United States v. Tammy Velazquez ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1447
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Tammy Velazquez, also known as Tammy Velasquez
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: February 20, 2018
Filed: June 13, 2018
[Unpublished]
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Before SMITH, Chief Judge, SHEPHERD and STRAS, Circuit Judges.
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PER CURIAM.
In September 2016, Tammy Velazquez pled guilty to conspiracy to
manufacture, distribute, and possess with intent to distribute actual methamphetamine
and a mixture or substance containing methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 846. With a total offense level of 37 and a criminal
history category of II, Velazquez’s advisory Sentencing Guidelines range was 235 to
293 months, USSG Ch. 5, Pt. A., with a statutory maximum of 240 months, 21 U.S.C.
§ 841(b)(1)(C). At sentencing, the district court1 granted a downward variance of 35
months before reducing the sentence by 30 percent under USSG § 5K1.1. The district
court refused, however, to grant a further variance based on Velazquez’s policy
argument that the higher sentencing ranges for actual methamphetamine, as opposed
to mixtures of methamphetamine, are not based on sound policy considerations or
empirical data and result in unwarranted sentence disparities and unduly harsh
sentences. The district court sentenced Velazquez to 140 months imprisonment to be
followed by three years of supervised release.
Velazquez appeals her sentence, claiming the district court procedurally erred
and imposed a substantively unreasonable sentence by refusing to consider her policy
argument. We affirm.
We turn first to Velazquez’s claim that the district court procedurally erred.
A sentencing court commits procedural error by “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.” United States v. Williams, 624 F.3d 889,
896 (8th Cir. 2010) (internal quotation marks omitted). Velazquez claims the district
court’s refusal to consider her policy argument constituted procedural error because
the court failed to consider “the need 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). We disagree.
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
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The Sentencing Commission “clearly considered [the need to avoid
unwarranted sentence disparities] when setting the Guidelines ranges.” Gall v.
United States, 552 U.S. 38, 54 (2007). Thus, when a sentencing judge “correctly
calculate[s] and carefully review[s] the Guidelines range, he necessarily g[ives]
significant weight and consideration to the need to avoid unwarranted disparities.”
Id. There is no dispute here that the district court correctly calculated the Guidelines
range as set forth by the Sentencing Commission. In addition, the court explicitly
acknowledged its consideration of the need to avoid unwarranted sentence disparities
among defendants. We therefore find the district court did not commit procedural
error.
In regards to Velazquez’s challenge to the substantive reasonableness of her
sentence, we find the district court did not abuse its discretion in imposing a 140-
month sentence: a sentence well below the Guidelines range. See United States v.
Lazarski, 560 F.3d 731, 733 (8th Cir. 2009) (finding where court sentenced defendant
below the Guidelines range, “it is nearly inconceivable that the court abused its
discretion in not varying downward still further”). Although “district courts are
entitled to reject and vary categorically from [particular] Guidelines based on a policy
disagreement with those Guidelines,” they are not required to do so. United States
v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (alteration in original) (quoting
Spears v. United States, 555 U.S. 261, 265-66 (2009)). Nor is a court required to
consider a policy argument regarding sentencing disparities under the Guidelines, as
long as the court is “[]aware of its power to do so.” See United States v. Roberson,
517 F.3d 990, 995 (8th Cir. 2008) (“We do not believe . . . a district court now acts
unreasonably, abuses its discretion, or otherwise commits error if it does not consider
the crack/powder sentencing disparity.”).
Here, the district court chose not to consider the sentencing disparity between
actual methamphetamine and mixtures of methamphetamine when sentencing
Velazquez. Although the court was aware of its ability to vary, the court stated it
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“[was] not going to make a judgment on policy arguments” and it “[did not] take into
consideration . . . the policy argument” when ultimately determining the sentence.
We find the district court was under no obligation to consider the sentencing
disparity, see id., but was instead entitled to apply the Guidelines as promulgated by
the Sentencing Commission. Because “the record demonstrates that the court
properly considered the § 3553(a) factors,” we find the sentence imposed to be
reasonable. Lazarski, 560 F.3d at 734.
For the reasons stated, we affirm Velazquez’s sentence.
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