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UNITED STATES of America, Plaintiff-Appellee, v. Robert BERNI, Defendant-Appellant

United States Court of Appeals for the Eighth Circuit2006-02-28No. No. 05-1678
439 F.3d 990

Summary

Holding. The district court properly applied the career offender guidelines and reasonably imposed a 96-month sentence that was subject to appellate review for overall reasonableness under post-Booker law. The judgment was affirmed.

Robert Berni appealed his 96-month sentence for conspiracy to distribute over 100 kilograms of marijuana, challenging the district court's application of career offender sentencing guidelines. The district court had calculated an advisory guidelines range of 188 to 235 months, then granted a substantial downward departure to 96 months based on Berni's cooperation. Berni argued that applying the career offender provisions was unreasonable, while the government contended that appellate review of the departure itself was barred by statute.

The court rejected both arguments. It held that while the extent of a downward departure remains unreviewable under the controlling statute, post-Booker sentencing law permits appellate review of the overall reasonableness of a sentence. The court clarified that determining the applicable guidelines range—including whether career offender provisions apply—is a legal matter requiring correct application rather than discretionary judgment, so it reviewed that determination de novo rather than for abuse of discretion. On the merits, Berni's prior convictions mandated application of the career offender guidelines, and the resulting 96-month sentence, representing roughly 50 percent below the guideline floor, was reasonable given his recidivist history and the quantities of marijuana involved.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Scope of appellate review for sentences imposed under advisory guidelines post-Booker
  • Whether application of career offender provisions is discretionary or mandatory
  • Reviewability of the extent of downward departures under 18 U.S.C. § 5K1.1
  • Reasonableness of a sentence representing 50% reduction from guideline floor

Procedural posture

Berni appealed his sentence imposed following a guilty plea to conspiracy to distribute marijuana, challenging both the application of career offender guidelines and the extent of the downward departure granted by the district court.

Authorities cited

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Opinion

majority opinion

PER CURIAM.

Robert Berni appeals the 96-month sentence the district court imposed following his plea of guilty to conspiring to distribute in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. The district court applied the career offender provisions of U.S.S.G. § 4Bl.l(b), found the Guidelines range to be 188 to 235 months, and granted the government’s motion for a downward departure based on substantial assistance under U.S.S.G. § 5K1.1. Sentencing occurred after the Supreme Court issued its opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court properly treated the Guidelines as advisory and considered the appropriate factors under 18 U.S.C. § 3558(a). At sentencing, Berni requested that the district court impose the statutory minimum sentence of sixty months. The government did not make a specific sentencing recommendation. The ninety-six-month sentence that the district court im posed represented a reduction of approximately fifty percent from the bottom of the advisory Guidelines range. We affirm.

It is undisputed that Berni had pri- or convictions sufficient to trigger application of the career offender provisions of U.S.S.G. § 4B1.1(b). He nevertheless argues on appeal that the district court acted unreasonably when it applied the career offender provisions. The government characterizes Berni’s appeal as an impermissible challenge to the extent of the sentencing court’s discretionary downward departure under U.S.S.G. § 5K1.1.

We address the government’s argument first. Prior to Booker, it was clear that defendants could not appeal the extent of a downward departure, or a district court’s refusal to grant a downward departure, under U.S.S.G. § 5K1.1. United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995) (‘We have repeatedly held that the extent of a downward departure is unreviewable on appeal.”). In fact, 18 U.S.C. § 3742(a) precluded appellate review of defendant appeals regarding downward departures. See United States v. Riza, 267 F.3d 757, 758-59 (8th Cir.2001) (“[W]e have consistently held that the district court’s decision not to depart downward is unreviewable so long as the court was aware of its authority to depart.”) (citing § 3742(a), other citations omitted).

In the remedial section of Booker, the Court struck the statutory provisions that made sentencing within the Guidelines mandatory and that set forth the standard of review on appeal, including de novo review of departures from the applicable Guidelines range. Booker, 543 U.S. at 259, 125 S.Ct. 738 (striking 18 U.S.C. § 3553(b)(1) (Supp.2004) and § 3742(e) (main ed. and Supp.2004), respectively). This effectively made the Guidelines advisory and made sentences under the advisory regime subject to a general, overall review for reasonableness guided by the factors of § 3553(a). The Court did not strike § 3742(a), however, and we have recognized the continuing validity of § 3742(a) by refusing to review U.S.S.G. § 5K1.1 departures as a matter separate from our general, overall review for reasonableness. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir.2005) (stating in a case that involved no challenge to the reasonableness of the sentence, “The decision not to depart downward is not reviewable under 18 U.S.C. § 3742.”); United States v. Frokjer, 415 F.3d 865, 875-76 (8th Cir.2005) (noting that Booker left § 3742(a) intact, refusing to review the extent of a departure, but conducting a general review for reasonableness). The fact that an advisory Guidelines determination involves a section 5K1.1 departure does not shield the overall sentence from our review for reasonableness. Frokjer, 415 F.3d at 875 n. 3. This review remains available because “an unreasonable sentence would be imposed ‘in violation of law’ within the meaning of § 3742(a).” Id. Accordingly, to the extent the government argues we are precluded from reviewing Berni’s sentence for reasonableness, we reject that argument.

Turning to merits of Berni’s appeal, the argument that it was “unreasonable” for the district court to use the career offender Guidelines is misplaced. The determination of whether to apply the career offender Guidelines to calculate the advisory Guidelines range is not a matter left to the district court’s discretion. Rather, sentencing courts must correctly determine the applicable Guidelines range in order to properly carry out the sentencing process under § 3553(a). Accordingly, we do not review the determination of an advisory Guidelines range for reasonableness under an abuse of discretion standard. We review underlying factual deter- ruinations for clear error and advisory Guidelines determinations de novo. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005). Based upon our de novo review, it is clear that Bernie’s prior convictions required application of the career offender Guidelines provisions to calculate the advisory range.

Turning to the separate issue of the reasonableness of the overall sentence, we find no abuse of discretion in the district court’s imposition of a ninety-six-month sentence. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005) (standard of review), cert. denied, — U.S. -, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). The district court properly calculated the advisory Guidelines range, permissibly applied a section 5K1.1 departure, and took that resulting range and departure into account along with the other 18 U.S.C. § 3553(a) factors to arrive at the sentence of ninety-six months. The overall sentence imposed is about half of the low end of the Guidelines range. Based on the facts of this case — a recidivist pattern of returning to marijuana trafficking following prior releases from incarceration and an admission by Bernie that he was involved in the sale of over 227 kilograms of marijuana — and based on the applicable Guidelines range and the other § 3553(a) factors, the sentence is reasonable.

The judgment of the district court is affirmed.

. The Honorable David S. Doty, United States District Judge for the District of Minnesota.