United States Court of Appeals
For the First Circuit
No. 03-1496
UNITED STATES OF AMERICA,
Appellee,
v.
NICHOLAS ESTEVEZ,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Raymond E. Gillespie, on brief for appellant.
David H. Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, on brief, for
appellee.
August 17, 2005
TORRUELLA, Circuit Judge. The Supreme Court remanded
this appeal so that we might consider whether the defendant's
sentence comports with the appropriate implementation of the U.S.
Sentencing Guidelines, as expounded in United States v. Booker, 543
U.S. ---, 125 S. Ct. 738 (2005). We hold that it does.
I. Background
After a jury trial, Nicholas Estevez was convicted of (1)
conspiracy to possess with intent to distribute a quantity of
cocaine base; (2) possession of cocaine base with intent to
distribute and distribution of same on or about August 6, 1999 in
Worcester, Massachusetts; and (3) possession of cocaine base with
intent to distribute and distribution of same on or about
September 2, 2000 in Worcester, Massachusetts. The latter two
counts also included charges of aiding and abetting such
distribution.
The district court found that Estevez qualified as a
Career Offender under § 4B1.1 of the Sentencing Guidelines, based
on two prior simple assault convictions under Massachusetts law,
which the court found to be crimes of violence. This finding
placed Estevez in Career History Category VI pursuant to U.S.S.G.
§ 4B1.1, and raised Estevez's Total Offense Level ("TOL") to 37.
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The sentencing range corresponding to a TOL of 37 and a Category VI
Criminal History is between 360 months and life.1
The sentencing court, however, found sua sponte that the
Career Offender Guideline overstated Estevez's criminal history and
warranted a downward departure. Accordingly, the court imposed a
sentence of 262 months. His sentence was affirmed on appeal by
this court on May 4, 2004. The Supreme Court granted certiorari on
January 24, 2005, vacated the judgment, and remanded to this court
for further consideration in light of its decision in Booker, 125
S. Ct. 738. United States v. Estevez, 125 S. Ct. 1034 (2005).
II. Analysis
A. Booker
We begin our analysis by noting that Estevez concedes
that his claim of Booker error was not preserved. See United
States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005) ("The
1
Had the district court not found that Estevez had been convicted
of two prior crimes of violence, he would not have qualified as a
career offender, and his Total Offense Level would have been 34.
The district court found that the Base Offense Level ("BOL") for
the conviction, involving 122.2 grams of cocaine base, was 32. See
U.S.S.G. § 2D1.1(a)(3). The court found that Estevez's escape from
state custody qualified as obstruction of justice warranting a two-
level upward adjustment to 34. See U.S.S.G. § 3C1.1. In
calculating Estevez's criminal history score, the court determined
that his prior convictions added up to 6 points and that 2 more
points should be added because the current offense occurred while
Estevez was subject to state criminal sentences. See U.S.S.G.
§ 4A1.1(d). Thus, absent the career offender finding, Estevez's
Total Offense Level of 34 and Category IV Criminal History would
have resulted in a Guidelines sentencing range of 210 to 262
months.
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argument that a Booker error occurred is preserved if the defendant
below argued Apprendi or Blakely error or that the Guidelines were
unconstitutional.").2 Thus, we review the district court's
sentencing decision for plain error. Id. at 75.
Since the "defendant's Guidelines sentence was imposed
under a mandatory Guidelines system," we recognize that a clear and
obvious error has occurred. Id. Still, for Estevez's claim to
survive plain error review, he must show a "reasonable probability"
that the district court would have imposed a lower sentence had it
treated the Sentencing Guidelines as advisory. Id. Because we
recognize that judges may not have expressed their reservations to
what, at that time, they understood were mandatory Guidelines, "we
are inclined not to be overly demanding as to proof of
probability." United States v. Heldeman, 402 F.3d 220, 224 (1st
Cir. 2005). Nevertheless, the defendant must point to something,
"either in the existing record or by plausible proffer," that
indicates that there is a reasonable probability that the district
judge would have imposed a different sentence. Id.
In this case, it appears unlikely that the district court
would have sentenced Estevez more leniently under advisory
Guidelines. The sentencing judge made a number of statements
2
At the outset, "[w]e decline the Defendant['s] invitation to
ignore Antonakopoulos. Absent unusual circumstances not present
here, panels of this court are bound by prior circuit decisions."
United States v. Villafañe-Jiménez, 410 F.3d 74, 85 (1st Cir.
2005).
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indicating his belief in the appropriateness of the sentence
imposed. He stated: "I intend to impose a sentence of 262 months.
It is a deserved sentence by this defendant. I don't think 30
years is. And therefore, I would be departing downward by [about]
eight years." He further stated, "It's not that I feel that this
defendant is not a serious felon, nor that he doesn't deserve a
very substantial sentence for the crime he committed. But I do
feel under the circumstances that . . . [he] is entitled to a
relatively modest departure." He explained:
As I said at the outset of these proceedings,
I feel that defendant deserves a very lengthy
sentence for all of the reasons stated by the
government in its argument that I ought to
impose a 30-year sentence. I have, for the
reasons stated, decided not to impose a 30-
year sentence because I think under these
circumstances that sentence is draconian and
uncalled for. That does not mean for a moment
that I believe that this defendant deserves a
slap on the wrist or a short sentence because
what he did in his short stay in this country,
after illegally entering it, was to commit
several heinous crimes. He was afforded a
trial. The jury found him guilty, and I am
now going to impose a severe sentence against
him, notwithstanding the fact that I have
departed downward from what otherwise would be
the requirement of a 30-year sentence.
Having concluded that thirty years would be too severe a sentence
for the crimes committed, the court chose to depart downward by
approximately eight years. From the sentencing transcript, it
appears that the judge felt that he could have granted a greater
departure if he felt that one was warranted. Instead, he concluded
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that he would impose a 262 month sentence "equivalent [to] the high
end of the range . . . that would be authorized but for the
provisions applicable to career offenders." Given that the judge
did not appear to feel constrained by the Guidelines from departing
further downward, and given the judge's statements affirming the
appropriateness of the sentence, we see no indication that he would
have further decreased Estevez's sentence under an advisory
Guidelines regime. Cf. United States v. González-Mercado, 402
F.3d 294, 304 (1st Cir. 2005) ("When, under a mandatory guidelines
regime, a sentencing court has elected to sentence the defendant
substantially above the bottom of the range, that is a telling
indication that the court, if acting under an advisory guidelines
regime, would in all likelihood have imposed the same sentence.");
United States v. Martins, --- F.3d ---, 2005 WL 1502939 at *11 (1st
Cir. June 27, 2005) (defendant could not show reasonable
probability of lower sentence where district court found him
eligible for departure but chose not to depart).
Defendant claims that our holding in United States v.
Fornia-Castillo, 408 F.3d 52, 73-74 (1st Cir. 2005), indicates that
where the sentencing was complex, and the judge expressed a mixture
of both leniency and stringency, we should remand for resentencing.
We disagree. Unlike the instant case, Fornia-Castillo was a
preserved error case in which the burden was on the government to
prove beyond a reasonable doubt that the defendant would have
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received the same sentence. Id. In this case, under our
unpreserved error analysis, it is the defendant who bears the
burden of proving that there is a reasonable probability that the
district court would have imposed a lower sentence under advisory
Guidelines. See Antonakopoulos, 399 F.3d at 78-79. Estevez cannot
meet this burden. Unlike Fornia-Castillo, 408 F.3d at 74, where
the court found that "the reasons for [imposing the minimum
sentence as to one count and the maximum as to others] are not
entirely clear," the sentencing court here transparently
articulated its reasons for deciding upon a "modest departure."
Essentially, the court thought that the career offender range was
too harsh given Estevez's criminal history, but still considered
the crimes to be very serious, and thus chose to depart only to the
top of the range in which Estevez would have been sentenced without
the career offender finding.
Nor do we find a reasonable probability that the court
would have departed further on other grounds, such as defendant's
history of drug and alcohol addiction, child sexual abuse and
diminished capacity. The court was aware of these factors, but
nevertheless, stated repeatedly that it felt the sentence it was
imposing was appropriate. Under these circumstances, the mere fact
that other grounds for departure were presented does not warrant
remand. See United States v. Brennick, 405 F.3d 96, 102 (1st Cir.
2005) (rejecting defendant's argument that this court "should
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remand for resentencing so that the district court may give more
emphasis to mitigating factors that ordinarily have little
influence under the Guidelines, such as his troubled childhood and
drug addiction"); Villafañe-Jiménez, 410 F.3d at 86 n.15.
B. Shepard
In his petition to the Supreme Court, Estevez sought
certiorari on the Booker issues addressed above. The Supreme Court
granted certiorari, vacated the judgment, and remanded his case
"for further consideration in light of [Booker]." Estevez, 125 S.
Ct. at 1034. However, in his brief filed in response to this
court's request for supplemental briefing on Booker's application
to this case, Estevez now raises the claim that the district court
violated the prohibition announced in United States v. Shepard, 125
S. Ct. 1254, 1260-61 (2005), against reliance on a police report to
determine whether an offense qualifies as a violent predicate.
The government argues that Estevez's Shepard claim is
beyond the scope of the remand, and hence, is not properly before
this court. However, we have held that "[w]hen the Supreme Court
vacates an entire judgment, an appellate court, on remand, has the
naked power to reexamine an issue that lies beyond the
circumference of the Supreme Court's specific order." Kotler v.
American Tobacco Co., 981 F.2d 7, 13 (1st Cir. 1992). In Kotler,
in the civil context, we stated that "[t]his power is to be
exercised sparingly and only when its invocation is necessary to
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avoid extreme injustice," but that habeas petitions, for instance,
might sometimes present such circumstances. Id. Given that this
is a criminal case still on direct appeal, similar concerns may
apply, and, thus, as an exercise of our discretion, we will
consider Estevez's claim, though it does not get far.
Estevez claims that the sentencing court
unconstitutionally relied on the language of a police report cited
in his presentence investigation report to conclude that the
assault and battery conviction of November 19, 1998 was a violent
felony. We agree that after Shepard, it is clear that such
reliance would be improper. However, we find that any reliance on
the language of the police report was unnecessary to the district
court's conclusion that the crime was a violent predicate, and
thus, any error was harmless.
Aside from the police report, the criminal complaint also
stated that Estevez "did assault and beat" the victim. "When the
state criminal statute involves different types of offenses, some
arguably violent and some not, we look first to the charging
document to see which type of offense is involved." United States
v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998) (citing Taylor v.
United States, 495 U.S. 575, 602 (1990)). Faced with the same
situation as in the instant case, we have held that where a
defendant is charged with simple assault in Massachusetts, and the
charging document states that he "did assault and beat" the victim,
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"this characterization placed the offense in the harmful battery
type, thereby meeting the definition of a crime of violence."
United States v. Santos, 363 F.3d 19, 23 (1st Cir. 2004) (upholding
district court's categorical application of the rule established in
Mangos). Recognizing that Estevez's conviction clearly falls
within this category, we find that the district court correctly
concluded that the assault constituted a violent predicate, and any
reliance on the police report was harmless error.
III. Conclusion
Because Estevez has failed to convince us that there is
a reasonable probability that the district court, under an advisory
Guidelines system, would have imposed a sentence below the sentence
actually imposed, and because we find that any error under Shepard
was harmless, we again affirm his conviction and sentence and order
our earlier judgment reinstated.
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