United States v. Jaime Duran , 528 F. App'x 215 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-1519
______
UNITED STATES OF AMERICA
v.
JAIME DURAN,
Appellant
______
12-1534
______
UNITED STATES OF AMERICA
v.
CESAR CAMACHO-ROSALES,
Appellant
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-10-cr-00104-001; 2-10-cr-00104-003)
District Judge: Honorable Lawrence F. Stengel
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 11, 2013
Before: SCIRICA, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Filed: June 12, 2013)
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OPINION OF THE COURT
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VAN ANTWERPEN, Circuit Judge
Jaime Duran (“Duran”) pleaded guilty to one count each of drug offenses under 21
U.S.C. §§ 846 and 841(a)(1), and a related offense under 21 U.S.C. § 843(b). Cesar
Camacho-Rosales (“Camacho-Rosales”) pleaded guilty to one count each of drug
offenses under 21 U.S.C. §§ 846 and 841(a)(1).1 Duran and Camacho-Rosales both
challenge the District Court‟s calculation of their sentences under the Sentencing
Guidelines.
I. Duran’s Appeal
A. Duran’s Conduct
The facts regarding Duran‟s conduct are not in dispute. In March 2007, Duran
met with an individual known as K.W., a Philadelphia-area drug dealer. After the
meeting, Duran and Alberto Torres (“Torres”) agreed to supply K.W. with kilogram-
weight quantities of cocaine from California. Duran told K.W. that he could supply K.W.
with cocaine, beginning with loads of twenty-five kilograms. Duran informed K.W. that
Torres would be K.W.‟s contact in the Philadelphia area, and instructed K.W. to arrange
housing for Torres. K.W. did so.
1
For both defendants, the violations of 21 U.S.C. §§ 846 and 841(a)(1) involved,
respectively, conspiracy to distribute and distribution of five or more kilograms of
cocaine. Section 843(b) of Title 21 of the United States Code punishes use of a
communication facility in connection with the commission of a felony.
2
In spring 2007, K.W. received the first shipment of cocaine from Duran. For this
first transaction, and all subsequent transactions, K.W. drove to Delaware, where he
would meet Torres. To conduct the transactions, K.W. and Torres would not remove the
cocaine from Torres‟s car; rather, they would simply switch cars, with K.W. driving
away in the car containing the cocaine. A few months later, the arrest of another dealer
caused shipments from Duran to K.W. to slow down. K.W. then traveled to California to
meet with Duran at Duran‟s residence to discuss future shipments. Duran told K.W. that
shipments would resume shortly if K.W. agreed to assume a portion of the debt Duran
incurred when the other drug dealer was arrested. K.W. grudgingly agreed to this
arrangement. Shipments began anew, at first in quantities of twelve to fifteen kilograms
and then increasing to forty to fifty kilograms, and continued until K.W.‟s arrest in 2009.
After K.W.‟s arrest, Duran contacted K.W.‟s wife to attempt to collect money that K.W.
owed to Duran for approximately sixty-six kilograms of cocaine.
Unbeknownst to Duran, an individual with whom he began meeting after K.W.‟s
arrest was a cooperating witness for the FBI (“CW”). Beginning in November 2009,
Duran conducted telephonic negotiations with the CW regarding collection of K.W.‟s
debt, all of which were recorded by the FBI. In January 2010, Duran, Torres, and
Camacho-Rosales traveled to Philadelphia to meet with the CW to reestablish distribution
of cocaine from California to Philadelphia. Camacho-Rosales traveled to Philadelphia
from California at the request of Duran and Torres.
During one meeting, Torres drove Duran to meet with the CW. While Duran met
with the CW and discussed the distribution scheme, Torres waited in the car. At a later
3
meeting, Duran met the CW alone, to discuss the quantities of cocaine Duran would
supply to the CW, and the CW‟s efforts to recoup the money for Duran from K.W.‟s
customers. The next time they met, Duran and Camacho-Rosales drove in one car, and
Torres drove separately in a rental car. Duran informed the CW he needed the rental car
because he needed someone to follow him to protect him as he drives. Eventually, Duran
instructed the CW to meet at a parking lot in Delaware; the CW called Duran when he
arrived. Duran told the CW to park next to Torres, and Torres placed a box full of
cocaine in the CW‟s car.
At the last meeting, Duran once again drove with Camacho-Rosales, while Torres
followed in the rental car. The purpose of this meeting was for Duran to collect payment
from the CW for the cocaine Duran and Torres had earlier provided. While Duran and
Camacho-Rosales met with the CW inside a restaurant, Torres waited outside in his
vehicle. Inside, Duran discussed the CW‟s payment of the money he owed him, and his
plans for paying back his (Duran‟s) suppliers, as well as the next shipment of cocaine.
The three were arrested in the parking lot of the restaurant.
In Duran‟s Pre-Sentence Report (“PSR”), the Probation Office recommended a
three-level upward adjustment pursuant to U.S.S.G. § 3B1.1(b).2 The District Court
expressed doubts as to the number of participants in the criminal activity, but found that
Duran had “leadership, and management, and supervisory roles in this conspiracy,” and
2
“If the defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive, increase
by 3 levels.”
4
therefore applied a two level adjustment under U.S.S.G. § 3B1.1(c).3 Duran challenges
this determination on appeal.
B. Duran’s Challenge4
We review a District Court‟s determination of “whether the facts „fit‟ within what
the Guidelines prescribe” for clear error. United States v. Richards, 674 F.3d 215, 219-
20 (3d Cir. 2012).5
Duran argues the District Court erred in applying the leadership enhancement. He
cites to Application Note 2, which states that “[t]o qualify for an adjustment under this
section, the defendant must have been the organizer, leader, manager, or supervisor of
one or more participants.” U.S.S.G. § 3B1.1 cmt. n. 2 (emphasis added). This is
consistent with our precedent stating that “for § 3B1.1 to apply, „the defendant must have
exercised some degree of control over others involved in the commission of the
3
“If the defendant was an organizer, leader, manager, or supervisor in any criminal
activity other than described in (a) or (b), increase by 2 levels.”
4
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
5
Duran argues that because the facts are not in dispute, the issue is purely a legal one,
and thus a de novo standard should apply. The Supreme Court explicitly rejected this
argument in Buford v. United States, 532 U.S. 59, 63-64 (2001), and this Court did the
same in Richards, 647 F.3d at 218. In Buford, the Court noted that considerations
beyond the existence of factual disputes justified a deferential standard of review. For
example, a district court‟s sentencing determination is entitled to deference because the
district court deals with Guidelines calculations on a more regular basis and thus has an
institutional advantage when making sentencing determinations. Buford, 532 U.S. at 64-
65. Furthermore, if an issue is a fact-specific one, there is “limited value of uniform
court of appeals precedent,” which is one of the justifications for de novo review. Id. at
65-66. Bearing in mind these considerations, a deferential standard of review is
appropriate.
5
offense.‟” United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992) (quoting United
States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)); see also United States v. King, 21
F.3d 1302, 1305 (3d Cir. 1994) (“The direction and control of others is a recurrent theme
in legal definitions of the terms „manager‟ and „supervisor.‟”)
Duran claims (1) there is insufficient evidence that he had a leadership role in the
conspiracy and (2) even if he had a leadership role, there is insufficient evidence that he
exercised any leadership, managerial, or supervisory authority over another participant.
1. Duran Was an “Organizer, Leader, Manager, or Supervisor”
Duran argues that the evidence only shows he was an “essential member” of the
conspiracy, not an organizer, leader, manager, or supervisor. This claim fails.
Section 3B1.1 does not define “organizer,” “leader,” “manager,” or “supervisor.”
This Court has determined that “a manager or supervisor is one who „exercise[s] some
degree of control over others involved in the offense.‟” United States v. Chau, 293 F.3d
96, 103 (3d Cir. 2002) (quoting Fuller, 897 F.2d at 1220). The commentary to § 3B1.1
provides a list of factors for courts to consider when attempting to distinguish “a
leadership and organizational role from one of mere management or supervision.”
U.S.S.G. § 3B1.1 cmt. n.4. Many of our sister Courts of Appeals consider these factors
when determining whether § 3B1.1(c) applies. See, e.g., United States v. Skinner, 986
F.2d 1091, 1096-97, n.1 (7th Cir. 1993) (considering Note 4 factors when analyzing
application of § 3B1.1(c) and citing other Courts of Appeals that do the same). These
factors include: “the exercise of decision making authority, the nature of participation in
the commission of the offense . . . the degree of participation in planning or organizing
6
the offense, the nature and scope of the illegal activity, and the degree of control and
authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4. Application of these factors
demonstrates that Duran was a supervisor or manager.
Duran “exercised decision making authority” by dictating the amount of cocaine
he would supply in each shipment, organizing and arranging meetings with the CW,
negotiating with K.W. and later the CW, and establishing and directing the manner in
which physical transfers of the cocaine would occur. “The nature of [his] participation in
the offense” further supports this conclusion. As the individual who orchestrated the
physical transactions between K.W. and Torres, and then the CW and Torres, and who
conducted all of the meetings with the CW, Duran‟s participation in the conspiracy was
significant. Similarly, his role in the negotiations and in structuring the transactions
indicates he had a high “degree of participation in planning [and] organizing” the
conspiracy. Finally, the fact that he ordered K.W. to provide housing to Torres, that he
had Torres live in Philadelphia to serve as his liaison with K.W. while he (Duran)
remained at the “headquarters” of the operation in California, and that he had Torres
handle all of the physical transfers of cocaine on his behalf, indicates that Duran
exercised “control and authority” over others.
2. K.W. and Torres Were “Participants” Over Whom Duran Was a Manager
Duran argues that even if he was a manager or supervisor, the evidence does not
establish that he exercised such authority over a participant, which is required by
application note two of § 3B1.1. Duran argues that K.W. was not a participant because
7
he was simply a consumer and not a member of the conspiracy, and that Duran did not
exercise authority over Torres because Torres was his equal within the conspiracy.
A participant is “a person who is criminally responsible for the commission of the
offense, but need not have been convicted. A person who is not criminally responsible
for the commission of the offense (e.g., an undercover law enforcement office) is not a
participant.” U.S.S.G. § 3B1.1 cmt. n.1. This Court has determined that a seller
providing drugs to a consumer for resale on credit “is sufficient evidence of a conspiracy”
under 21 U.S.C. § 846. United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008). We
also determined that “the fact that [defendant] invited [coconspirator] to Apartment A
with drugs in plain view reflects a level of mutual trust consistent with conspiracy.” Id.In this instance, Duran provided bulk quantities of cocaine to K.W. on credit, in a
relationship identical to that in Iglesias. Furthermore, the fact that, while conducting the
physical transfers, K.W. and Torres did not merely transfer the cocaine and the money,
but rather swapped cars, “reflects a level of mutual trust consistent with conspiracy.”
Iglesias, 535 F.3d at 156. Similarly, K.W. was instructed by Duran to provide housing
for Torres, who was indisputably a member of the conspiracy; again this indicates a level
of mutual trust beyond an arms-length buyer-seller relationship.
Duran mistakenly relies on cases from the Courts of Appeals for the Eighth Circuit
and the Ninth Circuit to argue K.W. was not a participant. In United States v. Jones, the
court assessed whether the defendant was an “organizer” or “leader” under U.S.S.G. §
3B1.1(a), not whether the defendant was an “organizer,” “leader,” “manager,” or
8
“supervisor” under § 3B1.1(c).6 160 F.3d 473, 482-83 (8th Cir. 1998). The court found
that the defendant‟s role as a wholesale seller to a consumer who in turn sold to various
other drug dealers did not establish that he was the “leader” or “organizer” of that
consumer. Id. at 483. Not only was Jones concerned with the more stringent “leader” or
“organizer” standard, it did not determine whether the consumer was a “participant.”
Therefore, it lends no support to Duran‟s argument that K.W. was not a participant.
Precedent from the Court of Appeals for the Ninth Circuit is similarly unhelpful.
In United States v. Egge, the court did hold that “merely purchasing drugs from the seller,
without more, does not qualify that customer as a participant for the purposes of the
section 3B1.1 enhancement.” 223 F.3d 1128, 1133 (9th Cir. 2000). However, the court
made clear that this rule only applied “[w]here the customers are solely end users of
controlled substances.” Id. Therefore, “to qualify as a participant, a customer must do
more than simply purchase small quantities of a drug for his personal use. The facts must
support an inference that the seller knew or should have known that the customer would
subsequently distribute the drugs to others outside his household.” Id. Duran knew that
when he was supplying K.W. with multiple shipments of twenty-five to fifty kilograms of
cocaine, K.W. would “distribute the drugs to others outside his household.”
Duran argues that even if K.W. was a participant, Duran did not act as K.W.‟s
“supervisor” or “manager.” This argument fails. As described above, the essence of a
6
Under the Guidelines, a “supervisor” or “manager” has less authority than an
“organizer” or “leader.” See U.S.S.G. § 3B1.1 cmt. n.4 (“In distinguishing a leadership
and organization role from one of mere management or supervision . . . .” (emphasis
added)).
9
supervisory or managerial relationship is whether the defendant “„exercise[s] some
degree of control over others involved in the offense.‟” Chau, 293 F.3d at 103 (quoting
Fuller, 897 F.2d at 1220). Duran informed K.W. that he would be dealing with Torres
and instructed K.W. to obtain housing for Torres in the Philadelphia area. K.W. followed
both of these directives; he arranged for Torres‟s housing, and he transacted business
directly with Torres. Furthermore, when the arrest of another drug dealer created an
obstacle in the conspiracy, Duran decided to resume shipments to K.W. only if K.W.
agreed to assume some of Duran‟s debt. This transaction demonstrates that Duran
dictated the terms of the conspiracy, and K.W. obeyed those terms. By forcing K.W. to
assume part of his debt, Duran “exercise[d] some degree of control” over K.W. This
belies the notion that K.W. was a separate “entity,” not beholden to Duran. Rather, this
indicates an organization in which Duran was above K.W. in a vertical hierarchy, not
adjacent to him in a horizontal relationship.
Finally, Torres was a participant over whom Duran exercised supervisory or
managerial authority. Duran argues Torres was an equal, not an inferior, in the
conspiracy. However, the fact that Torres served as Duran‟s driver to several meetings,
that Torres waited outside while Duran conducted negotiations and meetings, that Torres
drove a rental car behind Duran to protect Duran, that Torres went to the Philadelphia
area to deal with K.W. while Duran remained near “headquarters” in California, and that
Torres handled all of the physical transfers of cocaine on behalf of Duran, indicates that
Duran exercised “some degree of control” over Torres.
10
Since K.W. and Torres were both participants in the criminal activity, and since
Duran exercised supervisory or managerial authority over both of them, application of the
§ 3B1.1(c) two-level enhancement was not clear error.
II. Camacho-Rosales’s Appeal
A. Camacho-Rosales’s Conduct
At the request of Torres, Camacho-Rosales traveled to Philadelphia on January 25,
2010. In Philadelphia, Camacho-Rosales attended approximately three meetings with
Torres, Duran, and the CW to discuss the distribution of cocaine from Torres, Duran, and
Camacho-Rosales to the CW. On January 27, 2010, two days after arriving in the area,
Camacho-Rosales, Torres, and Duran met with the CW to discuss the distribution of
approximately 24 kilograms of cocaine to the CW. Camacho-Rosales drove Duran to this
meeting, while Torres followed in a rental car. Later that day, Torres met with the CW
and transferred 23.94 kilograms of cocaine into the CW‟s vehicle. On January 28, 2010,
Camacho-Rosales again drove Duran to a meeting with the CW. Torres again followed
in a rental car. Camacho-Rosales and Duran entered a restaurant to meet with the CW to
obtain the CW‟s payment for the cocaine Duran, Torres, and Camacho-Rosales had
provided the CW. The three were arrested outside of the restaurant.
Camacho-Rosales pleaded guilty to one count each of violating 21 U.S.C. §§ 846and 841(a)(1). At his sentencing hearing, he raised several arguments for departure. On
appeal, Camacho-Rosales raises two challenges to his sentence: (1) substantive due
process was violated by the increase of his criminal history score, which rendered him
11
ineligible for the safety valve provision of U.S.S.G. § 5C1.27 and (2) he was entitled to an
offense level reduction based on his limited participation in the conspiracy, pursuant to
U.S.S.G. § 3B1.2.8 The District Court rejected these arguments, but did grant a
downward variance of one month, and sentenced Camacho-Rosales to the mandatory
minimum of 120 months.9 Camacho-Rosales appeals.
B. Camacho-Rosales’s Challenge
Camacho-Rosales argues that the District Court violated substantive due process
by assessing him one criminal history point for a misdemeanor conviction, and then
assessing two additional points because Camacho-Rosales committed the instant offense
while serving probation for the misdemeanor conviction. Due to the resulting criminal
history score of three points, Camacho-Rosales was ineligible for the safety valve
provision in U.S.S.G. § 5C1.2. If not for the additional two points, Camacho-Rosales
argues, his Guidelines range would have been 108-135 months, twelve months below the
mandatory minimum required by 21 U.S.C. § 841(b)(1)(A).10 According to Camacho-
7
This provision permits the District Court to sentence in accordance with the Guidelines,
regardless of any statutory mandatory minimum, if certain conditions are satisfied,
including: “the defendant does not have more than 1 criminal history point.” U.S.S.G. §
5C1.2(a)(1).
8
Under this provision, a defendant‟s offense level is decreased by four levels if he “was a
minimal participant in any criminal activity” and by two levels “if the defendant was a
minor participant in any criminal activity.” U.S.S.G. § 3B1.2.
9
The Guidelines range was 121 months to 151 months.
10
Pursuant to this subsection, any person convicted of distributing five or more kilograms
of cocaine is subject to a mandatory sentence of incarceration of ten years. Camacho-
Rosales pleaded guilty to distribution of 23.94 kilograms of cocaine.
12
Rosales, his due process rights were violated because, under the Sentencing Guidelines,
the penalty he suffers for committing the instant offense while on probation for
commission of a misdemeanor is the same penalty applied to someone on probation for
commission of a felony—an assessment of two additional history points. This argument
fails.
A sentencing scheme will survive a due process challenge if it “bears a rational
relationship to a legitimate governmental purpose.”11 United States v. John, 936 F.2d
764, 766 n.2 (3d Cir. 1991), abrogated on other grounds by Guidelines Amendments,
11
As this Court has noted in the past, the standards of review applicable to due process
challenges to legislation and to executive acts are different. Cnty. Concrete Corp. v. Twp.
of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006). When a legislative act is challenged, we
determine whether a legitimate government interest is rationally served by the statute. Id.(citing Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000)). When non-
legislative action is challenged, it violates substantive due process if “„arbitrary,
irrational, or tainted by improper motive,‟ or if „so egregious that it shocks the
conscience.‟” Id. (quoting Nicholas, 227 F.3d at 139).
The Sentencing Guidelines are quasi-legislative, and so for purposes of the due
process analysis, we treat them like a statute. See Mistretta v. United States, 488 U.S.
361, 393 (1989) (noting “quasi-legislative power of the [Sentencing] Commission”);
United States v. Angel-Guzman, 506 F.3d 1007, 1013 (10th Cir. 2007) (referring to
Sentencing Commission as “quasi-legislative body”); see also United States v. Jenkins,
275 F.3d 283, 288 (3d Cir. 2001) (noting in other context that “[w]e interpret United
States Sentencing Guidelines the same way we interpret statutes”). This decision is
further supported by the decisions of other Courts of Appeals applying the same standard.
See United States v. Bacon, 646 F.3d 218, 221-22 (5th Cir. 2011) (per curiam) (“A
guideline violates due process only if it has no rational basis or is subject to arbitrary
application.”); United States v. Meskini, 319 F.3d 88, 91 (2d Cir. 2003) (“To sustain a
federal sentencing statute against a due process . . . challenge, courts need only find that
Congress had a rational basis for its choice of penalties.” (internal citations and quotation
marks omitted)); United States v. Bredy, 209 F.3d 1193, 1197 (10th Cir. 2000) (“Due
process requires only that a sentencing scheme be rational.”); United States v. Marshall,
908 F.2d 1312, 1320 (7th Cir. 1990) (“Defendants‟ sentences bear rational relations to
their offenses. That is all the Constitution requires . . . .”).
13
U.S.S.G. App. C at 303-04, amend. 433 (effective Nov. 1, 1991) and at 337-38, amend.
461 (effective Nov. 1, 1992), as recognized in United States v. Taylor, 98 F.3d 768, 770-
71 (3d Cir. 1996). “Those attacking the rationality of the legislative classification [under
a substantive due process challenge] have the burden „to negative every conceivable basis
which might support it.‟” N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374,
398 (3d Cir. 2012) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993))
(alterations omitted). Camacho-Rosales has not met his heavy burden.
Contrary to Camacho-Rosales‟s argument, the Sentencing Guidelines do impose
different penalties based on the severity of the prior offense. See U.S.S.G. § 4A1.1 (a)-
(c) (providing a three point increase for each sentence of imprisonment over thirteen
months, a two point increase for each prior sentence of at least sixty days, and a one point
increase for each other prior sentence). Even though § 4A1.1(d) increases the criminal
history score by two points if “the defendant committed the instant offense while under
any criminal justice sentence,” the gravity-oriented approach embodied in subsections
(a), (b), and (c) ensures that all defendants are not subject to the same penalty regardless
of the seriousness of their prior offenses. To the extent Camacho-Rosales‟s constitutional
claim hinges on an allegation that individuals with prior convictions for misdemeanors
are treated the same as those with prior convictions for felonies, this argument is
incorrect. Under the Guidelines, the more serious the prior conviction, the more criminal
history points the defendant receives.12
12
The Guidelines also took into consideration the gravity of Camacho-Rosales‟s prior
offense in assessing his criminal history points. A misdemeanor conviction for careless
14
In addition, subsection (d) is not concerned with the gravity of the underlying
crime; the offensive conduct is the fact that the defendant, while under “any criminal
justice sentence” committed “any part of the instant offense (i.e., any relevant conduct).”
U.S.S.G. § 4A1.1 cmt. n.4 (emphasis added). This subsection is concerned with the
defendant‟s noncompliance with supervisory authority, not the gravity of the crime which
caused him to be supervised. See id. (“[A] „criminal justice sentence‟ means a sentence
countable under § 4A1.2 . . . having a custodial or supervisory component, although
active supervision is not required for this subsection to apply.”). The broad language of
the application note, and the nexus to supervision, indicate that disobedience while under
supervision is the focus of the subsection. Therefore, Camacho-Rosales‟s argument is
inapposite; since the focus is the defendant‟s conduct while under supervision, it is
irrelevant why the defendant was being supervised in the first place. Whether the
supervision was imposed for a misdemeanor reckless driving or a felony robbery, the
noncompliance with supervisory authority is the same. There is a “conceivable basis” to
support this determination: an individual who has in the past demonstrated a lack of
respect for criminal justice supervision should be treated more severely than one who has
not. See U.S.S.G. §4A1.1 introductory cmt. (noting “[a] defendant‟s record of past
criminal conduct is directly relevant” for sentencing purposes).
or reckless driving is only “counted” if it is of sufficient gravity—the sentence imposed
for the conviction must have been over one year of probation, or at least thirty days‟
incarceration. U.S.S.G. § 4A1.2(c). Since Camacho-Rosales‟s conviction for reckless
driving resulted in two years‟ probation, his conduct was sufficiently serious to warrant
assessment of a criminal history point.
15
The Courts of Appeals have routinely determined that sentencing schemes which
increase punishment based on past conduct have a rational basis, even if that conduct
occurred decades prior. See, e.g., United States v. Bacon, 646 F.3d 218, 221-22 (5th Cir.
2011) (per curiam) (goal of deterring recividism provided rational basis for Guidelines‟
consideration of conduct occurring thirty years prior); United States v. Garner, 490 F.3d
739, 743 (9th Cir. 2007) (stating, while upholding consideration of thirty-five year old
conduct, that “[t]he courts have, for some time, recognized that such prior conduct
demonstrates an increased danger of recidivism”); United States v. Wicks, 132 F.3d 383,
389 (7th Cir. 1997) (upholding application of federal “Three Strikes” statute because
“Congress rationally could decide to impose an exceptionally severe sentence on
individuals with two prior convictions for serious violent felonies”). Courts of Appeals
have also upheld federal sentencing schemes which increase sentences based on past
felony convictions, even though some states may classify certain conduct as a felony,
while others as a misdemeanor. See, e.g., United States v. Brandon, 521 F.3d 1019, 1027
(8th Cir. 2008) (noting application of heavier penalty for those with prior convictions for
“felonies,” even where same conduct constituted misdemeanor in other jurisdictions, did
not violate due process because heavier penalty “served Congress‟ legitimate purpose of
deterring repeat offenders”); United States v. Tremble, 933 F.2d 925, 930-31 (11th Cir.
1991) (same).
Given this authority, the Sentencing Commission‟s determination that a
defendant‟s sentence should be increased if he expressed disobedience to criminal justice
supervision, regardless of the reason for that supervision, has a rational basis. Camacho-
16
Rosales has not met his burden of establishing that the assessment of one criminal history
point for his prior misdemeanor conviction and of two criminal history points for the
commission of the instant offense while on probation for that misdemeanor conviction
violates substantive due process.13
Since Camacho-Rosales‟s due process rights were not violated, he is not eligible
for the safety-valve created by U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). As a result,
there is no possibility Camacho-Rosales could receive a sentence below the statutory
minimum of 120 months, which the District Court imposed. Therefore we do not discuss
Camacho-Rosales‟s second claim, pertaining to the minimal/minor participant adjustment
in U.S.S.G. § 3B1.2, because it is moot. See Burkey v. Marberry, 556 F.3d 142, 149 (3d
Cir. 2009) (noting issue is moot if its resolution would require court to “„declare
principles or rules of law which cannot affect the matter in issue in the case before it.‟”
(quoting Mills v. Green, 159 U.S. 651, 653 (1895))).
13
Camacho-Rosales also raises, as an afterthought, a due process challenge to the
Guideline‟s determination that certain misdemeanors are “counted” when calculating a
criminal history score, while others are excluded. See U.S.S.G. § 4A1.2(c)(1) (listing
certain offense which are only to be counted when the sentence imposed was over one
year of probation or at least thirty days of imprisonment). He seems to be arguing that it
violates due process that only certain reckless driving misdemeanors, those resulting in a
sufficiently severe penalty, are “counted.” However, Camacho-Rosales does not claim
that the severity of the prior sentence is an improper consideration when sentencing; in
fact, he spends much of his brief arguing that the Sentencing Guidelines improperly
preclude consideration of prior offense gravity. Section 4A1.2(c) of the Guidelines only
excludes certain misdemeanor reckless driving convictions because they are
insufficiently severe, as reflected by the sentence imposed. Camacho-Rosales cites no
authority to support his claim that such a consideration violates due process, and thus
cannot sustain his burden to demonstrate that the scheme lacks a rational basis.
To the extent Camacho-Rosales argues that the scheme in general, rather than
applied to his specific case, is improper, this claim fails. Defendants are not “entitled to
assert third parties‟ rights to better sentencing practices.” Marshall, 908 F.2d at 1320.
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III. Conclusion
For the foregoing reasons, the convictions and sentences imposed on Duran and
Camacho-Rosales by the District Court are affirmed.
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