United States v. Orlando E. Puche ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 24, 2008
No. 07-10929 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00933-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ORLANDO E. PUCHE,
MAURICIO JAVIER PUCHE,
ENRIQUE ALFONSO PUCHE,
Defendants-Appellees.
________________________
No. 07-10930
Non-Argument Calendar
________________________
D. C. Docket No. 00-00933-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MAURICIO JAVIER PUCHE,
Defendant-Appellee.
________________________
No. 07-10931
Non-Argument Calendar
________________________
D. C. Docket No. 00-00933-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ENRIQUE ALFONSO PUCHE,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 24, 2008)
Before BARKETT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
After a second resentencing, the government appeals the district court’s
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sentence of time served (approximately 66 months’ imprisonment) imposed on
Orlando Puche, Enrique Puche, and Mauricio Puche (“the Puches”) for their
convictions for one count of conspiracy to commit money laundering, in violation
of 18 U.S.C. § 1956(a)(3) and (h). These 66-month sentences are a downward
variance from Orlando Puche’s advisory guidelines range of 135 to 168 months’
imprisonment and Enrique and Mauricio Puche’s advisory guidelines ranges of
108 to 135 months’ imprisonment. After review, we conclude that the district
court based its variance on a legally erroneous factor, and thus we vacate and
remand.
I. BACKGROUND
This appeal marks the third occasion that this case has been before us. We
briefly review its procedural history.
A. Conviction, Sentencing and First Direct Appeal
The Puches proceeded to trial on the single charge of conspiracy to commit
money laundering. The trial evidence established that the Puches owned and
operated a money transmittal company, Gloria Exchange Corporation (“GEC”), in
Miami, Florida. United States v. Puche, 350 F.3d 1137, 1141 (11th Cir. 2003).
The Drug Enforcement Agency (“DEA”), in connection with local police,
conducted a sting operation targeting another money transmittal company, wherein
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an officer “posed as a drug dealer responsible for collecting cash from various drug
sales locations and forwarding money to overseas accounts.” Id. Through the
owner of the other company, officers eventually met with employees of the Puches.
See id. at 1141-42. Over the next few months, agents brought a total of $714,500
in small bills to the Puches’ GEC, which was deposited into GEC’s accounts and
then transferred to accounts in Canada and England that were controlled by the
DEA. Id. at 1142. The jury found the Puches guilty.
At a sentencing hearing in April 2002, the district court calculated guidelines
ranges of 188 to 235 months’ imprisonment for Orlando Puche and 135 to 168
months’ imprisonment for Enrique and Mauricio Puche. The district court
sentenced Orlando Puche to 188 months’ imprisonment, and Enrique and Mauricio
Puche to 151 months’ imprisonment each, all of which were at the low end of their
respective guidelines ranges. The Puches were imprisoned on July 27, 2001, when
the jury found them guilty.
In November 2003, this Court affirmed the Puches’ convictions but
concluded that the district court erroneously failed to apply a three-level reduction
to their offense levels under U.S.S.G. § 2X1.1(b)(2). See id. at 1156-57.
Accordingly, this Court vacated the Puches’ sentences and remanded to the district
court “for the limited purpose of applying the three-level reduction under U.S.S.G.
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§ 2X1.1(b)(2) and then resentencing within the resulting U.S.S.G. range.” Id. at
1157.
B. Resentencing and Second Direct Appeal
At a resentencing hearing in December 2004, the district court applied the
three-level § 2X1.1(b)(2) reduction and recalculated guidelines ranges of 135 to
168 months’ imprisonment for Orlando Puche and 108 to 135 months’
imprisonment for Enrique and Mauricio Puche. The district court resentenced
Orlando Puche to 135 months’ imprisonment and Enrique and Mauricio Puche to
108 months’ imprisonment, all of which were at the low end of their respective
guideline ranges.
In this second appeal, this Court concluded that “the district court committed
statutory Booker1 error by sentencing the Puches under a mandatory system,” and
that such error was not harmless because the record did not indicate how the
district court would have sentenced the Puches under an advisory guidelines
system. See United States v. Puche, Nos. 05-10033, 05-10035, 05-10037, slip op.
at 7-11 (11th Cir. Nov. 22, 2005) (unpublished). Accordingly, this Court again
vacated the Puches’ sentences and remanded “for the limited purpose of
resentencing pursuant to Booker.” Id. at 13. To that end, this Court’s opinion
1
The Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),
after this Court’s opinion in the Puches’ first appeal.
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instructed that:
[T]he district court is required to sentence the Puches under an
advisory Sentencing Guidelines regime, and shall consider the
Sentencing Guidelines range of 135 to 168 months’ imprisonment for
Orlando Puche, and the range of 108 to 135 months’ imprisonment for
Enrique and Mauricio Puche, and “other statutory concerns as well,
see 18 U.S.C. § 3553(a) . . . .”
Id. at 14 (quoting Booker, 543 U.S. at 245, 125 S. Ct. at 757) (bracket omitted).
C. Briefing Before Resentencing
Prior to their second resentencing, the Puches filed sentencing memoranda
arguing that several factors supported resentencing them below the guidelines
range and that sentences of time served would further the purposes of 18 U.S.C.
§ 3553(a). Specifically, the Puches cited these factors: (1) their money laundering
operation was non-violent, (2) there were no third-party victims, (3) they had
worked to better themselves while incarcerated, (4) they had a strong support
system of family and friends, (5) they would not pose a threat to society if released,
and (6) the amount-of-loss figure used to enhance their guidelines calculations
violated their Sixth Amendment rights because it was not submitted to the jury.2
The Puches later filed a supplemental memorandum that (1) cited several
cases where defendants who laundered more money than they did received
2
Although Orlando, Mauricio, and Enrique Puche filed separate sentencing memoranda,
their arguments were essentially identical.
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sentences below the Puches’ guidelines ranges, and (2) cited a Department of
Justice report stating that the average sentence for those convicted of money
laundering offenses was 44 months’ imprisonment and that approximately one-
quarter of those convicted in 2001 of money laundering offenses received only
probation. The Puches also submitted letters from friends and family that
described them as good, hard-working men.
The government’s brief responded that sentences of time served would not
be appropriate. Instead, the government recommended that sentences at the low
end of the advisory guidelines range–i.e., 135 months’ imprisonment for Orlando
Puche and 108 months’ imprisonment for Enrique and Mauricio Puche–were
reasonable in light of the § 3553(a) factors. In response to the Puches’ claim of
Booker error in the amount-of-loss figure under an advisory regime, the
government argued that (1) the loss amount was, in fact, determined by the jury
when it found the forfeiture amount, and (2) post-Booker, judge-found facts may
still be used to calculate the advisory guidelines range and need not be charged,
proven beyond a reasonable doubt, or admitted by the defendant.
D. Order Resentencing to Time Served
Upon receipt of the briefing and before the start of the resentencing hearing,
the district court issued a written order on January 26, 2007 resentencing the
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Puches to time served (which was 66 months at that time).3 The district court’s
order noted that, pursuant to the Eleventh Circuit’s mandate, the district court was
instructed “to reconsider its sentence of the Defendants under an advisory
Sentencing Guidelines regime, as opposed to the mandatory regime.” The order
also stated that at the Puches’ original sentencing, it had expressed its “deep
dissatisfaction” with imposing a sentence within the guidelines range and its
opinion that the guidelines “in this instance are quite harsh.” The district court’s
order again observed that post-Booker the guidelines are advisory and that the
court, after considering the guidelines range, “is permitted to tailor a sentence in
light of other statutory concerns, such as relevant individual circumstances.”
The district court’s order listed the § 3553(a) factors. It then noted that this
Court had held that post-sentence rehabilitative conduct was an impermissible
factor to consider at sentencing, but recognized here “other factors warranting a
downward departure from the recommended Guidelines range.” The district court
found these factors warranted a lesser sentence: (1) there was no violence
connected with the Puches’ offense or any third-party victims; (2) the Puches’ had
“strong familial ties” and “an otherwise impressive support system comprised of
friends and family”; and (3) “because the Defendants’ amounts of loss were not
3
The government makes no claim of procedural error as to the order being entered before the
resentencing hearing.
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submitted to the jury, the use of such amounts violates the Sixth Amendment right
to a jury trial on all issues.” The district court pointed out that, in this case, the
Puches’ base offense levels were increased due to conduct found at sentencing that
was not determined by the jury.
The district court stated that upon weighing the above relevant concerns, the
defendants should be resentenced to time served, as follows:
Upon weighing all of the relevant concerns, the Court has
concluded that without regard to the ultimate calculation of the
sentencing guidelines, i.e., whether the Court accepts the
government’s proposed calculation or that of the defendant or some
middle ground, the ultimate sentence that this Court would impose
would be the same. Thus, under Fed. R. Crim. P. 32(i)(3)(B), the
Court need not undertake the resolution of the disputed sentencing
factors in the presentence report, because the ultimate sentence would
be identical in any event, even under the calculations presently
contained in the presentence report. To the extent that a calculation of
the guidelines is required, the Court will proceed with the acceptance
of the guideline range as determined by the probation officer.
The Court concludes that, after considering the factors
enumerated in Title 18 U.S.C. § 3553(a), the Defendants should be re-
sentenced to a sentence that is no “greater than necessary” to comply
with the comprehensive statutory factors. The Court will therefore
impose a sentence of TIME SERVED.
Accordingly, the district court ordered that the Puches’ be released from custody.
E. Resentencing Hearing
At the start of the resentencing hearing on January 26, 2007, the district
court indicated that the parties had already been provided with copies of its above-
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described resentencing order. The district court stated that because the court
preferred “substance over form,” it would be a “relatively short” resentencing
hearing. The district court reiterated that it had commented on many occasions in
the past about “the harshness of the punishment imposed” and that those matters
had been addressed in its order.
The district court then formally sentenced the Puches to time served and
three years’ supervised release, but noted that it would “favorably consider” a
motion to terminate the final year of supervised release if the Puches successfully
completed the first two years. The sentences of time served (which was 66
months) were a downward variance from Orlando Puche’s advisory guidelines
range of 135 to 168 months’ imprisonment and from Enrique and Mauricio
Puche’s advisory guidelines ranges of 108 to 135 months’ imprisonment.
The district court inquired if the Puches objected to their sentences, and they
said they did not. The district court did not make the same inquiry of the
government before adjourning the hearing.
II. DISCUSSION
A. Sentencing Post-Gall
After the Supreme Court’s decisions in Booker and Gall v. United States,
552 U.S. __, 128 S. Ct. 586 (2007), the district courts are still required to correctly
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calculate the advisory guidelines range. See United States v. Pugh, 515 F.3d 1179,
1189 (11th Cir. 2008). If the district court decides that a sentence outside of the
guidelines is warranted, it “‘must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the degree of the
variance.’” Id. at 1190 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597) (emphasis
omitted).
Gall emphasized that “while the extent of the difference between a particular
sentence and the recommended Guidelines range is surely relevant, courts of
appeals must review all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.”
Id. at 1189 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 591).
Under Gall, we must engage in a two-step process of sentencing review. See
id. at 1190. First, we must “‘ensure that the district court committed no significant
procedural error, such as 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.’” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct.
at 597).
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Second, we must consider the “‘substantive reasonableness of the sentence
imposed, under an abuse-of-discretion standard,’” taking into account the “‘totality
of the circumstances.’” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597). In
considering the substantive reasonableness of the sentence, we may “‘not apply a
presumption of unreasonableness’” where a sentence is outside of the Guidelines
range, and 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. (quoting
Gall, 552 U.S. at __, 128 S. Ct. at 597).
A sentence may be substantive unreasonable “‘when the district court selects
the sentence arbitrarily, bases the sentence on impermissible factors [or] fails to
consider pertinent section 3553(a) factors.’” Id. at 1192 (quotation marks omitted)
(emphasis added). If such an error exists, we will vacate the sentence and remand,
unless the error was harmless. See United States v. Keene, 470 F.3d 1347, 1349
(11th Cir. 2006). A district court’s consideration of an impermissible factor at
sentencing is harmless if the record as a whole shows the error did not substantially
affect the district court’s selection of the sentence imposed. See United States v.
Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).
We now apply the two-step appellate review process outlined in Gall to the
Puches’ sentences of time served.
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B. The Puches’ Time-Served Sentences
As to the first prong of the analysis outlined by Gall, we conclude that the
district court did not commit procedural error in sentencing the Puches. By
adopting the advisory guidelines ranges calculated in the presentence investigation
report, which were the same guidelines ranges that this Court instructed the district
court to consider on remand, the district court properly calculated the advisory
guidelines range. The district court stated that it had considered the advisory
guidelines range and the § 3553(a) factors, along with the pleadings filed by the
parties, in its sentencing decision. The district court then listed the § 3553(a)
factors, even though it was not required to do so. Finally, the district court
explained its reasons as to why a sentence of time served was sufficient, but not
greater than necessary to satisfy the § 3553(a) factors. In light of the above, we
conclude that there was no procedural error in the district court’s decision.
As to the second prong of the analysis outlined in Gall, however, we
conclude that the Puches’ sentences are substantively unreasonable because the
district court based its Booker variance on a legally erroneous factor. See Pugh,
515 F.3d at 1192. The district court accepted the guidelines calculations by the
probation officer. However, in outlining the factors supporting the Booker
variance to a time-served sentence, the district court stated that the guidelines
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enhancement of the Puches’ base offense levels based on the amount of loss
violated their Sixth Amendment rights because the loss figure was not submitted to
the jury. This statement was incorrect because “‘the use of extra-verdict
enhancements in an advisory guidelines system is not unconstitutional.’” United
States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005) (quoting United States v.
Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). In other words, enhancement
of the Puches’ sentences based on a loss figure that was not submitted to the jury
did not violate the Puches’ Sixth Amendment rights under Booker because the
district court was now resentencing the Puches’ under an advisory guidelines
scheme. See id. at 1324 (stating that a sentencing court could make fact findings
beyond those charged in the indictment “because it applied the guidelines in an
advisory way” and that “[n]othing in Booker is to the contrary”); Rodriguez, 398
F.3d at 1300 (stating, in reviewing a pre-Booker sentence, that “if the same
extra-verdict enhancements had been found and used in the same way in a
non-mandatory guidelines system the result would have been constitutionally
permissible”). Thus, the district court based the extent of its sentence variance on a
legally incorrect factor, i.e., a supposed Sixth Amendment violation that did not
exist.4
4
We reject the Puches’ argument that the government waived its objections to their
sentences.
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Further, we cannot say that the district court’s consideration of this alleged
Sixth Amendment error in its Booker variance sentences was harmless. The
district court’s sentencing order does not indicate that it gave the alleged Sixth
Amendment error any less weight than the other factors listed as a basis for its
Booker variance. While the district court’s statements expressing “deep
dissatisfaction” with the guidelines range and its opinion that a guidelines sentence
was “quite harsh” strongly suggest that it would make some downward variance
from the advisory guidelines range, it is not clear that the district court would have
varied downward to the same extent if not for its misconception regarding the
Sixth Amendment violation.5 Therefore, because the record as a whole does not
show that the misconception about the alleged Sixth Amendment violation did not
substantially affect the district court’s decision to impose Booker variance
sentences of time served, we vacate the Puches’ sentences and remand to the
district court for the limited purpose of resentencing the Puches without
consideration of this factor.
SENTENCES VACATED AND REMANDED WITH INSTRUCTIONS.
5
We recognize that the district court stated that it would impose the same sentences
regardless of the guidelines range. However, the district court’s order suggests that it would do so,
in part, because of its conclusion that there was a Sixth Amendment violation in the amount-of-loss
figure.
Nothing herein suggests any opinion regarding the ultimate sentences imposed in this case.
We say only that the district court considered a legally incorrect factor in imposing the sentences
here.
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BARKETT, Circuit Judge, DISSENTING:
Based on this record, I would affirm the sentencing order imposed by the
district court. Although the structure of the sentencing order creates some
ambiguity, it does not clearly indicate that the district court partially based the
variance on the legally erroneous ground. Therefore, I see no reason to question
the district court’s statement that it would impose the same sentence in the case.
See United States v. Dean, 517 F.3d 1224, 1232 (11th Cir. 2008) (reiterating that
we will uphold the sentence imposed by the district court where the sentence is
reasonable and the district court states that it would impose the same sentence
irrespective of any sentencing calculation errors).
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