Appeal from the United States District Court for the District of Hawaii David A. Ezra, District Judge, Presiding. D.C. No. 1:03-cr-00187-DAE-1.
The opinion of the court was delivered by: Bea, Circuit Judge
Argued and Submitted February 11, 2010-Honolulu, Hawaii
Before: Jerome Farris, Dorothy W. Nelson and Carlos T. Bea, Circuit Judges.
This case involves a criminal defendant's claim that the district court committed various procedural errors when it imposed concurrent sentences of 160 months' imprisonment after the defendant pleaded guilty to three counts: (1) sexual abuse of a child, (2) sexual exploitation of children, and (3) witness tampering. The defendant also claims the sentences imposed by the district court were unreasonably harsh, amounting to substantive unreasonability.
When a defendant has been convicted of three counts, one of which carried a Congressionally mandated minimum sentence, one might think the logical place to start reckoning his sentence under the Sentencing Guidelines would be with that minimum sentence. It could become the advisory Guidelines sentence from which-after taking into consideration relevant aggravating and mitigating factors-all three counts could be sentenced.
Alas, such logic is overcome by the precise language of the Sentencing Guidelines and the possibility that the conviction on the count carrying the mandatory minimum sentence could be vacated or reversed, putting in doubt any sentence based on it.
Under the Sentencing Guidelines, a mandatory minimum sentence becomes the starting point for any count that carries a mandatory minimum sentence higher than what would otherwise be the Guidelines sentencing range. All other counts, however, are sentenced based on the Guidelines sentencing range, regardless the mandatory minimum sentences that apply to other counts.
Here, perhaps understandably, the district court erred when it used the mandatory minimum sentence for one count as the starting point for sentencing all counts. Thus, to ensure the procedural requirements of the Sentencing Guidelines are properly followed, we must vacate the sentences imposed on counts other than the one that carried a mandatory minimum sentence and remand them, once again, for sentencing by the district court.
The sentence the district court imposed on the count that carried a mandatory minimum sentence was properly calculated. In a separate memorandum disposition filed concurrently with this opinion, we hold the sentence imposed on that count is not substantively unreasonable. It is affirmed.
Jesus Norberto Evans-Martinez ("Evans-Martinez") was an active duty member of the United States Army, stationed in Hawaii. He lived at Schofield Barracks, which is within the special maritime and territorial jurisdiction of the United States.
Evans-Martinez was indicted on charges of (1) sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a), for the sexual abuse of a minor in his custody; (2) sexual exploitation of children, in violation of 18 U.S.C. § 2251(c), for sending e-mails that advertised the creation of his child pornography-related e-group; and (3) witness tampering, in violation of 18 U.S.C. § 1512(b), for asking his wife to destroy evidence. He entered a plea agreement with the government in which he agreed to plead guilty to all three counts. The government agreed not to seek additional charges against Evans-Martinez that related to sexual abuse of minors or to child pornography. The agreement provided that the government would inform the district court of any aggravating or mitigating evidence that would be relevant to sentencing.
At the sentencing hearing that gave rise to this appeal,*fn2 the district court noted that the Guidelines sentencing range for all three counts was 120 months' imprisonment-the statutory minimum sentence for sexual exploitation of children (Count 2). The government moved for a downward departure and recommended concurrent sentences of 96 months' imprisonment on all three counts. Defense counsel argued the district court should depart downward to 60 months' ...