United States v. Bonilla

REVISED APRIL 16, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 10, 2008

No. 06-40894 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CARLOS CONSTANTINO BONILLA

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas, Laredo

5:06-CR-10-ALL

Before JONES, Chief Judge, DAVIS and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Carlos Constantino Bonilla (“Bonilla”) pleaded guilty to being unlawfully

present in the United States after deportation, in violation of 8 U.S.C. § 1326.

The district court sentenced Bonilla to serve forty-one months in prison, followed

by a three-year term of supervised release. Bonilla contends that the district

court erred in adjusting his base offense level upward based upon his prior

conviction for attempted manslaughter under New York Penal Law § 125.15.

Bonilla also challenges the presumption of reasonableness that attaches to a

sentence within a properly calculated guidelines range; and he challenges the

constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony

No. 06-40894

convictions as sentencing factors. These latter two arguments are foreclosed by

Supreme Court precedent.1 Although the district court erred in applying the

crime of violence enhancement, because it imposed a reasonable alternative non-

guideline sentence, we affirm.

I

Bonilla pleaded guilty to his § 1326 offense of illegal reentry without the

benefit of a plea agreement. The presentence investigation report (“PSR”)

calculated a base offense level of eight pursuant to U.S. SENTENCING GUIDELINES

MANUAL (“USSG”) § 2L1.2(a) (2005). The PSR recommended adding sixteen

levels under USSG § 2L1.2(b)(1)(A)(ii) because Bonilla’s New York conviction for

attempted manslaughter qualified as a “crime of violence.” The PSR then

recommended subtracting three levels for acceptance of responsibility under

USSG § 3E1.1(a) and (b). A total offense level of twenty-one, coupled with

Bonilla’s criminal history category of II, resulted in a recommended

imprisonment range of forty-one to fifty-one months.

Bonilla lodged objections to the PSR. First, Bonilla objected to the sixteen-

level enhancement on the ground that the government had not carried its

burden of showing that his prior conviction for attempted manslaughter

qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii). The PSR reveals that

the crime occurred while the defendant was homeless, and he became embroiled

in a fight over mattress space; he struck the victim over the head with a cinder

block causing his death. Bonilla’s attempted manslaughter conviction arose

from his 1998 violation of § 125.15. Section 125.15 provides that:

1

Bonilla properly concedes that these two arguments are foreclosed, and he raises them only

to preserve them for further review. Bonilla’s challenge to our presumption of reasonableness that

attaches to sentences within the proper guidelines’ range is foreclosed by Rita v. United States, 127 S.

Ct. 2456, 2462-63 (2007). Bonilla’s challenge to the constitutionality of § 1326(b)’s treatment of prior

felony and aggravated felony convictions is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998). We have held that the latter issue is “fully foreclosed from further debate.” United

States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).

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A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or

2. He commits upon a female an abortional act which causes

her death, unless such abortional act is justifiable pursuant

to subdivision three of section 125.05; or2

3. He intentionally causes or aids another person to commit

suicide.

N.Y. PENAL LAW § 125.15 (McKinney 2008). As proof of the conviction, the

probation officer submitted the New York criminal information that originally

charged Bonilla with committing second-degree manslaughter. There is no

evidence that Bonilla was reindicted for the attempt charge. The probation

officer also submitted the Certificate of Disposition (“COD”), which is a state

record of the defendant’s offense of conviction. The criminal information charged

Bonilla with manslaughter in the second degree based on a violation of Section

125.15(1). However, the COD noted only that Bonilla pleaded guilty to

attempted manslaughter in the second degree under § 125.15 without identifying

the subsection under which Bonilla pleaded guilty. Bonilla contended that the

COD did not establish the subdivision he violated and that the criminal

2

The statute defines “abortional act” to mean, “an act committed upon or with respect to a

female, whether by another person or by the female herself, whether she is pregnant or not, whether

directly upon her body or by the administering, taking or prescription of drugs or in any other manner,

with intent to cause a miscarriage of such female.” N.Y. PENAL LAW § 125.05(2) (McKinney 2008). An

abortional act is justifiable:

when committed upon a female with her consent by a duly licensed physician acting (a)

under a reasonable belief that such is necessary to preserve her life, or, (b) within

twenty-four weeks from the commencement of her pregnancy. A pregnant female's

commission of an abortional act upon herself is justifiable when she acts upon the

advice of a duly licensed physician (1) that such act is necessary to preserve her life, or,

(2) within twenty-four weeks from the commencement of her pregnancy. The

submission by a female to an abortional act is justifiable when she believes that it is

being committed by a duly licensed physician, acting under a reasonable belief that

such act is necessary to preserve her life, or, within twenty-four weeks from the

commencement of her pregnancy.

Id. at § 125.05(3).

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No. 06-40894

information could not be used to establish that fact, as it did not charge the

attempt crime to which Bonilla eventually pleaded. Because no particular

subdivision could be identified, Bonilla argued that § 125.15 must be analyzed

as a whole to determine whether it fits within the guidelines’ definition as a

crime of violence. He claimed that when analyzed as such, the statute did not

fit within the generic, contemporary definition of manslaughter.

Bonilla raised further objections to the PSR that mirror his remaining

arguments on appeal.3 At sentencing, Bonilla reurged these objections but the

district court overruled them. The district court found that Bonilla’s violation

of Section 125.15 qualified under the guidelines as an enumerated offense of

manslaughter, and thus as a crime of violence. The court sentenced Bonilla to

a non-guideline sentence of forty-one months in prison, followed by a three-year

term of supervised release, and a $100 mandatory assessment. Bonilla timely

filed a notice of appeal.

II

Bonilla’s first objection is that the district court erred in applying the

crime of violence enhancement to determine his guideline sentence.

Determining whether a prior offense qualifies as a crime of violence requires

interpretation and application of the sentencing guidelines. We review a district

court’s interpretation and application of the guidelines de novo. See United

States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc) (reviewing

de novo a district court’s application of USSG § 2L1.2).

The application notes of USSG § 2L1.2 define a “crime of violence” in two

different ways. A crime of violence either “(1) has the use, attempted use, or

threatened use of physical force against the person of another as an element of

the offense, or (2) it qualifies as one of several specifically enumerated offenses

3

See, supra, note 1.

4

No. 06-40894

[including manslaughter].” United States v. Murillo-Lopez, 444 F.3d 337, 339

(5th Cir. 2006) (citing USSG § 2L1.2 cmt. n. 1(B)(iii)). Attempts can trigger a

crime of violence enhancement. See USSG § 2L1.2 cmt. n. 5 (stating that “[p]rior

convictions of offenses counted under subsection (b)(1) include the offenses of

aiding and abetting, conspiring, and attempting, to commit such offenses”). In

this case, the government argues only that Bonilla’s offense under § 125.15

qualifies as the enumerated offense of “manslaughter.” See USSG § 2L1.2 cmt.

n. 1 (B)(iii) (stating that “‘[c]rime of violence means any of the following. . .

manslaughter”). The parties dispute how specifically we can define the offense

committed by Bonilla, as well as the documents we may use to make such a

determination.

A

The New York law at issue here provides three separate subsections, each

of which independently constitutes manslaughter in the second degree. To

determine which subpart formed the basis of Bonilla’s conviction, we may

examine, “the statutory definition, charging document, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.” See United States v. Mungia-Portillo, 484 F.3d

813, 815 (5th Cir. 2007) (quoting Shepard v. United States, 544 U.S. 13, 16

(2005)).

Bonilla argues that the district court erred by relying on the COD and the

original criminal information charging him with second degree manslaughter to

establish that his prior conviction amounted to a crime of violence. Bonilla

contends that the district court could not use either document to “pare down” the

statute in order to establish the subsection to which Bonilla pleaded guilty.

Finally, he argues that Section 125.15, when taken as a whole, does not fit the

guidelines definition of manslaughter, and therefore that his crime of violence

enhancement was improper. The Government responds by arguing that the

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No. 06-40894

district court properly relied on the criminal information as well as the COD.

These two documents, contends the Government, show that Bonilla’s prior

conviction qualifies as the enumerated offense of manslaughter.

Recent panel decisions of this court confirm Bonilla’s position as to the

criminal information. Because the criminal information charges a crime of

which Bonilla was not convicted, it cannot be used to “pare down the statute of

conviction to determine under which subsection [Bonilla] pleaded guilty.”

United States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir. 2007); see United

States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir. 2007) (reaching same

conclusion when defendant pleaded guilty to attempted kidnapping but

indictment charged only aggravated kidnapping); see also United States v.

Turner, 349 F.3d 833, 836 (5th Cir. 2003) (holding that, in the context of USSG

§ 4B1.2, “a district court may not rely on a charging document without first

establishing that the crime charged was the same crime for which the defendant

was convicted”). Therefore, the district court could not consider the criminal

information to establish that Bonilla’s offense qualified as a crime of violence.4

As to the COD, we have recognized that New York Certificates of

Disposition have “sufficient indicia of reliability” such that they can be used to

establish the existence of a prior conviction. See Neri-Hernandes, 504 F.3d at

591-92 (distinguishing between establishing facts underlying prior conviction

and existence of prior conviction). In Neri-Hernandes, the defendant argued that

a COD did not provide sufficient evidence to establish a prior conviction for a

4

The government relies on our decision in United States v. Martinez-Vega, 471 F.3d 559 (5th

Cir. 2006) to argue otherwise, but this case is distinguishable. In Martinez-Vega, we held that a

judgment entered against the defendant showed that he was convicted of “the lesser charge contained

in the indictment. Id. at 563 (emphasis in original). Because the lesser charge was made clear from

the judgment, and was found by the court as actually being charged in the original indictment, the

appellant could not carry his “burden of demonstrating plain error.” Id. In this case, we have a

certificate of disposition that does not refer back to a lesser offense in the original indictment. And

unlike Martinz-Vega, where we reviewed only for plain error, we exercise de novo review of the issue

in this case. Further, extending Martinez-Vega to this situation would unnecessarily bring it into

conflict with Neri-Hernandes and Gonzalez-Ramirez.

6

No. 06-40894

crime of violence. We disagreed and noted that the Certificate in Neri-

Hernandes’ case “details [his] guilty plea and sentence, and it specifies a

subsection of the statute under which Neri was convicted.” Id. at 591 (emphasis

added). Because the COD established the subsection of conviction, the court was

able to find that Neri-Hernandes committed a crime of violence. Id. Bonilla’s

COD does not provide the same specificity to aid us or the district court. The

COD states only that Bonilla pleaded guilty to attempted manslaughter in the

second degree under § 125.15. It establishes the fact of Bonilla’s conviction

under the statute, but it does not provide the specific subsection under which he

was convicted.

B

Because the criminal information may not be considered, and the COD

provides no aid as to which subsection Bonilla violated, we consider § 125.15 as

a whole to determine whether Bonilla’s conviction qualifies as a crime of violence

under the guidelines enumerated offense of manslaughter. We determine the

meaning of the guidelines’ reference to manslaughter by using a “common sense

approach” and looking to the “ordinary, contemporary, [and] common meaning”

of the term. Murillio-Lopez, 444 F.3d at 339 (internal quotation marks and

citation omitted). “To distill the plain, ordinary meaning, this court looks to

sources such as the Model Penal Code, Professor LaFave’s treatise and legal

dictionaries.” Mungia-Portillo, 484 F.3d at 816. “When the statute of conviction

encompasses prohibited behavior that is not within the plain, ordinary meaning

of the enumerated offense, the conviction is not a crime of violence as a matter

of law.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006)

(internal citation and quotation marks omitted).

As noted above, § 125.15 provides three different subsections, the violation

of each defined as second degree manslaughter under New York law. The first

defines second-degree manslaughter as, “recklessly caus[ing] the death of

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No. 06-40894

another person.” The second notes that if one commits certain abortional acts

that cause a female’s death, then that person may be prosecuted for

manslaughter in the second degree. The third subsection provides for a second-

degree manslaughter charge against anyone who “intentionally causes or aids

another person to commit suicide.” The question before us then, is whether the

New York statute encompasses behavior beyond that included in the plain,

ordinary meaning of manslaughter.

Traditionally, manslaughter has been divided into two categories:

voluntary and involuntary manslaughter. This is still the norm in most

American jurisdictions. 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 15.1

490 (2d ed. 2003). “Voluntary manslaughter in most jurisdictions consists of an

intentional homicide committed under extenuating circumstances which

mitigate, though they do not justify or excuse, the killing.” Id. at § 15.2 491.

(emphasis added). The Model Penal Code includes a similar definition. See

MODEL PENAL CODE § 210.3(1)(b) (defining manslaughter as, inter alia, “a

homicide which would otherwise be murder” but “is committed under the

influence of extreme mental or emotional disturbance for which there is

reasonable explanation or excuse”). At least subsections (1) and (2) of 125.15

encompass criminal acts involving a less culpable mens rea than intentional

homicide and, therefore, criminalize conduct broader than the plain and

ordinary definition of voluntary manslaughter.5 Therefore, we turn our focus to

involuntary manslaughter to determine whether New York’s statute is at least

as narrow as the generic, contemporary version of that offense. See United

States v. Dominguez-Ochoa, 386 F.3d 639, 642 (5th Cir. 2004) (noting that Texas’

5

Subsection (1) requires only a reckless mens rea, and subsection (2) requires, for an abortional

act, the intent to cause a miscarriage. Neither of these subsections requires a homicidal intent to

establish a violation. It is not as clear whether subsection (3) would fall into a contemporary, generic

definition of voluntary manslaughter. See generally, LaFave, supra, § 15.6 (discussing the varied state

approaches to criminalizing the aiding and assisting of suicide). However, the breadth of subsection (3)

is not determinative in this case.

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criminal negligent homicide statute must be analyzed in relation to involuntary

manslaughter because voluntary manslaughter requires a “different level of

intent”).

As to involuntary manslaughter, the Model Penal Code provides that,

“[c]riminal homicide constitutes manslaughter when. . . it is committed

recklessly.” MODEL PENAL CODE § 210.3(1)(a).6 The Model Penal Code’s

recklessness standard requires “proof of conscious disregard of perceived

homicidal risk.” Dominguez-Ochoa, 386 F.3d at 645 (quoting MODEL PENAL

CODE § 210.3 cmt. 4 at 53). We have recognized that the recklessness standard

adopted in the Model Penal Code provides the minimal necessary mens rea for

“generic contemporary manslaughter (including involuntary manslaughter).”

Id. at 646; see also LAFAVE, supra, at § 15.4(a) 523 (noting that most of the

comprehensive criminal codes follow the Model Penal Code on this matter).

Therefore, § 125.15 will be broader than the plain ordinary definition of

manslaughter))and thus not a crime of violence under the guidelines))if one of

its subsections requires less than a reckless state of mind.

Section 125.15(1) encompasses all of the conduct contemplated by the

Model Penal Code’s reference to manslaughter as reckless homicide.

Specifically, it provides that “a person is guilty of manslaughter in the second

degree if. . . he recklessly causes the death of another person.” N.Y. PENAL LAW

§ 125.05(1) (McKinney 2008) The inclusion of subsections (2) and (3) indicates

that the statute was intended to criminalize a broader swath of conduct than

just recklessly caused deaths. Further, subsection (2) indicates that it can be

violated by unjustified abortional acts that result in the death of a female. To

constitute an “abortional act,” the act must be taken “with intent to cause a

6

The Model Penal Code defines “criminal homicide” as “purposely, knowingly, recklessly, or

negligently caus[ing] the death of another human being.” In other words, “[c]riminal homicide is

murder, manslaughter, or negligent homicide.” MODEL PENAL CODE § 210.1.

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No. 06-40894

miscarriage.” N.Y. PENAL LAW § 125.05(2) (McKinney 2008). However, the

statute says nothing in terms of the defendant’s mental state towards the risk

of death created by his behavior. New York law provides that “if an offense or

some material element thereof does not require a culpable mental state on the

part of the actor, such offense is one of strict liability.” N.Y. PENAL LAW § 15.10

(McKinney 2008). This suggests that if an act intended to cause a miscarriage

results in a female’s death, a defendant could be prosecuted under subsection (2)

irrespective of the defendant’s mental state towards the risk of death posed by

his behavior. Therefore, subsection (2) makes § 125.15 broader than the generic,

contemporary meaning of involuntary manslaughter. See Dominguez-Ochoa,

386 F.3d at 646 (finding that the lower mens rea requirement of Texas’ criminal

negligence statute prevented it from falling within the generic, contemporary

definition of involuntary manslaughter which requires at least recklessness).

The government argues that there is no possibility that Bonilla was

convicted under subsection (2) because nothing in the record indicates that he

committed an abortional act on a female victim. This argument, however,

misses the broader point that there is no evidence indicating which of the three

subsections applies. Further, the government bears the burden of establishing

a factual predicate justifying the adjustment, here that Bonilla’s offense

constitutes a crime of violence. See United States v. Rabanal, 508 F.3d 741, 743

(5th Cir. 2007) (“The general rule is that the party seeking an adjustment in the

sentence level must establish the factual predicate justifying the adjustment.”

(internal quotation marks omitted)). Had the government produced useable

evidence indicating that Bonilla was convicted under subsection (1), then his

conviction certainly would qualify under the contemporary, generic definition of

involuntary manslaughter. However, the government cannot rely on a lack of

evidence to foreclose the possibility that Bonilla’s conviction fell under another

subsection.

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For the foregoing reasons, we find that New York Penal Law § 125.15

criminalizes a broader range of conduct than that encompassed by the generic,

contemporary offense of manslaughter. Subsections (2) and (3) encompass a

broader scope of criminal behavior than the generic offense of voluntary

manslaughter, as they cannot be said to require an intentional homicide. And

subsection (2) can be violated without the recklessness towards a homicidal risk

required under the generic, contemporary version of involuntary manslaughter.

Therefore, the district court erred in applying the sixteen-level crime of violence

enhancement when calculating Bonilla’s sentence. See Fierro-Reyna, 466 F.3d

at 329 (5th Cir. 2006).

III

Bonilla argues that as a result of the district court’s error in applying the

sixteen-level crime of violence enhancement, this court should vacate Bonilla’s

sentence and remand for resentencing. For the following reasons, we disagree.

The Supreme Court recently reaffirmed that prior to reviewing a sentence

under the abuse-of-discretion standard, we:

must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence))including a deviation from the

Guidelines range.

Gall v. United States, 128 S. Ct. 586, 597 (2007). This presents no change to the

law. United States v. Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir. 2006) (noting

that before the district court imposes a non-Guideline sentence it must first

properly calculate the applicable Guideline range); United States v. Smith, 440

F.3d 704, 707 (5th Cir. 2006) (holding that when a district court imposes a non-

guidelines sentence, it should provide “fact-specific” reasons “consistent with the

sentencing factors enumerated in section 3553(a)”).

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No. 06-40894

Not all errors in determining a defendant’s guideline sentence require

reversal.

If the district court makes an error in an application of the

Guidelines, we vacate the resulting sentence without reaching the

sentence’s ultimate reasonableness. United States v. Duhon, 440

F.3d 711, 716 (5th Cir. 2006), (citing United States v. Villegas, 404

F.3d 355, 362 (5th Cir. 2005)). . . . If, however, the district court

imposes a non-Guideline sentence and that advisory sentence did

not directly “result” from any Guideline error, it need not be

vacated. Duhon, 440 F.3d at 716.

Tzep-Mejia, 461 F.3d at 526. In Tzep-Mejia, we held that the district court

properly exercised its discretion in imposing a non-guideline sentence. The

district court considered the possible guideline ranges that might apply to the

defendant with and without a disputed enhancement for a crime of violence

under U.S.S.G. § 2L1.2(b)(1)(A). After rejecting both ranges as alternatively too

high and too low, the district court properly applied the individualized, case-

specific factors as required by § 3553(a) and sentenced the defendant to a prison

term between the two. Accordingly, Tzep-Mejia’s sentence did not “result” from

an incorrect application of the guidelines.

We find that the district court followed a similar process in this case and

the resulting non-guideline sentence did not result from the district court’s error

in applying the crime of violence enhancement. The only aspect of Bonilla’s

guideline calculation that was in dispute was the crime of violence enhancement

discussed previously. Neither party disagrees with the district court’s guideline

calculation before the enhancement. The district court erroneously concluded

that the enhancement should apply to the defendant. However, like the district

court in Tzep-Mejia, the court in this case imposed an alternative non-guideline

sentence stating, “I believe that I have calculated the guidelines correctly, but

even if I am wrong about the guidelines, this is the sentence that I would impose

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No. 06-40894

in any event.” Although the district court did not comment on the guideline

ranges that would apply with and without the enhancement, the record reflects

no disagreement between the parties or confusion by the district court about the

guidelines range before and after the enhancement. The defendant argued in his

objections to the PSR that without the enhancement “he should be scored at

Level 6, at a Category I, with a sentencing range of 0-6 months, at Zone A.” At

sentencing the district court specifically referenced his consideration of the

parties’ arguments made at sentencing and in the reports before exercising its

discretion to impose a sentence of 41 months. As in Tzep-Mejia, Bonilla’s

sentence did not result from an incorrect application of the guidelines.

Bonilla argues that the district court committed an additional procedural

error by failing to adequately explain the chosen sentence. Gall, 128 S.Ct at 597.

There is some dispute as to whether plain error review should apply to this issue

because Bonilla did not object to the adequacy of the district court’s reasons at

sentencing. We need not decide the appropriate level of review, because as

explained below, the district court’s reasons were sufficient under any standard.

Prior to Rita, this court held that if a district court imposes a sentence

within the properly determined Guidelines range, little explanation is required.

See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In Rita, the Court

indicated that more than a brief statement may be required when a district court

is presented with nonfrivolous arguments for a sentence outside the Guidelines.

127 S. Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s

reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines

sentence in that case were, although brief, legally sufficient. Id. at 2469.

Specifically, the Court noted that the record made clear that the judge listened

to and considered the arguments and evidence but simply found the

circumstances insufficient to warrant a sentence below the Guidelines range.

Id. The judge said that the range was not “inappropriate” and that a sentence

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at the bottom of the range was “appropriate.” Id. The Court acknowledged that

the judge might have said more, but was not required to do so. Id.

Error does not necessarily result when the district court ‘s reasons, as in

this case, are not clearly listed for our review. As stated in Rita,

The statute does call for the judge to "state" his "reasons." And that

requirement reflects sound judicial practice. Judicial decisions are

reasoned decisions. Confidence in a judge's use of reason underlies

the public's trust in the judicial institution. A public statement of

those reasons helps provide the public with the assurance that

creates that trust.

That said, we cannot read the statute (or our precedent) as insisting

upon a full opinion in every case. The appropriateness of brevity or

length, conciseness or detail, when to write, what to say, depends

upon circumstances. Sometimes a judicial opinion responds to every

argument; sometimes it does not; sometimes a judge simply writes

the word "granted," or "denied" on the face of a motion while relying

upon context and the parties' prior arguments to make the reasons

clear. The law leaves much, in this respect, to the judge's own

professional judgment

Id. (underlining added.) In this case, examining the district court’s statement

at sentencing in the context of the full sentencing hearing confirms that the

court’s reasons for the non-guideline sentence it imposed were minimally

sufficient.

Immediately before imposing sentence, the district court made the

following statement:

Okay. Mr. Bonilla, the court has considered the arguments made

earlier and as well as the information in the report. And keeping in

mind the factors that the court has to consider in imposing a

sentence, the court is going to impose a sentence that it believes to

be reasonable. And the sentence that the court imposes is one that

the court believes to be reasonable. And that is true whether or not

the court turns out to be wrong about the enhancement.

Because of the district court’s reference to “arguments made earlier” and

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“information in the report” we must look at the entire sentencing record to

determine if those sources provide adequate information about the “factors that

the court” considered in imposing sentence to determine whether the district

court’s reasons were adequate.

The “arguments made earlier” in the sentencing hearing include the

government’s argument that the court consider under its discretionary powers

the type of crime the defendant committed that resulted in the conviction for

attempted manslaughter. The government pointed out that the victim died as

a result of what the defendant did - “And the victim was killed with a brick,

Your Honor.” The arguments also included the defendant’s arguments for a non-

guideline sentence on the basis of the history and characteristics of the

defendant. 18 U.S.C. § 3553(a)(1). The defense argued that Bonilla was sixty

years old, was in this country for several years with no confrontations with the

law, and has several children living in the United States. Bonilla concluded by

asking the court to impose a sentence “that is reasonable and that is fair.” The

government asked for a sentence in the low end of the guideline range, including

the enhancement as the appropriate punishment given the defendant’s past

history and personal characteristics. The government noted the defendant’s

sporadic work and employment history, his problems with alcohol and

homelessness. He also noted that the defendant had several arrests related to

alcoholism and homelessness that were not prosecuted, a reference to the

defendant’s criminal history that the court could take into account when

determining the appropriate sentence within the advisory guideline range.

The “reports” referenced by the district court contained an argument by

the defendant for a sentence that is sufficient but not greater than necessary

based on his arguments under § 3553(a) in Defendant’s Objections to

Presentence Report. The objections noted that the defendant entered the

country to seek work and visit his children, not to commit further crimes. The

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“reports” also include the probation office’s recommendation for a sentence of 41

months.

The district court’s reference to these arguments before imposing a non-

guideline sentence of 41 months provide the background to clarify the “factors”

considered by the district court in determining the chosen sentence and provide

adequate reasons for that decision. Clearly the factors the court considered were

those argued at sentencing and in previously filed reports - the nature of the

circumstances of the offense and the defendant’s history and characteristics,

including his unprosecuted criminal history. 18 U.S.C. § 3553(a)(1). After

considering these factors, the district court concluded that a sentence of 41

months was reasonable. “The sentencing judge is in a superior position to find

facts and judge their import under § 3553(a) in the individual case,” Gall, 128

S. Ct. at 597. Examining the full sentencing record reveals the district court’s

reasons for the chosen sentence and allows for effective review by this court.

Our task would have been easier had the district court stated its reasons

explicitly on the record, a procedure we strongly recommend. A clear statement

of reasons on the record also serves to prevent the inefficiency that would result

from remand and resentencing if on appeal we had been unable to determine the

court’s reasons from the record. In this case however, our review makes clear

both the reasons for the sentence and their adequacy as a matter of law.

IV

The district court erred in applying a sixteen-level crime-of-violence

enhancement based on Bonilla’s conviction for attempted manslaughter under

New York Penal Law § 125.15. However, because the district court imposed an

alternative non-guideline sentence, the advisory sentence did not result from the

guideline error and we need not vacate the sentence on that basis. Based on our

examination of the sentencing record, the district court’s reasons for the

sentence under the § 3553(a) factors are adequate. Accordingly, we AFFIRM

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No. 06-40894

Bonilla’s sentence.

AFFIRMED.

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No. 06-40894

EMILIO M. GARZA, Circuit Judge, dissenting:

The panel majority, like the district court, ignores the obvious dictates

of Gall: there can be no properly calculated Guidelines range when the

district court errs in applying a 16-level crime-of-violence enhancement.

Moreover, the majority seems to condone the district court’s statement: “I

believe that I have calculated the guidelines correctly, but even if I am wrong

about the guidelines, this is the sentence that I would impose in any event.”

This statement flies in the face of Gall, which states that a properly

calculated guidelines range is a prerequisite to a reasonable sentence.

In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court

articulated that appellate review of sentences post-Booker involves a

bifurcated process. Prior to reviewing a sentence for reasonableness under an

abuse-of-discretion standard, we:

must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence))including a deviation from the

Guidelines range.

Gall, 128 S. Ct. at 597; see United States v. Cisneros-Gutierrez, No. )) F.3d

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No. 06-40894

)), 2008 WL 383024 (5th Cir. Feb. 13, 2008) (recognizing that Gall bifurcates

the process for reviewing a sentence). Implied in the majority opinion is a

viewpoint that Gall relaxed our appellate review of district court sentencing.

I agree to an extent. See Gall, 128 S. Ct. at 600 (noting that the appellate

court “failed to demonstrate the requisite deference to the District Judge’s

decision”). However, this relaxation applies to our review of a sentence’s

reasonableness. Gall makes clear that we must first determine whether

district courts have complied with certain procedural requirements before

sentences can be tested for reasonableness. See Gall, 128 S. Ct. at 597

(“Assuming that the district court’s sentencing decision is procedurally sound,

the appellate court should then consider the substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard.”).

Although (perhaps the proper word is “because”) I agree with the

majority’s conclusion that the district court erred in treating Bonilla’s New

York conviction as a crime of violence, by affirming the district court’s

sentence in this case, the majority effectively ignores Gall’s procedural

requirements and commits three distinct errors in the process. First, the

majority errs by imputing two Guidelines range calculations to the district

court: one including the erroneous crime-of-violence enhancement and one

without the enhancement. But the district court failed to calculate an

alternative Guidelines range without the enhancement, and therefore the

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No. 06-40894

majority has no basis for finding that the district court properly calculated

the Guidelines range before imposing a non-Guidelines sentence. Second,

given the record in this case, the majority mistakenly concludes that the

district court imposed a non-Guidelines sentence. The district court’s

statement that it would impose the same sentence “whether or not the court

turns out to be wrong about the enhancement,” is insufficient to trigger a

Rita/Gall reasonableness review of Bonilla’s sentence as a non-Guidelines

sentence. Finally, even assuming we could review the sentence as a non-

Guidelines sentence, the district court failed to “adequately explain the

chosen sentence” in light of the factors set forth in § 3553(a). Gall 128 S. Ct.

at 597. For these reasons, I respectfully dissent.

Relying on United States v. Tzep-Mejia, 461 F.3d 522 (5th Cir. 2006),

the majority concludes that we need not vacate Bonilla’s sentence because it

did not result from an incorrect application of the sentencing guidelines. See

id. at 525-26 (noting that Booker did not excise 18 U.S.C. § 3742(f)). However,

the majority does not confront the stark differences between this case and

Tzep-Mejia. In Tzep-Mejia, the district court carefully calculated two

potentially applicable Guidelines’ ranges and then provided fact-specific

reasons for applying a non-Guidelines sentence between those two ranges.

See Tzep-Mejia, 461 F.3d at 526-27. Unlike Tzep-Mejia, the district court

here did not state the multiple Guidelines ranges that it considered.

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No. 06-40894

Presumably, the alternative Guidelines range would be the applicable

Guidelines range without the crime-of-violence enhancement. Without the

enhancement, the Guidelines range is 4 to 10 months’ imprisonment, which

results from Bonilla’s base offense level of 8, coupled with his criminal history

category of II. See U.S. SENTENCING GUIDELINES MANUAL (“USSG”) § 2L1.2(a)

(2005). Taking into account the three-level reduction for Bonilla’s acceptance

of responsibility, the proper range would be 0 to 6 months. See USSG Ch. 5.

Pt. A, Sentencing Table. However, the district court never adopted an

alternative Guidelines range. And the district court never indicated that it

was considering both a Guidelines sentence of 41 months based on the crime-

of-violence enhancement, and a non-Guidelines sentence of 41 months based

on an upward variance of 35 to 41 months from an alternative Guidelines

range of 0 to 6 months that did not include the enhancement. Significantly,

the panel majority’s opinion does not explicitly deny that a crime-of-violence

enhancement under USSG § 2L1.2 is essential to a properly calculated

Guidelines range.

To avoid the erroneous enhancement, the majority attributes to the

district court an alternative, properly calculated Guidelines range that did

not include the enhancement. But as noted above, the district court never

articulated any Guidelines range aside from the range including the

enhancement. By recognizing a properly calculated alternative Guidelines

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No. 06-40894

range in this case, the majority implicitly approves of a procedure whereby an

appellate court can ignore an erroneous crime-of-violence enhancement to

create a proper Guidelines range calculation, even when the district court has

not done the same. When the district court does not provide a separate

Guidelines calculation, we cannot ignore an erroneous crime-of-violence

enhancement, as it is an essential component of the Guidelines calculation

under USSG § 2L1.2. The application instructions charge courts to

“[d]etermine the base offense level and apply any appropriate specific offense

characteristics, cross references, and special instructions contained in the

particular guideline.” USSG § 1B1.1(b). The crime-of-violence enhancement

is a “specific offense” characteristic under § 2L1.2. See USSG § 2L1.2(b)

(providing for the crime-of-violence enhancement as a “specific offense

characteristic” applied to the base offense level of 8). Clearly, the Supreme

Court had more in mind, when it set out the requirement that district courts

properly calculate the Guidelines range, than simply requiring district courts

to locate the initial base offense level for the crime. See Gall, 128 S.Ct. at

597. Without a clear indication that the district court considered multiple

Guidelines ranges, as we had in Tzep-Mejia, we cannot separate an erroneous

crime-of-violence enhancement from the initial base offense level in

evaluating the district court’s Guidelines calculation. Therefore, the district

court erred in calculating Bonilla’s Guidelines range.

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No. 06-40894

Although the district court stated that it would have imposed the same

sentence regardless of the Guidelines calculation, the district court’s actions

strongly indicate that it sought to impose a Guidelines sentence relying on

the crime-of-violence enhancement. During the sentencing hearing, the

district court overruled Bonilla’s objection to the crime-of-violence

enhancement, stating that “the court does find that the enhancement is

warranted.” The judge also stated that “I believe I have calculated the

guidelines correctly,” and that the sentence imposed “does happen to be a

sentence within the guideline range.” The district court’s written statement

of reasons for the judgment adopted the PSR without change. The PSR

indicated that the 16-level enhancement was proper and that the resulting

Guidelines range was 41-51 months. The PSR did not provide reasons for

considering any other Guidelines range or a non-Guidelines sentence,

notwithstanding the panel majority’s indication to the contrary. The majority

states that the “reports [considered by the district court] also include the

probation office’s recommendation for a sentence of 41 months.” The majority

fails to include the fact that the probation office’s 41-month recommendation

relied on the erroneous crime-of-violence enhancement. Also, the district

court’s statement of reasons reflects the “court determination of the advisory

guideline range” as 41-51 months. In the statement of reasons for the

judgment, the district court checked off the section signaling that it was

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No. 06-40894

imposing a “sentence within an advisory guideline range.” The statement of

reasons includes no indication that the district court also sought to impose an

alternative, non-Guidelines sentence. Further, treating the district court’s

sentence as a non-Guidelines sentence leads to application of 18 U.S.C. §

3553(c)(2), which requires the district court to provide “reasons . . . stated

with specificity in the written order of judgment and commitment” to justify a

non-Guidelines sentence. See United States v. Jones, 444 F.3d 430, 442-43

(5th Cir. 2006) (explaining that § 3553(c)(2) remains binding post-Booker).

Here, the district court’s statement of reasons provides no support for a non-

Guidelines sentence.

I fail to see how the majority can separate the district court’s erroneous

crime-of-violence enhancement from the sentence imposed. Unlike the

situation in Tzep-Mejia, the record in this case shows that the district court

improperly calculated the Guidelines range, and that it imposed a sentence

resulting from the improper calculation. See 18 U.S.C. § 3742(f)(1) (requiring

remand of sentences “imposed as a result” of error in Guidelines calculation).

Gall makes clear what our precedent and § 3742(f)(1) already require in this

situation: we must vacate and remand for resentencing. See Gall, 128 S. Ct.

at 597 (instructing appellate courts to first ensure that district courts

properly calculate the applicable Guidelines range); Tzep-Mejia, 461 F.3d at

526 (“If the district court makes an error in an application of the Guidelines,

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No. 06-40894

we vacate the resulting sentence without reaching the sentence’s ultimate

reasonableness.”).

Even assuming that the district court properly calculated the

Guidelines range such that we could review the sentence as a non-Guidelines

sentence, the district court failed to meet Gall’s requirement that the court

adequately explain its non-Guidelines sentence based on the factors set forth

in § 3553(a). See Gall, 128 S. Ct. at 597. The district court’s statement that it

“considered the arguments made earlier as well as the information in the

report,” suggests that it was aware of the government’s position that the court

could use Bonilla’s prior crime to justify a non-Guidelines sentence. However,

the district court never adopted this reason during the hearing, nor did it

state any other reasons consistent with § 3553(a) to justify a non-Guidelines

sentence. The fact that the district court provided a statement of reasons

consistent with the application of a Guidelines sentence including the

erroneous enhancement undermines the idea that the district court adopted

the government’s non-Guidelines argument.

The statutory problem with the district court’s lack of reasons has

already been noted. But the Supreme Court cases cited by the majority also

indicate that the district court was required to provide more than it did to

adequately explain the non-Guidelines sentence in this case. As quoted by

the majority, Rita indicates that § 3553(c) does not “insist[] upon a full

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No. 06-40894

opinion in every case.” Rita v. United States, 127 S. Ct. 2456, 2468 (2007).

However, the “appropriateness of brevity or length, conciseness or detail,

when to write, what to say, depends upon circumstances.” Id. In the specific

circumstances presented by Rita, the Supreme Court found the district

judge’s brief statement to be legally sufficient for a sentence imposed within

the properly calculated Guidelines range. See id. (“[W]hen a judge decides to

simply apply the Guidelines to a particular case, doing so will not necessarily

require lengthy explanation.”). Rather than reviewing a within-Guidelines

sentence, here, the majority struggles to analyze Bonilla’s sentence as an

alternative non-Guidelines sentence. Under the circumstances of this case,

where the crime-of-violence enhancement was challenged below and the

imposition of a non-Guidelines sentence is dubious, we must require more of

the district court than a simple generalization: “the court has considered the

arguments made earlier . . . and as well as the information in the report

. . . [a]nd keeping in mind the factors that the court has to consider in

imposing a sentence, the court is going to impose a sentence it believes to be

reasonable.” See id. (“Where the judge imposes a sentence outside the

Guidelines, the judge will explain why he has done so.” (emphasis added));

Gall, 128 S. Ct. at 597 (“If [the judge] decides that an outside-Guidelines

sentence is warranted, he must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support the degree of

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No. 06-40894

the variance.”). Our deference to district courts in sentencing stems from

their “superior position to find facts and judge their import under § 3553(a)”

and their “institutional advantage” in seeing many more Guidelines sentences

than do appellate courts. See Gall, 128 S. Ct. at 597-98. When a district

court exercises these advantages and provides reasons for its non-Guidelines

sentences, it promotes the perception of fair sentencing and our deference is

certainly warranted. See id. at 597; Rita, 127 S. Ct. at 2463 & 2467. In

contrast, a non-Guidelines sentence based on the district court’s unsupported

conclusion as to reasonableness does not promote perception of fair

sentencing; it hinders it. Moreover, the appellate court is left to speculate as

to the reasons supporting the district court’s sentence, like the majority does

in this case.

The majority’s strained attempt in Part III to explain the

reasonableness of the district court’s sentence provides a glaring example of

the speculation required when the district court fails to provide any reasons

of its own. To provide support for the non-Guidelines sentence that the

district court did not impose, the majority tasks itself with reviewing “the

entire sentencing record” to find reasons the district court may have used had

it imposed a non-Guidelines sentence. But none of the majority’s rationale

was ever mentioned or adopted by the district court. Moreover, the panel

majority seems to admit the inadequacy of the rationale provided by the

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No. 06-40894

district court, finding the district court’s reasons to be “minimally sufficient,”

and “strongly recommend[ing]” that future district courts state reasons

explicitly on the record. The majority recognizes that “[a] clear statement of

reasons on the record also serves to prevent the inefficiency that would result

from remand and resentencing if on appeal we had been unable to determine

the court’s reasons from the record.” This perceived inefficiency in remanding

Bonilla’s individual case, rather than the Supreme Court’s dictates in Gall

and Rita, seemingly drives the majority’s decision to affirm.

While the majority suggests that remand in this individual case may be

inefficient, I believe that affirming this non-Guidelines sentence could create

more troubling inefficiencies in the future. The majority’s opinion may be

taken to say that if the district court indicates any intent to impose an

alternative non-Guidelines sentence, then we as an appellate court will scour

the record to determine whether we can affirm such a sentence. Rita and

Gall made clear that the job of justifying such sentences is not ours. And

while I do not intend to preclude the practice of alternative sentencing by

district courts, alternative sentences must comply with the requirements set

forth in the Sentencing Reform Act and the Supreme Court’s decisions. See

United States v. Smalley, 517 F.3d 208, 213-14 (3d Cir. 2008). I recognize

that were we to remand, the district court could have at its disposal the

necessary tools to impose a reasonable non-Guidelines sentence of 41-months’

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No. 06-40894

imprisonment. See United States v. Lopez-Salas, 513 F.3d 174, 181 (5th Cir.

2008) (per curiam) (noting that a prior violent offense, even if not a “crime of

violence” under the Guidelines, could be used to justify a non-Guidelines

sentence under § 3553(a)). And while this may be true, the Supreme Court’s

recent precedent makes it clear that sentencing is the job of the district court,

not the appellate court. As such, we should vacate and remand to allow the

district court to resentence Bonilla without the erroneous crime-of-violence

enhancement.

For the foregoing reasons, I respectfully dissent.

29