Opinion
NOT FOR PUBLICATION
Argued and Submitted July 9, 2007 Pasadena, California
Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding D.C. No. CR-03-00239-JSL-02, D.C. No. CR-03-00239-JSL-1
Before: SILVERMAN, W. FLETCHER, and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Mark James Sandoro and Christian Alexander Ehlers appeal their sentences. We vacate the sentences and remand for resentencing.
Though United States v. Booker, 543 U.S. 220 (2005), rendered the United States Sentencing Guidelines advisory, a district court must still consult the Guidelines even in cases in which the district court intends to depart from them. See United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006); United States v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir. 2005). This means among other things that the district court must accurately calculate the Guidelines range. See United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir. 2006) (“Post-Booker, the district court must correctly calculate the applicable range, which serves as a ‘starting point’ in sentencing.” (internal quotations omitted)); see also United States v. Mohamed, 459 F.3d 979, 985 (9th Cir. 2006) (holding that the first step in reviewing a sentence is to “determine whether the district court properly calculated the applicable range under the advisory guidelines”).
Even though the district court announced that it did not intend to follow the Guidelines in this case, it was still obligated to refer to and calculate the Guidelines ranges correctly. It is unclear whether the district court determined the appropriate sentencing range for each defendant under the Guidelines. The government argues that the court implicitly adopted the calculations set out in the presentence report. If so, it should have made that clear.
Even if the district court did adopt the calculations set out in the presentence reports, however, it failed to state sufficiently specific reasons for imposing sentences above the Guidelines ranges. A district court, “at the time of sentencing, ” must “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). If the sentence is not within the Guidelines range, the district court must state “with specificity” the “specific reason for the imposition of a sentence different” from the Guidelines range. 18 U.S.C. § 3553(c)(2). In doing so, a sentencing judge must “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 127 S.Ct. 2456, 2468 (2007). The explanation need not be lengthy as long as the reasons are adequately stated. Id. Vague statements about the inadequacy of the Guideline range do not satisfy the requirements of § 3553(c)(2). See United States v. Miqbel, 444 F.3d 1173, 1177–81 (2006) (holding that a district court’s statement that a sentence within the Guidelines range “would be insufficient to meet the purposes of sentencing under these circumstances” fails to satisfy § 3553(c)(2)).
Restitution in this case appears to have been ordered under 18 U.S.C. § 3663A, the statute cited in the presentencing reports for each of these defendants. When that statute applies, a restitution order is mandatory and the defendant’s ability to pay is not a relevant consideration. United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).
The previously imposed sentences are VACATED and the cases are REMANDED for resentencing.