444 F.3d 1173

UNITED STATES of America, Plaintiff-Appellee, v. Jawad MIQBEL, Defendant-Appellant.

No. 05-10033.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 17, 2005.

Filed April 17, 2006.

*1174Quin Denvir, Federal Public Defender; Timothy Zindel, Assistant Federal Public Defender (argued), Sacramento, CA, for the defendant-appellant.

McGregor W. Scott, United States Attorney; Samantha S. Spangler, Assistant U.S. Attorney (argued), Sacramento, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief Judge, Presiding. D.C. No. CR-00-00377-WBS.

Before STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges, and JANE A. RESTANI,* Chief Judge, United States Court of International Trade.

REINHARDT, Circuit Judge.

Jawad Miqbel appeals the sentence imposed by the district court on the grounds that the court failed to set forth sufficient reasons for its imposition of a sentence outside the recommended range, in violation of 18 U.S.C. § 3553(c), and that the sentence was unreasonable because it was imposed to provide “just punishment,” a factor he alleges to be impermissible in revocation sentencing. We vacate the sentence and remand for resentencing.

I.

On February 21, 2001, Jawad Miqbel pled guilty to a charge of conspiracy to possess a listed chemical with knowledge and reasonable cause to believe it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 846 and § 841(d)(2). On September 5, 2001, Chief Judge William Shubb of the United States District Court for the Eastern District of California sentenced him to three years imprisonment and three years of supervised release in addition to requiring mandatory drug testing. Miqbel served his prison sentence and was released under the supervision of the court on March 18, 2003.

*1175Following his release, Miqbel used methamphetamine sporadically in violation of the conditions of his release. On September 3, 2003, he admitted to his probation officer that he had used methamphetamine on or around August 31, 2003. On October 27, 2003, he tested positive for amphetamine and methamphetamine. On May 3, 2004, Lodi Police initiated a traffic stop on a vehicle driven by Miqbel and during a subsequent search, conducted with his consent, found 7.1 grams of marijuana and 1.3 grams of methamphetamine in the car. He was released the following day and immediately reported the arrest to his probation officer. Based on these incidents, the probation officer filed a petition with the court on June 1, 2004 alleging that Miqbel had violated the conditions of his release. In the petition, the probation officer noted that Miqbel had “been in high frequency substance abuse testing and group and individual counseling” since late 2003 and that since he had started that treatment, “[a]ll indications were that he was doing well.”

Appearing before the district court at the revocation hearing on December 22, 2004, Miqbel was found in violation of one charge, use of methamphetamine, a Grade C violation under the federal Sentencing Guidelines. For a Grade C violation, the Chapter 7 policy statements recommend a range of imprisonment of three to nine months for those who, like Miqbel, have a Category I criminal history. U.S. SENTENCING GUIDELINES MANUAL § 7B1.4 (2004) (Term of Imprisonment (Policy Statement)).1 At the revocation hearing, however, the district court sentenced Miqbel outside of the recommended three- to nine-month range, to a term of twelve months of imprisonment, despite the recommendations of the probation officer and the government that he receive a six month sentence.2 The only reason provided by the court for the upward departure was: “I have considered the guidelines under Chapter 7, and I have carefully given consideration to a sentence within those guidelines, but I find that a sentence within those guidelines would be insufficient to meet the purposes of sentencing under these circumstances.”

On May 25, 2005, the district court heard and denied Miqbel’s motion for bail pending appeal. At this hearing, the court acknowledged that it “could have and probably should have been more explicit in the reasons given for the sentence” that it had imposed at the earlier revocation proceeding, and suggested that Miqbel’s counsel raise on appeal the issue whether a court can consider punishment as a factor in deciding what sentence to impose upon revocation of supervised release. In the course of the bail hearing, the court stated that in its view, “punishment is the sentence imposed in order to promote respect for the law and to provide just punishment for the offense”3 and stated its belief that punishment could be taken into account in revocation sentencing.

*1176Miqbel appeals his sentence.4 This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

Whether the district court provided an adequate statement of reasons for the sentence it imposed is a question of law that we review de novo. United States v. Duran, 37 F.3d 557, 560 (9th Cir.1994) (citing United States v. Upshaw, 918 F.2d 789, 792 (9th Cir.1990), cert. denied, 499 U.S. 930, 111 S.Ct. 1335, 113 L.Ed.2d 266 (1991)). If a defendant fails to object to the district court’s failure to adequately state reasons, however, the sentence is reviewed for plain error. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999).

We have historically reviewed the district court’s consideration of non-binding policy statements, such as Chapter 7, for abuse of discretion. United States v. Tadeo, 222 F.3d 623, 625 (9th Cir.2000); United States v. George, 184 F.3d 1119, 1120 (9th Cir.1999). We review the sentence ultimately imposed for reasonableness. United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).5

*1177III.

On appeal, Miqbel argues, first, that the trial court erred by failing to explain adequately the reasons for his sentence, as required by 18 U.S.C. § 3558(c).6 Section 3553(c) requires the court:

at the time of sentencing, [to] state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence within a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must be stated with specificity in the written order of judgment and commitment....

18 U.S.C. § 3553(c) (emphasis added). The requirement applies to sentences imposed following consideration of the Sentencing Commission’s policy statements, as well as those imposed following consideration of the guidelines’ previously mandatory provisions.7 For an offense like Miqbel’s, classified as Grade C and involving an offender with a Category I criminal history, the recommended range for sentencing under the Chapter 7 policy statements is three to nine months. U.S. Sentencing Guidelines Manual § 7B1.4 (2004). The district court, however, imposed what would appear to be an out-of-range sentence of twelve months.

The government argues that according to United States v. Lockard, 910 F.2d 542 (9th Cir.1990), there is “no ‘range’ for revocation of a term of supervised release and imposition of the term of that sentence.” Id. at 545. Therefore, the government contends, the court “need not comply with section 3553(c)(2) when sentencing for a supervised release violation, but need only set forth its general reasons for a sentence pursuant to the prefatory language of section 3553(c).” The government overlooks, however, the fact that Lockard was decided in 1990, four years before an amendment to § 3553(a)(4)(B) added the phrase “policy statements.” See § 3553(a)(4)(B) (“[I]n the case of a violation of probation or supervised release, [the court shall consider] the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to [28 U.S.C. § 994(a)(3) ].” (emphasis added)); see also George, 184 F.3d at 1120 (explaining the effect of the 1994 amendments). Because § 7B1.4, which is a policy statement prescribing sentencing ranges for defendants in Miqbel’s position, was not made applicable to § 3553 until the 1994 amendment was adopted, it could not have been applied to Lockard.

Miqbel’s supervised release sentencing clearly falls within § 3553(c)(2). Because *1178§ 3553(a)(4), as amended, includes the ranges of imprisonment applicable upon revocation of supervised release listed in the § 7B1.4 table, any sentence less than three months or more than nine months is “outside the range” of sentences described in § 3553(a)(4). Therefore, when it imposed a sentence that fell outside that three-to-nine-month range, the district court was required to provide “the specific reason for the imposition of a sentence different from that described.” 18 U.S.C. § 3553(c)(2) (emphasis added).

In United States v. Musa, 220 F.3d 1096 (9th Cir.2000), the defendant made a claim similar to Miqbel’s based on the trial court’s failure to “adequately set forth its reasons for departing from the recommended guidelines as required by 18 U.S.C. § 3553(c).” Id. at 1101. Because Musa’s sentence “went outside the policy statement range” — in Musa’s case, the sentence imposed was the three-year statutory maximum, instead of the three-to-nine-month range listed in § 7B1.4 — we held that the district court was required to provide specific reasons for its departure from the recommended sentencing range. Id.8

In Miqbel’s case, the only reason the district court provided at sentencing for imposing an out-of-range twelve-month sentence was that it found that “a sentence within [the] guidelines would be insufficient to meet the purposes of sentencing under these circumstances.”9 Although the government contends that the district court provided the necessary reasons for its sentence “through its colloquy with counsel,” that exchange did not in fact provide any “specific reason[s]” that would have satisfied § 3553(c)(2) for the imposition of a twelve month sentence.10 Early in the colloquy, the district court referred generally to Miqbel’s history of violations of pretrial and supervised release conditions, and asked defense counsel why it should not sentence Miqbel outside of the Chapter 7 range. That exchange took place, however, at the very beginning of the sentencing hearing, before defense counsel had any opportunity to provide an explanation for Miqbel’s past or current behavior. At that early point in the proceeding, the district court clearly had not *1179made a decision regarding Miqbel’s sentence and was instead simply seeking information that it believed might assist it in its later formulation of a sentence; at that point, the court could not be understood to be providing reasons for a sentence that it had not yet decided to impose. In contrast, after both the prosecution and defense had presented their arguments, the district court arrived at its decision regarding Miqbel’s sentence and declared:

I have considered the guidelines under Chapter 7, and I have carefully given consideration to a sentence within those guidelines, but I find that a sentence within those guidelines would be insufficient to meet the purposes of sentencing under these circumstances.

Without further explanations of its reasons, the court sentenced Miqbel to twelve months in prison. At no time during sentencing did the court tie Miqbel’s prior actions to its decision to impose a sentence outside of the recommended guidelines. Nor did it state that such actions were relevant to any permissible sentencing factors, such as the need for deterrence from future criminal conduct or rehabilitation.11

The legislative history behind § 3553(c) makes the district court’s duty — and the failure to fulfill that duty in this case— even more clear’. The Senate Report explicitly differentiates between the requirements for sentences that are inside the guideline range and sentences that are outside that range:

Subsection (c) contains a ... requirement that the court give the reasons for the imposition of the sentence at the time of sentencing. It also requires, if the sentence is within the guidelines, the court to give its reasons for imposing a sentence at a particular point within the range. Further, if the sentence is not within the sentencing guidelines, the court must state the specific reason for imposing [a] sentence that differs from the guidelines.

Lockard, 910 F.2d at 545 (quoting S.Rep. No. 225, 98th Cong., 2d Sess. 79 (1984), reprinted in 1984 Code Cong. & Admin. News 3182, 3262 (emphasis added)) (internal quotation marks and footnote omitted). The Report makes clear that in departing from the recommended sentencing range, the court must state the specific reason for imposing a sentence that differs from the recommended range. Therefore, in imposing a twelve-month sentence on Miqbel, the district court was required to give the specific reasons why a three-to-nine month sentence would not be sufficient and why a twelve-month sentence was appropriate.

The government also argues that the district court explained its reasoning for Miqbel’s sentence more explicitly at the subsequent bail hearing, held in May 2005. Aside from Miqbel’s claim that the basis articulated at that hearing was “unreasonable,” in that the district court relied primarily on punishment — a factor he alleges is not appropriate for consideration in the context of revocation sentencing, see infra Part IV — the dispositive issue is that the purported specific explanation was given at the bail hearing, and not at the revocation sentencing hearing. Section 3553(c) clearly requires the court to state its reasons “at the time of sentencing.” 18 U.S.C. § 3553(c) (emphasis added). Therefore, post hoc reasons provided at a *1180later proceeding cannot be used to satisfy the § 3553(c) requirement.

This case well illustrates the reason for the rule we have just discussed. Defendants are, except in most unusual circumstances, present at sentencing hearings. They are, however, frequently absent from bail hearings, as was Miqbel. Thus, without such a rule, defendants might not hear directly from the court the reasons for the length of their confinement. To the extent that the bail hearing is useful in our analysis, it is only because the district judge himself admitted at that hearing that he “could have and probably should have been more explicit [at sentencing] in the reasons given for the sentence [he] imposed” and that he relied primarily on punishment and a desire to promote respect for the law in imposing the sentence.12 Among the various justifications offered at the bail hearing for why he had not been more explicit in his reasons for imposing a twelve-month sentence, the district judge stated that he did not want to “lecture or talk down” to Miqbel, that he was “at the end of his rope”-with regard to Miqbel, that he misunderstood the applicable law,13 and that he did not want to have to argue with Miqbel’s counsel about the reasons for the sentence. The court acknowledged that its colloquy with counsel failed to provide an adequate record for review on appeal, stating: “[i]n hindsight, I now realize that it’s not the impact that the colloquy has on the defendant at the time of sentencing that I should have been concerned about. It was the impact that the colloquy would have had on the Court of Appeals later on.”14 It also recognized its admitted use of “shorthand” in sentencing, stating that it “found that a sentence within those guidelines would not be sufficient to meet the purposes of sentencing under the circumstances. Of course, the purposes of sentencing is a shorthand term for the factors to be considered in imposing a sentence listed in Section 3553(a).”15

*1181Although statements made by the court at the bail hearing regarding its perceptions or intentions at the time of the revocation hearing cannot be taken as providing the reasons for the sentence it imposed, as required by § 3553(c)(2), these statements do support our conclusion that the district court failed to explain the reasons for its departure from the Chapter 7 range with the required level of specificity.16 Because we conclude that the district court failed to set forth the specific reasons for imposing a sentence that differs from that recommended by the applicable policy statement, we vacate the sentence imposed and remand for resentencing. See United, States v. Vallejo, 69 F.3d 992, 995 (9th Cir.1995); United States v. Wilson, 7 F.3d 828, 839-40 (9th Cir.1993).

IV.

Upon resentencing, the district court will be required to provide an adequate statement of reasons for the sentence imposed. See Wilson, 7 F.3d at 839-40. In order to avoid further errors on remand and to minimize the possibility of additional appeals, and because the district court has expressly requested that we clarify the factors that may be considered in determining the sentence to be imposed upon revocation of a term of supervised release,17 we will examine briefly the reasons alluded to by the district court (albeit at the wrong hearing) for its initial sentencing decision and identify the applicable statutory factors.

Section 3553(a) provides a list of ten factors to be considered in imposing a sentence upon conviction of a criminal offense. 18 U.S.C. § 3553(a). Section 3583(e) incorporates the majority of the factors listed in § 3553(a) as factors to be considered in sentencing upon revocation of probation or supervised release.18 18 U.S.C. § 3583(e). Specifically, § 3583(e) incorporates eight of the ten factors listed in § 3553(a); to that extent, the provisions are similar.19 Section 3583(e) specifically omits, however, § 3553(a)(2)(A), which provides for consideration of “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the *1182law, and to provide just punishment for the offense.” 18 U.S.C. §§ 3553(a) (emphasis added); 3583(e). Given that § 3553(a)(2)(A) is a factor that Congress deliberately omitted from the list applicable to revocation sentencing, relying on that factor when imposing a revocation sentence would be improper. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“[Where] Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (alteration in original) (citation and internal quotation marks omitted)).

In United States v. Booker, the Court held that § 3553(a)’s sentencing factors guide appellate courts in “determining whether a sentence is unreasonable.” Booker, 543 U.S. at 261, 125 S.Ct. 738. In the case of a sentence imposed upon revocation of supervised release, it is the § 3583(e) factors that provide such guidance. The improper reliance on a factor Congress decided to omit from those to be considered at revocation sentencing, as a primary basis for a revocation sentence, would contravene the statute in a manner similar to that of a failure to consider the factors specifically included in § 3583(e). Just as a sentence would be unreasonable if the district court failed to consider the factors listed in § 3553(a), see United States v. Crosby, 397 F.3d 103, 115 (2d Cir.2005), a sentence would be unreasonable if the court based it primarily on an omitted factor, such as a factor provided for in § 3553(a)(2)(A).

Although a court may consider the need to sanction an individual for violating the conditions of probation or supervised release when formulating its sentence at a revocation proceeding, that type of “sanction” is distinct from the “just punishment” referred to in § 3553(a)(2)(A). In the Chapter 7 policy statements, the Sentencing Commission explained that violations of probation or supervised release are properly characterized as “breach[es] of trust” and distinguished sanctions for such a breach from the “imposition of an appropriate punishment for any new criminal conduct.” U.S. Sentencing Guidelines Manual, Ch. 7, Pt. A (2004) (emphasis added). Punishment for the underlying offense, the Commission stated, must be imposed separately, if at all, following a conviction by plea or verdict in a separate criminal proceeding. The Commission recognized, however, that in imposing a sentence upon revocation, a court may properly “sanction the violator for failing to abide by the conditions of the court-ordered supervision.” Id. (emphasis added). In sum, at a revocation sentencing, a court may appropriately sanction a violator for his “breach of trust,” but may not punish him for the criminal conduct underlying the revocation.

The omission of § 3553(a)(2)(A) from § 3583(e) also makes clear that in imposing a revocation sentence, a court may not properly consider a need to “promote respect for the law,” based on the nature of the underlying criminal offense committed, or on the “seriousness of the [underlying] offense.” 18 U.S.C. § 3553(a)(2)(A). We recognize that the difference between sanctioning a supervised release violator for breach of trust and punishing him in order to promote respect for the law is subtle indeed. We do not suggest that a mere reference to promoting respect for the law would in itself render a sentence unreasonable. However, such a reference is often intertwined with the concept of punishment, as it is in § 3553(a)(2)(A) itself, and may serve as a basis for the sentence imposed. For example, the district judge’s remarks at the bail hearing *1183demonstrate the extent to which he treated the two concepts as related when imposing the sentence:

And to me, the sentence that I gave was necessary in order to promote respect for the law.... But if punishment is the sentence that’s imposed in order to promote respect for the law and to provide just punishment for the offense as that is used in Section 3553(a)(2)(A), then I did think that you could take that into account.

It is clear from reviewing the entire colloquy at the bail hearing both that a primary basis for Miqbel’s sentence was punishment that was intended to promote respect for the law, and that the court had begun to doubt the validity of such a basis.20 Even though the district court appears to have based its sentencing decision in part on an impermissible factor, and may have committed reversible error,21 we vacate for the reason we considered first: the district court did not provide an adequate statement of reasons for the sentence at the time of sentencing.

Conclusion

Because the district court failed to state specific reasons for the particular sentence imposed, we vacate Miqbel’s sentence and remand to the district court for resentencing.

VACATED and REMANDED for further proceedings consistent with this opinion.

United States v. Miqbel
444 F.3d 1173

Case Details

Name
United States v. Miqbel
Decision Date
Apr 17, 2006
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444 F.3d 1173

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United States

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