United States v. Maese-Alarcon , 170 F. App'x 356 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 15, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-50134
_____________________
UNITED STATES of AMERICA,
Plaintiff - Appellee,
versus
RENE MAESE-ALARCON,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, El Paso
USDC No. 3:04-CR-1433-2
________________________________________________________________
Before REAVLEY, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:1
The case is remanded for the limited purpose of allowing the
district court to supplement its final order of judgment and
commitment for Rene Maese-Alarcon, by setting forth the reasons for
the upward departure in the sentence of the defendant.2 We note
that a district court has discretion to depart from the guidelines
where such a departure is reasonable in accordance with the factors
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
This court declines to assume that a district court has
imposed consecutive sentences as an enhancement rather than an
upward departure. United States v. Martinez, 274 F.3d 897, 902
(5th Cir. 2001). Consecutive sentences are construed as an upward
departure when the district court has not provided an explanation
and concurrent sentences are called for by the guidelines. Id.outlined in 18 U.S.C. § 3553(a). Although the district court
orally expressed that it had considered all the evidence in the
pre-sentence report, and acknowledged the Supreme Court’s holding
in United States v. Booker, 543 U.S. 220 (2005), this general
reference does not specify any particular grounds or reasons for
departing, nor does it reflect consideration of the § 3553(a)
factors. It thus failed to satisfy the mandatory requirements of
18 U.S.C. § 3553(c)(2). See 18 U.S.C. § 3553(c)(2) (requiring the
sentencing court to commit its reasons for a departure to writing
in the judgment). Furthermore, the district court’s order is not
sufficiently specific to permit us to determine the reasonableness
of the court’s departure from the concurrent sentencing suggested
under the Guidelines.3
We therefore remand the case for the limited purpose of
allowing the district court to enter a supplemental order stating
its reasons for upwardly departing and request that the court act
as expeditiously as practicable. This panel retains jurisdiction
of the case to determine the reasonableness of the sentence.4
3
The Guidelines provide that the sentence shall run
concurrently “[i]f the sentence imposed on the count carrying the
highest statutory maximum is adequate to achieve total punishment,”
which is the maximum sentence recommended under the Sentencing
Guidelines. Here the guideline range on both counts was 24-30
months; additionally the statutory maximum for both counts was 60
months. Because the sentence given on each count (30 months) was
adequate to achieve the total punishment (30 months) the guidelines
suggest concurrent sentences.
4
The parties will have ten days from the date the district
court enters its order to file simultaneous letter briefs regarding
the reasonableness of the sentence.
2
REMANDED for Limited Purpose.
Jurisdiction Retained.
3