United States v. Mingo Flores

MURPHY, Circuit Judge.

Mingo Flores pled guilty to possessing with intent to distribute approximately 391 grams of lysergic acid diethylamide (LSD), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The district court¹ sentenced him to 285 months after departing upward from the sentencing guidelines. Flores appeals his sentence, and we affirm.

On April 28, 2001, Flores shot a man named Steve Huerta, who was one of his drug suppliers and who was also romantically involved with his sister, Vicki Flores. While Mingo Flores was riding in a car, he saw Steve and Vicki arguing in an alley in Mason City, Iowa. After the car stopped and Flores got out, Vicki told him to shoot Huerta. Flores pulled out a .45 caliber handgun and fired five times at Huerta, hitting him twice in the legs. Huerta was taken to the hospital and survived. Flores was 17 years old at the time of the attack.

The police investigating the incident received two anonymous reports which identified Flores as the shooter, and they obtained a search warrant for the apartment where he was living. The officers arrested Flores at his apartment for attempted murder and then conducted a search, during which they found 81 sugar cubes laced with 391 grams of LSD and one half milliliter of liquid LSD. They also seized drug notes, drug related paraphernalia, and a digital scale.

Flores pled guilty to the federal charge of possessing with intent to distribute approximately 391 grams of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). A state charge of attempted murder was dropped when Flores agreed that he would plead guilty to a reduced charge of terrorism after his federal sentencing.

On September 10, 2002, Flores came before the district court for sentencing. The court increased his offense level under the guidelines by two levels under § 2Dl.l(b)(l) for possession of a dangerous weapon. See United States Sentencing Commission, Guidelines Manual, § 2Dl.l(b)(l) (Nov.2001) [USSG]. The court then reduced his offense level by three for acceptance of responsibility under USSG § 3E1.1 and calculated his adjusted offense level to be 25. The presen-tence investigation report (PSR), to which Flores made no substantive objection, determined that he was in criminal history category IV. This called for a statutory 10 year minimum sentence. See 18 U.S.C. 841(b)(1)(A); USSG Ch.5, Pt. A.

The court found, however, that criminal history category TV did not adequately reflect the seriousness of Flores’ past criminal conduct or the likelihood that he would commit future crimes. The court stated that even though he was only 18 years old at the time of sentencing, Flores’ criminal history, which began at age seven, was “one of the more extensive and violent ... that [it had] seen in the nearly 700 criminal defendants sentenced.” United States v. Flores, 223 F.Supp.2d 1016, 1018 (N.D.Iowa 2002).²

The district court decided to depart upward under USSG § 4A1.3 to criminal history category VI, which provides a sentencing range of 110 to 137 months for offense level 25. USSG Ch.5,' Pt.A. Since this range was still inadequate, it departed further to offense level 31, which at criminal history category VI results in a range of 188 to 235 months.³ Id. The court noted that if Flores had been 18 at the time of the drug offense and had pled guilty to the state charge before the sentencing in this case, he would have been deemed a career criminal under the guidelines. That would have meant a guidelines range of 262 to 327 months. See id.; id. § 4B1.1. Flores was then sentenced to 235 months. On appeal, Flores contends that the court erred in departing upward and that it imposed an unreasonable sentence.

Congress has recently modified the standard of review for departures from the sentencing guidelines. See PROTECT Act, Pub.L. No. 108-21, § 401(d), 117 Stat. 650 (2003) (amending 18 U.S.C. § 3742(e)).⁴ Whether the district court based a departure on a permissible factor and whether it provided the written statement of reasons now required for a departure is to be reviewed de novo.⁵ § 3742(e). A sentencing court’s factual findings are still reviewable for clear error and the reasonableness of a permissible departure for abuse of discretion. Id.

A factor is a permissible basis for departure if it “advances the objectives set forth in [18 U.S.C. § ] 3553(a)(2),” “is authorized under [18 U.S.C. § ] 3553(b),” and “is justified by the facts of the case.” 18 U.S.C. § 3742(j)(l). In this case, the district court identified as factors supporting an upward departure the failure of Flores’ criminal history category to reflect adequately the seriousness of his past criminal conduct and his potential to recidivate. For several reasons, we conclude that these factors are permissible grounds for upward departure in this ease.

By taking account of the seriousness of Flores’ past criminal conduct and his potential for recidivism, the district court advanced the statutory sentencing objectives of “affording] adequate deterrence to criminal conduct,” § 3553(a)(2)(B), and “protectfing] the public from further crimes of the defendant,” § 3553(a)(2)(C). As the guidelines explain, “[gjeneral deterrence of criminal conduct dictates that ... repeated criminal behavior ... aggravate the need for punishment,” USSG Ch.4, Pt.A intro, comment., and keeping a likely recidivist incarcerated clearly protects the public. Furthermore, § 3553(b)(1) authorizes a court to depart based on a factor that was “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” By explicitly authorizing departures under USSG § 4A1.3, the Commission has acknowledged that it could not adequately account for all circumstances that might arise in individual cases such as where “reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” USSG § 4A1.3, p.s.; see also id. Ch.l, Pt.A intro, comment. 4(b). The factors relied on by the district court were thus specifically authorized by § 4A1.3 and 18 U.S.C. § 3553(b).

Moreover, the facts of the case indicate that Flores was not a typical category IV offender. There was no substantive objection to the facts contained in the PSR, and they provide reliable information indicating that the calculation of Flores’ criminal history category omits much of his past criminal conduct and does not reflect the likelihood that he would victimize others in the future if not deterred. It did not take into account serious conduct for which he was arrested, but either not formally charged or convicted. This includes the manufacture of two homemade bombs, several violent assaults, and acts of burglary and theft. Even the shooting of Huerta is not reflected in his criminal history score because Flores was allowed to proceed with this federal sentencing before he pled to the state charge. Other incidents of juvenile criminal behavior were also not reflected in his criminal history because of the manner in which they were handled and the five year limitation on counting juvenile sentences under USSG § 4A1.2(d). Several thefts, a weapons charge, and a disorderly conduct were dealt with through informal dispositions or warnings that did not result in sentences includible in a criminal history score calculation. The guidelines indicate that an upward departure under § 4A1.3 is especially appropriate “in the case of younger defendants ... who are more likely to have received repeated lenient treatment, yet who may actually pose a greater risk of serious recidivism than older defendants.” USSG § 4A1.3 comment.

We conclude that because of Flores’ extensive history of wrongdoing and his inability to reform despite the leniency frequently afforded him, his criminal history category “does not adequately reflect the seriousness of the [his] past criminal conduct or the likelihood that the [he] will commit other crimes,” USSG § 4A1.3, and that an upward departure “is justified by the facts of th[is] case,” 18 U.S.C. § 3742(j)(1)(C); cf. United States v. Vagenas, 318 F.3d 819, 821 (8th Cir.2003) (§ 4A1.3 upward departure appropriate “where there is evidence of obvious incorrigibility” (internal quotation marks omitted)). The district court did not therefore err in departing upward based on the inadequacy of Flores’ criminal history category.

Flores argues that even if a departure were permissible, an upward departure of 115 months beyond the 120 month mandatory minimum sentence is unreasonable. Flores’ criminal history is a record of frequent and often violent criminal behavior that culminated in the sudden shooting of Steve Huerta. His repeated encounters with the criminal justice system have proved incapable of deterring him from further illegal activity. The guidelines explain that when sentencing offenders with records of past criminal conduct, a court must consider the need to “protect the public from further crimes of the ... defendant,” USSG Ch.4, Pt.A, intro. comment., and to send “a clear message ... to society that repeated criminal behavior will aggravate the need for punishment with each recurrence,” id. In light of these considerations and based on this record, we cannot conclude that the court abused its discretion by the extent of its departure.

Flores also suggests that it was inappropriate for the district court to consider that he almost qualified for career offender status, but the court only used the career offender range as an indicator of a reasonable sentence for someone with a criminal history as extensive as his. The sentence imposed by the district court was 27 months less than the minimum sentence that would have applied to Flores as a career offender, and the district court did not abuse its discretion with respect to the reasonableness of the sentence.⁶

For these reasons, we affirm the judgment of the district court.

1 . The Honorable Mark W. Bennett, Chief Judge, United States District Court for the Northern District of Iowa.

2 . The PSR reveals that Flores has been arrested on more than 25 criminal charges. The district court adopted the following summary of Flores' criminal history in its sentencing memorandum:

The defendant has a significant juvenile record involving three adjudications [of delinquent] for assault with dangerous weapons (brandishing a knife), assault, refusing to obey a lawful order, theft — fourth degree, interference with official acts, possession of marijuana, and public intoxication. He had two juvenile cases (carrying weapons and attempted third degree burglary) waived to adult court. The carrying weapons offense involved threatening a person with a .30 caliber handgun. The defendant also had prior juvenile dispositions for theft — fifth degree (three separate cases), carrying a concealed weapon (a butterfly knife), and disorderly conduct. Furthermore, he has other arrests for criminal mischief — fourth degree (two arrests), burglary — third degree, serious assault (two arrests), making homemade explosives, threats with weapons, theft' — second degree, theft from vehicles, harassment, public intoxication, and attempted murder as well as two status offenses.

Flores, at 1018.

3 .The court stated that the departure to offense level 31 could be based on either § 4A1.3 or § 5K2.0 of the guidelines. See § 4A1.3, p.s. (If "the guideline range for Criminal History Category VI is not adequate .... a departure above the guideline range ... may be warranted .... [and] should [be] structured] ... by moving incrementally down the sentencing table to the next higher offense level ... until [the court] finds a guideline range appropriate to the case.”). Because we decide that the departure is permissible under § 4A1.3, we do not consider the court's invocation of § 5K2.0.

4 . When asked at oral argument about the PROTECT Act’s passage on April 30, 2003 and its modified standard of review, neither party disagreed with application of that standard to this case or raised any issue of retro-activity. We assume without deciding that the new standard of review applies, but we would also affirm under the previous more deferential standard.

5 . Under 18 U.S.C. § 3553(c)(2), as amended by § 401(c) of the PROTECT Act, if a district court departs from the guideline range, its "reasons [for departing] •• must ... be stated with specificity in .the written order of judgment and commitment.” § 3553(c)(2). Here the district court attached a brief written statement to the order of judgment but presented a more detailed discussion of its reasons for departing in a memorandum opinion issued relating to the judgment. Neither party has challenged the sufficiency of the district court’s written statement in this case.

6 . We also reject the argument that the district court's departure was an impermissible effort to punish Flores for the Huerta shooting which had not yet resulted in a conviction. We have carefully reviewed the record and the district court's thorough memorandum opinion, and we cannot say that the court erred in taking note of the shooting. So long as previous criminal conduct is shown by "reliable information,” it may be considered by a sentencing court even in the absence of conviction. USSG § 4A1.3, p.s.; accord United States v. Joshua, 40 F.3d 948, 953 (8th Cir.1994). In this case, the uncontested facts in the PSR establish that Flores shot Huerta.