United States, Appellee, v. Dionisio Zapete-garcia, A/k/a Vetilio E. Fajardo, Defendant, Appellant, 447 F.3d 57 (1st Cir. 2006)

In October 2004, Dionisio Zapete-Garcia (Zapete) disembarked from an airplane in Isla Verde, Puerto Rico. The flight had originated in the Dominican Republic. On arrival, Zapete presented United States immigration officials with an American permanent resident card bearing his own photograph and the name Vetilio E. Fajardo. Upon questioning, Zapete admitted that he had obtained the card fraudulently, paying approximately $1,500 for it. Federal Immigration and Customs Enforcement records revealed that Zapete had been deported from the United States twice previously, once in 1985 and once in 1987.

That December, Zapete pleaded guilty to one count of knowingly using or attempting to use a forged, counterfeit, or altered immigration document in violation of 18 U.S.C. § 1546(a). His sentencing hearing took place on February 4, 2005 in the District Court for the District of Puerto Rico. The district judge, following the recommendation of the Pre-Sentence Investigation Report (PSR), began his calculations under the federal Sentencing Guidelines¹  with a base offense level of 8. He then added two levels because Zapete was an unlawful alien who had previously been deported from the United States (U.S.S.G. § 2L2.2(b) (1)) and subtracted two levels for acceptance of responsibility (§ 3E1.1), arriving at a total offense level of 8. Because Zapete had never before been convicted of any offense, the court determined his criminal history category to be I. The total offense level combined with the criminal history category yielded a recommended guidelines sentencing range of zero to six months. The district judge, however, after reminding the parties that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), had rendered the guidelines advisory rather than mandatory, sentenced Zapete to 48 months in prison, eight times the maximum guideline-recommended sentence.²  As explanation for the sentence he chose, the judge stated:

The Court imposes this sentence based on the following factors. As it appear[s] from the presentence report . . . this defendant has already been deported twice from the United States. He had been deported back in October of [19]85 and August of 1987. It also appears from the presentence report that he was arrested on November 14, 1991, in New York City, charged with criminal possession of controlled substance, narcotics, a Class A Felony, and with criminal possession of a weapon, which is a Class D Felony. And since 1992 a bench warrant [that] has been issued for his arrest remains outstanding. For those reasons the Court imposes the sentence that it has imposed.

Zapete now challenges his sentence.

We review sentences imposed after Booker for reasonableness. Booker, 543 U.S. at 261, 125 S. Ct. 738; United States v. Alli, 444 F.3d 34 (1st Cir. 2006).³  Procedurally, under the advisory guidelines scheme set in place by Booker, a sentencing court will ordinarily begin by calculating the applicable guidelines range and then determine whether other factors "warrant an ultimate sentence above or below the guideline range." United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc). The court must consider factors identified by the parties, see id., and is also bound to consider the several sentencing factors set out in 18 U.S.C. § 3553(a).⁴  Alli, 444 F.3d 34, 39; United States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005). When we review the chosen sentence for reasonableness, we look for "a plausible explanation and a defensible overall result." United States v. Smith, 445 F.3d 1, 3 (1st Cir. 2006) (quoting Jiménez-Beltre, 440 F.3d at 519).

Here, the judge offered two reasons for imposing a sentence upon Zapete that was eight times the length of the maximum guideline-recommended sentence. First, he mentioned the fact that Zapete had previously been deported twice from the United States. Second, he indicated that Zapete's arrest in New York some years earlier, along with the accompanying outstanding bench warrant, was a factor calling for a longer sentence. We evaluate these two factors with an eye to "a reasoned explanation" and "a plausible outcome." Alli, 444 F.3d 34, 39 (quoting Jiménez-Beltre, 440 F.3d at 519).

The first factor, Zapete's previous deportations from the United States, was already accounted for in the guideline calculation: the PSR recommended, and the judge adopted, a two-level increase applicable to a defendant who "is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense." U.S.S.G. § 2L2.2(b) (1). When a factor is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must articulate specifically the reasons that this particular defendant's situation is different from the ordinary situation covered by the guidelines calculation. See Smith, at 3. The judge in this case provided no such explanation. We do note that the two-level guideline enhancement in § 2L2.2(b) (1) applies to any unlawful alien defendant who has previously been deported at least once; the guideline does not recommend a steeper enhancement for defendants who have been deported multiple times. It is not necessarily unreasonable for a judge to increase the sentence of a defendant who had previously been deported more than once, and indeed Zapete had been deported twice. However, although some amount of increase for multiple violations might be reasonable if supported by an explanation, here there was no explanation for an increase of such magnitude. In any event we cannot say that one additional prior deportation reasonably warrants an eightfold increase in punishment. Cf. Smith, at 4 (sentence less than half of minimum guideline suggestion plainly unreasonable where judge provided no sustainable explanation).

The second factor relied upon by the district judge to enhance the sentence, Zapete's arrest in New York City in 1991 and the accompanying outstanding bench warrant, is also unpersuasive to support the magnitude of the increase. To begin with, the guidelines contain a policy statement that allows sentencing courts "to consider `prior similar adult criminal conduct not resulting in a criminal conviction'" but prohibits them from basing an upward departure solely on a defendant's prior arrest record. Williams v. United States, 503 U.S. 193, 197, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992) (quoting U.S.S.G. § 4A1.3(a) (3)). Although this policy statement is no longer binding, see Smith, at 3, one of the seven statutory factors a judge must consider in sentencing is "any pertinent policy statement issued by the Sentencing Commission." 18 U.S.C. § 3553(a) (5). Therefore, while not controlling, the policy statement prohibiting reliance solely on arrest records must be duly considered by the district judge. There is no evidence that the judge in this case did so.

More generally, a mere arrest, especially a lone arrest, is not evidence that the person arrested actually committed any criminal conduct. This is because arrest "happens to the innocent as well as the guilty." Michelson v. United States, 335 U.S. 469, 482, 69 S. Ct. 213, 93 L. Ed. 168 (1948); cf. Cheek v. Bates, 615 F.2d 559, 563 (1st Cir. 1980) ("mere arrest" without conviction "clearly inadmissible to show lack of credibility"). The guideline policy statement recognizes this limitation on the value of an arrest as information about a defendant's criminal propensity, highlighting the important distinction between direct evidence of past criminal behavior and mere arrests that may or may not have been the result of wrongdoing. Although a series of past arrests might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions, Zapete was arrested only a single time, more than a decade ago. Thus, we conclude that it was unreasonable for the district court to rely on Zapete's single prior arrest as justification for enhancing his sentence.

Finally, we emphasize that we do not reject the sentence imposed below solely because of the magnitude of its deviation from the guideline-recommended range. Although "circumstances may make a major variance reasonable," Smith, at 3, no such circumstances are obvious from the record in this case and no adequate explanation for such a large variation has been provided.

The appellant's sentence is vacated and the matter is remanded for resentencing in accordance with this opinion.