United States v. Mendoza-Mendoza

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-5007

DARIO MENDOZA-MENDOZA,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

W. Earl Britt, Senior District Judge.

(4:08-cr-00032-BR-1)

Argued: January 28, 2010

Decided: March 5, 2010

Before WILKINSON, NIEMEYER, and DAVIS,

Circuit Judges.

Vacated and remanded by published opinion. Judge Wilkin-

son wrote the opinion, in which Judge Niemeyer joined.

Judge Davis wrote a separate opinion concurring in the judg-

ment.

COUNSEL

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FED-

ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

2 UNITED STATES v. MENDOZA-MENDOZA

Appellant. Anne Margaret Hayes, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appel-

lee. ON BRIEF: Thomas P. McNamara, Federal Public

Defender, Raleigh, North Carolina, for Appellant. George E.

B. Holding, United States Attorney, Jennifer P. May-Parker,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appel-

lee.

OPINION

WILKINSON, Circuit Judge:

Appellant Dario Mendoza-Mendoza, a citizen of Mexico,

pled guilty to one count of illegal entry into the United States

following deportation, in violation of 8 U.S.C. § 1326. Men-

doza argued that a Guidelines sentence was excessive in light

of various facts peculiar to his case. The district court, how-

ever, sentenced Mendoza within the Guidelines.

At the very outset of its explanation, the district court stated

that while it did not agree with the Guidelines range, it was

"obligated" to give Mendoza a Guidelines sentence unless "a

reason for a departure from those Guidelines, or a variance

based on 18 U.S.C. § 3553" was present. Because prefacing

a sentencing explanation with such obligatory terminology

amounts to an impermissible presumption that a Guidelines

sentence is appropriate, see Rita v. United States, 551 U.S.

338, 351 (2007), we believe the prudent course is to remand

for re-sentencing. In doing so, however, we do not imply that

the district court’s Guidelines sentence was substantively

unreasonable or that Rita remands are warranted in cases

where there exists no serious possibility that the district court

treated the Guidelines as presumptively binding.

I.

In 1997, Mendoza, then eighteen years old, illegally

entered the United States from Mexico. He settled in Green-

UNITED STATES v. MENDOZA-MENDOZA 3

ville, North Carolina, and began working in the construction

industry. Mendoza had fathered two children back in Mexico,

but in 2004 he became romantically involved with a Green-

ville woman. They now live together—we accept the govern-

ment’s characterization of the young woman as Mendoza’s

"common-law wife"—and are the parents of two young chil-

dren of their own.

Their story is a bit more complicated, however, and not just

because Mendoza was present in the United States illegally.

At the time they met, the young woman told Mendoza she

was nineteen years old. In fact, she was only fourteen, and her

mother, upon learning of the relationship, promptly called the

police. Mendoza was arrested and convicted in North Caro-

lina court in July 2004 on two counts of taking indecent liber-

ties with a child. See N.C. Gen. Stat. § 14-202.1. He was

given a suspended sentence of fifteen to eighteen months, plus

eighteen months’ probation. Several weeks later, he was

deported.

This was hardly the end of Mendoza’s stay in the United

States, however. Within days of being deported, he was

arrested in Texas by U.S. border officials. He pled guilty to

misdemeanor illegal entry, received a four-day custodial sen-

tence, and was immediately re-deported. Later that year, he

again illegally re-entered the United States, made his way

back to Greenville, and resumed living with his common-law

wife.

For several years, Mendoza managed to avoid attracting the

notice of immigration officials, and it was during this period

that his two children in Greenville were born, the first in 2005

and the second in 2007. In early 2008, however, a state-law

assault charge was brought against him, and although he was

never prosecuted, federal authorities were once again alerted

to his presence. In May of that year, he was charged under 8

U.S.C. § 1326 with illegal entry into the United States follow-

ing deportation.

4 UNITED STATES v. MENDOZA-MENDOZA

He pled guilty on July 7, 2008. A presentence report was

prepared, which calculated Mendoza’s sentence under the

Sentencing Guidelines as forty-six to fifty-seven months’

imprisonment. This calculation reflected a substantial

enhancement based upon his earlier indecent liberties convic-

tion, which, in addition to raising his criminal history cate-

gory, triggered a sixteen-level increase in his offense level

because it was labeled a "crime of violence." See U.S. Sen-

tencing Guidelines Manual §§ 2L1.2(b)(1)(A)(ii), 4A1.1(c),

Ch. 5, Pt. A (Table) (2007); United States v. Diaz-Ibarra, 522

F.3d 343, 353 (4th Cir. 2008). Without the indecent liberties

conviction, his Guidelines range would have been zero to six

months’ imprisonment.

Mendoza argued that while his prior indecent liberties con-

viction might "technically and legally" qualify as a crime of

violence under the Guidelines, "the court is not bound by the

Guidelines and . . . this is a prime example of the type of case

where the Guidelines do not take into consideration suffi-

ciently" the factors listed in 18 U.S.C. § 3553(a), which gov-

ern federal sentencing. Given his five-year continuing

relationship with the young woman at the center of his inde-

cent liberties conviction and given the fact that she and their

two children were financially dependent on him and had been

evicted from their home since his arrest, Mendoza argued his

case was not one in which his prior conviction showed he was

a danger to the public or that a strict sentence would be in the

interest of the victim of his earlier crime.

The government responded that Mendoza had illegally

entered the United States three times and that he "had his

chance." It also argued that Mendoza did represent a danger

to the public, pointing to a prior drunk driving conviction and

three prior drunk driving arrests that had been dismissed, the

assault charge that had led to his prosecution in this case, and

an earlier assault charge that had been dismissed.

After hearing from both sides, the district court sentenced

Mendoza to the Guidelines minimum of forty-six months,

UNITED STATES v. MENDOZA-MENDOZA 5

slightly less than four years. In announcing its conclusion, the

district court made the following prefatory remarks:

I have determined, though I have not agreed with,

that the Guideline calculations are correct, and

unless I find a reason for a departure from those

Guidelines, or a variance based on 18 U.S.C. § 3553,

then I am obligated to pass a sentence within that

Guideline range.

The court then discussed certain § 3553(a) factors and con-

cluded none of them could be used to justify reducing Mendo-

za’s sentence below the Guidelines minimum. The court

rejected the government’s claim that Mendoza was dangerous

to others, but opined that since Mendoza had already illegally

entered the United States three times, "the bottom line is that

viewing it as objectively as I possibly can, I cannot see any

reason for a variance." Mendoza now claims that the sentence

imposed by the district court was procedurally unreasonable.

II.

We review briefly the sentencing framework relevant to

this proceeding. In United States v. Booker, 543 U.S. 220

(2005), the Supreme Court held that sentence enhancements

under the then-mandatory Sentencing Guidelines violated the

Sixth Amendment right to trial by jury. Id. at 244. The Court

chose to remedy the situation by rendering the Guidelines "ef-

fectively advisory." Id. at 245. Post-Booker, a sentencing

court must begin "by correctly calculating the applicable

Guidelines range." Gall v. United States, 552 U.S. 38, 49

(2007). The Guidelines thus serve as "the starting point and

the initial benchmark." Id. The ultimate question, however, is

whether the sentence is "sufficient, but not greater than neces-

sary" in light of the factors identified in § 3553(a). Kimbrough

v. United States, 552 U.S. 85, 111 (2007) (quoting § 3553(a)).

A court therefore must proceed by giving the parties "an

opportunity to argue for whatever sentence they deem appro-

6 UNITED STATES v. MENDOZA-MENDOZA

priate." Gall, 552 U.S. at 49. It must then "make an individu-

alized assessment based on the facts presented" to see whether

the § 3553(a) factors support either party’s claim. Id. at 49-50.

Finally, the court must sufficiently explain its decision "to sat-

isfy [an] appellate court that [it] has considered the parties’

arguments and has a reasoned basis for exercising [its] own

legal decisionmaking authority" in light of § 3553(a). United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting

Rita, 551 U.S. at 356); see also Nelson v. United States, 129

S. Ct. 890, 891-92 (2009) (per curiam); Gall, 552 U.S. at 50.

Under this regime, appellate courts examine sentencing

determinations under an abuse-of-discretion standard, which

translates to review for "reasonableness." Booker, 543 U.S. at

261-62. Reasonableness review has procedural and substan-

tive components. See Gall, 552 U.S. at 51. Procedural reason-

ableness evaluates the method used to determine a

defendant’s sentence. A sentencing determination that does

not conform to the procedural framework outlined above is

procedurally unreasonable. Id. Substantive reasonableness

examines the totality of the circumstances to see whether the

sentencing court abused its discretion in concluding that the

sentence it chose satisfied the standards set forth in § 3553(a).

Id.

While it is clear that treating the Guidelines as mandatory

is procedurally unreasonable after Booker, the precise role the

Guidelines are to play in sentencing determinations has been

a source of some confusion. In Rita, 551 U.S. 338, the

Supreme Court addressed the question of whether the Guide-

lines could be given presumptive weight. The Court held that

an appellate court is allowed to presume that a district court’s

chosen sentence is substantively reasonable if it is within a

correctly calculated Guidelines range. Id. at 351. Rita was

also clear, however, that a district court making the initial sen-

tencing decision may not presume that the appropriate sen-

tence in a given case will come from the Guidelines. Id.; see

also Nelson, 129 S. Ct. at 892; Gall, 552 U.S. at 50; United

UNITED STATES v. MENDOZA-MENDOZA 7

States v. Raby, 575 F.3d 376, 382 (4th Cir. 2009); United

States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). If a district

court applies such a Rita presumption, its sentence is proce-

durally unreasonable. Gall, 552 U.S. at 50.

We shall refer to any presumption in favor of a Guidelines

sentence as a "Rita presumption." The reason Rita presump-

tions are forbidden in sentencing courts is that they confer the

force of law upon the Guidelines. See id. at 47, 50. Such a

Rita presumption means that, unless there is an effective

rebuttal, a sentencing court is obligated to pronounce a Guide-

lines sentence. Giving mandatory effect to the Guidelines in

this way revives the Sixth Amendment problems Booker laid

to rest. See Rita, 551 U.S. at 347, 351, 353. Additionally, Rita

presumptions at trial conflict with the reason Rita presump-

tions are allowed on appeal. An appeals court may presume

a sentence within the Guidelines is reasonable because the

sentencing court’s independent judgment coincides with that

of the United States Sentencing Commission, which bears

responsibility for the Guidelines. If Rita presumptions were

used at sentencing, appellate courts, as well as the Commis-

sion, would lose the benefit of a district court’s individualized

application of the Commission’s general judgment. See id. at

350-51.

III.

The parties vigorously dispute whether the district court did

in fact apply an impermissible Rita presumption at sentencing

in this case. Because the costs of sentencing review are signif-

icant, it is important to realize not only what an impermissible

Rita presumption is, but also what it is not. First, it was no

Rita presumption for the sentencing court here to use the

Guidelines to orient its thinking. A court must consider and

may be influenced by the Guidelines. The Supreme Court has

been clear that the process of sentencing begins with correctly

calculating the Guidelines sentencing range. Gall, 552 U.S. at

49. And although courts are free to depart from the Guide-

8 UNITED STATES v. MENDOZA-MENDOZA

lines, they are expected to explain the basis of their disagree-

ment. Nelson, 129 S. Ct. at 892. Indeed, "a major departure

should be supported by a more significant justification than a

minor one." Gall, 552 U.S. at 50. Similarly, while sentencing

courts must always conduct an individualized assessment,

they are permitted to provide more abbreviated explanations

when they sentence within the Guidelines. United States v.

Lynn, 592 F.3d 572, 576 (4th Cir. 2010); United States v.

Johnson, 587 F.3d 625, 639 (4th Cir. 2009).

Second, the district court does not apply a Rita presumption

simply by selecting a Guidelines sentence in the case or by

deeming it the most fitting or appropriate sentence for the

case. After all, we may and do treat on appeal a district

court’s decision to impose a sentence within the Guidelines

range as presumptively reasonable. See United States v. Her-

der, No. 08-4420, 2010 WL 476657, at *8 (4th Cir. Feb. 11,

2010). For one thing, "the Guidelines, insofar as practicable,

reflect a rough approximation of sentences that might achieve

§ 3553(a)’s objectives." Rita, 551 U.S. at 350. Moreover, in

devising the Guidelines, the Sentencing Commission "exam-

ined tens of thousands of sentences and worked with the help

of many others in the law enforcement community over a long

period of time." Id. at 349; see also United States v. Johnson,

445 F.3d 339, 342 (4th Cir. 2006). We therefore should hardly

be surprised if Guidelines sentences are often reasonable, as

Rita put it, at the "retail" as well as the "wholesale" level.

Rita, 551 U.S. at 348.

Third, where an appellate court believes that a sentencing

court did not treat the Guidelines sentence as presumptively

applicable, then there is no Rita presumption and a remand

should not follow—even if stray language in the sentencing

court’s discussion, standing alone, could give the impression

that a presumption was used. See Puckett v. United States,

129 S. Ct. 1423, 1432 (2009); Lynn, 592 F.3d at 576-77 (pro-

cedural sentencing errors are subject to either harmless or

plain error review). Sentencing courts are of course well

UNITED STATES v. MENDOZA-MENDOZA 9

advised to avoid words like "presumption" and "obligation."

But what matters on appeal is what a court actually did, not

whether a remark here or there, removed from the larger con-

text in which it was made, is on some list of forbidden

phrases. See United States v. Mooney, 534 F.3d 944, 947 (8th

Cir. 2008) ("[W]hen these statements are considered in their

full context, it is clear that the district court understood the

Guidelines were not mandatory."); United States v. Bain, 586

F.3d 634, 637-38 (8th Cir. 2009); see also United States v.

Sayad, 589 F.3d 1110, 1118 & n.3 (10th Cir. 2009). If the

sentencing court did what it was supposed to do—hearing out

both sides and making an individualized assessment in light

of § 3553(a)—then it should be protected from claims of hav-

ing applied a Rita presumption.

In this regard, the government insists that vacatur here

would indeed involve ripping the contested remarks out of

context, to the detriment of "the sentencing transcript as a

whole." Appellee’s Br. at 14. We agree with the government

as a general matter that nitpicking a district court’s sentencing

judgments for Rita presumptions would be inappropriate. For

one thing, it burdens district courts with unwarranted

remands. Where the district court gave thought to the sentence

it passed and concluded it was appropriate in light of

§ 3553(a), then a remand is almost certainly going to result in

imposition of the same sentence. See Lynn, 592 F.3d at 576-

77. Appellate flyspecking for Rita presumptions wastes both

courts’ time, discourages sentencing courts from freely and

fully explaining their reasoning, and distorts the proper rela-

tionship between trial courts and courts of appeal. Our man-

date is to make sure the trial court made a reasoned, not an

arbitrary, sentencing decision. It is not to fill the federal dock-

ets with yo-yo sentencing litigation.

A flyspecking approach is also inappropriate because it

goes against the grain of Rita and Gall, both of which empha-

sized the greater measure of latitude district courts must be

given in sentencing determinations. To be sure, that latitude

10 UNITED STATES v. MENDOZA-MENDOZA

is hardly unlimited. See, e.g., United States v. Engle, 592 F.3d

495, 501-506 (4th Cir. 2010) (vacating as unreasonable a tax

evasion sentence of probation and home detention with work

release and international travel privileges). But Gall, for

instance, overturned an appellate court’s sentencing reversal

because it did not "reflect the requisite deference" owed to

sentencing courts. Gall, 552 U.S. at 52; see also Rita, 551

U.S. at 357-58 ("The sentencing judge has access to, and

greater familiarity with, the individual case and the individual

defendant before him than the Commission or the appeals

court.").

It would be wholly contrary to the Supreme Court’s confer-

ral of discretion on trial courts if we were to play a game of

"Gotcha!" with respect to the sentencing transcripts we

review. See Johnson, 445 F.3d at 345 (a sentencing court need

not "robotically tick through § 3553(a)’s every subsection.").

This appellate deference is especially appropriate when

Guidelines sentences are imposed because in such a case the

judgment of the sentencing court and the judgment of the Sen-

tencing Commission have converged. See Rita, 551 U.S. at

350-51. To be sure, we review such sentences, like all others,

for procedural error, but we do so under "the deferential

abuse-of-discretion standard of review that applies to all sen-

tencing decisions" and only for error that is "significant."

Gall, 552 U.S. at 51-52. Badgering district courts over minor

procedural flaws simply fails to recognize the sense of

responsibility that our colleagues on the district bench bring

to the important task of sentencing.

IV.

Much of what the district court did in this case was unas-

sailable. The district court consulted the Guidelines, gave both

sides a chance to make their case, and offered an individual-

ized assessment with reference to the § 3553(a) factors. In

imposing sentence, the district court might have concluded

that Mendoza’s indecent liberties conviction justified the lon-

UNITED STATES v. MENDOZA-MENDOZA 11

ger sentence, as the Guidelines advised, but the record sug-

gests it did not do so. In reaching its final decision, the district

court may have concluded that while the indecent liberties

conviction did not justify increasing Mendoza’s sentence to

forty-six months as the Guidelines suggested, the fact that,

among others, he had entered the United States illegally three

times justified increasing his sentence to that length. If this is

what the court did, then its decision may well have been rea-

sonable.

Mendoza, however, argues for another reading of the sen-

tencing proceeding. In his view, the district court reasoned

that while the indecent liberties conviction did not require

such a lengthy sentence, it could not deviate from the Guide-

lines unless some specifically authorized basis for a departure

or variance allowed it to do so. Under Rita, of course, this

would not be permissible. And after fully examining the dis-

trict court’s discussion, this second reading seems at least as

plausible to us as the first.

The comments to which Mendoza objects were not a "mere

passing reference," somewhere in the middle of the sentenc-

ing discussion. Sayad, 589 F.3d at 1118 n.3 (citation and

internal quotation marks omitted). They came at the very out-

set, framing the entirety of the district court’s explanation.

And the words the court used were emphatic: the court

declared that it was "obligated" to impose a Guidelines sen-

tence "unless I find a reason for a departure from those guide-

lines, or a variance based on 18 U.S.C. § 3553." Furthermore,

the court pronounced a Guidelines sentence even though it

had "not agreed with" the range recommended by the Guide-

lines. Taken together, the language and context of these state-

ments convince us that Mendoza’s objection cannot be

dismissed simply as hyper-sensitive second-guessing of the

proceedings below.

Our review of the district court’s comments leads us to

believe that the district court accorded the Guidelines a quasi-

12 UNITED STATES v. MENDOZA-MENDOZA

mandatory effect, and that is impermissible under Rita. We

are acutely conscious of the need to avoid overburdening dis-

trict courts and ordering pointless remands, and we are com-

pelled to re-emphasize that procedural remands do not carry

some hidden appellate message of substantive unreasonable-

ness. But there is a serious possibility the district court felt it

was under an obligation to impose a Guidelines sentence, and

we believe the prudent course is to remand this case to ensure

that Mendoza’s sentence, whatever it may ultimately be, is

procedurally sound. In reviewing a sentencing determination,

"an appellate court may not guess at the district court’s ratio-

nale," Carter, 564 F.3d at 329, and we are left only to specu-

late as to whether the sentence herein was imposed as a matter

of obligation or as an exercise of judgment.

V.

For the foregoing reasons, we vacate Mendoza’s sentence

and remand for re-sentencing.

VACATED AND REMANDED

DAVIS, Circuit Judge, concurring in the judgment:

The distinguished and experienced district judge in this

case gave both sides an opportunity to present whatever argu-

ment they wished as to the appropriate sentence. The record

reflects that both the government and the defendant took

advantage of that opportunity. As a part of her argument,

defense counsel stated:

[A]fter the Booker case, the court is not bound by

the guidelines, and I would suggest to the court that

this is a prime example of the type of case where the

guidelines do not take into consideration sufficiently

the—all of the factors that are outlined in 18 U.S.C.

3553(a).

UNITED STATES v. MENDOZA-MENDOZA 13

J.A. 42. The court then explained its perspective on the case

and its underlying reasoning for imposing the sentence it did

at some length, with sensitivity and a full awareness of the

inevitably tragic circumstances surrounding virtually every

criminal sentencing hearing. Here is what the court said:

The Court: Well, as in most criminal cases, there are

tragic consequences for innocent victims. The court

received a letter through defense counsel with pic-

tures of the family from the young woman who is the

mother of two children by this defendant, and I had

a letter from her attesting to her love for the defen-

dant and desiring that he come back home, all of

which, of course, touch at the heartstrings of any

individual, including an old seasoned judge.

Nevertheless, the court has to remember that the

crime that the defendant is before me on is illegal

entry into the United States. I have determined,

though I have not agreed with, that the guideline cal-

culations are correct, and unless I find a reason for

a departure from those guidelines, or a variance

based on 18 U.S.C. section 3553, then I am obli-

gated to pass a sentence within that guideline range.

And upon reflection, this court is unable to deter-

mine a need for variance. The purposes of sentenc-

ing are to reflect the seriousness of the offense,

promote respect for the law, and provide just punish-

ment for the offense.

As indicated by [the Assistant United States Attor-

ney], this defendant has—this is his third illegal

entry into the United States. So certainly [I] cannot

say that the proposed guideline range fails to achieve

those objectives . . . . to afford adequate deter[r]ence

to criminal conduct. And the criminal conduct we

are talking about, you must remember, is illegal re-

entry. It’s not the activity with the young woman

14 UNITED STATES v. MENDOZA-MENDOZA

who is now his mistress or common law wife or

whatever. And I don’t really know what is adequate

to deter his illegal entry to the United States. I mean,

he has been deported. He is back. Been deported. He

is back again.

And you might say on his behalf that he is coming

back to be with the woman he loves and the children

he loves.

But as [the Assistant United States Attorney]

points out, he has a woman he loved, past tense, and

children as a result of that relationship back in Mex-

ico. So, I don’t—really don’t know what—I can’t

argue with the guideline range as far as providing

adequate deterrence to protect the public from fur-

ther crimes of the defendant, that crime being illegal

entry. I don’t know that the guidelines will even do

it then. Nothing else has up until now.

But in any event, the bottom line is that viewing it

as objectively as I possibly can, I cannot see any rea-

son for a variance. So I feel that it’s my duty, though

I have some sympathy for his—the mother of his

children down in Greenville and those children there,

I am not too concerned about the assault charges

there . . . . I have lived through too many Monday

morning recorders . . . court and district court hear-

ings when women have taken warrants out against

their husband or boyfriend for assault, and by the

time Monday morning gets there, they come into

court and say they want to—as back in those days,

they want to take out the charges, they have kissed

and made up.

So, I know it’s—it would be nice if that type of thing

didn’t happen in our society, but as long as the peo-

ple who are subjected to the messy domestic vio-

UNITED STATES v. MENDOZA-MENDOZA 15

lence don’t pursue it and get it corrected themselves,

there is little anyone else can do.

So, in any event, Mr. Mendoza-Mendoza, if you will

stand up, please. Stand up. Except heretofore stated,

the court finds the basis for findings contained in the

presentence report credible, and therefore adopts

those findings.

Based on those findings, the clerk calculated the

range prescribed by the advisory sentencing guide-

lines. The court has considered that range as well as

all other relevant factors set forth in the advisory

sentencing guidelines, and those set forth in 18

U.S.C. Section 3553(a).

Pursuant to the Sentencing Reform Act of 1984 and

in accordance with the Supreme Court decision in

United States versus Booker, it’s the judgment of the

court that the defendant, Dario Mendoza-Mendoza,

be committed to the custody of the Bureau of Prisons

for a term of 46 months.

J.A. 48-51 (alterations and emphasis added). It is not easy to

discern a "procedural irregularity" in this record. The court

referred to "Booker" and, separately, to the "advisory sentenc-

ing guidelines" several times in its soliloquy. Read in their

entirety, the court’s comments reflect that it was aware that it

possessed the authority to impose a sentence below (or above,

for that matter) the applicable guidelines range.

Nevertheless, as we judges know as well if not better than

most anyone, words matter. And the highlighted portion of

the above excerpt from the sentencing transcript shows that

the court employed the word "obligated" in a way that permits

us, but does not compel us, to find a procedural irregularity

and to remand for a new sentencing hearing. Unlike the

majority, I do not "believe that the district court accorded the

16 UNITED STATES v. MENDOZA-MENDOZA

Guidelines a quasi-mandatory effect." See Maj. Op. at 11-12.

On the other hand, I cannot say that a remand to permit the

court to clarify its language is unwarranted. Accordingly, I

concur in the judgment.