United States v. S. Mosqueda-Estevaz ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3161
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Sabino Mosqueda-Estevez, *
*
Appellant. *
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Submitted: April 12, 2007
Filed: May 18, 2007
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Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
Sabino Mosqueda-Estevez pled guilty to two methamphetamine-trafficking
charges. The district court1 sentenced Mosqueda-Estevez to concurrent terms of 168
months in prison, a term that fell at the bottom of the applicable advisory United
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range. Mosqueda-Estevez
appeals the sentence, arguing that the district court violated the principles of United
States v. Booker, 543 U.S. 220, 261 (2005), by failing to explicitly consider the
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The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
enumerated sentencing factors of 18 U.S.C. § 3553(a) in fashioning the sentence. We
affirm the judgment of the district court.
I. BACKGROUND
The only facts at issue in this appeal relate to sentencing. Mosqueda-Estevez
pled guilty without a plea agreement on February 6, 2006, and appeared for a
sentencing hearing on August 18 of the same year. At the hearing, the court indicated
that it had reviewed the presentence report for Mosqueda-Estevez. The report
contained information regarding Mosqueda-Estevez’s background, his offense, and
his criminal history. Mosqueda-Estevez had no objections to the facts contained in
the presentence report other than a clarification regarding his immigration status, and
therefore we accept the report’s factual allegations as true. United States v. Rouillard,
474 F.3d 551, 553 n.1 (8th Cir. 2007).
Authorities snared Mosqueda-Estevez in a controlled drug transaction when
Mosqueda-Estevez attempted to deliver roughly one pound of methamphetamine to
an informant. For sentencing purposes, Mosqueda-Estevez was also found
responsible for methamphetamine that he supplied to associates and that was
recovered in prior police searches of the associates’ homes, for a total of roughly three
pounds of methamphetamine (two pounds of pure methamphetamine). His conduct
and the drug quantity for which he was responsible put his base offense level at thirty-
six under the Guidelines. He accepted responsibility for the offense and offered
limited assistance to authorities, entitling him to a three-level reduction and a resulting
offense level of thirty-three.
Mosqueda-Estevez had an extensive criminal history, primarily consisting of
convictions for driving while intoxicated. He had a total of six criminal history points
under the Guidelines, which placed him in criminal history category III. At the
sentencing hearing, defense counsel argued that the Guidelines calculations over-
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represented his client’s criminal history given that the offenses were recent and all
related to his client’s apparent alcoholism. He therefore asked the court for a one-
category reduction in Mosqueda-Estevez’s criminal history calculation under the
Guidelines, although he admitted that “there is no legal basis” for making such a
decrease and he sought it “out of pure mercy.” The government, meanwhile, argued
that the Guidelines calculation may have under-represented Mosqueda-Estevez’s
criminal history because it did not assess points for a pending DWI charge. The court
ultimately made no adjustments to the criminal history calculations contained in the
presentence report. Mosqueda-Estevez’s resulting advisory Guidelines sentencing
range was 168 to 210 months in prison. Neither party disputes the accuracy of the
Guidelines computation.
At the sentencing hearing, Mosqueda-Estevez testified briefly as to his
immigration status; when the court asked him if he wished to say anything further, he
declined. Mosqueda-Estevez did not offer any additional information regarding the
nature of the offense, his personal history and characteristics, or any other
consideration that might bear upon the reasonableness of his sentence. Defense
counsel did ask the court to “do something to mitigate [his client’s] sentence,” but he
made no relevant argument—other than the aforementioned contention that
Mosqueda-Estevez’s criminal history was over-represented by the Guidelines—that
his client warranted a non-Guidelines sentence. Immediately prior to issuing the
sentence, the court asked counsel for both the government and Mosqueda-Estevez if
they knew “of any legal reason why the court should not impose a sentence at this
time.” Neither attorney made any additional arguments.
The court then stated the following: “I guess I should ask for recommendations
within the sentencing guideline range, and I’m assuming the defendant wants the low
end, correct?” Defense counsel responded affirmatively, without elaboration.
Counsel for the government stated that she “would just leave it to the court to sentence
the defendant,” but she did request “that he be given a guideline sentence.”
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The court sentenced Mosqueda-Estevez to 168 months, at the bottom of the
advisory Guidelines range, and stated, “The Congress of this country has put . . . a
substantial penalty on those who would engage in the activity that he did, . . .
presumably to act as a deterrent to those who might otherwise do so.” The court
admitted it was “not sure how effective that [deterrent] has been,” but acknowledged
that “certainly we have to keep trying.” The court also recognized that the sentence
was at the low end of the advisory Guidelines range for Mosqueda-Estevez’s offense
and criminal history, but the court “figured that was still a substantial amount of
time.” Upon the request of defense counsel, the court formally recommended that the
Bureau of Prisons enroll Mosqueda-Estevez in a 500-hour substance abuse program
to treat his alcoholism.
II. DISCUSSION
When the calculation of the advisory Guidelines sentencing range is not at
issue, we review criminal sentences for reasonableness. United States v. Mashek, 406
F.3d 1012, 1017 (8th Cir. 2005). The Supreme Court in Booker held that mandatory
application of the Guidelines based on judicially-found facts was unconstitutional,
Booker, 543 U.S. at 244, and we have since interpreted that decision as requiring
district courts to follow a three-step procedure in sentencing:
First, the district court should determine the Guidelines sentencing range.
Second, the district court should determine whether any traditional
departures are appropriate. Third, the district court should apply all
other section 3553(a) factors in determining whether to impose a
Guidelines or non-Guidelines sentence.
United States v. Rivera, 439 F.3d 446, 448 (8th Cir. 2006) (citing United States v.
Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005)).
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The third step is the only one at issue in this case. Section 3553(a) lists a
number of factors that a district court must consider when fashioning a criminal
sentence, and “appellate courts . . . determine whether the sentence is unreasonable
with regard to § 3553(a).” Booker, 543 U.S. at 261 (internal marks omitted).
Mosqueda-Estevez argues that his sentence was unreasonable, although he points to
no § 3553(a) factors in his case that would have any bearing upon the severity of his
sentence. Instead, he argues that the sentence was unreasonable solely because the
district court failed to make a record sufficient for this court to review it under the
enumerated factors of § 3553(a); that is, according to Mosqueda-Estevez, “there is
absolutely no indication in the record that the district court considered the statutory
factors.”
Mosqueda-Estevez does not specifically list any factors that the district court
should have considered, and he does not argue that the district court ignored a factor
that should or could have justified a lesser sentence. In short, Mosqueda-Estevez does
not offer any reasons why his sentence was inappropriate. He essentially asserts only
an assumed right to a sentencing hearing in which the district court ritualistically
explains each § 3553(a) factor, the facts that bear upon it, and its weight in
determining the ultimate sentence. It is true that we may remand a case to a district
court when it fails to create an adequate record to permit our review for
reasonableness. See Rivera, 439 F.3d at 448. This rule, however, is to promote
procedural practicality in the courts of appeals rather than to protect the procedural
rights of defendants in the district courts. A defendant has a right to a sentence that
is reasonable given the facts of the case and the relevant sentencing factors, Haack,
403 F.3d at 1004; they do not have a right to have their sentences handed down
according to any particular script. United States v. Lamoareaux, 422 F.3d 750, 756
(8th Cir. 2005). To prevail on appeals such as this one, a defendant must claim that
his sentence was unreasonable under the circumstances of his case. A record that is
inappropriately concise or barren may further the defendant’s claim in this regard, but
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we have not held that the brevity of the record alone gives rise to a claim of per se
unreasonableness.
This is not to say that district courts may ignore the factors of § 3553(a) when
sentencing defendants; indeed, they are statutorily bound to take those factors into
consideration. 18 U.S.C. § 3553(a) (stating that “[t]he court, in determining the
particular sentence to be imposed, shall consider” the listed factors). Further, in this
and all criminal cases, we urge each district court to make a clear record of its reasons
for imposing a particular sentence with explicit reference to § 3553(a). Failure to do
so hinders our review and leaves the judgment vulnerable to a claim that the district
court failed to give weight to a relevant factor or gave improper weight to an irrelevant
one. If the record and the sentence suggest that the district court failed to
appropriately consider the § 3553(a) factors, remand for re-sentencing is the
appropriate course.
This is not the case before us, however. Mosqueda-Estevez does not point to
any relevant factor that the district court overlooked, or improper factor that it
considered, in fashioning his sentence. The record reveals that the district court
considered the advisory Guidelines sentencing range, as well as the need to promote
deterrence and respect for the law. It also considered Mosqueda-Estevez’s criminal
history and the need to provide him with substance abuse treatment. All of these
considerations are proper under § 3553(a). 18 U.S.C. § 3553(a)(1); id. §
3553(a)(2)(A), (B), (D); id. § 3553(a)(4). The record offers nothing to show that any
of the other § 3553(a) factors would have or should have carried any significant
weight in determining Mosqueda-Estevez’s sentence, and he did not argue otherwise
at either the sentencing hearing or on appeal.
He does contend that the district court may have erroneously believed the
Guidelines were mandatory, and he argues for remand on that basis. We disagree with
Mosqueda-Estevez’s characterization of the record. Nowhere does the district court
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assert any inability to vary from the Guidelines under the law, and it presumably asked
the parties for recommendations within the Guidelines sentencing range because
neither Mosqueda-Estevez nor the government presented any facts that would warrant
a sentencing variance. Further, counsel for the government asked that Mosqueda-
Estevez be given “a guideline sentence” at the hearing; this request would have
seemed superfluous to the district court if it erroneously believed that the Guidelines
were mandatory. In short, the record does not support a finding that the district court
considered itself legally bound to sentence Mosqueda-Estevez within the advisory
Guidelines sentencing range.
Mosqueda-Estevez offers no reasoned arguments to support his assertion that
his sentence was unreasonable, and our thorough review of the record reveals none.
Therefore, we do not find that re-sentencing would be appropriate in this case.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
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