant conduct under U.S.S.G. § 1B1.3. See United States v.

Duncan, 400 F.3d 1297, 1305 (11th Cir. 2005) (holding that Booker allows a sentence to be calculated

based upon relevant conduct of which the defendant was acquitted).2 Because the district court

2
See also United States v. Pontier, 2005 WL 3105648 (4th Cir. Nov. 21, 2005) (unpublished) (holding that
the district court did not err by using the amount of drugs reasonably attributable to the defendant to calculate the post-
Booker sentencing range); see also United States v. Wroblewski, 2005 WL 3287501 (5th Cir. Dec. 2, 2005)

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properly included Alonzo’s relevant conduct in determining the Guideline range, Alonzo has not

shown a Sixth Amendment violation.

II. Reasonableness of Post-Booker Guidelines Sentence

Alonzo’s reasonableness challenge to his post- Booker Guidelines sentence is also based upon

the district court’s use of his relevant conduct to calculate his Guideline range. Specifically, Alonzo

contends that his guidelines sentence is unreasonable “due to the fact that he was sentenced not for

what he pled guilty to, but solely for relevant conduct.”

In Mares, this Court recognized that “[t]he Guideline range should be determined in the same

manner as before Booker/Fanfan.” 402 F.3d at 519. As previously set forth, Booker contemplates

that a sentencing judge will determine facts relevant to sentencing, including relevant conduct. This

is Alonzo’s sole basis for arguing that his sentence is unreasonable. Alonzo has failed to argue, much

less demonstrate ,that his sentence was improperly calculated under the Guidelines. “If the sentencing

judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in

our reasonableness review we will infer that the judge has considered all the factors for a fair sentence

set forth in the Guidelines.” Mares, 402 F.3d at 519. Here, we need not make such an inference

because the district court explicitly stated that it had considered the Guidelines and the factors in 18

U.S.C. § 3553(a), and the sentence reflects as much.

“Given the deference due the sentencing judge’s discretion under the Booker/Fanfan regime,

it will be rare for a reviewing court to say such a sentence is ‘unreasonable.’” Id. Furthermore, when

(unpublished) (explaining that, although the pre-Booker sentence must be remanded because the government conceded
the error was not harmless, for purposes of remand it was not clear error to use the defendant’s prior drug trafficking
as relevant conduct).

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a sentencing judge imposes a properly calculated Guidelines sentence, “we will give great deference

to that sentence.” Id. at 520. The Third, Seventh, and Eighth Circuits have determined that properly

calculated sentences are entitled to a rebuttable presumption of reasonableness. United States v.

Gonzalez, 134 Fed.Appx. 595 (3rd Cir. June 20, 2005) (unpublished); United States v. Mykytiuk, 415

F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir. 2005); see

also United States v. Washington, 404 F.3d 834, 850 (4th Cir. 2005) (Luttig, J., dissenting) (opining

that because the sentence is in accordance with the Guidelines it is presumptively reasonable). 3

Similarly, the Eleventh Circuit has opined that “ordinarily we would expect a sentence within the

Guidelines range to be reasonable.” United States v. Talley, __ F.3d __, 2005 WL 3235409 (11th Cir.

Dec. 2, 2005). However, in a summary order, the Second Circuit has expressly declined to afford a

presumption of reasonableness to Guidelines sentences. United States v. Spencer, 2005 WL 2327222

*1 (2d Cir. Sept. 21, 2005) (unpublished).

We agree with our sister circuits that have held that a sentence within a properly calculated

Guideline range is presumptively reasonable. In stating this, we do not intend to add to a defendant’s

burden of demonstrating that a sentence is unreasonable; instead, we are simply recognizing that our

language in Mares comports with subsequent precedent from other circuits. In other words, there

does not seem to be a practical difference between the burden of rebutting a presumption of

reasonableness afforded a properly calculated Guideline range sentence and the burden of overcoming

the great deference afforded such a sentence. Indeed, the Second Circuit apparently perceives the

burdens as similar because it cited Mares in the context of discussing other circuits that employ a

3
The Washington majority opinion found that the Sixth Amendment error was plain and therefore did not
reach the issue of whether a properly calculated Guideline range sentence is presumptively reasonable.

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rebuttable presumption of reasonableness. Spencer, at *1.

Additionally, the Second, Sixth ,and Eleventh Circuits have rejected deeming a sentence in an

applicable Guideline range reasonable per se. United States v. Crosby, 397 F.3d 103, 115 (2d Cir.

2005); United States v. Webb, 403 F.3d 373, 385 n.9 (6th Cir. 2005); United States v. Talley, __ F.3d

__, 2005 WL 3235409 *3 (11th Cir. Dec. 2, 2005). We likewise decline to find a properly calculated

Guidelines sentence reasonable per se. “To say that a sentence within the Guidelines range is ‘by

itself’ reasonable is to ignore the requirement that the district court, when determining a sentence, take

into account the other factors listed in section 3553(a).” Talley, 2005 WL 3235409 at * 3.

In the instant case, the district court properly took into consideration Alonzo’s relevant

conduct in determining his sentencing range under the Guidelines. Thus, Alonzo’s sole argument is

without merit. He has failed to demonstrate that his properly calculated Guidelines sentence, which

was at the lowest end of the range, was unreasonable. He is not entitled to relief.

For the above reasons, the district court’s judgment is AFFIRMED.

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