United States vs. Mateo, No. 05-2266 (10th Cir. 2006)

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F I L E D United States Court of Appeals Tenth Circuit PU BL ISH December 26, 2006 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT U N ITED STA TES O F A M ER ICA, Plaintiff - Appellee, v. No. 05-2266 D EN N Y S M A TEO , Defendant - Appellant. A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE D ISTRICT OF NEW M EXICO (D. Ct. No. CR-04-1219) Edward O. Bustamante, A lbuquerque, New M exico, appearing for A ppellant. Gregory James Fouratt, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Office of the United States Attorney for the District of New M exico, Albuquerque, New M exico, appearing for Appellee. Before TA CH A, Chief Circuit Judge, KELLY, and M U RPH Y, Circuit Judges. TA CH A, Chief Circuit Judge. Dennys M ateo pleaded guilty to one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After correctly calculating the advisory Sentencing Guidelines range of 15 to 21 months imprisonment, the District Court considered the sentencing factors under 18 U.S.C. § 3553(a), determined that this range was insufficient, and imposed a sentence of 120 months imprisonment the statutory maximum. On appeal, M r. M ateo argues that the District Court erred by considering facts concerning prior arrests that did not result in convictions and maintains that the sentence imposed is unreasonable. W e take jurisdiction under 28 U.S.C. § 1291 and AFFIRM . I. BACKGROUND On M ay 20, 2004, a confidential informant told a Drug Enforcement Administration ( DEA ) agent that M r. M ateo would be involved in a cocaine transaction at 8:00 p.m. at a video store parking lot in Albuquerque, New M exico. Upon investigation, the DEA agent discovered that M r. M ateo had been previously convicted of grand theft, a third degree felony, on April 13, 1998, in M iami, Florida. The night of M ay 20, 2004, the Albuquerque police set up surveillance at the parking lot. W hen a white BM W matching the description given by the informant arrived, the police approached the car and asked M r. M ateo, the driver, to step out of the car. As M r. M ateo complied, the officer observed a revolver in plain view in the side pocket of the driver s side door. The gun was a Smith & W esson, Lady Smith, .38 caliber five-shot revolver, loaded with five rounds of ammunition. Aware that M r. M ateo was a felon, officers immediately arrested M r. M ateo. A search of the vehicle found suspected counterfeit currency but no narcotics. -2- On June 23, 2004, a grand jury indicted M r. M ateo on a single count charging him with being a felon in possession of a firearm and ammunition. M r. M ateo pleaded guilty to the indictment. Subsequently, the probation office prepared a presentence report ( PSR ). The PSR determined M r. M ateo s base offense level to be 14. See United States Sentencing Guidelines M anual ( U.S.S.G. or Guidelines ) § 2K2.1(a)(6)(A). He received a two-level reduction in his offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, for a total offense level of 12. The PSR placed M r. M ateo at a criminal history category of III because he had six criminal history points for five prior convictions. Based on the total offense level of 12 and a criminal history category of III, the PSR calculated the advisory Guidelines imprisonment range to be 15 to 21 months. M r. M ateo filed three objections to the PSR contesting the application of the Guidelines in determining his criminal history category, but he did not object to any of the factual statements included in the PSR, including those detailing the factual circumstances of multiple prior arrests. At a hearing on June 13, 2005, the District Court ruled against M r. M ateo s objections to the PSR and gave notice to the Government and to M r. M ateo that it was considering a sentence above the advisory Guidelines range. 1 The PSR discloses the following information. M r. M ateo was born in Cuba 1 On appeal, M r. M ateo does not argue that he was given inadequate notice as to the basis for the District Court s decision to impose a sentence outside of the advisory Guidelines. -3- in 1972 and lived there until he was granted political asylum in the United States in 1995. The report assessed six criminal history points for five convictions including (1) a 1996 conviction for grand theft of a jewelry store in Oakland Park, Florida; (2) a 1996 conviction for possession of marijuana in M iami, Florida; (3) a 1997 conviction for possession of marijuana in M iami, Florida; (4) a 1997 conviction for grand theft of a home in M iami, Florida; and (5) a 2003 conviction for shoplifting in Albuquerque, New M exico. Of particular importance in this case, the PSR discloses the following facts about the 1997 grand theft conviction. In early M ay 1997, M r. M ateo and another individual approached an apartment where a man was standing at the front door. M r. M ateo and his accomplice each aimed a .38 caliber revolver at the victim s head and forced him into the apartment. There, they tied him up with a phone cord and covered his head with a pillow case. Several electronic items were taken from the apartment. M r. M ateo was arrested on M ay 14, 1997, a few days after the incident, and was initially charged with robbery and kidnapping with a deadly weapon. Ultimately, the robbery charge was reduced to a lesser charge of grand theft and the kidnapping charge was dismissed. On April 13, 1998, after pleading nolo contendere to the felony grand theft charge, M r. M ateo was sentenced to 364 days in the county jail. In addition to these five convictions, the PSR includes records of seven additional prior arrests that did not lead to convictions, and one additional -4- pending charge. 2 Among the prior arrests was one for attempted murder. The PSR indicates that police arrested M r. M ateo on M ay 14, 1997, in M iami, Florida after receiving a report that M r. M ateo and two other individuals fired a gun four to five times at the victim as he was stopped in his car at a traffic light. Three rounds struck the victim s vehicle. The victim explained that the shooting may have been related to the home invasion that had occurred a few days prior (and for which M r. M ateo was arrested and convicted in M iami). The subjects were positively identified, but the victim could not indicate which suspect fired the shots. The prosecutor filed a nolle prosequi on April 13, 1998. On October 31, 1999, the Texas D epartment of Public Safety arrested M r. M ateo for conspiracy to deliver a controlled substance. The PSR indicates that the case was rejected by the District Attorney, but it includes the following information about the factual background of the arrest: According to [M r. M ateo s] signed statement, [M r. M ateo] agreed to take a van that contained cocaine from Albuquerque, New M exico to M iami, Florida. [M r. M ateo] had two friends drive the van while [he] followed the van in his car. The van was stopped for a traffic violation and was subsequently searched. The cocaine was in the form of a brick rolled in a pair of pants inside a plastic bag on the floor. A few miles later, [M r. M ateo] w as stopped and was found to be in possession of a bag of marijuana. [M r. M ateo] took full responsibility for the cocaine and stated to officers his friends did not know the cocaine was in the van. During a search of the van, officers located a firearm. 2 The PSR actually lists two pending charges. One of those charges, however, is the charge in this case. -5- Less than a year later, on August 17, 2000, M r. M ateo was arrested in New M exico, and charged in United States District Court for the District of New M exico with distribution of cocaine, conspiracy, and aiding and abetting. The indictment in this case was dismissed without prejudice on October 11, 2000. On October 19, 2001, police officers in Albuquerque, New M exico arrested M r. M ateo for aggravated battery with a deadly weapon, armed robbery, conspiracy, kidnapping, and tampering with evidence related to a jew elry store robbery in August 2000. According to the PSR, the police reports indicate that witnesses said three Cuban males jumped the counter and robbed the store at gunpoint, pushing one victim onto the floor and putting the barrel of a gun to his head. A confidential informant indicated that M r. M ateo was involved in the robbery and one of the perpetrators confirmed this information. M r. M ateo went to trial on these charges, but the court ordered a mistrial after the jury could not reach a verdict. On August 27, 2002, the District Attorney filed a nolle prosequi. At the sentencing hearing in this case, the Government took the position that the Guidelines are presumptively reasonable, and while not advocating a sentence above the advisory Guidelines range, informed the court that it would support an upward variance if the court imposed such a sentence. M r. M ateo s attorney maintained that the advisory Guidelines range was reasonable given the facts surrounding the current conviction, and observed that M r. M ateo s only prior felony conviction for grand theft was not drug related. -6- After correctly calculating the Guidelines range and acknowledging the advisory nature of the G uidelines after United States v. Booker, 543 U.S. 220 (2005), the District Court held that in light of the sentencing factors provided by 18 U.S.C. § 3553(a), the Guidelines range of 15 to 21 months was unreasonable. The court specifically discussed the follow ing § 3553(a) factors: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law , and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant[.] See 18 U.S.C. § 3553(a)(1) (2). The court explained its concerns regarding the adequacy of the advisory Guidelines range in relation to the cited sentencing factors by observing that M r. M ateo s record of fourteen total arrests (including the five for which he was convicted) and two felony convictions in three different states since he arrived in the United States from Cuba in 1995 indicates a comm itment to a criminal lifestyle. The court acknowledged that M r. M ateo was never convicted of the more serious charges for which he was arrested, including aggravated battery with a deadly weapon, kidnapping, conspiracy, and attempted murder, but these arrests, in Florida, Texas, and New M exico demonstrate a pattern of and commitment to a criminal lifestyle by this defendant that is consistent with criminal activity and patterns one typically sees for armed career -7- criminals. The District Court imposed a sentence of 120 months imprisonment, the statutory maximum for the felon-in-possession conviction. II. D ISC USSIO N Post-Booker, we review sentences for reasonableness. See United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Sentencing decisions must be reversed when a sentence is unreasonable considering the factors enumerated in 18 U.S.C. § 3553(a). United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). To determine whether a sentence is reasonable, we consider both procedural and substantive aspects of the district court s decision. See id. In order to be procedurally reasonable, a sentence must be reasoned, or calculated utilizing a legitimate method. Id. W e determine substantive reasonableness by reference to the actual length of the sentence imposed in relation to the sentencing factors enumerated in § 3553(a). Id. at 594 95. A. The District Court did not err by considering uncontested facts included in the PSR relating to prior arrests that did not result in convictions. M r. M ateo argues that the District Court erred in considering his prior arrests that did not result in convictions in concluding that the advisory Guidelines range of 15 to 21 months w as unreasonably low. W e find no error in the method by which the District Court determined the advisory sentence to be insufficient punishment for M r. M ateo. It is well established that the sentencing court is entitled to rely on -8- uncontested facts contained in the PSR for certain sentencing purposes. See Fed. R. Crim. P. 32(i)(3)(A) ( At sentencing, the court . . . may accept any undisputed portion of the presentence report as a finding of fact . . . . ); United States v. Wolfe, 435 F.3d 1289, 1299 (10th Cir. 2006) ( [W ]e recognize that post-Booker this court has refused to treat unobjected-to PSR facts as admitted for Sixth Amendment Booker purposes. . . . [O]utside the Booker context, [however,] we will still rely on unobjected-to facts for other sentencing purposes. (citation omitted)). As we have explained, Booker has not relieved a defendant of his obligation under Rule 32(i)(3)(A) to point out factual inaccuracies included in the PSR . Wolfe, 435 F.3d at 1299. Neither in his formal objections to the PSR at sentencing nor on appeal did M r. M ateo challenge any of the facts included in the PSR, including the facts surrounding his fourteen arrests, two felony convictions, and the pending charge. 3 Nevertheless, M r. M ateo argues that the District Court s reference to his prior arrest record violates the Guidelines policy statement prohibiting the consideration of a prior arrest record itself for purposes of an upward departure. 3 At the sentencing hearing prior to the imposition of sentence, M r. M ateo made a short statement through a translator. He said, I would like to tell you, Judge, that I had nothing to do with that case, and that is why I w ent to trial. This statement apparently refers to the six-count indictment relating to the jewelry store robbery in A lbuquerque, New M exico. On appeal, however, M r. M ateo does not claim that the facts in the PSR are inaccurate or that the PSR includes information that is not reliable. Instead, he only argues that the court s consideration of his arrests generally is error as a matter of law. -9- See U.S.S.G. § 4A1.3. To this end, he notes that 18 U.S.C. § 3553(a)(5) requires a sentencing court to consider any pertinent policy statement from the Guidelines. The sentencing transcript makes clear, however, that the District Court did not rely on M r. M ateo s arrest record itself in making its determination as to the reasonableness of the advisory Guidelines sentence. Rather, it extrapolated from the uncontested facts in the PSR including the number, frequency, and seriousness of M r. M ateo s various arrests and convictions to draw conclusions about characteristics relevant to sentencing factors enumerated in 18 U.S.C. § 3553(a). Compare United States v. Dixon, 318 F.3d 585, 591 (4th Cir. 2003) (holding sentencing court did not run afoul of policy statement prohibiting consideration of a prior arrest record itself for purposes of upward departure under U.S.S.G. § 4A1.3(a)(3) when it considered uncontested information in PSR about criminal conduct leading to arrests); United States v. W illiam s, 989 F.2d 1137, 1142 (11th Cir. 1993) (same); United States v. Torres, 977 F.2d 321, 330 (7th Cir. 1992) (same); with United States v. Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (vacating as unreasonable a sentence that was based in part on the mere existence of a decade-old unrelated prior arrest). The sentencing court is well within its discretion and, indeed, is required to carefully consider the facts contained in the PSR when evaluating the § 3553(a) sentencing factors, including the history and characteristics of the defendant, and the need for a sentence to afford adequate deterrence to criminal conduct, -10- and to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C). W e have noted that [n]o limitation should be placed on the information concerning the background, character, and conduct of a person . . . for the purpose of imposing an appropriate sentence. United States v. M agallanez, 408 F.3d 672, 684 (10th Cir. 2005) (quoting 18 U.S.C. § 3661). Therefore, we conclude that the District Court did not err in considering the uncontested facts in the PSR relating to M r. M ateo s prior arrests and by using those facts to determine the adequacy of the advisory Guidelines sentencing range in fulfilling the relevant sentencing objectives described in § 3553(a)(2). Cf. Zapete-Garcia, 447 F.3d at 61 (observing that a series of past arrests might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions ). B. The District Court did not err by making reference to a section of the Guidelines that is not applicable under the facts in this case. In handing down its sentence, the D istrict Court compared M r. M ateo s history to that of an armed career criminal. A n armed career criminal is subject to the enhanced penalties of 18 U .S.C. § 924(e), which imposes a minimum sentence of 15 years incarceration for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) if the offender has three previous convictions for qualifying violent felonies, serious drug offenses, or both. 18 U.S.C. § 924(e)(1); see also U.S.S.G. § 4B1.4 (implementing 18 U.S.C. § 924). -11- W hen the District Court imposed its sentence, it explained: I recognize that the most serious crimes the defendant was arrested for such as aggravated battery with a deadly weapon, kidnaping, conspiracy, and attempted murder were all nolle prossed, but these arrests in Florida, Texas, and New M exico demonstrate a pattern of and commitment to a criminal lifestyle by this defendant that is consistent with criminal activity and patterns one typically sees for armed career criminals. M r. M ateo argues that the armed career criminal provision is inapplicable and is not relevant to determining the sentence to be imposed. 4 In Cage, we explained that [w]hen a district court makes a sentencing decision, it must interpret Congress s intentions in passing sentencing laws. 451 F.3d at 593. W e further explained that even though the Guidelines are no longer mandatory, they represent an expression of popular political will about sentencing that is entitled to due consideration in fashioning a sentence. Id. W e 4 The Government does not contend that M r. M ateo s prior arrests, if they had resulted in convictions, would be sufficient to subject him to the provisions of the armed career criminal statute. W e note, however, that M r. M ateo s 1997 arrest for attempted murder, as well as the October 2001 aggravated battery with a deadly weapon and armed robbery charges arising from the jewelry store robbery, would presumably qualify under the statute as violent felonies. See 18 U.S.C. § 924(e)(2)(B)(i) (ii) (defining a violent felony as any crime punishable by imprisonment exceeding one year . . . that . . . (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) . . . involves conduct that presents a serious potential risk of physical injury to another ). Also, the 1999 arrest for conspiracy to deliver a brick of cocaine could have qualified as a serious drug offense under the statute. See 18 U.S.C. § 924(e)(2) (defining a serious drug offense as an offense under the Controlled Substances Act (21 U.S.C. § 801 et seq.) . . . for which a maximum term of imprisonment of ten years or more is prescribed by law ). -12- cannot agree with M r. M ateo s claim that the District Court s reference to the armed career criminal statute is inappropriate w hen considering what sentence to impose. It is clear that the District Court did not apply the armed career criminal provision to M r. M ateo because the minimum sentence applicable for such an offender is 15 years (or 180 months ) incarceration. Rather, the sentencing transcript indicates that the court sought guidance from the armed career criminal provision as to the appropriate length of incarceration given M r. M ateo s criminal history as disclosed by the unchallenged facts in the PSR. The G uidelines are clearly relevant when determining an appropriate sentence, and in this case, the District Court s reference to the Guidelines in searching for a guidepost is not error. See id.; cf. Wolfe, 435 F.3d at 1304 n.12 ( [A]nalogizing to other guidelines is a primary method by which district courts may justify the reasonableness of their departure. (quoting United States v. Neal, 249 F.3d 1251, 1261 (10th Cir. 2001)) (alteration in original)). C. The magnitude of the D istrict Court s deviation from the advisory Guidelines range was substantively reasonable. A sentence within the correctly determined advisory Guidelines range is entitled to a rebuttable presumption of reasonableness, Kristl, 437 F.3d at 1054, but an extreme divergence from the advisory Guidelines range will be reasonable if the facts of the case are dramatic enough to justify such a divergence, Cage, 451 F.3d at 594 95. M r. M ateo asserts that the length of his -13- sentence 120 months incarceration is unreasonable given that the correctly calculated advisory Guidelines sentence range was 15 to 21 months imprisonment. W e conclude that the magnitude of the District Court s deviation from the advisory Guidelines range, while extreme, was reasonable. In Cage, we explained that this Court looks to the discrepancy between the advisory guidelines range and the actual sentence to determine w hether a sentence is reasonable. Cage, 451 F.3d at 594. [T]he farther the trial court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be. United States v. Valtierra-Rojas, F.3d , 2006 W L 3237187, at *3 (10th Cir. 2006) (alteration omitted). In other words, how compelling the justification must be to render an extra-Guidelines sentence reasonable is proportional to the extent of the difference between the advisory range and the sentence imposed. United States v. Bishop, F.3d , 2006 W L 3237027, at *10 (10th Cir. 2006). In determining how compelling the justification for a particular sentence must be, we consider both the percentage of divergence from the advisory range and the absolute number of months above or below the Guidelines range. Valtierra-Rojas, 2006 W L 3237187, at *3. In Cage, we held that the district court s six-day sentence w as an extreme divergence from the G uidelinesrecommended sentence of at least 46 months; therefore, the sentence must be supported by extraordinary circumstances. Cage, 451 F.3d at 594. W e found the -14- sentence unsupported by the type of extraordinary circumstances that might legitimatize it because the sentencing court failed to cite any § 3553(a) factors that were peculiar to the defendant. Instead, the court based its divergence only on those factors that were common to many defendants in that case, the defendant s status as a single mother. Id.; see also United States v. Rattoballi, 452 F.3d 127, 133 (2d Cir. 2006) (explaining that under substantive reasonableness review a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant is inherently suspect ). From Cage, it follows that whether the rationale provided by the sentencing court for a non-Guidelines sentence is sufficiently compelling is determined by considering whether the particular characteristics of the defendant the court relied upon in fashioning the sentence are commonplace and therefore presumably are already part of the Guidelines calculation or are sufficiently uncomm on to justify a divergence from the presumptively reasonable Guidelines sentence. See Cage, 451 F.3d at 595 96 (determining facts relied upon by district court to justify extreme divergence were not particularly out of the ordinary and therefore could not justify sentence). Since Cage, we have held that the comparative difference between a defendant s 78-month sentence and the advisory-range maximum of 57 months (a 37% increase) was a significant increase requiring sufficient explanation and justification, see Bishop, 2006 W L 3237027, at *10, and that the difference -15- between a 60-month sentence and the advisory-range maximum of 27 months (a 122% increase) was substantial and required compelling reasons to support the district court s decision, see Valtierra-Rojas, 2006 W L 3237187, at *3. Though we required compelling reasons to support the sentence in ValtierraRojas, we did not require the same kind of dramatic facts as w e required in Cage because, we noted, the sentencing court in Cage effectively ignore[d] the advice of the Guidelines to essentially impose no prison sentence at all. See Valtierra-Rojas, 2006 W L 3237187, at *3 (alteration in original). W hile [t]he nature of the inquiry announced in Cage (the greater the divergence, the more compelling the reasons) is not one that allows for precision in measurement, Valtierra-Rojas, 2006 W L 3237187, at *3, it is clear that the District Court s divergence from the advisory range here is of the extreme type akin to that in Cage requiring a compelling justification supported by dramatic facts. Here, the District Court increased M r. M ateo s sentence by 471% above the high end of the advisory range of 21 months more than eight years longer than he w ould serve if he w as sentenced in accordance with the advisory Guidelines. The District Court determined that this sentence was warranted because of M r. M ateo s exceptional history and the fact that the advisory Guidelines sentence did not fully reflect the serious nature of his criminal record. M r. M ateo s history as presented in the uncontested facts of the PSR discloses -16- significant contact with the criminal justice systems in three different states over a relatively short period of time. The sentence reflects the District Court s w elljustified concern that M r. M ateo s frequent brushes with the law indicate a commitment to a criminal lifestyle. The import of this finding and the court s citation to the § 3553(a) factors is plain: M r. M ateo s sentences for prior convictions have not been effective at deterring him from engaging in criminal behavior and the public requires protection from M r. M ateo s demonstrated penchant for criminality. See § 3553(a)(2)(B), (a)(2)(C); cf. United States v. Fairclough, 439 F.3d 76, 80 81 (2d Cir. 2006) (holding 48-month sentence, which was 21 months higher than the maximum advised by Guidelines, was reasonable based on district court s conclusion that defendant had a relatively uninterrupted string of criminal activity and arrests and interaction after interaction with the criminal justice system ). Based on these specific circumstances and the District Court s use of the armed career criminal provision as a guidepost to gauge the length of the sentence, the District Court imposed a reasonable sentence. III. C ON CLU SIO N W e conclude that the District Court did not err by looking to the armed career criminal portion of the Guidelines to help determine the appropriate weight to give to the unique lifestyle characteristics of this defendant as disclosed by the uncontested facts available in the PSR. W e also conclude that based on those -17- dramatic facts, the sentence imposed was reasonable. W e AFFIRM the judgment of the District Court. -18- No. 05-2266, United States v. M ateo M U RPH Y, Circuit Judge, joined by KELLY, Circuit Judge, concurring. I concur in the majority s well-stated opinion. I write separately, however, to express serious misgivings with this court s precedents that usurp the district courts sentencing discretion. On appeal, M ateo asserts as follows: (1) the sentence imposed by the district court is contrary to the policy considerations set out in the Sentencing Guidelines; and (2) the sentence imposed by the district court is unreasonable in reference to the factors set out in 18 U.S.C. § 3553. The majority persuasively and correctly rejects both of M ateo s contentions. A district court is not free to impose a sentence outside the range set out in the advisory Sentencing Guidelines based simply on its disagreement with the policies underlying the Guidelines. United States v. M cCullough, 457 F.3d 1150, 1171-72 (10th Cir. 2006) (discussing variances from the advisory Guidelines range based on mere disagreement with the 100:1 crack to powder cocaine ratio set out in the Guidelines). The Guidelines specifically prohibit upward departures from an advisory Guidelines range based solely on a defendant s arrest record. U.S.S.G. § 4A1.3(a)(3) ( A prior arrest record itself shall not be considered for purposes of an upward departure under this policy statement. ). M ateo contends the sentence imposed by the district court is contrary to § 4A1.3(a)(3). In contrast to M ateo s assertion, a close review of the sentencing transcript demonstrates the district court did not simply rely on the existence of M ateo s arrest record in deciding to impose a sentence outside of the advisory Guideline range. Instead, the district court began the sentencing process by properly calculating M ateo s advisory Guidelines range. The district court then balanced that range and the policy statements underlying the Guidelines, 18 U.S.C. § 3553(a)(4), (5), with M ateo s background and characteristics, the circumstances of the offense, and the need to provide adequate deterrence and protect the public from further crimes, id. § 3553(a)(1), (2). As part of the district court s balancing of the § 3553(a) factors, the district court concluded M ateo s character and background specifically including his extensive, consistent, and serious involvement in criminal activity, as evidenced by his prior convictions, prior arrests, and the circumstances surrounding the prior arrests demonstrate[d] a pattern of and commitment to a criminal lifestyle . . . that is consistent with criminal activity and patterns one typically sees for armed career criminals. Thus, under the very unique circumstances of this case, the factors set out in § 3553(a)(1) and (2) justified a sentence significantly higher than set out in the advisory Guidelines range. The sentence imposed by the district court is not a rejection of the policy statements in § 4A1.3(a)(3), but a careful balancing of the factors set out in § 3553(a). I also agree with the majority that the sentence imposed by the district court is reasonable and that such a conclusion is faithful to this court s precedents regarding appellate review of sentences for reasonableness. See M ajority Op. at -2- 13-14 (collecting and analyzing cases). W hat I question is this court s developing insistence that district courts take extraordinary steps to justify sentences outside the range set out in the advisory Sentencing Guidelines. United States v. Cage, 451 F.3d 585, 593-95 (10th Cir. 2006) (holding that sentencing factors set out in § 3553(a) relating to the advisory Guidelines range are more important than other statutory factors and that the further a sentence deviates from the advisory Guidelines range the greater the justification a district court must provide); see also United States v. Shaw, No. 05-6074, 2006 W L 3505339, at *4 (10th Cir. Dec. 6, 2006) (applying Cage and affirming sentence 48% above advisory Guidelines range because the district court had identified a substantial justification for the divergence); United States v. Valtierra-Rojas, No. 05-3390, 2006 W L 3237187, at *3 (10th Cir. Nov. 9, 2006) (holding that in light of Cage, court was obligated to closely examine sentence 122% above high end of the advisory sentencing range); United States v. Bishop, No. 05-3173, 2006 W L 3237027, at *10 (10th Cir. Nov. 9, 2006) (holding that in light of Cage, a 37% deviation from the advisory Guidelines range is a significant increase that requires sufficient explanation and justification ). It is absolutely clear following the Supreme Court s decision in United States v. Booker, 543 U.S. 220, 259-60 (2005), that when imposing a sentence the district courts must consider the factors set out in § 3553(a). As noted by the Court in Booker, the range set out in the advisory Sentencing Guidelines and the -3- policy statements of the Sentencing Commission are among those factors. Id. Nothing in either Booker or the plain text of § 3553(a) indicates that the sentencing factors relating to the Sentencing Guidelines have primacy over the sentencing factors not relating directly to the Guidelines. Under this circuit s precedents, however, some of the statutory sentencing factors are apparently more equal than others. Cage, 451 F.3d at 593-94 That is, the greater the deviation from the range set out in the advisory Sentencing Guidelines, the greater the burden on the district court to justify the sentence. Id. at 594. The rule set out in Cage has led to the utterly bizarre circumstance where this court tries to quantify, in something that looks just like de novo review, just how extreme the circumstances must be to justify a 471% (or 122% , 48% , 37% ) deviation from the advisory Guideline range. But see Booker, 543 U.S.. at 259 (specifically noting that provision of 18 U.S.C. § 3742(e) requiring de novo review of departures from the applicable Guideline range must be severed to render the Sentencing Reform Act constitutional). This case is a perfect example of the irrationality of appellate review of sentences in this circuit. The federal district courts impose sentences on numerous defendants and have a clear institutional advantage when it comes to discerning which defendants are in need of harsh punishment and which are in need of leniency. In this case, the district court brought that institutional advantage to bear, concluding that M ateo was an exceptionally dangerous -4- individual in need of an exceptionally severe sentence. In so doing, the district court weighed M ateo s personal characteristics, the circumstances of his crime, the need to protect the public, and the need for deterrence with the policy statements of the Sentencing Commission and the advisory range set out in the Guidelines. On appeal, pursuant to the system required by Cage, this court is required to undertake that same analysis, but without the institutional advantage native to the district court, all in what would appear to be an attempt to force the district courts to hew as close to the Guidelines range as possible. It is odd, indeed, to see how quickly the appellate standard of reasonableness set out in Booker has morphed into a mathematical exercise pegged exclusively to those sentencing factors in § 3553(a) relating to the advisory Guidelines. But see Booker, 543 U.S. at 261 ( Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. ) Although many might bemoan the decision in Booker, it is the law of the land. The Guidelines are no longer mandatory and it is improper for this court to impose a system of appellate review that seeks to return this circuit, de facto, to a mandatory system. As recently noted by the Seventh Circuit, [T]he standard of reasonableness, introduced by the Booker decision, confers broad sentencing discretion. The judge must consider the guidelines but is in no sense bound by them. He is bound only by the statutory sentencing factors, 18 U.S.C. § 3553(a), which are both numerous and vague, thus giving the judge a great deal of running room. -5- United States v. Bullion, 466 F.3d 574, 575 (7th Cir. 2006). The district court here recognized that it was required to consider the factors in § 3553(a) in arriving at a sentence, and it did in fact consider those factors. W ere I the sentencing judge, I might not have imposed the same sentence as did the district court. The balance struck by the district court, however, is certainly not unreasonable. For that reason alone, I w ould affirm the district court. Id. at 577 (holding that arguments like those at issue in this case, i.e., the district court struck the wrong balance of mitigating and aggravating circumstances in arriving at a sentence, are arguments to address to a sentencing judge, not to an appellate court. No precise weights can be assigned to such factors in the sentencing balance . . . . The striking of a balance of uncertainties can rarely be deemed unreasonable . . . . ). Nevertheless, because Cage requires the analysis undertaken in the majority opinion, I respectfully concur. -6-

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