United States v. Sergio Rodriguez , 664 F. App'x 607 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10495
Plaintiff- Appellee, D.C. No. 1:13-cr-00109-LJO-SKO-
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v.
MEMORANDUM*
SERGIO PATRICK RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief District Judge, Presiding
Submitted October 17, 2016.**
Pasadena, California
Before: GRABER and MURGUIA, Circuit Judges, and BENNETT,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See FED. R. APP. P. 34(a)(2).
***
The Honorable Mark W. Bennett, Senior United States District Judge
for the Northern District of Iowa, sitting by designation.
Defendant Sergio Rodriguez was convicted by a jury of willfully attempting
to interfere with the safe flight of an aircraft by aiming a laser pointer at it, in
violation of 18 U.S.C. § 32(a)(5) and (a)(8), and aiming a laser pointer at an
aircraft, in violation of 18 U.S.C. § 39A. He was sentenced to 168 months on the
§ 32(a)(5) and (a)(8) offense and 60 months on the § 39A offense. The facts of
this case are set out in considerable detail in our decision on Rodriguez’s first
appeal. United States v. Rodriguez, 790 F.3d 951 (9th Cir. 2015). In that decision,
we vacated Rodriguez’s conviction and sentence on the § 32(a)(5) and (a)(8)
offense. Although Rodriguez had not appealed his conviction on the § 39A
offense, we also remanded for resentencing on that offense. We did so in light of
an intervening decision in United States v. Gardenhire, 784 F.3d 1277 (9th Cir.
2015), and because Rodriguez’s statutory-maximum sentence for his § 39A
conviction was a result of the district court’s calculation of his base offense level
for the § 32(a)(5) and (a)(8) conviction, which we had reversed. Rodriguez, 790
F.3d at 961.
On remand, the court again sentenced Rodriguez to 60 months on his § 39A
conviction, even though his advisory guidelines sentencing range was only 21 to
27 months. Rodriguez now appeals that sentence as substantively unreasonable
and seeks a remand to a different court for resentencing. We affirm.
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1. Rodriguez contends that his above-Guideline sentence—indeed, one
that more than doubled his advisory guidelines sentence—was unwarranted and
that the court overstated the circumstances of the crime and his criminal history,
while giving little or no weight to other relevant § 3553(a) factors. He argues that
the court used conduct that was merely an element of the offense to enhance his
sentence. He also argues that his criminal record was already accounted for in the
calculation of his criminal history as category VI. He also contends that the court
did not adequately consider the effect of alcohol on his ability to control his
behavior. Finally, he contends that his statutory-maximum sentence creates an
unwarranted disparity with his co-defendant and others convicted of a § 39A
offense. We disagree with each of these contentions.
a. As we explained in our decision in United States v. Ressam, 679 F.3d
1069, 1071 (9th Cir. 2012) (en banc), “[w]e review a challenge [to the substantive
reasonableness of a sentence] under what the Supreme Court has described as ‘the
familiar abuse-of-discretion standard of review.’” (Quoting Gall v. United States,
552 U.S. 38, 46 (2007).) Thus, while we afford the district judge’s sentencing
decision “significant deference,” and “‘we may not reverse just because we think a
different sentence is appropriate,’” see id. at 1086 (quoting United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc)), we do not simply “rubber stamp” the
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district judge’s decision, id. at 1087. Rather, “‘we may reverse if, upon reviewing
the record, we have a definite and firm conviction that the district court committed
a clear error of judgment in the conclusion it reached upon weighing the relevant
factors.’” Id. (quoting United States v. Amezcua–Vasquez, 567 F.3d 1050, 1055
(9th Cir. 2009)).
It is true that Rodriguez’s 60-month sentence varied to a substantial degree
from his advisory guidelines sentencing range, in the sense that it was more than
double the high end of his advisory guidelines sentencing range. As we
recognized in Ressam, however:
The Supreme Court has explicitly rejected “the use
of a rigid mathematical formula that uses the percentage
of a departure as the standard for determining the
strength of the justifications required for a specific
sentence.” Gall, 552 U.S. at 47, 128 S. Ct. 586. It has
made clear, nonetheless, that we are to consider the
“extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the
variance.” Id. at 50, 128 S. Ct. 586. It is in that light that
we must assess the district court’s consideration of the
§ 3553(a) factors.
Ressam, 679 F.3d at 1090. Here, the district court offered several sufficiently
compelling justifications for the degree of the variance. Id.
The court considered the first § 3553(a) factor, “the nature and
circumstances of the offense,” just as we did in Ressam. Id. While Rodriguez’s
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offense was not as potentially “horrific” as Ressam’s, the district judge reasonably
found that Rodriguez’s offense involved “a dangerous, dangerous circumstance,”
see Sen’g Tr. (10/8/15) at 20:24, and was of “an horrendously aggravated nature
and [an] aggravated circumstance in this case,” regardless of what Rodriguez knew
about the danger. See id. at 22:16-24; see generally id. at 20:24-26:15. Moreover,
aiming the laser pointer at the helicopter just once would have been sufficient for a
§ 39A offense, see Rodriguez, 790 F.3d at 960 (“[T]he fact that Rodriguez
intentionally shined the laser at the helicopter [was] enough for a § 39A
charge . . . .”), but Rodriguez increased the dangerousness of the offense by
striking the helicopter six or seven times. Sen’g Tr. (10/8/15) at 21:8-12. He had
also “involved his minor children or allowed . . . them to continue to be involved,”
id. at 21:14-16, which the court reasonably considered an aggravating
circumstance.
The court also reasonably concluded that Rodriguez’s criminal history was
aggravating, beyond what his criminal history score indicated. See Ressam, 679
F.3d at 1091 (“Section 3553(a)(1) identifies ‘the history and characteristics of the
defendant’ as one of the factors to consider in imposing
a sentence.”). As the district court found:
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[T]his defendant has a serious criminal history record,
dating as far back as his mid-teen years, including felony
behavior and obstructing and resisting officers; his claim
to be a Bulldog street gang member; having prior felony
commitment, plus six misdemeanors, including corporal
injury to a cohabitant; obstructing an officer; spitting on
an officer; referring to officers as, quote, an officer as a
“white-washed Mexican”’; [and] hitting his cohabitant
five times in the face.
Sen’g Tr. (10/8/15) at 27:2-10. The court also noted that Rodriguez had committed
the offense while on probation, showing that he did not take the terms and
conditions of probation seriously. Id. at 27:11-13. In light of this record, the court
reasonably concluded that Rodriguez was “criminally out of control,” did not
“respect the law,” required “deterrence,” and that the public needed protection
from him. Id. at 27:12-19; see also 18 U.S.C. § 3553(a)(2)(A) (“seriousness of the
offense” and “respect for the law”), (B) (“deterrence”), and (C) (“protect the
public”).
The sentence of 60 months was the maximum authorized by the statute
defining the offense. See 18 U.S.C. § 39A(a); see also id. § 3553(a)(3) (“the kinds
of sentences available”). Under the circumstances of this case, we cannot say that
the court abused its discretion by concluding that Rodriguez should be sentenced to
the available statutory maximum.
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In short, we conclude that Rodriguez’s sentence satisfies the “touchstone” of
reasonableness, because “the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Ressam, 679
F.3d at 1089 (quotation marks omitted).
b. Although Rodriguez contends that his 60-month sentence creates an
unwarranted sentencing disparity with his co-defendant and others who have
committed a § 39A offense, we disagree. See 18 U.S.C. § 3553(a)(6). Rodriguez
has not identified any other defendant who committed a § 39A offense involving as
many “strikes” of the aircraft with the laser pointer, any other § 39A defendant or
co-defendant who had as significant a criminal history, or any other § 39A
defendant or co-defendant who had displayed such disrespect for the law in his
criminal history. The court reasonably concluded that Rodriguez’s co-defendant,
who was his co-habitant, was dominated by Rodriguez, so that her circumstances
were distinguishable.
Because we are not left with “a definite and firm conviction that the district
court committed a clear error of judgment in the conclusion it reached upon
weighing the relevant factors,” Ressam, 679 F.3d at 1087, we affirm Rodriguez’s
sentence.
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2. Rodriguez also requests that, if a resentencing is ordered, we direct
reassignment to a different judge, in order to preserve the appearance of justice.
Because we do not remand for resentencing, this request is denied as moot.
AFFIRMED.
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