AGEE, Circuit Judge.
Jose Manuel-Calixt Mendez challenges the procedural and substantive reasonableness of his sentence, but not his underlying convictions. Because the district court plainly erred in failing to consider the factors listed in 18 U.S.C. § 3553(a) or to state on the record a basis for the sentence it imposed, we vacate Mendez' sentence and remand this case for resentencing.
Mendez pleaded guilty, without the benefit of a written agreement, to several drug-related charges arising from his participation in a multi-party, multi-year (2001-2009), multi-state conspiracy to distribute cocaine powder and cocaine base ("crack"). Based on those transactions, a pre-sentence report ("PSR") provided Mendez should be accountable for 551.6 grams of cocaine base, 52 kilograms of cocaine, and 5,000 pounds of marijuana, which totaled a marijuana equivalency of 23,700 kilograms under the 2009 United States Sentencing Guidelines Manual (U.S.S.G.). The PSR also described Mendez as a manager of criminal activity involving five or more participants because he oversaw co-conspirators who would broker deals and convert cocaine to cocaine base under Mendez' direction. After a three-level increase due to his managerial or supervisory role (U.S.S.G. § 3B1.1(b)), and a three-level downward adjustment based on acceptance of responsibility (
After considering Mendez' objections to the drug weight calculation and the managerial/supervisory role enhancement, the district court "le[ft] the report as written," which made Mendez' advisory Guidelines range 188 to 235 months' imprisonment as to each of the grouped offenses. After hearing respective arguments from counsel, the district court stated its entire sentencing decision as follows:
J.A. 73. Mendez noted a timely appeal, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Mendez challenges the procedural and substantive reasonableness of his sentence, both of which we review under a deferential abuse of discretion standard.
We first consider Mendez' allegations of procedural error. Then we consider the question whether the district court committed reversible plain error in failing to evaluate the § 3553(a) factors at all during sentencing proceedings. Because we answer that question in the affirmative, we decline to reach Mendez' substantive reasonableness claim.
Mendez argues that the district court erred in adopting the PSR calculation of drug weight over Mendez' challenge. Reviewing the district court's factual findings as to the application of the Guidelines—including the determination of the relevant quantity of drugs—for clear error,
For sentencing purposes, the Government must establish the amount of drugs involved by a preponderance of the evidence.
Put simply, that is precisely what the district court did in setting the drug weight based on the PSR calculations. Mendez bore the burden of establishing that the PSR's calculation was incorrect, but offered nothing—other than broadly crafted objections—to the reliability of the testimony presented at trial. Mendez did not cite any specific evidence that might suggest the witnesses lacked credibility or were providing duplicative evidence as to drug weight.
U.S.S.G. § 3B1.1 provides that an offense level may be increased by three levels "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." In the district court, Mendez challenged the full three-level enhancement by contending that he was a "mule" on one side of the conspiracy and a leader on the other. On appeal, Mendez' argument has evolved—he now appears to challenge the application of any enhancement pursuant to § 3B1.1. We need not consider whether this argument has been properly preserved, however, because even assuming it was, the district court did not clearly err in applying the enhancement.
The § 3B1.1(b) supervisory-role enhancement is appropriate based on finding the presence of some or all of the following seven factors: "
Mendez' final challenge is to the substantive reasonableness of his sentence. Before we can evaluate his substantive reasonableness claim, however, we must find the sentence procedurally reasonable.
Although we have rejected above the arguments articulated on appeal by Mendez, an obvious procedural error is reflected in the record: the complete absence of explanation by the district court for the sentence imposed. We review the issue for plain error,
This court has specified in unmistakable terms that a sentencing court "must state in open court the particular reasons supporting its chosen sentence."
This is not an onerous burden. A sentencing court need not "robotically tick through § 3553(a)'s every subsection."
Despite the previous guidance this Court has provided on this precise issue,
For these reasons, the district court plainly erred in a manner affecting Mendez' substantial rights in wholly failing to evaluate the § 3553(a) factors during sentencing proceedings.
We note that this procedural derailment might have been corrected at any number of junctures. The Government might have directed the district court to the error immediately after the district court pronounced Mendez' sentence. Appellant's counsel, had she only presented the issue on appeal, could have cabined our review to the (more-easily-satisfied) abuse of discretion standard. To be sure, someone other than this Court should have flagged such a fundamental error. That said, the error here is so plain and deleterious to the defendant's substantial rights that we must vacate and remand this case for resentencing so that the district court can conduct a proper § 3553(a) analysis and provide a basis for the sentence imposed.
VACATED AND REMANDED.
Mendez also argues that the PSR improperly relied on the drug quantity base offense level under the 2009 cocaine base to cocaine ratio rather than applying the 2010 amendments to the ratio. Because Mendez did not raise that claim below, we review it for plain error.
The Government admits the 2010 Guidelines should have been used, but contends that the offense level would have been the same under the 2010 Guidelines as it was under the 2009 Guidelines. We agree. Under the 2010 amendments, Mendez' base offense level would not be different. To be sure, the 2010 amendments did alter the drug equivalency tables for cocaine base. Under the new equivalencies, however, Mendez would be responsible for 14,637.76 kilograms of marijuana, which would still place his base offense level at 36.