United States v. Mateo

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
December 26, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 05-2266

D EN N Y S M A TEO ,

Defendant - Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D. Ct. No. CR-04-1219)

Edward O. Bustamante, A lbuquerque, New M exico, appearing for A ppellant.

Gregory James Fouratt, Assistant United States Attorney (David C. Iglesias,
United States Attorney, and Laura Fashing, Assistant United States Attorney, on
the brief), Office of the United States Attorney for the District of New M exico,
Albuquerque, New M exico, appearing for Appellee.

Before TA CH A, Chief Circuit Judge, KELLY, and M U RPH Y, Circuit Judges.

TA CH A, Chief Circuit Judge.

Dennys M ateo pleaded guilty to one count of being a felon in possession of

a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

After correctly calculating the advisory Sentencing Guidelines range of 15 to 21
months’ imprisonment, the District Court considered the sentencing factors under

18 U.S.C. § 3553(a), determined that this range was insufficient, and imposed a

sentence of 120 months’ imprisonment— the statutory maximum. On appeal, M r.

M ateo argues that the District Court erred by considering facts concerning prior

arrests that did not result in convictions and maintains that the sentence imposed

is unreasonable. W e take jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

I. BACKGROUND

On M ay 20, 2004, a confidential informant told a Drug Enforcement

Administration (“DEA”) agent that M r. M ateo would be involved in a cocaine

transaction at 8:00 p.m. at a video store parking lot in Albuquerque, New M exico.

Upon investigation, the DEA agent discovered that M r. M ateo had been

previously convicted of grand theft, a third degree felony, on April 13, 1998, in

M iami, Florida. The night of M ay 20, 2004, the Albuquerque police set up

surveillance at the parking lot. W hen a white BM W matching the description

given by the informant arrived, the police approached the car and asked M r.

M ateo, the driver, to step out of the car. As M r. M ateo complied, the officer

observed a revolver in plain view in the side pocket of the driver’s side door. The

gun was a Smith & W esson, Lady Smith, .38 caliber five-shot revolver, loaded

with five rounds of ammunition. Aware that M r. M ateo was a felon, officers

immediately arrested M r. M ateo. A search of the vehicle found suspected

counterfeit currency but no narcotics.

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 On June 23, 2004, a grand jury indicted M r. M ateo on a single count

charging him with being a felon in possession of a firearm and ammunition. M r.

M ateo pleaded guilty to the indictment. Subsequently, the probation office

prepared a presentence report (“PSR”). The PSR determined M r. M ateo’s base

offense level to be 14. See United States Sentencing Guidelines M anual

(“U.S.S.G.” or “Guidelines”) § 2K2.1(a)(6)(A). He received a two-level

reduction in his offense level for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1, for a total offense level of 12. The PSR placed M r. M ateo at a

criminal history category of III because he had six criminal history points for five

prior convictions. Based on the total offense level of 12 and a criminal history

category of III, the PSR calculated the advisory Guidelines imprisonment range to

be 15 to 21 months. M r. M ateo filed three objections to the PSR contesting the

application of the Guidelines in determining his criminal history category, but he

did not object to any of the factual statements included in the PSR, including

those detailing the factual circumstances of multiple prior arrests. At a hearing

on June 13, 2005, the District Court ruled against M r. M ateo’s objections to the

PSR and gave notice to the Government and to M r. M ateo that it was considering

a sentence above the advisory Guidelines range. 1

The PSR discloses the following information. M r. M ateo was born in Cuba

1
On appeal, M r. M ateo does not argue that he was given inadequate notice
as to the basis for the District Court’s decision to impose a sentence outside of the
advisory Guidelines.

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in 1972 and lived there until he was granted political asylum in the United States

in 1995. The report assessed six criminal history points for five convictions

including (1) a 1996 conviction for grand theft of a jewelry store in Oakland Park,

Florida; (2) a 1996 conviction for possession of marijuana in M iami, Florida; (3)

a 1997 conviction for possession of marijuana in M iami, Florida; (4) a 1997

conviction for grand theft of a home in M iami, Florida; and (5) a 2003 conviction

for shoplifting in Albuquerque, New M exico.

Of particular importance in this case, the PSR discloses the following facts

about the 1997 grand theft conviction. In early M ay 1997, M r. M ateo and another

individual approached an apartment where a man was standing at the front door.

M r. M ateo and his accomplice each aimed a .38 caliber revolver at the victim’s

head and forced him into the apartment. There, they tied him up with a phone

cord and covered his head with a pillow case. Several electronic items were taken

from the apartment. M r. M ateo was arrested on M ay 14, 1997, a few days after

the incident, and was initially charged with robbery and kidnapping with a deadly

weapon. Ultimately, the robbery charge was reduced to a lesser charge of grand

theft and the kidnapping charge was dismissed. On April 13, 1998, after pleading

nolo contendere to the felony grand theft charge, M r. M ateo was sentenced to 364

days in the county jail.

In addition to these five convictions, the PSR includes records of seven

additional prior arrests that did not lead to convictions, and one additional

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pending charge. 2 Among the prior arrests was one for attempted murder. The

PSR indicates that police arrested M r. M ateo on M ay 14, 1997, in M iami, Florida

after receiving a report that M r. M ateo and two other individuals fired a gun four

to five times at the victim as he was stopped in his car at a traffic light. Three

rounds struck the victim’s vehicle. The victim explained that the shooting may

have been related to the home invasion that had occurred a few days prior (and

for which M r. M ateo was arrested and convicted in M iami). The subjects were

positively identified, but the victim could not indicate which suspect fired the

shots. The prosecutor filed a nolle prosequi on April 13, 1998.

On October 31, 1999, the Texas D epartment of Public Safety arrested M r.

M ateo for conspiracy to deliver a controlled substance. The PSR indicates that

the case was “rejected” by the District Attorney, but it includes the following

information about the factual background of the arrest:

According to [M r. M ateo’s] signed statement, [M r. M ateo] agreed to
take a van that contained cocaine from Albuquerque, New M exico to
M iami, Florida. [M r. M ateo] had two friends drive the van while
[he] followed the van in his car. The van was stopped for a traffic
violation and was subsequently searched. The cocaine was in the
form of a brick rolled in a pair of pants inside a plastic bag on the
floor. A few miles later, [M r. M ateo] w as stopped and was found to
be in possession of a bag of marijuana. [M r. M ateo] took full
responsibility for the cocaine and stated to officers his friends did not
know the cocaine was in the van. During a search of the van,
officers located a firearm.

2
The PSR actually lists two pending charges. One of those charges,
however, is the charge in this case.

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 Less than a year later, on August 17, 2000, M r. M ateo was arrested in New

M exico, and charged in United States District Court for the District of New

M exico with distribution of cocaine, conspiracy, and aiding and abetting. The

indictment in this case was dismissed without prejudice on October 11, 2000.

On October 19, 2001, police officers in Albuquerque, New M exico arrested

M r. M ateo for aggravated battery with a deadly weapon, armed robbery,

conspiracy, kidnapping, and tampering with evidence related to a jew elry store

robbery in August 2000. According to the PSR, the police reports indicate that

witnesses said three Cuban males jumped the counter and robbed the store at

gunpoint, pushing one victim onto the floor and putting the barrel of a gun to his

head. A confidential informant indicated that M r. M ateo was involved in the

robbery and one of the perpetrators confirmed this information. M r. M ateo went

to trial on these charges, but the court ordered a mistrial after the jury could not

reach a verdict. On August 27, 2002, the District Attorney filed a nolle prosequi.

At the sentencing hearing in this case, the Government took the position

that the Guidelines are presumptively reasonable, and while not advocating a

sentence above the advisory Guidelines range, informed the court that it would

support an upward variance if the court imposed such a sentence. M r. M ateo’s

attorney maintained that the advisory Guidelines range was reasonable given the

facts surrounding the current conviction, and observed that M r. M ateo’s only

prior felony conviction for grand theft was not drug related.

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 After correctly calculating the Guidelines range and acknowledging the

advisory nature of the G uidelines after United States v. Booker, 543 U.S. 220

(2005), the District Court held that in light of the sentencing factors provided by

18 U.S.C. § 3553(a), the Guidelines range of 15 to 21 months was unreasonable.

The court specifically discussed the follow ing § 3553(a) factors:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote respect
for the law , and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant[.]

See 18 U.S.C. § 3553(a)(1)–(2). The court explained its concerns regarding the

adequacy of the advisory Guidelines range in relation to the cited sentencing

factors by observing that M r. M ateo’s record of fourteen total arrests (including

the five for which he was convicted) and two felony convictions in three different

states since he arrived in the United States from Cuba in 1995 indicates “a

comm itment to a criminal lifestyle.” The court acknowledged that M r. M ateo was

never convicted of the more serious charges for which he was arrested, including

aggravated battery with a deadly weapon, kidnapping, conspiracy, and attempted

murder, “but these arrests, in Florida, Texas, and New M exico demonstrate a

pattern of and commitment to a criminal lifestyle by this defendant that is

consistent with criminal activity and patterns one typically sees for armed career

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criminals.” The District Court imposed a sentence of 120 months’ imprisonment,

the statutory maximum for the felon-in-possession conviction.

II. D ISC USSIO N

Post-Booker, we review sentences for reasonableness. See United States v.

Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “Sentencing decisions must be

reversed when a sentence is unreasonable considering the factors enumerated in

18 U.S.C. § 3553(a).” United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006).

To determine whether a sentence is reasonable, we consider both procedural and

substantive aspects of the district court’s decision. See id. In order to be

procedurally reasonable, “a sentence must be ‘reasoned,’ or calculated utilizing a

legitimate method.” Id. W e determine substantive reasonableness by reference to

the actual length of the sentence imposed in relation to the sentencing factors

enumerated in § 3553(a). Id. at 594–95.

A. The District Court did not err by considering uncontested facts included in

the PSR relating to prior arrests that did not result in convictions.

M r. M ateo argues that the District Court erred in considering his prior

arrests that did not result in convictions in concluding that the advisory

Guidelines range of 15 to 21 months w as unreasonably low. W e find no error in

the method by which the District Court determined the advisory sentence to be

insufficient punishment for M r. M ateo.

It is well established that the sentencing court is entitled to rely on

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uncontested facts contained in the PSR for certain sentencing purposes. See Fed.

R. Crim. P. 32(i)(3)(A) (“At sentencing, the court . . . may accept any undisputed

portion of the presentence report as a finding of fact . . . .”); United States v.

Wolfe, 435 F.3d 1289, 1299 (10th Cir. 2006) (“[W ]e recognize that post-Booker

this court has refused to treat unobjected-to PSR facts as admitted for Sixth

Amendment Booker purposes. . . . [O]utside the Booker context, [however,] we

will still rely on unobjected-to facts for other sentencing purposes.” (citation

omitted)). As we have explained, “Booker has not relieved a defendant of his

obligation under Rule 32(i)(3)(A) to point out factual inaccuracies included in the

PSR .” Wolfe, 435 F.3d at 1299. Neither in his formal objections to the PSR at

sentencing nor on appeal did M r. M ateo challenge any of the facts included in the

PSR, including the facts surrounding his fourteen arrests, two felony convictions,

and the pending charge. 3

Nevertheless, M r. M ateo argues that the District Court’s reference to his

prior arrest record violates the Guidelines’ policy statement prohibiting the

consideration of a “prior arrest record itself” for purposes of an upward departure.

3
At the sentencing hearing prior to the imposition of sentence, M r. M ateo
made a short statement through a translator. He said, “I would like to tell you,
Judge, that I had nothing to do with that case, and that is why I w ent to trial.”
This statement apparently refers to the six-count indictment relating to the
jewelry store robbery in A lbuquerque, New M exico. On appeal, however, M r.
M ateo does not claim that the facts in the PSR are inaccurate or that the PSR
includes information that is not reliable. Instead, he only argues that the court’s
consideration of his arrests generally is error as a matter of law.

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See U.S.S.G. § 4A1.3. To this end, he notes that 18 U.S.C. § 3553(a)(5) requires

a sentencing court to consider “any pertinent policy statement” from the

Guidelines. The sentencing transcript makes clear, however, that the District

Court did not rely on M r. M ateo’s arrest record itself in making its determination

as to the reasonableness of the advisory Guidelines sentence. Rather, it

extrapolated from the uncontested facts in the PSR— including the number,

frequency, and seriousness of M r. M ateo’s various arrests and convictions— to

draw conclusions about characteristics relevant to sentencing factors enumerated

in 18 U.S.C. § 3553(a). Compare United States v. Dixon, 318 F.3d 585, 591 (4th

Cir. 2003) (holding sentencing court did not run afoul of policy statement

prohibiting consideration of “a prior arrest record itself” for purposes of upward

departure under U.S.S.G. § 4A1.3(a)(3) when it considered uncontested

information in PSR about criminal conduct leading to arrests); United States v.

W illiam s, 989 F.2d 1137, 1142 (11th Cir. 1993) (same); United States v. Torres,

977 F.2d 321, 330 (7th Cir. 1992) (same); with United States v. Zapete-Garcia,

447 F.3d 57, 61 (1st Cir. 2006) (vacating as unreasonable a sentence that was

based in part on the mere existence of a decade-old unrelated prior arrest).

The sentencing court is well within its discretion and, indeed, is required to

carefully consider the facts contained in the PSR when evaluating the § 3553(a)

sentencing factors, including “the history and characteristics of the defendant,”

and the need for a sentence to “afford adequate deterrence to criminal conduct,”

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and “to protect the public from further crimes of the defendant.” 18 U.S.C.

§ 3553(a)(1), (a)(2)(B), (a)(2)(C). W e have noted that “[n]o limitation” should be

placed on “the information concerning the background, character, and conduct of

a person . . . for the purpose of imposing an appropriate sentence.” United States

v. M agallanez, 408 F.3d 672, 684 (10th Cir. 2005) (quoting 18 U.S.C. § 3661).

Therefore, we conclude that the District Court did not err in considering the

uncontested facts in the PSR relating to M r. M ateo’s prior arrests and by using

those facts to determine the adequacy of the advisory Guidelines sentencing range

in fulfilling the relevant sentencing objectives described in § 3553(a)(2). Cf.

Zapete-Garcia, 447 F.3d at 61 (observing that “a series of past arrests might

legitimately suggest a pattern of unlawful behavior even in the absence of any

convictions”).

B. The District Court did not err by making reference to a section of the

Guidelines that is not applicable under the facts in this case.

In handing down its sentence, the D istrict Court compared M r. M ateo’s

history to that of an “armed career criminal.” A n “armed career criminal” is

subject to the enhanced penalties of 18 U .S.C. § 924(e), which imposes a

minimum sentence of 15 years’ incarceration for being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g) if the offender has three previous

convictions for qualifying violent felonies, serious drug offenses, or both. 18

U.S.C. § 924(e)(1); see also U.S.S.G. § 4B1.4 (implementing 18 U.S.C. § 924).

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W hen the District Court imposed its sentence, it explained:

I recognize that the most serious crimes the defendant was arrested
for— such as aggravated battery with a deadly weapon, kidnaping,
conspiracy, and attempted murder— were all nolle prossed, but these
arrests in Florida, Texas, and New M exico demonstrate a pattern of
and commitment to a criminal lifestyle by this defendant that is
consistent with criminal activity and patterns one typically sees for
armed career criminals.

M r. M ateo argues that the armed career criminal provision is inapplicable and is

not relevant to determining the sentence to be imposed. 4

In Cage, we explained that “[w]hen a district court makes a sentencing

decision, it must interpret Congress’s intentions in passing sentencing laws.” 451

F.3d at 593. W e further explained that even though the Guidelines are no longer

mandatory, they represent “an expression of popular political will about

sentencing that is entitled to due consideration” in fashioning a sentence. Id. W e

4
The Government does not contend that M r. M ateo’s prior arrests, if they
had resulted in convictions, would be sufficient to subject him to the provisions
of the armed career criminal statute. W e note, however, that M r. M ateo’s 1997
arrest for attempted murder, as well as the October 2001 aggravated battery with a
deadly weapon and armed robbery charges arising from the jewelry store robbery,
would presumably qualify under the statute as violent felonies. See 18 U.S.C.
§ 924(e)(2)(B)(i)–(ii) (defining a “violent felony” as “any crime punishable by
imprisonment exceeding one year . . . that . . . (i) has as an element the use,
attempted use, or threatened use of physical force against the person of another;
or (ii) . . . involves conduct that presents a serious potential risk of physical
injury to another ”). Also, the 1999 arrest for conspiracy to deliver a “brick” of
cocaine could have qualified as a serious drug offense under the statute. See 18
U.S.C. § 924(e)(2) (defining a “serious drug offense” as “an offense under the
Controlled Substances Act (21 U.S.C. § 801 et seq.) . . . for which a maximum
term of imprisonment of ten years or more is prescribed by law”).

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cannot agree with M r. M ateo’s claim that the District Court’s reference to the

armed career criminal statute is inappropriate w hen considering what sentence to

impose. It is clear that the District Court did not apply the armed career criminal

provision to M r. M ateo because the minimum sentence applicable for such an

offender is 15 years’ (or 180 months’) incarceration. Rather, the sentencing

transcript indicates that the court sought guidance from the armed career criminal

provision as to the appropriate length of incarceration given M r. M ateo’s criminal

history as disclosed by the unchallenged facts in the PSR. The G uidelines are

clearly relevant when determining an appropriate sentence, and in this case, the

District Court’s reference to the Guidelines in searching for a guidepost is not

error. See id.; cf. Wolfe, 435 F.3d at 1304 n.12 (“‘[A]nalogizing to other

guidelines is a primary method by which district courts may justify the

reasonableness of their departure.’” (quoting United States v. Neal, 249 F.3d

1251, 1261 (10th Cir. 2001)) (alteration in original)).

C. The magnitude of the D istrict Court’s deviation from the advisory

Guidelines range was substantively reasonable.

A sentence within the correctly determined advisory Guidelines range is

entitled to a rebuttable presumption of reasonableness, Kristl, 437 F.3d at 1054,

but an “extreme divergence” from the advisory Guidelines range will be

reasonable “if the facts of the case are dramatic enough to justify such a

divergence,” Cage, 451 F.3d at 594–95. M r. M ateo asserts that the length of his

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sentence— 120 months’ incarceration— is unreasonable given that the correctly

calculated advisory Guidelines sentence range was 15 to 21 months’

imprisonment. W e conclude that the magnitude of the District Court’s deviation

from the advisory Guidelines range, while extreme, was reasonable.

In Cage, we explained that this Court looks to the “discrepancy between the

advisory guidelines range and the actual sentence” to determine w hether a

sentence is reasonable. Cage, 451 F.3d at 594. “[T]he farther the trial court

diverges from the advisory guideline range, the more compelling the reasons for

the divergence must be.” United States v. Valtierra-Rojas, — F.3d — , 2006 W L

3237187, at *3 (10th Cir. 2006) (alteration omitted). In other words, how

compelling the justification must be to render an extra-Guidelines sentence

reasonable “is proportional to the extent of the difference between the advisory

range and the sentence imposed.” United States v. Bishop, — F.3d — , 2006 W L

3237027, at *10 (10th Cir. 2006).

In determining how compelling the justification for a particular sentence

must be, we consider both the “percentage of divergence” from the advisory range

and the “absolute number of months above or below the Guidelines range.”

Valtierra-Rojas, 2006 W L 3237187, at *3. In Cage, we held that the district

court’s six-day sentence w as an “extreme” divergence from the G uidelines-

recommended sentence of at least 46 months; therefore, the sentence “must be

supported by extraordinary circumstances.” Cage, 451 F.3d at 594. W e found the

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sentence unsupported by the type of extraordinary circumstances that might

legitimatize it because the sentencing court failed to cite any § 3553(a) factors

that were peculiar to the defendant. Instead, the court based its divergence only

on those factors that were common to many defendants— in that case, the

defendant’s status as a single mother. Id.; see also United States v. Rattoballi,

452 F.3d 127, 133 (2d Cir. 2006) (explaining that under substantive

reasonableness review “a non-Guidelines sentence that rests primarily upon

factors that are not unique or personal to a particular defendant” is “inherently

suspect”). From Cage, it follows that whether the rationale provided by the

sentencing court for a non-Guidelines sentence is sufficiently compelling is

determined by considering whether the particular characteristics of the defendant

the court relied upon in fashioning the sentence are commonplace— and therefore

presumably are already part of the Guidelines calculation— or are sufficiently

uncomm on to justify a divergence from the presumptively reasonable Guidelines

sentence. See Cage, 451 F.3d at 595–96 (determining facts relied upon by district

court to justify “extreme divergence” were not “particularly out of the ordinary”

and therefore could not justify sentence).

Since Cage, we have held that the “comparative difference” between a

defendant’s 78-month sentence and the advisory-range maximum of 57 months (a

37% increase) was a “significant increase” requiring “sufficient explanation and

justification,” see Bishop, 2006 W L 3237027, at *10, and that the difference

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between a 60-month sentence and the advisory-range maximum of 27 months (a

122% increase) was “substantial” and required “compelling reasons” to support

the district court’s decision, see Valtierra-Rojas, 2006 W L 3237187, at *3.

Though we required compelling reasons to support the sentence in Valtierra-

Rojas, we did not require the same kind of “dramatic facts” as w e required in

Cage because, we noted, the sentencing court in Cage “effectively ignore[d] the

advice of the Guidelines” to essentially impose “no prison sentence at all.” See

Valtierra-Rojas, 2006 W L 3237187, at *3 (alteration in original).

W hile “[t]he nature of the inquiry announced in Cage (the greater the

divergence, the more compelling the reasons) is not one that allows for precision

in measurement,” Valtierra-Rojas, 2006 W L 3237187, at *3, it is clear that the

District Court’s divergence from the advisory range here is of the extreme type

akin to that in Cage requiring a “compelling” justification supported by “dramatic

facts.” Here, the District Court increased M r. M ateo’s sentence by 471% above

the high end of the advisory range of 21 months— more than eight years longer

than he w ould serve if he w as sentenced in accordance with the advisory

Guidelines.

The District Court determined that this sentence was warranted because of

M r. M ateo’s exceptional history and the fact that the advisory Guidelines

sentence did not fully reflect the serious nature of his criminal record. M r.

M ateo’s history as presented in the uncontested facts of the PSR discloses

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significant contact with the criminal justice systems in three different states over

a relatively short period of time. The sentence reflects the District Court’s w ell-

justified concern that M r. M ateo’s frequent brushes with the law indicate “a

commitment to a criminal lifestyle.” The import of this finding and the court’s

citation to the § 3553(a) factors is plain: M r. M ateo’s sentences for prior

convictions have not been effective at deterring him from engaging in criminal

behavior and the public requires protection from M r. M ateo’s demonstrated

penchant for criminality. See § 3553(a)(2)(B), (a)(2)(C); cf. United States v.

Fairclough, 439 F.3d 76, 80–81 (2d Cir. 2006) (holding 48-month sentence,

which was 21 months higher than the maximum advised by Guidelines, was

reasonable based on district court’s conclusion that defendant “had a relatively

uninterrupted string of criminal activity and arrests” and “interaction after

interaction with the criminal justice system”). Based on these specific

circumstances and the District Court’s use of the armed career criminal provision

as a guidepost to gauge the length of the sentence, the District Court imposed a

reasonable sentence.

III. C ON CLU SIO N

W e conclude that the District Court did not err by looking to the armed

career criminal portion of the Guidelines to help determine the appropriate weight

to give to the unique lifestyle characteristics of this defendant as disclosed by the

uncontested facts available in the PSR. W e also conclude that based on those

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dramatic facts, the sentence imposed was reasonable. W e AFFIRM the judgment

of the District Court.

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No. 05-2266, United States v. M ateo
M U RPH Y, Circuit Judge, joined by KELLY, Circuit Judge, concurring.

I concur in the majority’s well-stated opinion. I write separately, however,

to express serious misgivings with this court’s precedents that usurp the district

courts’ sentencing discretion.

On appeal, M ateo asserts as follows: (1) the sentence imposed by the

district court is contrary to the policy considerations set out in the Sentencing

Guidelines; and (2) the sentence imposed by the district court is unreasonable in

reference to the factors set out in 18 U.S.C. § 3553. The majority persuasively

and correctly rejects both of M ateo’s contentions.

A district court is not free to impose a sentence outside the range set out in

the advisory Sentencing Guidelines based simply on its disagreement with the

policies underlying the Guidelines. United States v. M cCullough, 457 F.3d 1150,

1171-72 (10th Cir. 2006) (discussing variances from the advisory Guidelines

range based on mere disagreement with the 100:1 crack to powder cocaine ratio

set out in the Guidelines). The Guidelines specifically prohibit upward departures

from an advisory Guidelines range based solely on a defendant’s arrest record.

U.S.S.G. § 4A1.3(a)(3) (“A prior arrest record itself shall not be considered for

purposes of an upward departure under this policy statement.”). M ateo contends

the sentence imposed by the district court is contrary to § 4A1.3(a)(3).

In contrast to M ateo’s assertion, a close review of the sentencing transcript

demonstrates the district court did not simply rely on the existence of M ateo’s
arrest record in deciding to impose a sentence outside of the advisory Guideline

range. Instead, the district court began the sentencing process by properly

calculating M ateo’s advisory Guidelines range. The district court then balanced

that range and the policy statements underlying the Guidelines, 18 U.S.C. §

3553(a)(4), (5), with M ateo’s background and characteristics, the circumstances

of the offense, and the need to provide adequate deterrence and protect the public

from further crimes, id. § 3553(a)(1), (2). As part of the district court’s balancing

of the § 3553(a) factors, the district court concluded M ateo’s character and

background— specifically including his extensive, consistent, and serious

involvement in criminal activity, as evidenced by his prior convictions, prior

arrests, and the circumstances surrounding the prior arrests— “demonstrate[d] a

pattern of and commitment to a criminal lifestyle . . . that is consistent with

criminal activity and patterns one typically sees for armed career criminals.”

Thus, under the very unique circumstances of this case, the factors set out in §

3553(a)(1) and (2) justified a sentence significantly higher than set out in the

advisory Guidelines range. The sentence imposed by the district court is not a

rejection of the policy statements in § 4A1.3(a)(3), but a careful balancing of the

factors set out in § 3553(a).

I also agree with the majority that the sentence imposed by the district

court is reasonable and that such a conclusion is faithful to this court’s precedents

regarding appellate review of sentences for reasonableness. See M ajority Op. at

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13-14 (collecting and analyzing cases). W hat I question is this court’s developing

insistence that district courts take extraordinary steps to justify sentences outside

the range set out in the advisory Sentencing Guidelines. United States v. Cage,

451 F.3d 585, 593-95 (10th Cir. 2006) (holding that sentencing factors set out in

§ 3553(a) relating to the advisory Guidelines range are more important than other

statutory factors and that the further a sentence deviates from the advisory

Guidelines range the greater the justification a district court must provide); see

also United States v. Shaw, No. 05-6074, 2006 W L 3505339, at *4 (10th Cir. Dec.

6, 2006) (applying Cage and affirming sentence 48% above advisory Guidelines

range because the district court had identified a “substantial justification” for the

divergence); United States v. Valtierra-Rojas, No. 05-3390, 2006 W L 3237187, at

*3 (10th Cir. Nov. 9, 2006) (holding that in light of Cage, court was obligated to

closely examine sentence 122% above high end of the advisory sentencing range);

United States v. Bishop, No. 05-3173, 2006 W L 3237027, at *10 (10th Cir. Nov.

9, 2006) (holding that in light of Cage, a 37% deviation from the advisory

Guidelines range “is a significant increase that requires sufficient explanation and

justification”).

It is absolutely clear following the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220, 259-60 (2005), that when imposing a sentence the

district courts must consider the factors set out in § 3553(a). As noted by the

Court in Booker, the range set out in the advisory Sentencing Guidelines and the

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policy statements of the Sentencing Commission are among those factors. Id.

Nothing in either Booker or the plain text of § 3553(a) indicates that the

sentencing factors relating to the Sentencing Guidelines have primacy over the

sentencing factors not relating directly to the Guidelines. Under this circuit’s

precedents, however, some of the statutory sentencing factors are apparently more

equal than others. Cage, 451 F.3d at 593-94 That is, the greater the deviation

from the range set out in the advisory Sentencing Guidelines, the greater the

burden on the district court to justify the sentence. Id. at 594. The rule set out in

Cage has led to the utterly bizarre circumstance where this court tries to quantify,

in something that looks just like de novo review, just how extreme the

circumstances must be to justify a 471% (or 122% , 48% , 37% ) deviation from the

advisory Guideline range. But see Booker, 543 U.S.. at 259 (specifically noting

that provision of 18 U.S.C. § 3742(e) requiring de novo review of departures from

the applicable Guideline range must be severed to render the Sentencing Reform

Act constitutional).

This case is a perfect example of the irrationality of appellate review of

sentences in this circuit. The federal district courts impose sentences on

numerous defendants and have a clear institutional advantage when it comes to

discerning which defendants are in need of harsh punishment and which are in

need of leniency. In this case, the district court brought that institutional

advantage to bear, concluding that M ateo was an exceptionally dangerous

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individual in need of an exceptionally severe sentence. In so doing, the district

court weighed M ateo’s personal characteristics, the circumstances of his crime,

the need to protect the public, and the need for deterrence with the policy

statements of the Sentencing Commission and the advisory range set out in the

Guidelines. On appeal, pursuant to the system required by Cage, this court is

required to undertake that same analysis, but without the institutional advantage

native to the district court, all in what would appear to be an attempt to force the

district courts to hew as close to the Guidelines range as possible. It is odd,

indeed, to see how quickly the appellate standard of reasonableness set out in

Booker has morphed into a mathematical exercise pegged exclusively to those

sentencing factors in § 3553(a) relating to the advisory Guidelines. But see

Booker, 543 U.S. at 261 (“Section 3553(a) remains in effect, and sets forth

numerous factors that guide sentencing.”)

Although many might bemoan the decision in Booker, it is the law of the

land. The Guidelines are no longer mandatory and it is improper for this court to

impose a system of appellate review that seeks to return this circuit, de facto, to a

mandatory system. As recently noted by the Seventh Circuit,

[T]he standard of reasonableness, introduced by the Booker
decision, confers broad sentencing discretion. The judge must
consider the guidelines but is in no sense bound by them. He is
bound only by the statutory sentencing factors, 18 U.S.C. § 3553(a),
which are both numerous and vague, thus giving the judge a great
deal of running room.

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United States v. Bullion, 466 F.3d 574, 575 (7th Cir. 2006). The district court

here recognized that it was required to consider the factors in § 3553(a) in

arriving at a sentence, and it did in fact consider those factors. W ere I the

sentencing judge, I might not have imposed the same sentence as did the district

court. The balance struck by the district court, however, is certainly not

unreasonable. For that reason alone, I w ould affirm the district court. Id. at 577

(holding that arguments like those at issue in this case, i.e., the district court

struck the wrong balance of mitigating and aggravating circumstances in arriving

at a sentence, “are arguments to address to a sentencing judge, not to an appellate

court. No precise weights can be assigned to such factors in the sentencing

balance . . . . The striking of a balance of uncertainties can rarely be deemed

unreasonable . . . .”). Nevertheless, because Cage requires the analysis

undertaken in the majority opinion, I respectfully concur.

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