[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15, 2009
No. 08-10698 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00522-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ANDREW DOCAMPO, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 15, 2009)
Before BARKETT, PRYOR and FARRIS,* Circuit Judges.
PRYOR, Circuit Judge:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
The main question presented by this appeal involves the reasonableness of
the sentence of a young adult who was arrested in a sting operation that involved
the armed robbery of a fictional stash house of cocaine and who later threatened a
witness who testified against him. The question is whether the district court
abused its discretion when it sentenced John Andrew Docampo Jr. to a term of
imprisonment of 270 months, instead of the mandatory minimum term of 180
months that he requested, even though some conspirators pleaded guilty and
received less severe federal sentences and other conspirators who were juveniles
when arrested pleaded guilty as adults in state court and received terms of
probation. At trial, Docampo was convicted of charges involving a conspiracy to
possess and distribute cocaine and possession of a firearm in furtherance of that
conspiracy. The district court sentenced Docampo to a term of 210 months, which
was within the guidelines range, for the conspiracy charges and a consecutive
mandatory minimum term of 60 months for possession of the firearm. Because the
other conspirators either pleaded guilty and agreed to cooperate or were not
prosecuted in federal court, we conclude that they are not similarly situated to
Docampo and any disparity in sentences is warranted. See 18 U.S.C. § 3553(a)(6).
Docampo’s sentence is reasonable. Because Docampo’s other arguments about
the admission of hearsay, sentencing factor manipulation, and his request for a
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minor role reduction all fail, we affirm his convictions and sentences.
I. BACKGROUND
The sting operation was conducted by the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. On September 21, 2005, undercover agent Richard
Zayas met Isail Reyes through a confidential informant. During the meeting,
Reyes arranged for Agent Zayas to purchase a firearm from Christian Carmona.
Agent Zayas again met with Reyes and the confidential informant on September 27
to discuss purchasing additional firearms and narcotics. During that meeting,
Reyes stated that he had experience committing robberies that involved cocaine
and could find other individuals with similar experience to assist him in a robbery.
On October 17, Agent Zayas met Reyes again, under the guise of purchasing
a firearm, and told Reyes about a house used to store large amounts of cocaine.
Agent Zayas asked if Reyes was interested in robbing the stash house. Reyes met
with Agent Zayas on October 26 and agreed to rob the stash house.
On November 1, Agent Zayas and the confidential informant met with
Reyes, Sebastian Luengas, and Louis Alex Gutierrez to discuss the robbery. Agent
Zayas provided information about the stash house, including the procedure for
delivering cocaine and the number of armed individuals inside the house.
According to Agent Zayas’s testimony, Reyes, Gutierrez, and Luengas “became
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animated and engaged in conversation as to their plan as to how they were going to
commit the robbery.” They discussed being armed and the possibility of killing
persons inside the house. Agent Zayas testified, “They stated they had pistols
available at that point, but that they wished to obtain a rifle to also assist them in
the robbery.”
Agent Zayas agreed to meet Reyes and all other participants at Reyes’s
residence on November 3 to depart for the robbery. On that day, Agent Zayas sent
the confidential informant to Reyes’s residence to tell Reyes and the other
individuals present, including Docampo, to meet Agent Zayas at Albertson’s
grocery store. Reyes, the confidential informant, Gutierrez, Luengas, Docampo,
Carmona, and Davin Powell arrived at the grocery store in two vehicles and parked
next to each other. Agent Zayas stood between the two vehicles and, through the
open windows, provided information about the stash house to the individuals in the
vehicles.
Docampo left one of the vehicles, approached Agent Zayas, and engaged the
agent in a conversation about the robbery. Agent Zayas testified that Docampo
“took over the conversation and began to express his views of how he saw the
robbery.” According to Agent Zayas, Docampo “began to say what should occur,
based upon his experience. He stated that . . . he had been involved in [robberies]
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before.”
After the conversation with Docampo, Agent Zayas confirmed that all
present wanted to participate in the robbery, and Agent Zayas instructed them to
follow him to a warehouse where they would later deliver his portion of the
proceeds from the robbery. Docampo shook hands with everyone in the vehicle,
and Agent Zayas then led the two vehicles to a storage facility. When they arrived
at the storage unit, Agent Zayas told Reyes that he had received a page from the
individuals at the stash house and went to make a phone call.
The tactical team attempted to surround and arrest the suspects, but the
agents were unable to secure one avenue of escape. Reyes, along with Agent
Zayas, ran from the area. While Reyes was attempting to elude the agents, Agent
Zayas saw him remove a pistol from his pants and throw it over the perimeter wall
of the storage facility. Reyes was arrested later by the Sheriff’s Office of
Hillsborough County. Docampo, Carmona, Luengas, Gutierrez, and Powell were
arrested at the scene.
Docampo, Gutierrez, and Reyes were indicted for conspiracy to possess with
intent to distribute cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii), possession of
firearms in furtherance of the conspiracy, 18 U.S.C. § 924(c)(1)(A), and conspiracy
to possess firearms in furtherance of a drug trafficking crime, id. § 924(o). The
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charges of drug conspiracy and firearm possession against Docampo were
dismissed based on violations of the Speedy Trial Act, but Docampo, Gutierrez,
and Reyes were indicted again a month later on identical charges.
Gutierrez and Reyes pleaded guilty and testified against Docampo. Powell,
Luengas, and Carmona were juveniles when arrested but were prosecuted in state
court as adults. Luengas and Powell pleaded guilty and were sentenced to terms of
probation. Carmona was killed in an unrelated crime.
At trial, Docampo was convicted of all charges. Edwardo Lorenzo testified
that Luengas, in the presence of Docampo, invited him to participate in a robbery
and, when he declined the invitation, Docampo asked if he could borrow a gun
from Lorenzo. Lorenzo identified the gun that Reyes threw behind the wall of the
storage facility as the firearm Lorenzo lent Docampo. Lorenzo also testified about
a phone call Docampo made to Lorenzo’s girlfriend during which Docampo told
Lorenzo’s girlfriend that “[e]ither bad things would happen to [Lorenzo] or
somebody that [he] was close to if [he] was to testify.” Docampo objected to the
testimony as hearsay, but the district court overruled the objection. Powell
testified that Docampo was a willing participant in the planning of the robbery of
the stash house. Gutierrez testified that Docampo brought a gun with him on the
day of the robbery and volunteered to take a more active role in the robbery.
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Video and audio evidence of the meetings confirmed the testimonies of Agent
Zayas and the other witnesses.
The presentence investigation report stated that, based on the amount of
cocaine involved, Docampo had a base offense level of 34, which was increased by
two levels for obstruction of justice based on the threat to Lorenzo’s girlfriend.
The report provided a total offense level of 36, a criminal history of I, a guideline
range of 188 to 235 months of imprisonment for the conspiracy charges, and a
consecutive mandatory minimum sentence of 60 months of imprisonment for the
charge of possession of a firearm. Docampo challenged the enhancements, argued
that he was a victim of sentencing factor manipulation, and sought a reduction in
his offense level based on his minimal role.
At Docampo’s sentencing hearing, Dr. Michael Maher testified that, when
the sting operation occurred, Docampo functioned at the level of a 16- or 17-year-
old instead of his actual age of 18 and was more inclined to engage in risky and
morally questionable behavior than a young adult. Dr. Maher testified that
Docampo was easily susceptible to the robbery scenario, but knew the difference
between right and wrong and understood the legal consequences of bringing a
firearm to a robbery. Reyes testified that Docampo was not supposed to participate
in the robbery, but showed up and insisted that he had experience with robberies
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and wanted to participate.
Before the sentencing hearing, Docampo filed a sentencing memorandum in
which he admitted that he had called Lorenzo’s girlfriend before trial and was
upset about Lorenzo testifying against him. Docampo also admitted that he had
called Lorenzo’s girlfriend back five or ten minutes later to apologize. At the
sentencing hearing, Agent Michael Gistinger testified that he spoke to Lorenzo
about the threatening phone call Docampo made to Lorenzo’s girlfriend. Agent
Gistinger also spoke to Lorenzo’s girlfriend, who was reached at a phone number
provided by Lorenzo, and she confirmed that she had received two calls from
Docampo. Agent Gistinger testified that Docampo threatened Lorenzo and his
family if he testified, and both Lorenzo and his girlfriend felt threatened.
The district court sentenced Docampo to 210 months of imprisonment for
the conspiracy counts to be followed by the mandatory minimum sentence of 60
months of imprisonment for the firearms conviction. Docampo requested that the
district court impose a sentence of 180 months, which was comprised of a
mandatory minimum term of 120 months for the conspiracy charges and a
mandatory minimum term of 60 months for the charge of possession of a firearm.
The district court denied Docampo’s request and stated that it had considered “the
advisory sentencing guidelines and all of the factors identified in Title 18 United
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States Code, Section 3553(a)(1) through (7)” and concluded “that the sentence
imposed [was] sufficient but not greater than necessary to comply with the
statutory purposes of sentencing.”
II. STANDARDS OF REVIEW
Several standards of review govern this appeal. “We review evidentiary
rulings for an abuse of discretion.” United States v. Henderson, 409 F.3d 1293,
1297 (11th Cir. 2005). Even if the ruling was an abuse of discretion, it will not
result in a reversal of the conviction if the error was harmless. United States v.
Church, 955 F.2d 688, 700 (11th Cir. 1992). Factual findings that underlie the
sentence, including the defendant’s role in the offense, are reviewed for clear error.
United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en
banc). We review de novo the application of the Sentencing Guidelines to those
facts by the district court. United States v. Massey, 443 F.3d 814, 818 (11th Cir.
2006). We review a criminal sentence for reasonableness. United States v.
Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765–66 (2005). “The reasonableness
of a final sentence is reviewed only for an abuse of discretion.” United States v.
Williams, 526 F.3d 1312, 1321 (11th Cir. 2008) (per curiam). “Review for
reasonableness is deferential.” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005) (per curiam). This deferential review evaluates “whether the sentence
9
imposed by the district court fails to achieve the purposes of sentencing as stated in
section 3553(a).” Id.
III. DISCUSSION
Our discussion is divided in three parts. First, we address whether the
admission of the testimony of a witness at trial was error sufficient to warrant
reversal of Docampo’s conviction. Second, we discuss Docampo’s challenges to
the calculation of his sentence. Third, we consider the reasonableness of
Docampo’s sentence. We do not discuss Docampo’s argument that his sentence is
unconstitutional because it was enhanced based on facts not proved to a jury
beyond a reasonable doubt; that argument is foreclosed by precedent. See United
States v. Thomas, 446 F.3d 1348, 1354–55 (11th Cir. 2006).
A. The Error of Admitting Hearsay About Docampo’s Threat Was Harmless.
Docampo argues that the district court erred when it allowed Lorenzo to
testify about the threatening phone call that Docampo made to Lorenzo’s
girlfriend. Lorenzo’s girlfriend did not testify. Docampo objected to Lorenzo’s
testimony as hearsay, but the district court overruled the objection.
We agree with Docampo that Lorenzo’s testimony about the threat was
hearsay. “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
10
asserted” and is inadmissible unless the statement falls within an exception or
exclusion provided by the Federal Rules of Evidence. Fed. R. Evid. 801. Because
Lorenzo testified about a statement made by his girlfriend that was offered to prove
that Docampo made threats against Lorenzo, the statement was hearsay. The
district court stated that it allowed the testimony because Docampo had “opened up
the door,” but on appeal the parties agree that Docampo had not invited this
testimony.
The government contends that the testimony is excluded from the
prohibition against hearsay because Lorenzo’s girlfriend was acting as Docampo’s
agent when she made the statement and, alternatively, Docampo had authorized the
statement when he spoke with Lorenzo’s girlfriend, but we disagree. Although the
Federal Rules of Evidence permit the admission of statements made by an agent of
the defendant, Fed. R. Evid. 801(d)(2)(D), or statements that are authorized by the
defendant, id. 801(d)(2)(C), the government did not lay a foundation that
Lorenzo’s girlfriend was acting as Docampo’s agent or that Docampo authorized
the statement. The statements “are not alone sufficient to establish the declarant’s
authority under [Rule 801] subdivision (C) . . . [or] (D).” Fed. R. Evid. 801(d)(2).
Because the testimony is hearsay and is not excepted under Rule 801, the district
court abused its discretion when it admitted Lorenzo’s testimony about the phone
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call.
Although Lorenzo’s testimony about his girlfriend’s statement was
inadmissible hearsay, we agree with the alternative argument of the government
that the error is harmless. The admission of hearsay “alone . . . does not mandate a
reversal of conviction: ‘[t]o require a new trial . . . [a] significant possibility must
exist that, considering the other evidence presented by both the prosecution and the
defense, the . . . statement had a substantial impact upon the verdict of the jury.’”
United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006) (per curiam). The
government offered testimony by Agent Zayas and four cohorts about Docampo’s
involvement in the crime, an audiotape and video of Docampo’s conversation with
Agent Zayas on the day of the planned robbery, and a tape of Docampo’s
statements from his post-arrest interview. The hearsay did not have a substantial
impact on the verdict.
B. The District Court Correctly Calculated Docampo’s Sentencing Range.
Docampo challenges the calculation of his sentencing range on three
grounds. First, Docampo argues that he was entitled to a reduction based on
sentencing factor manipulation. Second, Docampo asserts that the district court
erred when it enhanced his sentencing range based on obstruction of justice. Third,
Docampo argues that he was entitled to a reduction based on his minimal role in
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the offense. These arguments fail.
1. Sentencing Factor Manipulation
Docampo argues that the district court erred when it refused to sentence him
below the statutory mandatory minimum based on sentencing factor manipulation.
Docampo argues that his sentence was manipulated by the conduct of the federal
agents. Docampo argues that Agent Zayas “expanded the scope” of the original
sting operation to include persons “unknown to him.” Docampo also argues that
the inclusion of juveniles and Docampo, a young adult, in the sting amounted to
sentencing factor manipulation by the government.
“[S]entencing factor manipulation occurs when the government’s
manipulation of a sting operation, even if insufficient to support a due process
claim, requires that the manipulation be filtered out of the sentencing calculus.”
United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “[S]entencing
factor manipulation focuses on the government’s conduct.” United States v.
Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998); Ciszkowski, 492 F.3d at 1270.
The defendant must establish “that the government’s conduct is sufficiently
reprehensible[,]” and this “standard . . . is high.” Ciszkowski, 492 F.3d at 1271.
“[T]o bring sting operations within the ambit of sentencing factor manipulation,
the government must engage in extraordinary misconduct.” Id. We have not yet
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recognized a defense of sentencing factor manipulation or permitted its application
to a defendant’s sentence, and we do not do so in this appeal. Id.; United States v.
Williams, 456 F.3d 1353, 1371 (11th Cir. 2006), abrogated on other grounds by
Kimbrough v. United States, 128 S. Ct. 558 (2007) (“This is not to say that
sentencing manipulation may never be a valid consideration in sentencing.”).
Even if a sentence can be reduced based on sentencing factor manipulation,
Docampo failed to establish that the agents involved in the sting engaged in
“extraordinary misconduct.” See Ciszkowski, 492 F.3d at 1271. Docampo argues
that a sting operation against an 18-year-old who was not the intended target is
government misconduct, but Docampo was an adult when the sting occurred and
participated voluntarily. Docampo attempted to lead the criminal activity and told
Agent Zayas what to expect during the robbery. That the sting operation involved
a young adult who was not the original target does not amount to extraordinary
misconduct by the government. See United States v. Bohannon, 476 F.3d 1246,
1252 (11th Cir. 2007) (the use of a fictional 15-year-old girl by the government
“was no more manipulative than in any other sting operation” and did not
constitute sentencing factor manipulation); Sanchez, 138 F.3d at 1414 (concluding
the use of a large amount of drugs by the government in a sting did not result in
sentencing factor manipulation).
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2. Obstruction of Justice
Docampo argues that the district court erred when it enhanced his sentence
based on obstruction of justice because the court considered unreliable hearsay.
The presentence investigation report recommended an enhancement for obstruction
of justice based on the threatening phone call Docampo made to Lorenzo’s
girlfriend. In addition to the testimony of Lorenzo at trial about the threat, Agent
Gistinger testified at the sentencing hearing that he spoke with Lorenzo and his
girlfriend about the phone call. Docampo admitted in his sentencing memorandum
and at the sentencing hearing that he contacted Lorenzo’s girlfriend twice by
telephone and was upset about his best friend testifying against him, but Docampo
denied making any threat. Based on this evidence, the district court enhanced
Docampo’s sentence by two levels.
Evidentiary requirements are more relaxed during a sentencing procedure,
and reliable hearsay is admissible. “In resolving any dispute concerning a factor
important to the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of reliability
to support its probable accuracy.” United States Sentencing Guidelines § 6A1.3(a)
(Nov. 2008). The district court did not make explicit findings about the reliability
15
of Agent Gistinger’s hearsay testimony, but that failure “does not necessarily
require reversal or remand where the reliability of the statements is apparent from
the record.” United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).
The reliability of the hearsay evidence about Docampo’s threat is apparent
from the record. Agent Gistinger’s testimony about his conversation with
Lorenzo’s girlfriend is corroborated by Lorenzo’s testimony during the trial, and
this evidence is bolstered by Docampo’s admissions that he made two phone calls
to Lorenzo’s girlfriend, was upset about Lorenzo testifying, and apologized in the
second call for what was said during the initial conversation. Because the
corroborating statements by Lorenzo and Docampo’s admission that he made the
phone calls to Lorenzo’s girlfriend are sufficient to establish the reliability of
Agent Gistinger’s testimony, see Gordon, 231 F.3d at 760–61, “the district court’s
failure to make separate findings regarding the reliability of [this testimony] was
not error.” Id. at 761. The district court did not err when it enhanced Docampo’s
sentence based on his threatening phone call.
3. Minor Role Adjustment
Docampo argues that the district court clearly erred when it denied him a
minor role reduction, but we disagree. A district court may reduce a defendant’s
offense level by four levels if the defendant was a “minimal participant” and by
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two levels if the defendant was “a minor participant” in the crime. U.S.S.G. §
3B1.2. A minimal participant is “plainly among the least culpable of those
involved in the conduct of a group.” Id. cmt. n.4. “[T]he defendant’s lack of
knowledge or understanding of the scope and structure of the enterprise and of the
activities of others is indicative of a role as minimal participant.” Id. According to
the Sentencing Guidelines, “[i]t is intended that the downward adjustment for a
minimal participant will be used infrequently.” Id.
To determine whether Docampo was entitled to a reduction for a minor role,
the district court had to consider (1) “[his] role in the relevant conduct for which
[]he has been held accountable at sentencing” and (2) his “role as compared to that
of other participants in [his] relevant conduct.” De Varon, 175 F.3d at 940. “The
fact that a defendant’s role may be less than that of other participants engaged in
the relevant conduct may not be dispositive of role in the offense, since it is
possible that none are minor or minimal participants.” Id. at 944. To receive the
role reduction, Docampo had to prove that he was “less culpable than most other
participants[.]” Id.
Docampo argues that the district court erroneously considered evidence of
his possession of a firearm as relevant conduct when it evaluated his role in the
offense, but this argument is based on a misreading of the Sentencing Guidelines.
17
Docampo asserts that consideration of evidence of his firearm possession as
conduct relevant to the drug conviction amounts to double counting of the firearm
use, which is prohibited by the Sentencing Guidelines. Docampo relies on the
following commentary in the Guidelines Manual, which is limited to the
application of an enhancement:
Weapon Enhancement – If a sentence under this guideline is imposed
in conjunction with a sentence for an underlying offense, do not apply
any specific offense characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining the sentence
for the underlying offense. A sentence under this guideline accounts
for any explosive or weapon enhancement for the underlying offense
of conviction, including any such enhancement that would apply
based on conduct for which the defendant is accountable under 1.3
(Relevant Conduct).
U.S.S.G. § 2K2.4 cmt. n.4. This commentary says nothing about whether the
district court, in denying Docampo a reduction for a minor role, was entitled to
consider that Docampo obtained a firearm for the robbery.
Docampo’s argument fails. Although the district court was prohibited from
using the firearm to increase the base offense levels for the conspiracy charges, the
district court was entitled to consider the firearm when evaluating Docampo’s
argument about a reduction for a minor role. The record establishes that Docampo
was actively engaged in discussions about the logistics of the robbery, offered to
take a more active role in the robbery, and repeatedly professed familiarity and
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experience with similar robberies. Docampo was held responsible only for the
offenses for which he was convicted, and he was not less culpable than the other
conspirators. The district court did not clearly err when it found that Docampo
played more than a minor role in the offense.
C. Docampo’s Sentence Is Reasonable.
Docampo argues that his sentence of 270 months of imprisonment is
unreasonable, but we disagree. A sentence may be procedurally or substantively
unreasonable, United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006), and
we address both aspects of Docampo’s sentence.
1. Procedural Reasonableness
Docampo argues that his sentence was unreasonable because the district
court did not “adequately and properly” consider the sentencing factors in section
3553(a) or his “arguments with respect to these factors.” Procedural
unreasonableness includes “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence – including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597
(2007). Although the district court must provide some explanation for the
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sentence, “nothing in Booker or elsewhere requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005).
Docampo’s argument of procedural unreasonableness fails. Before
imposing the sentence, the district court stated that it had heard and considered
Docampo’s arguments. The court then stated, “After considering the advisory
sentencing guidelines and all of the factors identified in Title 18 United States
Code, Section 3553(a)(1) through (7), the Court finds that the sentence imposed is
sufficient but not greater than necessary to comply with the statutory purposes of
sentencing.”
Although the acknowledgment by the district court that it had considered
Docampo’s arguments and the sentencing factors of section 3553 “alone is
sufficient in post-Booker sentences,” Scott, 426 F.3d at 1330, the record reflects
that the court also discussed the sentencing factors in detail before it imposed
Docampo’s sentence. The district court, for example, expressed concern about the
potentially violent nature of the robbery in which Docampo volunteered to
participate. The court questioned Dr. Maher, an expert in forensic psychiatry,
about Docampo’s knowledge of the charges against him, his responsibility level,
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and his association with others who engaged in illegal activity. The district court
expressed concern about the “tremendous upsurge of activity of people such as
yourself who are youngsters, so to speak, but have the capability to go out and put
themselves into volatile, violent situations.” The court also discussed Docampo’s
prior work and educational history. The district court required Docampo and the
government to discuss, on the record, which defendants had entered pleas and
“who maintained the position of saying I’m not responsible.” The court stated,
“They [the other defendants] have a perfect right to go to trial – all those people
had a perfect right to go to trial. They admitted their guilt.” The court
acknowledged that several of the juvenile defendants had been charged in state
court as adults. The district court did not commit a procedural error in sentencing
Docampo.
2. Substantive Reasonableness
Because Docampo’s sentence is “procedurally sound,” we now “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard. When conducting this review, the court will, of course, take into account
the totality of the circumstances . . . .” Gall, 128 S. Ct. at 597. We have
acknowledged “that there is a range of reasonable sentences from which the district
court may choose, and when the district court imposes a sentence within the
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advisory Guidelines range, we ordinarily will expect that choice to be a reasonable
one.” Talley, 431 F.3d at 788.
Docampo argues that his sentence is substantively unreasonable when
contrasted with the less severe sentences his other conspirators received. Reyes, a
target of the sting, entered a plea agreement with the government before trial and
pleaded guilty to conspiracy to possess with intent to distribute cocaine and
possession of a firearm in furtherance of the drug conspiracy. In exchange for his
testimony at Docampo’s trial and other assistance, the government agreed to
dismiss the remaining charges against Reyes and not oppose Reyes’s request for a
downward departure. The district court denied Reyes’s requests for a departure
and sentenced him to 168 months of imprisonment for the conspiracy conviction
and 60 months of imprisonment for the firearms conviction, to run consecutively
for a total term of imprisonment of 228 months, five years of supervised release,
and a special assessment of $200. Gutierrez entered a plea agreement and agreed
to plead guilty to the firearms charge and cooperate with the government in
exchange for the dismissal of the other charges and a recommendation for a
downward departure at sentencing based on substantial assistance. The district
court sentenced Gutierrez to 60 months of imprisonment, which was the mandatory
minimum term for the firearms count, five years of supervised release, and a
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special assessment of $100. Luengas and Powell, who were juveniles at the time
of the sting, were prosecuted in state court as adults and released on probation.
Although the district court is required “to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct,” 18 U.S.C. § 3553(a)(6), the other defendants who received less
severe sentences were not similarly situated. We have held that defendants who
cooperate with the government and enter a written plea agreement are not similarly
situated to a defendant who provides no assistance to the government and proceeds
to trial. Williams, 526 F.3d at 1323–24. There is no unwarranted disparity even
when the sentence the cooperating defendant receives is “substantially shorter.”
Id. at 1323. “On a practical level, it would seem patently unreasonable to endorse
a regime in which a defendant could steadfastly withhold cooperation from the
authorities and then cry foul when a coconspirator benefits from rendering
substantial assistance to the government.” United States v. Mateo-Espejo, 426
F.3d 508, 514 (1st Cir. 2005). “Because [Docampo] did not provide any assistance
to the government, there was no ‘unwarranted’ disparity between his and [Reyes’s
and Gutierrez’s] sentences.” Williams, 526 F.3d at 1324.
Docampo also asserts that his sentence was unreasonable based on the
disparity between his federal sentence of 270 months of imprisonment and
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Powell’s and Luengas’s sentences of probation in state court, but we again
disagree. “A well-founded claim of disparity, however, assumes that apples are
being compared to apples.” Mateo-Espejo, 426 F.3d at 514. Powell and Luengas
were juveniles when the sting occurred, were prosecuted as adults in state court,
and pleaded guilty, but Docampo, who was 18 years old when he was arrested, was
prosecuted in federal court and sentenced under federal law. Section 3553(a)(6) is
concerned with unwarranted disparities in sentences among federal defendants.
See United States v. Willis, 139 F.3d 811, 812 (11th Cir. 1998) (per curiam);
United States v. Clark, 434 F.3d 684, 687 (4th Cir. 2006) (“The sole concern of
section 3553(a)(6) is with sentencing disparities among federal defendants.”)
(emphasis omitted). One of the purposes of the Sentencing Commission, and by
extension the Sentencing Guidelines, is to “establish sentencing policies and
practices for the Federal criminal justice system that . . . provide certainty and
fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing
disparities among defendants with similar records who have been found guilty of
similar criminal conduct . . . .” 28 U.S.C. § 991(b)(1)(B) (emphasis added); see
also Clark, 434 F.3d at 687 (“The Guidelines sought to avoid only the unwarranted
disparities that existed in the federal criminal justice system, that system for which
the Guidelines are governing law.”).
24
To require parity in sentencing between state and federal defendants “would
seriously undermine the goal of nationwide uniformity in the sentencing of similar
defendants for similar federal offenses.” See Willis, 139 F.3d at 812. Before the
Supreme Court decided Booker, we held, in Willis, that a district court could not
grant a downward departure from the guidelines “[b]ased on the disparity in
sentences imposed on brothers of roughly equal culpability for the same offense
conduct” when one of the brothers was prosecuted in state court, pleaded guilty
based on an agreement with the government, and received a sentence of time
served and probation. Id. “[T]he district court may not depart downward in order
to reconcile disparity between federal and state sentences among codefendants
because such departures create systemwide disparities among federal sentences.”
Id. We concluded, “The guidelines do not comment on disparate federal and state
sentences imposed upon codefendants . . . .” Id.
After Booker, the Seventh Circuit rejected a similar argument to vary from
the guidelines range and shorten the sentence of a federal defendant based on the
sentence received by another conspirator in state court because that variance would
have created disparities within the federal system:
Reducing a federal prisoner’s sentence to accord with that of a
similarly situated state convict may decrease one sentencing disparity
but simultaneously enlarges another: that between the federal convict
and all similarly situated federal convicts. Because penalties vary
25
from state to state, sentence reductions to approach state penalties
similarly vary with the state in which the federal sentencing court sits,
unjustifiably creating disparities among federal convicts.
United States v. Wurzinger, 467 F.3d 649, 654 (7th Cir. 2006) (citation omitted).
Section 3553(a)(6) addresses unwarranted sentence disparities among
federal defendants who are similarly situated instead of disparate federal and state
sentences. Docampo was not entitled to a less severe sentence based on the
sentences received by Powell and Luengas in state court. Docampo, a federal
defendant who was found guilty following a jury trial, is not similarly situated,
under section 3553(a)(6), to Powell and Luengas, who were prosecuted in state
court and pleaded guilty. See id; Clark, 434 F.3d at 687; see also Williams, 526
F.3d at 1323–24.
The dissent faults us for “focus[ing] on only one § 3553(a) factor in reaching
[the] conclusion that the sentence [i]s substantively reasonable,” but Docampo
does not argue that his sentence is substantively unreasonable based on the other
factors. “[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in the light of both that record and the factors in
section 3553(a).” Talley, 431 F.3d at 788. Docampo argues that his sentence is
unreasonable based on sentencing disparity, but he does not argue, much less
establish, that his sentence is unreasonable based on any other factor. We decline
26
to assume the role of counsel and make a new argument for Docampo. Because
Docampo has not established that his sentence “fails to achieve the purposes of
sentencing as stated in section 3553(a),” id., we conclude that his sentence is
reasonable.
IV. CONCLUSION
Docampo’s convictions and sentences are AFFIRMED.
27
BARKETT, Circuit Judge, concurring, in part, and dissenting, in part:
I concur in the majority opinion but for its determination that John
Docampo’s sentence of 22.5 years is reasonable. I believe a sentencing court’s
passing mention that it has considered the 28 U.S.C. § 3553(a) factors without
more analysis, as in this case, provides an insufficient basis for appellate review
and consequently is procedurally unreasonable. I further believe, under the facts
presented, that Docampo’s sentence is substantively unreasonable, a conclusion
only bolstered by the far lower sentences imposed on all of his significantly more
culpable co-conspirators.
I. BACKGROUND
At the time of his arrest, Docampo had just turned eighteen and had no prior
criminal record. His crime stemmed from a fictional robbery opportunity
presented by an undercover agent to Israil Reyes, who brought in two associates,
Luis Alex Gutierrez and Sebastian Luengas. Those three men met with the
undercover agent and conducted extensive planning before Docampo was ever
involved. Only days before the planned robbery, Luengas met with Edwardo
Lorenzo and Docampo and asked if they wished to participate. Although Lorenzo
declined to participate in the robbery, he agreed to give a gun to Docampo, who
wanted to take part. It is unclear whether, at that point, Docampo planned to use
28
this firearm for the robbery. On the day of the robbery, Christian Carmona and
David Powell, two other defendants who had also joined the group after the initial
planning, met with Docampo and Gutierrez at Luengas’s residence. They decided
that they needed another firearm, so they went to retrieve the gun that Docampo
had received from Lorenzo and gave it to Reyes.
Luengas and Powell—both seventeen-year-old juveniles—were charged in
state court as adults, pled guilty, and received only probation.1 Reyes, Gutierrez,
and Docampo were charged in federal court with counts of conspiracy to possess
cocaine and possession of a firearm in furtherance of the conspiracy. Reyes and
Gutierrez, who had actually planned the robbery, both pled guilty and agreed to
testify against Docampo. Reyes ultimately received a 180-month sentence.2
Gutierrez received the statutory mandatory minimum of 60 months for the firearms
charge and no additional time for the conspiracy. Docampo, who was pressured by
his father to reject any plea deal, went to trial and was subsequently convicted of
both charges. At sentencing, a psychiatrist described Docampo as someone who
1
Carmona was also seventeen years old but was killed in an unrelated crime before
further criminal proceedings could take place.
2
Reyes initially received a sentence of 168 months for the conspiracy count and the
statutory minimum of 60 months for the firearms count. He then received a four-level reduction
for his testimony against Docampo, bringing down his sentence to approximately 180
months—in essence, 120 months for the conspiracy and the mandatory 60 months for the
firearm.
29
“functioned at the level of a 16-17 year old,” and testified that he completely
submitted to his father’s instructions that he not enter a plea. The judge sentenced
Docampo to 270 months—60 months for the firearms charge and 210 months for
the conspiracy—because “we’ve got to stop [the continuing rise of gang violence].
The community expects it to stop.” Thus, Docampo’s conspiracy sentence, after
going to trial, was seventy-five percent greater than that of Reyes, who was the
ringleader of the robbery.3 None of the other co-conspirators received any time for
the conspiracy charge.
II. DISCUSSION
Pursuant to United States v. Booker, appellate courts must review criminal
sentencing for “unreasonableness.” 543 U.S. 220, 261 (2005); see also Rita v.
United States, 551 U.S. 338 (2007); Kimbrough v. United States, 128 S. Ct. 558
(2007); Gall v. United States, 128 S. Ct. 586 (2007).4 What is reasonable falls
within the discretionary purview given to the sentencing judge. However, review
under an abuse of discretion standard is not simply a rubber stamp. See Gall, 128
S. Ct. at 607 (Alito, J., dissenting) (“Appellate review for abuse of discretion is not
an empty formality. A decision calling for the exercise of judicial discretion
3
That is, Docampo received 210 months for the conspiracy while Reyes received 120
months. See supra n.2.
4
I will refer to this set of cases collectively as “the Supreme Court sentencing cases.”
30
‘hardly means that it is unfettered by meaningful standards or shielded from
thorough appellate review.’”) (quoting Albemarle Paper Co. v. Moody, 422 U.S.
405, 416 (1975)); see also United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.
2008) (“[It] remains true that the district court’s choice of sentence is not
unfettered.”).
Our two-stage review ensures that district courts impose a sentence that is
both procedurally reasonable and substantively reasonable in light of the § 3553(a)
factors. Gall, 128 S. Ct. at 600. The abuse of discretion standard “applies to
appellate review of all sentencing decisions—whether inside or outside the
[Sentencing] Guidelines range.” Id. at 596. While we acknowledge that there is a
“range of reasonable sentences from which the district court may choose,” United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), no appellate court can
presume that a sentence outside the Guidelines range is unreasonable, Rita, 551
U.S. at 355, nor does this court apply a “presumption of reasonableness” for
sentences that fall within the Guidelines, Talley, 431 F.3d at 787–88 (“[W]e reject
the argument of the United States that a sentence within the Guidelines range is per
se reasonable . . . . After Booker, our ordinary expectation [that a within-
Guidelines sentence is reasonable] still has to be measured against the record . . .
.”).
31
The Supreme Court sentencing cases have incontrovertibly established that a
reasonableness inquiry must be heavily grounded in the specific facts of the case at
hand—not simply the broad criminal statute under which the defendant was
charged. The sentence must be properly individualized to the defendant, both
procedurally and substantively. In this case, for the reasons expressed below, the
sentence imposed on Docampo was neither procedurally nor substantively
reasonable.
A. Procedural Reasonableness
The procedural sentencing requirements are straightforward—the district
court is required to (1) not base a sentence on clearly erroneous facts; (2) properly
calculate the Guideline imprisonment range; (3) treat the Guidelines as advisory
rather than mandatory; (4) consider all of the § 3553(a) factors; and (5) adequately
explain its reasoning. Gall, 128 S. Ct. at 596. However, application of these
requirements, particularly the last three, can be complex.
First, the Supreme Court, in holding that the Guidelines are “advisory,” has
made clear that a “district court[] must treat the Guidelines as the starting point and
the initial benchmark,” Kimbrough, 128 S. Ct. at 574 (quotation omitted), it must
give them “respectful consideration,” id. at 570, and it must “take them into
account,” Booker, 543 U.S. at 264. However, the Supreme Court has also declared
32
that the Guidelines “now serve as one factor among several courts must consider in
determining an appropriate sentence,” Kimbrough, 128 S. Ct. at 564 (emphasis
added), and a district court may “tailor the sentence in light of other statutory
concerns,” id. at 570 (quotation omitted). Furthermore, a sentencing court “may
not presume that the Guidelines range is reasonable.” Gall, 128 S. Ct. at 596–97
(emphasis added); see also Nelson v. United States, 129 S. Ct. 890, 892 (2009)
(“The guidelines are not only not mandatory on sentencing courts; they are also not
to be presumed reasonable.”).
There is, of course, a wide range between a “starting point warranting
respectful consideration” and “no presumption of reasonableness.” Some of the
Supreme Court Justices have expressed serious concern about how to apply the
Guidelines given the latent ambiguity in their advisory nature: “[I]f sentencing
judges attributed substantial gravitational pull to the now-discretionary Guidelines,
if they treated the Guidelines result as persuasive or presumptively appropriate, the
Booker remedy would in practical terms preserve the very feature of the Guidelines
that threatened to trivialize the jury right.” Rita, 551 U.S. at 390 (Souter, J.,
dissenting); see also id. at 366 (Stevens, J., concurring) (“I am not blind to the fact |
that, as a practical matter, many federal judges continued to treat the Guidelines as
33
virtually mandatory after our decision in Booker.”).5
To vindicate the right established in Booker that the Guidelines cannot be de
jure mandatory, meaningful appellate sentencing review must assure that district
courts are not simply treating them as de facto mandatory. The recognition of any
right must be paired with a mechanism by which that right can be both interpreted
and enforced. Thus, it is the responsibility of appellate courts to ensure that
sentencing judges make a concerted effort to reach independent conclusions about
the appropriateness of a sentence in each specific case. We can only do so by
ascertaining if the Guidelines served as just one of the factors that contributed to
the determination of the sentence and not its sole basis. This in turn requires a
close examination of the district court’s reasoning for imposing a given
sentence—another procedural reasonableness requirement.
Congress requires the district court to “state in open court the reasons for its
imposition of the particular sentence,” § 3553(c), and before doing so, the court
5
Not only have district courts now become used to relying on them, but the Guidelines
inevitably have a considerable anchoring effect on a district court’s analysis:
Anchoring is a strategy used to simplify complex tasks, in which numeric
judgments are assimilated to a previously considered standard. When asked to
make a judgment, decision-makers take an initial starting value (i.e., the anchor)
and then adjust it up or down. Studies underscore the significance of that initial
anchor; judgments tend to be strongly biased in its direction.
Nancy Gertner, What Yogi Berra Teaches About Post-Booker Sentencing, 115 Yale L.J. Pocket
Part 127 (2006), http://www.thepocketpart.org/2006/07/gertner.html (quotations omitted).
34
must consider each of the factors delineated in § 3553(a) to arrive at the
appropriate sentence.6 It is not easy, however, to strike the proper balance between
requiring that a judge offer a “sufficient explanation” for the sentence and
overburdening a judge by demanding an in-depth discussion of every sentencing
decision. The Supreme Court has directly acknowledged this difficult task, noting
that “a public statement” of a judge’s reasons provides “the public with the
assurance that creates [] trust [in the judicial institution]” but that it does not “read
the [§ 3553] statute (or our precedent) as insisting upon a full opinion in every
case.” Rita, 551 U.S. at 356. The Court instead offered the following guidance:
“The sentencing judge should set forth enough to satisfy the appellate court that he
6
Section 3553(a) provides:
The court shall impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this subsection. The court,
in determining the particular sentence to be imposed, shall consider--
(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; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) [the Sentencing Guidelines range]
(5) any pertinent policy statement [issued by the Sentencing Commission]
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
35
has considered the parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority,” id. (emphasis added), and “must adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing,” Gall, 128 S. Ct. at 597 (emphasis
added).
What is “enough” or “adequate” depends upon the circumstances of the
particular case at hand:
Circumstances may well make clear that the judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence is
a proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge has found that the
case before him is typical. Unless a party contests the Guidelines
sentence generally under § 3553(a)—that is argues that the Guidelines
reflect an unsound judgment, or, for example, that they do not
generally treat certain defendant characteristics in the proper way—or
argues for departure, the judge normally need say no more.
Rita, 551 U.S. at 357 (emphasis added); see also id. at 359 (finding that if the case
is “simple,” and “the record makes clear that the sentencing judge considered the
evidence and arguments, we do not believe the law requires the judge to write
more extensively”). Thus, less may be required if a case is “simple” or “typical.”
The logical corollary of this conclusion, however, is that more is required when a
judge is faced with an atypical case or the defendant argues that a departure from
the Guidelines is warranted.
36
The courts of appeals have struggled with the depth of explanation required.
The Tenth Circuit and a panel decision in the Seventh Circuit have held that
conclusory sentencing opinions are sufficient. See United States v. Cereceres-
Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007) (requiring only “a general statement
of the reasons for its imposition of the particular sentence” as opposed to a
“specific explanation”) (quotations omitted); United States v. Gammicchia, 498
F.3d 467, 468–69 (7th Cir. 2007) (finding the § 3553(a) factors “vague and
nondirectional” and not requiring any mention of the factors so long as the judge
“said” he considered them). On the other hand, the First and Sixth Circuits, and
another panel of the Seventh Circuit, have required a specific discussion of the §
3553(a) factors, at least in certain circumstances. See United States v. Cirilo-
Munoz, 504 F.3d 106 (1st Cir. 2007) (remanding the case because of the
inadequacy of the sentencing explanation); id. at 118 (Torruella, J., concurring)
(stating that the district court’s analysis and reasons must be “tested against the
record of the case to determine whether the reasoning is supported by the record,
and [to determine] ultimately, whether the sentence is reasonable”); United States
v. Thomas, 498 F.3d 336, 339–40 (6th Cir. 2007) (concluding that the proper
review requires the appellate court to examine the sentencing transcript to
determine whether the sentencing court adequately considered the relevant §
37
3553(a) factors and clearly stated its reasons for imposing the chosen sentence);
United States v. Miranda, 505 F.3d 785, 792, 796 (7th Cir. 2007) (noting that
“when a court gives little or no attention to the defendant’s principal argument . . .
we cannot have confidence that the judge adequately considered the section
3553(a) factors” . . . [and therefore is] likely to have committed an error or
oversight” and further stating that “a rote statement that the judge considered all of
the relevant factors will not always suffice”) (quotations omitted).
Our own circuit in United States v. Scott has held that “nothing in Booker or
elsewhere requires the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.” 426 F.3d 1324, 1329 (11th Cir. 2005) (emphasis added). We have
subsequently held in Talley, that an “acknowledgment by the district court that it
has considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” 431 F.3d at 786.
Based on the language of the Supreme Court sentencing cases, I believe that,
for atypical or non-simple cases, it is not enough for a district court to simply state
that it has “considered the § 3553(a) factors.” Our previous holdings do not free
the district court from the requirement that it adequately explain its reasoning nor
free us from our obligation to ensure that all the § 3553(a) factors were truly
38
considered. See Rita, 551 U.S. at 366 (Stevens, J., concurring) (“Booker’s
standard of review . . . requires [] district judges to consider all of the factors listed
in § 3553(a) and to apply them to the individual defendants before them.”). Thus,
while a mechanical discussion of each § 3553(a) factor may not be necessary in
every case, a district court has a responsibility to analyze the relevant factors on the
record. These would include a particular § 3553(a) factor raised by a defendant, or
one clearly implicated by the specific facts of that case. To the extent that our
circuit’s cases are interpreted to hold otherwise, I believe such an interpretation is
erroneous as applied to non-typical cases.7
Due process requires a rational basis for judicial decisions—especially when
ordering the incarceration of a defendant. We cannot legitimately be deferential to
a sentencing determination until we first understand its foundation. It bears
emphasizing that requiring a sufficiently detailed record does not undermine the
7
Moreover, the sentencing judge should be able to articulate the rationale that justifies
the actual number of months or years that make up a defendant’s sentence, whether that number
is within or outside the Sentencing Guidelines. A reasonable sentence is one for which there is
an explanation of how the particular length of the imposed sentence corresponds to the
individual sentencing needs of the particular defendant. For example, how does a sentence of
fifteen years, as opposed to a sentence of five or ten years, or twenty-two years for that matter,
serve the needs of individual and general deterrence while also addressing the nature of the
crime and the individual characteristics of the defendant in a given case? The number of years
cannot be determined simply by an individual judge’s gut feeling. As a society that values due
process, we must have some rationalization for every step of our judicial system. There should
be a transparent, logical, and reasonable justification to support the amount of jail time
prescribed for a particular defendant based on the § 3553 factors.
39
sentencing court’s ultimate discretion. I do not in any way suggest that an
appellate court substitute its own view of the appropriate sentence for that of the
district judge, who is better able to assess the credibility of sentencing witnesses,
including the sincerity of a defendant’s remorse or the potential for rehabilitation.
I simply observe that an appellate court must be able to thoroughly understand the
basis for the sentencing court’s decision in order to properly review it.
Applying the Congressional dictates here, Docampo’s sentence is
procedurally unreasonable because the district court did not appear to have
considered the § 3553(a) factors on an individualized basis, nor did it adequately
explain its decision. This is anything but a typical or simple case. We are
considering a fictional robbery where Docampo, who had just turned eighteen, was
the only person to go to trial, was not the subject of the sting but rather only a
peripheral player in the conspiracy, and yet was sentenced to a drastically longer
sentence than every other co-conspirator. The sentencing record reveals little
explication, aside from the court’s statement that it had “consider[ed] the advisory
sentencing guidelines and all of the [§ 3553(a)] factors.” The judge’s only
comments centered on Docampo’s voluntary participation in the crime, the
potential violence that might have resulted had the firearms been used, and the
general rise of gang violence—after which the judge opined, “[W]e’ve got to stop
40
it. The community expects it to stop.” There was no evidence, however, tying
Docampo to any conduct other than that for which he was convicted—joining the
conspiracy at the last minute and transferring a gun from one person to the
ringleader. More importantly, the judge made no mention at sentencing of the
“nature and circumstances” of the actual crime that did occur or Docampo’s
“history and characteristics”—such as the absence of a criminal record or his
biological or psychological age.8 Without more on the record, it is hard to say
whether the judge presumed that the Guidelines range was reasonable or
considered any of the § 3553(a) factors save one—the abstract principle of
“general deterrence.”
When a court has given little indication it has taken into account the
pertinent facts specific to the case, it constitutes an abuse of discretion:
[T]he district court must give some weight to the factors in a manner
that is at least loosely commensurate with their importance to the case,
and in a way that achieves the purposes of sentencing stated in §
3553(a). Where it does not, and instead commits a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the facts
of the case, we must remand for resentencing. Indeed, if we could not
say so here, we would come perilously close to holding that appellate
8
The judge’s only discussion of any details particular to Docampo occurred before her
sentencing decision in a response to his lawyer’s assertion that Docampo had an impressive job
history for a teenager. The judge questioned whether Docampo’s job history was as positive as
his lawyer suggested, pointing to the fact that Docampo had been dismissed for poor
performance by one employer and had quit some jobs.
41
review is limited to procedural irregularity, so long as the district
court says it has reviewed all of the Section 3553(a) factors. We do
not read Supreme Court precedent as having so eviscerated appellate
review at the same time that it has mandated the appellate courts to
continue to review sentences for reasonableness.
Pugh, 515 F.3d at 1203–04 (quotations omitted). While Pugh dealt with whether it
was unreasonable for the district court to have deviated below the Guidelines, its
conclusion is no less true in cases where the district court sentenced within the
Guidelines but the facts may dictate that a reasonable sentence should, in fact, be
below the Guidelines.
Because the sentencing judge here did not adequately grapple with the
pertinent § 3553(a) factors to fashion an individualized sentence, I would vacate
and remand Docampo’s sentence for reconsideration.
B. Substantive Reasonableness
Our substantive review asks whether the specific sentence imposed is
reasonable and supported by the § 3553(a) factors. Gall, 128 S. Ct. at 600.
Black’s Law Dictionary defines “reasonable” as “[f]air, proper, or moderate under
the circumstances.” The Oxford English Dictionary defines it as “proportionate”
or “of such an amount, size, number, etc., as is judged to be appropriate or suitable
to the circumstances or purpose.” The common theme is that reasonableness is
circumstance-dependent; in other words, it must be determined in the context of
42
each specific case. For this reason the Supreme Court has said that “[w]hen
conducting this [sentencing] review, the court will, of course take into account the
totality of the circumstances.” Gall, 128 S. Ct. at 597.
The overarching aim of sentencing is to achieve proportionality—that is, we
are attempting to impose a punishment that, as the statute expressly mandates, is
“sufficient, but not greater than necessary, to comply with the purposes [of
criminal sentencing].” § 3553(a) (emphasis added). Consideration of the §
3553(a) factors was required by Congress to achieve this proportionality.
The very first factor that Congress instructs judges to consider emphasizes
the individual element of the inquiry: “the nature and circumstances of the offense
and the history and characteristics of the defendant.” Id. The statute then sets out
multiple purposes to weigh when ascertaining the appropriate length of a sentence:
[T]o reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; to afford adequate
deterrence to criminal conduct; to protect the public from further
crimes of the defendant; and to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.
Id. While two of the purposes are broad and abstract—“promote respect for the
law” and “afford adequate deterrence to criminal conduct”—the other four focus
on the specific offense and the specific defendant. Furthermore, the Supreme
Court has noted that the Sentencing Guidelines themselves have the fundamental
43
goal of “avoid[ing] excessive sentencing disparities while maintaining flexibility
sufficient to individualize sentences where necessary.” Booker, 543 U.S. at 265
(emphasis added).
To preserve the flexibility to individualize and avoid sentencing in the
abstract, an intensive fact-based inquiry is necessary to determine if a sentence is
indeed reasonable. Accordingly, a sentence is substantively unreasonable if the
individualized facts of the case are not properly taken into account, and a judge
simply focuses on § 3553(a)’s generally-applicable principles. See, e.g., Gall, 128
S. Ct. at 607 (Alito, J., dissenting) (“[W]hen a trial court is required by statute to
take specified factors into account in making a discretionary decision, the trial
court must be reversed if it ‘ignored or slighted a factor that Congress has deemed
pertinent.’”) (quoting United States v. Taylor, 487 U.S. 326, 337 (1988)). A
reviewing court reads out of § 3553(a) every “individualization” factor if it always
deems a sentence reasonable when a district judge has grounded the decision solely
in the abstract principles of “deterrence” and a need to “promote respect for the
law.”
When we ask if the district court has imposed a sentence “sufficient, but not
greater than necessary,” we essentially pose two separate questions: (1) Is the
sentence enough punishment? and (2) Is the sentence too much punishment?
44
Appellate courts have had no difficulty finding unreasonableness when asking the
former. See, e.g., Pugh, 515 F.3d at 1179 (finding that probation for a possessor of
some child pornography was insufficient). We should likewise be willing to find
that, in a case that warrants it, “a within-Guidelines sentence is ‘greater than
necessary’ to serve the objectives of sentencing,” Kimbrough, 128 S. Ct. at 564
(quoting § 3553(a)). Our appellate sentencing review should not develop into a
one-way rachet upwards.9 Just as the district court has an obligation not to assume
the Guidelines are automatically reasonable, we too—as a circuit that does not
apply a reasonableness presumption—are obligated to ask whether a within-
Guidelines sentence is reasonable without any thumb on the scale. Thus,
reiterating what we have previously noted, there are “many instances where the
Guidelines range will not yield a reasonable sentence. . . . In some cases it may be
appropriate to defer to the Guidelines; in others, not.” United States v. Hunt, 459
F.3d 1180, 1184 (11th Cir. 2006).
9
We must not lose sight of the fact that sentence uniformity is a two-sided coin. It does
not simply mean ensuring that similarly situated defendants are sentenced similarly. It also
entails “[the] need to avoid unwarranted similarities among other co-conspirators who were not
similarly situated.” Gall, 128 S. Ct. at 600 (emphasis added). That is, we must avoid a “false
uniformity.” See United States v. Cabrera, 567 F. Supp. 2d 271, 273 (D. Mass. 2008) (“False
uniformity occurs when we treat equally individuals who are not remotely equal because we
permit a single consideration . . . to mask other important factors.”). Even when a charged crime
is the same, the manner in which it was committed, the degree of culpability, and the background
of the defendant are often very different. In other words, sometimes deviations from the
Guidelines—and not its mechanical application— are actually needed to achieve true sentencing
uniformity.
45
There is no doubt in my mind that Docampo’s sentence is far “greater than
necessary” to comply with the sentencing goals. A psychiatrist testified that he
was functioning as a sixteen or seventeen year old and was completely submissive
to his father. He had no criminal history.10 He will now be incarcerated until he is
over forty years old. Had he been only two months younger at the time of the
fictitious robbery, he would have been tried in state court along with the other
juveniles who received probation.11 The district court gave no weight to any of the
factors that bore on this particular defendant and this particular attempted crime.
10
I do not find that Docampo’s bravado boasting to his co-conspirators that he was
“experienced” in robberies undercuts the fact that he has no criminal record. His boasts may
have had no basis in fact. Regardless, no evidence of any prior criminal “experience” was
proven by the State, at sentencing or otherwise.
11
While the law requires that Docampo be tried as an adult the moment he turned 18—to
be treated no differently than older adults during the prosecution stage—, Docampo’s age is still
relevant in considering the “totality of the circumstances” for sentencing purposes. As the
Supreme Court has noted in the death penalty context, “Drawing the line at 18 years of age is
subject, of course, to the objections always raised against categorical rules. The qualities that
distinguish juveniles from adults do not disappear when an individual turns 18.” Roper v.
Simmons, 543 U.S. 551, 574 (2005).
There is no doubt that, for the sake of efficient administrability, our judicial system must
draw a categorical line somewhere to differentiate between “juveniles” and “adults.” But that
legal necessity does not change the psychological and sociological facts found in Roper: (1) that
“juveniles will be less susceptible to deterrence” because there is a “[remote] likelihood that the
teenage offender has made the kind of cost-benefit analysis that attaches any weight to [serious
punishment]”; (2) that “[a] lack of maturity and an underdeveloped sense of responsibility are
found in youth more often than in adults and are more understandable among the young . . . often
result[ing] in impetuous and ill-considered actions and decisions”; (3) that “juveniles are more
vulnerable or susceptible to negative influences and outside pressures, including peer pressure”;
and (4) “that the character of a juvenile is not as well formed as that of an adult.” Id. at 561,
569–72 (emphasis added) (quotations omitted). Nor does that necessity preclude us from
considering the relevance of these facts as they pertain to consideration of § 3553(a)(1)’s
“characteristics of the defendant.” On the contrary, we are obligated to do so.
46
Indeed, there is a total absence of case-specific analysis or consideration of the
“totality of the circumstances.” Rather, the judge based the justification of the
sentence solely on the abstract principle of deterrence and the need to “make an
example” out of Docampo—considerations which are at odds with the
individualized sentencing required by the Sentencing Guidelines and Booker.
I would also note that the majority opinion itself focuses on only one §
3553(a) factor in reaching its conclusion that the sentence was substantively
reasonable—whether Docampo was “similarly situated” to his co-conspirators per
§ 3553(a)(6). The majority’s analysis is limited to why Docampo is not similarly
situated, forgoing any discussion of the other “individualization” factors that
counsel against upholding such an extreme sentence.12 This emphasis is
12
The majority states that Docampo does not argue that his sentence is substantively
unreasonable based on any other factor. This is incorrect. Docampo explicitly argues that the
“record does not reflect that the court considered . . . ‘the nature and circumstances of the
offense,’ § 3553(a)(1); the ‘history and characteristics of the defendant,’ § 3553(a)(1); . . . and
whether the sentence imposed was ‘sufficient but not greater than necessary, to comply with’
this and other purposes of sentencing, § 3553(a).” [Bl. Br. 42]. He then cites to specific details
that he asserts render the sentence unreasonable:
Docampo’s lack of serious prior criminal record, his strong community and
family support, his young age, his emotional immaturity, the sentences of the
codefendants, the fact that the “crime” was a fictionalized sting, and that there
was no victim, as well as the role his father played in aborting his cooperation
proffer and insisting that he take the case to trial (another example, according to
Dr. Maher, of Docampo’s emotional immaturity, that in a childlike fashion he
allowed his father to dictate the course of his defense), and similar factors.
[Bl. Br. 43].
47
inconsistent with the holistic approach mandated under our substantive review.
Moreover, as to the specific “similarly situated” factor, the majority opinion
appears to creates a false dichotomy. The fact that there is no uniformity
requirement does not then give a sentencing court carte blanche to impose radically
disproportionate sentences. While our case law may not treat the defendants who
agreed to cooperate with the government or those who were tried in state court as
“similarly situated” to Docampo such that they should have been given uniform
sentences, the extreme disparity that has occurred here cannot help but bolster the
conclusion that Docampo’s punishment was excessive. The fact that Docampo’s
co-conspirators received radically lower sentences undermines the argument that a
sentence of twenty-two years and six months was required in order to be
“sufficient” but was not “greater than necessary.” Thus, the disparities in their
sentences must still play some role in our assessment of the “totality of the
circumstances.” Indeed, it is hard to escape the view that Docampo, in essence, is
being punished for exercising his right to a jury trial. See, e.g., Blackmon v.
Wainwright, 608 F.2d 183, 184 (5th Cir. 1979) (“[A] defendant cannot be punished
by a more severe sentence because he unsuccessfully exercised his constitutional
right to stand trial rather than plead guilty.”) (quotation omitted).13
13
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
48
Because I do not believe Docampo received an individualized, or
proportional, or reasonable sentence, I respectfully dissent.
close of business on September 30, 1981.
49