Fives Speak to Post-Rita/Gall/Kimbrough Reasonableness Review, Affirm Substantial Upward Variance Based on Criminal History

United States v. Herrera-Garduno, No. 07-40327 (5th Cir. Mar. 10, 2008) (Jolly, Barksdale, Benavides)

Fifth Circuit watchers know that the court has been largely silent on what Rita, and more recently Gall and Kimbrough, mean for reasonableness review in our circuit. That's (sort of) no longer the case, as Herrera-Garduno sheds light on how the Fives will approach such questions, at least when it comes to upward variances from the advisory Guidelines range. And that approach is quite deferential. Time will tell whether the same will hold true for below-Guidelines sentences and downward departures, although it certainly should.

Herrera pleaded guilty to a crime you may have heard of before: illegal reentry. He had a prior Texas drug conviction under a statute that prohibits manufacture, delivery, or possession with intent to deliver, which the PSR scored as a +16 DTO. Combined with an acceptance-of-responsibility adjustment, and a Criminal History Category of V, that put Herrera at a Guidelines range of 70 to 87 months.

Herrera objected to the DTO enhancement, presumably on the basis of this case law. That evidently got him down to just a +4 "any other felony" enhancement, because the post-objection Guidelines range was 21 to 27 months. That recalculation, in turn, prompted a Government request for an upward departure/variance, which the district court granted. Concluding that the Guidelines range didn't capture the seriousness of Herrera's criminal history (apparently due to the facts of the Texas drug prior, "which according to the district court indicated that Herrera was in fact trafficking heroin"), the court sentenced Herrera to 60 months' imprisonment.

On to the appeal. Per Gall, the court first considered whether there was any procedural error. It found none:

The district court correctly calculated the Guidelines range,* treated the Guidelines as advisory, considered the § 3553(a) factors, allowed both parties to present arguments as to what they believed the appropriate sentence should be, did not base Herrera’s sentence on clearly erroneous facts, and thoroughly documented its reasoning.

The court also held that the sentence was substantively reasonable, rejecting all three of Herrera's arguments to the contrary.

Herrera first argued that the district court's disagreement with the way his Texas drug conviction scored under the guideline "is not a sufficient reason to impose a non-Guidelines sentence." No dice, says the court, because Kimbrough approved variances based on policy disagreements with the guidelines. And, 1) "we have previously held that '[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence'" (citing Smith), 2) "we have also upheld an upward departure without regard to whether the prior offense 'technically' qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii)" (citing Tzep-Mejia), and 3) "in a recent case . . . we noted that, even though the defendant’s prior conviction was not a 'drug trafficking offense' under § 2L1.2(b)(1)(A)(i), if, on remand, the district court chose to impose a non-Guidelines sentence, the district court could consider the defendant’s prior conviction for this purpose" (citing Lopez-Salas). Thus, "[i]n the light of these precedents, it is clear that the district court did not abuse its discretion by considering the facts of Herrera’s prior convictions as a basis for his non-Guidelines sentence."

[Quibble: Tzep-Mejia and Lopez-Salas don't have quite the precedential weight the court attributes to them. Tzep-Mejia affirmed what the court strongly suggested was a downward variance, not an upward variance. And that line in Lopez-Salas was dictum, even if it is true as a general matter.]

Second, Herrera argued that the district court's "'generalized observations' [were] insufficient to justify the extent of the upward departure." The court declared, somewhat non-responsively, that "this argument . . . lacks weight" because "we have rejected Herrera's argument regarding the district court's 'disagreement' with how 'drug trafficking offenses' are defined under § 2L1.2[.]" More to the point, the court cited precedent holding that a district court does not need to specifically address each and every § 3553(a) factor. "Here, because the district court relied primarily on the facts of Herrera’s prior conviction, and because the court addressed these facts and their relation to the § 3553(a) factors in some detail, we are satisfied that the district court’s statement of reasons provides an adequate basis for our review."

[Another quibble: the opinion doesn't recount the district court's discussion of the factors, so it provides little guidance as to how much discussion is necessary for a variance of this (or any other) magnitude. A footnote seems to show that the written statement of reasons was largely a boilerplate recitation of § 3553(a) language, without reference to the specific facts of Herrera's case.]

Finally, Herrera argued that even if an upward departure was warranted, the facts didn't justify the extent of the departure. The court disagreed, holding that "the departure is commensurate with the individualized, case-specific reasons provided by the district court[,]" although again without describing those reasons in any detail. And then there's this curious passage:

The district court concluded that the Guidelines range did not adequately account for the fact that Herrera had in fact been convicted for drug trafficking conduct. Had the sentencing enhancement under § 2L1.2 for drug trafficking offenses been applied, the Guidelines sentencing range would have been 70 to 87 months of imprisonment. Using this range as a reference, Herrera’s sentence of 60 months of imprisonment is not unreasonable and the district court did not abuse its discretion by imposing this sentence.

(Why would an inapplicable range based on an incorrect guideline calculation be an appropriate frame of reference? Of course, this works both ways. Sometimes a prior conviction triggers a substantial enhancement that is out of proportion to the seriousness of the actual conduct underlying the conviction.) The court also cited cases, including a couple from the mandatory Guidelines era, approving "similar and proportionately larger deviations from the advisory Guidelines."

The silver lining here (and yes, there is a silver lining) is that Gall compels the court of appeals to apply this same degree of deference to below-Guidelines sentences. So, to take just one example, a district court should feel perfectly free to chop the advisory Guidelines range in half (or more) when an illegal reentry defendant is getting hammered with a +16 DTO bump for selling a gram of coke in an undercover buy, especially when it's obvious that he was just a user or an addict supporting his own habit. And that sentence should survive appellate review.

*Meaning that an offer-to-sell isn't an aggravated felony.