United States Court of Appeals
For the First Circuit
No. 05-2001
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL SAEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jonathan R. Saxe, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Mark E. Howard, Assistant United States Attorney, for
appellee. Peter E. Papps, Assistant United States Attorney, and
Thomas P. Colantuono, United States Attorney, on brief for
appellee.
April 6, 2006
BOUDIN, Chief Judge. In this appeal, Miguel Saez
challenges the refusal of the federal district court in New
Hampshire to sentence him below the guideline range. The principal
basis urged by Saez for a below-guideline sentence is his claim
that another judge in the same district court gave a shorter
sentence to another defendant, Gay Finley, who had been involved in
the same criminal conduct as Saez. The history is as follows.
In 2002 or 2003, Saez met Finley in a halfway house in
Manchester, New Hampshire, after both had been released from
prison; they moved in together after completing their terms at the
halfway house and soon afterwards started using and selling heroin.
The two were arrested in November 2003 after having sold heroin on
two consecutive days to a cooperating informant for the Manchester
police department.
Finley confessed her guilt and agreed to assist the
government, but she first said (falsely) that Saez was not involved
in the drug dealing. Confronted with audio tapes of the two drug
transactions, Finley recanted her denial of Saez' involvement and
cooperated truthfully with the government. She pled guilty in June
2004 to one count of distribution of heroin, 21 U.S.C. § 841(a)(1)
(2000). On February 22, 2005, Judge Steven J. McAuliffe sentenced
her to 39 months in prison.
Finley qualified as a career offender, see United States
Sentencing Guidelines ("U.S.S.G.") § 4B1.1 (2005); this
-2-
categorization applies to one who is convicted of a felony that is
either a crime of violence or a drug trafficking crime, and has at
least twice before been convicted for such crimes, see id. §
4B1.1(a). Her career offender status automatically placed Finley
in the highest criminal history category and made her subject to a
higher offense level than would otherwise be applicable. Id. §
4B1.1(b).
In Finley's case, her resulting guideline range (after
certain adjustments were made) was 84 to 105 months. This range
seems to reflect Finley's assistance to the government (which
recommended a six-level downward departure for substantial
assistance, U.S.S.G. § 5K1.1) and Finley's claim that her "criminal
history category substantially over-represents the seriousness of
[her] criminal history," id. § 4A1.3(b)(1). In any event, her
sentence of 39 months was expressly framed as a non-guideline
sentence under the post-Booker regime.
Miguel Saez pled guilty in March 2005, before a different
judge of the same court, Judge Paul J. Barbadoro, to one count of
aiding and abetting the distribution of heroin. 21 U.S.C. §
841(a)(1); see also 18 U.S.C. § 2 (2000). Saez also qualified as
a career offender, see U.S.S.G. § 4B1.1, and the amount of drugs
attributed to him for sentencing purposes was 0.71 grams of heroin.
Judge Barbadoro imposed on Saez a sentence of 130 months.
-3-
Saez' sentence was at the bottom of the applicable
guideline range after the court applied a three-level downward
adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1, and
a two-level downward adjustment for rendering "substantial
assistance" to federal authorities (which defense counsel agreed at
the sentencing hearing was a fair adjustment), see id. § 5K1.1.
Saez argued for a lower, non-guideline sentence based on the small
amount of drugs in the count to which he pled and the lower
sentence imposed on Finley. Judge Barbadoro refused and Saez has
now appealed.
The framework for assessing sentences imposed after
United States v. Booker, 543 U.S. 220 (2005), has been set forth in
our en banc decision in United States v. Jiménez-Beltre, --- F.3d
---, 2006 WL 562154 (1st Cir. Mar. 9, 2006). There we concluded
that the guideline range, taking applicable departures into
account, is the starting point for analysis but that the proponent
of a higher or lower sentence is free to adduce reasons and facts
to support it. Jiménez-Beltre, 2006 WL 562154, at *3. On appeal,
the primary issues will ordinarily be whether the sentence is
reasonable and adequately explained, taking account both of the
guidelines and of other statutory factors. Id. at *3-*4.
Whether the ultimate sentence is within or without the
guideline range, an appeal urging unreasonableness is permitted,
Jiménez-Beltre, 2006 WL 562154, at *2, as are claims that the court
-4-
erred on the law or the facts, United States v. Robinson, 433 F.3d
31, 35 (1st Cir. 2005). The government in this case argues that a
sentence within the guidelines can never be regarded as
unreasonable. We have rejected that position, Jiménez-Beltre, 2006
WL 562154, at *2, which (whatever the theoretical claims in its
favor) is contrary to explicit language in Booker. See 543 U.S. at
260-61.
Saez says that it was unreasonable to give him a 130-
month sentence while Finley, also a career offender involved in the
same drug transaction, received only 39 months from a different
judge. Relatedly, he contends that the district court "refus[ed]
to consider the sentence imposed upon Finley" when calculating his
sentence, and thus failed to consider "the need to avoid
unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar conduct," 18 U.S.C.
§ 3553(a)(6).
The first problem with Saez' argument is that the
district court did not "refus[e] to consider" Finley's sentence in
connection with Saez' sentencing, but rather determined that Saez
had not provided enough information to the court to enable it to
make a meaningful comparison of the two defendants, even if it had
been inclined to do so. "In a case in which within the same
conspiracy I'm sentencing both defendants," explained the judge at
the sentencing hearing,
-5-
I hope that I would at least articulate for a
defendant why one got a different sentence
from the other, but I don't even need to do
that here because I don't know anything about
that case except for a very limited amount of
information that's in [Saez' presentence
investigation report] and what you and [the
Assistant United States Attorney] ha[ve] told
me.
* * *
I would be abdicating the responsibilities I
have as the sentencing judge in this case if I
were to simply take a sentence that another
judge gave and use that as a baseline to
either move up from it or down from it. As I
said, I can't engage in that kind of analysis,
if for no other reason [than] that I simply
don't have enough information to make an
independent assessment as to whether I would
have given that defendant the same sentence, I
don't know.
"[T]he proponent of a factor that would work in the
proponent's favor has to provide the basis to support it."
Jiménez-Beltre, 2006 WL 562154, at *4 (citing United States v.
Derbes, 369 F.3d 579, 582 (1st Cir. 2004)). Judge Barbadoro had
detailed information about the drug crime to which both Saez and
Finley pled guilty in this instance, but he had little basis for
comparing Finley's criminal history with that of Saez beyond the
bare fact that both qualified as career offenders.
Saez conceded in the district court (as he does on
appeal) that his record was "more serious" than Finley's; yet he
offered no details as to how the two defendants' records differed,
saying only that giving him 51 months would account for the
-6-
difference. Thus, one of the two main variables in sentencing--
criminal history--may well have been quite different. No valid
comparison of sentences could be made without that information.
As it happens, we know that Judge McAuliffe found that
Finley's own career offender status overstated her criminal
history. One reason, it appears, is that one of Finley's predicate
offenses under the career offender guideline was a failure to
return to a halfway house on time; although this might be treated
as a violent felony under First Circuit precedent, cf. United
States v. Winn, 364 F.3d 7, 12 (1st Cir. 2004), it is obviously a
pretty tame piece of conduct.
Conversely, Saez' record was indeed more "serious" than
Finley's. According to the presentence investigation report
("PSR"), to which Saez did not object, Saez had previously been
convicted for distribution of cocaine, first degree assault, and
multiple drug possession crimes, including one count of possession
while armed with a firearm.
As to cooperation, Finley and Saez each told lies; but
Finley admitted her guilt and sought to protect Saez. Saez, by
contrast, asked that the federal charges against him be dropped
based on Finley's false exculpation of him (although he did
eventually send a letter to Finley urging her to "come clean" to
-7-
federal investigators).1 In the end, Finley assisted the
government by cooperating as to Saez; Saez, who faced both Finley's
cooperation and an audio tape showing him as a participant, had
little choice but to plead guilty--for which he received a three-
level downward adjustment for acceptance of responsibility and two
more levels as a departure under U.S.S.G. § 5K1.1.
There is a more basic difficulty with Saez' argument
which would remain even if he and Finley looked more alike than
they do. Congress did aim to reduce the unwarranted disparity in
sentencing for like crimes and criminals. See United States v.
Wogan, 938 F.2d 1446, 1449 (1st Cir.), cert. denied, 502 U.S. 969
(1991); United States v. Carr, 932 F.2d 67, 73 (1st Cir.), cert.
denied, 502 U.S. 834 (1991). But the aim was almost certainly a
national uniformity focusing upon a common standard and looking to
how most cases of the same kind were treated. See, e.g., Wogan,
938 F.2d at 1449.2
1
The prosecutor regarded the letter as being to Saez' credit,
but it appears that the letter was sent after it had been
determined that Finley was lying and after the audio tapes of the
drug transactions had been furnished to Saez' counsel.
2
Numerous other federal circuits have endorsed this
interpretation of federal sentencing legislation. See, e.g.,
United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005), cert.
denied, 126 S. Ct. 1455 (2006); United States v. Gallegos, 129 F.3d
1140, 1143 (10th Cir. 1997); United States v. Hall, 977 F.2d 861,
863-64 & n.4 (4th Cir. 1992); United States v. LaSalle, 948 F.2d
215, 218 (6th Cir. 1991); United States v. Joyner, 924 F.2d 454,
460-61 (2d Cir. 1991). But cf. United States v. McGee, 408 F.3d
966, 988 (7th Cir. 2005) (suggesting that the district court might
on remand take into account sentences imposed, apparently by the
-8-
Usually little is to be learned about national uniformity
by pointing to the sentence of one other defendant. Of course, if
the same judge sentences two identically situated defendants to
substantially different terms, some explanation may well be
required; uniformity aside, the basic requirement of rationality
remains. But with different judges sentencing two defendants quite
differently, there is no more reason to think that the first one
was right than the second.
The practical objections are also considerable. A single
judge sentencing two defendants for the same offense has the
information before him and knows his own reasoning. By contrast,
to make a valid comparison between defendants sentenced by
different judges is far more difficult, as this case illustrates.
Further, such a comparison opens the door to endless rummaging by
lawyers through sentences in other cases, each side finding random
examples to support a higher or lower sentence, as their clients'
interests dictate.
At the present time, the guidelines themselves are almost
certainly the best indication of ordinary practice since most
sentences are within the guidelines. See United States v.
Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). The guidelines are
not a perfect reflection of past practice, see Jiménez-Beltre, 2006
WL 562154, at *3, and other sources of information about national
same judge, on a defendant's co-conspirators).
-9-
sentencing may be available. But in this context a single example
is about the weakest sort of proof of national practice that can be
imagined.
Finally, Saez says a lower sentence is reasonable in
light of the very small amount of drugs involved in the transaction
to which he pled guilty. Of course, his guideline range already
took the reduced quantity into account. Nevertheless, it might be
argued that the quantity could still be relevant--a point we have
not decided. See United States v. Morin, 403 F.3d 41, 43 (1st Cir.
2005).
As it happens, the record indicates that Saez and Finley
had been regularly dealing drugs since they left the halfway house.
In fact, as Saez' PSR makes clear, he has been involved with drugs,
including both possession and dealing, for virtually all the
periods over the last fifteen years that he has not been
incarcerated. In any event, the district judge was not obliged to
give a lower sentence because of the quantity.
Affirmed.
-10-