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8/8/2019 08 2079 USAvAvalos Gonzales Brief
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NO. 08-2079 _________________________________________
THE
UNITED
S TATES
COURT OF
A PPEALS
FOR THE TENTH CIRCUIT _________________________________________
UNITED S TATES OF AMERICA, Plaintiff-Appellee,
v.
HERIBERTO A VALOS-GONZALES, Defendant Appellant. _________________________________________
APPEAL FROM THE UNITED S TATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO,
THE HONORABLE JUDITH C. HERRERA,C ASE NO. 07CR2089 JH
_________________________________________
DEFENDANT-A PPELLANT HERIBERTO A VALOS-GONZALES’BRIEF IN CHIEF
_________________________________________
N O ARGUMENT R EQUESTED
_________________________________________
TRACE L. R ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.Santa Fe, New Mexico 87501
505-690-796
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Table of Contents
Table of Contents ..................................................................................................................... ii Table of Authorities ................................................................................................................ iii Statement Regarding Prior or Related Appeals................................................................... iv
Jurisdictional Statement ...........................................................................................................1 Statement of the Case and Facts ............................................................................................3
Arguments for lower sentence................................................................................................3 Government’s Response to Motion to deviate from Sentencing Guidelines.................. 7
I. The District Court Relied On An Improper Sentencing Factor—That Is, TheIdea That It Must Give A Sentence Exceeding What Mr. Avalos-Gonzales WouldHave Received Had He Taken The Fast-Track—Instead Of Mr. Avalos-Gonzales’Individualized Circumstances...........................................................................................11
A. Using the Disincentive of Fast-Track To Others As A Factor To Increase theSentence (Decrease the Variance) Violates The Tenet Of § 3553 And TheBooker/Rita/Gall Rule That A Sentence Must Be Individualized To This ParticularDefendant and This Offense. ...............................................................................................13 B. Doesn’t the Fast-Track Sentence Factor Influence The Sentencing Analysis In The Opposite Way—Illustrating that the system employs disparate treatment of identical offenders, depending on the amount of response the government is requiredto give in a given case? ...........................................................................................................14 C. There is No Longer Such Thing As A Mine-Run (“Heartland”) Case. ...................14 D. Not All Of The Guidelines Are Necessarily Accurate or Empirical.....................18
II. The Sentence Imposed On Mr. Avalos-Gonzales Is Unreasonable In That TheCourt Relied Upon Disputed Judge-Found Facts (Not Proven To A Jury Beyond A
Reasonable Doubt) As Its Reasons For Not Reducing The Sentence To ThatRequired For The § 3553 Purposes. ................................................................................23
Conclusion ...............................................................................................................................26 Certificate of Compliance with Rule 32(A)(7)....................................................................28
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Table of Authorities
Cases
Anders v. California, 386 U.S. 738 (1967) ..............................................................................10
Koon v. United States , 518 U.S. 81, 108 (1996) ......................................................................15
Rita v. United States , ___ S.Ct.___, 2007 WL 1772146 (June 21, 2007)...........................16
United States v Maldonado Campos , 920 F.2d 714 (10th Cir. 1990) .......................................7
United States v. Atencio, 476 F.3d 1099 (10th Cir. 2007) .....................................................11
United States v. Booker , 543 U.S. 220, 260-61 (2005) ............................................................. 1
United States v. Cage, 451 F.3d 585 (10th Cir. 2006) ............................................................12
United States v. Chavez-Diaz, 444 F.3d 1223 (10th Cir. 2006) ............................................11
United States v. Collins , 122 F.3d 1297 (10th Cir. 1997) .......................................................7
United States v. Esparza-Estrada, 2007 WL 3194849 (10/25/07)(unpublished) ..............10
United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) ........................................................... 1
United States v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007).............................................13
United States v. Jones , 158 F.3d 492 (10th Cir. 1998) ..........................................................15
United States v. Kristl , 437 F.3d 1050 (10th Cir. 2006)...................................................12, 13
United States v. Lee, 376 F. Supp. 2d 1276 (D.N.M. 2005).................................................15
United States v. Lynch , 397 F.3d 1270 (10th Cir. 2005)........................................................12
United States v. Nowicki , 252 F.Supp. 2d 1242 (D. N.M. 2003) ........................................... 7
United States v. Pruitt, 487 F.3d 1298 (10th Cir. 2007) ........................................................13
United States v. Sierra-Castillo, 405 F.3d 932 (10th Cir. 2005).............................................11
United States v. Townley, 472 F.3d 1267 (10th Cir. 2007).....................................................13
United States v. Trujillo-Terrazas , 405 F.3d 814 (10th Cir. 2005).........................................12
Statutes
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18 U.S.C. § 3231........................................................................................................................1
18 U.S.C. § 3553(a) ................................................................................................6, 12, 13, 17
18 U.S.C. § 3742........................................................................................................................1
28 U.S.C. § 1291........................................................................................................................1
U.S.S.G. § 4A1.3 .......................................................................................................................6
Other Jurisdictions' Cases
United States v. Galvez-Barrios , 355 F. Supp. 2d 958 (E.D. Wi. 2005) ...............................15
United States v. Ranum , 353 F. Supp. 2d 984, 986, (E.D. Wis. 2005) ................................15
Rules
Fed. R. App. P. 28(a)(4)(A) ..................................................................................................... 1
Fed. R. App. P. 28(a)(4)(B)...................................................................................................... 1
Fed. R. App. P. 28(a)(4)(C)...................................................................................................... 1
Fed. R. App. P. 28(a)(4)(D) ..................................................................................................... 1
Statement Regarding Prior or Related Appeals
There are no prior or related appeals for Mr. Gutierrez-Gonzalez.
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Jurisdictional Statement
The District Court’s jurisdiction, see Fed. R. App. P. 28(a)(4)(A), arose under 18
U.S.C. § 3231 (district court jurisdiction over federal offenses).
This Court’s appellate jurisdiction, see Fed. R. App. P. 28(a)(4)(B), arises under
28 U.S.C. § 1291 (appellate jurisdiction over final decisions of district courts) and 18
U.S.C. § 3742(a) and (b) (review of sentence imposed). Appellant challenges the
Booker /Rita reasonableness of the sentence imposed. This Court has said that
following United States v. Booker , 543 U.S. 220 (2005), it lacks jurisdiction to review
discretionary decisions not to depart downward from a Guidelines sentencing range,
but that it retains jurisdiction to review a sentence for reasonableness, “tak[ing] into
account [the defendant's] asserted grounds for departure” when conducting that
reasonableness review. United States v. Chavez-Diaz , 444 F.3d 1223, 1229 (10th Cir.
2006).
This brief is timely. See Fed. R. App. P. 28(a)(4)(C). This Court by Order of
June 29, 2008, set the brief to be filed on or before July 7, 2008.
This appeal is from a district court’s entry of a sentence in a criminal case,
which is a final order. See Fed. R. App. P. 28(a)(4)(D); United States v. Hahn , 359 F.3d
1315, 1320 (10th Cir. 2004) ( en banc ) (the entry of a sentence constitutes a final order
establishing subject matter jurisdiction under 28 U.S.C. § 1291).
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ISSUE PRESENTED FOR R EVIEW
I. DID THE DISTRICT COURT R ELY ON A N IMPROPER SENTENCING
F ACTOR —THAT IS, THE IDEA THAT I T MUST GIVE A SENTENCE
EXCEEDING WHAT MR . A VALOS-GONZALES WOULD H AVE R ECEIVED
H AD HE T AKEN THE F AST-TRACK —INSTEAD OF MR . A VALOS-GONZALES’ INDIVIDUALIZED CIRCUMSTANCES?
A. At The Government’s Request, The District CourtConsidered The Idea That It Should Impose A Sentence Higher Than A Fast-Track Sentence As
A Significant Factor In This Case. The
government Did Not Want The Sentence ToEqual Or Resemble A Fast-Track Sentence,Because Mr. Avalos-Gonzales Had Chosen ToFile A Sentencing Memorandum. Thegovernment Felt That Imposing A SentenceEqual or Resembling A Fast-Track Sentence
Would Encourage Other Defendants To Forgo The Fast-Track, And Cause The GovernmentMore Work.
Was This A Valid Sentencing Factor Under §3553, or the Guidelines?
B. Does such a Factor Violate The Tenet Of § 3553 And The Booker/Rita Rule That A Sentence MustBe Individualized To This Particular Defendant?
C. Doesn’t the Fast-Track Sentence Factor Influence The Sentencing Analysis In The Opposite Way— Illustrating that the system employs disparate
treatment of identical offenders, depending on theamount of response the government is required togive in a given case?
II. W AS THE SENTENCE IMPOSED ON MR . A VALOS-GONZALES
UNREASONABLE IN THAT THE COURT R ELIED UPON JUDGE-FOUND
F ACTS (NOT PROVEN TO A JURY BEYOND A R EASONABLE DOUBT) A S I TS
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SOLE R EASONS FOR NOT R EDUCING THE SENTENCE TO THAT
R EQUIRED FOR THE § 3553 PURPOSES?
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Statement of the Case and Facts
Arguments for lower sentence.
Heriberto Avalos-Gonzales plead guilty without the benefit of a plea agreement
before the United States Magistrate Judge on October 17, 2007, to the offense of
being found in the United States after having been previously deported and without
consent to return. See 8 U.S.C. §§ 1326(a) and 1326(b). He decided to forgo the fast-
track offer of the government, because he wished for counsel to present a sentencing
memorandum to the court on his behalf, explain his situation, and ask for a lower
sentence. He accepted responsibility for his offense, and regrets his actions.
According to the calculations of the presentence report, Mr. Avalos-Gonzales
has a total offense level of 21, criminal history score of 3, and a criminal history
category of II. Computing in a 3-level reduction for acceptance of responsibility, the
adjusted offense level is 21, resulting in a guideline range for his sentence is 41-51
months. Mr. Avalos-Gonzales never challenged the calculation in this report. Mr.
Avalos-Gonzales’ criminal history arises from a guilty plea to a possession of drugs
for sale charge from 1999 in California, when he was 22, for which he was sentenced
to two years in custody. Mr. Avalos-Gonzales is now 30. His only other contact with
law enforcement was a citation for driving without a license.
Counsel spent time with Mr. Avalos-Gonzales and prepared a Sentencing
Memorandum In Support Of A Reasonable Sentence” on his behalf. (Doc. 17.) In
the Memorandum, counsel explained that Mr. Avalos Gonzales returned to the
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United States in order to earn more money and make a better life for his family, which
resides here. His wife has several medical conditions which require regular care
(diabetes, kidney problems, and high blood pressure). Prior to his arrest, he was the
sole source of support for his wife and children.
Mr. Avalos-Gonzales told the Border Patrol agent after his arrest that he
thought he had been deported for five years. The Memorandum pointed out that his
belief was not wholly unreasonable, as he had in his records a federal charge of “Oral
False Claim to U.S. Citizenship” for which prosecution was declined in favor or an
order of removal for five years. (Doc. 17 at 2-3.)
The Memorandum also noted the confusingly disparate treatment that Mr.
Avalos-Gonzales had received for his prior trip into this country. In June of last year
(2007) Mr. Avalos-Gonzales was found in the country and simply deported, without
any criminal charges. (Id.) The only consequences for being in the United States one
year ago was mere deportation. He was surprised to learn that now he faced a
sentence of 41 months to 20 years in the present case, for exactly the same conduct.
(Doc. 17 at 3.) His counsel reported that he found the possible sentences in this case
difficult to believe. (Doc. 17 at 4.) It did not make sense to him that the government
would see fit only to deport him last year, and a few months later, for the same
conduct, to seek years in federal prison. (Id.) It did not make sense to him that the
government would seek to imprison him for longer than he was sentenced for a drug
offense in 1999, just for being in the country. (Id.) Counsel pointed out that Mr.
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Avalos-Gonzales has never received a criminal sentence for illegal re-entry, although
he has been removed at least twice. (Doc. 17 at 3.) While he clearly had some
understanding that he was not authorized to enter this country, he quite reasonably
believed that the consequence was simple deportation. He genuinely did not know or
understand or appreciate the consequences he now faces. (Doc. 17 at 4.) He never
would have returned if he had understood these consequences. (Id.)
Counsel noted that at this point, Mr. Avalos-Gonzales does now understand
only too well the consequences of illegal re-entry. He is now fully aware of the
consequences of re-entering the United States. He understands that any future return
will result in prosecution and a prison sentence.
As counsel for Mr. Avalos-Gonzales argued in her sentencing memorandum on
his behalf, “actions speak louder than words”—that is, the government had sent an
unclear and inconsistent message to people like Mr. Avalos-Gonzales who come here
to work and live with family. (Id.) He faced simple deportation, without criminal
penalty, in 2007, and now in 2008, he faced years in prison for the same conduct.
(Doc. 17 at 4.) She noted how he found this difficult to absorb, an that it did not
make sense to him that the government now sought to incarcerate him for a longer
period of time than that it sought for his drug offense in the 1990’s. (Doc. 17 at 4.)
Counsel reminded the district court that 18 U.S.C. § 3553(a) requires the court
to impose a sentence that is sufficient, but not greater than necessary, to comply with
the purposes set forth in that section. She argued that a sentence of less that 41
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months would accomplish the § 3553(a) purposes of a sentence—to ensure that he
does not enter again, to protect the community, punish him for his actions, and
rehabilitate him in some way (his only significant present problem appears to be the
need to support his family).
Specifically counsel argued that the effect of the 1999 conviction on the
sentencing calculation made the guideline result unreasonable in Mr. Avalos-
Gonzales’ case. She argued that the impact of that offense on the advisory sentence
was disproportionate to Mr. Avalos-Gonzales’ malfeasance in that case, and that it did
not account for the fact that he was obviously both deterred and rehabilitated by the
sentence he served in that matter, as he had been without incident since. The factual
basis for the 1999 offense was a bust at someone else’s hotel room, along with a
number of other people. Mr. Avalos-Gonzales did not have any weapon, although
there was a gun in a duffle bag in the hotel room. Mr. Avalos-Gonzales was caught
with what was called “one bundle” of the drugs found. He seemingly was a
purchaser. There is no violence in Mr. Avalos-Gonzales’ history, whatsoever. Yet his
guideline sentence is identical to that of someone with crime of violence in their
recent history.
The goal of the prosecution of Mr. Avalos-Gonzales in this case is to stop him
from returning to the United States again, counsel argued, and that goal would be
fulfilled by a sentence of less than 41 months.
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Government’s Response to Motion to deviate from Sentencing Guidelines.
The government filed a short (<4 page) response to Mr. Avalos-Gonzales
Memorandum. (Doc. 18.) As to the argument that his criminal history was over-
represented, the government treated this as a request of a downward departure,
recited how the guideline calculation was accurate, and therefore asked the court to
deny the request. (Doc. 18 at 2.)
As to the arguments for a Booker variance, the government noted that all
deportees, including Mr. Avalos-Gonzales, are advised with a Form I-294 that they
are not allowed to return at any time. (Doc. 18 at 3.) The government argued that
Mr. Avalos-Gonzales was essentially a mine-run offender: “Many defendants charged
with illegally re-entering the United States after deporation unlawfully entered the
country for economic reasons.” (Doc. 18 at 4.) “If the motivation of seeking
employement was sufficient to justify a deviation from the advisory sentencing
guideline range, more defendants would qualify for the deviation than those who
would not. This fa c tor does not d i s t ingui sh h im from other indiv iduals who are
s imi lar ly s i tuat ed .” (Doc. 18 at 4 (emphasis added).) The government cited United
States v. Esparza-Estrada, 2007 WL 3194849 (10th Cir. 2007), for the proposition that
the desire to sent money to one’s mother does not remove defendant from the
“heartland” and instead puts him “squarely within the zone.”
The government did not offer any reasons why the 41-51 month guideline
sentence was appropriate, except that it was the guideline sentence.
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Sentencing proceeding.
At sentencing, counsel for Mr. Avalos-Gonzales stressed that the guideline
recommended sentence was just one of the factors to be considered under § 3553.
She argued that § 3553 mandated a reasonable sentence, and that in this particular case,
a sentence of 18 to 24 months “would be adequate to communicate the message that
needs to be communicated to him, which is that he cannot return to the United States
in the future, probably will never be able to return oto the United States legally.”
(Doc. 30 at 3.) She and Mr. Avalos-Gonzales spoke to the problems in his family,
two young daughters, and his wife’s health problems. Counsel pointed out that his jail
sentence for his California offense had obviously had the effect of rehabilitating him
from that behavior.
The government argued that there was nothing to distinguish Mr. Avalos-
Gonzales’ sad story from the “heartland”, from the many other defendants the court
sees. The government also argued that while Mr. Avalos-Gonzales might well be due
some sort of a reduction, the court should not reduce his sentence to the point where
it was like the kind of sentence he would have gotten had he taken the fast track. The
government’s language in the argument is important:
There is nothing that really distinguishes thisdefendant from any to the others that the Court sees. Andthat’s the problem with, you know, with 3553 variances, isthat this defendant really is just in the heartland of—and Iknow I’m using departure language, but it’s really in theheartland of similarly charged defendants. His criminalhistory is, is pretty old, and I would acknowledge that. But
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I don’t really think that this is anything outside of what wenormally see. So therefore, I mean the history, you know,the characteristics and history of the defendant and thenature of the offense, it’s just really the same as any of these other cases.
Now, I will say that this defendant would have beenat one time eligible for the fast track, and he decided not totake the fast-track offer in order to file this Memorandum,to ask the Court for a variance. Now, if he had beeneligible for the fast-tracked [sic], that would have [been] atwo-level reduction to his guideline offense level, down tooffense level 19.
But, so I would, if the Court is considering a
deviation I would, I would urge the Court not to deviate tothe point where he gets to where he would have been if hehad taken the fact track, because it just becomes a dis-incentive for people to take the fact track and then thegovernment has to—the point of the fast track is that it’s afast rack and the government doesn’t have ot respond tosentencing memoranda. But at the same time I willconcede that this defendant, other than filing his sentencing memorandum, he didn’t put the government through any other paces. He didn’t require the government to, to indicthim. He didn’t require the government to prepare for trial.
And so I guess, if the Court’s incline to some kind of adeviation I would suggest that the deviation be theequivalent of one guideline offense level form offense level21, which would take him to offense level 20. That wouldbe a reduction but it wouldn’t get him back to where he
would have been if he had accepted the fast track. Andagain, that would kind of defeat the purpose of having afast-track program. And that’s all I have to say.
(Doc. 30 at 7-9.)
Counsel for Mr. Avalos-Gonzales responded that acceptance of fast-track or
not is not a relevant sentencing consideration. (Doc. 30 at 9.) She pointed out that
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the guideline calculation is only one point out of about six or seven that the court
must consider under § 3553. She pointed out that the guidelines have changed over
time, and there is nothing magic about the guidelines. An 18 to 24 month sentence
was, in this case, sufficient but not greater than necessary to achieve the goals of
sentencing this defendant on this offense.
The representative from Probation who stood in for the preparer of the
presentence report focused on the prior criminal offense in California, and that there
was a firearm present at the site of the arrest, and total amount of methamphetamine
involved was one-half pound. Defense counsel responded that Mr. Avalos-Gonzales
was not in possession of either the weapon nor that amount of drugs—he possessed a
small amount, noted only as a “bundle.” These were not facts that could be
ascertained with any precision. (Doc. 30 at 10-11.)
Sentence imposed and reasons.
The district court reasoned that it had considered the various facts and
arguments, but was convinced not to apply a variance by the fact that there was
allegedly a firearm in the area of Mr. Avalos-Gonzales’ prior arrest, as well as the one-
half pound of methamphetamine. (Doc. 30 at 12.) The district court called these
things “the thing that bothers me about the defendant’s history.” (Id.) The court
sentenced Mr. Avalos-Gonzales to 41 months, the low end of the guideline advisory
range.
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A RGUMENT
I. THE DISTRICT COURT R ELIED ON A N IMPROPER SENTENCING
F ACTOR —THAT IS, THE IDEA THAT I T MUST GIVE A SENTENCE
EXCEEDING WHAT MR . A VALOS-GONZALES WOULD H AVE R ECEIVED
H AD HE T AKEN THE F AST-TRACK —INSTEAD OF MR . A VALOS-GONZALES’ INDIVIDUALIZED CIRCUMSTANCES.
The government at the sentencing hearing conceded that Mr. Avalos-Gonzales
was probably due a variance in his sentence, at least down to offense level 20. At the
government’s request, the district court considered the idea that it should impose a
sentence higher than the fast-track sentence to which Mr. Avalos-Gonzales would
have been entitled as a significant factor in this case. The government did not want
the sentence to equal or resemble a fast-track sentence, because Mr. Avalos-Gonzales
had chosen to file a sentencing memorandum that required a less-than-four-page
response from the government. Even though the government admitted that Mr.
Avalos-Gonzales had not caused much work on the part of the government, the
government argued that imposing a sentence equal or resembling a fast-track sentence
would encourage other defendants to forgo the fast-track, and cause the government
more work.This simply is not a legally relevant sentencing factor in the post Gall and
Kimbough world. In its most recent cases, Rita v. United States , 127 S. Ct. 2456
(2007), Kimbrough v. United States , 128 S. Ct. 558 (2007) and Gall v. United States , 128 S.
Ct. 586 (2007), and also in Cunningham v. California , 127 S. Ct. 856 (2007), the Supreme
Court gave substantive and procedural import to the Booker remedy, making clear that
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Section 3553(a) is the controlling sentencing law and rejecting the devices that were
used after Booker to maintain a de facto advisory-but-mandatory guideline system. The
“Guidelines are only one of the factors to consider when imposing sentence.” Gall ,
128 S. Ct. at 602. The Guidelines, “formerly mandatory, now serve as one factor
among several courts must consider in determining an appropriate sentence.”
Kimbrough , 128 S. Ct. at 564. “The statute, as modified by Booker , contains an
overarching provision instructing district courts to ‘impose a sentence sufficient, but
not greater than necessary,’ to achieve the goals of sentencing.” Kimbrough , at 570.
There are a myriad of factors that a court must consider in sentencing--federal
sentencing is “a task calling on a district court’s unique familiarity with the facts and
circumstances of a case and its judgment in balancing a host of incommensurate and
disparate considerations, ranging from the degree of the defendant’s cooperation and
remorse to the need for deterring potential future offenders.” United States v. Ruiz-
Terrazas , 477 F.3d 1196, 1201 (10th Cir. 2007). However, the viability of the
government’s fast-track program, and the government’s desire to ensure that every
defendant who chooses to forgo that program receive a higher sentence than that
available under the program, is not a permissible factor under either the guidelines or
§ 3553(a) mandates. See United States v. Williams , --- F.3d ----, 2007 WL 4563668, 2007
U.S. App. LEXIS 30076 (3d Cir. Dec. 31, 2007) (“Sentencing is primarily the
responsibility of the district courts, not the probation office, not the government, not
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the defense, and not the appellate courts, although those parties may provide valuable
insights.”)
A. Using the Disincentive of Fast-Track To Others As A Factor To Increase the Sentence (Decreasethe Variance) Violates The Tenet Of § 3553 And
The Booker/Rita/Gall Rule That A SentenceMust Be Individualized To This ParticularDefendant and This Offense.
In Gall and Kimbrough, the Court rejected mindless uniformity and required that
individualized consideration be given to any particular defendant’s case. The Court
recognized that a “deferential abuse-of-discretion standard could successfully balance
the need to reduce unjustifiable disparities across the Nation and consider every
convicted person as an individual .” Id . at 598 n.8 (internal quotation marks and
citations omitted) (emphasis supplied). However, by simply “correctly calculat[ing]
and review[ing] the guideline range,” a judge “necessarily [gives] significant weight and
consideration to the need to avoid unwarranted disparities.” Gall , 128 S. Ct. at 599.
The Court recognized that unwarranted uniformity is every bit as objectionable
as unwarranted disparity: “[I]t is perfectly clear that the District Judge . . . also
considered the need to avoid unwarranted similarities among other co-conspirators
who were not similarly situated.” Id . at 600 (emphasis in original).
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B. Doesn’t the Fast-Track Sentence Factor Influence The Sentencing Analysis In The Opposite Way— Illustrating that the system employs disparatetreatment of identical offenders, depending on theamount of response the government is required togive in a given case?
C. There is No Longer Such Thing As A Mine-Run (“Heartland”) Case. The government argued in its memorandum and in its presentation to the
district court that the court should not depart from the guideline advisory sentence,
because none of the facts about Mr. Avalos-Gonzales’ family, his young children, his
wife’s health, and their need for his employment made his case any different than
many of the other cases the court heard on a regular basis. The thrust of the
government’s argument was that Mr. Avalos-Gonzales needed to show that his case
was extraordinary, as in “out of the heartland” in the government’s words, in order to
show his case was worthy of a variance from the guidelines.
That is not the law, not after Rita , Gall , and Kimbrough. Through those cases,
the Supreme Court has established that blind adherence to the guidelines is as harmful
as unreasoned departure. The Supreme Court has established that a defendant does
not need to show her case is extraordinary in order to be entitled to a variance.
District court judges must now, after Rita, Gall and Kimbrough , consider and
respond to nonfrivolous arguments that the guideline sentence itself reflects an
unsound judgment because it fails properly to reflect § 3553(a) considerations, does
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not treat defendant characteristics in the proper way, or that a different sentence is
appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007).
District courts are no longer required, or permitted, to simply defer to Commission
policies. Id . Courts of appeals may not “grant greater factfinding leeway to [the
Commission] than to [the] district judge.” Id . at 2463.
Gall is an example of the Guidelines not treating defendant characteristics in
the proper way, i.e., as required by 18 U.S.C. § 3553(a). There, the Court upheld a
non- guideline sentence in which the judge imposed a sentence of probation based on
characteristics of the defendant which are required to be considered under §
3553(a)(1) and must be taken into account in order to avoid unwarranted disparities
and unwarranted similarities under § 3553(a)(6), but which the Guidelines ignore or
deem not ordinarily relevant, including age and immaturity, voluntary withdrawal
from a conspiracy, and self rehabilitation through education, employment, and
discontinuing the use of drugs. Gall , 128 S. Ct. at 598-602. Several of the factors
relevant in Gall —immaturity (at the time of the prior offense), employment,
rehabilitation and withdrawal from the drug culture, and lawfulness—are present in
Mr. Avalos-Gonzales’ case. Gall teaches us that his case need not be extraordinary for
those factors to come into play, and justify a variance.
Kimbrough was an “unremarkable” “mine-run” case. 128 S. Ct. at 575. It was
not only not extraordinary, it was classic “heartland,” meaning just the kind of case to
which the guideline in question was supposed to apply. However, a variance was
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called for in that case, because the guideline itself reflected unsound judgment in that
it failed properly to reflect § 3553(a) considerations. 128 S. Ct. at 575. There, the
Court upheld a below-guideline sentence in an ordinary crack trafficking case because
the crack guidelines (like all of the drug guidelines) were not based on past practice at
their inception, and reflect unsound judgment in light of the purposes of sentencing
and the need to avoid unwarranted disparities. The Court said: “In the main,” the
Commission used an “empirical approach based on data about past practices,
including 10,000 presentence investigation reports,” but it “did not use this empirical
approach in developing the Guidelines sentences for drug-trafficking offenses.” Id . at
567. When a guideline is not the product of “empirical data and national experience,”
it is not an abuse of discretion to conclude that it “yields a sentence ‘greater than
necessary’ to achieve §3553(a)’s purposes, even in a mine-run case .” Id . at 575
(emphasis added).
Counsel for Mr. Avalos-Gonzales made a similar argument about the
unsoundness of the compounding of the sentence based on both criminal history
analysis and the aggravated felony analysis—increasing the sentence many times
over—for long-past conduct that was victimless, non-violent, and a one-time episode.
(Mr. Avalos-Gonzales’ sentence was compounded in the same manner for this prior
conduct as it would have been for a violent crime with a weapon.) She also argued
about the unsoundness of the government’s inconsistent and confusing policies that
allow a person to be simply deported when found in this country in 2007, but when
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found a few months later in this country with exactly the same criminal history, to be
facing almost four years or more in federal prison. Finally, she argued that the
guideline advisory sentence range was unsound in that is was more than was necessary
to achieve the sentencing goals of § 3553(a).
After Kimbrough , the courts of appeals “must re-examine [their] case law”
holding or suggesting that a district court must presume the guidelines are reasonable,
or conversely, that “courts were not authorized to find that the guidelines themselves,
or that the statutes on which they are based, are unreasonable.” United States v.
Marshall , slip op., 2008 WL 55989 at **8-9 (7th Cir. Jan. 4, 2008). For example, the
analysis in United States v. Pitts , 2008 U.S. App. LEXIS 1384 (3d Cir. Jan. 24, 2008)
(unpublished) is persuasive. The Pitts court (reversed where the district court “may
have” been mistaken about the extent of its discretion to impose a non-Guidelines
sentence, since the district court expressed that the case must be extraordinary, or
outside the heartland, to warrant a variance. The appellate court said:
Although our post-Booker precedent makes it clear that theGuidelines are not to be taken lightly, a district court canproperly deviate from the prescribed range even in theabsence of extraordinary circumstances. Gall v. United States ,128 S. Ct. 586, 594-95, 169 L. Ed. 2d 445 (2007); United
States v. Booker , 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d621 (2005); Cooper , [437 F.3d 324], 331 & n. 10 [(3d Cir.2006)]. Accordingly, because the record suggests that theDistrict Court may have been laboring under the mistakenbelief that the Guidelines are not to be deviated fromabsent such circumstances, we cannot affirm the District
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Court’s sentencing determination. United States v. Gunter ,462 F.3d 237, 247 (3d Cir. 2006).
D. Not All Of The Guidelines Are Necessarily Accurate or Empirical.
In an ideal situation, all of the guidelines would be based on empirical evidence
in support of the suggested sentence. In fact, “the Commission, either on its own
initiative or in response to congressional actions, established guideline ranges that
were significantly more severe than past practice” for “the most frequently sentenced
offenses in the federal courts,” including white collar offenses, drug trafficking, and
immigration offenses. U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing:
An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of
Sentencing Reform at 47 (2004), citing U.S. Sentencing Commission, Supplementary Report
on the Initial Sentencing Guidelines and Policy Statements (1987). These stark increases were
not based on any hard science.
Since then, the Commission has amended the guidelines in a “one-way upward
ratchet increasingly divorced from considerations of sound public policy and even
from the commonsense judgments of frontline sentencing professionals who apply
the rules.” See Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A
Structural Analysis , 105 Colum. L. Rev. 1315, 1319-20 (2005); U.S. Sentencing
Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal
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Criminal Justice System is Achieving the Goals of Sentencing Reform 47-55, 76, 82, 91, 94, 102-
06, 111-15, 117, 122, 131-35, 140-42 (2004).
In fact, the emerging social science literature suggests that many of the
guideline sentencing provisions are flawed, if not downright wrong. U.S. Sentencing
Comm’n, Measuring Recidivism: The Criminal History Computation of the
Federal Sentencing Guidelines (May 2004) (hereinafter “ Measuring Recidivism ”); U.S.
Sentencing Comm’n, Recidivism and the First Offender (May 2004); U.S. Sentencing
Comm’n, A Comparison of the Federal Sentencing Guidelines Criminal History Category and the
U.S. Parole Commission Salient Factor Score (Jan. 2005); see United States v. Fernandez , 436
F. Supp. 2d 983 (E.D. Wis. 2006) (relying on Fifteen Year
Report ’s discussion of failures of the career offender guideline to impose non-guideline
sentence); United States v. Germosen , 473 F. Supp. 2d 221 (D. Mass. 2007) (relying on
Fifteen Year Report to point out flaws in guideline calculation).
Even the government’s own research points to serious flaws in the guideline
calculations in certain areas, including how the guidelines count drug offenses. See
U.S. Dep’t of Justice, An Analysis of Non-Violent Drug Offenders with Minimal Criminal
Histories , Executive Summary (Feb. 1994), available at
http://www.fd.org/pdf_lib/1994%20DoJ%20study%20part%201.pdf ; The Sentencing
Project, Incarceration and Crime: A Complex Relationship 7-8 (2005), available at
http://www.sentencingproject.org/pdfs/incarceration-crime.pdf ; Paul J. Hofer & Courtney
Semisch, Examining Changes in Federal Sentence Severity: 1980-1998 , 12 Fed. Sent. Rep. 12,
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1999 WL 1458615 (July/August 1999); Miles D. Harar, Do Guideline Sentences for Low-
Risk Drug Traffickers Achieve Their Stated Purposes? , 7 Fed. Sent. Rep. 22, 1994 WL
502677 (July/Aug. 1994).
Specifically, the social science by academia and by the government tends to show
that many of the factors that the guidelines disfavored or forbid (“heartland”) are very
significant to the goals and effects of sentencing. Factors like the fact that the
defendant cares for young children, see, e.g.,Ross D. Parke & K. Alison Clarke-Stewart ,
From Prison to Home: Effects of Parental Incarceration on Young Children (Dec. 2001),
presented at U.S. Dep’t of Health and Human Services National Policy Conference,
“From Prison to Home: The Effect of Incarceration and Reentry on Children,
Families and Communities” (2002) (discussing impact of parental incarceration on
children and benefits of alternatives to incarceration); U.S. Dep’t of Justice, Office of
Juvenile Justice and Delinquency Prevention, Risk Factors for Delinquency: An Overview
(2001) (discussing link between aggression, drug abuse, and delinquency in children to
several factors, including separation from parents); The Sentencing Project,
Incarceration and Crime: A Complex Relationship 7 (2005) (“The persistent removal of
persons from the community to prison and their eventual return has a destabilizing
effect that has been demonstrated to fray family and community bonds, and
contribute to an increase in recidivism and future criminality.”); Patricia M. Wald,
“What About the Kids?’: Parenting Issues in Sentencing , 8 Fed. Sent. Rep. 137 (1995)
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(discussing growing body of research showing that children fare better in their
parents’ care than in foster care or elsewhere).
As another example, after Booker many district courts have issued decisions
showing that the career offender guideline fails to distinguish between serious and
non-serious offenses. In United States v. Ennis , 468 F. Supp. 2d 228, 234 & n.11 (D.
Mass. 2006), the judge pointed out that the definition of career offender predicates
covers misdemeanor convictions, contrary to 28 U.S.C. § 994(h), from states with
misdemeanors punishable by more than one year. In United States v. Baird , slip op.,
2008 WL 151258 (D. Neb. Jan. 11, 2008), the judge described how the child
pornography guideline was not based on empirical evidence.
And as another example, in at least three cases, judges have declined to follow
the “bad math” embodied in the new marijuana equivalency table for crack in multi-
drug cases. See United States v. Molina , slip op., 2008 WL 544703 (E.D.N.Y., Feb. 28,
2008) United States v. Horta , __ F.Supp.2d __, 2008 WL 445893 (D. Me. 2008); United
States v. Watkins , __ F. Supp. 2d __, 2008 WL
152901 (D. Tenn. 2008).
District court have found other flaws, too. In United States v. Quinn , 472 F.
Supp. 2d 104, 111 (D. Mass. 2007), the judge identified a “structural problem” in the
relevant conduct rule as demonstrated by two different probation officers
“calculating” ranges of 37-46 months and 151-188 months for two identically-situated
defendants in the same case. In United States v. Adelson , 441 F. Supp. 2d 506 (S.D.N.Y.
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2006), the judge explained how calculations under the fraud guideline based on
unintended loss and various overlapping adjustments resulted in a “patently absurd”
life sentence. United States v. Gener , Crim. No. 04-424-17, 2005 WL 2838984 *5
(S.D.N.Y. Oct. 26, 2005) illustrates the problem with including juvenile adjudications
with a sentence of 60 days or more in the criminal history score where the juvenile
offense is trivial and the length of confinement results from family circumstances and
need for social services and intervention, not the severity of the offense.
As Sixth Circuit Judge Merritt’s remarkable dissent in United States v. Sedore , __
F.3d __, 2008 WL141046 (6th Cir. Jan. 11, 2008), warns: “Except for those judges and
lawyers who prefer to continue routine conformity to the old pre- Blakely-Booker
process of guideline sentencing, there is widespread disapproval of the present
muddled system. This is because, in the main, the old system is just continuing on as
though nothing had happened – continuing under the pretext that the guidelines are
only ‘advisory’ instead of being considered only as a starting point against the
backdrop of the more sensible and humane penalogical goals set out in § 3553(a),
Title 18. This case is one more example of the continuing problem, the problem of
guidelineism, or ‘guidelinitis,’ the inability of most federal courts to break their habit
of mechanically relying just on the guidelines alone.” Id. at *9 (Merritt, C.J.,
dissenting).
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II. THE SENTENCE IMPOSED ON MR . A VALOS-GONZALES IS
UNREASONABLE IN THAT THE COURT R ELIED UPON DISPUTED JUDGE-FOUND F ACTS (NOT PROVEN TO A JURY BEYOND A R EASONABLE
DOUBT) A S I TS R EASONS FOR NOT R EDUCING THE SENTENCE TO THAT
R EQUIRED FOR THE § 3553 PURPOSES.
The district court’s given reason for not giving a variance to Mr. Avalos-
Gonzales was based on two disputed, judge-found facts—the fact that there was a
firearm somehow associated with him at the time of his arrest on his prior crime, and
the fact that the one-half pound of methamphetamine reportedly recovered from the
arrest scene was associated with him.
The requirement of proof beyond a reasonable doubt under the Fifth
Amendment Due Process Clause protects against factual error whenever a potential
loss of liberty is at stake. In re Winship, 397 U.S. 358, 363-64, 368 (1970). As Winship
itself involved judicial factfinding in a juvenile delinquency proceeding, this is so
regardless of the identity of the factfinder and whether or not the finding results in
“conviction” of a “crime.” Facts to which the reasonable doubt standard applies are
not just those that go to guilt or innocence, but those that increase punishment.
Mullaney v. Wilbur , 421 U.S. 684, 697-99 (1975).
The Supreme Court reaffirmed these principles in Apprendi : “Since Winship, we
have made clear beyond peradventure that Winship’s due process and associated jury
protections extend, to some degree, ‘to determinations that [go] not to a defendant’s
guilt or innocence, but simply to the length of his sentence.’ This was a primary lesson
of Mullaney .” Apprendi , 530 U.S. at 484. See also Jones , 526 U.S. at 240-43 & n.6;
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Cunningham , 127 S. Ct. at 863-64 (referring to independent right to proof beyond a
reasonable doubt and tracing origins of recent Sixth Amendment jurisprudence to
doctrinal discussions of Winship and Mullaney in Jones ).
Though the Supreme Court has considered the Fifth Amendment right to
proof beyond a reasonable doubt in tandem with the Sixth Amendment jury trial right
in recent cases, Apprendi , 530 U.S. at 478, it remains clear that the Fifth Amendment
due process right remains distinct, id. at 476-77, and applies equally to judicial
factfinding. See Schriro v. Summerlin , 542 U.S. 348, 358 (2004) (despite the absence of
jury factfinding, judge’s use of the reasonable doubt standard assured that accuracy
was not seriously diminished). Thus, Booker ’s resolution of the Sixth Amendment
issue, which concerned the reservation of control in the people against governmental
power, did not address what
standard of proof a judge must use under the Fifth Amendment to find facts that
expose a defendant to additional loss of liberty. Texas v. Cobb , 532 U.S. 162, 169
(2001) (“Constitutional rights are not defined by inferences from opinions which did
not address the question at issue.”).
Judicial sentencing factfinding exposes the defendant to loss of liberty, and is
therefore required to be conducted based on proof beyond a reasonable doubt under
Winship, Mullaney , and Apprendi . The Guidelines’ advice to find facts by a
“preponderance” of the “probabl[y] accurate” “information,” including hearsay,
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USSG § 6A1.3, p.s., is clearly deficient. Moreover, the Commission is not empowered
to advise that the preponderance
standard “is appropriate to meet due process concerns” because only courts are
empowered by our Constitution to announce minimum constitutional standards, and
the Commission is not a court. See Mistretta v. United States , 488 U.S. 361, 384-85, 393-
94, 408 (1989). U.S. Sentencing
Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy
Statements at 48 (1987).
In his concurrence in Gall , Justice Scalia repeated his invitation, first made in
Rita , 127 S. Ct. at 2479 (Scalia, J., concurring), to bring as-applied Sixth Amendment
challenges. Gall , 128 S. Ct. at 602-03 (Scalia, J., concurring); see also Rita , 127 S. Ct. at
2473 (Stevens, J., concurring) (agreeing that such a challenge may be brought).
Noting that “the Court has not foreclosed as-applied constitutional challenges,”
Justice Scalia states that the “door therefore remains open for a defendant to
demonstrate that his sentence, whether inside or outside the advisory Guidelines
range, would not have been upheld but for the existence of a fact found by the
sentencing judge and not by the jury.” Gall , 128 S. Ct. at 602-03 (Scalia, J.,
concurring).
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Conclusion
For the foregoing reasons, Mr. Avalos-Gonzales respectfully requests this
Court to vacate his sentence, remand for sentencing with a variance analysis and full
consideration of § 3553 factors.
/S/ electronically submitted
______________ TRACE L. R ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.Santa Fe, New Mexico 87501
505-690-7969
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Certificate of Service
I hereby certify that (1) on Monday, July 7, 2008, I caused to be deposited in
the United States mail, with First Class Postage prepaid, a true and correct copy of the
foregoing Brief together with a copy of this Certificate of Service, addressed to
Norman Cairnes and William J. Pflugrath, Assistant United States Attorney, Post
Office Box 607, Albuquerque, New Mexico 87103; (2) a copy of this brief in chief
was provided to by electronic mail on November 21, 2007; (3) all required privacy
redactions have been made, and, with the exception of those redactions, this
document is an exact copy of the written document filed with the Clerk; and (4) this
submission has been scanned for viruses with the most recent version of OS X disk
utility (Ver. 10.5), and, according to that utility, this digital submission is free of
viruses.
/S/ electronically submitted
______________ TRACE L. R ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.
Santa Fe, New Mexico 87501505-690-7969
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Certificate of Compliance with Rule 32(A)(7)
I, Trace Rabern, counsel for defendant-appellant, certify that this brief in chief
conforms to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i). The brief is
typed on a proportionally-spaced 14-point typeface (Garamond). Including table of
contents, table of authorities, and certificate of service, it contains 7,193 words. To
count the words I relied on MS Word 2008 for the Mac.
I certify that this certificate of compliance is true and correct to the best of my
knowledge and belief formed after reasonable inquiry.
/S/ electronically submitted
______________ TRACE L. R ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.Santa Fe, New Mexico 87501
505-690-796
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