United States v. Juan Rangel ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-50062
Plaintiff-Appellee, D.C. No.
v.  2:10-cr-01061-
JUAN RANGEL, SJO-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
March 8, 2012—Pasadena, California
Filed July 20, 2012
Before: Jerome Farris, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton
8349
UNITED STATES v. RANGEL 8351
COUNSEL
Anthony E. Colombo, Jr., San Diego, California, for the
plaintiff-appellee.
James A. Bowman, Assistant United States Attorney, Los
Angeles, California, for the defendant-appellant.
8352 UNITED STATES v. RANGEL
OPINION
CLIFTON, Circuit Judge:
Defendant Juan Rangel pled guilty to mail fraud and money
laundering. Based on the sentencing factors set out in 18
U.S.C. § 3553(a), the district court imposed a prison sentence
longer than the one proposed by the parties in the plea agree-
ment and also in excess of the range recommended by the
advisory Sentencing Guidelines. Rangel appeals his sentence,
claiming both procedural error and substantive unreasonable-
ness. Though it imposed a sentence outside of the Guidelines
range, the district court did not err by failing to provide prior
notice under Rule 32(h) of the Federal Rules of Criminal Pro-
cedure, as this notice is not required when varying a sentence
based on § 3553(a) factors. Further, the district court did not
impermissibly rely on Rangel’s inability to pay restitution by
considering the financial impact his crimes had on his victims.
The other challenges to Rangel’s sentence also lack merit. We
affirm.
I. Background
Rangel was indicted on multiple counts of mail fraud relat-
ing to his ownership and operation of Financial Plus Invest-
ments, a company purporting to offer investment services.
Through Financial Plus, Rangel engaged in a Ponzi-type
scheme whereby investors were offered a guaranteed rate of
return supposedly backed by profits earned through the pur-
chase and sale of real estate and through high interest loans
to homeowners facing foreclosure. In reality, only a small
fraction of the investors’ money was directed toward real
estate investments. Financial Plus instead paid investors
through funds deposited with the company by other investors.
In addition, Rangel also engaged in a mortgage fraud scheme
targeting Latino homeowners facing potential foreclosure.
Through straw buyer purchases and fraudulent mortgage loan
applications, Rangel directed loan proceeds into bank
UNITED STATES v. RANGEL 8353
accounts that he controlled, causing significant losses to both
the home owners and the lenders.
Rangel pled guilty to one count of mail fraud and one count
of money laundering related to the mortgage fraud pursuant
to a written plea agreement. The parties agreed to a Guide-
lines calculation that resulted in an offense level of 36 and
further agreed that a sentence of 180 months in custody,
which was below the lower end of the Guidelines range,
would be “a reasonable and appropriate sentence.” They both
filed sentencing memoranda in support of such a sentence.
The plea agreement, however, acknowledged that the district
court had the discretion to decide upon the sentence, up to the
statutory maximum of 30 years of imprisonment; that the Sen-
tencing Guidelines were advisory; and that Rangel could not
count on receiving a sentence within the Guidelines.
During the sentencing hearing, the district court noted the
reasons offered by Rangel for the proposed 180-month sen-
tence, including his insignificant criminal history, the impact
of a lengthy sentence on his family, the collateral immigration
consequences, his ineligibility for certain prison benefits
based on his non-citizen status, and his restrictive pretrial con-
finement conditions. The district court inquired into Rangel’s
ability to pay restitution to his victims. The plea agreement
had noted Rangel’s liability for restitution to his victims,
which was said to total approximately $20 million. At the sen-
tencing hearing, the court was informed that Rangel was not
in a position to pay any restitution toward the victims’ losses.
In calculating the advisory guidelines range, the court
found a total offense level of 36, matching the calculation in
the written plea agreement, and a criminal history category of
I. The advisory guideline range for an adjusted offense level
of 36, with a criminal history category I, was 188 to 235
months.
8354 UNITED STATES v. RANGEL
Following this determination, the court considered the fac-
tors under 18 U.S.C. § 3553(a).1 The court heard from the vic-
tims of Rangel’s scheme and from Rangel himself. The
victims described the serious and lasting impact of Rangel’s
crimes, including the loss of their homes, college funds and
retirement savings, and substantial emotional turmoil.
The district court sentenced Rangel to consecutive terms of
240 months for mail fraud and 24 months for money launder-
ing, totaling 264 months in custody, plus five years of super-
vised release on the mail fraud count (and a concurrent term
1
Title 18 U.S.C. § 3553(a) requires that a sentencing court consider the
following factors:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for
—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines
. . . hh
(5) any pertinent policy statement . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
7) the need to provide restitution to any victims of the offense.
UNITED STATES v. RANGEL 8355
of three years supervised release on the money laundering
count), and a $200 special assessment. Following a subse-
quent hearing, the court determined that the amount of restitu-
tion owed by Rangel was $19,922,656.
At the end of the sentencing hearing, Rangel made timely
objections to the court’s consideration of his inability to pay
restitution in determining his sentence, and to the imposition
of consecutive, rather than concurrent, sentences for the two
counts. The court responded by stating that it understood that
there was no evidence establishing that Rangel had available
funds to pay restitution to the victims, and that it did not take
his inability to pay restitution into consideration when sen-
tencing. The court said that it imposed the sentence because
the Guidelines range “[did] not reflect the seriousness of the
conduct, the sophistication of the Defendant, the callousness
of the Defendant and all of the harm and trauma that has
befallen the [victims of the crimes].”
II. Discussion
A district court’s sentencing decisions are generally
reviewed for abuse of discretion. See Gall v. United States,
552 U.S. 38, 46 (2007); United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). Only a procedurally erroneous
or substantively unreasonable sentence should be set aside.
See Gall, 552 U.S. at 46; Rita v. United States, 551 U.S. 338,
351 (2007); Carty, 520 F.3d at 993. Procedural error includes
failing to calculate or calculating incorrectly the proper
Guidelines range, treating the Guidelines as mandatory, fail-
ing to consider the § 3553(a) factors, choosing a sentence
based on clearly erroneous facts, or failing to explain a
selected sentence sufficiently to permit appellate review,
including any deviation from the Guidelines range. See Carty,
520 F.3d at 993. Where a procedural sentencing error is raised
for the first time on appeal, it is reviewed for plain error.
United States v. Burgum, 633 F.3d 810, 812 (9th Cir. 2011)
(citing United States v. Evans-Martinez, 611 F.3d 635, 642
8356 UNITED STATES v. RANGEL
(9th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 956(2011)).
A. Rule 32(h) Notice
[1] The Sentencing Guidelines provide that a court may
impose a sentence outside the Guidelines range through either
a “departure” or a “variance.” We have described the differ-
ence between the two:
A “departure” is typically a change from the final
sentencing range computed by examining the provi-
sions of the Guidelines themselves. It is frequently
triggered by a prosecution request to reward cooper-
ation . . . or by other factors that take the case “out-
side the heartland” contemplated by the Sentencing
Commission when it drafted the Guidelines for a
typical offense. A “variance,” by contrast, occurs
when a judge imposes a sentence above or below the
otherwise properly calculated final sentencing range
based on application of the other statutory factors in
18 U.S.C. § 3553(a).
United States v. Cruz-Perez, 567 F.3d 1142, 1146 (9th Cir.
2009) (internal citations omitted).
[2] Federal Rule of Criminal Procedure 32(h) requires a
district court to provide notice of a potential “departure” from
the Sentencing Guidelines range.2 See United States v. Evans-
2
Federal Rule of Criminal Procedure 32(h) provides:
(h) Notice of Possible Departure from Sentencing Guidelines.
Before the court may depart from the applicable sentencing range
on a ground not identified for departure either in the presentence
report or in a party’s prehearing submission, the court must give
the parties reasonable notice that it is contemplating such a depar-
ture. The notice must specify any ground on which the court is
contemplating a departure.
UNITED STATES v. RANGEL 8357
Martinez, 530 F.3d 1164, 1167-68 (9th Cir. 2008) (holding
that Rule 32(h) survives United States v. Booker, 543 U.S.
220 (2005)). This notice requirement does not apply, how-
ever, to a “variance” under § 3553(a). Irizarry v. United
States, 553 U.S. 708, 714 (2008).
Promulgated in response to Burns v. United States, 501
U.S. 129 (1991), Rule 32(h) was designed to ensure “full
adversary testing of the issues relevant to a Guidelines sen-
tence.” Burns, 501 U.S. at 135. Irizarry explained that Rule
32(h) was premised on protecting a defendant’s expectation
that his sentence would be within the applicable Guidelines
range. Irizarry, 553 U.S. at 713. Booker eliminated this
expectation by making the Guidelines advisory only. Id. at
713-14. The Court further observed that Rule 32(h) had never
applied to § 3553(a) variances, even prior to Booker. Id. at
714.
Rangel argues that the district court procedurally erred by
imposing a sentence outside the Sentencing Guidelines range
without providing notice of its intent to do so.3 Because his
sentence was greater than the Guidelines range, Rangel argues
that it was a departure, and thus subject to the Rule 32(h)
notice rule. In support, he cites two pre-Booker Ninth Circuit
cases that held that the imposition of consecutive sentences
required notice, but his reliance on those cases is unpersua-
sive, most obviously because neither of those decisions
involved a sentencing “variance” under § 3553(a).
[3] In United States v. Brady, 928 F.2d 844 (9th Cir.
1991), abrogated in part on other grounds by Nichols v.
3
Rangel also argues that the district court committed a procedural error
in imposing consecutive sentences beyond the “total punishment,” as
determined by U.S.S.G. § 5G1.2(c). Rangel is correct that if the district
court had relied on this section of the Sentencing Guidelines to impose the
consecutive sentences, it would have constituted procedural error. How-
ever, as explained below, at 8359-60, the district court did not rely on this
section, nor was it required to do so.
8358 UNITED STATES v. RANGEL
United States, 511 U.S. 738 (1994), we held that the district
court erred by imposing a sentence of consecutive terms when
U.S.S.G. § 5G1.2 pointed toward concurrent terms. Id. at 849-
50.4 We also held that the district court should have given
notice before imposing the concurrent sentence. Id. at 847. In
United States v. Williams, 291 F.3d 1180 (9th Cir. 2002),
overruled on other grounds by United States v. Gonzales, 506
F.3d 940, 942 (9th Cir. 2007) (en banc), we recognized that
the rationales that the district court had provided for the con-
secutive sentences could be acceptable grounds for “depar-
ture” under the Sentencing Guidelines, but remanded because
notice of a possible departure had not been given. Id. at 1193.
Neither Brady nor Williams held that notice was required
when a court imposes consecutive sentences in variance from
the Guidelines, however. Nor did those cases hold that the
imposition of consecutive sentences for multiple counts nec-
essarily entails a departure, rather than a variance, under the
Guidelines.5 In any event, both Brady and Williams must be
read today in light of the Court’s decisions in Booker and Iri-
zarry, which altered the sentencing landscape. Whatever the
earlier cases said about consecutive sentences imposed as a
“departure” under the then-binding Guidelines, they do not
require notice under Rule 32(h) when consecutive sentences
are imposed pursuant to a “variance” under § 3553(a).
In Evans-Martinez, we held that the Rule 32(h) notice
requirement survived Booker. Id. at 1167-68. Evans-Martinez,
4
Our decision to require such notice in Brady, however, was not based
on Burns or Rule 32(h). Brady predated both the Supreme Court’s deci-
sion in Burns and the subsequent incorporation of that decision into Rule
32(h).
5
When we referred to the sentence in Brady as a “drastic departure from
the Guidelines,” id. at 850, we did not use the word “departure” in the
technical sense of a “change from the final sentencing range computed by
examining the provisions of the Guidelines themselves.” Cruz-Perez, 567
F.3d at 1146. We held that the consecutive sentences were inappropriate
under the Guidelines, so they were in fact neither a departure nor a vari-
ance.
UNITED STATES v. RANGEL 8359
however, did not extend the Rule 32(h) notice requirement to
variances under § 3553(a). In fact, we explicitly held that our
decision applied only to departures:
Irizarry does not control the result in this case
because the district court here did not sentence at
variance from the recommended Guidelines range
based on Section 3553(a) factors, but departed as the
term was used when Rule 32(h) was promulgated.
530 F.3d at 1169.6
[4] A district court has the discretion to determine whether
to impose multiple sentences concurrently or consecutively
under 18 U.S.C. § 3584(a). In making this determination, the
court “shall consider, as to each offense for which a term of
imprisonment is being imposed, the factors set forth in section
3553(a).” 18 U.S.C. § 3584(b). That is precisely what the dis-
trict court did in this case. The court was explicit in relying
on § 3553(a) factors in imposing a higher sentence, with con-
secutive terms, on Rangel. The district court made no mention
of any departure within the Sentencing Guidelines in setting
the two terms to run concurrently. Because the district court
explicitly relied on § 3553(a) variance factors in determining
6
Rangel also cites to United States v. Hahn, 557 F.3d 1099 (9th Cir.
2009) for support. This case is unhelpful as the district court was explicit
that its imposition of a federal sentence to run consecutive to a state sen-
tence was a departure from U.S.S.G. § 5G1.3(b), and thus required notice
under Rule 32(h). Id. at 1101. Further, the parties in Hahn did not dispute
that § 5G1.3(b) applied, that the imposition of consecutive sentences
where § 5G1.3(b) applies was a departure, and that notice was required.
Id. at 1102. Our decision in United States v. Folaumahina, 293 F. App’x
523 (9th Cir. 2008) (unpublished), similarly provides no support for Ran-
gel’s argument as “[t]he district court clearly characterized its sentence as
an upward departure from the Guideline range,” despite the fact that it had
provided no notice pursuant to Rule 32(h). Id. at 524.
8360 UNITED STATES v. RANGEL
to run the two sentences consecutively, no notice was required
under Rule 32(h), which applies only to departures.7
B. Inability to Pay Restitution
Rangel argues that the district court erred in considering his
inability to pay restitution to his victims in determining his
sentence. We conclude that the court did not abuse its discre-
tion in considering the serious financial impact Rangel’s
crimes had on his victims, including the fact that they were
unlikely to ever receive any compensatory payments from
Rangel.
[5] A court may not impose a longer prison term as a sub-
stitute for a monetary penalty or as punishment for poverty
and indigence. See Williams v. Illinois, 399 U.S. 235, 240-42
(1970) (holding that an individual may not be held in contin-
ued confinement beyond the statutory maximum because of
his failure to pay a fine); Tate v. Short, 401 U.S. 395, 398-99
(1971) (holding unconstitutional the imposition of a jail sen-
tence for a “fines only” offense where the defendant was
unable to pay a fine); Bearden v. Georgia, 461 U.S. 660, 661-
62 (1983) (holding that a sentencing court could not revoke
probation for failure to pay a fine and make restitution absent
findings that the defendant had not made sufficient bona fide
efforts to pay or that alternative forms of punishment would
be inadequate).
[6] A sentencing court is empowered to consider whether
the victims will receive restitution from the defendant in vary-
7
Rangel and the government disagree as to the appropriate standard of
review regarding his challenge to the failure to give notice under Rule
32(h). Rangel argues that he objected to the imposition of consecutive sen-
tences and so the appropriate standard is abuse of discretion. In contrast,
the government maintains that because Rangel did not specifically object
to the lack of notice, the standard of review is plain error. We need not
settle this dispute because even if we accept Rangel’s standard, the district
court did not abuse its discretion by failing to give notice.
UNITED STATES v. RANGEL 8361
ing from the Sentencing Guidelines based on § 3553(a) fac-
tors, however. Following Booker, we held that district courts,
employing factors listed under § 3553(a), “have the discretion
to weigh a multitude of mitigating and aggravating factors
that existed at the time of mandatory Guidelines sentencing,
but were deemed not ordinarily relevant, such as age, educa-
tion and vocational skills, mental and emotional conditions,
employment record and family ties and responsibilities.”
United States v. Menyweather, 447 F.3d 625, 634 (9th Cir.
2006) (en banc) (quoting United States v. Ameline, 409 F.3d
1073, 1093 (9th Cir. 2005) (en banc) (Wardlaw, J., concurring
in part and dissenting in part) (internal quotation marks omit-
ted and emphasis removed)), overruled on other grounds as
recognized by United States v. Munoz-Camarena, 621 F.3d
967, 969 (9th Cir. 2010). Further, we observed that “the dis-
trict court’s goal of obtaining restitution for the victims of
Defendant’s offense, 18 U.S.C. § 3553(a)(7), is better served
by a non-incarcerated and employed defendant.” Id.Rangel primarily relies on United States v. Burgum, 633
F.3d 810 (9th Cir. 2011), to support his position that a court
may not consider restitution at all in imposing a longer sen-
tence than that recommended by the Guidelines. In Burgum,
the district court at sentencing noted that the defendant was
unlikely to be able to pay the ordered restitution, and consid-
ered this “one additional aggravating factor.” Id. at 814. We
vacated the sentence and remanded after concluding that the
district court “plainly err[ed] by treating Burgum’s inability to
pay restitution as an aggravating sentencing factor.” Id. But
Burgum did not hold that there is an absolute bar to consider-
ing the possibility of restitution. Our concern in that case was
that treating defendants who could not pay restitution as more
culpable than those who could would result in discrimination
against poor and indigent defendants. Id. at 816 (“[W]e have
made clear that class and wealth distinctions . . . have no
place in criminal sentencing.” (alteration in original) (internal
quotation marks omitted)).
8362 UNITED STATES v. RANGEL
[7] The district court in this case did not consider Rangel’s
inability to pay restitution itself as an aggravating factor in
imposing a longer sentence, but focused instead on the impact
on the victims of Rangel’s crimes. Because Rangel was not
expected to make restitution payments, the impact on the vic-
tims stood unmitigated. During the sentencing hearing, the
district court noted that “one of the factors for the Court to
consider under 3553 is restitution to the victims.” Continuing
in this vein, the court repeatedly referred to the financial ruin
that Rangel caused his victims, and the length of time it would
take them to recover their losses. The court’s discussion made
clear that its concern over restitution was based on the impact
Rangel’s crime had on the victims and was not designed to
punish Rangel for his inability to pay. At the end of the sen-
tencing hearing, the court responded to Rangel’s objection by
reiterating that the sentence was based not on Rangel’s inabil-
ity to pay restitution but on “all of the harm and trauma that
has befallen the [victims of the crimes].” Consideration of the
unmitigated impact on the victims was appropriate.
C. Other Sentencing Issues
Rangel raises a number of other challenges to his sentence,
none of which are persuasive.
[8] First, Rangel argues that the district court judge should
have recused himself due to bias and prejudice. Where recusal
was not requested in the district court, as is the case here,
judicial bias claims are reviewed for plain error. See United
States v. Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991). A
“judge’s conduct during the proceedings should not, except in
the ‘rarest of circumstances’ form the sole basis for recusal.”
United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
At the sentencing hearing, the district court judge voiced sym-
pathy for the victims, noting his own family’s immigrant his-
tory and connection with the neighborhood targeted by
Rangel’s fraud. Rangel argues that this statement made clear
UNITED STATES v. RANGEL 8363
that the judge had “a strong emotional connection to the
case,” and so his impartiality might reasonably be questioned.
This argument has no merit. The district court judge made this
statement after hearing numerous victims recount the finan-
cial and emotional hardship they faced as a result of Rangel’s
crimes. Expressing sympathy for the victims’ plight, with
general references to the “American dream,” in no way
implies that the district court judge could not and did not
impartially impose a sentence.
Second, Rangel argues that the government breached the
plea agreement by providing photographs of his home during
the sentencing. Where a defendant fails to raise an alleged
breach of a plea agreement in the district court, such a claim
is waived on appeal. United States v. Flores-Payon, 942 F.2d
556, 560 (9th Cir. 1991).8 An appellate court is generally ill-
equipped to review such a claim in the first instance.
Third, Rangel argues that the district court committed a
procedural error in failing to adequately address all of the
arguments he offered to the court for reducing his sentence
based on § 3553(a) factors. As Rangel did not object to his
sentence on this ground prior to this appeal, the standard of
review is for plain error. See United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). Following
Booker, a sentencing court must consider the sentences sug-
gested by the parties after determining the applicable Guide-
8
An appellate court may review issues not raised before the district
court only under narrow exceptions:
(1) there are ‘exceptional circumstances’ why the issue was not
raised in the trial court, (2) the new issue arises while the appeal
is pending because of a change in the law, or (3) the issue pre-
sented is purely one of law and the opposing party will suffer no
prejudice as a result of the failure to raise the issue in the trial
court.
Flores-Payon, 942 F.2d at 558 (quoting United States v. Carlson, 900 F.2d
1346, 1349 (9th Cir. 1990)). None of these exceptions apply here.
8364 UNITED STATES v. RANGEL
lines range. Carty, 520 F.3d at 991. In doing so, the court
should decide if the § 3553(a) factors support the suggested
sentence:
[I]t should consider the nature and circumstances of
the offense and the history and characteristics of the
defendant; the need for the sentence imposed; the
kinds of sentences available; the kinds of sentence
and the sentencing range established in the Guide-
lines; any pertinent policy statement issued by the
Sentencing Commission; the need to avoid unwar-
ranted sentence disparities among defendants with
similar records who have been found guilty of simi-
lar conduct; and the need to provide restitution to
any victims.
Id. “Once the sentence is selected, the district court must
explain it sufficiently to permit meaningful appellate review.
. . . An explanation communicates that the parties’ arguments
have been heard, and that a reasoned decision has been
made.” Id. at 992. What constitutes a sufficient explanation
necessarily depends on the context of the specific case. Id. A
“district court need not tick off each of the § 3553(a) factors
to show that it has considered them.” Id. The appellate court
can “assume that district judges know the law and understand
their obligations to consider all of the § 3553(a) factors, not
just the Guidelines.” Id. But “when a party raises a specific,
nonfrivolous argument tethered to a relevant § 3553(a) factor
in support of a requested sentence, then the judge should nor-
mally explain why he accepts or rejects the party’s position.”
Id. at 992-93. Rangel argues that the court did not consider all
of his “specific, nonfrivolous” arguments “tethered to a rele-
vant § 3553(a) factor” in support of his suggested sentence of
180 months. In particular, he argues that the court committed
procedural error by not considering the restrictive nature of
his pretrial confinement, the collateral consequences of depor-
tation, the impact his status as a non-citizen would have on his
eligibility for various prison programs, and the time and
UNITED STATES v. RANGEL 8365
resources he saved the government by quickly resolving his
case through a guilty plea. Although Rangel acknowledges
that the district court mentioned each of these arguments, he
maintains that the court “did not show enough of its work.”
We disagree.
Rangel relies heavily on United States v. Bragg, 582 F.3d
965 (9th Cir. 2009), but this case is distinguishable for several
reasons. First, the standard of review in Bragg was abuse of
discretion, not the more deferential plain error standard of
review here. See id. at 968. Second, the court noted that the
district court had relied heavily on a scant evidentiary record
to reduce Bragg’s sentence below the Guidelines range. Id. at
968-69. The record here was considerably more substantial.
Third, the district court in Bragg had ignored specific
§ 3553(a) factors. See id. at 969-70. Rangel has not tethered
his arguments for a downward variance to any specific fac-
tors.
[9] As Rita and Carty have made clear, reversal is not jus-
tified where the court reviews and listens to the defendant’s
arguments, states that it has reviewed the criteria set forth in
§ 3553(a), and then imposes a sentence, explaining both the
sentence and the justification for the decision. See Rita, 551
U.S. at 357-58; Carty, 520 F.3d at 995-96. Context is impor-
tant, and it is often unnecessary for the district court to pro-
vide a lengthy explanation and directly address each and
every one of the defendant’s arguments. See Rita, 551 U.S. at
358 (noting that the record and context make clear that the
judge “considered the evidence and arguments”); Carty, 520
F.3d at 995 (holding adequate the district court’s statements
indicating that it had heard from the defense’s witnesses and
counsel); see also United States v. Carter, 560 F.3d 1107,
1117-18 (9th Cir. 2009) (rejecting the defendant’s argument
that the sentencing court did not adequately address his “com-
plex” arguments and noting that the district court had no obli-
gation to engage the defendant in questions or further
discussion “because it is clear from the context that the
8366 UNITED STATES v. RANGEL
defense’s arguments were heard”). This is especially true in
a case such as this, where our review is for plain error only.
See Valencia-Barragan, 608 F.3d at 1108. The district court
here met its obligations to consider fully Rangel’s arguments
regarding § 3553(a) factors. No plain error occurred.
[10] Fourth, Rangel argues that his sentence was not sub-
stantively reasonable. In determining substantive reasonable-
ness, this court is “to consider the totality of the
circumstances, including the degree of variance for a sentence
imposed outside the Guidelines range. A court of appeals may
not presume that a non-Guidelines sentence is unreasonable.”
Carty, 520 F.3d at 993 (internal citations omitted). The dis-
trict court is to be given “due deference” that the § 3553(a)
factors, as a whole, justify the extent of the variance for a
non-Guidelines sentence. Id. “We may not reverse just
because we think a different sentence is appropriate.” Id. The
district court spent significant time in the sentencing hearing
reviewing and discussing § 3553(a) factors before announcing
its sentence. As discussed above, the court adequately consid-
ered Rangel’s § 3553(a) arguments for a lighter sentence. The
district court did not abuse its discretion in sentencing Rangel
to 264 months in custody.
Finally, Rangel argues that his sentence is procedurally and
substantively unreasonable because the court considered an
impermissible factor—his inability to speak English. This
argument has no merit. Rangel attempts to use a single state-
ment made by the district court judge doubting that Rangel
really needed an interpreter. No evidence exists that the dis-
trict court relied on Rangel’s inability to speak English as a
factor in determining his sentence. Rather, the court obviously
thought that he did speak English, but deferred to his request
for a translator anyway.
AFFIRMED.