Why the Departure/Variance Distinction Matters, Part Two

United States v. Gutierrez-Hernandez, No. 08-20620 (5th Cir. Aug. 28, 2009) (King, Higginbotham, Clement)

Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review." Turns out that I couldn't have been more wrong. Exhibit 1: the Sixth Circuit's recent decision holding that, even post-Booker, a district court's discretionary refusal to depart is unreviewable on appeal, which is in accord with at least one unpublished Fifth Circuit decision. Exhibit 2: Gutierrez-Hernandez, in which the court reverses a sentence involving an upward departure, because the district court erroneously applied two of the Guidelines departure provisions.

What happened? Gutierrez pleaded guilty to illegal reentry.

The district court adopted the presentence report which preliminarily calculated a guideline sentence range of 10 to 16 months based on a total offense level of 10 and a criminal history category of III. The PSR then recommended two guideline departures. First, it pointed to a 2008 state handgun conviction for which Gutierrez was sentenced to 20 days imprisonment. The report suggested a departure under § 4A1.3, Inadequacy of Criminal History Category, because if the crime had been federally prosecuted, Gutierrez would have faced a greater sentence. Second, the PSR recommended a departure under § 5K2.0, Other Grounds for Departure, based on a 2003 state drug conviction, which, based on a police department offense report, the probation officer considered more serious than the guidelines accounted for. Gutierrez filed written objections to the upward departures in the PSR. In its statement of reasons, the district court repeated the language from the PSR and checked the boxes indicating that both departure provisions applied, thereby increasing Gutierrez’s offense level from 10 to 17. This resulted in a guidelines range of 30 to 37 months. Gutierrez was sentenced to 30 months.

On appeal, Gutierrez argued that the district court committed procedural error by misapplying the departure Guidelines. The court agreed. As for the criminal history departure, the court said that "[t]he prior state sentence may well under-represent the seriousness of Gutierrez’s criminal history[,]" but declined to "reach that question because the district court erred in determining the manner in which an adequate criminal history score is accounted for." The Guidelines require that a criminal history departure be made by adjusting the criminal history category, not—as the district court did—by adjusting the offense level. "A departure based on the inadequacy of criminal history is not made by adjusting the factor that accounts for the offense level of the instant crime."

A similar flaw underlay the district court's application of §5K2.0. The district court justified the departure on the ground of Gutierrez's prior Texas conviction for delivery of a controlled substance. That conviction did not trigger the "drug trafficking" enhancement under §2L1.2 because the Shepard-approved documents did not exclude the possibility that the conviction rested on an offer-to-sell, which at the time of sentencing in this case did not qualify as a drug-trafficking offense. Nevertheless, "the district court looked to the police report—a document it could not consider under the [Taylor-Shepard approach]—to determine that Gutierrez’s conduct involved an actual sale of cocaine, activity within the federal definition of a drug trafficking offense, and not merely an offer to sell, which is outside the definition. It determined that Gutierrez’s conduct would have triggered the enhancement if the indictment had described Gutierrez’s conduct in detail. It therefore applied the § 5K2.0 departure." That was error, said the court of appeals:

A district court cannot escape Taylor and Shepard by looking to a police report—which it could not earlier use to determine whether a prior conviction was a drug trafficking offense—to later justify a departure on the basis that the enhancement should have applied. Even more fundamentally, the 2003 conviction cannot support this departure because prior offenses serve as the basis for § 4A1.3 departures, which specifically focus on criminal history, and not § 5K2.0 departures, which consider circumstances of the instant offense. The provision identifies inter alia as relevant circumstances death, physical injury, psychological injury, abduction, and property damage, all pertinent to the offense at hand.

(emphasis added). Thus, the district court committed procedural error within the meaning of Gall, because "it gave no valid basis for the § 5K2.0 departure and misapplied the § 4A1.3 departure." More importantly, this error was fatal to the sentence:

The government urges that this Court can affirm the sentence as reasonable, under the second step of Gall, despite the procedural error in calculating the guideline sentencing range. If this case were in the Seventh or Ninth Circuit that argument might have traction. Those circuits, after United States v. Booker directed that the Guidelines were advisory, found that the guideline departures provisions had been “rendered obsolete” and “replaced by the requirement that judges impose a ‘reasonable’ sentence.”

This Circuit, however, has found otherwise. In a case vacating and remanding because the district court misapplied a guideline enhancement, we stated “nothing suggests that Booker injected a reasonableness standard into the question whether the district court properly interpreted and applied the Guidelines or that an appellate court no longer reviews a district court's interpretation and application of the Guidelines de novo.” Booker left in force 18 U.S.C. § 3742(f) which provides: “If the court of appeals determines that . . . the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate.” A district court must correctly apply the sentencing guidelines.

Of course, a court may impose a non-guidelines sentence based on the reasonableness factors in 18 U.S.C. § 3553(a). But one of those factors is the sentence established by the guidelines. The properly-calculated guideline sentencing range is the point from which the court may vary, a necessary factor in determining reasonableness. The Eleventh Circuit labels this the “consultation requirement,” and the Third Circuit recognizes that error in calculating the guideline range “may presage the sentence ultimately set.” Without the correct guideline range, the court varies from the wrong point.

Because the district court erred in the application of the departure provisions we VACATE Gutierrez’s sentence and REMAND for resentencing.

No doubt a key factor in this winning appeal is that Gutierrez submitted written objections to the PSR's call for an upward departure, thus avoiding plain error review. And you should always have the opportunity to do that. Remember that Fed. R. Crim. P. 32(h) still requires advance notice that the court is contemplating a departure (although not for variances).