United States v. Juan Antonio Zavala

443 F.3d 1165 UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio ZAVALA, Defendant-Appellant. No. 05-30120. United States Court of Appeals, Ninth Circuit. Submitted March 8, 2006. * Filed April 11, 2006. Dennis M. Charney, Eagle, ID, for the defendant-appellant. Monte J. Stiles, Assistant United States Attorney, Boise, ID, for the plaintiff-appellee. Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CR-02-00079-12-BLW. Before: FERNANDEZ, TASHIMA, and PAEZ, Circuit Judges. PER CURIAM: 1 Juan Antonio Zavala appeals the sentence that was imposed upon him after he was convicted of conspiracy to distribute or to possess with intent to distribute methamphetamine and of distribution of methamphetamine. See 21 U.S.C. §§ 841 (a)(1), 846. His sole claim on appeal is that the district court violated Booker 1 when it "presumed" that the advisory Sentencing Guideline calculation set forth the proper range for sentencing. We vacate the sentence and remand. BACKGROUND 2 After Zavala was convicted, the sentencing process took hold, but before it was complete the Supreme Court decided Booker. The…

Juan Antonio Zavala appeals the sentence that was imposed upon him after he was convicted of conspiracy to distribute or to possess with intent to distribute methamphetamine and of distribution of methamphetamine. See 21 U.S.C. §§ 841 (a)(1), 846. His sole claim on appeal is that the district court violated Booker 1 when it “presumed” that the advisory Sentencing Guideline calculation set forth the proper range for sentencing. We vacate the sentence and remand.

BACKGROUND

After Zavala was convicted, the sentencing process took hold, but before it was complete the Supreme Court decided Booker. The parties and the district court were well aware of that fact. Because it knew that it must consult the Sentencing Guidelines, which were now advisory, the district court then issued a presentencing order in which it calculated the Guideline range. That calculation generated a life sentence as the “range.” 2 At the commencement of the sentencing hearing, the district court assumed that the calculated “Guideline range becomes a presumptive sentence,” and the court must then decide if the other factors in 18 U.S.C. § 3553 (a) “would justify the Court in imposing a lesser sentence than that…

Dissenting:

I respectfully dissent because it is quite clear to me that the district court simply used the Sentencing Guideline calculation as a starting point, and we have already declared that it is proper for a court so to do. See United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006); see also United States v. Menyweather, 431 F.3d 692, 696-97 (9th Cir.2005).

I recognize that the district court’s language was not entirely felicitous. That is not surprising because this sentencing came during the first few months after Booker was decided. Still and all, despite the use of the word “presumption,” the district court explained that it meant “starting point” when it said that. Similarly, the district court used the word “departure,” which was unfortunate because that implies something more rigid than the regime we now live in. But, even there, the court indicated that it was merely grasping for a label, for it quickly added “or ... deviation.”

As I see it, the district court meant what it said; after all, it did deviate from the strict Guideline calculation, although Zava-la had personally advanced the methamphetamine conspiracy by selling at least 42 pounds of a mixture…