United States v. Pena-Hermosillo

522 F.3d 1108, 2008 U.S. App. LEXIS 8121, 2008 WL 1723664
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 15, 2008
Docket06-8075
StatusPublished
Cited by51 cases

This text of 522 F.3d 1108 (United States v. Pena-Hermosillo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pena-Hermosillo, 522 F.3d 1108, 2008 U.S. App. LEXIS 8121, 2008 WL 1723664 (10th Cir. 2008).

Opinions

McCONNELL, Circuit Judge.

The government appeals the district court’s decision to sentence the defendant to 121 months in prison, well below the applicable advisory Sentencing Guidelines range. Prior to varying downward, the court rejected the applicability of two sentencing enhancements recommended by the pre-sentence report and urged by the government. We find that the district court committed procedural error in its calculation of the advisory Guidelines range because it did not provide a sufficient explanation for its denial of the enhancements. We also find that the court’s alternative holding that the 121-month sentence “would be imposed even if the advisory guideline range was determined to be improperly calculated” was likewise procedurally unreasonable. R. 70. We therefore reverse and remand to the district court to vacate and resentence.

I. Background

All background facts are adopted from the pre-sentence report (PSR) and the sentencing hearing. Defendant-Appellee Louiz Peña-Hermosillo started dealing drugs in 2001 at the age of sixteen. Around this time, he began living with Ms. Janae Kelly, who was twelve. She gave birth to Mr. Peña-Hermosillo’s child just after her fourteenth birthday. She began to perform drug-selling activities a month before the child was born, in April 2003. From that time until Mr. Peña-Hermosillo was arrested two years later, Ms. Kelly sold cocaine and methamphetamine and made between thirty and forty trips to Utah and an unstated number of trips to Colorado to deliver money and retrieve drugs. In two separate interviews with police, she stated that.she made these trips on the defendant’s behalf, but in court she [1110]*1110stated that the defendant didn’t tell her what to do and that she “had a mind of [her] own.” R. at 62.

On January 3, 2005, the police stopped Mr. Peña-Hermosillo for a traffic violation. He was driving with companions, one of whom was Roberto Becerill-Garcia. The officer searched the vehicle and found approximately one ounce of methamphetamine, a small amount of marijuana, two handguns, and approximately $3,400 in cash. The officer arrested Becerill-Garcia for possession of methamphetamine and Mr. Peña-Hermosillo for the traffic offense. Later, Becerill-Garcia told an investigator that they had been on a drug run from Casper, Wyoming to Uma, Colorado, and that Mr. Peña-Hermosillo was a major drug dealer who had intimidated Becerill-Garcia into going on the run with him. Becerill-Garcia also told the officers that during the traffic stop, Mr. Peña-Hermosillo called his new girlfriend and ordered her to “clean house,” which was code for getting rid of any drugs at Bece-rill-Garcia’s home, one of Mr. Peña-Her-mosillo’s storage locations. When the police later searched this location, they found a large quantity of different types of ammunition, but no guns or drugs.

Soon after, police started meeting with several confidential informants familiar with Mr. Peña-Hermosillo’s activities. These individuals informed the police that Mr. Peña-Hermosillo was using Mike Hogan’s home, in addition to Becerill-Garcia’s home, as a hiding place for methamphetamine and cocaine. Mr. Peña-Hermosillo also stored methamphetamine at his own home.

On March 11, 2005, Mr. Peña-Hermosil-lo was again stopped by the police, this time immediately after selling one ounce of methamphetamine to Mike Hogan. During their search, the police found a black wallet with $650 in cash, two small baggies of suspected cocaine, and an additional $1560 in cash, all but ten dollars of which was obtained during the drug deal. After receiving Miranda warnings, Mr. Peña-Hermosillo admitted to selling drugs to Mike Hogan and confessed to obtaining drugs from various sources over the past month. During a subsequent search of the defendant’s home, the police found drug paraphernalia, guns, marijuana, and methamphetamine.

Mr. Peña-Hermosillo was arraigned on drug charges in state court as a result of the March 11 arrest. He was released on bond. On June 17, 2005, while he was still out on bond, officers found him in possession of additional methamphetamine.

Mr. Peña-Hermosillo was charged and pleaded guilty to four federal drug charges: (1) conspiracy to possess with intent to distribute and to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A); (2) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (3) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and (4) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The statutory minimum sentence, based on Counts One and Two, was ten years; the maximum was life.

The probation officer prepared a presen-tence report, recommending an initial offense level of 36 with a criminal history category II. The PSR then recommended a three-level adjustment for acceptance of responsibility, U.S.S.G. § 3El.l(a), a two-level enhancement for use of a gun, U.S.S.G. § 2Dl.l(b)(l), and two additional enhancements for the use of a minor and for acting as a manager/supervisor of criminal activity involving five or more persons. U.S.S.G. § 3B1.4; U.S.S.G. § 3Bl.l(b). With the enhancements, the offense level was 40 and the advisory Guidelines range [1111]*1111was 324-405 months. Mr. Peña-Hermosil-lo objected to these latter two enhancements.

Both the defendant and the prosecutor sought to introduce witness testimony with respect to the challenged enhancements. Defense counsel informed the court that Ms. Kelly was present and would tell the court that Mr. Pefia-Hermosillo

didn’t tell her what to do and ... didn’t supervise her and ... didn’t manage her and she has a drug problem and she has since been through drug treatment ... [and] holds no remorse toward Mr. Peña or any expectation that her conduct was related to anything but her own choices and not any pressure or any management or any supervision of Mr. Peña.

R. at 34. Ms. Kelly was allowed to make an unsworn statement. She informed the court that she had “been around drugs since before [she] was ... born,” id. at 61, and that “it’s not like he told people what to do. I have a mind of my own,” id. at 62.

The prosecutor informed the sentencing judge that an investigator was prepared to testify in support of the challenged enhancements. The district court, however, declined to hear the prosecution’s witness. The prosecutor then made an extensive oral proffer of the evidence that would have been presented, which largely tracked the evidence summarized in the PSR.

The district judge denied both enhancements, finding that Mr. Peña-Hermosillo’s relationship with Ms. Kelly did not fall within the “spirit” of the use of a minor enhancement, R. 48, and that “I don’t feel that you were a manager.” Id. at 66. He made few additional factual findings and offered no written explanation.

Without the two disputed enhancements, the range was 188-235 months. The district court found that the minimum Guidelines sentence of 188 months

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Cite This Page — Counsel Stack

Bluebook (online)
522 F.3d 1108, 2008 U.S. App. LEXIS 8121, 2008 WL 1723664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pena-hermosillo-ca10-2008.