United States v. Mario Bueno ( 2008 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-4216
    ___________
    United States of America,                *
    *
    Appellant,                  *
    * Appeal from the United States
    v.                                 * District Court for the
    * Western District of Missouri.
    Mario Alberto Bueno,                     *
    *
    Appellee.                   *
    ___________
    Submitted: November 14, 2007
    Filed: December 17, 2008
    ___________
    Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
    ___________
    WOLLMAN, Circuit Judge.
    This case is before us for the second time. In the first appeal, we affirmed the
    district court’s1 denial of Bueno’s motion to suppress and the quashing his subpoena
    duces tecum, but vacated the sentence and remanded the case for resentencing. United
    States v. Bueno, 
    443 F.3d 1017
    (8th Cir. 2006). We now affirm the sentence imposed
    following our remand.
    1
    The Honorable Scott O. Wright, United States District Judge for the Western
    District of Missouri.
    As set forth in our opinion in the first appeal, Bueno pleaded guilty to
    possessing with intent to distribute five kilograms or more of powder cocaine in
    violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The district court reduced Bueno’s
    United States Sentencing Guidelines (U.S.S.G.) offense level from thirty to twenty-
    one, which resulted in a sentencing range of thirty-seven to forty-six months, granted
    a downward departure from the Guidelines, and sentenced Bueno to eighteen months
    of imprisonment and three years of supervised release.
    In reaching our decision to vacate the sentence, we rejected Bueno’s contention
    that the fact that his wife was suffering from lupus and rheumatoid arthritis and that
    Bueno was her primary caregiver constituted extraordinary family ties and
    responsibilities that would warrant a downward departure from the Guidelines range
    under U.S.S.G. § 5H1.6. Noting that this is a disfavored reason for granting a
    departure, and citing Koon v. United States, 
    518 U.S. 81
    , 95 (1996), we distinguished
    our decision in United States v. Haversat, 
    22 F.3d 790
    (8th Cir. 1994), in which we
    held that such a departure was warranted because of potentially life-threatening
    psychiatric problems that the defendant’s wife suffered and of whose treatment plan
    the defendant was an irreplaceable part. 
    Bueno, 443 F.3d at 1023
    . Rather, we likened
    Bueno’s situation to that which existed in United States v. Van Houten, 
    307 F.3d 693
    (8th Cir. 2002), in which we held that the defendant’s failure to present evidence that
    his mother’s condition was life-threatening or that his care was a necessary part of her
    medical treatment defeated his claim for a downward departure under § 5H1.6. 
    Id. We concluded
    our analysis of Bueno’s claim for § 5H1.6 relief by noting that
    “Bueno’s situation, however, is closer to that in Van Houten than in Haversat. Bueno
    has offered little evidence that his wife’s situation is life threatening, and he has failed
    to demonstrate that his care is a necessary part of her treatment. Bueno has thus not
    established that the circumstances warrant a departure on this ground.” 
    Bueno, 443 F.3d at 1023
    -24.
    -2-
    I.
    At resentencing, Bueno submitted extensive documentation in support of his
    claim for downward departure under § 5H1.6, including Mrs. Bueno’s fourteen-page
    declaration describing her physical condition. Among other things, she has suffered
    from lupus since 1981, a condition that is getting progressively worse. Following
    Mrs. Bueno’s left hip replacement surgery in June of 2006, Bueno was trained by a
    nurse to administer the twice-daily intravenous injections of antibiotics required to
    treat the open sore that developed at the surgery site, including the cleaning of the
    wound site and the flushing of the IV lines. The 2006 hip replacement surgery was
    the fifth such surgery on Mrs. Bueno’s left hip and has left her unable to attend to her
    post-toilet personal hygiene, to shower or bathe by herself, or to get to the bathroom
    unassisted. The lupus has rendered her unable to brush her teeth, open or close most
    medication bottles, to clothe or unclothe herself, or to stand or walk. She has been
    confined to a wheelchair since 2003. She has difficulty holding things such as eating
    or kitchen utensils, jars, bottles, or containers. She is subject to falls and cannot rise
    from the floor without assistance. She suffers from grand mal seizures, during the
    occurrence of which she loses bowel and bladder control. Her declaration states that
    she needs her husband’s assistance to perform all of the everyday functions required
    for survival, including the proper administration of the 40 pills that she is required to
    take each day; that he is her only care provider before and after his working day
    activities; and that he often comes home from work during the day to care for her
    when necessary. Further, the declaration states that Mrs. Bueno experiences panic
    attacks that render her claustrophobic, and that she has been hospitalized 20 to 25
    times since Bueno’s April 2004 sentencing date. She avers that neither her daughter
    nor her sixteen-year-old son is able to provide the personal and medical assistance that
    she requires to cope with her physical and emotional problems.
    In addition to Mrs. Bueno’s self-description of her physical and emotional
    problems, Bueno submitted the July 13, 2006, evaluation and consultation report of
    -3-
    Allen I. Salick, M.D., a rheumatologist, that corroborated Mrs. Bueno’s statements
    regarding her condition and her dependence upon her husband’s assistance in
    attending to her daily needs. Dr. Salick’s report describes the side effects of the
    medications that Mrs. Bueno is required to take to suppress her lupus, which Dr.
    Salick characterized as deteriorating. In the comments portion of his report, Dr.
    Salick states:
    [Mrs. Bueno’s] condition is life threatening and her long-term prognosis
    is not good. She is kept alive by her husband. His treatment is
    irreplaceable and necessary because not only does she require constant
    attendance to monitor her medication and to help her with all of her
    disabilities and weaknesses, but he also has a very serious positive effect
    on her emotions. Without him, in my opinion, she would be severely
    depressed and probably suicidal.
    Her Central Nervous System Lupus has left her with a seizure disorder.
    Obviously when she has a seizure she loses consciousness and becomes
    incontinent and she needs somebody with her, someone like her husband,
    all the time. This lady is incapable of living alone or taking care of
    herself, not just on the basis of her central nervous system, but also with
    her muscle disease and her severe inanition.
    ....
    I tried to keep this discussion in terms that a layperson could understand.
    [Mrs. Bueno] has a life threatening condition with a very poor long-term
    prognosis. It is a miracle that she survived to date. I think that she never
    would have been able to do this without the constant attendance of her
    husband. I certainly recommend from a humanitarian point of view, that
    he be allowed to continue this. I am also concerned about her emotions
    as she is taking psychotropic medications and seeing a psychologist. In
    my opinion, her husband is providing very significant psychiatric
    support for this lady.
    -4-
    Bueno also submitted the July 14, 2006, special psychological report prepared
    by Marge Cohen, Ph.D., a licensed psychologist who had performed a psychological
    evaluation on Mrs. Bueno earlier that day. In Dr. Cohen’s opinion, Mrs. Bueno
    suffers from severe psychiatric problems. Her mental health issues, including major
    depressive disorder, single episode – severe with suicidal ideation and panic disorder
    without agoraphobia, are life-threatening. Dr. Cohen summarized her evaluation as
    follows:
    In sum, Mayra Bueno’s husband, Mario, is emotionally indispensable to
    her in helping her cope with her emotional symptoms and physical
    symptoms of Lupus and he is irreplaceable in her treatment.
    ....
    Mr. Bueno’s ongoing care, his familiarity with her condition and his
    observations of subtle or gross changes in her mental and physical
    condition are necessary to make sure Mrs. Bueno take appropriate
    medications, at the appropriate times and that she get the appropriate
    medical care for her physical and mental problems as they manifest
    themselves. Mr. Bueno’s care is indispensable to Mrs. Bueno’s
    treatment on her ongoing mental health issues.
    After considering the above-described evidence, as well as Bueno’s testimony
    at the resentencing hearing, the district court found that Mrs. Bueno was in fact
    suffering from life-threatening diseases and maladies and that Bueno was the only
    person who could provide the continual care that she required. Accordingly, the
    district court imposed upon Bueno a sentence of five years probation, the conditions
    of which include house arrest with electronic monitoring, if that additional condition
    was determined by the United States Probation Office to be required, with Bueno
    being given the freedom to leave the home to go to work and to provide the necessary
    care to his wife.
    -5-
    The government objected to the sentence, arguing that Mrs. Bueno’s medical
    condition had been addressed, although in abbreviated form, in our decision in the
    first appeal and that the information regarding Mrs. Bueno’s medical condition had
    been presented in abbreviated form at Bueno’s initial sentencing. The government
    noted the seriousness of the offense of which Bueno had been convicted, pointing out
    that 71 kilograms of cocaine had been found in the hidden compartment of the vehicle
    that Bueno was driving at the time he was apprehended. It pointed out that in our
    opinion vacating Bueno’s original sentence, we held that the eighteen-month sentence
    did not adequately reflect the seriousness of the offense, afford adequate deterrence,
    or adequately avoid sentencing disparities among similarly situated defendants.
    Finally, the government reiterated its position that a sentence within the Guidelines
    range of 108 to 135 months would be appropriate.
    The district court responded by noting that Bueno was not getting off scot-free
    in that he was subject to five years of home confinement.
    II.
    At the outset, one could well ask how, in light of our earlier determination that
    an eighteen-month sentence constituted an unreasonable departure from the applicable
    Guidelines range, it could plausibly be contended that a sentence of five years’
    probation is not equally an unreasonable sentence. The short answers are the
    substantially more detailed evidence submitted at resentencing regarding Mrs.
    Bueno’s physical and emotional condition and the Supreme Court’s December 10,
    2007, opinion in Gall v. United States, 
    128 S. Ct. 586
    (2007).
    With respect to the additional evidence, we note that “[o]nce a sentence has
    been vacated or a finding related to sentencing has been reversed and the case has
    been remanded for resentencing, the district court can hear any relevant evidence on
    that issue that it could have heard at the first hearing.” United States v. Cornelius, 968
    -6-
    F.2d 703, 705 (8th Cir. 1992). Accord United States v. Dunlap, 
    452 F.3d 747
    (8th Cir.
    2006).
    With respect to the question of sufficiency of the additional evidence submitted
    at resentencing to support the district court’s finding that extraordinary circumstances
    existed that warranted such a substantial departure under § 5H1.6, one would be
    justified in asking how, in the face of such circumstances, Bueno found it possible to
    leave his ailing wife’s side and drive from his home in California to St. Louis. See
    
    Bueno, 443 F.3d at 1021
    . Likewise, one could view with skepticism medical reports
    that give the appearance of having been lawyer-drafted to replicate that which we
    found to be sufficient evidence of truly exceptional family circumstances in Haversat
    and in United States v. Spero, 
    382 F.3d 803
    (8th Cir. 2004). It was for the district
    court to raise such questions, however, and it obviously credited Dr. Salick’s reports,
    reflecting as it did his findings and conclusions based upon his review of the dozens
    of pages of the medical reports completed by Mrs. Bueno’s several attending
    physicians from 2003 through June of 2006. Likewise, the district court obviously
    credited Dr. Cohen’s report, Mrs. Bueno’s self-description of her many physical
    problems and her emotional state, and Bueno’s testimony at resentencing. All in all,
    then, we conclude that the district court’s finding that exceptional family
    circumstances exist that render Bueno’s caretaking an irreplaceable, indispensable part
    of Mrs. Bueno’s well-being and to her caregiving regime to be adequately supported
    by the additional evidence submitted at resentencing.
    We turn, then, to the second intervening event that paints this case in a light
    different from than that in which it appeared during the first appeal, that being the
    Court’s decision in Gall, for were it not for that decision, which highlighted the
    importance of the advisory nature of the Guidelines following the Court’s decision in
    United States v. Booker, 
    543 U.S. 220
    (2005), we would find it difficult, if not nay
    well impossible, to affirm what can only be described as a most substantial departure
    from the applicable Guidelines range. Gall told us in unmistakably clear language that
    -7-
    once it has been determined that the district court committed no significant procedural
    error in calculating the applicable Guidelines range, the appellate court’s sole
    remaining role is to consider the substantive reasonableness of the sentence under an
    abuse-of-discretion standard, one that eliminates from the process of appellate review
    the appellate court’s own view of what sentence would have been appropriate. 
    Gall, 128 S. Ct. at 597
    .
    The district court’s finding of exceptional family circumstances aside, there
    remains the question whether the disparity between the sentence of five years’
    probation and the originally determined thirty-seven to forty-six months range is so
    great that even under the highly deferential standard of review established by Gall it
    must be said that the sentence is unreasonable. Here again, Gall told us that although
    appellate courts may take the degree of variance or departure into account and
    consider the extent of a deviation from the Guidelines, they are not to measure that
    extent by means of an “extraordinary” circumstances test or by the use of a rigid
    mathematical formula. 
    Id. at 595.
    Likewise, the Court instructed us that a district
    court that correctly calculates and carefully reviews the Guidelines range necessarily
    gives significant weight and consideration to the need to avoid the unwarranted
    disparity that the Sentencing Commission sought to prevent through its setting of the
    Guidelines ranges. 
    Id. at 599.
    Otherwise similarly situated defendants serving 100-
    plus-month sentences for transporting equivalent amounts of cocaine might well scoff
    at the idea that Bueno is not getting off scot-free. But, as the Court noted in Gall,
    “Offenders on probation are nonetheless subject to several standard conditions that
    substantially restrict their liberty.” 
    Id. at 595.
    And as the district court observed in
    this case, Bueno is subject to house arrest during the entire five-year period of
    probation.
    Citing 
    Koon, 518 U.S. at 98
    , the Court in Gall reminded us that by virtue of
    their opportunity to see so many more Guidelines sentences than we appellate judges
    do, district courts have an institutional advantage in finding and judging the impact
    -8-
    of facts and in make credibility determinations. 
    Gall, 128 S. Ct. at 597
    -98. Likewise,
    the Court noted that the government had conceded that probation could be an
    appropriate sentence, given the same exact offense, if “‘there are compelling family
    circumstances where individuals will be very badly hurt in the defendant’s family if
    no one is available to take care of them.’” 
    Id. at 602
    (citing Tr. of Oral Arg. 37-38).
    Here, of course, the government made no such concession regarding the
    appropriateness of a sentence of probation, instead adhering to its earlier
    recommendation of a sentence within the 108-135 month Guidelines range. Granted
    that the government’s concession in Gall does not carry over to this case, we
    nevertheless believe that the Court’s discussion of what would have been a § 5H1.6
    departure is a recognition of the possible appropriateness of a sentence of probation
    in a Bueno-like situation.
    Given the fact that the Guidelines are no longer mandatory and that the range
    of choice afforded to district courts has been significantly broadened, 
    id. at 602,
    we
    conclude that the sentence of probation is not unreasonable, nor does it result in
    unwarranted disparity. As one of our colleagues recently noted, whether the
    sentencing system resulting from Booker and Gall, in which the defendant’s sentence
    depends substantially on the sentencing judge’s personal sentencing philosophy,
    constitutes good or bad sentencing policy is a matter for Congress and the Executive
    to decide. United States v. Shy, 
    538 F.3d 933
    , 939 (8th Cir. 2008) (Colloton, J.,
    concurring).
    Conclusion
    As had the district judge in 
    Gall, 128 S. Ct. at 598
    n.7, the district judge in this
    case has undoubtedly sentenced hundreds of defendants. We defer to the district
    court’s experiential advantage in fact finding, see United States v. Stewart, 
    65 F.3d 918
    , 923 (11th Cir. 1995), and fact-application determinations. Although the sentence
    -9-
    imposed in this case stretches the allowable downward departure under § 5H1.6 to its
    very limits, we cannot say that it is unreasonable, and thus it is affirmed.
    ______________________________
    -10-