United States v. Julio Magana ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 22, 2008
THOMAS K. KAHN
No. 07-13135
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00066-CR-1-RLV-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO MAGANA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 22, 2008)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Julio Magana appeals the total sentence he received following his pleas of
guilty to carjacking with the intent to cause death or serious bodily harm, in
violation of 18 U.S.C. §§ 2119, 2 (“Counts One and Three”), and using a firearm
during the course of a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (“Count
Two”).
On appeal, Julio Magana argues that the court erred when it departed upward
or otherwise imposed an unreasonable sentence of 120 months’ imprisonment on
Count Two, and that the record is insufficient for us to conduct meaningful
appellate review of that sentence. Although Julio Magana agreed, when pleading
guilty, to waive the right to appeal his sentence under certain circumstances, the
government has indicated that it does not seek to enforce this provision as to Count
Two, so we will consider Julio Magana’s claim, in turn.
I.
Pursuant to the Guidelines, a district court is required at the time of
sentencing to state, in open court, the reasons for its imposition of the particular
sentence and “the specific reason for the imposition of a sentence different from
that described,” if any. See 18 U.S.C. § 3553(a)(c)(2).
We have previously vacated a defendant’s sentence and remanded for
resentencing where the district court’s lack of findings, either explicit or implicit,
2
precluded meaningful appellate review. See United States v. Reid, 139 F.3d 1367,
1368 (11th Cir. 1998) (safety-valve relief). We have also done this where we were
unable to tell from the record whether the district court imposed an upward
departure or variance, and “the record was insufficient to permit the affirmance of
the sentence” under either scenario. See United States v. Valdes, 500 F.3d 1291,
1292 & n.2 (11th Cir. 2007).
Recently, in Gall v. United States, 552 U.S. __, 128 S. Ct. 586 (2007), the
Supreme Court noted that a district court, in imposing sentence, “must adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Gall, 552 U.S. at __, 128 S.Ct. at 597
(citing Rita v. United States, 551 U.S. __, 127 S. Ct. 2456 (2007)).
Upon review of the record, and upon consideration of the briefs of the
parties, we vacate Managa’s sentence on Count Two and remand for resentencing.1
On this record, we are precluded from conducting meaningful appellate
review of the sentence imposed on Count Two. First, it is unclear from the record
whether the district court even intended to deviate upward from Julio Magana’s
sentencing range on that count. Pursuant to U.S.S.G. § 2K2.4(b), the guideline
sentence for the count was the statutory mandatory minimum of 84-months’
1
We do not review the court’s sentences on Counts One and Three because no challenge
was raised to them on appeal and because of the appeal waiver.
3
imprisonment. However, the district judge, in imposing the 120-month sentence
on the count, asserted that “sentence[s] within the guideline range [are] sufficient
to punish the defendant, protect the public, and [are] a deterrent to crime. And as
the Supreme Court ruled this morning, [they are] sentence[s] within the guidelines;
therefore, presumptively reasonable.” Thus, the sentence imposed on Count Two
appears to be inconsistent with the district court’s expressed intentions as to
sentencing.
The government attorney attempted to resolve the lack of clarity between the
sentence imposed on Count Two and the court’s subsequent statements by asking
the court whether it was “departing upward . . . [ under the 18 U.S.C. §] 3553[a]
factor[s],” but the district court further added to the uncertainty surrounding its
actions when it merely stated “Yes” without any additional comment or
explanation.
Second, to the extent that the district court intended to deviate upward, it is
unclear whether the deviation was intended to be an upward variance or departure.
Finally, the district court did not provide any findings – either explicit or implicit
– to justify the upward deviation.
Thus, because we cannot conduct meaningful appellate review, we vacate
Julio Magana’s sentence on Count Two and remand for further proceedings with
4
instructions to identify whether the difference between the applicable sentencing
range and the sentence imposed resulted from an upward departure or a variance,
and to explain the reasoning behind that decision, consistent with Guidelines and
18 U.S.C. § 3553(a)(c)(2).
VACATED AND REMANDED.
5