Professional Documents
Culture Documents
08 2079 USAvAvalos Gonzales Brief
08 2079 USAvAvalos Gonzales Brief
08 2079 USAvAvalos Gonzales Brief
08-2079
_________________________________________
v.
NO ARGUMENT REQUESTED
_________________________________________
ii
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. 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. 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
iii
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
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
iv
Jurisdictional Statement
The District Court’s jurisdiction, see Fed. R. App. P. 28(a)(4)(A), arose under 18
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
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.
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
1
ISSUE PRESENTED FOR REVIEW
1
SOLE REASONS FOR NOT REDUCING THE SENTENCE TO THAT
REQUIRED FOR THE § 3553 PURPOSES?
2
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.
has a total offense level of 21, criminal history score of 3, and a criminal history
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.
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
the Memorandum, counsel explained that Mr. Avalos Gonzales returned to the
3
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
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
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.
4
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
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
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
5
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
Specifically counsel argued that the effect of the 1999 conviction on the
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
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
6
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-
recited how the guideline calculation was accurate, and therefore asked the court to
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
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
guideline range, more defendants would qualify for the deviation than those who
would not. This factor does not distinguish him from other individuals who are
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
The government did not offer any reasons why the 41-51 month guideline
7
Sentencing proceeding.
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,
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
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
8
I don’t really think that this is anything outside of what we
normally see. So therefore, I mean the history, you know,
the characteristics and history of the defendant and the
nature of the offense, it’s just really the same as any of
these other cases.
Now, I will say that this defendant would have been
at one time eligible for the fast track, and he decided not to
take the fast-track offer in order to file this Memorandum,
to ask the Court for a variance. Now, if he had been
eligible for the fast-tracked [sic], that would have [been] a
two-level reduction to his guideline offense level, down to
offense level 19.
(Doc. 30 at 7-9.)
not is not a relevant sentencing consideration. (Doc. 30 at 9.) She pointed out that
9
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
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
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.
10
ARGUMENT
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
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
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
11
Section 3553(a) is the controlling sentencing law and rejecting the devices that were
“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
not greater than necessary,’ to achieve the goals of sentencing.” Kimbrough, at 570.
sentencing is “a task calling on a district court’s unique familiarity with the facts 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
12
the defense, and not the appellate courts, although those parties may provide valuable
insights.”)
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
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.
as unwarranted disparity: “[I]t is perfectly clear that the District Judge . . . also
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 required to
give in a given case?
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
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
District court judges must now, after Rita, Gall and Kimbrough, consider and
14
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).
policies. Id. Courts of appeals may not “grant greater factfinding leeway to [the
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
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
discontinuing the use of drugs. Gall, 128 S. Ct. at 598-602. Several of the factors
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
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
15
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
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
including 10,000 presentence investigation reports,” but it “did not use this empirical
567. When a guideline is not the product of “empirical data and national experience,”
(emphasis added).
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
16
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
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
17
Court’s sentencing determination. United States v. Gunter,
462 F.3d 237, 247 (3d Cir. 2006).
in support of the suggested sentence. In fact, “the Commission, either on its own
were significantly more severe than past practice” for “the most frequently sentenced
offenses in the federal courts,” including white collar offenses, drug trafficking, and
An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of
on the Initial Sentencing Guidelines and Policy Statements (1987). These stark increases were
Since then, the Commission has amended the guidelines in a “one-way upward
ratchet increasingly divorced from considerations of sound public policy and even
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
18
Criminal Justice System is Achieving the Goals of Sentencing Reform 47-55, 76, 82, 91, 94, 102-
In fact, the emerging social science literature suggests that many of the
guideline sentencing provisions are flawed, if not downright wrong. U.S. Sentencing
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
sentence); United States v. Germosen, 473 F. Supp. 2d 221 (D. Mass. 2007) (relying on
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
Semisch, Examining Changes in Federal Sentence Severity: 1980-1998, 12 Fed. Sent. Rep. 12,
19
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
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,
Juvenile Justice and Delinquency Prevention, Risk Factors for Delinquency: An Overview
(2001) (discussing link between aggression, drug abuse, and delinquency in children to
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
“What About the Kids?’: Parenting Issues in Sentencing, 8 Fed. Sent. Rep. 137 (1995)
20
(discussing growing body of research showing that children fare better in their
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
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
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
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
“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.
21
2006), the judge explained how calculations under the fraud guideline based on
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.
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
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
dissenting).
22
II. THE SENTENCE IMPOSED ON MR. AVALOS-GONZALES IS
UNREASONABLE IN THAT THE COURT RELIED UPON DISPUTED JUDGE-
FOUND FACTS (NOT PROVEN TO A JURY BEYOND A REASONABLE
DOUBT) AS ITS REASONS FOR NOT REDUCING THE SENTENCE TO THAT
REQUIRED 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
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
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.
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;
23
Cunningham, 127 S. Ct. at 863-64 (referring to independent right to proof beyond a
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
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
24
USSG § 6A1.3, p.s., is clearly deficient. Moreover, the Commission is not empowered
standard “is appropriate to meet due process concerns” because only courts are
the Commission is not a court. See Mistretta v. United States, 488 U.S. 361, 384-85, 393-
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).
25
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
______________
TRACE L. RABERN, ESQ.
Attorney for Appellant
1626 Ben Hur Dr.
Santa Fe, New Mexico 87501
505-690-7969
26
Certificate of Service
the United States mail, with First Class Postage prepaid, a true and correct copy of the
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.
______________
TRACE L. RABERN, ESQ.
Attorney for Appellant
1626 Ben Hur Dr.
Santa Fe, New Mexico 87501
505-690-7969
27
Certificate of Compliance with Rule 32(A)(7)
I, Trace Rabern, counsel for defendant-appellant, certify that this brief in chief
I certify that this certificate of compliance is true and correct to the best of my
______________
TRACE L. RABERN, ESQ.
Attorney for Appellant
1626 Ben Hur Dr.
Santa Fe, New Mexico 87501
505-690-796
28