United States v. Castro-Juarez, Salva ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1195
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SALVADOR CASTRO-JUAREZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 CR 30094—David R. Herndon, Judge.
____________
ARGUED AUGUST 2, 2005—DECIDED OCTOBER 3, 2005
____________
Before COFFEY, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Salvador Castro-Juarez pleaded
guilty to being in the United States unlawfully after his
removal following a felony conviction, 8 U.S.C. § 1326(a),
(b)(1). The district court sentenced him after United States v.
Booker, 125 S. Ct. 738 (2005), to 48 months, well below the
10-year statutory maximum but more than twice the 21-
month upper end of the advisory guideline range. On
appeal, Castro-Juarez’s sole contention is that a sentence
of 48 months is unreasonable in this case. This appeal
requires us to gauge the “reasonableness” of a sentence
above the advisory guideline range, a process that continues
2 No. 05-1195
to evolve in our decisions applying Booker. We hold only
that the district court did not sufficiently explain its choice
of sentence, and for that reason we vacate Castro-Juarez’s
sentence and remand for resentencing.
I.
Police in Bond County, Illinois, arrested Castro-Juarez
in July 2004. Castro-Juarez, a felon, had twice been removed
from the United States, most recently in July 1995, and had
not received permission to reenter. After Castro-Juarez
pleaded guilty in September 2004 to violating § 1326(a) by
returning to the United States, the probation officer pre-
pared a presentence investigation report assigning a base
offense level of eight. U.S.S.G. § 2L1.2(a). An upward
adjustment of four levels based on Castro-Juarez’s prior
felony convictions, U.S.S.G. § 2L1.2(b)(1)(D), and a down-
ward adjustment of two levels for acceptance of responsibil-
ity, id. § 3E1.1, yielded a total offense level of 10. The
presentence report identifies nine convictions and the
corresponding number of criminal history points:
(1) simple possession of heroin, incurred in 1986
(0 points);
(2) simple possession of narcotics, incurred in 1995
(1 point);
(3) giving false information to a police officer and
driving without proof of insurance or a driver’s
license, incurred in 1996 (0 points);
(4) theft (of a pair of shoes), incurred in 1997 (1 point);
(5) harassment (he struck his girlfriend), incurred in
1998 (1 point);
No. 05-1195 3
(6) third degree assault (during a bar fight), incurred in
1998 (1 point);
(7) harassment and child abuse (he assaulted his
girlfriend in the presence of two children), incurred
in 1999 (2 points);
(8) theft (shoplifting), incurred in 2000 (1 point); and
(9) domestic battery (he struck his wife), incurred in
2002 (1 point).
Since multiple offenses that produce just one criminal
history point cannot yield more than four total points, these
convictions counted for only six points. See U.S.S.G.
§ 4A1.1(c). Two points were added because Castro-Juarez
was under a criminal justice sentence when he com-
mitted the § 1326(a) violation for which he was being
sentenced. See U.S.S.G. § 4A1.1(d). The resulting eight
criminal history points placed Castro-Juarez in criminal
history category IV. See U.S.S.G. Ch. 5, Pt. A. Based on a
total offense level of 10 and a criminal history category of
IV, the probation officer calculated a guideline imprison-
ment range of 15 to 21 months. See id.
The district court sentenced Castro-Juarez on January 14,
2005, two days after the Supreme Court decided Booker. The
court, aware of that decision, acknowledged that its choice
of sentence should take into account the various factors set
out in 18 U.S.C. § 3553(a). After inviting allocution from
Castro-Juarez, the court told him:
The problem I have is that, as you say, you’ve been here
a long time, you’ve always been here illegally, you’ve
been here at least three times that you’ve been caught
illegally. You have a horrible history with respect to
your activities while you’ve been in this country. You’ve
engaged in many many illegal acts, and one of the great
4 No. 05-1195
things that bothers me about your activity while you’ve
been here is several of these illegal acts have been
violent acts. You’ve engaged in a number of crimes that
have involved physical violence against others, includ-
ing the women you have— woman or women you have
been involved with, and at times have endangered
children. So you have history that is very terrible. You
have done some time in jail. You have not done very
much time in jail, but you don’t seem to get the picture
that when you do bad things in this country, bad things
are going to happen. So I’m not at all impressed with
your behavior while you’ve been in our country.
The court added that “the Guidelines in your case don’t
seem to take into account a person who has re-entered
now on three occasions and who has the kind of criminal
history that you have, and so I’m not going to apply the
Guideline in your case.” The 48-month term the court
chose is more than twice the high end of the guideline
range, and more than three times the low end of the range
that the prosecutor recommended as an appropriate sen-
tence.
II.
Castro-Juarez’s sole argument on appeal is that 48 months
is an unreasonable sentence. In Booker the Supreme Court
explained that sentencing judges must be guided by the
factors in 18 U.S.C. § 3553(a), including the applicable
guideline range, id. § 3553(a)(4); our task is to review the
resulting sentence for “unreasonableness” in light of those
same factors. Booker, 125 S. Ct. at 765-66; see United States v.
Alburay, 415 F.3d 782, 786 (7th Cir. 2005); United States v.
Askew, 403 F.3d 496, 509 (7th Cir. 2005). After Booker we
No. 05-1195 5
have said that a sentence within a properly calculated
guideline range “is entitled to a rebuttable presumption of
reasonableness,” United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). “[T]he farther the judge’s sentence departs
from the guidelines sentence (in either direction––that of
greater severity, or that of greater lenity), the more compel-
ling the justification based on factors in section 3553(a) that
the judge must offer in order to enable the court of appeals
to assess the reasonableness of the sentence imposed.”
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
Justifying a sentence outside the range does not require
canvassing the statutory factors: “ ’Judges need not rehearse
on the record all of the considerations that 18 U.S.C. §
3553(a) lists; it is enough to calculate the range accurately
and explain why (if the sentence lies outside it) this defen-
dant deserves more or less.’ ” Id. (quoting United States v.
George, 403 F.3d 470, 472-73 (7th Cir. 2005)). Therefore, we
are not asked to decide here whether 48 months could be a
reasonable sentence; our function is to assess whether the
district court’s choice of sentence is adequately explained
given the record before us. Here we must determine
whether the court’s articulated reasons for jumping from 21
to 48 months are sufficiently compelling on this record to
satisfy us that the term imposed is reasonable.
As an initial matter, the government argues that we
should not even reach this question because after the 48-
month term was announced Castro-Juarez did not explicitly
object to the sentence as “unreasonable.” In the govern-
ment’s view, we should review Castro-Juarez’s sentence
only for “plain error” rather than for reasonableness.
The government’s position has some support. In the
context of supervised release revocations, where review of
a prison term imposed upon revocation has always been for
6 No. 05-1195
reasonableness, this court has held that failing to object in
the district court explicitly on reasonableness grounds
forfeits the argument for appeal. See United States v. Harvey,
232 F.3d 585, 587 (7th Cir. 2000); United States v. Marvin, 135
F.3d 1129, 1135 (7th Cir. 1998). Our decisions after Booker,
however, have imposed no similar requirement and, indeed,
assume the absence of any need to object to a sentence as
unreasonable after its pronouncement. In appeals involving
defendants who were sentenced before Booker without
anticipating the decision or even recognizing the constitu-
tional issues at stake, we routinely review the sentence for
reasonableness notwithstanding the lack of objection. See,
e.g., United States v. Stewart, 411 F.3d 825, 829 (7th Cir. 2005);
United States v. Ramsey, 406 F.3d 426, 434 (7th Cir. 2005);
United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).
We believe that the unstated assumption in our post-
Booker decisions is sound. To insist that defendants object at
sentencing to preserve appellate review for reasonableness
would create a trap for unwary defendants and saddle busy
district courts with the burden of sitting through an
objection—probably formulaic—in every criminal case.
Since the district court will already have heard argument
and allocution from the parties and weighed the relevant
§ 3553(a) factors before pronouncing sentence, we fail to see
how requiring the defendant to then protest the term
handed down as unreasonable will further the sentencing
process in any meaningful way. Certainly we do not mean
to discourage district courts from entertaining argument
about the reasonableness of a sentence after its pronounce-
ment, nor do we suggest that our longstanding insistence on
proper objections as to other sentencing issues, e.g., the
application of a guideline adjustment, should be relaxed. All
we conclude here is that our review of a sentence for
reasonableness is not affected by whether the defendant had
No. 05-1195 7
the foresight to label his sentence “unreasonable” before the
sentencing hearing adjourned.
We thus turn to the merits. Both parties suggest that a
useful starting point in evaluating the reasonableness of
Castro-Juarez’s sentence is to look to pre-Booker law by
analogy and ask how the sentence would have faired
under decisions that analyze the reasonableness of up-
ward departures. We have drawn such analogies implicitly
in other post-Booker appeals where the sentence was im-
posed before the date of that decision. See United States v.
Paulus, No. 04-3092, 2005 WL 2000984, at *4 (7th Cir.
Aug. 22, 2005); United States v. Cunningham, 405 F.3d 497,
504-06 (7th Cir. 2005); see also United States v. Shannon,
414 F.3d 921, 924 (8th Cir. 2005) (“In light of our conclu-
sion that the upward departure from the guidelines was
permissible, the sentence imposed was consistent with the
now-advisory guidelines, and this is generally indicative
of reasonableness.”). In this instance the district court’s
comments at sentencing—those that go beyond reciting
§ 3553(a)—focus on Castro-Juarez’s criminal history, so
the parties look to U.S.S.G. § 4A1.3(a)(1); that guideline
expressly encourages district courts to consider imposing a
sentence above the guideline range if “the defendant’s
criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.”
The district court paraphrased § 4A1.3(a)(1) when explain-
ing its sentence, so our understanding of the court’s ratio-
nale for selecting a term of 48 months is aided by decisions
interpreting this guideline. For that reason we follow the
suggestion of the parties to examine Castro-Juarez’s sen-
tence in light of § 4A1.3, but we do so with the caveat that
the question before us is ultimately the reasonableness of
the sentence the district court imposed, not the court’s
application of a guideline authorizing an upward departure.
8 No. 05-1195
Prior to Booker we analyzed upward departures under
§ 4A1.3 using a standard that required (1) “adequate
grounds to support the departure,” (2) evidence that “the
facts cited to support the departure actually exist,” and (3) a
sufficient link between the degree of departure and “the
structure of the guidelines.” United States v. Cross, 289 F.3d
476, 478 (7th Cir. 2002). Under this test, says Castro-Juarez,
a sentence of up to 33 months would have been reasonable,
but a term of 48 months is not. The government, for its part,
accepts that Cross identifies the relevant test but never
hazards a view about the outcome if Cross were applied to
these facts.
The first prong of Cross is not problematic. The district
court cited Castro-Juarez’s repeated cycles of unlawful entry
and deportation, the “horrible” criminal record he incurred
living in the United States, and his history of violent acts
affecting the women and children in his life. The court
opined that much of Castro-Juarez’s criminal history was
undercounted due to the short sentences involved and the
number of violations.
The second prong is probably not in doubt either. With
one significant exception, the observations that spurred
the district court to exceed the guideline range concern facts
that are undisputed. The exception is Castro-Juarez’s
conviction for simple possession of heroin, which the
probation officer incorrectly characterized as a “sale” of
heroin. The government seeks to minimize the error because
the age of the conviction was enough to keep it from
counting towards Castro-Juarez’s criminal-history score no
matter what the crime. Nevertheless, it is not certain that the
misinformation about the offense nature of the conviction
did not color the sentencing court’s judgment that Castro-
Juarez’s criminal history was understated.
No. 05-1195 9
The real question, though, is the third prong of Cross,
which commands that the degree of departure be “linked to
the structure of the guidelines.” Cross, 289 F.3d at 478.
Before Booker the adequacy of that linkage affected wheth-
er we would defer to the sentencing court’s choice as to
the degree of departure. United States v. Scott, 914 F.2d
959, 963 (7th Cir. 1990); United States v. Gaddy, 909 F.2d
196, 199 (7th Cir. 1990). The analysis was guided by U.S.S.G.
§ 4A1.3(a)(4)(A), which directed the sentencing court to use
as a reference “the criminal history category applicable to
defendants whose criminal history or likelihood to
recidivate most closely resembles that of the defendant’s.”
In the event that the court concluded that even Category VI
was inadequate, the judge would “move incrementally
down the sentencing table to the next higher offense level in
Category VI” until reaching “a guideline range appropriate
to the case.” U.S.S.G. § 4A1.3(a)(4)(B).
Castro-Juarez suggests that 10 hypothetical criminal
history points would have accounted for the district
court’s stated concerns: 1 point for his first illegal entry,
a misdemeanor that was never charged; 2 points for his first
illegal re-entry, a felony that was never charged; 2 points to
add back those excluded under § 4A1.1(c); 2 points to
elevate the seriousness of his drug convictions, the first of
which resulted in zero points because it was too old; and 3
points to elevate the seriousness of his misdemeanor
domestic-violence convictions by treating all of them as if he
had been sentenced to the maximum jail time on each. Ten
more criminal history points (the government does not
criticize Castro-Juarez’s methodology or argue that a
number greater than 10 is more realistic) would have taken
Castro-Juarez’s total to 18, five more than the minimum for
Category VI. See U.S.S.G. Ch. 5, Pt. A. The sentencing court
would then have looked at successively higher offense
10 No. 05-1195
levels until it found “a guideline range appropriate to the
case.” U.S.S.G. § 4A1.3(a)(4)(B).
The 48-month sentence here is consistent with a total
offense level of 15 and Category VI criminal history,
which equates to a guideline range of 41 to 51 months. But
the district court did not explain how it reached this point
in the sentencing table, and under the mandatory guide-
lines, sentencing courts were required to “employ a step-
by-step process” when departing upward under § 4A1.3.
United States v. Angle, 315 F.3d 810, 813 (7th Cir. 2003). There
was not a strict standard for the level of articulation re-
quired, Scott, 914 F.2d at 964, but examples of acceptable
methods show a fairly rigorous methodology: “Some
popular methods that we have approved, although surely
not the exclusive ones, are to add one offense level for every
3 points above 13 (category VI’s minimum) or 15
(its inferred maximum when read in light of categories
III, IV, and V).” Cross, 289 F.3d at 478. Here, the five
points above 13 in Castro-Juarez’s proposal would have
resulted in moving down just one offense level, from an
offense level of 10 to 11, which at Category VI would
have yielded a sentencing range of 27 to 33 months. This
is how Castro-Juarez arrives at his contention that a depar-
ture of up to 33 months would have been reasonable under
Cross. In contrast, it would have required adding 23 criminal
history points to Castro-Juarez’s eight in order to reach the
sentence handed down by the court. Accordingly, if this
appeal had reached us before Booker, we would have
concluded that a 48-month sentence is not adequately tied
to the structure of the guidelines.
We reiterate, however, that we have looked to § 4A1.3 and
Cross only by way of analogy, and while Castro-Juarez’s
sentence might not have been sustainable as an “upward
No. 05-1195 11
departure” before Booker, it does not follow that a term of 48
months is necessarily unreasonable. Before Booker, we
recognized that district courts were required to sentence
within the guideline range except in unusual cases, United
States v. Johnson, 347 F.3d 635, 640 (7th Cir. 2003), and
anything but a loose comparison to pre-Booker departure
cases would vitiate the post-Booker discretion that sentenc-
ing courts enjoy. All that is necessary now to sustain a
sentence above the guideline range is “an adequate state-
ment of the judge’s reasons, consistent with section 3553(a),
for thinking the sentence that he has selected is indeed
appropriate for the particular defendant.” Dean, 414 F.3d at
729.
In the end we are not persuaded that the district court met
this standard. The court did recite the § 3553(a) factors at
sentencing:
My sentence must reflect the seriousness of your of-
fense, must promote respect for the law, and must
provide a just punishment for your offense. It must
afford an adequate deterrence against criminal conduct
and to protect the public from further crimes that
you may perpetrate. It is to provide you with immediate
educational, vocational training, medical care or other
correctional treatment in the most effective manner. I
must consider the various kinds of sentences available
and I must consider the Guideline sentence that is called
for by the Federal Sentencing Guidelines. I must avoid
unwarranted sentencing disparities among defendants
with similar records.
Having identified the relevant factors, however, the
judge did not single out any aspect except criminal his-
tory. The court was understandably troubled by Castro-
Juarez’s history of several times entering the United States
12 No. 05-1195
illegally, committing crimes once in the country, being
deported, and then beginning the cycle again. The judge
also expressed dismay over Castro-Juarez’s history of
violence, especially that directed against his girlfriend.
These are significant concerns, but they overlap and, as
far as we can tell on this record, are encompassed by
the district court’s explicit reference to the text of § 4A1.3.
We understand that reference to mean that the district court
was itself drawing an analogy to § 4A1.3, yet we have seen
that the analogy does not fully explain the 48-month
sentence. And because that sentence is more than double the
high end of the guideline range, we cannot conclude that the
court’s explanation is sufficiently compelling, see Dean, 414
F.3d at 729, to uphold the court’s exercise of discretion.
III.
We hold, based on the record before us, that the district
court’s explanation for imposing a sentence of 48 months is
not adequate for us to conclude that the term imposed is
reasonable. Although we allow for the possibility that
further refinement on remand may well enable the dis-
trict court to impose a similar sentence that could be sus-
tained as reasonable, that is not the case presently before us.
Accordingly, Castro-Juarez’s sentence is VACATED, and the
case is REMANDED for resentencing.
No. 05-1195 13
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-3-05