United States v. Gutierrez

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 13, 2001
• Docket: 99-21147
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-21147 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN HIJINIO GUTIERREZ,

Defendant-Appellant. _________________________

Appeal from the United States District Court for the Southern District of Texas (H-99-CR-299-1) _________________________ February 12, 2001

Before REYNALDO G. GARZA, DAVIS we affirm. and JONES, Circuit Judges. I. PER CURIAM: * Gutierrez pleaded guilty to count 1 of an in- dictment charging him with being a felon in pos- Juan Gutierrez contends that in sentencing, the session of a firearm in violation of 18 U.S.C. district court erred in departing upward from 16 to §§ 922(g)(1) and 924 (a)(2).1 The probation 19 in assessing his offense level. Concluding that officer determined that Gutierrez had an the court relied on permissible factors for offense level of 16 and a criminal history departure, made a reasonable determination that the factors removed the case from the heartland of the applicable guideline, and did not abuse its 1 Acting on a tip that Gutierrez was a felon and discretion in the degree of the upward departure, had been seen in possession of firearms and that he and others were planning a robbery of five to fifteen kilograms of cocaine, Bureau of Alcohol, * Pursuant to 5TH CIR. R. 47.5, the Court has Tobacco, and Firearms agents executed two search determined that this opinion should not be published warrants and found five guns in Gutierrez’s vehicle and is not precedent except under the limited and residence. Gutierrez admitted that three of the circumstances set forth in 5TH CIR. R. 47.5.4. guns belonged to him. category of VI, based on a total criminal district court may presumably depart on that history score of 14. His guideline- factor although the appropriate circumstances imprisonment range was 46-57 months; the will vary depending on whether the factor is statutory maximum was ten years. encouraged, discouraged, or unmentioned.” Id. at 375. The probation officer noted that Gutierrez’s criminal history score did not reflect the se- If a factor is encouraged, courts can de- riousness of his prior criminal conduct and re- part only “if the applicable Guideline commended an upward departure. Although does not already take it into account.” Gutierrez did not file written objections to the If the factor is discouraged, or presentence report (“PSR”), the question encouraged but already taken into whether an upward departure was warranted account by the applicable guideline, was argued at the sentencing hearing. The courts can depart “only if the factor is court overruled Gutierrez’s objection, adopted present to an exceptional degree or in the findings and conclusions in the PSR, and some other way makes the case different departed upward by three offense levels. from the ordinary case where the factor is present.” If the factor is II. unmentioned, “the court must, after Under Koon v. United States, 518 U.S. 81 considering the structure and theory of (1996), this court’s both relevant individual guidelines and the Guidelines taken as a whole[,] analysis of a district court’s decision to decide whether the factor is sufficient to depart consists of three separate take the case out of the Guideline’s determinations. An appellate court must heartland.” ask: (1) whether the factors relied on by the district court for departure are Id. (quoting Koon, 518 U.S. at 94-96) permissible factors under the Guidelines; (internal quotation marks and brackets (2) whether the departure factors, as omitted). supported by evidence in the record, remove the case from the heartland of So, whether a given factor is the applicable guideline; and (3) whether permissible depends on how the factor is the degree of departure is reasonable. classified. An impermissible factor is a forbidden factor, a discouraged factor United States v. Threadgill, 172 F.3d 357, 374 not present to an exceptional degree, or (5th Cir.) (footnote omitted), cert. denied, an encouraged factor already considered 120 S. Ct. 172 (1999). by the Guidelines and not present to an exceptional degree. All other factors In determining whether the factors relied on cannot be precluded categorically as a are permissible, we consider whether “the possible basis for departure. departure factor is forbidden, encouraged, dis- couraged, or unmentioned by the Guidelines.” Id. (citing Koon, 518 U.S. at 94-96) (internal Id. (discussing Koon, 518 U.S. at 92-96). “If citation omitted). the departure factor is not forbidden, the

2 We do not defer to the district court’s legal three days after his plea in this present determinations, such as whether a factor is a case, he was arrested in Harris County permissible basis for departure. Id. (citing on new felony charges. To my mind, Koon, 518 U.S. at 100). Factual this behavior demonstrates a total determinations, however, are entitled to disregard for the law and illustrates a “substantial deference.” Id. (citing Koon, 518 propensity a [sic] recidivism. U.S. at 97-99). “[W]hen a district court decides to depart based on the particular facts An upward departure under of a case, it is acting within its special Guideline 4A1.3 is going to be ordered. competence. Accordingly, it is the In determining the extent of the near-exclusive province of the district court to departure, it's noted the defendant is decide whether a particular factor, or set of already at a Criminal History Category factors, removes a case from the applicable of 6, which is the maximum; therefore, a heartland.” Id. at 376 (citing Koon, 518 U.S. departure upwards of three levels on the at 376) (internal citations omitted). vertical access [sic] of the sentencing table to an offense level of 19 the Court The district court gave the following feels is appropriate. reasons for its upward departure: Gutierrez’s counsel objected: Keeping in mind that he was on bond when some of this took place,2 to- Since the Court has decided to depart gether with, most importantly, his upward, I would respectfully point out criminal history, he is before the Court the information in Section 4A1.3 in the with at least four prior felony guidelines specifically discusses convictions, as identified in Part F of the departures from Category 6. We would report, numerous additional criminal object to the upward departure. The charges were either dismissed or treated guidelines apparently do not as related cases. contemplate an upward departure where the seriousness of the defendant’s The criminal history points of 16 in criminal record is other than egregious. the Court’s mind does not truly address I would point out to the CourtSSI am his criminal history.3 While on bond, sure Your Honor already has looked at thisSSthese are auto thefts. 2 While Gutierrez was released on bond ... following entry of his guilty plea, he was arrested for possession of stolen property. Although I don’t believe this is the kind of Gutierrez denied at sentencing that he knew the egregious criminal history that the property was stolen, his attorney conceded that it guidelines, the drafters of the guidelines did appear that Gutierrez was still involved in criminal conduct. contemplated.

3 Gutierrez actually had 14 criminal history points, one more than the 13 points required for a criminal history category VI. Gutierrez had an offense level of 16.

3 Counsel also objected that the district court The second uncounted misdemeanor had failed to articulate reasons for departing conviction was for possession of marihuana re- three offense levels, as opposed to one or two. lated to Gutierrez’s 1996 felony conviction for unauthorized use of a motor vehicle. A baggie The probation officer observed that Gutier- of marihuana was found in his pocket at the rez’s criminal history included more than mere time of arrest.4 auto theft; it also included escape attempts, and several of the offenses involved weapons. Gutierrez argues that these misdemeanor The government noted that Gutierrez had convictions were impermissible factors. He convictions for resisting arrest and possession contends that although it is permissible to con- of marihuana. Gutierrez’s related crimes sider uncounted convictions that are not involved fleeing or attempting to elude police factually related to counted offenses, but were officers, criminal mischief, and carrying consolidated for sentencing, it is impermissible firearms. to consider uncounted convictions that are factually related to the offenses that were The district court concluded that the counted. Gutierrez relies on U.S.S.G. reasons for its upward departure had been § 4A1.2, comment 3, to make this distinction. adequately stated and that if they were not, additional reasons mentioned by the probation officer and the prosecutor provided “reasons Gutierrez has misread the comment, encompassed in the Court’s decision to however. It does not say that related upward depart three levels.” convictions arising from the same incident are impermissible bases of departure. In fact, it III. treats all related convictions the same, Our review of the sentencing begins with a regardless of whether they arose from the determination of whether the court relied on same incident. Any uncounted, related impermissible factors. Here, it did not. convictions may form the basis of a departure, because, under the guidelines, “assignment of A. a single set of points [to related convictions] Gutierrez asserts that his two may not adequately reflect the seriousness of misdemeanors that were not counted as part of the defendant’s criminal history or the his criminal history score were not permissible frequency with which he has committed factors for upward departure. The first of the crimes.” U.S.S.G. § 4A1.2, comment 3. The uncounted misdemeanor convictions was for district court therefore did not err in resisting arrest related to a 1994 felony considering Gut ierrez’s uncounted conviction for unlawful use of a motor vehicle. misdemeanors. Gutierrez attempted to elude officers and crashed the vehicle into a fence, then fled on foot but was subdued by an officer. During their scuffle, Gutierrez struck the officer with 4 A gun was also found in the purse of Gutier- his fists and tried to choke him. The officer rez’s female passenger. The passengers told au- suffered a bad knee injury and cuts and thorities that the gun belonged to Gutierrez and that abrasions. Gutierrez had forced her to put the gun in her purse.

4 B. rest while on bond is an impermissible factor Gutierrez asserts that the consideration of because although § 4A1.3 provides that the his arrest while on bond in this case was an sentencing court may consider “all relevant impermissible factor, because it was a factor information” in deciding whether to depart, it that had already been taken into account, or also states that “a prior arrest record itself alternatively, because a mere arrest record is shall not be considered . . . .” § 4A1.3. In an impermissible factor. Gutierrez points out United States v. Cantu-Dominguez, 898 F.2d that the court denied a reduction for 968 (5th Cir. 1990), we vacated and remanded acceptance of responsibility based on this a sentence involving an upward departure in subsequent arrest while on bond. He was which the only reason given for the departure arrested three days after his guilty plea in this was the defendant’s prior arrest record. We case on charges of possession of stolen reasoned: property; he contends that, under the Koon rubric, the arrest constituted an “encouraged [T]he district court stated specifically factor already considered by the guidelines and that it did not find that Cantu-Domin- not present to an exceptional degree.” guez had committed the various offenses Threadgill, 172 F.3d at 375. for which he had been arrested. The court thus was left with nothing but a Gutierrez is conflating the denial of a history of arrests that did not result in downward adjustment for acceptance of convictions. This is not the type of responsibility with the initial determination of “reliable information” that justifies a a defendant’s offense level. A denial of a departure from the applicable sentencing downward adjustment, based on one factor or range. Indeed, the guidelines explicitly a number of factors, does not mean that those reject reliance on a prior arrest record factors have been taken into account in alone as a basis for an upward determining the offense level. Thus, a court departure. may use the same factor both to deny a downward departure and to give an upward Id. at 970-71. departure. The court inquired whether it appeared For example, if a rapist admits that he will likely that Gutierrez had committed the offense rape again when possible, this is not given any for which he was arrested while on bond, and points in determining his offense level. A even Gutierrez’s attorney agreed that it looked court could, however, use this fact both to likely that Gut ierrez was guilty of possession deny a downward departure for acceptance of of stolen propert y. This is more than a mere responsibility and to depart upward, because arrest record and therefore may be considered the rapist presents a high risk of recidivism. in deciding to depart upward.5 Further, a This does not constitute erroneous double- counting of the same factor, but is simply use of the factor to decide whether to depart up or 5 See United States v. Ashburn, 38 F.3d 803, down. 807-08 (5th Cir. 1994) (en banc) (stating that un- der § 1B1.4, the court could “consider, without Gutierrez argues, alternatively, that his ar- limitation, any information concerning the background, character and conduct of the

5 court, in departing upward, may consider the pursuant to a plea agreement are permissible likelihood of recidivism.6 factors, because they have some greater measure of reliability than does a mere arrest C. record. Thus, in Ashburn we held that the Gutierrez similarly argues that pending and court had properly considered prior criminal dismissed charges are forbiddenSSor at best conduct related to dismissed counts of the highly infrequentSSbases for departure. Gu- indictment in that case. 38 F.3d at 807-08. tierrez had four prior dismissed charges. The We noted that, under § 4A1.3(e), a court is firstSSfor burglary of a motor vehicleSSwas authorized to consider “prior similar adult dismissed at the time of the guilty plea for un- criminal conduct not resulting in criminal authorized use of a motor vehicle in 1991. conviction.” Id. at 807. The secondSSfor fleeing or attempting to elude a police officerSSwas dismissed in 1991, The two charges that were dismissed for because Gutierrez had been convicted in a unknown reasons are more troubling bases for related case. The other two dismissed charg- departure. There is no way to know whether esSSfor criminal mischief and for carrying a these charges were dismissed because they weaponSSwere dismissed for unspecified rea- lacked merit or for other reasons. Fortunately, sons in 1997. The district court stated that it we do not need to decide whether these had considered these pending and dismissed dismissed charges were permissible factors, charges in deciding to depart upward. because there were sufficient other factors upon which the court could base its decision.7 Our analysis of the permissibility of considering these dismissed charges tracks our D. analysis of the use of Gutierrez’s arrest while Gutierrez contends that it was on bond in considering an upward departure. impermissible to depart upward because he Here also, a court must rely on more than a had only fourt een criminal history mere arrest record; there must be evidence that pointsSSonly one more than the minimum the defendant committed the crimes he was needed to be categorized in criminal history charged with and was not simply erroneously category VI. He cites no portion of the charged. guidelines and no cases to support this contention, however. The guidelines say The two charges that were dismissed departure is appropriate when a criminal’s offense level does not adequately reflect his dangerousness or likelihood of recidivism. We defendant, unless otherwise prohibited by law”) therefore reject Gutierrez’s circular argument (citation omitted). that a court cannot raise a criminal’s offense 6 See U.S.S.G. § 4A1.3; United States v. Con- nely, 156 F.3d 978, 984 (9th Cir.) (reasoning that 7 upward departure under § 4A1.3 is “justified See United States v. Kay, 83 F.3d 98, 101 purely on the basis of defendant’s likelihood of (5th Cir. 1996) (“A sentence may be found to be recidivism” and whether his likelihood of reasonable even though one or more of the reasons recidivism is under-represented by his criminal assigned in justification of the departure be deemed history category), cert. denied, 525 U.S. 1128 invalid, provided that the remaining reasons suffice (1998). to justify the departure.”)

6 level to group him with defendants exhibiting Id. at 520.8 more serious criminal conduct because raising his offense level would group the criminal with Under our standard of substantial those who exhibit more serious criminal deference, we conclude that the district court conduct. did not err in deciding that these factors removed Gutierrez’s case from the heartland IV. of the applicable guideline. The uncounted Having determined that the factors relied on misdemeanor charges were particularly telling were permissible, we consider whether they as to the seriousness of Gutierrez’s criminal were sufficient to remove the case from the history. The fact that he was willing to attack heartland of the applicable guideline, keeping and try to choke a police officer strongly sup- in mind that when a district court determines ports the determination that this case is outside that a set of factors removes a case from the of the heartland of an offense level of 16. The applicable heartland, it is acting within its likelihood that Gutierrez was in felony special competence. A court may depart possession of stolen property three days after upward “[i]f reliable information indicates that he pleaded guilty also strongly supports the the criminal history category does not determination that he presents more risk of adequately reflect the seriousness of the recidivism than is typical of an offense level of defendant’s past criminal conduct or the like- 16. lihood that the defendant will commit other crimes[.]” U.S.S.G. § 4A1.3, p.s.; see also Lastly, the charges that were dismissed 18 U.S.C. § 3553(b). pursuant to plea bargains provide further sup- port for the departure. The fact that Gutier- In Ashburn, 38 F.3d at 810, we affirmed rez had earlier been charged with burglary of the upward departure “in light of the evidence a motor vehicle and that he attempted to elude of numerous instances of past criminal arrest on another occasion lends credence to conduct, which were not considered in the the determination that this case is outside the criminal history calculation, and the heartland. overwhelming indication that the defendant was inclined to return to a similar course of V. behavior.” In United States v. Harrington, Having determined that the district court 114 F.3d 517, 519-20 (5th Cir. 1997), we relied on permissible factors and did not err in affirmed the upward departure based on three deciding that these factors removed the case prior contempt-of-court convictions and one from the heartland of typical cases with prior reckless-driving conviction, which had offense levels of 16, we turn to the third not been included in the original computation of the criminal history category. The district court had reasoned that the convictions 8 See also United States v. Pennington, 9 F.3d demonstrated the defendant’s “manifold 1116, 1118 (5th Cir. 1993) (concluding that de- disrespect for the law and our judicial system.” fendant’s long history of crime, which included several prior convictions that were not included in his criminal history calculation, “demonstrated a disrespect for the law not adequately reflected by a category VI criminal history”).

7 question of the Koon test: whether the degree criminal history, taken together, are of departure is reasonable. Our review of the sufficient to warrant an upward record, again with substantial deference to the departure from Criminal History trial court, leads us to conclude that the Category VI, the court should structure departure was reasonable. the departure by moving incrementally down the sentencing table to the next By the time Gutierrez reached age 27, he higher offense level in Criminal History had four felony convictions, each of which Category VI until it finds a guideline involved attempts to elude police and/or resist range appropriate to the case. arrest. These facts, when considered with the related but uncounted misdemeanor § 4A1.3, p.s.; see also § 3553(c)(2). convictions, the dismissed charges showing a history of theft and attempts to elude police, Although a court should indicate the and the probability that Gutierrez returned to reasons for its upward departure, it is not crime immediately after pleading guilty, are required more than sufficient under the “substantial deference” standard to support the decision to to go through a ritualistic exercise in depart upward three levels. See Threadgill, which it mechanically discusses each 172 F.3d at 375. criminal history category [or offense lev- el] it rejects en route to the category [or VI. offense level] that it selects. Ordinarily Gutierrez contends that the court erred in the district court’s reasons for rejecting increasing the offense level from 16 to 19 intermediate categories [or offense without stating adequate reasons why the in- levels] will clearly be implicit, if not termediate offense levels of 17 and 18 were explicit, in the court’s explanation for its not adequate. This argument goes to the rea- departure from the category [or level] sonableness of the departure. See Threadgill, calculated under the guidelines and its 172 F.3d at 374. explanation for the category [or level] it has chosen as appropriate. When making an upward departure, a court should consider each intermediate criminal Lambert, 984 F.2d at 663; see also Daughen- history category or offense level and explain baugh, 49 F.3d at 175. why it is inadequate and why the sentence imposed was appropriate.9 The policy The district court did follow § 4A1.3 in statement provides: moving incrementally down the guideline sen- tencing grid. Although it might have better Where the court determines that the ex- explained its reasons for rejecting the tent and nature of the defendant’s intermediate offense levels, it is evident that it rejected those levels and rejected them as being inadequate.10 9 United States v. Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995) (offense levels); United States 10 v. Lambert, 984 F.2d 658, 662-63 (5th Cir. 1993) See Lambert, 984 F.2d at 663 ("Although the (en banc) (criminal history categories). court’'s decision could have been more explicitly

8 AFFIRMED.

tied to the incremental character of criminal history departures, we are satisfied that the appellate record presents a basis upon which we may reasonably conclude that the district court thoroughly considered the appropriate guidelines in arriving at its ultimate sentence.).