United States v. Perez-Jiminez , 654 F.3d 1136 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
August 19, 2011
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-1322
(D.C. No. 1:09-CR-00402-DME-1)
ODALIS PEREZ-JIMINEZ, a/k/a (D. Colo.)
Perez Odalis,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, SEYMOUR, and HOLMES, Circuit Judges.
Bureau of Prisons officers searched Defendant-Appellant Odalis Perez-
Jiminez’s person and cell at the Federal Correctional Institution in Florence,
Colorado. In his pockets, they found two shanks—homemade, sharpened metal
knives—each of which was approximately five-and-a-half inches long and
*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
sharpened to a point.
Mr. Perez-Jiminez was indicted on one count of possession of a weapon
while an inmate of a federal correctional institution, in violation of 18 U.S.C.
§ 1791(a)(2) & (b)(3). 1 He pleaded guilty, and the U.S. Probation Office
subsequently prepared a Presentence Report (“PSR”). 2
At sentencing, the district court found that Mr. Perez-Jiminez’s instant
offense of conviction was a crime of violence pursuant to U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 4B1.2(a), and that he was a career offender
under U.S.S.G. § 4B1.1(a). Applying the career-offender provisions, the district
court assigned Mr. Perez-Jiminez an offense level of fourteen and a criminal
history category of VI. These factors yielded an advisory Guidelines
imprisonment range of thirty-seven to forty-six months and a fine range of $4000
to $40,000. The district court sentenced Mr. Perez-Jiminez to thirty-seven
1
As relevant to Mr. Perez-Jiminez’s appeal, the statute provides that
“[w]hoever . . . being an inmate of a prison, makes, possesses, or obtains . . . a
prohibited object . . . shall be punished . . . [by] imprisonment for not more than 5
years . . . if the object is . . . a weapon (other than a firearm or destructive
device).” 18 U.S.C. § 1791. Although the statute does not contain an express
mens rea element, we have held that “a violation of section 1791 must be
committed ‘knowingly.’” United States v. Perceval, 803 F.2d 601, 603 (10th Cir.
1986). Consistent with this requirement, the indictment charged Mr. Perez-
Jiminez with “knowingly” possessing the shanks. R., Vol. 1, at 4 (Indictment,
filed Sept. 15, 2009).
2
The Probation Office used the 2009 version of the United States
Sentencing Guidelines in preparing the PSR. The parties do not question that
choice and, therefore, we exclusively apply that version to the facts of this case.
2
months’ imprisonment and imposed a fine of $2000.
On appeal, Mr. Perez-Jiminez argues that the district court erred in
sentencing him as a career offender because his instant offense of conviction was
not a crime of violence, and that the district court abused its discretion in
imposing a $2000 fine. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm
Mr. Perez-Jiminez’s sentence.
DISCUSSION
I. Crime of Violence and Career-Offender Status
A. Standard of Review
This court reviews de novo the district court’s determinations that Mr.
Perez-Jiminez’s instant offense of conviction is a crime of violence, United States
v. Riggans, 254 F.3d 1200, 1203 (10th Cir. 2001), and that Mr. Perez-Jiminez
qualifies as a career offender, United States v. Patterson, 561 F.3d 1170, 1172
(10th Cir. 2009). The district court’s factual findings are reviewed for clear error.
Patterson, 561 F.3d at 1172.
B. Overview
Under the Guidelines,
[a] defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.
3
U.S.S.G. § 4B1.1(a).
Mr. Perez-Jiminez and the government agree that he meets the first and
third prongs for career-offender status, and it is obvious that Mr. Perez-Jiminez’s
instant offense of conviction is not a controlled-substance offense. Accordingly,
in deciding whether Mr. Perez-Jiminez is a career offender, we need only decide
whether his instant offense of conviction—possession of a weapon in prison—is a
crime of violence.
A crime of violence is defined as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a) (emphasis added).
The parties agree that Mr. “Perez-Jiminez’s conviction . . . is punishable by
more than one year’s imprisonment, does not involve physical force, and is not
one of the crimes enumerated in § 4B1.2(a)(2).” Aplee. Br. at 12; see Aplt.
Opening Br. at 14 (“[T]he only way this offense can be classified as a crime of
violence is if it ‘otherwise involves conduct that presents a serious potential risk
of physical injury to another.’” (quoting U.S.S.G. § 4B1.2(a)(2))). Therefore, in
4
ruling on whether Mr. Perez-Jiminez’s instant offense of conviction is a crime of
violence—and thus whether he is a career offender—we must only determine
whether his offense falls within U.S.S.G. § 4B1.2(a)(2)’s residual clause because
the offense “involves conduct that presents a serious potential risk of physical
injury to another.”
C. Conduct-Specific Inquiry
To determine whether a past conviction is for a crime of violence, “we
employ a categorical approach that looks to the words of the statute and judicial
decisions interpreting it, rather than to the conduct of any particular defendant
convicted of the crime.” United States v. Wise, 597 F.3d 1141, 1144 (10th Cir.
2010) (citing Taylor v. United States, 495 U.S. 575, 602 (1990)), cert. denied, 79
U.S.L.W. 3710 (2011). “[I]f the statute encompasses both conduct that would
qualify as a crime of violence and conduct that would not, we employ a modified
categorical approach,” under which we “look to the statutory elements, the
defendant’s charging documents, plea agreement and colloquy (if any), and
uncontested facts found by the district judge to determine whether the particular
defendant’s conduct violated the portion of the statute that is a crime of
violence.” Id. These categorical approaches do “not involve a subjective inquiry
into the facts of the case.” United States v. McConnell, 605 F.3d 822, 825 (10th
Cir. 2010), cert. denied, 79 U.S.L.W. 3710 (2011).
However, our precedent explicitly permits the use of a conduct-specific
5
inquiry “when considering whether the instant offense is a crime of violence.”
Riggans, 254 F.3d at 1204 (emphasis added) (quoting United States v. Smith, 10
F.3d 724, 731 n.10 (10th Cir. 1993)) (internal quotation marks omitted). Under
the conduct-specific inquiry, the “court correctly consider[s] the facts underlying
[the defendant’s] conviction” in determining whether it is for a crime of
violence. 3 Id. Although we have explained that “the practical difficulties of
conducting an ad hoc mini-trial[]” require application of the categorical approach
to past convictions, we may apply a conduct-specific inquiry to instant offenses
because “these concerns do not apply when the court is examining the conduct of
the defendant in the instant offense.” Id. at 1203–04 (alteration in original)
(quoting United States v. Walker, 930 F.2d 789, 794 (10th Cir. 1991)) (internal
quotation marks omitted). Mr. Perez-Jiminez concedes that we must apply a
conduct-specific approach to determine whether his instant offense of conviction
3
The government argues that we should consider the conduct
underlying Mr. Perez-Jiminez’s prior conviction of possessing a weapon in
prison, which involved Mr. Perez-Jiminez stabbing another inmate five times with
a converted box cutter. Mr. Perez-Jiminez replies that we must not consider the
facts of his prior convictions because “a court’s factual approach analysis must
focus on the conduct of the present instant offense . . . . The defendant’s criminal
history and prior conduct is not relevant.” Aplt. Reply Br. at 10. Because we
conclude that Mr. Perez-Jiminez’s instant offense of conviction is a crime of
violence based on the facts of that conviction, we affirm his sentence without
deciding whether we might also look to the conduct underlying his prior
convictions.
6
is a crime of violence. 4 See, e.g., Aplt. Reply Br. at 8 (“Mr. Perez-Jiminez agrees
4
In light of Mr. Perez-Jiminez’s concession, we do not inquire
whether his conviction for violating 18 U.S.C. § 1791 would qualify as a crime of
violence under a categorical approach. Significantly, this concession also relieves
us of the obligation of determining how Supreme Court developments related to
the categorical approach would affect a categorical inquiry here. See Sykes v.
United States, 131 S. Ct. 2267, 2275–76 (2011); Begay v. United States, 553 U.S.
137, 144–45 (2008); see also Chambers v. United States, 555 U.S. 122, 127–29
(2009). Begay, and later Sykes, applied the categorical approach to determine
whether a prior offense was a violent felony under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924. Because the residual clauses of the ACCA and
U.S.S.G. § 4B1.2(a) are “worded almost identically,” we have looked to cases
construing “violent felony” under the ACCA in interpreting “crime of violence”
under U.S.S.G. § 4B1.2(a), and have stated that if a conviction under a given
statute is held to be a violent felony, that holding “controls the outcome” of a
subsequent case asking whether such a conviction is for a crime of violence.
Wise, 597 F.3d at 1145.
In Begay, the Supreme Court held that the ACCA’s residual clause extends
only “to crimes that are roughly similar, in kind as well as in degree of risk
posed, to the examples” enumerated, 553 U.S. at 143—that is, crimes which
“typically involve purposeful, violent, and aggressive conduct,” id. at 144–45
(internal quotation marks omitted). See Wise, 597 F.3d at 1144 (“To determine
whether the offense categorically falls within the residual clause . . . we must
determine whether the offense is ‘roughly similar, in kind as well as in degree of
risk posed,’ to the enumerated crimes . . . . A crime is ‘roughly similar’ to an
enumerated crime if it ‘typically involve[s] purposeful, violent, and aggressive
conduct.’” (alteration in original) (quoting Begay, 553 U.S. at 143–45)).
In reliance on Begay’s “purposeful, violent, and aggressive” test, we have
previously held that the Texas crime of possessing a deadly weapon in prison was
a “violent felony” under the ACCA because it was roughly similar, in kind as well
as in degree of risk posed, to the ACCA’s enumerated offenses. See United States
v. Zuniga, 553 F.3d 1330, 1334–36 (10th Cir. 2009). Because we are applying a
conduct-specific approach here, the government is clearly not correct in asserting
that “Zuniga is dispositive of the issue.” Aplee. Br. at 7. Indeed, even if we were
applying a categorical approach, the Supreme Court’s decision in Sykes would at
least give us pause in giving controlling effect to Zuniga.
(continued...)
7
with the government that this Court’s current precedent requires it to apply a
factual ‘conduct-specific’ approach in this case.”).
Looking to the facts of his instant offense of conviction, we have little
difficulty concluding that Mr. Perez-Jiminez’s offense presented a serious
potential risk of physical injury to another and, therefore, constituted a crime of
4
(...continued)
In Sykes, the Court explained that “levels of risk divide crimes” falling
within and beyond the ACCA’s residual clause, 131 S. Ct. at 2275, and that the
test for inclusion is whether a crime is “similar in risk to the listed crimes,” id. at
2276. See United States v. Armijo, __ F.3d __, 2011 WL 2687274, at *7 n.14
(10th Cir. 2011) (“[T]he [Sykes] Court held that the benchmark for evaluating
whether any given crime falls within the ACCA’s residual clause is potential risk
of serious injury to another.”). Sykes limited Begay’s “purposeful, violent, and
aggressive” test to strict liability, negligence, and recklessness crimes. See 131 S.
Ct. at 2275–76 (“As between the two inquiries”—Begay’s “purposeful, violent,
and aggressive” test, and whether an offense presents a serious potential risk of
physical injury to another—“risk levels provide a categorical and manageable
standard that suffices to resolve the case before us.”); id. at 2285 (Scalia, J.,
dissenting) (“[T]he Court now suggests [that Begay’s “purposeful, violent, and
aggressive” test] applies only to strict liability, negligence, and recklessness
crimes.” (citation omitted) (internal quotation marks omitted)); United States v.
Smith, __ F.3d __, 2011 WL 2714083, at *3 (10th Cir. 2011) (“Where the felony
at issue is not a strict liability, negligence, or recklessness crime the test is not
whether the crime was purposeful, violent, and aggressive but whether it is
similar in risk to the listed crimes.” (quoting Sykes, 131 S. Ct. at 2276) (internal
quotation marks omitted)); see also United States v. Thomas, 643 F.3d 802, 806
(10th Cir. 2011) (referring to “the exception set forth in [Begay] for ‘strict
liability, negligence, and recklessness crime[s]’ even when they present serious
risks of physical injury” (alteration in original) (quoting Sykes, 131 S. Ct. at
2276)). As noted, 18 U.S.C. § 1791 requires a “knowing” mens rea. See
Perceval, 803 F.2d at 603. Therefore, although we do not decide the question,
Begay’s “purposeful, violent, and aggressive” test—which we relied upon in
Zuniga—may no longer apply to offenses like the one at issue here.
8
violence. 5 Mr. Perez-Jiminez, a federal inmate, was found in possession of two
shanks, each of which was approximately five-and-a-half inches long and
sharpened to a point. It is patent that such shanks are a deadly weapon. Indeed,
both the Supreme Court and this court have characterized similar weapons as
deadly. See Yates v. Evatt, 500 U.S. 391, 408 (1991) (characterizing a knife as a
deadly weapon), overruled in part on other grounds by Estelle v. McGuire, 502
U.S. 62, 72 n.4 (1991); United States v. Johnson, 967 F.2d 1431, 1435 (10th Cir.
1992) (same), abrogated in part on other grounds by Lewis v. United States, 523
U.S. 155, 162 (1998); United States v. Yazzie, 660 F.2d 422, 430 (10th Cir. 1981)
(“[T]he knife in question had a blade at least five inches long. . . . [S]uch a
weapon was likely to cause death or serious bodily injury, . . . [and] no reasonable
5
Mr. Perez-Jiminez makes the puzzling assertion that, in conducting
the conduct-specific analysis, we are required to apply a “two-part inquiry,” set
forth in McConnell, 605 F.3d at 826, and derived from the Supreme Court’s
Begay decision. See Aplt. Reply Br. at 15; see also Begay, 553 U.S. at 144–45.
However, as discussed above, see supra note 4, Begay applied a categorical
approach to a prior offense—not, as here, a conduct-specific approach to an
instant offense of conviction—and furthermore, in light the Supreme Court’s
subsequent decision in Sykes, 131 S. Ct. at 2275–76, Begay’s mode of analysis
may not be applicable to an offense like 18 U.S.C. § 1791, which has a
“knowing” mens rea. Moreover, the wisdom of Mr. Perez-Jiminez’s assertion is
called into serious question by his repeated reminders that the categorical and
case-specific approaches are different. See Aplt. Reply Br. at 17 (“[I]t must be
stressed that this Court’s precedent under the categorical and modified categorical
approach does not control the factual ‘conduct specific’ inquiry.”); id. at 18 (“The
two inquiries are different.”). Therefore, we reject Mr. Perez-Jiminez’s assertion
that we are obliged to apply the two-part inquiry here in determining whether his
instant offense of conviction is a crime of violence.
9
jury could find otherwise. The knife was therefore a deadly weapon as a matter
of law . . . .”); United States v. Davidson, 597 F.2d 230, 232 (10th Cir. 1979) (“A
deadly weapon was used, namely a dining room knife sharpened to a point, with a
homemade handle affixed thereto.”).
Furthermore, the penal context in which Mr. Perez-Jiminez possessed this
deadly weapon is a significant factor in our analysis. “[P]risons are inherently
dangerous places and they present unique problems.” United States v. Vahovick,
160 F.3d 395, 397 (7th Cir. 1998); accord United States v. Rodriguez-Jaimes, 481
F.3d 283, 287 (5th Cir. 2007). They “are necessarily dangerous places; they
house society’s most antisocial and violent people in close proximity with one
another.” Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir. 2005) (quoting
Farmer v. Brennan, 511 U.S. 825, 858 (1994) (Thomas, J., concurring in
judgment)) (internal quotation marks omitted); see Hudson v. Palmer, 468 U.S.
517, 526 (1984) (“Prisons, by definition, are places of involuntary confinement of
persons who have a demonstrated proclivity for antisocial criminal, and often
violent, conduct. Inmates have necessarily shown a lapse in ability to control and
conform their behavior to the legitimate standards of society by the normal
impulses of self-restraint . . . .”). Thus, it has been said that “acts of violence by
inmates against inmates are inevitable,” Taylor v. Freeman, 34 F.3d 266, 273 (4th
Cir. 1994) (quoting Shrader v. White, 761 F.2d 975, 980 (4th Cir. 1985)) (internal
quotation marks omitted), as “it is virtually impossible to eliminate violence
10
among the incarcerated,” id. at 273 n.6.
In prison, “contraband weapons . . . facilitate more frequent acts of
violence and more severe injuries.” Shrader v. White, 761 F.2d 975, 991 (4th Cir.
1985) (Sprouse, J., dissenting). Such weapons “may embolden inmates who
[otherwise] would be less aggressive,” and will “inflict substantially more severe
injuries” when they are wielded. Id. Put succinctly, possessing a dangerous or
deadly weapon in prison “enables violence.” United States v. Boyce, 633 F.3d
708, 712 (8th Cir. 2011) (quoting United States v. Vincent, 575 F.3d 820, 825 (8th
Cir. 2009)) (internal quotation marks omitted); see United States v. Marquez, 626
F.3d 214, 221 (5th Cir. 2010) (“A prisoner in possession of a deadly weapon
within a penal institution is significantly more likely to attack or physically resist
an apprehender, such as a guard, or another inmate.”).
Outside of prison, “[t]he felon who unlawfully possesses a firearm,
although disobeying the law, may have a legitimate use intended for the firearm,
such as target shooting or collecting.” United States v. Romero, 122 F.3d 1334,
1341 (10th Cir. 1997) (quoting United States v. Young, 990 F.2d 469, 472 (9th
Cir. 1993)); accord Marquez, 626 F.3d at 222 (“A felon may be in possession of
certain firearms, such as a pistol or hunting rifle, for recreational purposes, even
though that possession is unlawful.”); Vahovick, 160 F.3d at 397–98. But there is
no “similarly ‘innocent’ purpose behind the possession of a deadly weapon by a
prison inmate,” Young, 990 F.2d at 472, as “[t]he confines of prison preclude any
11
recreational uses for a deadly weapon,” Romero, 122 F.3d at 1341 (quoting
Young, 990 F.2d at 472).
“[T]here is no legitimate purpose for a prisoner to carry a weapon
‘designed to kill, injure or disable’ another. On the contrary, the only reason to
carry such a weapon is to use it to attack another or to deter an attack.” Romero,
122 F.3d at 1343; accord Marquez, 626 F.3d at 222–23 (“[T]here is no purpose
for possession of a deadly weapon in prison other than to have the means to
initiate violence or respond to violence with violence.”). And an inmate’s
possession of a weapon in prison indicates his willingness to use it. See Boyce,
633 F.3d at 712 (“When a prisoner carries a dangerous weapon, that behavior
indicates that he is ‘prepared to use violence if necessary’ and is ready ‘to enter
into conflict . . . .’” (quoting Zuniga, 553 F.3d at 1335–36)); Marquez, 626 F.3d
at 222 (“[A]t a minimum his intentional possession of a deadly weapon signals his
willingness to use it if, in his mind, the occasion warrants it.”); Zuniga, 553 F.3d
at 1335 (“Mr. Zuniga’s possession of a deadly weapon in prison likely indicated
that he was prepared to use violence if necessary.” (internal quotation marks
omitted)).
Accordingly, we hold that Mr. Perez-Jiminez’s possession in prison of a
deadly weapon—two sharpened, five-and-a-half-inch-long shanks—presented a
12
serious potential risk of physical injury to another. 6 Mr. Perez-Jiminez’s instant
offense of conviction was therefore a crime of violence, and the district court
properly sentenced him as a career offender.
II. Reasonableness of the Fine
As noted above, the Guidelines called for a fine of between $4000 and
$40,000, but the district court imposed a fine of only $2000 as part of Mr. Perez-
Jiminez’s sentence. Mr. Perez-Jiminez challenges the district court’s decision to
impose any fine, as well as the amount of the fine imposed.
A. Standard of Review
The Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), rendered the Guidelines advisory. Gall v. United States, 552 U.S. 38, 46
(2007). Accordingly, the district court is not required to impose a fine despite the
Guidelines’ command that it “shall impose a fine in all cases, except where the
6
We note that we held in Romero, 122 F.3d 1334, and reaffirmed in
Zuniga, 553 F.3d 1330, that “possession of a deadly weapon in prison ‘presents a
serious potential risk of physical injury to another.’” Zuniga, 553 F.3d at
1333–34 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Both Romero and Zuniga
employed a categorical approach. Indeed, Mr. Perez-Jiminez concedes that, under
the categorical approach, his instant offense of conviction presents a serious
potential risk of physical injury to another. See Aplt. Opening Br. at 15 (“He
realizes that the first inquiry is squarely settled by this Court’s precedent.”). But
Mr. Perez-Jiminez insists that the offense does not satisfy the additional inquiry
involving Begay’s “purposeful, violent, and aggressive” test. See Aplt. Opening
Br. at 23; see also Begay, 553 U.S. at 144–45. However, we have not used a
categorical approach here. Therefore, Romero and Zuniga are not controlling.
13
defendant establishes that he is unable to pay and is not likely to become able to
pay any fine.” U.S.S.G. § 5E1.2(a); see United States v. Rattoballi, 452 F.3d 127,
139 (2d Cir. 2006) (“Because Booker rendered the whole of the Guidelines
advisory, it stands to reason that the Guidelines’ fine requirements were likewise
rendered advisory. . . . Accordingly, a district court is not under an obligation to
impose a fine post-Booker . . . .”), abrogated in part on other grounds by
Kimbrough v. United States, 552 U.S. 85, 108 (2007); United States v. Huber, 404
F.3d 1047, 1063 (8th Cir. 2005) (“The government argues that section 5E1.2(a)
requires the district court to fine a defendant unless the defendant establishes that
he is unable to pay. The guidelines, though, are now advisory. So the
government’s argument misses the mark.” (citation omitted)). 7
“Post-Booker, we review sentences for reasonableness under an abuse of
discretion standard.” United States v. Sutton, 520 F.3d 1259, 1262 (10th Cir.
2008) (citing Gall, 552 U.S. at 46). “Reasonableness includes a procedural
component, which includes how the sentence was calculated, and [a] substantive
component concerning the length of the sentence actually imposed.” 8 Id. At
7
A panel of this court reached a similar conclusion in a non-
precedential decision. See United States v. Torres, 188 F. App’x 791, 793–94
(10th Cir. 2006) (holding that the district court committed non-constitutional
Booker error by treating the Guidelines’ fine provisions as mandatory).
8
As discussed infra, “sentence” is broadly defined to include not just
imprisonment, but also probation and fines—thus, a fine, like a term of
imprisonment, is merely one type of sentence available to the district court. We
(continued...)
14
bottom, we seek to determine whether the district court abused its discretion in
imposing the fine. See United States v. Vigil, 644 F.3d 1114, 1123 (10th Cir.
2011). 9 The defendant bears the burden of proving both his present and future
inability to pay the fine. See U.S.S.G. § 5E1.2(e) (“If the defendant establishes
that . . . he is not able and . . . is not likely to become able to pay all or part of the
fine . . . the court may impose a lesser fine or waive the fine.”); Vigil, 644 F.3d at
1123 (“[D]efendant bears the burden of demonstrating an inability to pay a fine.”
(quoting United States v. Deters, 184 F.3d 1253, 1258 (10th Cir. 1999)) (internal
quotation marks omitted)). We will “reject a district court’s findings regarding a
defendant’s ability to pay a fine only if they are clearly erroneous.” Trujillo, 136
F.3d at 1398.
B. Procedural Reasonableness: Burden on Defendant and Dependents
Mr. Perez-Jiminez argues that the district court was required to consider the
8
(...continued)
have routinely distinguished between the procedural and substantive
reasonableness of sentences of imprisonment, but apparently have not so
distinguished the reasonableness of sentences of fines.
The parties have not framed their arguments in terms of procedural and
substantive reasonableness. Nevertheless, we believe it to be analytically
useful—if not required—to evaluate Mr. Perez-Jiminez’s arguments through the
lens of both procedural and substantive reasonableness, as he challenges both the
process by which the district court imposed his fine and the amount of the fine
imposed—i.e., the fine’s procedural and substantive reasonableness.
9
We note that we reviewed the district court’s decision to impose a
fine for abuse of discretion even prior to Booker. See, e.g., United States v.
Trujillo, 136 F.3d 1388, 1398 (10th Cir. 1998).
15
burden his fine would place on his dependents, but failed to “focus[] on the
burden Mr. Perez-Jiminez’s daughter may experience” because of his fine. Aplt.
Opening Br. at 25–26. This argument sounds in procedural error because it
alleges that the district court did not consider a factor that it was required to take
into account in sentencing Mr. Perez-Jiminez to a fine. See United States v.
Elfgeeh, 515 F.3d 100, 136 (2d Cir. 2008) (“In calculating a defendant’s fine, the
sentencing court must follow a procedure similar to the post-Booker procedure
that it is to follow in calculating a defendant’s term of imprisonment: It must
consider the Guidelines recommendation for the imposition of a fine, consider the
§ 3553(a) factors, and consider the fine-specific factors listed in 18 U.S.C.
§§ 3571 and 3572.”); cf. Gall, 552 U.S. at 51 (recognizing that “failing to
consider the § 3553(a) factors” is a procedural error).
In addition to the 18 U.S.C. § 3553(a) sentencing factors, the district court
must consider the additional factors set forth in 18 U.S.C. § 3572(a) in
determining whether to impose a fine at all, and must also consider both the
§ 3572(a) factors and the similar factors set forth in U.S.S.G. § 5E1.2(d) in
setting the amount of any fine. See 18 U.S.C. § 3572(a); U.S.S.G. § 5E1.2(d); see
also Vigil, 644 F.3d at 1123 (“[Section] 3572(a) sets forth factors that must be
considered by a district court in determining whether to impose a fine, and the
amount, time for payment, and method of payment of a fine. Section 5E1.2(d) of
the Guidelines sets forth similar factors to be considered in determining the
16
amount of a fine.” (alteration omitted) (internal quotation marks omitted)). Both
§ 3572(a) and § 5E1.2(d) require the district court to consider the burden that a
fine would impose on the defendant and his dependents. See 18 U.S.C.
§ 3572(a)(2) (requiring the district court to consider “the burden that the fine will
impose upon defendant, [or] any person who is financially dependent on the
defendant”); U.S.S.G. § 5E1.2(d)(3) (requiring the district court to consider “the
burden that the fine places on the defendant and his dependents”). Although the
“district court is not required to make factual findings specific to each factor set
forth in 18 U.S.C. § 3572(a) or U.S.S.G. § 5E1.2,” we have indicated that “the
record must reflect the court’s consideration of the pertinent factors and the basis
for the imposition of a fine.” Vigil, 644 F.3d at 1124.
Mr. Perez-Jiminez cannot prevail on his procedural challenge—that is, his
contention that the district court erred in failing to consider the burden that the
fine would impose on his daughter. According to the PSR, Mr. Perez-Jiminez had
no financial dependents and his daughter was eighteen years old. Mr. Perez-
Jiminez did not object to these findings. Consequently, the district court would
have been under no statutory or regulatory obligation to consider the burden of
any fine on his daughter on the ground that she was a “dependent.” 18 U.S.C.
§ 3572(a)(2); U.S.S.G. § 5E1.2(d)(3).
In any event, the district court clearly did consider the impact of the fine on
Mr. Perez-Jiminez’s daughter. Mr. Perez-Jiminez’s counsel offered a passionate
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argument against the imposition of a fine, noting that taking such an action would
be “exceptionally counterproductive” and that Mr. Perez-Jiminez’s prison savings
“should go to a place where it’s going to have a productive impact upon a human
being whose dad hasn’t been able to give her much else.” R., Vol. 2, at 44.
(Sentencing Hr’g Tr., dated July 13, 2010). The district court noted that its initial
“inclination was to issue a fine of $4,000,” but, “[i]n light of the statements that
[Mr. Perez-Jiminez’s counsel] ha[d] made,” the court “back[ed] that [fine amount]
down to 2,000.” Id. at 55–56. The district court was not required to set forth
more specific factual findings to support the fine it imposed. See Trujillo, 136
F.3d at 1398 (“To the extent Mr. Trujillo is suggesting the court must set forth
factual findings specific to each statutory factor prior to imposing a fine, we
disagree. This court imposes no such requirement. It is sufficient that the record
reflects the basis for the imposition of the fine.” (citations omitted)); accord
Vigil, 644 F.3d at 1124. Accordingly, the district court did not commit procedural
error.
C. Substantive Reasonableness: Amount of Fine
Mr. Perez-Jiminez argues that his $2000 fine was “unnecessary” and
“excessive” because “the parties both argued that no fine should be imposed, and
the probation office recommended only a $1,000 fine.” Aplt. Opening Br. at 25.
Mr. Perez-Jiminez further contends that “the monies the district court found
significant were in fact the meager savings of Mr. Perez-Jiminez’s prison
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earnings, saved over an extended period of time,” which he planned to put toward
his daughter’s education. Id. These arguments sound in substantive error because
they concern the amount of the fine that the district court imposed. See Sutton,
520 F.3d at 1262 (“Reasonableness includes a . . . substantive component
concerning the length of the sentence actually imposed.”).
“We apply a rebuttable presumption of reasonableness for sentences
imposed within the correctly calculated advisory guideline range.” United States
v. Galloway, 509 F.3d 1246, 1251 (10th Cir. 2007). “Sentence” is broadly
defined to include not just terms of imprisonment, but also terms of probation and
fines. See 18 U.S.C. § 3551(b) (“An individual found guilty of an offense shall
be sentenced . . . to . . . (1) a term of probation . . . ; (2) a fine . . . ; or (3) a term
of imprisonment . . . .”); United States v. Story, 635 F.3d 1241, 1246 (10th Cir.
2011) (“The court [in United States v. Manzella, 475 F.3d 152 (3d Cir. 2007),]
found the Sentencing Reform Act uses the term ‘sentence’ broadly to refer to
many types of punishment, including imprisonment. . . . [Section] 3551 . . .
provides that a convicted defendant may be sentenced to a fine, a term of
probation, or a term of imprisonment . . . .”); United States v. McMillan, 106 F.3d
322, 324 (10th Cir. 1997) (“The Sentencing Guidelines clearly include fines as a
type of criminal sentence.”); see also United States v. Doe, 617 F.3d 766, 771 (3d
Cir. 2010) (“‘[I]mprisonment’ is merely one form of sentencing, whereas a
‘sentence’ might include other things such as fines, restitution, or supervised
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release.”), cert. denied, 79 U.S.L.W. 3696 (2011); In re Sealed Case, 573 F.3d
844, 851 (D.C. Cir. 2009) (“[I]mposition of a sentence[ is] a broader concept that
encompasses imprisonment as well as probation and fines.”); Manzella, 475 F.3d
at 158 (“The terms ‘sentence’ and ‘imprisonment’ in the Sentencing Reform Act
are different . . . . ‘Sentence’ has [a] broad meaning. It includes many types of
possible punishment, only one of which is ‘imprisonment.’”); United States v.
Sotelo, 94 F.3d 1037, 1040 (7th Cir. 1996) (“The authorized types of
sentences . . . include the staples of punishment—a term of imprisonment,
probation, and fines.”). Accordingly, because we presume that sentences within
the Guidelines are reasonable, and a fine is merely one type of sentence available
to the district court, we will presume that a fine imposed within the Guidelines
range is reasonable. Cf. United States v. McBride, 633 F.3d 1229, 1232–33 (10th
Cir. 2011) (holding that the “presumption of reasonableness . . . [applicable to]
within-guidelines sentences imposed upon conviction . . . is also appropriate in
reviewing a revocation-of-supervised-release sentence within the range suggested
by the Commission’s policy statements”).
Moreover, because a Guidelines sentence is presumptively reasonable, it
follows that “a below-guideline sentence is also presumptively reasonable against
an attack by a defendant claiming that the sentence is too high.” United States v.
Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011) (quoting United States v.
Liddell, 543 F.3d 877, 885 (7th Cir. 2008)) (internal quotation marks omitted).
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Thus, a below-Guidelines fine will be presumed reasonable on appeal against a
defendant’s challenge to the fine amount.
Here, the Guidelines recommended that Mr. Perez-Jiminez pay a fine in the
range of $4000 to $40,000. The district court imposed a fine on Mr. Perez-
Jiminez of $2000, well below the bottom of his Guidelines range for fines. Thus,
Mr. Perez-Jiminez’s sentence (i.e., fine) receives a rebuttable presumption of
reasonableness on appeal against his challenge that it is unreasonably harsh.
Mr. Perez-Jiminez fails to overcome that presumption. Mr. Perez-Jiminez’s
argument that his $2000 fine was “unnecessary” and “excessive” because “the
parties both argued that no fine should be imposed, and the probation office
recommended only a $1,000 fine,” Aplt. Opening Br. at 25, reflects, at most, a
difference of opinion between the parties and the district court about what an
appropriate fine should be. It does not demonstrate that the district court abused
its discretion in imposing a $2000 fine.
Nor has Mr. Perez-Jiminez carried his burden to show that he lacks the
ability to pay the fine imposed. The PSR reflects, and the district court noted,
that Mr. Perez-Jiminez had $5000 in his prison account. Moreover, the
uncontested facts in the PSR show that Mr. Perez-Jiminez worked both before and
while being incarcerated, and that he anticipates working again after his release.
Further, the PSR indicates that Mr. Perez-Jiminez has no liabilities. See United
States v. Klein, 93 F.3d 698, 706 (10th Cir. 1996) (“Mr. Klein has failed to submit
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any evidence establishing his inability to find future employment or any evidence
indicating current or future financial liabilities which would prevent him from
using his future earnings to pay the fine. . . . [His] reliance on his current
insolvency is not enough . . . .”).
The district court’s decision to impose a $2000 fine is also supported by its
consideration of “the expected costs to the government of any imprisonment.” 18
U.S.C. § 3572(a)(6); see U.S.S.G. § 5E1.2(d)(7) (requiring the district court to
consider “the expected costs to the government of any term of probation, or term
of imprisonment and term of supervised release imposed”). The district court
explicitly noted that “confining this defendant will cost over $2,000 every
month,” R., Vol. 2, at 55, and the PSR indicates that Mr. Perez-Jiminez’s monthly
cost of imprisonment is $2,157.88, R., Vol. 3, at 27.
Mr. Perez-Jiminez’s fine is entitled to a presumption of reasonableness on
appeal, which Mr. Perez-Jiminez has failed to rebut. Accordingly, the district
court did not substantively err by sentencing Mr. Perez-Jiminez to a $2000 fine.
CONCLUSION
For the reasons set forth above, we AFFIRM Mr. Perez-Jiminez’s sentence.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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