# United States v. Jose Jesus Lira-Barraza > Court of Appeals for the Ninth Circuit · July 22, 1991 · 941 F.2d 745 URL: https://www.frixlaw.com/law-library/cases/9481949 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesus LIRA-BARRAZA, Defendant-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** July 22, 1991 - **Citations:** 941 F.2d 745; 91 Daily Journal DAR 8822; 91 Cal. Daily Op. Serv. 5904; 1991 U.S. App. LEXIS 15567; 1991 WL 131910 - **Precedential status:** Published - **Opinion:** Concurrence by Wallace - **Judges:** Wallace, Browning, Hug, Tang, Fletcher, Pregerson, Nelson, Reinhardt, Hall, Thompson, O'Scannlain - **Cited by:** 285 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by United States v. John Frederick Beasley, 90 F.3d 400 (1996). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481949 ## How later opinions describe it (automated extraction) - stating that the Guidelines imposed "a single statutory sentencing structure guiding the discretion of the court in all cases" - holding that an appeal is not moot when the defendant's sentence may be directly affected by the court's decision - explaining the relationship between 18 U.S.C. § 3553(b) and § 3553(a) ## Opinion text WALLACE, Chief Judge, concurring in part and concurring in the judgment: The scope of my disagreement with the majority is narrow. I agree with the majority’s statement of the standard of review for evaluating Guidelines departures. I also conclude that Lira-Barraza’s sentence should be vacated. However, I cannot join in the majority’s discussion of the standards that must govern the district judge when determining the extent of a Guidelines departure. Therefore, I write separately. I As I read it, the majority opinion vacates the sentence and remands without considering whether the sentence imposed was unreasonable. Rather, the majority holds that the district judge’s failure to provide an explanation of the extent of departure in terms of the structure of the Sentencing Guidelines constitutes per se grounds for reversal. I do not believe this result is supported by the Sentencing Reform Act (Act) or the Guidelines. Therefore, I conclude we should join the other circuits which have held that an explanation of the extent of departure in terms of analogous Guidelines provisions is recommended, but not required. Analysis of our role in evaluating Guidelines departures should begin with 18 U.S.C. § 3742 , which sets the standard for appellate review of sentences. Section 3742 provides that “[u]pon review of the record, the court of appeals shall determine whether the sentence ... is outside the applicable guideline range, and is unreasonable.” 18 U.S.C. § 3742 (e). Noticeably lacking from this provision is any authorization now mandated by the majority for appellate courts to reverse sentences on the grounds that the sentencing judge did *752 not determine the departure with reference to the “structure, standards and policies of the Act and Guidelines.” Nor is the judge’s failure to draw these comparisons necessarily dispositive of the issue of whether the sentence is reasonable — it is the length of the sentence, not the level of detail of the sentencing judge’s analysis, that should control our determination of reasonableness. No other statutory provisions support the majority’s requirement that district judges determine departure sentences by reference to the structure of the Guidelines. For example, 18 U.S.C. § 3558 (a)(6), relied on by the majority, requires sentencing judges to be aware of “the need to avoid unwarranted sentence disparities among defendants ... who have been found guilty of similar conduct.” (Emphasis added.) By its terms, this provision requires consistency when sentencing defendants who have been convicted of the same crime, and does not apply to departures on the basis of unconvicted conduct. However, even assuming it applies to Guidelines departures, it only states a factor to be considered in sentencing, and falls far short of requiring judges to explain departures by reference to analogous Guidelines provisions. See id. As the majority points out, the Act explicitly requires sentencing judges to rely on an analysis of existing Guidelines when determining sentences for an offense for which there is no applicable Guideline. 18 U.S.C. § 3553 (b). The majority jumps from this starting point to suggest that “[tjhere is no apparent reason” why this requirement should not apply to Guidelines departures. But we have previously held that “[w]hen some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that Congress intended ... the exclusion.” West Coast Truck Lines, Inc. v. Arcata Community Recycling Center, Inc., 846 F.2d 1239, 1244 (9th Cir.) (West Coast Truck Lines), cert. denied, 488 U.S. 856 , 109 S.Ct. 147 , 102 L.Ed.2d 119 (1988); see also Russello v. United States, 464 U.S. 16, 23 , 104 S.Ct. 296, 300 , 78 L.Ed.2d 17 (1983). Thus, section 3553(b) does not provide support for requiring district judges to rationalize Guidelines departures with reference to analogous Guidelines provisions. See also 18 U.S.C. § 3553 (c) (requiring only that the sentencing judge state “the specific reason” for the Guidelines departure, and not indicating that the extent of departure must also be explained). Thus, there is little statutory support for the majority’s requirement that sentencing judges justify a departure sentence in terms of the structure of the Guidelines. Analysis of the Guidelines yields a similar lack of support. Although a few specific Guidelines contemplate departure by analogy, see United States Sentencing Guidelines § 4A1.3 (Nov.1990) (U.S.S.G.), the Guidelines do not create a general requirement that judges explain all departures with reference to the analogous Guidelines provisions. Cf. U.S.S.G. § 5K2.0 (stating only that “[t]he controlling decision as to whether and to what extent departure is warranted can only be made by the courts”). Again, applying traditional canons of statutory construction, we should infer that the Commission’s failure to impose this requirement was deliberate. See West Coast Truck Lines, 846 F.2d at 1244 . However, we need not rely solely on the Commission's silence, because Lira-Barraza’s claim that all departures must be guided by reference to similar Guidelines has been explicitly rejected by the Commission. U.S.S.G. Ch. 1, Pt. A 4(b), p.s. (distinguishing between departures guided “by analogy or by other ... suggestions” and departures which “will remain unguided”). In the absence of statutory authority for requiring sentencing judges to explain their departure in terms of the structure of the Guidelines, I believe we should hold that such an explanation is recommended, but not required. While I agree that the reasonableness of a sentence may be gauged by reference to other Guidelines provisions, I do not believe that the district judge’s failure to make this comparison should be per se grounds for reversal. Several other circuits have so held. See, e.g., United States v. Ocasio, 914 F.2d 330, *753 336 (1st Cir.1990) (rejecting any requirement that judges explain sentence by comparison to other Guidelines); United States v. Landry, 903 F.2d 334 , 341 n. 6 (5th Cir.1990) (Landry) (“the district court [is not] required to scour the guidelines under unrelated criminal statutes to decide the extent of departure”); United States v. Shuman, 902 F.2d 873, 877 (11th Cir.1990) (Shuman) (“the reasonableness of a departure does not always depend on this sort of mathematical precision”); United States v. Hummer, 916 F.2d 186 , 194 & n. 7 (11th Cir.1990) (Hummer) (holding that relevant analogies may provide limits for departure sentences, but stating that “we do not mean to suggest that district courts necessarily must force every aggravating factor through the guidelines structure.... The departure standard of reasonableness does not demand an overly rigorous, mathematical approach.”), cert. denied, — U.S.-, 111 S.Ct. 1608 , 113 L.Ed.2d 670 (1991). I would follow these circuits and hold that the district judge’s failure to determine a departure sentence with reference to the structure of the Guidelines is not in itself grounds for reversal. See United States v. Lira-Barraza, 897 F.2d 981, 987 (9th Cir.1990) (failure to explain extent of departure not a per se abuse of discretion). Rather, I would vote to vacate the sentence only if it is “unreasonable” when evaluated in light of the structure, standards, and policies of the Act and Guidelines. See United States v. Pearson, 911 F.2d 186, 191 (9th Cir.1990) (Pearson) (concluding that the sentence so greatly exceeds the amount suggested by comparison to other Guidelines provisions that the amount of departure is unreasonable); Shuman, 902 F.2d at 877 (applying an analogy not used by district court to conclude sentence was reasonable); Hummer, 916 F.2d at 194-95 (upholding departure under circumstances of case, although resulting sentence exceeded the one available under similar Guidelines provisions). II Although I do not agree with the majority’s analysis, I concur in the result. After considering the facts and circumstances of this case, and the reasons for departure, I conclude that the sentence imposed in this case was unreasonable, and must be vacated. The district judge imposed a sentence of 36 months, or 6 times the applicable Guidelines range. The judge did not provide an explanation for the extent of the departure, and stated only that the 30 month increase was justified by Lira-Barraza’s participation in a high speed chase. However, as pointed out by the majority, Lira-Barraza’s sentence falls within the range provided for significantly more serious offenses, such as assault with intent to commit murder and armed robbery. See Maj. op. at 746. Given the wide gap between the sentence imposed and the sentence available under other similar Guidelines, and the absence of any other explanation or basis for the discrepancy, I conclude the sentence was unreasonable. See Pearson, 911 F.2d at 191 ; Landry, 903 F.2d at 341 . Ill There is a significant difference between using comparisons to the Guidelines as a prudential approach to set an approximate upper limit on sentences, and making these comparisons an absolute procedural requirement. By choosing the latter approach, the majority goes beyond the statute and the Guidelines. I do not believe that a sentence is “unreasonable” simply because the sentencing judge does not provide the detail of analysis preferred by the majority. Therefore, I concur in part and concur in the judgment. THOMPSON, Circuit Judge, concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481949. Public record. Not legal advice.