United States v. David Sanchez, Jr.
Opinion
*680
David Sanchez, Jr., was serving a term of federal supervised release when he killed someone with a knife. Texas prosecutors dismissed the murder charge, concluding that Sanchez had acted in justifiable self-defense. But Sanchez's conduct still undisputedly violated the condition of supervised release prohibiting him from possessing a deadly weapon. So the district court convened a hearing to assess whether his term of supervised release should be revoked and a revocation sentence imposed.
See
After taking evidence, the district court determined that, contrary to the judgment of Texas prosecutors, Sanchez had not acted justifiably. Specifically, the district court found that Sanchez had unreasonably failed to de-escalate the situation in the lead-up to the homicide. The district court thus determined that an above-Guidelines revocation sentence of 32 months' imprisonment was necessary to protect the public and deter Sanchez's future criminal conduct.
Sanchez appeals that revocation sentence on two grounds. First, he says, the district court improperly based the sentence on the retributive need to punish his post-conviction conduct, which the revocation statute tells us is off limits.
See
I
Federal sentences that include a term of imprisonment may sometimes append a term of supervised release, during which time the defendant is let out of prison subject to certain enumerated conditions.
See
Sanchez had been on supervised release for 14 months when he committed homicide. He received a call one night from his recent ex-girlfriend. She told him that a third person, Jose Hernandez, "wanted to fight him one-on-one." Sanchez later told police that he responded: "You know what, fuck you, come over here. We will fight one-on-one and get it over with." Twenty minutes later, Hernandez arrived at Sanchez's apartment with a group of between five and ten other people. Anticipating a fight, Sanchez grabbed a knife and met them outside. Sanchez stabbed Hernandez. Hernandez died from his wound. A Texas grand jury initially charged Sanchez with murder, but prosecutors dismissed the case ten months later on the ground that Sanchez "had used justifiable deadly force pursuant to Texas Penal Code [sections] 9.31 [and] 9.32."
*681 At that point, probation officers informed the federal district court (who had imposed the term of supervised release) that Sanchez had violated his conditions of supervised release by "possess[ing] a dangerous weapon." The probation officers further alleged that Sanchez had violated more of his supervised-release conditions by testing positive for cocaine, but those drug-use allegations played no apparent role in the revocation hearing that followed.
Sanchez pleaded true to all charges at the revocation hearing's outset. Nonetheless, the district court proceeded to inquire extensively into whether Sanchez had reasonably feared for his life, and, in particular, whether he could have done more to extricate himself from the situation. Some of the district court's questions and comments included:
• "He's on supervised release. He gets a call that his girlfriend says somebody is going to come over to do him harm. He does not call the police. He gets a knife and he goes out and kills somebody is the bottom line."
• "He's on my supervised release.... And he didn't call the police before he put a knife in his pocket and went out to fight somebody with a knife."
• "Is there any dispute that [Sanchez] said [in response to the phone call from his ex-girlfriend], 'You know where I live'?"
• "In front of the whole mob [Sanchez] does this [read: attacks Hernandez]? ... He couldn't have been too scared of the mob."
• "Did anybody else have any weapons of any kind? ... And did [Sanchez] have any reason to think that anybody was bringing any kind of deadly force against him? ... Who testified that [Sanchez] was being assaulted? ... Did [Sanchez] have any marks on him at all?"
• "He arms himself with a deadly weapon. There was no indication anybody else had a deadly weapon of any kind."
The district court also repeatedly emphasized the fact that Hernandez had died, referring to him as "the dead person" who had been "slashed open" and whom Sanchez had "stabbed and killed."
When defense counsel objected that the district court was improperly forcing Sanchez to re-litigate the dismissed murder case-which Texas authorities had already deemed a nonstarter-the following exchange occurred:
MR. MORALES: I think we should play all of [the videos]. If we're going to try this as a murder case, then we should play all of them, and that's-
THE COURT: This is a preponderance of the evidence, Mr. Morales.
MR. MORALES: Yes, Your Honor.
THE COURT: I'm not here for beyond a reasonable doubt.
MR. MORALES: Your Honor, but that's not-
THE COURT: This is preponderance of the evidence.
Defense counsel later reframed his objection, contending that the district court could not drive up Sanchez's sentence "because of the outcome" that had resulted from the supervised-release violation-namely, the stabbing death of Hernandez. In response, the district court stated: "I have the authority to go as high as I want to.... I have the powers I feel necessary to protect the public."
The district court then turned to the sentencing factors enumerated in
*682 § 3553(a)(2)(B), (C). The district court's sentencing colloquy provided:
I've looked at the factors of 3553(a), except for his history, I'm not sure it's relevant, but of course, he ... pleaded true to carrying a dangerous weapon, possessing a dangerous weapon. And he's just ... demonstrated what can happen when you do that, and our man is dead by his dangerous weapon.
And I'm looking at deterring future criminal conduct, protecting the public-also I notice from the video that you had me watch-and I'm glad I did-at least it was 20 minutes ... from the time you got the call to the time the people came to the apartment, and there at no time was a phone call made to the police or did he attempt to put himself out of harm's way, if he was in harm's way; no indication that anybody was armed but him and no testimony that anybody laid a hand on him.
Defense counsel recommended a sentence within the advisory range calculated from the policy statements in the U.S. Sentencing Guidelines Manual: 5 to 11 months' imprisonment. The Government made no recommendation. The district court imposed a prison sentence of 32 months. Sanchez appealed.
II
Because we assume without deciding that Sanchez adequately preserved his objections,
see
Fed. R. Crim. P. 51(b), we follow the law of our circuit and review his revocation sentence under the "plainly unreasonable" standard,
United States v. Warren
,
*683 A
Sanchez argues primarily that the district court fashioned his revocation sentence based on a perceived need for retribution, which Congress and our caselaw plainly disallow.
See
General sentencing considerations are set forth in
the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner....
§ 3553(a)(2). "These four considerations-retribution, deterrence, incapacitation, and rehabilitation-are the four purposes of sentencing generally, and a court must fashion a sentence 'to achieve the[se] purposes ... to the extent that they are applicable' in a given case."
Tapia v. United States
,
But retribution is off the table when it comes to revocation. Revocation sentences are governed by a separate statute,
• "to reflect the seriousness of the [supervised-release violation 3 ]";
*684 • "to promote respect for the law"; or
• "to provide just punishment for the [supervised-release violation]."
§ 3553(a)(2)(A) ;
see also
§ 3583(e) ;
Rivera
,
Here, however, we are unpersuaded that the district court's sentence took account of retribution. Our reason for thinking so is straightforward: that is not what the district court said it was doing. To the contrary, a plain reading of the transcript shows that the district court (1) found as a factual matter that Sanchez recklessly failed to take available, reasonable steps to remove himself from a situation in which he intended to use a deadly weapon; (2) based on that factual finding, implicitly found that Sanchez posed a potential future criminal threat to the public; and (3) explicitly varied Sanchez's sentence upward to account for the two permissible purposes of revocation sentences: deterring criminal conduct and protecting the public. See § 3553(a)(2)(B), (C). (Whether those purposes adequately justify the sentence on the facts of this case is a separate matter we discuss below.)
This case also differs from the two others in which we have found an improper focus on retribution, in that the district court here never stated that it was basing its sentence on retributive factors. In
United States v. Miller
, by contrast, the district court quoted § 3553(a)(2)(A) and explained that it was varying upward due to the defendant's "lack of 'respect for the law.' "
In response, Sanchez posits that the district court must have harbored a retributive purpose because its entire focus at the revocation hearing was "re-litigat[ing] the dismissed murder case" so it could "ma[k]e its own determination" whether Sanchez *685 acted justifiably. Appellant Br. 24-26. Sanchez's basic premise is difficult to dispute: there is no doubt that the district court used the hearing to evaluate Sanchez's conduct in the manner he suggests. But it does not follow, as Sanchez asserts, that the only purpose this inquiry could have served was to gauge the seriousness of Sanchez's conduct and the consonant need to punish him, id. at 26, such that the district court's judgment was "necessarily" retributive, id. at 28. Plainly, whether Sanchez's use of deadly force was justified also bears on his propensity to commit future crimes and/or threaten public safety (as we discuss below). 6 Those are permissible purposes of a revocation sentence. And those are the only purposes the district court actually invoked. Even if the district court's inquiry could theoretically have been relevant to an impermissible retributive purpose, we will not assume that the district court in fact had such a purpose in mind-at least where the only purposes the district court actually mentioned were permissible ones. In short, without something in the record to plausibly suggest that the district court based its sentence on the need for retribution (as opposed to deterrence or incapacitation), Sanchez's arguments are unavailing.
B
In the alternative, Sanchez argues that, even if the district court did not err by taking account of retribution, the sentence was still plainly substantively unreasonable. Specifically, he contends (1) that the needs for deterrence and incapacitation, though relevant, cannot justify a sentence almost three times the top of the Guidelines' advisory range; and (2) that the district court abused its discretion by affording no weight whatsoever to Texas's considered decision not to prosecute Sanchez for the same underlying conduct.
We review the substance of a sentencing decision for abuse of discretion.
Gall
,
*686 As to Sanchez's first line of argument, which challenges the district court's reliance on the needs for deterrence and incapacitation, see § 3553(a)(2)(B), (C), we discern no abuse of discretion. The district court made factual findings-uncontested on appeal-that Sanchez violated his conditions of supervised release by engaging in reckless, dangerous conduct. When Sanchez received a call from Hernandez threatening to fight him "one-on-one," Sanchez reacted not by calling the police or taking other steps to avoid the fight, but by accepting the challenge and inviting Hernandez to come over. The district court found that by the time Hernandez arrived, Sanchez still had not called the police. Instead, he had taken a knife from his apartment with the specific intent of attacking Hernandez. The district court also found that there was no reason to believe that anyone else at the scene had a deadly weapon, rendering Sanchez's use of the knife disproportionate and unnecessary. Because the district court found that Sanchez did all this despite the condition of his supervised release expressly forbidding such conduct, the district court reasonably concluded that an above-Guidelines revocation sentence was necessary to accomplish what the term of supervised release had not: that is, deter Sanchez from similarly dangerous and potentially illegal conduct in the future. See § 3553(a)(2)(B). And because Sanchez's conduct undeniably created a significant risk of harm to the public (including to the member of the public whom Sanchez in fact killed), the district court was well-within its discretion to conclude that an above-Guidelines revocation sentence was necessary for the public's protection. See § 3553(a)(2)(C).
Sanchez counters that his knife-possession was not itself "criminal conduct" or a "crime[ ]" within the meaning of § 3553(a)(2)(B) or (C), but that is not necessarily the case. Texas criminalizes intentional homicide. Tex. Penal Code § 19.02. And although a potential defense exists if, among other things, "the actor reasonably believe[d] the force [wa]s immediately necessary to protect the actor against [another person's] use or attempted use of unlawful force," id. §§ 9.31(a), 9.32(a), the district court found "by a preponderance of the evidence" that Sanchez did not reasonably believe that those conditions were met. Sanchez also asserts that the stabbing was "not ... an unprovoked act of violence," but that fact is of no moment. The salient feature is that the stabbing was an avoidable act of violence, justifying the district court's reliance on the goals of deterrence and incapacitation.
As to Sanchez's second line of argument, which faults the district court for not addressing the Texas murder-charge dismissal, we see no obvious error. We find no case supporting Sanchez's position, nor does Sanchez offer one. (Indeed, this portion of Sanchez's argument features no authority at all.
See supra
note 7.) This is not to say, however, that the dismissal was
*687
unimportant. More than any federal court, Texas prosecutors are responsible for making Texas-law determinations as to what conduct and which individuals pose criminal threats to public safety. But because an error cannot be "obvious" without authority to support it,
United States v. Evans
,
III
Sanchez's revocation sentence is AFFIRMED.
Our circuit requires a showing of "obviousness" even for preserved objections to revocation sentences because of Congress's directive in
Specifically, § 3583(e)(3) permits district courts to impose revocation sentences only "after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)." This list omits the factors in § 3553(a)(2)(A) (i.e., retribution) and § 3553(a)(3) (i.e., "the kinds of sentences available"). The latter factor is presumably omitted as unnecessary because a revocation sentence by definition consists of a term of imprisonment (as opposed to the other kinds of sentences, i.e., a term of probation or a fine).
See
Section 3553(a)(2)(A) as written refers to the seriousness of and just punishment for "the offense," which our court implicitly has understood to mean the conduct that constituted the violation of the conditions of supervised release.
See
Rivera
,
Rehabilitation is similarly impermissible as a revocation-sentence purpose,
see
Of course, this is not to say that any use of words like "punish," "serious," or "respect" automatically renders a revocation sentence void. Mere
mention
of impermissible factors is acceptable; to constitute reversible error, our circuit has said, the forbidden factor must be "dominant."
Rivera
,
Similarly, the district court's "emphasis on the fact[ ] that a death resulted from the violation conduct," Appellant Br. 28, also bears on the magnitude of the need to "protect the public from further crimes of the defendant," § 3553(a)(2)(C).
Sanchez's argument on this front provides in full:
[W]hile the need for deterrence or protection of the public could carry some weight to support the sentence, those factors cannot justify the variance to [almost] three times the high end of the advisory range. It is unclear what criminal conduct is being deterred or who is being protected as a result of the imposition of a high sentence here, when: (1) Mr. Sanchez's violations, including the possession of the knife, were not criminal offenses; (2) the facts of the knife-possession violation establish that individuals came to Mr. Sanchez's home intending to harm him and Mr. Sanchez reacted, not that Mr. Sanchez committed an unprovoked act of violence; and (3) the jurisdiction with authority to punish the resulting death specifically determined that Mr. Sanchez's conduct was not criminal and did not warrant punishment.
Appellant Br. 36-37; accord id. at 28-29 (repeating that "Mr. Sanchez's possession of the knife was not a criminal offense" and that "the conduct leading to the death of Hernandez was separately prosecuted and determined not to be criminal at all"). These arguments are absent from Sanchez's reply brief.
The Government would have us affirm on the ground that the sentence was substantively justified by Sanchez's criminal history.
See
Appellee Br. 46-48. But that was the one § 3553(a) factor the district court expressly declined to consider. The Government's proffered justification is thus inconsistent with the transcript. Nonetheless, we exercise our discretion to affirm on unadvocated grounds supported by the record.
See
United States v. Nanda
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. David SANCHEZ, Jr., Defendant-Appellant
- Cited By
- 50 cases
- Status
- Published