United States v. Glorisha Santos , 494 F. App'x 676 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1710
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Glorisha Santos,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 18, 2012
Filed: November 30, 2012
[Unpublished]
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Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
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PER CURIAM.
On July 13, 2011, Glorisha Santos pleaded guilty to unlawful possession of a
firearm as an unlawful user of a controlled substance, in violation of 18 U.S.C.
§ 922(g)(3). The district court1 calculated an advisory guideline range of 33 to 41
months’ imprisonment, granted the government’s motion for a downward departure
under USSG § 5K1.1, and sentenced Santos to 23 months’ imprisonment. Santos
appeals the sentence, and we affirm.
Santos first argues that the district court committed procedural error by
declining to decrease her offense level under USSG § 3E1.1 for acceptance of
responsibility. The district court ruled that although Santos pleaded guilty, her
conduct on pretrial release was inconsistent with acceptance of responsibility, and that
she was not entitled to a downward adjustment. The court found that while Santos
was on release pending sentencing, she harbored a fugitive co-defendant, Rashad Ivy,
in her home for three days, failed to report Ivy’s whereabouts to her probation officer,
and made false statements to a United States Marshal who was attempting to locate
and apprehend Ivy.
Santos contends that the district court clearly erred in denying the downward
adjustment, because she agreed to plead guilty within thirty days of arraignment,
assisted the government in several prosecutions, and engaged in voluntary self-
rehabilitation. Even conduct that “constitute[s] significant evidence of acceptance of
responsibility,” however, can be “outweighed by conduct of the defendant that is
inconsistent with such acceptance.” USSG § 3E1.1, comment. (n.3). At sentencing,
Santos testified that her conduct with respect to the fugitive was attributable to abuse
and intimidation by Ivy. But the district court found that her explanation was not
credible, because the testimony was largely a product of leading questions by her
counsel, the story was “of recent origin,” and her specific claim that Ivy dominated
her by taking all of her money was inconsistent with other evidence. We accord great
deference to a district court’s determination on acceptance of responsibility. See
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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United States v. Canania, 532 F.3d 764, 772 (8th Cir. 2008). The court’s findings and
determination were adequately supported by the record, and there was no procedural
error in calculating the advisory guideline range.
Santos next claims that the sentence imposed was substantively unreasonable
under 18 U.S.C. § 3553(a). She highlights three aspects of the sentence that allegedly
make it unreasonable. We review the district court’s decision under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007).
Santos asserts that it was unreasonable for the district court to set a base offense
level pursuant to USSG § 2K2.1. She maintains that the guideline is flawed because
it does not “draw any distinction between drug users and drug addicts or between
different types of controlled substances.” In her view, offenders who possess a
firearm as drug “addicts,” or as users of PCP, methamphetamine, or heroin, should be
assigned a higher base offense level than those who possess a firearm as users of
marijuana. Assuming for the sake of analysis that a sentencing court may vary from
an advisory guideline on pure policy grounds in a mine-run case, cf. Kimbrough v.
United States, 552 U.S. 85, 109 (2007), neither the Supreme Court nor this court has
held that a court must do so. See United States v. Barron, 557 F.3d 866, 871 (8th Cir.
2009). The Sentencing Commission opted to set the same base offense level for all
drug users who unlawfully possess a firearm. The district court was presented with
no evidence showing that users of other drugs are more dangerous than users of
marijuana when they possess a firearm. Even if there were such evidence, and
assuming it warranted a variance, it is not self-evident that the proper recourse would
be to vary downward for a marijuana user rather than to vary upward for a user of PCP
or heroin. It was not unreasonable for the district court to follow the recommendation
of the Sentencing Commission and to set Santos’s base offense level in accordance
with § 2K2.1.
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Santos also complains that the district court’s decision creates an unwarranted
sentence disparity between her and one of her co-defendants, Sophia Melendez. The
governing statute calls for the court 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). Melendez also pleaded guilty to
unlawful possession of a firearm as a drug user and received a sentence of eight
months’ imprisonment. The district court found, however, that her situation was
different than Santos’s, because Melendez accepted responsibility, did not harbor a
fugitive, and did not lie to the Marshals Service while it was trying to apprehend the
fugitive. These are legitimate distinctions between the two defendants, and it was not
an abuse of discretion for the court to determine that different terms of imprisonment
for Santos and Melendez created no unwarranted sentence disparities.
Finally, Santos says that the district court failed to consider the “extraordinarily
unique circumstances” of the case that she thinks warranted a shorter term of
imprisonment. Santos contends that she possessed the firearm solely for personal
protection, because she felt endangered as a prosecution witness in a murder case, that
her absence of criminal history was a strong mitigating factor, and that she engaged
in significant post-offense rehabilitation by obtaining a GED and securing part-time
employment at a coffee shop. The district court was skeptical of Santos’s asserted
justification for possessing the firearm, noting that it was a high-powered weapon with
a large-capacity magazine that Santos apparently did not know how to use. The court
also was not convinced by Santos’s claims of significant post-offense rehabilitation,
in light of evidence that she harbored a fugitive, lied to the Marshals Service, and
apparently continued to work as an adult dancer. There was a reasonable foundation
for the court’s decision and, under the highly deferential standard that applies to our
review, there was no abuse of discretion.
The judgment of the district court is affirmed.
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