Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JACKI L. IRELAND Assistant United States Attorney Arizona State Bar No. 019144 Two Renaissance Square 40 N. Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America Plaintiff, v. Juan Perez-Robles, CR-03-1267-PHX-FJM GOVERNMENT'S MEMORANDUM REGARDING AMELINE REMAND

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The United States, through undersigned counsel, respectfully submits the following memorandum setting forth the government's views regarding how the Court should proceed in light of the limited Ameline remand of the defendant's sentence by the Court of Appeals for the Ninth Circuit. As explained in the attached Memorandum, the record indicates that this Court would not have imposed a materially different sentence had it known at the time it sentenced the defendant that the United States Sentencing Guidelines should be viewed as advisory rather than mandatory. The Court's determination of whether it would have imposed a materially different sentence does not require an evidentiary hearing; rather, it merely requires the Court to review the record in the case and the Court's recollection of its views at the time of sentencing. If the Court finds it would not have imposed a materially different sentence, it need not re-sentence the defendant, and simply must place on the record its decision not to re-sentence, with an appropriate explanation of the reasons for the Court's decision. 1

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Procedural History

MEMORANDUM

On December 17, 2003, the grand jury indicted the defendant for violating Title 8, U.S.C. §1326(a) as enhanced by §1326(b)(2). (CR 10.) The defendant pled guilty to the indictment on June 21, 2004, without a written plea agreement. (CR 33.) Defendant was then sentenced on September 13, 2004, to 57 months in prison, to be followed by two years of supervised release. (CR 34-35.) The defendant appealed his conviction and sentence. The Ninth Circuit affirmed the defendant's conviction; no issue relating to the conviction is now before this Court. In his appeal, the defendant argued that he should be resentenced because this Court's action in imposing an increased sentence based on a factor not found by a jury, or admitted by the defendant, violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Subsequent to the filing of the defendant's brief, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In Booker, the Supreme Court held that the Sixth Amendment, as construed in Blakely, applies to the Federal Sentencing Guidelines. Id. at 748-56. The decision noted that the mandatory nature of the Guidelines, when combined with judicial fact finding, violated the Sixth Amendment. Id. The statutes which made the Guidelines mandatory were therefore held unconstitutional and severed, leaving the Guidelines intact, but advisory only. Id. at 764-65. To provide guidance concerning how the numerous Booker-related cases should be handled, the Ninth Circuit then issued United States v. Ameline, 409 F.3d 1073 (9 th Cir. 2005) (en banc). In the present case, pursuant to the Ameline decision, the Court of Appeals "remand[ed] for further proceedings consistent with United States v. Ameline, 409 F.3d 1073 (9 th Cir. 2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9 th Cir. 2005) (extending Ameline's limited remand procedure to cases involving non-constitutional error under United States v. Booker, 125 S.Ct. 738 (2005))." (Memorandum Disposition. at 2.)

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This Court subsequently directed the parties to file memoranda regarding the issues on which the case was remanded. The defendant has again urged that he be granted a complete resentencing. (Defendant's Sentencing Memorandum, hereafter "Def. Memo.") 2. The Sentencing At sentencing, defendant objected to this Court imposing a 16-level enhancement based on his prior conviction for unlawful sexual intercourse, claiming that "[i]t's purely a Blakely issue, not a Taylor issue." (ER 24, 29.) This Court overruled defendant's objection and found that the defendant's prior conviction did qualify as a crime of violence. (ER 30.) The applicable sentencing range was established at 57-71 months. (ER 30.) Defense counsel mentioned to this Court that the defendant could receive a downward departure for cultural assimilation or a "downward departure under 5.2 just in terms of general things not considered." (ER 33.) Defense counsel then asked this Court to sentence the defendant to the low end of the range. (ER 33.) The Government requested a sentence at the mid to high end of the sentencing range. (ER 34.) This Court then explained that "one could argue for the higher end based on five felony convictions and the recency of the prior federal conviction for reentry, plus the nature of the prior offenses." (ER 36.) However, this Court also recognized that the low end would be appropriate because most of the defendant's prior criminal conduct had "occurred some while ago, and but for the reentry, the defendant has been relatively free of contact with the criminal justice system." (ER 36.) This Court then specifically stated that "the low end of the guideline range is appropriate here." (ER 36.) This Court then elaborated by saying, "I don't think the record would support the suggestions for a downward departure based on cultural assimilation or the more general category that was suggested. With five felony convictions, it's not the kind of assimilation that one generally would welcome." (ER 36.) This Court then sentenced the defendant to 57 months, which was the low end of the sentencing range. (ER 36-37.) At no time during the sentencing, did this Court express concerns that this sentence, or the range itself, was

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too high or that the Court would impose a different sentence if the guidelines did not mandate the stated range. 3. Ameline Remand Procedure Subsequent to the filing of the defendant's brief, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In Booker, the Supreme Court held that the Sixth Amendment, as construed in Blakely, applies to the Federal Sentencing Guidelines. Id. at 748-56. The decision noted that the mandatory nature of the Guidelines, when combined with judicial factfinding, violated the Sixth Amendment. Id. The statutes which made the Guidelines mandatory were therefore held unconstitutional and severed, leaving the Guidelines intact, but rendered advisory. Id. at 764-65. To provide guidance concerning how the numerous Booker-related cases should be handled, the Ninth Circuit issued United States v. Ameline, 409 F.3d 1073 (9 th Cir. 2005) (en banc). The Ameline court noted that Booker found the existence of a constitutional error in "[t]he sentencing judge's enhancement of [a] defendant's sentence in reliance upon judge-made findings under the then-mandatory guidelines." Ameline, 409 F.3d at 1078. However, "[s]tanding alone, judicial consideration of facts and circumstances beyond those found by a jury or admitted by the defendant does not violate the Sixth Amendment right to jury trial. A constitutional infirmity arises only when extra-verdict findings are made in a mandatory guidelines system." Id. at 1077-78. "Because the error turns on the use of judge-found facts in a mandatory guidelines system and those guidelines are now advisory, [a defendant] must demonstrate a reasonable probability that he would have received a different sentence had the district judge known that the sentencing guidelines were advisory." Id. "[I]f the judge would have imposed the same sentence even if he had thought the guidelines merely advisory . . . and the sentence would be lawful under the post-Booker regime, there is no prejudice to the defendant." Id. at 1081 (quoting United States v. Paladino, 401 F.3d471, 483 (7 th Cir. 2005)). The practical difficulty defendants face in attempting to satisfy that burden when the sentencing courts generally had no reason to say anything about what they would have done 4

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under an advisory Guidelines regime ­ together with the ease and reliability of an answer that could be provided by the district court on remand ­ persuaded the Ninth Circuit to follow the limited remand procedure adopted in several other circuits. Ameline, 409 F.3d at 1078-81. Its directions concerning the procedures to be followed are explicit: [W]here it is not possible to reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we will remand to the sentencing court to answer that question. In answering the question we pose, the district court need not determine or express what the sentence would have been in an advisory system. It is enough that the sentence would have been materially different. We agree with the Second Circuit that the "views of counsel, at least in writing," should be obtained. If the district court judge determines that the sentence imposed would not have differed materially had he been aware that the Guidelines were advisory, the district court judge should place on the record a decision not to resentence, with an appropriate explanation. A party wishing to appeal the order may file a notice of appeal as provided in Fed. R.App. P. 4(b). If the district court determines that the sentence imposed would have differed materially if the district court judge were applying the Guidelines as advisory rather than mandatory, the error was prejudicial, and the failure to notice the error would seriously affect the integrity, fairness and public reputation of the proceedings. In such a case, the original sentence will be vacated and the district court will resentence with the defendant present. In resentencing the defendant, the district court is permitted to take a fresh look at the relevant facts and the Guidelines consistent with Booker, the Sentencing Reform Act of 1984, Rule 32 of the Federal Rules of Criminal Procedure, and this opinion. Id. at 1084-85 (citations and footnotes omitted). 4. Resolution of This Case As noted above, this case was remanded to this Court only for the limited purposes described in Ameline. In its remand order, the Court of Appeals stated, "because Perez-Robles was sentenced under mandatory Sentencing Guidelines, we remand for further proceedings consistent with United States v. Ameline, 409 F.3d 1073, 1084-85 (9 th Cir. 2005) (en banc)." (Memorandum Disposition at 2.) Thus, because this is a limited remand, the defendant is not entitled to full reconsideration of the sentence which this Court imposed unless this Court first expressly determines that its sentence would have been "materially different" under Guidelines that were recognized to be only advisory. Ameline, 409 F.3d at 1084-85. In his sentencing memorandum, the defendant urges this Court to reexamine his prior conviction (unlawful sexual intercourse) and make a new determination that this crime does not 5

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qualify as an crime of violence for enhancement purposes. This request is inconsistent with the Court of Appeals' order. The remand was ordered solely for this Court to determine whether it would have imposed a materially different sentence had it been aware in 2004 that the Guidelines should be viewed as advisory rather than mandatory. The record in this case suggests this Court would not have imposed a materially different sentence had the Court perceived the Guidelines to be advisory. The Court had the opportunity to depart, and exercised its discretion in not doing so. This Court imposed the sentence it deemed appropriate under the circumstances of this case. The quoted language above shows this Court appropriately exercised its discretion by noting the various items in the defendant's criminal history, carefully evaluating that history, and relating the defendant's criminal history to the conduct involved in the offense of conviction when determining where to sentence the defendant within the applicable sentencing guideline range. The Court's language was that of choice, not of compulsion. In short, this Court made findings that resulted in a sentencing range with which the Court was comfortable, and then it exercised its discretion to impose a particular sentence, at the bottom of the available range. As the Court stated at the time, it was imposing the sentence it believed was "appropriate" in light of the totality of circumstances present in the case. It therefore appears that the advisory nature of the Guidelines would not have materially altered the sentence chosen by the Court. Unless this Court harbored thoughts about the sentence it imposed on the defendant that were not only unexpressed but at odds with what it did state about its reasons for that sentence, the sentence it would have imposed had it known that the Guidelines were advisory would not have been different at all from what it actually imposed, much less "materially different." Therefore, the defendant is not entitled to be resentenced. This Court need only "place on the record a decision not to resentence, with an appropriate explanation," and inform the defendant of his right to appeal that order. Ameline, 409 F.3d at 1085.

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CONCLUSION The record suggests this Court would not have sentenced the defendant differently had it known that the Sentencing Guidelines are advisory. Therefore, the defendant is not entitled to be resentenced. Respectfully submitted via this 6 th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Jacki L. Ireland JACKI L. IRELAND Assistant U.S. Attorney

I hereby certify that on this day, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Donna Elm.

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