F IL E D United States Court of Appeals Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S April 30, 2008 Elisabeth A. Shumaker T E N T H C IR C U IT Clerk of Court
U N ITED STA TES O F A M ER ICA ,
Plaintiff-Appellee , v. Nos. 06-2099 and 06-2216 (D.C. No. CR-05-377-BB ) CA RLA ERICA GO NZA LES ( D. N.M .) SA N CH EZ and C AR LO S A D A N A LV A RA D O ,
Defendants-Appellants .
O R D E R O N R E M A N D FR O M T H E U N IT ED ST A T ES SU PR E M E C O U R T *
Before B R ISC O E , Circuit Judge, M cW ILL IA M S , Senior Circuit Judge, and G O R SU C H , Circuit Judge.
This case is before us on remand from the United States Supreme Court.
Carla Erica Gonzales Sanchez and Carlos A dan Alvarado were convicted in
federal district court for possession and distribution of methamphetamine. On
appeal, we affirmed the convictions and rejected M s. Gonzales’s challenge to her
sentence. See United States v. Gonzales, 252 F. App’x 900 (10th Cir. 2007). M s.
Gonzales pursued certiorari from the Supreme Court on her sentencing appeal,
* This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. and on M arch 24, 2008, the Court granted her petition and remanded the matter
for further consideration in light of its intervening decision in Gall v. United
States, 128 S. Ct. 586 (2007).
Because our reconsideration is limited to M s. Gonzales’s sentencing appeal,
our disposition and analysis affirming M s. Gonzales’s and M r. Alvarado’s
convictions stand unaffected, and we therefore reinstate all of our prior Order and
Judgment in this case with the exception of Part IV.2. 1
In Part IV.2, we addressed M s. Gonzales’s argument that certain statem ents
by the district court indicated that, when sentencing M s. Gonzales, the court
considered itself unduly bound by the Guidelines, and, in particular, its policy
judgments about the appropriate length of sentences for certain drug offenses.
See Gonzales, 252 F. App’x at 907. In rejecting her argument, we explained that
our disposition was dictated by our precedents, citing by way of example United
States v. Terrell, 445 F.3d 1261, 1263-64 (10th Cir. 2006), and United States v.
Paredes, 461 F.3d 1190, 1194-95 (10th Cir. 2006). See Gonzales, 252 F. App’x
at 908 (“W e see no principled way to reach a different conclusion in this case.”).
In Terrell, the district court announced that it gave “heavy weight” to the
1 Although Part IV.1 of our Order and Judgment also addressed an issue relating to M s. Gonzales’s sentence – namely, whether she was entitled to a “minor participant” reduction under the Guidelines – our holding in that Part was not affected by the Supreme Court’s decision in Gall.
-2- Guidelines, and we affirmed, explaining that “giv[ing] a high degree of weight to
the G uidelines,” w hile perhaps not required, was not error. 445 F.3d at 1265. In
Paredes, the district court stated that it considered itself “stuck with the
[G ]uidelines,” and we again found no error. 461 F.3d at 1194-95. These
decisions, in turn, owed much to our then-existing rule that sentencing courts
could not vary from the Guidelines based on a disagreement with the policy
preferences expressed in them. See, e.g., United States v. M cCullough, 457 F.3d
1150, 1171-72 (10th Cir. 2006).
Since we decided M s. Gonzales’s case, however, two decisions from the
Supreme Court have dramatically changed the landscape of sentencing law. In
Gall, the C ourt made clear that, while the Guidelines are important and must be
considered as a starting point for sentencing decisions, they should not be treated
by district courts as presumptively reasonable, let alone entitled to controlling
weight, at the expense of the court’s own determination of an appropriate
sentence in light of all Section 3553(a) factors. Gall, 128 S. Ct. at 596-97. In
Kimbrough v. United States, 128 S. Ct. 558, 570 (2007), the Court stressed that,
“while [Section 3553(a)] still requires a court to give respectful consideration to
the G uidelines,” district courts are not categorically bound by the G uidelines’
policy choices and are instead “permit[ted] . . . to tailor the sentence in light of
other statutory concerns as well.” As we recently observed, Gall and Kimbrough
-3- did a very great deal to alter our circuit’s preexisting sentencing precedent. See
United States v. Sm art, 518 F.3d 800, 807 (10th Cir. 2008) (“It is clear that Gall
and Kimbrough cannot be reconciled with [various] features of our circuit’s
standard of review” case law, proceeding to list five such examples.).
In light of the Court’s new guidance in Gall and Kimbrough, and following
the example of several other recent cases both within and without this circuit
faced with similar situations, 2 we believe the most appropriate course in this case
is to vacate M s. Gonzales’s sentence and remand the m atter to the district court
for resentencing. If, on remand, M s. Gonzales again requests a variance and the
district court believes such a variance ought to be denied, it may not do so on
grounds now made impermissible by Gall and Kimbrough – for example, because
of a belief that it lacks authority to vary from the Guidelines, that it has to treat
the Guidelines as presumptively reasonable, or that it is categorically forbidden
from disagreeing with the policy judgments the Guidelines reflect. The court is to
conduct resentencing in light of, and consistent w ith, Gall and Kimbrough,
“consider[ing] all of the § 3553(a) factors” and making “an individualized
2 See, e.g., United States v. Trotter, 518 F.3d 773 (10th Cir. 2008); United States v. Trotter, 2008 W L 565431 (10th Cir. 2008); United States v. Santillanes, 2008 W L 1790381 (10th Cir. 2008); United States v. Stratton, --- F.3d ----, 2008 W L 656514 (11th Cir. 2008); United States v. Peterson, 2008 W L 647032 (11th Cir. 2008); United States v. Pankey, 2008 W L 723990 (4th Cir. 2008).
-4- assessment based on the facts presented.” Gall, 128 S. Ct. at 596, 597. 3
The mandate which issued originally from this court on November 19, 2007
in number 06-2099 is recalled. A new mandate shall reissue forthwith in that
matter.
ENTERED FOR THE COURT
Neil M . Gorsuch Circuit Judge
3 In light of our decision to vacate and remand M s. Gonzales’s sentence, her motion to file new briefing with this court is denied as moot.
-5- F IL E D United States Court of Appeals Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L SOctober 26, 2007 Elisabeth A. Shumaker T E N T H C IR C U IT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. Nos. 06-2099 and 06-2216 (D.C. No. CR 05-377 BB) CA RLA ERICA GO NZA LES (D . N.M .) SA N CH EZ and C AR LO S A D AN A LV A RA D O ,
Defendants-Appellants.
O R D E R A N D JU D G M E N T *
Before B R ISC O E , Circuit Judge, M cW IL L IA M S, Senior Circuit Judge, and G O R SU C H , Circuit Judge.
Carla Erica Gonzales Sanchez and Carlos A dan Alvarado were arrested in
their hotel room after narcotics agents, believing they had M s. Gonzales’s consent
to enter, found in plain view in the room a variety of drug paraphernalia. After
conviction on federal charges, M s. Gonzales and M r. Alvarado challenge the
district court’s denial of their motion to suppress, contending that they did not
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. give consent to enter the hotel room. They also contest the district court’s denial
of a motion for mistrial after a government witness commented on their
invocation of the right to counsel. We reject the former claim because the facts
reasonably found by the district court indicate that M s. Gonzales invited the
officers to enter. W e reject the latter claim because the district court immediately
offered a curative instruction sufficient to address any prejudice. Finally, M s.
Gonzales challenges her sentence, arguing that she should have received a two-
level Guidelines reduction for being only a minor participant in the drug crimes,
and also that the district court erroneously believed itself bound by the
Guidelines. W e hold that the district court properly applied the law and imposed
a reasonable sentence.
I
A
Taking the facts in the light most favorable to the government as the
prevailing party before the district court, as we are obliged to do, they reveal that,
at around 7:00 p.m. one evening in January 2005, Agent Brice Current, a member
of the Region II Narcotics Task Force in the San Juan County Sheriff’s Office,
received a telephone call from an employee at the Best W estern Hotel in
Bloomfield, New M exico, tipping him off to suspected drug-related activity in the
hotel. Agent Current, along with Agent Jacob Schmidt, promptly drove to the
-2- hotel. The manager identified Room 112, registered to M s. Gonzales, as the
source of his suspicions. He based his concern on the fact that M s. Gonzales was
a local resident (her identification listed a residential address across the street
from the hotel); she and M r. Alvarado were in the room for long periods of time
and did not pick up the phone when calls were transferred to them; and various
visitors came to the room throughout the day, often using the side entrance of the
hotel rather than the lobby, despite the fact that the lobby entrance was closest to
Room 112.
After meeting with the hotel manager and at approximately 9:00 p.m., the
agents approached Room 112. Both wore plain clothes with their firearms
concealed. After knocking on the door, the agents saw the peep hole darken and
heard movement inside, as if drawers w ere being opened and closed. The agents
knocked again with the same result. After knocking a third time, a female voice
asked in English, “W ho is it?” to w hich Agent Current replied “Brice” (his first
name). Dist. Ct. Order at 2. M s. Gonzales then opened the door partially. Agent
Current displayed his badge and explained that he w as w ith the R egion II
Narcotics Task Force, and he asked if he and Agent Schmidt could come in the
room to talk. According to Agent Current’s testimony, M s. Gonzales responded
by opening the door the rest of the way, stepping back, nodding her head
affirmatively, and motioning the agents in with her hand. Id. at 3.
-3- The agents entered the room, where they encountered both M s. Gonzales
and M r. Alvarado, apparently M s. Gonzales’s boyfriend at the time. They
explained to the pair that there had been complaints about drugs being sold from
the hotel room, to which M s. Gonzales responded simply “no drugs.” Id. W hile
in the room, however, the agents saw in plain view on the dresser a bag of what
appeared to be methamphetamine (later determined to be methyl sulfonyl methane
(“M SM ”) – a common cutting agent for preparing methamphetamine), an
electronic scale on a desk, and off-white powder on the toilet seat in the adjacent
bathroom. The agents called in officers w ho had been on standby near the hotel,
who assisted in arresting the defendants.
After the room was secured, a search warrant was obtained and executed.
During the search, agents found on the windowsill six bags of methamphetamine
(each bag containing slightly less than one ounce), additional amounts of M SM in
the toilet, various scales and empty bags, and a pay/ow e ledger inside M s.
Gonzales’s purse. They also searched M r. Alvarado’s car, parked in the hotel lot,
and found another container of M SM .
B
M r. Alvarado and M s. Gonzales were charged with one count of possession
with intent to distribute 50 grams or more of a mixture containing
methamphetamine, see 21 U.S.C. § 841(a)(1) & (b)(1)(B), and one count of
-4- conspiracy to possess with intent to distribute 50 grams or more of a mixture
containing methamphetamine, see 21 U.S.C. § 846. A superseding indictment
increased the penalty provision for each charge based on the purity of the seized
drugs, pursuant to 21 U.S.C. § 841(b)(1)(A).
Both defendants pled not guilty and moved to suppress the evidence seized,
contending that the agents’ entry into their hotel room was nonconsensual and
thus unreasonable under the Fourth Amendment. In a written order, the district
court denied the motion, finding that M s. Gonzales had consented to the agents’
entry. See Dist. Ct. Order at 5-12.
W hile testifying during the trial that followed, Agent Current was asked by
M r. Alvarado’s counsel whether police obtained any fingernail scrapings from
defendants to determine the presence of methamphetamine on their persons.
Agent Current replied, “No sir. I believe they had requested to speak to an
attorney during the interview process.” See Trial Tr. at 142. M r. Alvarado and
M s. Gonzales immediately moved for a mistrial, arguing that the agent
impermissibly commented on their invocation of the right to counsel and the right
to remain silent.
In response, the district court found that the comment by Agent Current was
an inadvertent mistake and a result of the agent trying to recount chronologically
what had happened. The court did, however, instruct the jury that M r. Alvarado
-5- and M s. Gonzales were entitled to an attorney and that the jury should not draw
any conclusion or inference from their invocation of that right. Defense counsel
urged that this curative instruction was insufficient and renewed their motion for
mistrial; the district court denied the request and the trial continued. After three
days of proceedings, the jury found M r. Alvarado guilty on both counts, and
found M s. Gonzales guilty of possession but not conspiracy. The district court
sentenced M r. Alvarado to 262 months imprisonment and M s. Gonzales to 151
months.
Both defendants now appeal the district court’s denial of the motion to
suppress and the district court’s refusal to grant a mistrial. Additionally, M s.
Gonzales appeals her sentence. W e address each contention in turn.
II
M s. Gonzales and M r. Alvarado do not dispute that the agents saw drug
paraphernalia in plain view in the hotel room, but they do argue that the agents’
entry was unlaw ful. The reasonableness of the agents’ actions under the Fourth
A mendm ent is a legal question and thus one we review de novo. In cases
challenging a warrantless entry leading to an arrest, the burden is on the
government to (1) “present clear and positive testimony that consent was
unequivocal and specific and freely and intelligently given”; and (2) “show that
the police did not coerce the defendant into granting [her] consent.” United
-6- States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998) (internal quotation marks
omitted). W hile approaching these legal tests de novo, we must take the facts in
the light most favorable to the prevailing party, here the government, accepting
the district court’s factual findings unless clearly erroneous. See United States v.
Cheromiah, 455 F.3d 1216, 1220 (10th Cir. 2006). And, indeed, the primary
challenge in this case concerns those factual findings.
1. According to the district court, after Agent Current asked M s.
Gonzales if he and Agent Schmidt could enter the room to talk, M s. Gonzales
responded by opening the door more fully, standing back, nodding her head, and
gesturing the agents in with a sweep of her hand. See Dist. Ct. Order at 8.
Although M s. Gonzales never vocalized her consent, the district court found that
she expressed it unequivocally through her actions in response to Agent Current’s
question. See United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999)
(“N on-verbal conduct, considered with other factors, can constitute voluntary
consent to search.”). M oreover, the district court found that M s. Gonzales
understands English well enough to have understood Agent Current’s request to
enter the room and to have given free and voluntary consent in response to that
request. See Dist. Ct. Order at 9.
M s. Gonzales and M r. A lvarado dispute most of these and other findings.
For example, according to M s. Gonzales, she never answered “Who is it?” when
-7- the agents knocked on the door. M s. Gonzales likewise claims that she
understands little English and that she did not understand anything Agent Current
said to her at the door. Finally, she contends that she only stepped behind the
door and opened it wider to prevent the agents from seeing her in her pajamas,
and in no way gestured to invite the agents to enter the room. At bottom then, the
dispute before us boils dow n to the simple question whether to believe appellants’
account of events or the agents’: W ho is lying? W ho is telling the truth?
Resolving such credibility disputes is treacherous in the best of circumstances.
The task is made all the harder at the remove at which we work, without the
benefit of being able to watch M s. Gonzales and Agent Current testify in person.
This, of course, is precisely why our standards of review dictate such
substantial deference to the trial judge in this arena. And, indeed, on the record
before us, we cannot say the district court’s credibility and factual determinations
are clearly erroneous. As the district court noted, M s. Gonzales’s testimony
contains various inconsistencies and implausibilities that rendered her account
less plausible than Agent Current’s. See Dist. Ct. Order at 7-8. W hile testifying
that she was in the process of moving from one home to another, she could not
remember the address of the home to which she was moving, or even the street on
which it was located. She attested that the only visitors to her room were M r.
Alvarado, her son, and her siblings – yet, the hotel manager registered the names
-8- of several others w ho visited the room. Though professing to be unable to
understand the agents speaking English at the door, M s. Gonzales admitted she
understood Agent Current to be asking about “drugs” after entering the room and
that she said the words “no drugs” in response. She also used a number of other
English phrases on the day of her arrest and shortly thereafter.
2. Even if M s. Gonzales did consent to the agents’ entry, appellants urge
us to find that her consent was coerced. W e cannot agree, especially in light of
our holding in Pena.
In Pena, four police officers visited a motel room after receiving
complaints of drug activity. 143 F.3d at 1365. The officers knocked on the door,
explained in English to the man w ho answered the door that they had received
complaints, and asked whether they could enter and look around, though they did
not specifically inform the defendant that he could decline to cooperate. Id. The
defendant later argued coercion, emphasizing that he lacked sufficient English to
understand the officers. The district court rejected this argument, finding, among
other things, that the defendant “understood more than enough English to know
what [the officers] asked him” and that he had freely given his consent. Id. W e
affirmed. The facts here are virtually identical to those in Pena. Indeed, if
anything, Pena involved an arguably more coercive situation. There, four (not
two) officers asked to enter the room. All four officers were uniformed with guns
-9- holstered (rather than in plain clothes w ith guns concealed). Holding an unduly
coercive situation existed here would thus defy our responsibility to precedent.
3. M r. Alvarado makes an additional, though similar, argument –
contending that, under the totality of the circumstances and especially given the
time of day (9:00 pm), no reasonable person would have felt free to end the
encounter w ith police officers at the door. See Florida v. Bostick, 501 U.S. 429,
439 (1991) (“[I]n order to determine w hether a particular encounter constitutes a
seizure, a court must consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers’ requests or otherwise
terminate the encounter.”).
W e are constrained to disagree. Once again, this court has already rejected
a highly analogous claim. In United States v. Spence, we found nothing aw ry
with a “knock and talk” encounter where, just as here, “the agents w ere dressed in
plain clothes and did not display their weapons at any time, . . . their tone and
demeanor w ere professional, and . . . there was no evidence that they raised their
voices or physically touched or restrained [defendant].” 397 F.3d 1280, 1284
(10th Cir. 2005). M r. Alvarado’s insistence that the hour of the “knock and talk”
encounter (9:00 p.m.) distinguishes this case and renders the agents’ conduct
unreasonable is unpersuasive. W hile w e agree that police waking people in their
- 10 - hom es in the middle of the night can well contribute to a coercive atmosphere, w e
cannot help but agree with the district court that no such coercion is inherently
and always present at 9:00 p.m., an hour at which “the vast majority of people are
still aw ake,” D ist. Ct. Order at 11, perhaps especially in a hotel setting where it
is not unknown for guests, visitors, room service attendants, and others to come
and go regularly at that hour. Compare United States v. Cormier, 220 F.3d 1103,
1107, 1109-10 (9th Cir. 2000) (finding no detention where an officer conducted a
“knock and talk” at a motel room after 8:00 p.m.) with Harless v. Turner, 456
F.2d 1337, 1338-39 (10th Cir. 1972) (per curiam) (finding unlawful search where
police aw akened defendants in their home at 1:45 am) and Fontenot v. Cormier,
56 F.3d 669, 671, 675-76 (5th Cir. 1995) (finding unlawful seizure where police
came to home at 2:30 am).
III
M s. Gonzales and M r. Alvarado next challenge the district court’s denial of
their motion for mistrial following Agent Current’s reference at trial to the
defendants’ invocation of the right to counsel. A trial court may grant a motion
for mistrial when, in its discretion, it concludes that the defendant’s right to a fair
and impartial trial has been impaired. W e review such decisions for an abuse of
discretion, see United States v. Nash, 482 F.3d 1209, 1217 (10th Cir. 2007), and
we discern none here.
- 11 - After entertaining defense counsel’s objections regarding Agent Current’s
testimony, the district court stated to the jury:
Ladies and Gentlemen, the O fficer just referred to the defendant’s request for counsel. As you probably know , from watching TV, one who is accused of a crime or who is a suspect, is entitled to have an attorney. And there is nothing in that that should be used to infer guilt or innocence. That is a constitutional right for which each of us are guaranteed, and you should not draw any conclusion from that or any inference from their request to have an attorney to consult with.
Trial Tr. at 145-46. The district court, thus, hardly ignored appellants’ concern
but sought to allay it. To be sure, defense counsel argued that this instruction was
insufficient to cure the prejudice to their clients and that only a new trial w ould
suffice. But the district court, with the advantage (unlike us) of being able to
observe and discern the impact of Agent Current’s comment and the curative
instructions given to the jury, determined that such a course of action was
unnecessary to ensure appellants a fair trial.
As best we can tell from our vantage, the district court’s course was
entirely reasonable. The agent’s answer came in response to a question from M r.
Alvarado’s attorney, not in response to an invitation from the government. The
district court found, based on its assessment of the witness, that Agent Current
did not intend any impropriety but was simply “trying to relate chronologically
what happened,” and explain why no fingernail scraping was taken upon arrest.
Trial Tr. at 144-45. And the prosecution made no subsequent effort to exploit the
- 12 - comment. All of these facts combine to suggest the district court acted well
within its discretion in choosing the course it did, and our review of the trial as a
whole and the strength of the evidence presented only serve to strengthen our
conviction on this score.
IV
Two issues relating to M s. Gonzales’s sentence merit our attention.
1. M s. Gonzales argues that the district court should have granted her a
two-level “minor participant” reduction when calculating her Guidelines offense
level. See U.S.S.G. § 3B1.2. W ith such a reduction, her Guidelines-
recommended sentencing range would have been 121 to 151 months, rather than
the 151 to 188 months the district court employed. W e review the district court’s
interpretation of the sentencing guidelines de novo, though its factual findings
applying the guidelines may be disturbed only in the presence of clear error. See
United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999).
M s. Gonzales has a point. At sentencing, the government seemed to argue
that, in order to qualify for a minor role reduction, she had to admit her guilt. See
Sent. Tr. at 11-12. This argument was erroneous; the admission of guilt is not a
categorical prerequisite to earning a minor participation reduction. But the
government also argued that the evidence M s. Gonzales adduced about her
participation “completely failed” to suggest she was only a minor participant.
- 13 - Sent. Tr. at 11-12. In denying the minor participation reduction, the district court
stated simply that it “agree[d]” generally with the government and, thus,
presumably with both of its arguments. Sent. Tr. at 12.
Accordingly, aside from the question of admission of guilt, we understand
the government to have argued, and the district court to have agreed, that M s.
Gonzales failed, as a matter of fact, to establish that her conduct rendered her a
minor participant. Given ample evidence in the record supporting such a finding,
and M s. Gonzales’s burden to establish her eligibility for a minor participant
reduction, we cannot deem the district court’s decision to be clearly erroneous.
For example, M s. Gonzales rented and paid in cash for the hotel room in which
police found her and M r. Alvarado with significant amounts of drugs. Trial
testimony indicates that police recovered from M s. Gonzales’s purse drug-related
pay/owe sheets that were similar to one found in M r. A lvarado’s wallet. See Trial
Tr. at 101. And police discovered “unreal” amounts of air freshener, often used
to mask the odor of drugs, in M s. Gonzales’s car. Id. at 156-58. The district
court itself, in responding to M s. Gonzales’s argument in favor of a minor
participant reduction, noted that the jury had “found it was [M r. Alvarado’s]
methamphetamine, and [that] [M s. Gonzales] was helping him distribute it.”
Sent. Tr. at 11. Thus, even if we interpret the district court’s statement that it
“agree[d]” with the government to mean that the court accepted an erroneous
- 14 - characterization of the minor participant reduction, its decision to deny the
reduction is supported by alternative, non-erroneous reasons.
As such, we disagree with M s. Gonzales that the district court’s (possible)
error requires that we remand this case for resentencing, as any such error was
harmless in this instance. See United States v. Wilken, 498 F.3d 1160, 1169 (10th
Cir. 2007) (“Even where we find an error in calculating the Guidelines range, . . .
we need not vacate and remand the sentence if the error w as harmless.”). A
district court’s error in applying the Guidelines is harmless unless it “affect[ed]
the district court’s selection of the sentence imposed.” United States v.
M ontgomery, 439 F.3d 1260, 1263 (10th Cir. 2006) (internal quotations omitted).
Because the district court found that M s. Gonzales had not established, in light of
the evidence against her and regardless of any non-admission of guilt, that she
was only a minor participant, we have no doubt that the court would have denied
the sentencing reduction even in the absence of the government’s erroneous
description about the requirements for a minor role reduction.
2. M s. Gonzales also argues that the district court considered itself
bound to impose a sentence within the range suggested by the Guidelines. If true,
this would be error. See, e.g., United States v. Gonzalez-Huerta, 403 F.3d 727,
731 (10th Cir. 2005) (en banc).
- 15 - After hearing M s. Gonzales’s arguments in favor of varying below the
Guidelines range, the district court stated, in relevant part:
I don’t agree with the level of penalties imposed for drugs under the guidelines as a general proposition, but I do think it’s important to honor the concept of the guidelines and try to have some uniformity within the system and not depart widely for reasons of sympathy, passion, or prejudice. .... I w ill impose a sentence which I think is sufficient, although arguably greater than necessary to support the goals of the guidelines. I think the nature and circum stances of the offense and the facts brought out at trial, along with the quantity of m ethamphetamine and the way Congress has characterized methamphetamine . . . as an extremely dangerous drug, and [sic] indicate that a significant sentence would be appropriate. .... The Court has reviewed the presentence report factual findings and considered the Sentencing Guidelines. The Court has also reviewed the factors set forth in 18 United States Code, Section 3553(a), and indeed, if those were the only factors, I w ould have a different sentence. The Guidelines, however, hold me to a bedrock sentence that is longer than I would choose to give, if it were solely discretionary with me.
Id. at 15-16, 18.
W e do not doubt that certain portions of this statement, read in isolation,
could appear to imply a reluctant acquiescence to the Guidelines. See id. at 18.
(indicating that the court was held “to a bedrock sentence that is longer than [it]
would choose to give, if it were solely discretionary”). But reading the district
court’s statements as a whole and in context, we think that the court properly
understood the discretionary nature of the Guidelines and simply chose to apply
its discretion to impose a within-Guidelines sentence. Indeed, had the district
- 16 - court truly thought it bound by the Guidelines, it would have had no need to
entertain M s. Gonzales’s argument for a variance in light of the Section 3553(a)
factors, and no need to indicate that it had reviewed and considered those factors.
To us, the district court’s statements, considered in full, bespeak an
understandable and valid effort to strike a balance between, on the one hand,
paying appropriate heed to the Guidelines as an expression of congressional
sentencing intentions and an effort at sentencing uniformity and, on the other
hand, the trial judge’s discretion to impose a reasonable sentence in light of
Section 3553(a), regardless of any Guidelines range and according to every
defendant’s unique circumstances.
Our conclusion is bolstered by a review of our precedents. Trial judges
“are presumed to know the law and apply it in making their decisions.” United
States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007) (internal citations
omitted). And we have found the presumption that trial judges are aware of their
(w ell known) discretion in sentencing remains undisturbed in cases markedly
similar to this one. For example, in United States v. Terrell, we affirmed a
sentencing determination where the district court expressly “announc[ed] that it
would give ‘heavy weight’ to the Guidelines ‘because they were designed to meet
the objectives of 3553(a).’” 445 F.3d 1261, 1263-64 (10th Cir. 2006). Similarly,
in United States v. Paredes, we upheld a sentence where the district court stated
- 17 - that “I think otherwise I’m basically stuck with the guidelines.” 461 F.3d 1190,
1194-95 (10th Cir. 2006). W e determined that the language in both cases, when
considered in context of the courts’ full remarks and actions at sentencing, simply
reflected the courts’ recognition of their obligation to consider the Guidelines, not
an obligation to follow the Guidelines blindly. W e see no principled way to reach
a different conclusion in this case.
* * *
The judgments of the district court are affirmed.
- 18 -