United States v. Esteban Rivera ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2719
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Esteban Rivera, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 15, 2006
Filed: August 20, 2007
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Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Esteban Rivera pled guilty to drug trafficking charges, which carried a then-
mandatory Guidelines sentencing range of 188 to 235 months’ imprisonment. In a
sentencing hearing held after the Supreme Court decision in United States v. Booker,
543 U.S. 220 (2005), the district court sentenced Rivera to a below-Guidelines
sentence of sixty months’ imprisonment, the statutory minimum for Rivera’s offense.
21 U.S.C. § 841(b)(1)(B). The government appealed. We reversed and remanded the
case for re-sentencing due to the inadequacy of the record, which had left us “unable
to discharge our function as an appellate court in deciding whether the district court
abused its discretion and imposed an unreasonable sentence.” United States v. Rivera
(Rivera I), 439 F.3d 446, 448 (8th Cir. 2006).
On remand, the district court1 heard arguments from defense counsel, who
advocated reinstatement of the original sixty-month sentence. Those arguments
focused largely upon Rivera’s family obligations, post-offense rehabilitative conduct,
and the danger of disparate sentences with other co-defendants. The district court
noted some facts that weakened those arguments, including Rivera’s post-indictment
arrest for an alcohol-related traffic offense, the significant number of convictions for
violent crimes in Rivera’s past, and a criminal history that exceeded those of his co-
defendants. The district court nevertheless stated that the facts warranted a downward
variance from the advisory Guidelines range, and it sentenced Rivera to 132 months’
imprisonment.
Rivera appeals, first arguing that the district court misunderstood the mandate
of Rivera I as foreclosing a sixty-month sentence as unreasonable. Therefore, he
argues, the district court failed to consider the full range of available sentences for
Rivera. We agree that the record indicates that the district court believed a sixty-
month sentence was “outside the permissible range of choice” upon re-sentencing.
United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). We do not agree,
however, that the district court’s possible misreading of Rivera necessarily impacted
this determination. The district court considered reimposing the sixty-month sentence
at the urging of defense counsel, but ultimately concluded that, “[i]n view of all [of
the Eighth Circuit’s] recent holdings, I don’t think that [it] believe[s] sixty months is
adequate.” Several cases decided between the date of Rivera’s original sentencing and
his re-sentencing hearing lend support for the district court’s conclusion that this court
would not find Rivera’s proffered justifications for a reduction sufficient to warrant
1
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
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a sixty-month sentence when the Guidelines call for 188 to 235 months’
imprisonment. See, e.g., United States v. Bueno, 443 F.3d 1017, 1023 (8th Cir. 2006)
(stating that “family ties and responsibilities” are a “disfavored reason” for granting
a sentence reduction); United States v. Lazenby, 439 F.3d 928, 933 (8th Cir. 2006)
(“[The defendant’s] post-offense rehabilitation is dramatic and hopefully permanent,
but a twelve month sentence for [an offense carrying an advisory Guidelines range of
seventy to eighty-seven months’ imprisonment] lies outside the limited range of
choice dictated by the facts of the case.”) (quotation omitted); United States v.
Gatewood, 438 F.3d 894, 897 (8th Cir. 2006) (reversing a “substantial downward
variance” in part because “[the defendant’s] prior criminal history, while not
egregious, does not justify extreme leniency”). Therefore, we find that a complete
reading of the record shows that the district court considered Rivera’s arguments for
a non-Guidelines sentence, agreed that a downward variance was appropriate based
on those arguments, and issued a below-Guidelines sentence that it believed would fall
within the permissible range of choice as defined by circuit precedent. The district
court concluded that sixty months did not fall into that range “[i]n view of all [our]
recent holdings.” As such, the district court’s possible misreading of Rivera I on this
point was harmless.
Rivera also argues that the district court failed to adequately articulate the
reasons for its decision under 18 U.S.C. § 3553(a). We disagree. The district court
heard each of Rivera’s arguments for a lesser sentence. The record shows that the
district court followed its statutory duty to consider the relevant sentencing factors:
it found that a sixty-month sentence would be unreasonable given circuit precedent,
but also found that Rivera warranted a downward variance “based on the factors that
have been stated here in court,” all of which were proper considerations under
§ 3553(a). In Rivera I, the government argued that Rivera’s sentence was
unreasonably low given circuit precedent and the relevant sentencing factors,
including the advisory Guidelines range for Rivera’s offense. We reversed and
remanded because we could not evaluate those arguments on the abbreviated record
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before us. Here, in contrast, Rivera makes no such claims of substantive
unreasonableness; he argues only that we must require the district court to provide a
lengthier explanation of its judgment. We agree with Rivera that the district court
could have justified the sentence with a fuller and more complete statement of reasons,
but “we have not held that the brevity of the record alone gives rise to a claim of per
se unreasonableness.” United States v. Mosqueda-Estevez, 485 F.3d 1009, 1013 (8th
Cir. 2007); see Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007). We have
reviewed the facts and the arguments put forth at the sentencing hearing, we find them
sufficient to conclude that the sentence of 132 months was not unreasonable, and
Rivera points to no relevant facts or sentencing factors suggesting otherwise. See
Mosqueda-Estevez, 485 F.3d at 1013. Therefore, we affirm the judgment of the
district court.
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