IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 10, 2008
No. 07-40327 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RENE HERRERA-GARDUNO
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Rene Herrera-Garduno (Herrera) argues his non-Guidelines sentence is
an unreasonable upward departure from the advisory Guidelines range. We
conclude that the sentence is not unreasonable and AFFIRM.
I.
Herrera pled guilty to illegal reentry after deportation in violation of 8
U.S.C. § 1326(a) and (b). In the Presentence Report (PSR), which applied the
2006 edition of the Guidelines Manual, the probation officer scored Herrera at
a base offense level of 8. He then increased the offense level by 16 points
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), which authorizes a 16-point
enhancement if the defendant has been convicted of a prior “drug trafficking
No. 07-40327
offense” for which the sentence imposed exceeded 13 months.1 The PSR stated
that the basis for this enhancement was Herrera’s prior convictions under Texas
Health & Safety Code § 481.112(a).2 After a three-level reduction for acceptance
of responsibility, the PSR assigned a total offense level of 21. With a criminal
history category of V, Herrera’s recommended Guidelines sentencing range was
70 to 87 months of imprisonment.
Herrera objected to the PSR’s classification of his prior convictions as drug
trafficking offenses. He argued that the PSR’s classification was improper as
Texas Health & Safety Code § 481.112(a) encompasses activity that does not fall
within § 2L1.2's definition of “drug trafficking offense.” The district court
sustained Herrera’s objection to the application of the 16-point enhancement.3
Herrera’s revised Guidelines sentencing range was 21 to 27 months of
imprisonment.
In response to this change in Herrera’s Guidelines sentencing range, the
government requested an upward departure from the Guidelines sentencing
range. The government argued that a sentence within the Guidelines sentencing
range would not satisfy the ends of 18 U.S.C. § 3553, which lists the factors to
1
“‘Drug trafficking offense’ means an offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. §
2L1.2 cmt. n.1(B)(iv).
2
Section 481.112(a) provides that “a person commits an offense if the person knowingly
manufactures, delivers, or possesses with intent to deliver a controlled substance . . . .”
3
We recently noted that a conviction for “possession with intent to deliver” under §
481.112(a) qualifies as a “controlled substance offense” that can serve as a basis for a sentence
enhancement pursuant to U.S.S.G. § 2K2.1(a)(4)(A). United States v. Ford, 509 F.3d 714, 715
(5th Cir. 2007). “Controlled substance offense” is defined by U.S.S.G. § 4B1.2(b). U.S.S.G. §
2K2.1 cmt. n.1. The definition of “controlled substance offense” provided by § 4B1.2(b) is
“almost identical” to the definition of “drug trafficking offense” provided by U.S.S.G. § 2L1.2
cmt. n.1(B)(iv). Ford, 509 F.3d at 717 n.2. A prior conviction for “possession with intent to
deliver” under § 481.112(a) therefore would be an appropriate basis for a 16-point
enhancement pursuant to § 2L1.2(b)(1)(A)(i).
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No. 07-40327
be considered in imposing a sentence.4 The district court agreed and sentenced
Herrera to 60 months of imprisonment. Herrera objected to the upward
departure at sentencing, but the district court overruled his objection. He now
appeals.
II.
Herrera argues that the sentence is unreasonable because, first, the
district court imposed the non-Guidelines sentence primarily because it
disagreed with how “drug trafficking offenses” are defined under § 2L1.2, and
that such a “disagreement” is not a sufficient reason to impose a non-Guidelines
sentence. He further argues that the other reasons given by the district court
are “generalized observations” insufficient to justify the extent of the upward
departure. And, finally, he argues that even if his prior convictions warranted
an upward departure from the Guidelines range, the facts of his case are not so
compelling as to justify the sentence imposed.
III.
We review whether a sentence is reasonable under an abuse-of-discretion
standard. Gall v. United States, 128 S.Ct. 586, 597 (2007). In performing this
review, we “first ensure that the district court committed no significant
4
Section 3553(a) lists seven factors that a sentencing court must consider. The first
factor is “the nature and circumstances of the offense and the history and characteristics of the
defendant.” 18 U.S.C. § 3553(a)(1). The second factor is “the need for the sentence . . . (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; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in the most
effective manner.” § 3553(a)(2).
The third factor is “the kinds of sentences available,” § 3553(a)(3); the fourth is the
Guidelines; the fifth is “any relevant policy statement” issued by the Sentencing Commission;
the sixth is “the need to avoid unwarranted sentence disparities,” § 3553(a)(6); and the seventh
is “the need to provide restitution to any victim,” § 3553(a)(7).
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No. 07-40327
procedural error” and “then consider the substantive reasonableness of the
sentence imposed . . . .” Id.
A.
As an initial matter, we note that the district court committed no
significant procedural error. The district court correctly calculated the
Guidelines range, treated the Guidelines as advisory, considered the § 3553(a)
factors, allowed both parties to present arguments as to what they believed the
appropriate sentence should be, did not base Herrera’s sentence on clearly
erroneous facts, and thoroughly documented its reasoning. See id. at 597-98
(providing procedural considerations).
B.
We now turn to review the substantive reasonableness of the sentence
imposed. In reviewing a challenge to the length of a non-Guidelines sentence,
we may “take the degree of variance into account and consider the extent of a
deviation from the Guidelines.” Id. at 595. But in applying abuse-of-discretion
review, we “must give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597.
Moreover, “[t]he fact that the appellate court might reasonably have concluded
that a different sentence was appropriate is insufficient to justify reversal of the
district court.” Id.
After considering the Guidelines range (21 to 27 months), the district court
considered the other § 3553(a) factors. The district court noted, inter alia, that
an upward departure was warranted as Herrera’s “prior crimes were not used
to properly enhance his offense level.” The district court agreed that the PSR’s
classification of Herrera’s prior convictions was improper as Texas Health &
Safety Code § 481.112(a) encompasses activity that does not fall within § 2L1.2's
definition of “drug trafficking offense.” But the district court, based on the
presented and uncontroverted facts, concluded that an upward departure was
4
No. 07-40327
warranted as the Guidelines sentencing range did not reflect the seriousness of
Herrera’s prior convictions.5 Referencing Herrera’s prior convictions, the district
court specifically noted that Herrera had in his possession over 400 grams of
heroin and $2,500 in cash, which according to the district court indicated that
Herrera was in fact trafficking heroin.
Herrera argues that the district court imposed the non-Guidelines
sentence primarily because it disagreed with how “drug trafficking offenses” are
defined under § 2L1.2. He further argues that such a “disagreement” is not a
sufficient reason to impose a non-Guidelines sentence.
We note, first, that Herrera’s argument that a disagreement with the
Guidelines is not a sufficient reason to impose a non-Guidelines sentence has
lost most of its force in the light of recent Supreme Court pronouncements. In
Kimbrough v. United States, the Court noted that “as a general matter, ‘courts
may vary [from Guidelines ranges] based solely on policy considerations,
including disagreements with the Guidelines.’” 128 S.Ct. 558, 570 (2007)
(alteration in original) (citing Rita v. United States, 127 S.Ct. 2456, 2465 (2007),
for the proposition that a district court may consider arguments that “the
Guidelines sentence itself fails properly to reflect § 3553(a) considerations”).
Second, we have previously held that “[a] defendant’s criminal history is
one of the factors that a court may consider in imposing a non-Guideline[s]
sentence.” United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). See
U.S.S.G. § 1B1.4 (noting that “[i]n determining . . . whether a departure from the
guidelines is warranted, the court may consider, without limitation, any
5
In the written statement of reasons for the sentence imposed, the district court noted
that it had imposed the non-Guidelines sentence for the following reasons: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant, pursuant to
§ 3553(a)(1); (2) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense, pursuant to § 3553(a)(2)(A); and (3) to afford adequate
deterrence to criminal conduct, pursuant to § 3553(a)(2)(B).
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No. 07-40327
information concerning the background, character and conduct of the defendant,
unless otherwise prohibited by law”). And we have also upheld an upward
departure without regard to whether the prior offense “technically” qualified as
a crime of violence under § 2L1.2(b)(1)(A)(ii). United States v. Tzep-Mejia, 461
F.3d 522, 526-28 (5th Cir. 2006). Moreover, in a recent case, United States v.
Lopez-Salas, we noted that, even though the defendant’s prior conviction was not
a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i), if, on remand, the district
court chose to impose a non-Guidelines sentence, the district court could consider
the defendant’s prior conviction for this purpose. 513 F.3d 174, 180-81 (5th Cir.
2008). In the light of these precedents, it is clear that the district court did not
abuse its discretion by considering the facts of Herrera’s prior convictions as a
basis for his non-Guidelines sentence.
Herrera also argues that the other reasons given by the district court for
the non-Guidelines sentence are “generalized observations” insufficient to justify
the extent of the upward departure. Because we have rejected Herrera’s
argument regarding the district court’s “disagreement” with how “drug
trafficking offenses” are defined under § 2L1.2, this argument regarding the
district court’s “generalized observations” lacks weight. Even if we concluded
that the other reasons given by the district court are too general to justify the
extent of the upward departure, we would still hold, for reasons indicated below,
that the district court did not abuse its discretion by upwardly departing from
the Guidelines range.
Moreover, we should note that a district court need not recite each of the
§ 3553(a) factors and explain its applicability. See Smith, 440 F.3d at 707. Here,
because the district court relied primarily on the facts of Herrera’s prior
conviction, and because the court addressed these facts and their relation to the
§ 3553(a) factors in some detail, we are satisfied that the district court’s
statement of reasons provides an adequate basis for our review. See Gall, 128
6
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S.Ct. at 597 (noting that a district court “must adequately explain the chosen
sentence to allow for meaningful appellate review and to promote the perception
of fair sentencing”).
We now turn to address Herrera’s argument that even if his prior
convictions warranted an upward departure from the Guidelines range, the facts
of his case are not so compelling as to justify the sentence imposed.
As said above, the district court sentenced Herrera to 60 months of
imprisonment, even though the Guidelines sentencing range was 21 to 27
months of imprisonment. This upward departure is substantial, but the
departure is commensurate with the individualized, case-specific reasons
provided by the district court. The district court concluded that the Guidelines
range did not adequately account for the fact that Herrera had in fact been
convicted for drug trafficking conduct. Had the sentencing enhancement under
§ 2L1.2 for drug trafficking offenses been applied, the Guidelines sentencing
range would have been 70 to 87 months of imprisonment. Using this range as
a reference, Herrera’s sentence of 60 months of imprisonment is not
unreasonable and the district court did not abuse its discretion by imposing this
sentence.
To be sure, this court has upheld sentences reflecting similar and
proportionately larger deviations from the advisory Guidelines. See Smith, 440
F.3d 704, 705-06 (5th Cir. 2006) (upholding sentence of 60 months where
maximum sentence under Guidelines range was 27 months); United States v.
Jones, 444 F.3d 430, 433 (5th Cir. 2006) (upholding sentence of 120 months
where maximum sentence under Guidelines range was 57 months); United
States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (upholding sentence of 120
months where maximum sentence under Guidelines range was 41 months);
United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (upholding
sentence of 240 months where maximum sentence under Guidelines range was
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No. 07-40327
71 months); United States v. Rosogie, 21 F.3d 632, 633-34 (5th Cir. 1994)
(upholding sentence of 150 months where maximum under Guidelines range was
37 months).
And, finally, the factors considered by the district court in setting
Herrera’s sentence are all relevant, proper factors: the nature and
circumstances of the offense and the history and characteristics of the defendant,
the need to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense, and to afford adequate
deterrence to criminal conduct. We see no other factors that required significant
weight and find no errors of judgment in the district court’s balancing of the
sentencing factors.6
We therefore conclude that Herrera’s sentence is not unreasonable and
that the district court did not abuse its discretion in sentencing Herrera to 60
months of imprisonment.
IV.
For the foregoing reasons, we AFFIRM.
6
Herrera argues that his sentence is unreasonable because the district court failed
appropriately to consider the sentencing disparity created by the sentence imposed. But this
argument is without merit. See Gall, 128 S.Ct. at 599 (“Since the District Judge correctly
calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight
and consideration to the need to avoid unwarranted disparities.”).
8