United States v. Jose Vasquez-Cruz , 692 F.3d 1001 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-10467
Plaintiff-Appellee, D.C. No.
v.  3:11-cr-00010-
JOSE VASQUEZ-CRUZ, HDM-WGC-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted
June 11, 2012—San Francisco, California
Filed August 30, 2012
Before: Procter Hug, Jr., Johnnie B. Rawlinson, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
10239
UNITED STATES v. VASQUEZ-CRUZ 10241
COUNSEL
Michael Kennedy, Chief Assistant Federal Public Defender,
Reno, Nevada (argued); Dan C. Maloney, Assistant Federal
Public Defender, Reno, Nevada, for the defendant-appellant.
10242 UNITED STATES v. VASQUEZ-CRUZ
Michael W. Large, Assistant United States Attorney, Reno,
Nevada, for the plaintiff-appellee.
OPINION
IKUTA, Circuit Judge:
Jose Maria Vasquez-Cruz appeals from the 24-month
prison sentence imposed following his conviction for illegal
reentry in violation of 8 U.S.C. § 1326(a). He argues that the
district court procedurally erred by failing to analyze whether
he was entitled to a downward departure from the applicable
sentencing range under the U.S. Sentencing Guidelines and by
failing to adequately explain the chosen sentence. He also
argues that the district court imposed a substantively unrea-
sonable sentence. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
I
On December 15, 2010, the Bureau of Immigration and
Customs Enforcement (“ICE”) investigated a report that a
previously deported alien was residing unlawfully in Reno,
Nevada. The investigation led ICE agents to Vasquez-Cruz, a
citizen of Mexico who had previously been removed from the
United States on four occasions. On June 3, 2011, Vasquez-
Cruz pleaded guilty to unlawful reentry by a deported,
removed, or excluded alien in violation of 8 U.S.C. § 1326(a)
without a plea agreement.
Taking into account Vasquez-Cruz’s five prior criminal
convictions for burglary, battery, and battery on a police offi-
cer, the presentence report calculated Vasquez-Cruz’s total
offense level as 13 and Criminal History Category as IV,
which translated to a Guidelines range of 24 to 30 months
imprisonment. The presentence report noted that Vasquez-
UNITED STATES v. VASQUEZ-CRUZ 10243
Cruz might be culturally assimilated to the United States
because he entered the country for the first time at age 8, but
recommended against a downward departure from the Guide-
lines range on that basis. The report also noted that Vasquez-
Cruz had learning disorders and mild retardation, but recom-
mended that the district court not apply a downward variance
under 18 U.S.C. § 3553(a) because of Vasquez-Cruz’s crimi-
nal history which included four battery convictions. The pre-
sentence report then recommended a low-end guideline
sentence of 24 months.
In response to the presentence report, Vasquez-Cruz filed
a sentencing memorandum requesting a sentence of twelve
months and one day. Vasquez-Cruz first argued that the dis-
trict court should grant him a downward variance under 18
U.S.C. § 3553 on account of his cultural assimilation and
mental disability. Vasquez-Cruz then argued that he was enti-
tled to a downward departure under U.S.S.G. § 2L1.2 cmt. n.81
1
Application Note 8 to U.S.S.G. § 2L1.2 provides:
There may be cases in which a downward departure may be
appropriate on the basis of cultural assimilation. Such a departure
should be considered only in cases where (A) the defendant
formed cultural ties primarily with the United States from having
resided continuously in the United States from childhood, (B)
those cultural ties provided the primary motivation for the defen-
dant’s illegal reentry or continued presence in the United States,
and (C) such a departure is not likely to increase the risk to the
public from further crimes of the defendant.
In determining whether such a departure is appropriate, the court
should consider, among other things, (1) the age in childhood at
which the defendant began residing continuously in the United
States, (2) whether and for how long the defendant attended
school in the United States, (3) the duration of the defendant’s
continued residence in the United States, (4) the duration of the
defendant’s presence outside the United States, (5) the nature and
extent of the defendant’s familial and cultural ties inside the
United States, and the nature and extent of such ties outside the
United States, (6) the seriousness of the defendant’s criminal his-
tory, and (7) whether the defendant engaged in additional crimi-
nal activity after illegally reentering the United States.
10244 UNITED STATES v. VASQUEZ-CRUZ
on account of his cultural assimilation. To support his request
for a downward variance or departure, Vasquez-Cruz attached
the expert reports of Dr. Martha B. Mahaffey, Ph.D., who
diagnosed Vasquez-Cruz with mild mental retardation and
other disabilities, and Dr. Amado M. Padilla, Ph.D., who con-
cluded that Vasquez-Cruz “meets the necessary criteria for
cultural assimilation.”
At the sentencing hearing, the district court listened to the
parties’ arguments, including discussion of Vasquez-Cruz’s
cultural assimilation and mental disability. Before imposing a
sentence, the court stated that it had “carefully considered”
the presentence report, defendant’s sentencing memorandum,
and the expert reports, and “also considered the factors which
the Court is required to consider under 18 United States Code,
Section 3553(a).” The court held that the appropriate Guide-
lines range was 24 to 30 months and remarked that Vasquez-
Cruz “doesn’t fall outside the heartland of that, nor do I see
any basis for a variance [or] departure in this case.” The court
then imposed a sentence of 24 months, at the low end of the
Guidelines range. It reasoned that, although “inclined to
impose a sentence at the highest end of the guideline range,
or even consider a departure upward” because of Vasquez-
Cruz’s “fairly extensive” and “troubling” criminal history, a
low end sentence was nevertheless warranted “because of the
defendant’s mental capacity.”
Vasquez-Cruz timely appealed his sentence. On appeal,
Vasquez-Cruz argues that the district court procedurally erred
by failing to determine whether he was entitled to a departure
under the Sentencing Guidelines before considering whether
he was entitled to a variance under 18 U.S.C. § 3553(a). This
failure, Vasquez-Cruz argues, violates the sequencing
required by U.S.S.G. § 1B1.1, as amended in 2010, which
directs district courts to first determine the Guidelines range,
then consider departures from the Guidelines, and finally con-
sider “the applicable factors in 18 U.S.C. § 3553(a) taken as
a whole.” Vasquez-Cruz also asserts that the district court
UNITED STATES v. VASQUEZ-CRUZ 10245
procedurally erred by failing to give an adequate explanation
of the chosen sentence, and that the district court abused its
discretion by imposing a substantively unreasonable sentence.
II
In reviewing a sentence determination, a court “must first
ensure that the district court committed no significant proce-
dural error, such as failing to calculate (or improperly calcu-
lating) 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 ade-
quately explain the chosen sentence—including an explana-
tion for any deviation from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007). If the district court’s
sentence is procedurally sound, “the appellate court should
then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id.
A
We turn first to Vasquez-Cruz’s argument that the district
court procedurally erred by failing to address whether he was
entitled to a departure for cultural assimilation under U.S.S.G.
§ 2L1.2 cmt. n.8 before applying the sentencing factors set
forth in 18 U.S.C. § 3553(a).
[1] We have long held that we do not review the proce-
dural correctness of a district court’s discretionary decision to
depart from the Guidelines range. Rather, we “treat the
scheme of downward and upward ‘departures’ as essentially
replaced by the requirement that judges impose a ‘reasonable’
sentence.” United States v. Mohamed, 459 F.3d 979, 986 (9th
Cir. 2006); see also United States v. Ellis, 641 F.3d 411, 421
(9th Cir. 2011). In Mohamed we explained that, even if the
district court erred in applying a departure, there would be no
point in reversing for such an error because “the sentencing
judge still would be free on remand to impose exactly the
10246 UNITED STATES v. VASQUEZ-CRUZ
same sentence by exercising his discretion under the now-
advisory guidelines” and “[s]uch a sentence would then be
reviewed for reasonableness.” 459 F.3d at 987. For this rea-
son, any erroneous application of the departure would be
harmless so long as the sentence actually imposed was sub-
stantively reasonable. Therefore, “our review of the so-called
departure would have little or no independent value” and
“would result in wasted time and resources in the courts of
appeal, with little or no effect on sentencing decisions.” Id.2
We made clear that these rules governed the appellate review
of post-Booker sentences, id. at 985-86 (citing United States
v. Booker, 543 U.S. 220 (2005)), and did not prevent “consul-
tation of the system of departures that existed under the man-
datory regime, either by the district court or by this court,” id.
at 987. In declining to review departures, we acknowledged
that we were parting ways with several of our sister circuits,
and instead following the Seventh Circuit, which had declared
that “ ‘the concept of ‘departures’ has been rendered obsolete
in the post-Booker world.’ ” Id. at 986 (quoting United States
v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005)).
[2] Vasquez-Cruz argues that Mohamed was abrogated by
the Sentencing Commission’s 2010 amendment to § 1B1.1 of
the Guidelines, referred to as Amendment 741. See U.S.S.G.
app. C, vol. III, at 352-54 (2011). As explained by the Sen-
tencing Commission, Amendment 741 reorganized the text of
2
The same reasoning applies to a district court’s failure to discuss its
departure analysis as a separate step; our review of any such error would
have no value, because the district court could impose the same sentence
on remand. See United States v. Evans-Martinez, 611 F.3d 635, 643 (9th
Cir. 2010) (finding no error where the district court simultaneously “toggl-
[ed] back and forth between any relevant departures and the § 3553(a) sen-
tencing factors when it consider[ed] whether to impose an above- or
below-Guidelines sentence”); United States v. Herrera-Zuniga, 571 F.3d
568, 586-87 (6th Cir. 2009) (finding no error in the district court’s failure
to specify whether its decision to impose an above-Guidelines sentence
was a “departure” under U.S.S.G. § 4A1.3 or a “variance” based on the
court’s consideration of the factors enumerated in 18 U.S.C. § 3553(a)).
UNITED STATES v. VASQUEZ-CRUZ 10247
§ 1B1.1 to divide the existing sentencing procedure into three
steps.3 The specific language changes to § 1B1.1 made by
Amendment 741 were relatively minor. First, the amendment
made non-material adjustments to the instructions to district
courts for determining the correct Guidelines range.4 Second,
the amendment grouped the instructions into three subsections
(subsections (a) to (c) with nested paragraphs (1) to (8)),
rather than listing all instructions in order as subsections (a)
to (i). Finally, the amendment added subsection (c), which,
3
As amended, U.S.S.G. § 1B1.1 (2010) provides in pertinent part:
(a) The court shall determine the kinds of sentence and the guide-
line range as set forth in the guidelines (see 18 U.S.C. 3553(a)(4))
by applying the provisions of this manual in the following order,
except as specifically directed: . . . [paragraphs (1) to (8) provide
steps for determining guideline range] . . .
(b) The court shall then consider Parts H and K of Chapter Five,
Specific Offender Characteristics and Departures, and any other
policy statements or commentary in the guidelines that might
warrant consideration in imposing sentence. See 18 U.S.C.
3553(a)(5).
(c) The court shall then consider the applicable factors in 18
U.S.C. 3553(a) taken as a whole. See 18 U.S.C. 3553(a).
The prior version of U.S.S.G. § 1B1.1 (2006) provided in pertinent part:
Except as specifically directed, the provisions of this manual are
to be applied in the following order: . . . [subsections (a) to (h)
provide steps for determining guidelines range that are substan-
tially identical to the steps set forth in paragraphs (1) to (8) of the
amended version] . . .
(i) Refer to Parts H and K of Chapter Five, Specific Offender
Characteristics and Departures, and to any other policy state-
ments or commentary in the guidelines that might warrant con-
sideration in imposing sentence.
4
For example, prior to amendment, § 1B1.1(a) stated: “Except as specif-
ically directed, the provisions of this manual are to be applied in the fol-
lowing order.” After the amendment, § 1B1.1(a) states: “The court shall
determine the kinds of sentence and guideline range as set forth in the
guidelines (see 18 U.S.C. § 3553(a)(4)) by applying the provisions of this
manual in the following order, except as specifically directed.” See
U.S.S.G. app. C, vol. III, at 352 (2011).
10248 UNITED STATES v. VASQUEZ-CRUZ
per Booker, requires the district court to determine the sub-
stantive reasonableness of the sentence by considering “the
applicable factors in 18 U.S.C. § 3553(a) taken as a whole.”
U.S.S.G. § 1B1.1(c). The Sentencing Commission also
amended the Commentary to § 1B1.1 to note that
“[s]ubsections (a), (b), and (c) are structured to reflect the
three-step process used in determining the particular sentence
to be imposed.” U.S.S.G. app. C, vol. III, at 353 (2011). In its
statement of reasons for Amendment 741, the Sentencing
Commission explained that while most circuits “agree on a
three-step approach” to determining a sentence, “including the
consideration of departure provisions,” the Seventh Circuit
had stated “that departures are ‘obsolete.’ ” Id. at 353-54.
According to the Sentencing Commission, Amendment 741
“resolves the circuit conflict and adopts the three-step
approach followed by a majority of circuits in determining the
sentence to be imposed.” Id. at 354. Although not mentioned
by the Sentencing Commission, our decision in Mohamed
also followed the Seventh Circuit approach.
We now face the question whether Amendment 741 abro-
gates our decision in Mohamed to review a district court’s
imposition of a sentence outside the Guidelines range only for
substantive reasonableness. Under our “law of the circuit”
doctrine, we generally hold that “a published decision of this
court constitutes binding authority which ‘must be followed
unless and until overruled by a body competent to do so.’ ”
Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012)
(en banc) (quoting Hart v. Massanari, 266 F.3d 1155, 1170
(9th Cir. 2001)). Of course, a change in the language of an
applicable Guidelines provision, including a change in appli-
cation notes or commentary, supersedes prior decisions apply-
ing earlier versions of that provision, just as we would be
bound to apply the updated version of an agency rule or regu-
lation. See Stinson v. United States, 508 U.S. 36, 44-45 (1993)
(holding that “the guidelines are the equivalent of legislative
rules adopted by federal agencies,” and the “commentary . . .
assist[s] in the interpretation and application of those rules”).
UNITED STATES v. VASQUEZ-CRUZ 10249
For example, in United States v. Van Alstyne, 584 F.3d 803(9th Cir. 2009), we considered Guidelines Amendment 617,
which amended § 2B1.1 (relating to various fraud offenses) to
establish the method for calculating losses incurred because of
fraud when determining a defendant’s offense level. We held
that the amended provision superseded a prior decision that
had applied a different methodology. Id. at 817. Similarly, in
United States v. McEnry, 659 F.3d 893 (9th Cir. 2011), we
held that Guidelines Amendment 591, which removed a sen-
tence in the introduction to the Statutory Appendix and
§ 1B1.2(a) in order to clarify that offense conduct should not
be considered in selecting the applicable offense guideline
section, superseded prior decisions that had relied on the
excised language. Id. at 899 & n.8.
Amendment 741, however, does not make the sorts of
changes to the language or application of a Guidelines provi-
sion that would overrule our prior case law.
[3] First, unlike the amendments at issue in Van Alstyne
and McEnry, the amendment to § 1B1.1 did not make any
material changes to that provision. Rather, the language of the
amended § 1B1.1 used substantially identical language to the
language interpreted in Mohamed. Compare § 1B1.1(i) (2006)
(“Refer to Parts H and K of Chapter Five, Specific Offender
Characteristics and Departures, and to any other policy state-
ments or commentary in the guidelines that might warrant
consideration in imposing sentence”), with § 1B1.1(b) (“The
court shall then consider Parts H and K of Chapter Five, Spe-
cific Offender Characteristics and Departures, and any other
policy statements or commentary in the guidelines that might
warrant consideration in imposing sentence. See 18 U.S.C.
§ 3553(a)(5).”). These immaterial changes give us no basis
for abrogating Mohamed. Nor does the background commen-
tary amount to a change in the law in place at the time we
decided Mohamed because the commentary merely advises
district courts to follow the three-step process in imposing a
sentence.
10250 UNITED STATES v. VASQUEZ-CRUZ
[4] Second, Amendment 741 is not inconsistent with our
reasoning in Mohamed. Amendment 741 gives procedural
direction to the district courts regarding the sequence of sen-
tencing determinations, and does not purport to require the
appellate courts to review the district courts’ departures deter-
minations. Mohamed, on the other hand, did not interpret the
Guidelines’s sequencing provisions; rather, it set forth ‘our
approach to reviewing post-Booker sentences,” 459 F.3d at
984, as appellate courts, and did “not preclude consultation of
the system of departures that existed under the mandatory
regime, either by the district court or by this court,” id. at 987.
Furthermore, nothing in Amendment 741 undercuts our rea-
soning in Mohamed that reviewing post-Booker departures
“would result in wasted time and resources” because any error
in applying departure provisions would ultimately be harm-
less. Id. Although we have held that procedural errors in
determining the correct sentencing range are generally preju-
dicial and require reversal, United States v. Munoz-Camarena,
631 F.3d 1028, 1031 (9th Cir. 2011), Amendment 741 does
not even address Mohamed’s opposite conclusion that an error
in making a discretionary departure determination is not such
a procedural error requiring reversal, see Gall, 552 U.S. at 51
(listing procedural errors, not including errors in applying
departure provisions), and that our review of a departure error
is subsumed in the review of the ultimate sentence for sub-
stantive reasonableness. Because Mohamed’s determinations
on these points relate to appellate procedure, an area outside
the purview of the Sentencing Commission, we cannot say
that Amendment 741 requires us to alter the approach estab-
lished in Mohamed.
[5] We conclude that in this case, the law of the circuit is
controlling. Because Amendment 741 addresses the district
courts’ procedures, rather than the courts of appeals’ proce-
dures, and in light of our law of the circuit doctrine, we can-
not say that Amendment 741 so changed the legal landscape
that we are free to reconsider and overrule Mohamed. See
Hart, 266 F.3d at 1172.
UNITED STATES v. VASQUEZ-CRUZ 10251
We note that our reading of Mohamed accords with the
Seventh Circuit’s decision in United States v. Guyton, 636
F.3d 316, 319 n.2 (7th Cir.), cert. denied 132 S. Ct. 132(2011). As discussed above, Mohamed followed the Seventh
Circuit’s approach in declining to review departures for pro-
cedural correctness. See Mohamed, 459 F.3d at 987. The Sev-
enth Circuit, when presented with the same argument made
here, held that the amendment to U.S.S.G. § 1B1.1 did not
affect its holdings in Johnson and Arnaout (the cases followed
by this court in Mohamed) because this line of cases “should
not discourage district courts from taking genuine guidance
from all the Guidelines, including their departure provisions,
as required under the amended section 1B1.1.” Guyton, 636
F.3d at 319 n.2. We agree.
[6] In sum, we adhere to our precedent that requires us to
decline to review whether the district court procedurally erred
by failing to grant Vasquez-Cruz a departure or by failing to
consider departures before applying the § 3553(a) factors.
Accordingly, we decline Vasquez’s invitation to review the
district court’s denial of a departure (as well as the court’s
consideration of Vasquez’s departure and variance arguments
together, rather than as separate steps). Instead, we review the
district court’s exercise of discretion only for substantive rea-
sonableness. Mohamed, 459 F.3d at 986-87.
B
We next consider Vasquez-Cruz’s argument that the district
court procedurally erred by failing to adequately explain the
chosen sentence. See Gall, 552 U.S. at 51. This argument
likewise fails.
[7] A district court may commit a procedural error if it
fails to adequately explain the sentence selected, including
any deviation from the Guidelines range. United States v.
Fitch, 659 F.3d 788, 796-98 (9th Cir. 2011); United States v.
Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). The dis-
10252 UNITED STATES v. VASQUEZ-CRUZ
trict court must “set forth enough to satisfy the appellate court
that [it] has considered the parties’ arguments and has a rea-
soned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
While a within-Guidelines sentences does “not necessarily
require lengthy explanation,” id., “[w]here the defendant or
prosecutor presents nonfrivolous reasons for imposing a dif-
ferent sentence . . . the judge will normally go further and
explain why he has rejected those arguments,” id. at 357. In
United States v. Carter, 560 F.3d 1107 (9th Cir. 2009), we
held that the district court need not give explicit reasons for
rejecting a defendant’s argument for a Guidelines departure
where the record reflects that the court considered defendant’s
evidence and arguments. Id. at 1118-19.
[8] Here, the district court’s explanation for the sentence it
imposed was legally sufficient. The district court explained
that Vasquez-Cruz’s case was within the “heartland” of the
Guidelines range, and that it did not “see any basis for a vari-
ance [or] departure in this case.” The court then expressly
considered the § 3553(a) factors, concluding that, notwith-
standing Vasquez-Cruz’s “fairly extensive” criminal history,
a low-end sentence was warranted because of Vasquez-Cruz’s
mental disability. Because the record makes clear that the sen-
tencing judge considered the relevant evidence and argument,
Vasquez-Cruz’s claims of procedural error fail. See Carter,
560 F.3d at 1118-19.
C
[9] Because Vasquez-Cruz has not identified any “signifi-
cant procedural error,” we review the sentence for substantive
reasonableness. Gall, 552 U.S. at 51. We conclude the district
court’s within-Guidelines sentence was reasonable in light of
the totality of circumstances, taking into account Vasquez-
Cruz’s four prior deportations and five other criminal convic-
tions as well as the evidence of his cultural assimilation and
mental capacity. The record establishes that the district court
UNITED STATES v. VASQUEZ-CRUZ 10253
carefully weighed the § 3553(a) factors before coming to the
conclusion that it did not “see any basis for a variance [or]
departure in this case.” The district court expressly considered
Vasquez-Cruz’s mental disability. Specifically, the court
observed that, although inclined to impose a high-end sen-
tence or depart upward, a low-end sentence was nevertheless
appropriate “because of the defendant’s mental capacity”
which “probably diminishes his ability to totally function as
a person who did not have that type of disability would func-
tion” and “warrants some consideration in the guideline
range.” Although the district court did not mention cultural
assimilation, its decision to order a low-Guidelines sentence
notwithstanding Vasquez-Cruz’s “fairly extensive” criminal
history is certainly reasonable. When, as here, “ ‘the judge’s
discretionary decision accords with the Commission’s view of
the appropriate application of § 3553(a) in the mine run of
cases, it is probable that the sentence is reasonable.’ ” Carty,
520 F.3d at 994 (quoting Rita, 551 U.S. at 351).
For the reasons given, we affirm the judgment of the dis-
trict court.
AFFIRMED.