U.S. v. Montes-Pineda

Page 375

445 F.3d 375

UNITED STATES of America, Plaintiff-Appellee, v. Benigno MONTES-PINEDA, a/k/a No. Benigno Pineda Muntez, a/k/a Benigno Montez-Pineda, a/k/a Benigno Pineda-Montes, Defendant-Appellant.

No. 05-4471.

United States Court of Appeals, Fourth Circuit.

Argued: March 17, 2006.

Decided: April 24, 2006.

ARGUED:

Frances Hemsley Pratt, Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Louis Joseph Ruffino, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF:

Frank W. Dunham, Jr., Federal Public Defender, Suzanne Little, Assistant Federal Public Defender, Alexandria, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Gene Rossi, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WILKINSON and Judge MICHAEL joined.

OPINION

MOTZ, Circuit Judge:

Benigno Montes-Pineda pleaded guilty to unlawful reentry after deportation following an aggravated felony conviction. The district court sentenced him to 46 months imprisonment, a term within the properly calculated advisory Guidelines range. Montes-Pineda challenges this sentence as unreasonable. The Government contends that we lack jurisdiction to consider this appeal and, in the alternative, that the sentence is reasonable. As explained below, we hold that we have jurisdiction, but that Montes-Pineda's sentence is not unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Accordingly, we deny the Government's motion to dismiss and affirm the judgment of the district court.

I.

The parties have stipulated to all of the relevant facts. Montes-Pineda, a native and citizen of Honduras, has been deported from the United States at least three times prior to his current conviction: on July 19, 1989; on April 14, 1992; and on October 5, 1992. His April 1992 deportation resulted from a 1991 conviction for trafficking in cocaine, an offense that qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) (2000). In November 2004, Montes-Pineda was convicted of driving while intoxicated in Virginia. Upon realizing that Montes-Pineda was a previously deported alien, federal prosecutors charged him with unlawful reentry after deportation following an aggravated felony conviction, in violation of 8 U.S.C. § 1326 (2000). Montes-Pineda pleaded guilty to the offense.

The United States Probation Office submitted a presentence investigation report (PSR) to the district court and the parties. In that report the probation officer — applying U.S.S.G. § 2L1.2(a) and (b)(1)(A)(i) (2004) — calculated that Montes-Pineda's base offense level was 8 and then added 16 levels for a total offense level of 24. Deducting three levels for acceptance of responsibility, and applying a criminal history category of III, the probation officer determined that Montes-Pineda's advisory Guidelines sentencing range was 46 to 57 months.

Both the Government and Montes-Pineda agreed to all of the facts in the PSR and to the probation officer's calculation of the Guidelines range. However, Montes-Pineda "urge[d] [the district court] to find a non-guideline sentence appropriate in this case" and suggested that a sentence of 24 months would be appropriate. Noting the need for "punishment and deterrence" and Montes-Pineda's "criminal history," which the court found "disturb[ing]," the district court rejected that suggestion and sentenced Montes-Pineda to 46 months in prison. Montes-Pineda filed a timely appeal.

II.

The Government initially contends that we must dismiss this appeal for lack of jurisdiction. Montes-Pineda counters that we have jurisdiction under 18 U.S.C.A. § 3742 (West Supp.2005). That statute provides, inter alia, that defendants may appeal sentences "imposed in violation of law." 18 U.S.C.A. § 3742(a)(1). The Government argues that since Montes-Pineda's sentence is within a properly calculated Guidelines range, it cannot have been "imposed in violation of law." We disagree.

First, the Supreme Court at least implicitly rejected this jurisdictional argument in Booker, explaining that "the [Sentencing Reform] Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))." 543 U.S. at 260, 125 S.Ct. 738 (Breyer, J., opinion for the Court). Unsurprisingly, in light of this language, every court of appeals to consider this question has held that it has jurisdiction to review sentences within a properly calculated Guidelines range. See United States v. Jimenez-Beltre, 440 F.3d 514, 517 (1st Cir.2006) (en banc); United States v. Cooper, 437 F.3d 324, 328 & n. 5 (3d Cir.2006); United States v. Martinez, 434 F.3d 1318, 1321 (11th Cir.2006); United States v. Mickelson, 433 F.3d 1050, 1052 (8th Cir.2006).

In addition to being foreclosed by precedent, the Government's argument also relies upon a faulty premise: that all sentences within a properly calculated Guidelines range are necessarily lawful. Other courts of appeals have also rejected this premise. See, e.g., United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); United States v. Talley, 431 F.3d 784, 786-87 (11th Cir.2005); United States v. Cunningham, 429 F.3d 673, 675 (7th Cir.2005); United States v. Webb, 403 F.3d 373, 385 n. 9 (6th Cir.2005); United States v. Crosby, 397 F.3d 103, 115 (2d Cir.2005). We must do the same, because Congress has directed in 18 U.S.C.A. § 3553(a) (West Supp.2005) that the applicable Guidelines range is only one factor that sentencing courts must consider in imposing a proper sentence. Booker, 543 U.S. at 259-60, 125 S.Ct. 738. Holding that a sentence within a properly calculated Guidelines range is automatically lawful would render superfluous the other § 3553(a) factors and so contravene the statute's mandatory language. See 18 U.S.C.A. § 3553(a) ("The court, in determining the particular sentence to be imposed, shall consider . . . ." (emphasis added)).

Alternatively, the Government contends that even if a within-Guidelines sentence might at times be unlawful, such a sentence cannot be unlawful simply because it is unreasonable. According to the Government, reasonableness is merely the standard of review on appeal and plays no part in the district court's determination of an appropriate sentence. The Government argues that a sentence's unlawfulness — at least for purposes of appellate review under § 3742(a)(1) — stems not from its unreasonableness but rather from other factors, such as an erroneous Guidelines calculation or the Sixth Amendment violation in Booker. Since Montes-Pineda has only alleged that his within-Guidelines sentence is unreasonable, and not that it is unlawful for any other reason, the Government contends that he has not made any claim cognizable on appeal.

This argument presents little more than a slight twist on the Government's initial jurisdictional argument. We find it no more persuasive because it fundamentally misunderstands both what is required of a sentencing court and what is involved in an allegation of unreasonableness. Section 3553(a) compels district courts to consider several factors in order to impose lawful sentences. Booker made clear that a sentence's reasonableness is defined in terms of these factors. 543 U.S. at 259-60, 125 S.Ct. 738. See also Cunningham, 429 F.3d at 675 ("Whether a sentence is reasonable depends on its conformity to the sentencing factors set forth in 18 U.S.C. § 3553(a)(2)."). Appellate review for reasonableness is thus, at base, an evaluation of whether the sentencing court properly considered the § 3553(a) factors, as it is required to do. Id. at 261. Accordingly, a contention that the district court imposed an unreasonable sentence is itself a contention that the court erred under § 3553(a).

This is hardly a novel way for a party to assert error on appeal. Parties often frame their allegations of error in terms of the appellate standard of review — for example, by claiming that the district court abused its discretion in granting or denying certain relief. We do not lack appellate jurisdiction simply because a party invokes the appropriate standard of review.

Accordingly, we turn to Montes-Pineda's challenges to his sentence.

III.

A sentence after Booker may be unreasonable for both procedural and substantive reasons. "A sentence may be procedurally unreasonable, for example, if the district court provides an inadequate statement of reasons . . . . A sentence may be substantively unreasonable if the court relies on an improper factor or rejects policies articulated by Congress or the Sentencing Commission." See United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006) (citations omitted). Montes-Pineda challenges his sentence on both substantive and procedural grounds. We reject both arguments.

A.

As we have held repeatedly, a sentence within a properly calculated advisory Guidelines range is presumptively reasonable. United States v. Johnson, 445 F.3d 339, ___, 2006 WL 893594, at *2 (4th Cir. Apr.7, 2006); Moreland, 437 F.3d at 433; United States v. Green, 436 F.3d 449, 457 (4th Cir.2006). "[A] defendant can only rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors." United States v. Sharp, 436 F.3d 730, 738 (7th Cir.2006). Here, the § 3553(a) factors clearly support the reasonableness of Montes-Pineda's sentence. The reentry of an ex-felon is a serious offense for which Congress has seen fit to impose a statutory maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2). And Montes-Pineda is a chronic offender for the crime of his conviction: he concedes that he has illegally...