United States v. Montes-Nunez

United States Court of Appeals
Fifth Circuit
F I L E D
November 21, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_________________________________
No. 04-50581
_________________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN PABLO MONTES-NUNEZ
Defendant-Appellant
_________________________________
Appeal from the United States District Court
for the Western District of Texas
(No. DR-03-CR-833)
_________________________________
Before BARKSDALE and CLEMENT, Circuit Judges, and ENGELHARDT, District Judge.*
KURT D. ENGELHARDT, District Judge:**
Juan Pablo Montes-Nunez pled guilty to, and was convicted of, a charge of illegally
re-entering the United States in violation of 8 U.S.C. §1326. Because Montes-Nunez had been
deported after a prior felony conviction for a crime of violence, 16 levels were added to his base
offense level in calculating the applicable imprisonment range under the United States Sentencing
Guidelines (the “Guidelines”). Montes-Nunez argues that, if not bound to apply the Guidelines, the
*
District Judge for the Eastern District of Louisiana, sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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district court would have imposed less than the 77 months imprisonment to which he was sentenced.
Because his prior conviction was not alleged in the indictment, Montes-Nunez additionally argues,
to preserve the issue for review by the United States Supreme Court, that his sentence violates the
constitutional principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). Having carefully
reviewed the record and the parties' submissions, pursuant to United States v. Booker, 125 S. Ct. 738(2005), we vacate the sentence imposed and remand for re-sentencing. Given binding circuit
precedent, we find no Apprendi error and, thus, affirm that portion of the district court's ruling.
FACTS AND PROCEEDINGS
Prior to being removed from the United States in 2003, Montes-Nunez was convicted
of burglary of a habitation. In November 2003, he attempted to re-enter the United States without
the permission of the Attorney General or the Secretary of Homeland Security. For that conduct, he
was indicted on December 10, 2003, on a charge of illegally re-entering the United States in violation
of 8 U.S.C. §1326. He pled guilty, without a plea agreement, on February 17, 2004.
Because Montes-Nunez was deported after a felony conviction for a crime of violence,
16 levels were added to his base offense level of 8. With a three-level acceptance of responsibility
reduction, his total offense level was 21. His criminal history category was determined, over his
objection, to be VI. The resulting sentencing range under the Guidelines was 77 to 96 months of
imprisonment. The district judge sentenced Montes-Nunez, on June 7, 2004, to a prison term of 77
months, which was to "run consecutive[ly] to any other sentence." The district judge additionally
“[found] no reason to depart from the sentence called for by the application of the guidelines
inasmuch as the facts found [are] the kind contemplated by the sentencing commission.”
At sentencing, Montes-Nunez's lawyer objected to the calculation of his criminal
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history, arguing that three prior convictions were related and should be treated as one. The district
court overruled the objection, stating that "what you are basically asking me to do is to reward your
client because he couldn't keep his nose clean while out on bond." Rejecting the notion that the
Guidelines would allow the three convictions to be treated as having been "functionally consolidated"
in state court, the district judge explained that, to allow otherwise, would "reward[] recidivists for
committing crimes while under supervision."
When the Court overruled the objection, Montes-Nunez's lawyer argued that even a
sentencing range of 70-87 months, which would apply if the objection were sustained, would be "a
lot of time simply for coming across the river." He accordingly urged the district court to "make the
sentence fit the gravity of the crime." The exchange between defense counsel and the district judge
continued as follows:
Mr. Newsome: . . . [H]e didn't come over here with a machine gun. He wasn't
robbing. He wasn't killing.
The Court: I understand, Mr. Newsome. I understand what you are
saying.
Mr. Newsome: He just crossed the political boundary.
The Court: I understand. But the problem is that Congress has said that
crossing the political boundary when you are a convicted
criminal alien is going to be a serious offense.
Mr. Newsome: I understand that, Your Honor. But thi s Court also has
certainly the power and also is in a position to do justice here.
And to make the sentence fit the gravity of the crime.
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The Court: I am not going to do it by perverting the guidelines because
the sentence is very high for coming over illegally. I agree
with you. This is an excessive sentence any way you cut it.
However, it is not within my power to ignore the guidelines or
the law just because I don't agree with the guideline ranges.
Mr. Newsome: Well, I do agree that the sentence range here would be
excessive. And I am basically presenting a technical argument
to the Court that ameloriates the severe effect of the
sentencing range and –
The Court: I understand, Mr. Newsome.
Mr. Newsome: I think there is a good argument that can be made that the
guidelines could be applied in that way.
The Court: But I would – what I would be doing is, I would be
misapplying the guidelines. And that's what gives rise to the
Protect [sic] and the Patriot Act. This is a misapplication of
the guidelines to these laws. That’s what is making Congress
very angry about the courts. And that's why they are
tightening it up. I would suggest, make this argument to
Congress, see if t hey will change the laws. And I would
support you in your request in terms of Congress.
However, I am not going to misapply the guidelines and get
around the intent of Congress because I don't agree with the
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sentencing range. And I think that they are personally
excessive. I agree with you. They are excessive.
ANALYSIS
I. Did the District Court commit plain error, under United States v. Booker, in sentencing
Montes-Nunez based on a mandatory application of the Sentencing Guidelines?
Citing the Supreme Court's recent decision in United States v. Booker, 125 S. Ct. 738(2005), Montes-Nunez asserts that Fanfan error occurred. In other words, he challenges his sentence
on the basis that it was imposed pursuant to mandatory sentencing guidelines. See United States v.
Walters, 418 F.3d 461, 463 (5th Cir. 2005) (differentiating between Booker error and Fanfan error).
Because Montes-Nunez did not offer this objection in the court below, this court
reviews it pursuant to the plain error standard. United States v. Martinez-Lugo, 411 F.3d 597, 600
(5th Cir. 2005). Under that standard, we can afford relief to Montes-Nunez only if: (1) error has
occurred; (2) the error is plain; and (3) the error affects substantial rights. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005) (quoting United States v. Cotton, 535 U.S.
625, 631 (2002) (citation and internal quotation marks omitted)). If the three conditions are met, this
court "may then exercise its discretion to notice a forfeited error but only if [it] seriously affects the
fairness, integrity, or public reputation of judicial proceedings." Id. (quoting Cotton, 535 U.S. at 631(citation and internal quotation marks omitted)). “Substantial rights” are sufficiently impacted if the
error "affected the outcome of the district court proceedings." Valenzuela-Quevedo, 407 F.3d at 733(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
The Government concedes that the district court's treatment of the Guidelines as
mandatory constitutes Fanfan error and that the error is plain. It disagrees, however, that the error
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affects Montes-Nunez's substantial rights and that it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Specifically, the Government contends that Montes-Nunez has
not borne his burden of demonstrating that the district court would have imposed a lower sentence
if the Guidelines were understood to be advisory rather than mandatory.
Opinions from this court offering discussion of this issue have focused primarily on
two considerations. United States v. Rodriguez-Gutierrez, – F.3d – , No. 04-30451, 2005 WL
2447908, at *1 (5th Cir. Oct. 5, 2005). The first is whether the judge’s statements at sentencing
indicated that he or she would have imposed a lesser sentence had he or she not treated the Guidelines
as mandatory. Id. The second consideration is the relationship between the actual sentence imposed
and the range of sentences provided by the Guidelines. Id. Although not always determinative, a
sentence imposed at the minimum of the Guidelines range, when considered together with relevant
statements by the sentencing judge indicating disagreement with the sentence imposed, is highly
probative of whether a lesser sentence would have been imposed under advisory Guidelines. Id. at
*3.
Our analysis in this matter is guided by this court’s recent decisions in United States
v. Garcia, 416 F.3d 440, 441 (5th Cir. 2005), United States v. Pennell, 409 F.3d 240, 245-46 (5th
Cir. 2005), and United States v. Bringier, 405 F.3d 310, 317-18 & n.4 (5th Cir.), cert. denied, –
U.S. –, 126 S. Ct. 264 (2005). In Bringier, the Court concluded that the sentencing judge’s
imposition of the minimum Guidelines sentence, and characterization of the sentence as “harsh,” were
not sufficient to satisfy the defendant’s plain error burden. Bringier, 405 F.3d at 318 n.4. In reaching
that determination, the court distinguished United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005),
in which the third prong of the plain error standard was satisfied. There, unlike in Bringier, the
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sentencing court several times expressed its view that the Guidelines sentence was “too severe,”
lamented the manner in which criminal history is calculated under the Guidelines, and stated that the
sentence imposed was “more than appropriate.” Bringier, 405 F.3d at 318 n.4 (discussing Shelton,
400 F.3d at 1332-33).
In Pennell, the court found significant the sentencing judge’s suggestion that “it might
be better to sentence based on actual loss [rather than intended loss].” Pennell, 409 F.3d at 245-46.
Taken with his statement that he felt “constrained” by the Guidelines (and the appellate courts’
interpretation of them) to overrule the defendant’s objection, this court found the defendant had
adequately demonstrated, under the plain error standard, that the district judge would have selected
a lower loss figure and, therefore, arrived at a lower sentence, if given the freedom to do so. Id. The
court reached this result notwithstanding its recognition that the district court “may not have
considered the sentence it imposed unjust.” Id. at 246.
The plain error standard likewise was found satisfied in Garcia. There, the defendant
was sentenced at the very bottom of the applicable Guidelines range. The sentencing judge also
explained that he would “prefer to sentence [the defendant] to a lesser sentence than required under
the guidelines.” Garcia, 416 F.3d at 441.
In the instant case, the district judge’s statements at sentencing, as set forth above,
demonstrate a probability that a lesser sentence would have been imposed under an advisory
Guidelines regime. This probability is “ ‘sufficient to undermine confidence in the outcome.’ ”
United States v. Mares, 402 F.3d 511, 521 (5th Cir.) (quoting United States v. Dominguez Benitez,
542 U.S. 74, 124 S. Ct. 2333, 2340 (2004)), cert. denied, – U.S. – , 126 S. Ct. 43 (2005). The
sentencing judge repeatedly stated that the applicable Guidelines range was, in her opinion, excessive,
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and that she did not agree with it. She further stated that she would support a request to Congress
that a change be made. At the same time, the district judge repeatedly emphasized that she was
bound by the Guidelines and would not resort to perverting their application, including the criminal
history calculation, to allow a lower sentence. She did, however, impose the minimum term of
imprisonment provided by the applicable Guidelines range.
The Government is correct that, although the district court imposed the minimum term
of imprisonment, she found no reason to depart from that range. That finding, however, does not
mean that the district court did not believe the applicable range otherwise excessive for this offense
and this defendant. Rather, it meant only that there were no facts in existence that were different
from the kind contemplated by the Sentencing Commission for this offense.
We likewise appreciate that the district judge emphasized Montes-Nunez’s criminal
history at sentencing, and ordered his sentence to run consecutive to any other sentence imposed.
Indeed, the district judge’s expressed concern for not “rewarding” a defendant who commits another
criminal offense while out on bond may have been a factor in her order that Montes-Nunez’s term
of imprisonment be consecutive to any other sentence imposed. While it is probable that this concern
likewise would have been a factor in the district judge’s selection of an appropriate prison sentence
under an advisory Guidelines regime, her other comments nonetheless sufficiently indicate that the
resulting sentence, even if consecutive, likely would have been less than that imposed under the
mandatory regime.
For the same reasons, the district court’s error in imposing a sentence under a
mandatory Guidelines regime seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Accordingly, Montes-Nunez’s case shall be remanded for re-sentencing.
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II. Is Montes-Nunez's sentence unconstitutional under Apprendi v. New Jersey because the
indictment did not allege his prior conviction?
A person convicted of a violation of 8 U.S.C. §1236(a) faces a statutory maximum
term of imprisonment of 2 years. See 8 U.S.C. §1326(a). When that person was removed after being
convicted of three or more prior misdemeanors, or an aggravated felony, however, higher penalties
may be imposed. See 8 U.S.C. §§1326(b)(1) (ten years) and 1326(b)(1) (twenty years). Because his
prior conviction was not alleged in the indictment, Montes-Nunez argues that his sentence of 77
months is unconstitutional under Apprendi. As Montes-Nunez concedes, however, this argument is
foreclosed by circuit precedent. See, e.g., United States v. Gutierrez-Ramirez, 405 F.3d 352, 359
(5th Cir. 2005); United States v. Sarmiento-Funes, 374 F.3d 336, 345-46 (5th Cir. 2004). He raises
it only to preserve the issue for Supreme Court review.
Unless and until the Supreme Court overrules Almendarez-Torres v. United States,
523 U.S. 224 (1998), this court is bound by and must apply it. See, e.g., United States v. Bonilla-
Mungia, 422 F.3d 316, 319-20 (5th Cir. 2005). Accordingly, we agree with the district court’s ruling
on this issue.
CONCLUSION
Regarding the first issue presented for review, Montes-Nunez has satisfied the plain
error standard in demonstrating a Fanfan error and, therefore, should be re-sentenced. The second
issue presented for review, concerning the impact of Apprendi on Almendarez-Torres, is foreclosed
by circuit precedent. Accordingly, although we AFFIRM the district court’s Apprendi ruling, we
VACATE Montes-Nunez’s sentence, and REMAND the case for re-sentencing.
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