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NO. 08-2079  _________________________________________  THE UNITED S  TATES COURT OF  A PPEALS FOR THE  TENTH CIRCUIT  _________________________________________ UNITED S  TATES OF  AMERICA, Plaintiff-Appellee, v. HERIBERTO A  VALOS-GONZALES, Defendant Appellant.  _________________________________________  APPEAL FROM THE UNITED S  TATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO,  THE HONORABLE JUDITH C. HERRERA, C  ASE NO. 07CR2089   JH  _________________________________________ DEFENDANT-A PPELLANT HERIBERTO A  VALOS-GONZALESBRIEF IN CHIEF  _________________________________________  N O ARGUMENT R EQUESTED  _________________________________________  TRACE L. R  ABERN, ESQ.  Attorney for Appellant 1626 Ben Hur Dr. Santa Fe, New Mexico 87501 505-690-796

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NO. 08-2079 _________________________________________ 

 THE

UNITED

S TATES

COURT OF

 A PPEALS

 FOR THE TENTH CIRCUIT  _________________________________________ 

UNITED S TATES OF AMERICA, Plaintiff-Appellee,

v.

HERIBERTO A VALOS-GONZALES, Defendant Appellant. _________________________________________ 

 APPEAL FROM THE UNITED S TATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO,

 THE HONORABLE JUDITH C. HERRERA,C ASE NO. 07CR2089  JH

 _________________________________________ 

DEFENDANT-A PPELLANT HERIBERTO A  VALOS-GONZALES’BRIEF IN CHIEF 

 _________________________________________ 

 N O ARGUMENT R EQUESTED 

 _________________________________________ 

 TRACE L. R  ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.Santa Fe, New Mexico 87501

505-690-796

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  ii

 Table of Contents

 Table of Contents ..................................................................................................................... ii   Table of Authorities ................................................................................................................ iii  Statement Regarding Prior or Related Appeals................................................................... iv  

 Jurisdictional Statement ...........................................................................................................1  Statement of the Case and Facts ............................................................................................3 

 Arguments for lower sentence................................................................................................3  Government’s Response to Motion to deviate from Sentencing Guidelines.................. 7 

I. The District Court Relied On An Improper Sentencing Factor—That Is, TheIdea That It Must Give A Sentence Exceeding  What Mr. Avalos-Gonzales WouldHave Received Had He Taken The Fast-Track—Instead Of Mr. Avalos-Gonzales’Individualized Circumstances...........................................................................................11 

  A. Using the Disincentive of Fast-Track To Others As A Factor To Increase theSentence (Decrease the Variance) Violates The Tenet Of § 3553 And TheBooker/Rita/Gall  Rule That A Sentence Must Be Individualized To This ParticularDefendant and This Offense. ...............................................................................................13 B. Doesn’t the Fast-Track Sentence Factor Influence The Sentencing Analysis In  The Opposite Way—Illustrating that the system employs disparate treatment of identical offenders, depending on the amount of response the government is requiredto give in a given case? ...........................................................................................................14 C. There is No Longer Such Thing As A Mine-Run (“Heartland”) Case. ...................14 D. Not All Of The Guidelines Are Necessarily Accurate or Empirical.....................18 

II. The Sentence Imposed On Mr. Avalos-Gonzales Is Unreasonable In That TheCourt Relied Upon Disputed Judge-Found Facts (Not Proven To A Jury Beyond A

Reasonable Doubt) As Its Reasons For Not Reducing The Sentence To ThatRequired For The § 3553 Purposes. ................................................................................23 

Conclusion ...............................................................................................................................26 Certificate of Compliance with Rule 32(A)(7)....................................................................28 

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  iii

 Table of Authorities

Cases 

 Anders v. California, 386 U.S. 738 (1967) ..............................................................................10

Koon v. United States , 518 U.S. 81, 108 (1996) ......................................................................15

Rita v. United States , ___ S.Ct.___, 2007 WL 1772146 (June 21, 2007)...........................16

United States v Maldonado Campos , 920 F.2d 714 (10th Cir. 1990) .......................................7

United States v. Atencio, 476 F.3d 1099 (10th Cir. 2007) .....................................................11

United States v. Booker , 543 U.S. 220, 260-61 (2005) ............................................................. 1

United States v. Cage, 451 F.3d 585 (10th Cir. 2006) ............................................................12

United States v. Chavez-Diaz, 444 F.3d 1223 (10th Cir. 2006) ............................................11

United States v. Collins , 122 F.3d 1297 (10th Cir. 1997) .......................................................7

United States v. Esparza-Estrada, 2007 WL 3194849 (10/25/07)(unpublished) ..............10

United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) ........................................................... 1

United States v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007).............................................13

United States v. Jones , 158 F.3d 492 (10th Cir. 1998) ..........................................................15

United States v. Kristl , 437 F.3d 1050 (10th Cir. 2006)...................................................12, 13

United States v. Lee, 376 F. Supp. 2d 1276 (D.N.M. 2005).................................................15

United States v. Lynch , 397 F.3d 1270 (10th Cir. 2005)........................................................12

United States v. Nowicki , 252 F.Supp. 2d 1242 (D. N.M. 2003) ........................................... 7

United States v. Pruitt, 487 F.3d 1298 (10th Cir. 2007) ........................................................13

United States v. Sierra-Castillo, 405 F.3d 932 (10th Cir. 2005).............................................11

United States v. Townley, 472 F.3d 1267 (10th Cir. 2007).....................................................13

United States v. Trujillo-Terrazas , 405 F.3d 814 (10th Cir. 2005).........................................12

Statutes 

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18 U.S.C. § 3231........................................................................................................................1

18 U.S.C. § 3553(a) ................................................................................................6, 12, 13, 17

18 U.S.C. § 3742........................................................................................................................1

28 U.S.C. § 1291........................................................................................................................1

U.S.S.G. § 4A1.3 .......................................................................................................................6

Other Jurisdictions' Cases 

United States v. Galvez-Barrios , 355 F. Supp. 2d 958 (E.D. Wi. 2005) ...............................15

United States v. Ranum , 353 F. Supp. 2d 984, 986, (E.D. Wis. 2005) ................................15

Rules 

Fed. R. App. P. 28(a)(4)(A) ..................................................................................................... 1

Fed. R. App. P. 28(a)(4)(B)...................................................................................................... 1

Fed. R. App. P. 28(a)(4)(C)...................................................................................................... 1

Fed. R. App. P. 28(a)(4)(D) ..................................................................................................... 1

Statement Regarding Prior or Related Appeals

 There are no prior or related appeals for Mr. Gutierrez-Gonzalez.

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 Jurisdictional Statement

 The District Court’s jurisdiction, see Fed. R. App. P. 28(a)(4)(A), arose under 18

U.S.C. § 3231 (district court jurisdiction over federal offenses).

 This Court’s appellate jurisdiction, see Fed. R. App. P. 28(a)(4)(B), arises under

28 U.S.C. § 1291 (appellate jurisdiction over final decisions of district courts) and 18

U.S.C. § 3742(a) and (b) (review of sentence imposed). Appellant challenges the

Booker /Rita  reasonableness of the sentence imposed. This Court has said that

following  United States v. Booker , 543 U.S. 220 (2005), it lacks jurisdiction to review 

discretionary decisions not to depart downward from a Guidelines sentencing range,

but that it retains jurisdiction to review a sentence for reasonableness, “tak[ing] into

account [the defendant's] asserted grounds for departure” when conducting that

reasonableness review. United States v. Chavez-Diaz , 444 F.3d 1223, 1229 (10th Cir.

2006).

 This brief is timely. See Fed. R. App. P. 28(a)(4)(C). This Court by Order of 

 June 29, 2008, set the brief to be filed on or before July 7, 2008.

  This appeal is from a district court’s entry of a sentence in a criminal case,

 which is a final order. See Fed. R. App. P. 28(a)(4)(D); United States v. Hahn , 359 F.3d

1315, 1320 (10th Cir. 2004) ( en banc  ) (the entry of a sentence constitutes a final order

establishing subject matter jurisdiction under 28 U.S.C. § 1291).

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ISSUE PRESENTED FOR R EVIEW 

I.  DID  THE DISTRICT COURT R ELY  ON  A N IMPROPER  SENTENCING

F ACTOR  —THAT IS,   THE IDEA   THAT I T MUST GIVE  A   SENTENCE

EXCEEDING  WHAT MR .   A  VALOS-GONZALES  WOULD H AVE R ECEIVED

H AD HE  T AKEN  THE F AST-TRACK  —INSTEAD OF MR .   A  VALOS-GONZALES’ INDIVIDUALIZED CIRCUMSTANCES?

  A. At The Government’s Request, The District CourtConsidered The Idea That It Should Impose A Sentence Higher Than A Fast-Track Sentence As

  A Significant Factor In This Case. The

government Did Not Want The Sentence ToEqual Or Resemble A Fast-Track Sentence,Because Mr. Avalos-Gonzales Had Chosen ToFile A Sentencing Memorandum. Thegovernment Felt That Imposing A SentenceEqual or Resembling A Fast-Track Sentence

  Would Encourage Other Defendants To Forgo  The Fast-Track, And Cause The GovernmentMore Work.

  Was This A Valid Sentencing Factor Under §3553, or the Guidelines?

B. Does such a Factor Violate The Tenet Of § 3553 And The Booker/Rita Rule That A Sentence MustBe Individualized To This Particular Defendant?

C. Doesn’t the Fast-Track Sentence Factor Influence The Sentencing Analysis In The Opposite Way— Illustrating that the system employs disparate

treatment of identical offenders, depending on theamount of response the government is required togive in a given case?

II.   W AS  THE SENTENCE IMPOSED ON MR .   A  VALOS-GONZALES

UNREASONABLE IN  THAT  THE COURT R ELIED UPON  JUDGE-FOUND

F ACTS (NOT PROVEN TO A   JURY BEYOND A  R EASONABLE DOUBT)  A S I TS

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SOLE R EASONS FOR  NOT R EDUCING  THE SENTENCE  TO  THAT

R EQUIRED FOR  THE § 3553 PURPOSES?

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Statement of the Case and Facts

 Arguments for lower sentence.

Heriberto Avalos-Gonzales plead guilty without the benefit of a plea agreement

before the United States Magistrate Judge on October 17, 2007, to the offense of 

being found in the United States after having been previously deported and without

consent to return. See 8 U.S.C. §§ 1326(a) and 1326(b). He decided to forgo the fast-

track offer of the government, because he wished for counsel to present a sentencing 

memorandum to the court on his behalf, explain his situation, and ask for a lower

sentence. He accepted responsibility for his offense, and regrets his actions.

 According to the calculations of the presentence report, Mr. Avalos-Gonzales

has a total offense level of 21, criminal history score of 3, and a criminal history 

category of II. Computing in a 3-level reduction for acceptance of responsibility, the

adjusted offense level is 21, resulting in a guideline range for his sentence is 41-51

months. Mr. Avalos-Gonzales never challenged the calculation in this report. Mr.

 Avalos-Gonzales’ criminal history arises from a guilty plea to a possession of drugs

for sale charge from 1999 in California, when he was 22, for which he was sentenced

to two years in custody. Mr. Avalos-Gonzales is now 30. His only other contact with

law enforcement was a citation for driving without a license.

Counsel spent time with Mr. Avalos-Gonzales and prepared a Sentencing 

Memorandum In Support Of A Reasonable Sentence” on his behalf. (Doc. 17.) In

the Memorandum, counsel explained that Mr. Avalos Gonzales returned to the

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United States in order to earn more money and make a better life for his family, which

resides here. His wife has several medical conditions which require regular care

(diabetes, kidney problems, and high blood pressure). Prior to his arrest, he was the

sole source of support for his wife and children.

Mr. Avalos-Gonzales told the Border Patrol agent after his arrest that he

thought he had been deported for five years. The Memorandum pointed out that his

belief was not wholly unreasonable, as he had in his records a federal charge of “Oral

False Claim to U.S. Citizenship” for which prosecution was declined in favor or an

order of removal for five years. (Doc. 17 at 2-3.)

  The Memorandum also noted the confusingly disparate treatment that Mr.

 Avalos-Gonzales had received for his prior trip into this country. In June of last year

(2007) Mr. Avalos-Gonzales was found in the country and simply deported, without

any criminal charges. (Id.) The only consequences for being in the United States one

year ago was mere deportation. He was surprised to learn that now he faced a

sentence of 41 months to 20 years in the present case, for exactly the same conduct.

(Doc. 17 at 3.) His counsel reported that he found the possible sentences in this case

difficult to believe. (Doc. 17 at 4.) It did not make sense to him that the government

  would see fit only to deport him last year, and a few months later, for the same

conduct, to seek years in federal prison. (Id.) It did not make sense to him that the

government would seek to imprison him for longer than he was sentenced for a drug 

offense in 1999, just for being in the country. (Id.) Counsel pointed out that Mr.

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 Avalos-Gonzales has never received a criminal sentence for illegal re-entry, although

he has been removed at least twice. (Doc. 17 at 3.) While he clearly had some

understanding that he was not authorized to enter this country, he quite reasonably 

believed that the consequence was simple deportation. He genuinely did not know or

understand or appreciate the consequences he now faces. (Doc. 17 at 4.) He never

 would have returned if he had understood these consequences. (Id.)

Counsel noted that at this point, Mr. Avalos-Gonzales does now understand

only too well the consequences of illegal re-entry. He is now fully aware of the

consequences of re-entering the United States. He understands that any future return

 will result in prosecution and a prison sentence.

 As counsel for Mr. Avalos-Gonzales argued in her sentencing memorandum on

his behalf, “actions speak louder than words”—that is, the government had sent an

unclear and inconsistent message to people like Mr. Avalos-Gonzales who come here

to work and live with family. (Id.) He faced simple deportation, without criminal

penalty, in 2007, and now in 2008, he faced years in prison for the same conduct.

(Doc. 17 at 4.) She noted how he found this difficult to absorb, an that it did not

make sense to him that the government now sought to incarcerate him for a longer

period of time than that it sought for his drug offense in the 1990’s. (Doc. 17 at 4.)

Counsel reminded the district court that 18 U.S.C. § 3553(a) requires the court

to impose a sentence that is sufficient, but not greater than necessary, to comply with

the purposes set forth in that section. She argued that a sentence of less that 41

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months would accomplish the § 3553(a) purposes of a sentence—to ensure that he

does not enter again, to protect the community, punish him for his actions, and

rehabilitate him in some way (his only significant present problem appears to be the

need to support his family).

Specifically counsel argued that the effect of the 1999 conviction on the

sentencing calculation made the guideline result unreasonable in Mr. Avalos-

Gonzales’ case. She argued that the impact of that offense on the advisory sentence

 was disproportionate to Mr. Avalos-Gonzales’ malfeasance in that case, and that it did

not account for the fact that he was obviously both deterred and rehabilitated by the

sentence he served in that matter, as he had been without incident since. The factual

basis for the 1999 offense was a bust at someone else’s hotel room, along with a

number of other people. Mr. Avalos-Gonzales did not have any weapon, although

there was a gun in a duffle bag in the hotel room. Mr. Avalos-Gonzales was caught

  with what was called “one bundle” of the drugs found. He seemingly was a

purchaser. There is no violence in Mr. Avalos-Gonzales’ history, whatsoever. Yet his

guideline sentence is identical to that of someone with crime of violence in their

recent history.

 The goal of the prosecution of Mr. Avalos-Gonzales in this case is to stop him

from returning to the United States again, counsel argued, and that goal would be

fulfilled by a sentence of less than 41 months.

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Government’s Response to Motion to deviate from Sentencing Guidelines.

  The government filed a short (<4 page) response to Mr. Avalos-Gonzales

Memorandum. (Doc. 18.) As to the argument that his criminal history was over-

represented, the government treated this as a request of a downward departure,

recited how the guideline calculation was accurate, and therefore asked the court to

deny the request. (Doc. 18 at 2.)

  As to the arguments for a Booker  variance, the government noted that all

deportees, including Mr. Avalos-Gonzales, are advised with a Form I-294 that they 

are not allowed to return at any time. (Doc. 18 at 3.) The government argued that

Mr. Avalos-Gonzales was essentially a mine-run offender: “Many defendants charged

  with illegally re-entering the United States after deporation unlawfully entered the

country for economic reasons.” (Doc. 18 at 4.) “If the motivation of seeking 

employement was sufficient to justify a deviation from the advisory sentencing 

guideline range, more defendants would qualify for the deviation than those who

 would not. This fa c tor does not d i s t ingui sh h im from other indiv iduals who are

s imi lar ly s i tuat ed .” (Doc. 18 at 4 (emphasis added).) The government cited United 

States v. Esparza-Estrada, 2007 WL 3194849 (10th Cir. 2007), for the proposition that

the desire to sent money to one’s mother does not remove defendant from the

“heartland” and instead puts him “squarely within the zone.”

  The government did not offer any reasons why the 41-51 month guideline

sentence was appropriate, except that it was the guideline sentence.

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Sentencing proceeding.

  At sentencing, counsel for Mr. Avalos-Gonzales stressed that the guideline

recommended sentence was just one of the factors to be considered under § 3553.

She argued that § 3553 mandated a reasonable sentence, and that in this particular case,

a sentence of 18 to 24 months “would be adequate to communicate the message that

needs to be communicated to him, which is that he cannot return to the United States

in the future, probably will never be able to return oto the United States legally.”

(Doc. 30 at 3.) She and Mr. Avalos-Gonzales spoke to the problems in his family,

two young daughters, and his wife’s health problems. Counsel pointed out that his jail

sentence for his California offense had obviously had the effect of rehabilitating him

from that behavior.

  The government argued that there was nothing to distinguish Mr. Avalos-

Gonzales’ sad story from the “heartland”, from the many other defendants the court

sees. The government also argued that while Mr. Avalos-Gonzales might well be due

some sort of a reduction, the court should not reduce his sentence to the point where

it was like the kind of sentence he would have gotten had he taken the fast track. The

government’s language in the argument is important:

  There is nothing that really distinguishes thisdefendant from any to the others that the Court sees. Andthat’s the problem with, you know, with 3553 variances, isthat this defendant really is just in the heartland of—and Iknow I’m using departure language, but it’s really in theheartland of similarly charged defendants. His criminalhistory is, is pretty old, and I would acknowledge that. But

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I don’t really think that this is anything outside of what wenormally see. So therefore, I mean the history, you know,the characteristics and history of the defendant and thenature of the offense, it’s just really the same as any of these other cases.

Now, I will say that this defendant would have beenat one time eligible for the fast track, and he decided not totake the fast-track offer in order to file this Memorandum,to ask the Court for a variance. Now, if he had beeneligible for the fast-tracked [sic], that would have [been] atwo-level reduction to his guideline offense level, down tooffense level 19.

But, so I would, if the Court is considering a

deviation I would, I would urge the Court not to deviate tothe point where he gets to where he would have been if hehad taken the fact track, because it just becomes a dis-incentive for people to take the fact track and then thegovernment has to—the point of the fast track is that it’s afast rack and the government doesn’t have ot respond tosentencing memoranda. But at the same time I willconcede that this defendant, other than filing his sentencing memorandum, he didn’t put the government through any other paces. He didn’t require the government to, to indicthim. He didn’t require the government to prepare for trial.

  And so I guess, if the Court’s incline to some kind of adeviation I would suggest that the deviation be theequivalent of one guideline offense level form offense level21, which would take him to offense level 20. That wouldbe a reduction but it wouldn’t get him back to where he

  would have been if he had accepted the fast track. Andagain, that would kind of defeat the purpose of having afast-track program. And that’s all I have to say.

(Doc. 30 at 7-9.)

Counsel for Mr. Avalos-Gonzales responded that acceptance of fast-track or

not is not a relevant sentencing consideration. (Doc. 30 at 9.) She pointed out that

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the guideline calculation is only one point out of about six or seven that the court

must consider under § 3553. She pointed out that the guidelines have changed over

time, and there is nothing magic about the guidelines. An 18 to 24 month sentence

  was, in this case, sufficient but not greater than necessary to achieve the goals of 

sentencing this defendant on this offense.

  The representative from Probation who stood in for the preparer of the

presentence report focused on the prior criminal offense in California, and that there

 was a firearm present at the site of the arrest, and total amount of methamphetamine

involved was one-half pound. Defense counsel responded that Mr. Avalos-Gonzales

 was not in possession of either the weapon nor that amount of drugs—he possessed a

small amount, noted only as a “bundle.” These were not facts that could be

ascertained with any precision. (Doc. 30 at 10-11.)

Sentence imposed and reasons. 

  The district court reasoned that it had considered the various facts and

arguments, but was convinced not to apply a variance by the fact that there was

allegedly a firearm in the area of Mr. Avalos-Gonzales’ prior arrest, as well as the one-

half pound of methamphetamine. (Doc. 30 at 12.) The district court called these

things “the thing that bothers me about the defendant’s history.” (Id.) The court

sentenced Mr. Avalos-Gonzales to 41 months, the low end of the guideline advisory 

range.

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 A RGUMENT 

I.   THE DISTRICT COURT R ELIED ON  A N IMPROPER  SENTENCING

F ACTOR  —THAT IS,   THE IDEA   THAT I T MUST GIVE  A   SENTENCE

EXCEEDING  WHAT MR .  A  VALOS-GONZALES  WOULD H AVE R ECEIVED

H AD HE  T AKEN  THE F AST-TRACK  —INSTEAD OF MR .   A  VALOS-GONZALES’ INDIVIDUALIZED CIRCUMSTANCES.

 The government at the sentencing hearing conceded that Mr. Avalos-Gonzales

 was probably due a variance in his sentence, at least down to offense level 20. At the

government’s request, the district court considered the idea that it should impose a

sentence higher than the fast-track sentence to which Mr. Avalos-Gonzales would

have been entitled as a significant factor in this case. The government did not want

the sentence to equal or resemble a fast-track sentence, because Mr. Avalos-Gonzales

had chosen to file a sentencing memorandum that required a less-than-four-page

response from the government. Even though the government admitted that Mr.

  Avalos-Gonzales had not caused much work on the part of the government, the

government argued that imposing a sentence equal or resembling a fast-track sentence

 would encourage other defendants to forgo the fast-track, and cause the government

more work.This simply is not a legally relevant sentencing factor in the post Gall and

Kimbough world. In its most recent cases, Rita v. United States , 127 S. Ct. 2456

(2007), Kimbrough v. United States , 128 S. Ct. 558 (2007) and Gall v. United States , 128 S.

Ct. 586 (2007), and also in Cunningham v. California , 127 S. Ct. 856 (2007), the Supreme

Court gave substantive and procedural import to the Booker remedy, making clear that

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Section 3553(a) is the controlling sentencing law and rejecting the devices that were

used after Booker  to maintain a de facto advisory-but-mandatory guideline system. The

“Guidelines are only one of the factors to consider when imposing sentence.” Gall ,

128 S. Ct. at 602. The Guidelines, “formerly mandatory, now serve as one factor

among several courts must consider in determining an appropriate sentence.”

Kimbrough , 128 S. Ct. at 564. “The statute, as modified by  Booker , contains an

overarching provision  instructing district courts to ‘impose a sentence sufficient, but

not greater than necessary,’ to achieve the goals of sentencing.” Kimbrough , at 570.

  There are a myriad of factors that a court must consider in sentencing--federal

sentencing is “a task calling on a district court’s unique familiarity with the facts and

circumstances of a case and its judgment in balancing a host of incommensurate and

disparate considerations, ranging from the degree of the defendant’s cooperation and

remorse to the need for deterring potential future offenders.” United States v. Ruiz- 

Terrazas , 477 F.3d 1196, 1201 (10th Cir. 2007). However, the viability of the

government’s fast-track program, and the government’s desire to ensure that every 

defendant who chooses to forgo that program receive a higher sentence than that

available under the program, is not a permissible factor under either the guidelines or

§ 3553(a) mandates. See United States v. Williams , --- F.3d ----, 2007 WL 4563668, 2007

U.S. App. LEXIS 30076 (3d Cir. Dec. 31, 2007) (“Sentencing is primarily the

responsibility of the district courts, not the probation office, not the government, not

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the defense, and not the appellate courts, although those parties may provide valuable

insights.”)

  A. Using the Disincentive of Fast-Track To Others As A Factor To Increase the Sentence (Decreasethe Variance) Violates The Tenet Of § 3553 And

 The Booker/Rita/Gall Rule That A SentenceMust Be Individualized To This ParticularDefendant and This Offense.

In Gall and Kimbrough, the Court rejected mindless uniformity and required that

individualized consideration be given to any particular defendant’s case. The Court

recognized that a “deferential abuse-of-discretion standard could successfully  balance  

the need to reduce unjustifiable  disparities across the Nation and consider every 

convicted person as an individual .” Id . at 598 n.8 (internal quotation marks and

citations omitted) (emphasis supplied). However, by simply “correctly calculat[ing]

and review[ing] the guideline range,” a judge “necessarily [gives] significant weight and

consideration to the need to avoid unwarranted disparities.” Gall , 128 S. Ct. at 599.

 The Court recognized that unwarranted uniformity is every bit as objectionable

as unwarranted disparity: “[I]t is perfectly clear that the District Judge . . . also

considered the need to avoid unwarranted similarities  among other co-conspirators

 who were not similarly situated.” Id . at 600 (emphasis in original). 

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B. Doesn’t the Fast-Track Sentence Factor Influence The Sentencing Analysis In The Opposite Way— Illustrating that the system employs disparatetreatment of identical offenders, depending on theamount of response the government is required togive in a given case?

C. There is No Longer Such Thing As A Mine-Run (“Heartland”) Case.   The government argued in its memorandum and in its presentation to the

district court that the court should not depart from the guideline advisory sentence,

because none of the facts about Mr. Avalos-Gonzales’ family, his young children, his

  wife’s health, and their need for his employment made his case any different than

many of the other cases the court heard on a regular basis. The thrust of the

government’s argument was that Mr. Avalos-Gonzales needed to show that his case

 was extraordinary, as in “out of the heartland” in the government’s words, in order to

show his case was worthy of a variance from the guidelines.

 That is not the law, not after Rita , Gall , and Kimbrough. Through those cases,

the Supreme Court has established that blind adherence to the guidelines is as harmful

as unreasoned departure. The Supreme Court has established that a defendant does

not need to show her case is extraordinary in order to be entitled to a variance.

District court judges must now, after Rita,  Gall  and Kimbrough , consider and

respond to nonfrivolous arguments that the guideline sentence itself reflects an

unsound judgment because it fails properly to reflect § 3553(a) considerations, does

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not treat defendant characteristics in the proper way, or that a different sentence is

appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007).

District courts are no longer required, or permitted, to simply defer to Commission

policies. Id . Courts of appeals may not “grant greater factfinding leeway to [the

Commission] than to [the] district judge.” Id . at 2463.

Gall  is an example of the Guidelines not treating defendant characteristics in

the proper way, i.e., as required by 18 U.S.C. § 3553(a). There, the Court upheld a

non- guideline sentence in which the judge imposed a sentence of probation based on

characteristics of the defendant which are required to be considered under §

3553(a)(1) and must be taken into account in order to avoid unwarranted disparities

and unwarranted similarities under § 3553(a)(6), but which the Guidelines ignore or

deem not ordinarily relevant, including age and immaturity, voluntary withdrawal

from a conspiracy, and self rehabilitation through education, employment, and

discontinuing the use of drugs. Gall , 128 S. Ct. at 598-602. Several of the factors

relevant in Gall   —immaturity (at the time of the prior offense), employment,

rehabilitation and withdrawal from the drug culture, and lawfulness—are present in

Mr. Avalos-Gonzales’ case. Gall teaches us that his case need not be extraordinary for

those factors to come into play, and justify a variance.

Kimbrough   was an “unremarkable” “mine-run” case. 128 S. Ct. at 575. It was

not only not extraordinary, it was classic “heartland,” meaning just the kind of case to

  which the guideline in question was supposed to apply. However, a variance was

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called for in that case, because the guideline itself reflected unsound judgment in that

it failed properly to reflect § 3553(a) considerations. 128 S. Ct. at 575. There, the

Court upheld a below-guideline sentence in an ordinary crack trafficking case because

the crack guidelines (like all of the drug guidelines) were not based on past practice at

their inception, and reflect unsound judgment in light of the purposes of sentencing 

and the need to avoid unwarranted disparities. The Court said: “In the main,” the

Commission used an “empirical approach based on data about past practices,

including 10,000 presentence investigation reports,” but it “did not use this empirical

approach in developing the Guidelines sentences for drug-trafficking offenses.” Id . at

567. When a guideline is not the product of “empirical data and national experience,”

it is not an abuse of discretion to conclude that it “yields a sentence ‘greater than

necessary’ to achieve §3553(a)’s purposes, even in a mine-run case .” Id . at 575

(emphasis added).

Counsel for Mr. Avalos-Gonzales made a similar argument about the

unsoundness of the compounding of the sentence based on both criminal history 

analysis and the aggravated felony analysis—increasing the sentence many times

over—for long-past conduct that was victimless, non-violent, and a one-time episode.

(Mr. Avalos-Gonzales’ sentence was compounded in the same manner for this prior

conduct as it would have been for a violent crime with a weapon.) She also argued

about the unsoundness of the government’s inconsistent and confusing policies that

allow a person to be simply deported when found in this country in 2007, but when

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found a few months later in this country with exactly the same criminal history, to be

facing almost four years or more in federal prison. Finally, she argued that the

guideline advisory sentence range was unsound in that is was more than was necessary 

to achieve the sentencing goals of § 3553(a).

 After Kimbrough , the courts of appeals “must re-examine [their] case law”

holding or suggesting that a district court must presume the guidelines are reasonable,

or conversely, that “courts were not authorized to find that the guidelines themselves,

or that the statutes on which they are based, are unreasonable.” United States v.

 Marshall , slip op., 2008 WL 55989 at **8-9 (7th Cir. Jan. 4, 2008). For example, the

analysis in United States v. Pitts , 2008 U.S. App. LEXIS 1384 (3d Cir. Jan. 24, 2008)

(unpublished) is persuasive. The Pitts court  (reversed where the district court “may 

have” been mistaken about the extent of its discretion to impose a non-Guidelines

sentence, since the district court expressed that the case must be extraordinary, or

outside the heartland, to warrant a variance. The appellate court said:

 Although our post-Booker precedent makes it clear that theGuidelines are not to be taken lightly, a district court canproperly deviate from the prescribed range even in theabsence of extraordinary circumstances. Gall v. United States ,128 S. Ct. 586, 594-95, 169 L. Ed. 2d 445 (2007); United 

States v. Booker , 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d621 (2005); Cooper , [437 F.3d 324], 331 & n. 10 [(3d Cir.2006)]. Accordingly, because the record suggests that theDistrict Court may have been laboring under the mistakenbelief that the Guidelines are not to be deviated fromabsent such circumstances, we cannot affirm the District

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Court’s sentencing determination. United States v. Gunter ,462 F.3d 237, 247 (3d Cir. 2006).

D. Not All Of The Guidelines Are Necessarily Accurate or Empirical.

In an ideal situation, all of the guidelines would be based on empirical evidence

in support of the suggested sentence. In fact, “the Commission, either on its own

initiative or in response to congressional actions, established guideline ranges that

 were significantly more severe than past practice” for “the most frequently sentenced

offenses in the federal courts,” including white collar offenses, drug trafficking, and

immigration offenses. U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing: 

  An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of 

Sentencing Reform at 47 (2004), citing U.S. Sentencing Commission, Supplementary Report 

on the Initial Sentencing Guidelines and Policy Statements (1987). These stark increases were

not based on any hard science.

Since then, the Commission has amended the guidelines in a “one-way upward

ratchet increasingly divorced from considerations of sound public policy and even

from the commonsense judgments of frontline sentencing professionals who apply 

the rules.” See Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A

Structural Analysis , 105 Colum. L. Rev. 1315, 1319-20 (2005); U.S. Sentencing 

Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal 

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Criminal Justice System is Achieving the Goals of Sentencing Reform 47-55, 76, 82, 91, 94, 102-

06, 111-15, 117, 122, 131-35, 140-42 (2004).

In fact, the emerging social science literature suggests that many of the

guideline sentencing provisions are flawed, if not downright wrong. U.S. Sentencing 

Comm’n, Measuring Recidivism: The Criminal History Computation of the 

Federal Sentencing Guidelines (May 2004) (hereinafter “ Measuring Recidivism ”); U.S.

Sentencing Comm’n, Recidivism and the First Offender  (May 2004); U.S. Sentencing 

Comm’n, A Comparison of the Federal Sentencing Guidelines Criminal History Category and the 

U.S. Parole Commission Salient Factor Score  (Jan. 2005); see United States v. Fernandez , 436

F. Supp. 2d 983 (E.D. Wis. 2006) (relying on Fifteen Year 

Report ’s discussion of failures of the career offender guideline to impose non-guideline

sentence); United States v. Germosen , 473 F. Supp. 2d 221 (D. Mass. 2007) (relying on

Fifteen Year Report to point out flaws in guideline calculation).

Even the government’s own research points to serious flaws in the guideline

calculations in certain areas, including how the guidelines count drug offenses. See  

U.S. Dep’t of Justice,   An Analysis of Non-Violent Drug Offenders with Minimal Criminal 

Histories , Executive Summary (Feb. 1994), available at

http://www.fd.org/pdf_lib/1994%20DoJ%20study%20part%201.pdf ; The Sentencing 

Project, Incarceration and Crime: A Complex Relationship 7-8 (2005), available at

http://www.sentencingproject.org/pdfs/incarceration-crime.pdf ; Paul J. Hofer & Courtney 

Semisch, Examining Changes in Federal Sentence Severity: 1980-1998 , 12 Fed. Sent. Rep. 12,

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1999 WL 1458615 (July/August 1999); Miles D. Harar, Do Guideline Sentences for Low- 

Risk Drug Traffickers Achieve Their Stated Purposes? , 7 Fed. Sent. Rep. 22, 1994 WL

502677 (July/Aug. 1994).

Specifically, the social science by academia and by the government  tends to show 

that many of the factors that the guidelines disfavored or forbid (“heartland”) are very 

significant to the goals and effects of sentencing. Factors like the fact that the

defendant cares for young children, see, e.g.,Ross D. Parke & K. Alison Clarke-Stewart ,

From Prison to Home: Effects of Parental Incarceration on Young Children  (Dec. 2001),

presented at U.S. Dep’t of Health and Human Services National Policy Conference,

“From Prison to Home: The Effect of Incarceration and Reentry on Children,

Families and Communities” (2002) (discussing impact of parental incarceration on

children and benefits of alternatives to incarceration); U.S. Dep’t of Justice, Office of 

  Juvenile Justice and Delinquency Prevention, Risk Factors for Delinquency: An Overview  

(2001) (discussing link between aggression, drug abuse, and delinquency in children to

several factors, including separation from parents); The Sentencing Project,

Incarceration and Crime: A Complex Relationship 7 (2005) (“The persistent removal of 

persons from the community to prison and their eventual return has a destabilizing 

effect that has been demonstrated to fray family and community bonds, and

contribute to an increase in recidivism and future criminality.”); Patricia M. Wald,

“What About the Kids?’: Parenting Issues in Sentencing , 8 Fed. Sent. Rep. 137 (1995)

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(discussing growing body of research showing that children fare better in their

parents’ care than in foster care or elsewhere). 

  As another example, after Booker  many district courts have issued decisions

showing that the career offender guideline fails to distinguish between serious and

non-serious offenses. In United States v. Ennis , 468 F. Supp. 2d 228, 234 & n.11 (D.

Mass. 2006), the judge pointed out that the definition of career offender predicates

covers misdemeanor convictions, contrary to 28 U.S.C. § 994(h), from states with

misdemeanors punishable by more than one year. In United States v. Baird , slip op.,

2008 WL 151258 (D. Neb. Jan. 11, 2008), the judge described how the child

pornography guideline was not based on empirical evidence.

 And as another example, in at least three cases, judges have declined to follow 

the “bad math” embodied in the new marijuana equivalency table for crack in multi-

drug cases. See United States v. Molina , slip op., 2008 WL 544703 (E.D.N.Y., Feb. 28,

2008) United States v. Horta , __ F.Supp.2d __, 2008 WL 445893 (D. Me. 2008); United 

States v. Watkins , __ F. Supp. 2d __, 2008 WL

152901 (D. Tenn. 2008).

District court have found other flaws, too. In United States v. Quinn , 472 F.

Supp. 2d 104, 111 (D. Mass. 2007), the judge identified a “structural problem” in the

relevant conduct rule as demonstrated by two different probation officers

“calculating” ranges of 37-46 months and 151-188 months for two identically-situated

defendants in the same case. In United States v. Adelson , 441 F. Supp. 2d 506 (S.D.N.Y.

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2006), the judge explained how calculations under the fraud guideline based on

unintended loss and various overlapping adjustments resulted in a “patently absurd”

life sentence. United States v. Gener , Crim. No. 04-424-17, 2005 WL 2838984 *5

(S.D.N.Y. Oct. 26, 2005) illustrates the problem with including juvenile adjudications

 with a sentence of 60 days or more in the criminal history score where the juvenile

offense is trivial and the length of confinement results from family circumstances and

need for social services and intervention, not the severity of the offense.

 As Sixth Circuit Judge Merritt’s remarkable dissent in United States v. Sedore , __ 

F.3d __, 2008 WL141046 (6th Cir. Jan. 11, 2008), warns: “Except for those judges and

lawyers who prefer to continue routine conformity to the old pre- Blakely-Booker

process of guideline sentencing, there is widespread disapproval of the present

muddled system. This is because, in the main, the old system is just continuing on as

though nothing had happened – continuing under the pretext that the guidelines are

only ‘advisory’ instead of being considered only as a starting point against the

backdrop of the more sensible and humane penalogical goals set out in § 3553(a),

 Title 18. This case is one more example of the continuing problem, the problem of 

guidelineism, or ‘guidelinitis,’ the inability of most federal courts to break their habit

of mechanically relying just on the guidelines alone.” Id. at *9 (Merritt, C.J.,

dissenting).

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II.   THE SENTENCE IMPOSED ON MR .   A  VALOS-GONZALES IS

UNREASONABLE IN THAT  THE COURT R ELIED UPON DISPUTED JUDGE-FOUND F ACTS (NOT PROVEN  TO  A    JURY  BEYOND  A   R EASONABLE

DOUBT)  A S I TS R EASONS FOR NOT R EDUCING THE SENTENCE TO THAT

R EQUIRED FOR  THE § 3553 PURPOSES.

  The district court’s given reason for not giving a variance to Mr. Avalos-

Gonzales was based on two disputed, judge-found facts—the fact that there was a

firearm somehow associated with him at the time of his arrest on his prior crime, and

the fact that the one-half pound of methamphetamine reportedly recovered from the

arrest scene was associated with him.

  The requirement of proof beyond a reasonable doubt under the Fifth

 Amendment Due Process Clause protects against factual error whenever a potential

loss of liberty is at stake. In re Winship, 397 U.S. 358, 363-64, 368 (1970). As Winship 

itself involved judicial factfinding in a juvenile delinquency proceeding, this is so

regardless of the identity of the factfinder and whether or not the finding results in

“conviction” of a “crime.” Facts to which the reasonable doubt standard applies are

not just those that go to guilt or innocence, but those that increase punishment.

 Mullaney v. Wilbur , 421 U.S. 684, 697-99 (1975).

 The Supreme Court reaffirmed these principles in Apprendi : “Since Winship, we

have made clear beyond peradventure that Winship’s due process and associated jury 

protections extend, to some degree, ‘to determinations that [go] not to a defendant’s

guilt or innocence, but simply to the length of his sentence.’ This was a primary lesson

of  Mullaney .”  Apprendi , 530 U.S. at 484. See also Jones , 526 U.S. at 240-43 & n.6;

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Cunningham , 127 S. Ct. at 863-64 (referring to independent right to proof beyond a

reasonable doubt and tracing origins of recent Sixth Amendment jurisprudence to

doctrinal discussions of Winship and Mullaney in Jones  ).

  Though the Supreme Court has considered the Fifth Amendment right to

proof beyond a reasonable doubt in tandem with the Sixth Amendment jury trial right

in recent cases, Apprendi , 530 U.S. at 478, it remains clear that the Fifth Amendment

due process right remains distinct, id. at 476-77, and applies equally to judicial

factfinding. See Schriro v. Summerlin , 542 U.S. 348, 358 (2004) (despite the absence of 

jury factfinding, judge’s use of the reasonable doubt standard assured that accuracy 

  was not seriously diminished). Thus, Booker ’s resolution of the Sixth Amendment

issue, which concerned the reservation of control in the people against governmental

power, did not address what

standard of proof a  judge  must use under the Fifth Amendment to find facts that

expose a defendant to additional loss of liberty. Texas v. Cobb , 532 U.S. 162, 169

(2001) (“Constitutional rights are not defined by inferences from opinions which did

not address the question at issue.”).

 Judicial sentencing factfinding exposes the defendant to loss of liberty, and is

therefore required to be conducted based on proof beyond a reasonable doubt under

Winship,  Mullaney , and  Apprendi . The Guidelines’ advice to find facts by a

“preponderance” of the “probabl[y] accurate” “information,” including hearsay,

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USSG § 6A1.3, p.s., is clearly deficient. Moreover, the Commission is not empowered

to advise that the preponderance

standard “is appropriate to meet due process concerns” because only courts are

empowered by our Constitution to announce minimum constitutional standards, and

the Commission is not a court. See Mistretta v. United States , 488 U.S. 361, 384-85, 393-

94, 408 (1989). U.S. Sentencing 

Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy 

Statements at 48 (1987).

In his concurrence in Gall , Justice Scalia repeated his invitation, first made in

Rita , 127 S. Ct. at 2479 (Scalia, J., concurring), to bring as-applied Sixth Amendment

challenges. Gall , 128 S. Ct. at 602-03 (Scalia, J., concurring); see also Rita , 127 S. Ct. at

2473 (Stevens, J., concurring) (agreeing that such a challenge may be brought).

Noting that “the Court has not foreclosed as-applied constitutional challenges,”

  Justice Scalia states that the “door therefore remains open for a defendant to

demonstrate that his sentence, whether inside or outside the advisory Guidelines

range, would not have been upheld but for the existence of a fact found by the

sentencing judge and not by the jury.” Gall , 128 S. Ct. at 602-03 (Scalia, J.,

concurring).

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Conclusion

For the foregoing reasons, Mr. Avalos-Gonzales respectfully requests this

Court to vacate his sentence, remand for sentencing with a variance analysis and full

consideration of § 3553 factors.

/S/ electronically submitted

 ______________  TRACE L. R  ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.Santa Fe, New Mexico 87501

505-690-7969

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Certificate of Service

I hereby certify that (1) on Monday, July 7, 2008, I caused to be deposited in

the United States mail, with First Class Postage prepaid, a true and correct copy of the

foregoing Brief together with a copy of this Certificate of Service, addressed to

Norman Cairnes and William J. Pflugrath, Assistant United States Attorney, Post

Office Box 607, Albuquerque, New Mexico 87103; (2) a copy of this brief in chief 

  was provided to by electronic mail on November 21, 2007; (3) all required privacy 

redactions have been made, and, with the exception of those redactions, this

document is an exact copy of the written document filed with the Clerk; and (4) this

submission has been scanned for viruses with the most recent version of OS X disk 

utility (Ver. 10.5), and, according to that utility, this digital submission is free of 

 viruses.

/S/ electronically submitted

 ______________  TRACE L. R  ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.

Santa Fe, New Mexico 87501505-690-7969

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Certificate of Compliance with Rule 32(A)(7)

I, Trace Rabern, counsel for defendant-appellant, certify that this brief in chief 

conforms to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i). The brief is

typed on a proportionally-spaced 14-point typeface (Garamond). Including table of 

contents, table of authorities, and certificate of service, it contains 7,193 words. To

count the words I relied on MS Word 2008 for the Mac.

I certify that this certificate of compliance is true and correct to the best of my 

knowledge and belief formed after reasonable inquiry.

/S/ electronically submitted

 ______________  TRACE L. R  ABERN, ESQ. Attorney for Appellant1626 Ben Hur Dr.Santa Fe, New Mexico 87501

505-690-796