United States v. Guadalupe Rosales-Gonzales ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50286
Plaintiff-Appellee,
D.C. No.
v. 3:14-CR-00523-
LAB-1
GUADALUPE ROSALES-GONZALES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
August 3, 2015—Pasadena, California
Filed September 16, 2015
Before: Dorothy W. Nelson, Barry G. Silverman,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge D.W. Nelson
2 UNITED STATES V. ROSALES-GONZALES
SUMMARY*
Criminal Law
Affirming a sentence for being a removed immigrant
found in the United States, the panel held that a fast-track
departure under U.S.S.G. § 5K3.1 is purely discretionary,
such that the parties’ joint request does not necessitate that
the district court grant it.
The panel held that the district court neither committed
procedural error nor imposed a substantively unreasonable
sentence.
COUNSEL
Holly S. Hanover (argued), The Law Offices of Holly S.
Hanover, Spring Valley, California, for Defendant-Appellant.
Steven Lee (argued), Special Assistant United States
Attorney, Laura Duffy, United States Attorney, and Bruce
Castetter, Chief, Appellate Section, Criminal Division, San
Diego, for Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ROSALES-GONZALES 3
OPINION
D.W. NELSON, Senior Circuit Judge:
Guadalupe Rosales-Gonzales appeals his 27-month
sentence following his guilty plea and conviction for being a
removed immigrant found in the United States. Rosales-
Gonzales contends that the district court erred in not granting
him a fast-track departure, which the parties jointly requested.
We hold that the fast-track departure is purely discretionary,
such that a joint request does not necessitate departure under
the Guidelines. Because Rosales-Gonzales’s sentence was
substantively reasonable, we affirm the sentencing and
judgment.
I. Background
On February 4, 2014, U.S. Customs and Border
Protection arrested Rosales-Gonzales as a removed immigrant
found in the U.S. in violation of 8 U.S.C. § 1326. The
government filed a one-count information charging Rosales-
Gonzales with violating 8 U.S.C. § 1326. Rosales-Gonzales
pled guilty to the charged violation pursuant to a written plea
agreement. Under the terms of the plea agreement, the parties
agreed to request jointly, among other recommendations, a
four-level departure pursuant § 5K3.1 of the Sentencing
Guidelines based on Rosales-Gonzales’s participation in a
fast-track/early disposition program.
On June 9, 2014, the district court held a sentencing
hearing. At the outset of the hearing, the district court judge
provided what he termed as “preliminary thoughts” on the
parties’ sentencing recommendations. Specifically, the
district court judge noted that he was not inclined to grant the
4 UNITED STATES V. ROSALES-GONZALES
requested fast-track departure because of Rosales-Gonzales’s
prior convictions for the same offense and because the
requested sentence of nine months’ imprisonment would be
less than Rosales-Gonzales’s previous 14-month sentence for
an identical offense. After the government amended its
sentencing request to a 15-month term, the district court
judge again stated that he was not inclined to “go along with
that” and “was not on board with 15 months.”
The district court then heard argument from both defense
counsel and the government, and permitted Rosales-Gonzales
to speak. Defense counsel focused her argument almost
entirely on Rosales-Gonzales’s physical condition,
specifically the effects of a stroke he had suffered. The
district court judge then questioned the government about
why it had recommended the fast-track departure in a case in
which the defendant had been deported 35 times. The
government responded that it had considered the sentencing
factors set forth in 18 U.S.C. § 3553. The government also
noted that Rosales-Gonzales settled his case “in an expedient
manner” and waived both indictment and his right to appeal.
Following the parties’ arguments, the district court judge
explained that he agreed with the parties as to the first part of
the Guidelines calculation, including that the base offense
level was eight, Rosales-Gonzales’s four prior felony
convictions added four points, but that he had accepted
responsibility, which dropped the offense level to ten. The
district court also agreed with the parties that Rosales-
Gonzales’s criminal history category was five, thus, the
sentence range would be 21 to 27 months. The district court
judge disagreed with the parties, however, that the fast-track
departure under § 5K3.1 applied and declined to apply it.
The district court judge then determined that an “upper end”
Guidelines sentence was warranted and sentenced Rosales-
UNITED STATES V. ROSALES-GONZALES 5
Gonzales to 27 months’ imprisonment. Rosales-Gonzales
timely appealed his sentence to this court.
II. Standard of Review
We analyze challenges to criminal sentences in two steps:
First, we “consider whether the district court committed
significant procedural error.” United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc). Second, “we
consider the substantive reasonableness of the sentence.” Id.
Where the district court has “committed a significant
procedural error, such as a material error in the Guidelines
calculation that serves as the start point for the district court’s
sentencing decision, we will remand for resentencing
pursuant to 18 U.S.C. § 3742(f).” United States v. Pham,
545 F.3d 712, 716 (9th Cir. 2008) (internal quotation marks
and citation omitted). We review the substantive
reasonableness of the sentence for abuse of discretion.
United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).
III. Discussion
This case requires us to determine whether a district court
must grant a departure under § 5K3.1 of the Sentencing
Guidelines for participation in a fast-track program when the
parties jointly request this departure. In answering this
question, we consider both procedural error and the
substantive reasonableness of Rosales-Gonzales’s sentence.
A. Procedural Error
Rosales-Gonzales argues the district court procedurally
erred by denying the parties’ joint request for the fast-track
departure under § 5K3.1 of the Sentencing Guidelines and by
6 UNITED STATES V. ROSALES-GONZALES
not using the Sentencing Guidelines as its starting point. We
evaluate these arguments in turn.
1. Denial of the Fast-Track Departure Under
§ 5K3.1
Post-Booker1,
we elect to review the district court’s
application of the advisory sentencing
guidelines only insofar as they do not involve
departures. To the extent that a district court
has framed its analysis in terms of a
downward or upward departure, we will treat
such so-called departures as an exercise of
post-Booker discretion to sentence a
defendant outside of the applicable guidelines
range.
United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006);
see also United States v. Vasquez-Cruz, 692 F.3d 1001, 1008
(9th Cir. 2012) (reaffirming that departures are reviewed as
part of the substantive reasonableness analysis and not for
procedural error). As such, “we do not need to consider
whether the district court correctly applied [the relevant
departure provision]; rather, we review the district court’s
deviation from the applicable guidelines range for
reasonableness.” United States v. Tankersley, 537 F.3d 1100,
1114 (9th Cir. 2008); see also United States v. Blixt, 548 F.3d
882, 890–91 (9th Cir. 2008) (reviewing the district court’s
denial of a downward departure under § 5K2.13 of the
1
United States v. Booker, 543 U.S. 220 (2005).
UNITED STATES V. ROSALES-GONZALES 7
Sentencing Guidelines only as part of the substantive
reasonableness analysis).
Thus, our case law is clear that we do not review the
denial of a departure under § 5K of the Sentencing Guidelines
for procedural error. See United States v. Ellis, 641 F.3d 411,
420–21 (9th Cir. 2011). Accordingly, we reject Rosales-
Gonzales’s argument that the district court committed
procedural error by declining to grant him a four-level
downward departure under § 5K3.1. We address his
additional arguments concerning the denial of this departure
below in our analysis of the substantive reasonableness of his
sentence.
2. Sentencing Guidelines as the “Starting Point”
The Sentencing Guidelines establish a three-step
procedure that district courts must follow in determining the
proper sentence: (1) calculate the appropriate Guidelines
range, including the offense level and criminal history
category of the defendant; (2) consider any applicable
departures under § 5H or § 5K of the Guidelines; and
(3) consider the factors enumerated in 18 U.S.C. § 3553(a).
U.S. Sentencing Guidelines Manual § 1B1.1 (2014); see also
United States v. Lee, 725 F.3d 1159, 1165 n.5 (9th Cir. 2013)
(per curiam) (same). The Supreme Court has held that even
though the Sentencing Guidelines are advisory only, district
courts must use the Guidelines as the “starting point” for
determining a sentence. See, e.g., Gall v. United States,
552 U.S. 38, 49 (2007). While the district court may impose
a sentence outside the Guidelines range, “it may not
manipulate the calculations under the Sentencing Guidelines
in order to produce a Guidelines range that will allow it to
impose the sentence it prefers.” Lee, 725 F.3d at 1164.
8 UNITED STATES V. ROSALES-GONZALES
Although Rosales-Gonzales contends his case is
analogous to Lee, we find the facts sufficiently
distinguishable to conclude the district court did not err. In
Lee, the district court began by finding a base offense level of
38. 725 F.3d at 1162. The probation officer then recalculated
the defendant’s offense level as 35, based on a three-level
reduction for acceptance of responsibility, resulting in a
sentencing range of 188–235 months and a mandatory
minimum of 120 months. Id. The government subsequently
moved for a ten-level reduction under § 5K1.1 based on the
defendant’s substantial assistance and requested a 96-month
sentence. Id. at 1163. The district court granted the request
for a reduction under §5K1.1. Id. The district court then
incorrectly calculated the defendant’s new offense level after
the departure as 28, and, also incorrectly, stated that the
appropriate Guidelines range was 78–97 months. Id. Before
the court could impose the final sentence, the probation
officer interrupted to explain that, with a ten-level departure,
the defendant’s offense level was actually 25, not 28,
resulting in a Guidelines range of 63–78 months, so a
sentence exceeding 78 months would be an above-Guidelines
sentence. Id. at 1163–64. The government then stated that “it
believed ‘96 months was appropriate, whatever level one has
to depart to, to get that.’” Id. at 1164. Thereafter, the district
court granted the government’s amended request for a seven-
level departure—resulting in a Guidelines range of 87–108
months—and sentenced the defendant to 96 months’
imprisonment. Id. Thus, the district court appeared to
manipulate the Guidelines range to impose a 96-month
sentence.
Here, however, the district court did not engage in
calculation or recalculation in an attempt to get to a specific
sentence requested by the government or preferred by the
UNITED STATES V. ROSALES-GONZALES 9
district court. The district court judge noted that he had
reviewed the parties’ filings, including the request for the
fast-track departure, but stated, from the outset, that he did
not believe Rosales-Gonzales was entitled to the fast-track
departure. The district court then heard argument from both
parties, as well as Rosales-Gonzales’s statement, before
imposing the final sentence. In doing so, the court first
calculated an offense level of 10 and a criminal history
category of 5, resulting in a Guidelines range of 21–27
months, a calculation that Rosales-Gonzales does not dispute.
The court explained that it disagreed with the government’s
assessment that Rosales-Gonzales qualified for the fast-track
departure and declined to apply it to his sentence.2 The court
concluded that the § 3553(a) factors warranted an “upper
end” Guidelines sentence and imposed a 27-month prison
term.
Although at times the district court judge indicated he
would not sentence Rosales-Gonzales to 15 months or
fewer—stating he would not “go along with that” and “was
not on board with 15 months”—the court also expressed that
his thoughts were preliminary and provided the parties an
opportunity to argue. Of course, simply terming a
predetermination as a “preliminary thought” would not be
sufficient, on its own, to distinguish this case from Lee in a
2
The district court based much of its reasoning on a memorandum from
the Department of Justice to United States Attorneys regarding when fast-
track departure is applicable. See Memorandum for All United States
Attorneys from James M. Cole, Deputy Attorney General (Jan. 31, 2012),
available at http://www.justice.gov/dag/fast-track-program.pdf. Rosales-
Gonzales has not challenged the district court’s reliance on this
memorandum. Additionally, the factors discussed by the memorandum,
at least as noted by the district court, overlap significantly with the
§ 3553(a) factors.
10 UNITED STATES V. ROSALES-GONZALES
meaningful way. However, we do not find the district court’s
phrasing here to be disingenuous. The district court calculated
the proper Guidelines range at step one, considered the
applicable fast-track departure but declined to grant it at step
two, and evaluated the § 3553(a) factors at step three. The
district court did not commit procedural error.
B. Substantive Reasonableness
Rosales-Gonzales challenges the reasonableness of his
sentence based on the denial of the fast-track departure and
the “parsimony principle” of 18 U.S.C. § 3553(a). United
States v. Chavez, 611 F.3d 1006, 1009, 1010 (9th Cir. 2010)
(per curiam). Although we have explained that sentences
involving departures are “subject to a unitary review for
reasonableness,” Mohamed, 459 F.3d at 987, we analyze his
arguments related to the fast-track departure separately to
clarify the nature of the departure and provide guidance for
future cases.
1. Denial of the Fast-Track Departure Under
§ 5K3.1
Rosales-Gonzales principally argues that the district court
lacked discretion to deny the fast-track departure under
§ 5K3.1. Specifically, Rosales-Gonzales urges us to read
United States v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir.
2009), as prohibiting district courts from denying a properly-
requested fast-track departure. We disagree and hold that
district courts retain discretion to reject fast-track departures
under § 5K3.1 of the Sentencing Guidelines.
As noted, we have declined to consider whether a district
court has properly granted or denied a departure under § 5K
UNITED STATES V. ROSALES-GONZALES 11
of the Sentencing Guidelines post-Booker. See, e.g., Blixt,
548 F.3d at 890–91. Further, we have explained that “[t]he
old departure scheme is relevant today only insofar as factors
that might have supported (or not supported) a departure may
tend to show that a non-guidelines sentence is (or is not)
reasonable.” Tankersley, 537 F.3d at 1114. We have
described all departures as “exercise[s] of discretion,”
Mohamed, 459 F.3d at 986, and we have not found, nor could
counsel identify, any other departures under § 5K that we
have treated as mandatory.
In addition, the statutory text at issue supports our view.
The Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today (PROTECT) Act of 2003,
which implements the fast-track departure, reflects no
indication that Congress intended the departure to be
mandatory. As is relevant here, the PROTECT Act provides
only that the Sentencing Commission must promulgate “a
policy statement authorizing a downward departure of not
more than 4 levels if the Government files a motion for such
departure pursuant to an early disposition program authorized
by the Attorney General and the United States Attorney.”
Pub. L. No. 108–21, § 401(m)(2)(B), 117 Stat. 650, 675
(2003). Additionally, the language of § 5K3.1 itself provides
that “[u]pon motion of the Government, the court may depart
downward not more than 4 levels pursuant to an early
disposition program,” again indicating that the court retains
discretion to decide whether or not to grant the departure.
U.S.S.G. § 5K3.1.
Moreover, Rosales-Gonzales’s reliance on Gonzalez-
Zotelo is misplaced. In that case, we held that the district
court committed plain error by granting the defendant a four-
level fast-track departure even though the government had not
12 UNITED STATES V. ROSALES-GONZALES
requested one. 556 F.3d at 741. We explained that district
courts may consider only unwarranted sentencing disparities.
Id. at 739. Sentencing disparities between fast-track and non-
fast-track defendants under 18 U.S.C. § 3553(a)(6) are not
unwarranted because the differences in those sentences “are
justified by the benefits gained by the government when
defendants plead guilty early in criminal proceedings.” Id.
(internal quotation marks omitted). We held that while the
Supreme Court’s decision in Kimbrough v. United States,
552 U.S. 85 (2007), allows district courts to depart from the
Guidelines based on a disagreement with Guidelines policy,
it does not allow district courts to sentence in contravention
to congressional policy. Gonzalez-Zotelo, 556 F.3d at
740–41.
However, where a district court denies a jointly requested
fast-track departure, the district court does not contravene the
congressional policy at issue in Gonzalez-Zotelo. The
relevant congressional policy in Gonzalez-Zotelo was that
Congress had authorized the fast-track program and, thus, had
authorized disparities between fast-track and non-fast-track
defendants, such that consideration of these disparities was
improper. See 556 F.3d at 739–40. Gonzalez-Zotelo, thus,
says nothing about whether congressional policy dictates that
the particular departure at issue here—the fast-track departure
itself—is mandatory upon motion of the government or upon
joint recommendation of the parties. On this point, the
Second Circuit’s recent decision in United States v. Shand,
739 F.3d 714 (2d Cir. 2014) (per curiam), is instructive. In
Shand, the defendant similarly argued that the district court
lacks discretion to deny a fast-track departure when the
government properly requests it. Id. at 715. The Second
Circuit rejected this argument, relying mainly on the text of
the § 5K3.1, explaining that the permissive use of “may”
UNITED STATES V. ROSALES-GONZALES 13
distinguished this section of the Guidelines from other
mandatory ones. Id. at 715–16.
We also reject Rosales-Gonzales’s arguments that
allowing district courts to deny fast-track departures would
interfere with prosecutorial discretion or have a chilling effect
on plea bargaining. Rosales-Gonzales’s plea agreement was
made pursuant to Federal Rule of Criminal Procedure
11(c)(1)(B), which provides that the government will
“recommend, or agree not to oppose the defendant’s request,
that a particular sentence or sentencing range is appropriate
or that a particular . . . policy statement . . . does or does not
apply (such a recommendation or request does not bind the
court).” Even where the parties make a joint recommendation
for a sentence in such cases, the district court may
nevertheless exercise its discretion to reject the joint
recommendation. See, e.g., United States v. Camarillo-Tello,
236 F.3d 1024, 1028 (9th Cir. 2001). Thus, we see no reason
why the rejection of a sentencing proposal recommending a
fast-track departure would uniquely interfere with
prosecutorial discretion or chill the plea bargaining process.
This is not to say, however, that a district court can
simply ignore the fast-track departure, or other discretionary
departures under § 5K of the Sentencing Guidelines. As we
have previously noted in the context of accepting or rejecting
plea agreements, “the existence of discretion requires its
exercise, and when a court establishes a broad policy based
on events unrelated to the individual case before it, no
discretion has been exercised.” In re Morgan, 506 F.3d 705,
712 (9th Cir. 2007) (internal quotation marks, alterations,
citations omitted). Just as it would be an abuse of discretion
for a district court judge to have a blanket policy against
accepting plea agreements with binding sentences
14 UNITED STATES V. ROSALES-GONZALES
incorporating the fast-track departure, see United States v.
Gonzalez, 502 F. App’x 665, 667 (9th Cir. 2012), so too
would it be an abuse of discretion for a district court judge to
implement a blanket policy against granting recommended
fast-track departures in plea agreements with non-binding
sentences, cf. United States v. Odachyan, 749 F.3d 798,
804–05 (9th Cir. 2014) (Reinhardt, J., concurring) (explaining
that a district court judge’s statement indicating the judge
considered the defendant to be part of a group of immigrants
that “prey on this government’s institutions” was adverse to
§ 3553(a)’s requirement of an individualized determination
at sentencing). Though counsel for Rosales-Gonzales
contended that the district court judge here was more reticent
than other judges to grant the fast-track departure, she
conceded—and the record does not contradict—that the
district court judge does not have a blanket policy of denying
the fast-track departure.
2. Parsimony Principle
Under 18 U.S.C. § 3553(a), the district court shall
“impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth” in § 3553(a)(2). This
provision, also known as the “parsimony principle” or
“‘parsimony clause,’” “is a guidepost, an overarching
principle that directs judges in the appropriate exercise of
their sentencing discretion within the sentencing range
authorized and consideration of factors prescribed by
Congress.” Chavez, 611 F.3d at 1010. As such, challenging
a sentence as violating the “parsimony principle” is simply
another way of stating that the sentence is unreasonable. See
United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir.
2009).
UNITED STATES V. ROSALES-GONZALES 15
The district court properly considered the relevant
§ 3553(a) factors and did not abuse its discretion in
sentencing Rosales-Gonzales to 27 months’ imprisonment.
In discussing whether to grant the fast-track departure and
determining the proper sentence, the district court properly
considered Rosales-Gonzales’s past criminal and immigration
history. See 18 U.S.C. §§ 3553(a)(1) (“the history and
characteristics of the defendant”), 3553(a)(2)(A) (“to promote
respect for the law”), 3553(a)(2)(B) (“to afford adequate
deterrence to criminal conduct”). The district court also
heard argument from defense counsel regarding Rosales-
Gonzales’s health, asked questions about his physical
condition, and considered these issues in determining the
sentence. Ultimately, the district court weighed in Rosales-
Gonzales’s favor the fact that he was not a dangerous
criminal. However, the district court weighed Rosales-
Gonzales’s multiple felony convictions for this same offense
and multiple removals against him. The district court also
found the need to deter future criminal activity warranted an
“upper end” Guidelines sentence. Thus, the district court
imposed a 27-month sentence.
Rosales-Gonzales’s further arguments lack merit. First,
he contends that the court misunderstood the deterrent value
of an increased sentence. In other words, the district court
reasoned that the prior sentence did not work because it did
not deter Rosales-Gonzales from committing the same crime.
Thus, the court imposed a harsher sentence to deter him from
reentering the country illegally. Rosales-Gonzales mentions
empirical evidence that undermines this reasoning, though he
does not appear to have presented this evidence to the district
court, nor does he ask us to take judicial notice of it.
Moreover, this argument does not account for the fact that the
longer sentence imposed in this matter resulted largely from
16 UNITED STATES V. ROSALES-GONZALES
a Guidelines calculation that takes into account criminal
history. Here, the Guidelines range was 21–27 months based
on the applicable offense level and criminal history category.
See United States v. Gonzalez Vazquez, 719 F.3d 1086, 1089
(9th Cir. 2013) (discussing criminal history in sentencing).
Second, Rosales-Gonzales argues that the district court
failed to take into account “the real conduct and
circumstances,” at issue, Gall, 552 U.S. at 54 (internal
quotation marks and citation omitted), and instead focused on
imposing a higher sentence than Rosales-Gonzales had
received in a previous case. The record belies this claim. As
explained, the district court evaluated the § 3553(a) factors
and considered the relevant circumstances.
Finally, Rosales-Gonzales posits that his sentence was
longer than necessary to protect the public. This contention
fails to account for his recidivism. In sum, Rosales-Gonzales
has not established that his within-Guidelines sentence was
unreasonable. See Carty, 520 F.3d at 994 (noting “a
Guidelines sentence ‘will usually be reasonable’” (quoting
Rita v. United States, 551 U.S. 338, 351 (2007)).
IV. Conclusion
The district court neither committed procedural error nor
imposed a substantively unreasonable sentence. The district
court had discretion to reject the parties’ joint request for a
four-level departure under § 5K3.1 of the Sentencing
Guidelines for Rosales-Gonzales’s participation in a fast-
track program, and the district court properly considered the
§ 3553(a) sentencing factors.
AFFIRMED.