                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 29, 2009
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 07-2035
 v.                                               (D.C. No. CR-05-2770-JC)
                                                          (D. N.M.)
 CAMILLE SUZANNE LENTE,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HOLMES, Circuit Judge.


PER CURIAM.



      Defendant-Appellant Camille Suzanne Lente pleaded guilty to three counts

of involuntary manslaughter in violation of 18 U.S.C. §§ 13, 1153, and 1112, and

one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§

1153 and 113(a)(6). The district court sentenced Ms. Lente to 216 months’


      *
              This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
imprisonment, which was 159 months above the upper end of the Guidelines

range of 46 to 57 months. On appeal, Ms. Lente contends that her sentence is

substantively unreasonable; that the government breached its plea agreement; and

that the district court erroneously enhanced her sentence based upon facts that

were not proven beyond a reasonable doubt.

      Judge Holmes would remand, holding that Ms. Lente’s sentence is

substantively unreasonable. Judge Hartz would remand, holding that the

government breached the plea agreement.

      Accordingly, we REMAND to the district court with instructions to

VACATE Ms. Lente’s sentence, and direct that Ms. Lente be resentenced by a

different judge.

      Judge McWilliams dissents from the judgment and would affirm the

sentence.




                                        -2-
07-2035 - United States v. Lente

HARTZ, Circuit Judge, concurring:

      In my view the government breached its plea agreement with Ms. Lente.

The government cannot stipulate in the plea agreement that a defendant is entitled

to a guidelines reduction in offense level for acceptance of responsibility and then

endorse a presentence-report recommendation that the court vary upward because

of the defendant’s failure to accept responsibility. See United States v. Cachucha,

484 F.3d 1266, 1270 (10th Cir. 2007). Although this breach by the government

does not implicate the sentencing judge in any wrongdoing, we have recognized

that the only relief that we can grant is resentencing by another judge. See id. at

1271 (“We intend no criticism of the district judge by this action, and none

should be inferred.” (internal quotation marks omitted)).
07-2035 - United States v. Lente

HOLMES, Circuit Judge, concurring:



      While I concur in the disposition, I write separately to explain why I

believe Ms. Lente’s sentence is substantively unreasonable. 1

                                I. BACKGROUND

      On the night of December 2, 2005, after consuming between 13 and 19

beers, Ms. Lente drove her mother’s Chevrolet Suburban on the Isleta Indian

Reservation, which is located in New Mexico. At approximately 10:40 p.m., her

Suburban, which was northbound, crossed the center line of the highway into the

southbound traffic lane, causing a head-on collision with a Ford Ranger truck,

driven by Jessica Murillo. Ms. Lente’s passenger in the Suburban, Anthony

Tewahaftewa, and the two passengers in the Ford Ranger, Andres Murillo and

Joshua Romero, were declared dead at the scene. Ms. Murillo survived, but

sustained fractures to her right femur, right shoulder, and right ankle, and



      1
              Ordinarily, when the government has breached a plea agreement, we
will remand for resentencing by a different judge. See United States v. Cachucha,
484 F.3d 1266, 1271 (10th Cir. 2007). When a sentence is held to be substantively
unreasonable, however, we normally will not require resentencing by a different
judge. In this case, both Judge Hartz and I believe that Ms. Lente must be
resentenced, but we base our conclusions on different reasons. In the interest of
justice and with the pragmatic recognition that we must resolve this case, I
believe that remanding for resentencing by a different judge is an appropriate
exercise of judicial discretion. I emphatically note that I “intend no criticism of
the district judge by this action, and none should be inferred.” Id. (quoting United
States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000)).
received numerous facial lacerations. Ms. Lente suffered two broken ankles and a

dislocated hip. Ms. Murillo and Ms. Lente were transported to a hospital.

      Two hours after the accident, a blood sample was taken from Ms. Lente.

Ms. Lente’s blood alcohol level (“BAL”) was 0.21—over two times the New

Mexico legal limit of .08—and marijuana was present in her system. 2 In the

following days, Ms. Lente was interviewed twice at the hospital. She admitted to

drinking heavily before the accident, consuming between 13 and 19 beers. 3

However, Ms. Lente blamed her passenger, Mr. Tewahaftewa, for the collision,

claiming that he pushed the steering wheel into oncoming traffic. An accident re-

construction report discredited this account; the collision was not at a pronounced

angle, which it would have been if the passenger suddenly had caused the vehicle

to swerve.

      Ms. Lente was charged with three counts of involuntary manslaughter in

violation of 18 U.S.C. §§ 13, 1153, and 1112, and one count of assault resulting

      2
             See generally N.M. Stat. § 66-8-102(C)(1) (2005) (noting that it is
“unlawful” for a person “to drive a vehicle within this state” who “has an alcohol
concentration of eight one hundredths or more in his blood”). Although the
accident occurred on the Isleta Reservation (that is, within Indian Country as
defined by federal statute), the government assimilated New Mexico’s drunk
driving statute pursuant to 18 U.S.C. § 13 for purposes of establishing elements of
the predicate conduct for the federal involuntary manslaughter offense.
      3
             In her opening brief, Ms. Lente admits to having consumed between
13 and 19 beers, Aplt. Opening Br. at 3, and the Presentence Report (“PSR”)
indicates that Ms. Lente’s admissions to the investigators, although not precise,
also were in that range, R., Vol. II, ¶¶ 10, 12 at 3-4 (Presentence Report, dated
Sept. 12, 2006, revised Dec. 14, 2006) [hereinafter, “PSR”].

                                        -2-
in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6). The

prosecution was founded on federal Indian Country jurisdiction, because Ms.

Lente is an Indian and the crimes occurred on Indian Country (i.e., the Isleta

Reservation). 4 Ms. Lente entered into a plea agreement, pleading guilty to all

four counts in the indictment. In return, the government stipulated that Ms. Lente

had accepted responsibility and was therefore entitled to a three-level reduction in

her base offense level under the Sentencing Guidelines.

      The Presentence Report (“PSR”) computed an advisory Guidelines range of

46 to 57 months. 5 For each of the three involuntary manslaughter convictions, the

PSR assigned a base offense level of 22 under U.S.S.G. § 2A1.4. Twenty-two is

the highest base offense level under that provision and is reserved for those

instances in which “the offense involved the reckless operation of a means of

transportation.” U.S.S.G. § 2A1.4(a)(2)(B). There were no further adjustments.

Thus, the adjusted offense level for each of these offenses was 22. As for the

assault resulting in serious bodily injury conviction, which related to Jessica




      4
            See 18 U.S.C. § 1153. See generally United States v. Tindall, 519
F.3d 1057, 1060 n.1 (10th Cir. 2008); United States v. Zunie, 444 F.3d 1230,
1232-33 (10th Cir. 2006).
      5
             The PSR’s computations were based on the 2005 edition of the
United States Sentencing Guidelines Manual (“U.S.S.G.”). The parties do not
contend that the PSR’s reliance on that edition was improper. Therefore, I place
reliance upon it here as well, unless I expressly indicate otherwise.

                                         -3-
Murillo, the driver of the Ford Ranger, the PSR noted a base offense level of 14

under U.S.S.G. § 2A2.2.

      The Guidelines specific offense characteristics take into account the

seriousness of the injuries suffered by an assault victim; specifically, additional

offense levels are assigned to reflect more serious injuries. Operating with

reference to the injury classifications of the Guidelines, U.S.S.G. § 2A2.2(b)(3),

the PSR characterized Ms. Murillo’s injuries as “between serious bodily injury

and permanent or life-threatening injury.” R., Vol. II, ¶ 39 at 15 (Presentence

Report, dated Sept. 12, 2006, revised Dec. 14, 2006) [hereinafter, “PSR”].

Accordingly, it adjusted Ms. Lente’s offense level upward by six, yielding an

adjusted offense level of 20. See U.S.S.G. § 2A2.2(b)(3)(E).

      The Guidelines grouping rules, which must be referenced when a defendant

is convicted of multiple counts, expressly have made the policy judgment to

exclude offenses under Chapter Two of Part A of the Guidelines, which covers

Ms. Lente’s crimes, from a grouping process that relates to aggregate harm and to

treat such offenses as separate groups. See U.S.S.G. § 3D1.2; id. § 3D1.2 cmt.

background (“[A] defendant may stab three prison guards in a single escape

attempt. Some would argue that all counts . . . should be grouped together even

when there are distinct victims. Although such a proposal was considered, it was

rejected . . . .”). As a consequence, under this Guidelines chapter and part, even

when a defendant’s convictions relating to multiple victims arise from a single

                                          -4-
transaction (e.g., a single motor vehicle accident), as here, the defendant still is

assessed an additional increment of sentencing culpability for the multiple

victims. Id. § 3D1.4. 6

      Using her highest total offense level of 22 as the foundation for imposing

this additional increment as the Guidelines dictate, the PSR elevated Ms. Lente’s

offense level by four, resulting in a combined offense level of 26. The PSR

computed a three-level reduction for acceptance of responsibility, resulting in a

total offense level of 23. As discussed further below, although Ms. Lente had

several tribal convictions, none yielded criminal history points under the

Guidelines. Accordingly, the PSR placed Ms. Lente in a criminal history

Category I. With her total offense level of 23, Ms. Lente’s Guidelines range was

thus 46 to 57 months.

      The PSR found no grounds for a departure. Specifically, it stated: “After

assessing the defendant’s criminal history and social history, she does not appear


      6
              Indeed, the involuntary manslaughter Guidelines expressly provide
that when the multiple deaths do not result in separate counts of conviction the
result will still be the same. U.S.S.G. § 2A1.4(b) (“If the offense involved the
involuntary manslaughter of more than one person, Chapter Three, Part D
(Multiple Counts) shall be applied as if the involuntary manslaughter of each
person had been contained in a separate count of conviction.”); see id. app. C,
amend. 663, Reason for the Amendment (“The purpose of the instruction [in the
involuntary manslaughter Guideline] is to ensure an incremental increase in
punishment for single count offenses involving multiple victims.”). For a helpful
discussion of the operation of some of the Guidelines grouping rules in
involuntary manslaughter cases, see United States v. Wolfe, 435 F.3d 1289, 1302
& n.9 (10th Cir. 2006).

                                          -5-
to have any circumstances that would take her away from the heartland of cases

of similarly situated defendants.” PSR, supra, ¶ 101 at 33. The PSR did,

however, recommend an upward variance. A Guidelines sentence, it stated,

would not reflect the seriousness of Ms. Lente’s crimes, provide just punishment,

promote respect for the law, or deter Ms. Lente from committing further criminal

acts.

        In a pre-sentencing motion for an upward departure or an upward variance,

the government stated, “the United States concurs with all [of the PSR’s]

recommendations and would urge the Court to adopt these as grounds for

departure and or a variance from the Guidelines.” R., Vol. I, Doc. 34, at 9

(United States Mot. for Upward Departure Pursuant to U.S.S.G. § 5K2.0 and a

Variance from the Guidelines Pursuant to the Factors Enumerated in 18 U.S.C.

3553, dated Dec. 6, 2006). Because the PSR recommended a variance that partly

was based on Ms. Lente’s failure to initially accept responsibility, Ms. Lente

claimed that, in supporting all of the PSR’s recommendations, the government

violated the plea agreement, since the government had stipulated in the plea

agreement that Ms. Lente had accepted responsibility.

        At sentencing, the district court considered the factors enumerated in 18

U.S.C. § 3553(a) and decided to impose an upward variance. In the process of

enumerating the § 3553(a) factors, the district court stated:




                                         -6-
The defendant admitted to consuming large amounts of alcohol
prior to causing a head-on collision that left three people dead
and one person seriously injured. A blood sample drawn from
the defendant two hours after the accident revealed her blood
alcohol level to be .21 percent. The defendant also has five
tribal court convictions and three additional arrests, most of
which involved the excessive use of alcohol and violence.

       Furthermore, the defendant has never been licensed to
drive a vehicle in this state; therefore, intoxicated or not, she
should not have been operating a motor vehicle.

       The Edwina and Charles Salazar and Bruce Murillo
families were severely impacted by this crime. Not only did
they lose their 12-year-old son, but their 18-year-old daughter
was severely injured.

       The defendant knowingly risked the lives of all other
citizens on the roadways. It is also noted the defendant did not
accept full responsibility for her actions. She attempted to
shift some of the blame to her passenger by reporting he tried
to grab the steering wheel while they were traveling. The
accident reconstruction report stated there was no evidence to
suggest that this happened.


      Pursuant to 18 United States Code Section 3553(a)(2),
the Court finds that a guideline sentence of 46 to 57 months
would not reflect the seriousness of the offense, it would not
promote respect for the law, and it would not provide a just
punishment for this offense.

       In this district, defendants having committed similar
crimes, like the illegal reentry of an aggravated felon or drug
offenses, frequently receive sentences in similar ranges. In
this case, the defendant is directly responsible for killing three
people and injuring another.


      Furthermore, the Court finds the guideline sentence
inadequate to deter Camille Lente from committing further

                                -7-
            crimes. This Court notes the defendant has been on probation
            five times and still continues to abuse alcohol and break the
            laws of this country.

                  The Court also notes defendant is in need of vocational
            and educational training programs afforded by the Bureau of
            Prisons, given she has virtually no marketable job skills.

                   Given the factors noted, and when taken in combination,
            the Court concludes that the guideline imprisonment range in
            this case is not sufficient to satisfy the purposes of sentencing
            and does not provide a reasonable sentence in this matter.


R., Vol. III, Tr. at 42-44 (Sentencing Hearing, dated Dec. 14, 2006). The district

court then imposed consecutive 72-month sentences for the three counts of

involuntary manslaughter, which was the maximum sentence Ms. Lente could

receive for these counts. 7 The court also imposed a concurrent term of 120

months for the assault count. The final sentence imposed was 216 months’

imprisonment.

      On appeal, Ms. Lente raises three issues. First, she argues that the length

of her sentence is substantively unreasonable. Second, because her plea

agreement required the government to support a three-level reduction for

acceptance of responsibility, she contends that the government breached its plea

agreement when it recommended an upward variance partly based upon her


      7
             At the time of sentencing in 2006, the maximum sentence for
involuntary manslaughter was six years. The maximum sentence was changed to
eight years in 2008. Court Security Improvement Act of 2007, Pub. L. No. 110-
177, § 207, 121 Stat. 2534, 2538 (2008) (codified at 18 U.S.C. § 1112(b)).

                                        -8-
failure to initially accept responsibility. Third, she argues that the district court

erroneously enhanced her sentence based upon facts that were not proven beyond

a reasonable doubt. I conclude that Ms. Lente’s sentence is substantively

unreasonable and should be vacated.

                                  II. DISCUSSION

      When fashioning a sentence, the district court must take into account the

factors enumerated in 18 U.S.C. § 3553(a). These factors include:

             the nature of the offense and characteristics of the defendant,
             as well as the need for the sentence to reflect the seriousness
             of the crime, to provide adequate deterrence, to protect the
             public, and to provide the defendant with needed training or
             treatment.


United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Overarching and

guiding this determination is the “parsimony principle,” which requires the

district court to craft a sentence that is “‘sufficient, but not greater than

necessary, to comply with the purposes’ of criminal punishment, as expressed in §

3553(a)(2).” United States v. Martinez-Barragan, 545 F.3d 894, 904-05 (10th

Cir. 2008) (quoting 18 U.S.C. § 3553(a)). In determining whether a variance is

appropriate under the § 3553(a) factors, district courts appropriately may consider

whether the particular circumstances of the defendant’s offense remove the

defendant from the heartland of defendants who have committed the same or




                                          -9-
similar offenses. Id. at 900 (“[H]eartland analysis is also a legitimate part of the

district court’s analysis of whether to vary from the Guidelines.”).

      On appeal, “[w]e review a federal criminal sentence for reasonableness,

giving deference to the district court under ‘the familiar abuse-of-discretion

standard.’” United States v. Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir.

2008) (quoting Gall v. United States, 128 S. Ct. 586, 594 (2007)). Our appellate

review “includes both a procedural component, encompassing the method by

which a sentence was calculated, as well as a substantive component, which

relates to the length of the resulting sentence.” United States v. Smart, 518 F.3d

800, 803 (10th Cir. 2008). Under substantive reasonableness review, we may not

employ “‘a rigid mathematical formula that uses the percentage of a departure as

the standard for determining the strength of the justifications required for a

specific sentence.’” Id. at 807 (quoting Gall, 128 S. Ct. at 595). Nor may we

“examine the weight a district court assigns to various § 3553(a) factors, and its

ultimate assessment of the balance between them, as a legal conclusion to be

reviewed de novo.” Id. at 808. In other words, we will not vacate a sentence

merely because we “disagree[] with the District Judge’s conclusion that

consideration of the § 3553(a) factors justified . . . a marked deviation from the

Guidelines range.” Gall, 128 S. Ct. at 602.

      Instead, we must “give due deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597.

                                         -10-
Substantive reasonableness review “contemplates a range, not a point,” United

States v. Omole, 523 F.3d 691, 698 (7th Cir. 2008) (internal quotation marks

omitted), and “we will defer to the district court’s judgment so long as it falls

within the realm of these rationally available choices.” United States v. McComb,

519 F.3d 1049, 1053 (10th Cir. 2007), cert. denied, 128 S. Ct. 1917 (2008); see

also United States v. Begay, 470 F.3d 964, 975 (10th Cir. 2006) (“In any given

case there could be a range of reasonable sentences that includes sentences both

within and outside the Guidelines range.”), rev’d on other grounds, 128 S. Ct.

1581 (2008). A non-Guidelines sentence falls outside this range of

reasonableness only when the court’s justification is not “sufficiently compelling

to support the degree of the variance.” Gall, 128 S. Ct. at 597; see also United

States v. Pinson, 542 F.3d 822, 837 (10th Cir.) (noting that a sentence is

substantively reasonable only when the “district court’s proffered rationale, on

aggregate, justifies the magnitude of the sentence”), cert. denied, 129 S. Ct. 657

(2008), cert. denied, 129 S. Ct. 1369 (2009); United States v. Cavera, 550 F.3d

180, 198 (2d Cir. 2008) (en banc) (Katzmann, J., concurring) (“Courts will have

to determine in individual cases the line at which reasonableness ends and

arbitrariness begins, with the twin hobgoblins of widely variant sentences and

overbearing circuit-court review lurking in the shadows.”), petition for cert. filed,

77 U.S.L.W. 3516 (U.S. Feb. 23, 2009) (No. 08-1081).




                                         -11-
      However, “appellate review continues to have an important role to play and

must not be regarded as a rubber stamp.” Pinson, 542 F.3d at 836; see United

States v. Pugh, 515 F.3d 1179, 1182-83, 1191 (11th Cir. 2008) (noting that Gall’s

“directives leave no doubt that an appellate court may still overturn a

substantively unreasonable sentence, albeit only after examining it through the

prism of abuse of discretion, and that appellate review has not been

extinguished”); see also Cavera, 550 F.3d at 191 (“[W]e will continue to patrol

the boundaries of reasonableness, while heeding the Supreme Court’s renewed

message that responsibility for sentencing is placed largely in the precincts of the

district courts.”); cf. United States v. Whitehead, 559 F.3d 918, 918 (9th Cir.

2009) (Gould, J., dissenting) (“The problem is simply that the desirable principle

of deference to the sentencing judge, if taken too far, is transformed into an

undesirable principle of no review in effect for substantive reasonableness of a

sentence, contrary to what the Supreme Court declared as law.”); id. at 922

(Reinhardt, J., dissenting) (“The Supreme Court has ruled, and fairness demands,

that we must conduct a serious review of the sentences imposed by district judges

to ensure that they are reasonable. We abdicate our responsibility when we fail to

do so—whoever the defendant may be, and whatever the crime.”).

      Even after Gall, this court and our sister circuits have found sentences to be

substantively unreasonable. See United States v. Friedman, 554 F.3d 1301, 1308

(10th Cir. 2009) (concluding that a sentence of 57 months’ imprisonment, down

                                         -12-
from a Guidelines range of 151 to 188 months, was substantively unreasonable);

Pugh, 515 F.3d at 1182-83 (finding the district court’s sentence of five years’

probation, which was varied downward from a Guidelines range of 97 to 120

months’ imprisonment, to be substantively unreasonable); Omole, 523 F.3d at

697-700 (concluding that the district court’s sentence of 12 months’

imprisonment, 51 months below the low end of the Guidelines range of 63 to 78

months, was substantively unreasonable); United States v. Abu Ali, 528 F.3d 210,

258-59, 269 (4th Cir. 2008) (finding the defendant’s sentence of thirty years,

which was varied downward from the Guidelines recommendation of life

imprisonment, to be substantively unreasonable), cert. denied, 129 S. Ct. 1312

(2009); cf. Whitehead, 559 F.3d at 920 (Gould, J., dissenting) (noting that, by its

ruling in the instant case, the Ninth Circuit has put itself “in what I consider to be

a conflict with several of our sister circuits who have adopted a more vigorous

approach to reviewing sentences for reasonableness”).

      In this case, Ms. Lente was sentenced to 216 months’ imprisonment, which

was 159 months above the high end of the Guidelines range or, stated differently,

was almost four times the high end of that range. 8 Because it imposed a variance


      8
              Viewed another way, for illustration purposes only, the sentence
amounted to a 279% increase from the high end of the Guidelines range. See
Omole, 523 F.3d at 698 n.1 (“We include the percentage for purposes of
illustration, and refrain from using the mathematical variance in our
reasonableness determination.”). See generally United States v. Valtierra-Rojas,
                                                                      (continued...)

                                         -13-
that cannot be described as anything less than “major,” the district court needed

to provide “significant justification” for Ms. Lente’s sentence. See Gall, 128 S.

Ct. at 597 (“We find it uncontroversial that a major [variance] should be

supported by a more significant justification than a minor one.”); see also Pinson,

542 F.3d at 836-37 (noting that defendant’s variance sentence, which was “135

months above what he would have received had he been sentenced within the

applicable guidelines range,” was “unusually large, even by post-Gall

standards”); Pugh, 515 F.3d at 1200-01 (noting that “[i]n the Supreme Court’s

parlance,” the district court’s sentence that “amounted to a 97-month variance”

was “undeniably ‘major’” (quoting Gall, 128 S. Ct. at 597)); Abu Ali, 528 F.3d at

261 (“simply tak[ing] note” that a sentence amounting to a 40% downward

variance was “major” (quoting Gall, 128 S. Ct. at 597)).

      The court essentially gave seven reasons for the sentence: 1) Ms. Lente had

a high BAL of 0.21 and, therefore, knowingly risked the lives of others on the

road; 2) Ms. Lente drove without a license; 3) Ms. Lente had five Tribal Court

convictions and three additional arrests—most of which involved the excessive

use of alcohol and violence—and these convictions, along with her five separate

probations, had failed to deter her from abusing alcohol and breaking the law; 4)



      8
       (...continued)
468 F.3d 1235, 1240 (10th Cir. 2006) (discussing, pre-Gall, our partial reliance in
substantive reasonableness review on “the percentage of divergence” criterion).

                                        -14-
Ms. Lente initially failed to accept responsibility for the accident; 5) Ms. Lente

was in need of vocational and educational training; 6) Ms. Lente caused

particularly severe damage to the Edwina and Charles Salazar and Bruce Murillo

families; 7) at a policy level, offenders guilty of illegal reentry following

conviction of an aggravated felony or a drug offense often receive sentences

within Ms. Lente’s Guidelines range, yet Ms. Lente killed three people and

injured another.

      As noted, Ms. Lente challenges the substantive—not

procedural—reasonableness of her sentence. Accordingly, the propriety of the

district court’s reasons for imposing the upward variance are not at issue here.

See Smart, 518 F.3d at 803-04 (“We agree that if a district court bases a sentence

on a factor not within the categories set forth in § 3553(a), this would indeed be

one form of procedural error. Section 3553(a) . . . implicitly forbids

consideration of factors outside its scope.”). Rather, “[a]t the substantive stage of

reasonableness review,” we must determine whether the court’s reasons “can bear

the weight assigned” to them. Cavera, 550 F.3d at 191.

      After reviewing Ms. Lente’s sentence, “giv[ing] due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justif[ied] the

extent of the variance,” Gall, 128 S. Ct. at 597, I conclude that her sentence is

substantively unreasonable. See Friedman, 554 F.3d at 1308 (concluding that

“even given the highly deferential abuse-of-discretion standard of review,” the

                                         -15-
sentence imposed by the district court was substantively unreasonable). The

district court created a “sparse record” in justifying the major-variance sentence

that it gave to Ms. Lente and that must necessarily “bear[] on the question” of

whether that sentence is substantively reasonable. Id. at 1308 n.10 (“We note the

undeniably sparse record in this case certainly bears on the question whether

Friedman’s sentence is substantively reasonable.”). In most instances, it is

difficult to determine the precise weight the court accorded to the seven reasons

that it articulated. While, as noted below, the district court’s reasons might well

justify some upward variance, I simply cannot conclude on this record that they

justify the major variance that Ms. Lente received. See Cavera, 550 F.3d at 201

n.6 (Raggi, J., concurring) (“While this [substantive reasonableness] review is

deferential, it nevertheless follows that a factor or justification that could support

a 24-month sentence might not bear the weight of a 24-year sentence.” (emphasis

added)); Omole, 523 F.3d at 700 (holding a downward variance to be

substantively unreasonable, but noting that “[w]e are not saying that any below-

guidelines sentence for [defendant] would have been unreasonable” (emphasis

added)). I see no indication that the court fashioned a parsimonious

sentence—one that is sufficient, but not greater than necessary to effectuate the

statutory objectives of sentencing expressed in § 3553(a). Cf. United States v.

Beiermann, 599 F. Supp. 2d 1087, 1091 (N.D. Iowa 2009) (finding defendant’s

crimes to be “very serious,” but varying downward because the sentence

                                          -16-
prescribed by the child pornography Guidelines “would be at odds with the

‘parsimony provision’ of the federal sentencing statute”). I review the district

court’s reasons for Ms. Lente’s sentence in turn.

      First, the district court’s finding that Ms. Lente knowingly risked the lives

of others on the road certainly finds support in the evidence, given Ms. Lente’s

consumption of a large amount of alcohol on the day of the accident and her

resulting BAL of 0.21. However, the record is completely devoid of evidence to

indicate that Ms. Lente’s case falls so far afield from the heartland of cases

involving similar crimes to justify the district court’s major variance—almost four

times the high end of the Guidelines range. 9 See Martinez-Barragan, 545 F.3d at

900 (“[H]eartland analysis is also a legitimate part of the district court’s analysis

of whether to vary from the Guidelines.”).

      While obviously a BAL of 0.21 is significantly above the legal limit, the

court made no finding that Ms. Lente’s BAL was so extraordinarily high relative

to most drunk driving cases involving fatalities to warrant its variance sentence. 10


      9
             Indeed, although recommending an upward variance, the PSR at the
same time found that Ms. Lente’s case did not “appear to have any circumstances
that would take her away from the heartland of cases of similarly situated
defendants.” PSR, supra, ¶ 101 at 33.
      10
             Information relating to such issues would seemingly have been
readily available to the parties. See, e.g., National Center for Statistics and
Analysis, National Highway Traffic Safety Administration, 2007 Traffic Safety
Annual Assessment—Alcohol-Impaired Driving Fatalities, Figure 3, at 5 (2008)
(discussing the median BAL of drivers involved in fatal crashes).

                                         -17-
Furthermore, and more significantly, I must acknowledge the regrettable fact that

alcohol-related vehicular homicides—which typically give rise to federal

involuntary manslaughter prosecutions—are an enduring and tragic circumstance

in Indian Country. See, e.g., Lawrence L. Piersol, et al., Report of the Native

American Advisory Group 14 (2003) [hereinafter Native American Advisory

Group] (noting that “the ‘heartland’ of Indian country cases involved alcohol-

related vehicular homicides”); Pamela O. Barron, et al., Manslaughter Working

Group Report to the Commission app. 4 at 7 (1997) [hereinafter Manslaughter

Working Group] (“In Sentencing Commission data for the years 1994-1996,

American Indians comprised 72% of all persons sentenced for vehicular

manslaughter. Alcohol was present at the time of the instant offense in 93% of

these cases.”); see also Native American Advisory Group at iv (“Data on all

offenses reviewed by the Advisory Group confirms the devastating role that

alcohol plays in reservation crime.”). Indeed, the Guidelines specifically

recognize the recklessness typically associated with alcohol-related vehicular

homicides (which occur with regrettable frequency in Indian Country) by

providing an elevated base offense level of 22 for such conduct. U.S.S.G. §

2A1.4 (a)(2)(B) (imposing the highest base offense level where “the offense

involved the reckless operation of a means of transportation”); see id. app. C,

amend. 663, Reason for Amendment (noting that the new alternative offense level

“addresse[d] concerns raised by some members of Congress and comport[ed] with

                                        -18-
a recommendation from the Commission’s Native American Advisory Group that

vehicular manslaughter involving alcohol or drugs should be sentenced at offense

level 22”). Ms. Lente’s case exhibited this heartland characteristic and,

accordingly, she received the elevated offense level of 22. 11

      I do not for one moment discount the seriousness of Ms. Lente’s conduct.

Finding some guidance (albeit limited) in our prior cases that have upheld

Guidelines upward departures in circumstances involving motor vehicle accidents

caused by intoxicated drivers, 12 I do not gainsay the idea that, in exercising its

      11
             Furthermore, as outlined supra in text and note 4, in their grouping
rules, the Guidelines also endeavor to formally recognize the added measure of
culpability and harm arising from the multiple deaths that sadly are not
uncommon in such alcohol-related vehicular homicide cases. See U.S.S.G. §
3D1.4; id. § 2A1.4(b); see also Wolfe, 435 F.3d at 1302 & n.9. And, the
involuntary manslaughter Guidelines specifically ensure that where the multiple
deaths do not result in separate counts of conviction the result will still be the
same. Id. § 2A1.4(b). Ms. Lente’s sentence was computed under these grouping
rules.
      12
              Lest I be misunderstood, I do not suggest that because we previously
have upheld departures on similar facts that such an outcome is mandated here.
Relevant to this point, we have noted: “[E]ven if the two defendants had identical
histories and committed identical crimes, a decision by our Court to uphold a
district court’s departure in one case cannot possibly be read to entitle later
defendants in similar cases to a downward variance as a matter of right, or to
fetter the sentencing discretion Congress has vested in the district courts.” United
States v. Angel-Guzman, 506 F.3d 1007, 1019 (10th Cir. 2007). With regard to
departures, I recognize that district courts—both before and after Booker—have
been required to exercise their sentencing discretion within the structural
constraints of the Guidelines, which favor and disfavor certain departure grounds.
See United States v. Jarvi, 537 F.3d 1256, 1263 (10th Cir. 2008) (“We have now
held that district courts have broad discretion to consider individual
characteristics like age, employment, and criminal history in fashioning an
                                                                        (continued...)

                                         -19-
discretion, the district court here could reasonably conclude on these facts that

some upward variance would be appropriate. See, e.g., United States v.



      12
         (...continued)
appropriate sentence under 18 U.S.C. § 3553(a), even when disfavored under the
Guidelines or already accounted for in another part of the calculation.”); United
States v. Sells, 541 F.3d 1227, 1237-38 (10th Cir. 2008) (“In deciding whether to
depart from an otherwise applicable Guideline range, a district court is
specifically discouraged from considering a defendant’s age. U.S.S.G. § 5H1.1.
Nevertheless, in deciding whether to vary, pursuant to § 3553(a), from that range,
district courts have broad discretion to consider individual characteristics like
age.” (footnote omitted)), cert. denied, 129 S. Ct. 1391 (2009); see also United
States v. Munoz-Tello, 531 F.3d 1174, 1186 & n.22 (10th Cir. 2008) (noting that
“[e]ven after Booker, we review upward departures using a four part test,” asking
inter alia whether the factual bases supporting the departure are permissible
departure factors), cert. denied, 129 S. Ct. 1314 (2009). However, underlying the
quoted observation from Angel-Guzman is a central point: As to both departures
and variances, we operate under a roughly similar, but not conterminous,
deferential abuse-of-discretion standard of review. Compare Angel-Guzman, 506
F.3d at 1019 (noting the abuse-of-discretion review applicable as to departures
and noting that “we show similar deference to the district court in its decision not
to grant a variance”), with Munoz-Tello, 531 F.3d at 1186 (noting the use of a
unitary abuse-of-discretion of review in assessing the propriety of departures after
Booker). See also Cavera, 550 F.3d at 188 n.5 (“The Supreme Court has
suggested that the “unreasonableness” standard is a particularly deferential form
of abuse-of-discretion review.”). Under this standard, especially as to variances
(which are not hindered, inter alia, by the Guidelines structural constraints related
to favored and disfavored sentencing factors), district courts have considerable
freedom to exercise their discretion, in imposing individualized sentences, to
reach a variety of reasonable sentencing outcomes as to similarly situated
defendants; therefore, the results reached by a sentencing court in one case would
not mandate the same outcome in a different case, before that particular court or
another, even though the cases involve the same or similar facts. Nevertheless,
we logically can glean clues regarding the reasonableness question in this
variance case from surveying the historical range of enhanced sentences that have
been upheld (or vacated) by our court under a roughly comparable standard of
review applicable in the downward departure context, at least where the same or
similar sentencing factors are at issue (e.g., recklessness).

                                        -20-
Pettigrew, 468 F.3d 626, 641 (10th Cir. 2006); United States v. Whiteskunk, 162

F.3d 1244, 1247-48, 1252-53 (10th Cir. 1998). That is, although the district court

did not specifically articulate the weight it assigned in its upward variance

analysis to this particular reason, I do not question that the court could attribute

significant weight to it. However, I cannot conclude on this record that the

district court has demonstrated that this recklessness factor is capable of bearing

the weight with respect to Ms. Lente’s major-variance sentence.

      For example, in the upward departure context, district courts have granted

sentencing increases of a considerably more modest nature—apparently not more

than twice the Guidelines range—based upon conduct that, in certain instances,

was at least arguably more reckless than Ms. Lente’s. See, e.g., Pettigrew, 468

F.3d at 641 (upholding upward departure of two offense levels for excessive

recklessness, where defendant was “driving while intoxicated with a blood-

alcohol level of approximately three times the legal limit and crossing the

highway against traffic”); United States v. Zunie, 444 F.3d 1230, 1236 (10th Cir.

2006) (upholding upward departure of two offense levels for significantly

endangering public safety, where “[t]he jury heard evidence that [the defendant]

drove his one-ton truck while intoxicated and exceeded the speed limit by over 25

mph, that he drove so erratically that he forced five or six vehicles off the road,

that he crossed the center line into the opposite lane of traffic, and that, despite

[the victim’s] attempts to evade collision, [the defendant] struck [the victim’s]

                                          -21-
vehicle head-on”); cf. Wolfe, 435 F.3d at 1299, 1303 (calling the district court’s

nine-level departure, which included three offense levels for excessive

recklessness and three offense levels for creation of a serious danger to public

welfare, “extraordinary,” where defendant, after having consumed “six or seven

beers” and while driving at a high rate of speed, removed her hands from the

steering wheel); United States v. Jones, 332 F.3d 1294, 1297, 1305 (10th Cir.

2003) (noting that the district court’s one-level upward departure for significant

danger to public safety was “reasonable” and concluding that an upward departure

of “at most” four levels for extreme recklessness was appropriate, where “[a]t the

time of the accident, [defendant’s] blood-alcohol level was .266, over twice the

legal limit” and, while driving a truck, defendant “crossed the center line and

collided head on with the victims’ Dodge sedan”). See generally U.S.S.G. §

1A1.1 editorial note, ch. 1, pt. A, introductory cmt. n.4(h) (“A change of 6 levels

roughly doubles the sentence irrespective of the level at which one starts.”).

Accordingly, I conclude that the first reason cannot bear the weight of the major-

variance sentence that the district court imposed on Ms. Lente.

      Second, as for the district court’s consideration of Ms. Lente’s operation of

a motor vehicle without a license as an apparent factor in its upward variance

decision, the court offers us little by way of explanation to allow us to discern

what weight the court assigns to the factor, and whether it can reasonably “bear

the weight,” Cavera, 550 F.3d at 191. The court simply stated that Ms. Lente

                                         -22-
legally “should not have been operating a motor vehicle.” R., Vol. III, Tr. at 42.

That laconic approach leads me, in assessing the substantive reasonableness of the

sentence, to significantly discount the weight the court reasonably could have

attributed to this factor. See Friedman, 554 F.3d at 1308 n.10. 13 Furthermore, I

note that there was no evidence indicating that there were any aggravating

circumstances associated with Ms. Lente’s lack of a driver’s license: for example,

she did not lose her license due to alcohol-related misconduct. Accordingly, I

conclude that this factor could not have reasonably contributed to any significant

extent to the district court’s decision to impose the major variance at issue here.

      Third, Ms. Lente had five Tribal Court convictions and three additional

arrests, most of which involved the excessive use of alcohol and violence in the

nature of assaults and batteries. Although the district court does not specify the

weight it attributed to this factor, I do not question that the court reasonably could



      13
              Perhaps this factor could bear some appreciable weight in the court’s
upward variance decision. See Manslaughter Working Group, supra, at 14
(noting that the Commission would “consider adding specific offense
characteristics for” several factors, including “driving without a license (in a
jurisdiction where a license is required)”); id. at app. 4 at 7 (noting that the
“proposed explanatory factors” that speak to why an American Indian is “more
likely to be involved” in a “fatal motor vehicle accident” than a non-Indian
include “the presence of unlicensed drivers”). Indeed, the district court may have
viewed the evidence of Ms. Lente’s operation of her vehicle without a license as
providing additional evidence of her disregard for the law that needed to be
punished through an upward variance. However, I would be straying into the
realm of speculation to construe the district court’s laconic handling of this factor
as conveying a specific rationale.

                                         -23-
conclude that Ms. Lente’s previous convictions and probations had failed to deter

her from abusing alcohol and breaking the law and that some significant weight

should be given to this factor in its upward variance analysis. However, I note

that all of her convictions were misdemeanors; of these, almost half were juvenile

adjudications, and the majority were family disputes. 14 Furthermore, even though

most of the offenses involved excessive alcohol consumption and violence, they

were not similar in kind to the instant offense. Ms. Lente apparently was not

engaged in drinking and driving in any of the offenses. In other words, the

significantly greater risk of harm and the heightened degree of seriousness

associated with mixing alcohol consumption with driving were not factors in Ms.

Lente’s prior offenses. Lastly, there is no indication that she was represented by

counsel in any of the proceedings.

      Thus, Ms. Lente’s previous criminal history and subsequent failure to

reform, while relevant, do not seem to indicate “a commitment to a criminal

lifestyle,” United States v. Mateo, 471 F.3d 1162, 1170 (10th Cir. 2006),

especially one involving unlawful conduct of a comparable level of seriousness as

that giving rise to her involuntary manslaughter conviction. See, e.g., Jones, 332

F.3d at 1302 (five previous drunk driving convictions); Pettigrew, 468 F.3d at


      14
            Ms. Lente apparently had a particularly difficult childhood. She was
reportedly physically and sexually abused numerous times as a child and was
brought up in a household where her parents and siblings abused alcohol and
drugs.

                                       -24-
641 (previous alcohol abuse resulted in the death of another person). Therefore,

this factor could not reasonably provide a substantial foundation for the district

court’s major-variance sentence.

      Fourth, while hospitalized and before she was indicted, Ms. Lente initially

failed to accept full responsibility, claiming that her passenger, Mr. Tewahaftewa,

pushed the steering wheel into oncoming traffic. A failure to accept

responsibility certainly could be deemed by the district court to be a relevant

sentencing consideration. The court, however, did not specify the weight it

attached to this factor in its upward variance analysis. However, I conclude with

little difficulty that the court reasonably could have given an appreciable amount

of weight to it. Nonetheless, I note that Ms. Lente ultimately did accept full

responsibility for her actions. Indeed, the PSR specified that she should receive a

three-level reduction to her base offense level for acceptance of responsibility

and, significantly, the district court did not rebuff that recommendation and, in

fact, adopted it. 15 See R., Vol. II, at 1 (Statement of Reasons, dated Dec. 28,

2006) (“The court adopts the presentence investigation report without change.”).

In other words, this was not an “eleventh hour attempt to accept responsibility


      15
             Indeed, although the district court could reasonably elect not to
excuse Ms. Lente’s evasive conduct, the court seemed to accept the idea that Ms.
Lente’s conduct was at least partly attributable to her alcohol-impaired condition
in the period shortly following the accident. See R., Vol. III, Tr. at 11 (district
court noting that “[s]he [Ms. Lente] came up with that story [shifting blame to
Mr. Tewahaftewa] because she was drunk”).

                                         -25-
[which would bring] into question whether [she] manifested a true remorse for

[her] criminal conduct.” United States v. Ochoa-Fabian, 935 F.2d 1139, 1143

(10th Cir. 1991). Thus, I conclude that the district court could not have

reasonably assigned great weight in its major-variance determination to Ms.

Lente’s failure to accept full responsibility.

      Fifth, I do not question that the district court could assign some weight in

its variance decision to Ms. Lente’s need for “vocational and educational

training.” See United States v. Tsosie, 376 F.3d 1210, 1215 (10th Cir. 2004). 16

However, it is unclear how much the district court relied on this factor, since

there were no findings that a 216-month sentence—as opposed to, for example, a

shorter sentence in the Guidelines range—was required to appropriately

rehabilitate Ms. Lente. The “undeniably sparse record in this case” on the role of

vocational or educational training in the district court’s major-variance

determination necessarily “bears on the question” of whether that determination is

substantively reasonable. Friedman, 554 F.3d at 1308 n.10. And, consequently, I

am led to significantly discount the weight the court reasonably could have




      16
              Although, as Ms. Lente argues, § 3582(a) does say that
“imprisonment is not an appropriate means of promoting correction and
rehabilitation,” 18 U.S.C. § 3582(a), we have held that this only “clarif[ies] that it
is inappropriate to impose a sentence to a term of imprisonment solely for
rehabilitative purposes or correctional treatment.” Tsosie, 376 F.3d at 1215
(emphasis omitted and emphasis added).

                                          -26-
attributed to this factor as a justification for an upward variance, especially one of

the magnitude at issue here.

      Sixth, the district court could reasonably attribute weight in its variance

decisions to the impact that Ms. Lente’s actions had on the victims’ families. In

particular, at the sentencing hearing, family members of Andres and Jessica

Murillo, Anthony Tewahaftewa, and Joshua Romero offered poignant testimony

concerning the emotional pain and suffering inflicted upon them by Ms. Lente’s

conduct. Most of them implored the court to impose the harshest sentence

permissible under the law on Ms. Lente. In seeking “to provide just punishment,”

18 U.S.C. § 3553(a)(2)(A), it certainly was reasonable for the district court to

recognize the egregious damage Ms. Lente’s criminal conduct caused to the

victims and their families. “Courts have always taken into consideration the harm

done by the defendant in imposing sentence . . . .” Payne v. Tennessee, 501 U.S.

808, 825 (1991). However, there are obviously limits to which a family’s grief

can increase a sentence. Unfortunately, we have seen even worse impacts on a

family as a result of drunk driving; yet, the sentencing enhancement imposed by

the district court there was considerably shorter and not even roughly comparable

to that received by Ms. Lente. See, e.g., Jones, 332 F.3d at 1302 (noting that

departing upward of one offense level was proper when “[t]he normal tragedy of

multiple deaths was worsened by the complete elimination of one branch of [two]

different families,” such that the mother, father, and child were killed) (internal

                                         -27-
quotation marks omitted)). Indeed, getting to the heart of the matter, the major-

variance sentence that the district court imposed on Ms. Lente was not within the

range of enhancements that ordinarily would be “contemplat[ed],” Omole, 523

F.3d at 698, for such a factual circumstance. Therefore, even assuming arguendo

that the harm to the victims’ families caused by Ms. Lente’s conduct could play a

large role in the district court’s major-variance decision, I could not advance to

sustain that decision unless I could gain some meaningful insight into the district

court’s perception of the unique dimensions of that factor here. And I cannot

gain that insight on this “sparse record.” Friedman, 554 F.3d at 1308 n.10.

Accordingly, in carrying out our mandated function of “patrol[ling] the

boundaries of reasonableness,” Cavera, 550 F.3d at 191, I cannot conclude on this

record that victim harm can justify (i.e., bear the weight of) the district court’s

variance determination.

      Seventh, the district court apparently disagreed at a policy level with the

Guidelines. The court found: “In this district, defendants having committed

similar crimes, like the illegal reentry of an aggravated felon or drug offenses,

frequently receive sentences in similar ranges. In this case, the defendant is

directly responsible for killing three people and injuring another.” R., Vol. III,

Tr. at 42-44. I conclude that, although the district court could disagree with the

policy judgment of the Guidelines, the court’s rationale cannot bear the weight of

the major-variance sentence it gave to Ms. Lente.

                                          -28-
      In Kimbrough v. United States, the Supreme Court held that “it would not

be an abuse of discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder disparity yields a sentence ‘greater

than necessary’ to achieve § 3553(a)’s purpose, even in a mine-run case.” 128 S.

Ct. 558, 575 (2007). The Court clarified the meaning of Kimbrough in Spears v.

United States, 129 S. Ct. 840 (2009). In Spears, the Eighth Circuit had concluded

that a district court “may not categorically reject the [crack-to-powder] ratio set

forth by the Guidelines,” but instead must make an “individualized, case-specific”

determination. Id. at 842-43. The Spears Court disagreed. Kimbrough, the Court

held, recognized “district courts’ authority to vary from the crack cocaine

Guidelines based on policy disagreement with them, and not simply based on an

individualized determination that they yield an excessive sentence in a particular

case.” Id. at 843. The latter, the Court held, had already been established pre-

Kimbrough. Id. (citing United States v. Booker, 543 U.S. 220, 245-46 (2005)).

Instead, Kimbrough held that “district courts are entitled to reject and vary

categorically from the crack-cocaine Guidelines based on a policy disagreement

with those Guidelines.” 17 Id. at 843-44 (emphasis added). A contrary conclusion,


      17
             Put most simply, as I understand it, this means that the district court
may elect, for example, to increase the Guidelines offense level to be applied to
the defendant because, as a general matter, the court disagrees with the policy
judgment reflected in a particular Guidelines provision, which assigns the
defendant to a lower offense level, even before the court begins to assess how the
                                                                       (continued...)

                                         -29-
the Spears Court believed, would cause district courts either to treat the crack-to-

powder ratio as mandatory or to “continue to vary, masking their categorical

policy disagreements as ‘individualized determinations’”—an outcome the Court

labeled “institutionalized subterfuge.” Id. at 844.

      Although Kimbrough arose in the crack-powder cocaine context, we have

not questioned that its holding concerning policy disagreements extends beyond

that context. See Friedman, 554 F.3d at 1311 (not questioning the reach of

Kimbrough outside of the crack-powder cocaine context, where defendant

asserted a policy disagreement with the career offender Guidelines in a bank

robbery case, but noting that “this court need not delve into a difficult antecedent

question: how this court should review district court sentences based simply on a



      17
        (...continued)
defendant’s particular circumstances should affect his sentence. See Cavera, 550
F.3d at 191 (“As the Supreme Court strongly suggested in Kimbrough, a district
court may vary from the Guidelines range based solely on a policy disagreement
with the Guidelines, even where that disagreement applies to a wide class of
offenders or offenses.”); Beiermann, 599 F. Supp. 2d at 1104-05 (rejecting
“entirely” on “categorical, policy grounds” the child pornography Guidelines
before examining particular circumstances of defendant and his offenses). After
increasing the offense level, the court may find that there is nothing about the
defendant’s particular circumstances or the circumstances of her offense that
would otherwise suggest that the sentence prescribed by the Guidelines does not
squarely fit (that is, it may find that the defendant is a mine-run defendant).
Alternatively, after examining the particulars related to defendant and her offense,
the court might well find under the statutory sentencing factors of 18 U.S.C. §
3553(a) that a further deviation from the advisory Guidelines sentencing range is
appropriate, in the form of an additional variance.


                                        -30-
policy disagreement with the Guidelines”). And I see no principled basis for such

a restriction.

       Among those that have taken a definitive position, our sister circuits appear

to be uniformly in accord with this view. See Cavera, 550 F.3d at 196-97

(upholding a district court’s variance based on its finding that the Guidelines

failed to take into account “the greater need for deterrence in New York” for

firearms offenses because its strict firearms laws had produced a comparatively

“more profitable black market in firearms”); United States v. Tankersley, 537

F.3d 1100, 1113 (9th Cir. 2008) (concluding that the district court’s “decision to

depart—based on its desire to punish terrorist activities directed at private

conduct in a manner similar to how it punished terrorist activities direct [sic] at

government conduct—did not render [the defendant’s] sentence per se

unreasonable”), petition for cert. filed, 77 U.S.L.W. 3517 (U.S. Mar. 2, 2009)

(No. 08-1104); United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th Cir.

2008) (in discussing the defendant’s argument that the district court imposed a

non-Guidelines sentence primarily because it disagreed with how “drug

trafficking offenses” are defined under § 2L1.2, noting that Kimbrough

recognized that “courts may vary [from Guidelines ranges] based solely on policy

considerations, including disagreements with the Guidelines” (internal quotation

marks omitted) (quoting Kimbrough, 128 S. Ct. at 570)); accord Beiermann, 599

F. Supp. 2d at 1096 (in disagreeing on categorical policy grounds with U.S.S.G. §

                                         -31-
2G2.2, the child pornography Guideline provision, finding that the “powerful

implication of Spears is that, in other ‘mine-run’ situations, the sentencing court

may also reject guidelines provisions on categorical, policy grounds”). But cf.

United States v. Johnson, 553 F.3d 990, 996 (2009) (suggesting that whether

Kimbrough and Spears extend beyond the crack-powder cocaine arena is an open

question).

      The district court’s policy disagreement in Ms. Lente’s case, although less

than pellucid, appears to reflect a belief that the Guidelines categorically under-

punish involuntary manslaughter offenses. In the district court’s opinion, the

Guidelines improperly equate the seriousness of involuntary manslaughter, a

crime that can result in multiple deaths and injuries, with aggravated-felony

illegal reentry offenses and drug crimes. The district court, however, also

referred to Ms. Lente and the specific circumstances of her offense (e.g., the

number of deaths resulting from the accident), 18 allowing for the arguable

contention that the district court’s analysis involved “an individualized

determination” that the involuntary manslaughter Guidelines in the “particular

case” of Ms. Lente simply yielded an excessively low sentence. See Spears, 129

S. Ct. at 843. However, we need not decide whether the district court fashioned


      18
             However, as noted supra, the Guidelines and its grouping rules, as a
general matter, contemplate the possibility that a single event like a motor vehicle
accident will result in multiple deaths, leading to an involuntary manslaughter
prosecution.

                                         -32-
an individualized, case-specific sentence, or whether it adopted a categorical

policy disagreement with the Guidelines; either way, in light of Spears, the

district court’s policy disagreement was legally authorized. That does not end the

matter, however. We must determine whether that policy disagreement can bear

the weight of the major-variance sentence that the district court imposed on Ms.

Lente.

         When we “examine a district court’s justification for differing from the

Guidelines recommendation, our review must be informed by the ‘discrete

institutional strengths’ of the Sentencing Commission and the district courts.”

Cavera, 550 F.3d at 191-92 (quoting Kimbrough, 128 S. Ct. at 574). “Kimbrough

distinguishes between cases where a district court disagrees with Guidelines that

were formulated based on special expertise, study, and national experience and

those that were not and therefore ‘do not exemplify the Commission’s exercise of

its characteristic institutional role.’” Id. at 192 n.9 (quoting Kimbrough, 128 S.

Ct. at 575). Kimbrough’s analysis indicates that ordinarily district court’s will be

afforded greater leeway to engage in policy disagreements with the latter set of

Guidelines, which are not the product of the Commission acting in its traditional

institutional role. See Friedman, 554 F.3d at 1311 n.13 (discussing Kimbrough’s

reasoning and noting that the Court “concluded that it did not need to definitively

resolve that question” of whether a more rigorous, closer review should be

applied to certain policy disagreements by sentencing courts with the Guidelines

                                          -33-
because the crack-powder cocaine Guidelines did not involve the Commission

acting in its traditional institutional role); Cavera, 550 F.3d at 192 (“[I]n

Kimbrough itself, the Supreme Court found that no ‘closer review’ was warranted

where a district court based its sentence on a policy disagreement with the 100-to-

1 crack cocaine vs. powder cocaine weight ratio, because the crack cocaine

Guidelines are not based on empirical data and national experience . . . .”);

Beiermann, 599 F. Supp. 2d at 1100 (“Even before Spears, numerous district

courts had read Kimbrough to permit a sentencing court to give little deference to

the guideline for child pornography cases on the ground that the guideline did not

exemplify the Sentencing Commission’s exercise of its characteristic institutional

role and empirical analysis, but was the result of congressional mandates, often

passed by Congress with little debate or analysis.”).

      The Guidelines applied to Ms. Lente were carefully fashioned by the

Commission while engaged in its traditional work. In other words, the

Commission “‘base[d] its determinations on empirical data and national

experience, guided by a professional staff with appropriate expertise.’”

Kimbrough, 128 S. Ct. at 574 (quoting United States v. Pruitt, 502 F.3d 1154,

1171 (10th Cir. 2007) (McConnell, J., concurring), vacated for reconsideration,

128 S. Ct. 1869 (2008)). In particular, Ms. Lente was sentenced under the 2005

version of U.S.S.G. § 2A1.4. That version is the product of careful Commission

study and numerous resulting amendments. Several of those amendments were

                                          -34-
aimed at addressing concerns that the involuntary manslaughter Guidelines did

not appropriately reflect the seriousness of the offense. More specifically, they

were designed to increase the penalty for involuntary manslaughter cases

involving vehicular homicides. In 2003, the Commission amended U.S.S.G. §

2A1.4 to increase the base offense level for reckless involuntary manslaughter

offenses from a level 14 to a level 18, which corresponded to an approximate 50

percent increase in sentence length for these offenses, in order to “respond to a

concern that the federal sentencing guidelines [did] not adequately reflect the

seriousness of involuntary manslaughter offenses.” U.S.S.G. app. C, amend. 652,

Reason for Amendment.

      These changes were made after extensive study:

             Specifically, the Department of Justice, some members of
             Congress, and an ad hoc advisory group formed by the
             Commission to address Native American sentencing guideline
             issues expressed concern that most federal involuntary
             manslaughter cases involve vehicular homicides, which
             analysis of Commission data confirmed. These commentators
             also indicated that these offenses appear to be underpunished,
             particularly when compared to comparable cases arising under
             state law. This disparity with state punishments has been
             confirmed by studies undertaken by the Commission. In
             addition, Congress increased the maximum statutory penalty
             for involuntary manslaughter from three to six years’
             imprisonment in 1994.


Id. Similarly, in 2004, the Commission amended U.S.S.G. § 2A1.4 to add a third

alternative base offense level of level 22 for involuntary manslaughter offenses


                                        -35-
that involved the reckless operation of a means of transportation. U.S.S.G. app.

C, amend. 663, Reason for Amendment. The new alternative offense level

“addresse[d] concerns raised by some members of Congress and comport[ed] with

a recommendation from the Commission’s Native American Advisory Group that

vehicular manslaughter involving alcohol or drugs should be sentenced at offense

level 22.” Id. Thus, the involuntary manslaughter Guidelines under which Ms.

Lente was sentenced clearly reflect the Sentencing Commission’s exercise of its

characteristic institutional role.

      Generally, we will review policy disagreements with the Guidelines with

the recognition that when the Commission has acted in its traditional institutional

role, district courts should act with caution when electing to deviate from the

Guidelines based upon policy disagreements with them. See United States v.

Higdon, 531 F.3d 561, 562 (7th Cir. 2008) (“As a matter of prudence . . . in

recognition of the Commission’s knowledge, experience, and staff resources, an

individual judge should think long and hard before substituting his personal penal

philosophy for that of the Commission.”). In some instances, as Kimbrough and

Spears suggest, those decisions of sentencing courts to deviate from the

Guidelines based upon policy disagreements will be subject to a heightened level

of review. See Kimbrough, 128 S. Ct. at 574 (“[W]hile the Guidelines are no

longer binding, closer review may be in order when the sentencing judge varies

from the Guidelines based solely on the judge’s view that the Guidelines range

                                        -36-
‘fails properly to reflect § 3553(a) considerations’ even in a mine-run case.”

(quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)); Spears, 129 S. Ct.

at 843 (“The implication [of Kimbrough] was that an ‘inside the heartland’

[variance] (which is necessarily based on a policy disagreement with the

Guidelines and necessarily disagrees on a ‘categorical basis’) may be entitled to

less respect.”). 19

       However, at the very least, district court decisions to vary based upon

policy disagreements must pass muster under general principles of reasonableness

review. Under those principles, we are obliged to examine the nexus between the

district court’s policy disagreement with the Guidelines and the magnitude of the

variance, to determine if the reasons for the policy disagreement can bear the

weight of the variance. At this foundational level of review, I conclude that the

district court’s decision here to deviate from the Guidelines cannot survive

scrutiny because the court completely failed to establish the requisite nexus

between its policy disagreement and Ms. Lente’s sentence. Cf. Beiermann, 599 F.


       19
              The Court has yet to provide “elaborative discussion of this matter”
because Kimbrough and Spears arose in the crack-powder cocaine context, and
the crack-cocaine Guidelines do not “exemplify the Commission’s exercise of its
characteristic institutional role.” Kimbrough, 128 S. Ct. at 575; see Cavera, 550
F.3d at 192 (“We do not, however, take the Supreme Court’s comments
concerning the scope and nature of ‘closer review’ to be the last word on these
questions. More will have to be fleshed out as issues present themselves.”); see
also Friedman, 554 F.3d at 1311 n.13 (noting, but declining to resolve, “a
difficult antecedent question: how this court should review district court
sentences based simply on a policy disagreement with the Guidelines”).

                                        -37-
Supp. 2d at 1104-06 (on the other end of the spectrum, sentencing court providing

an extensive explanation of the bases for its policy disagreement with the child

pornography Guidelines). Consequently, I have no need in this case to reach any

definitive conclusions regarding the scope or operation of any heightened level of

review. 20


       20
              Kimbrough notes that “closer review” may be required if the
sentencing court elects to vary “based solely on the judge’s view that the
Guidelines range ‘fails properly to reflect § 3553(a) considerations’ even in a
mine-run case.” Kimbrough, 128 S. Ct. at 575 (emphasis added) (quoting Rita,
127 S. Ct. at 2465). Although I need not (and do not) resolve them, this language
raises significant questions concerning whether some form of closer review would
be applicable on these facts: the district court did not vary upward in sentencing
Ms. Lente based solely on a policy disagreement with the Guidelines; and, as
noted supra in text, I do not gainsay the idea that the district court reasonably
could conclude, in exercising its discretion, that Ms. Lente’s is not a mine-run
case. Kimbrough’s language (as quoted above) arguably could be interpreted,
however, as doing nothing more than indicating that closer review may apply
where the sentencing court varies based on a categorical policy disagreement with
a set of Guidelines that reflect the Commission’s traditional processes and
handiwork, and providing us with the quintessential scenario giving rise to such a
categorical policy disagreement—a mine-run case. As Spears subsequently
explained, “the point” of Kimbrough was to address the propriety of categorical
policy disagreements. Spears, 129 S. Ct. at 843. And the “implication” of
Kimbrough’s holding, said Spears, is that when a sentencing court varies in a
mine-run (i.e., heartland) case based upon a policy disagreement, it “necessarily
disagrees on a ‘categorical basis.’” Id. (emphasis added). If Kimbrough’s
language is read in this manner, then some form of closer review may be
applicable with respect to a district court’s justification for varying based upon a
categorical policy disagreement with traditionally-crafted Guidelines, irrespective
of whether the categorical policy disagreement is the sole reason for the court’s
variance, and regardless of whether the variance occurs in a mine-run case. I
have noted that arguably the district court varied upward here at least partly based
upon a categorical policy disagreement with the Guidelines. However, because
the court’s justification for its major upward variance based upon a policy
                                                                         (continued...)

                                         -38-
       With regard to the district court’s policy disagreement, its comments

merely indicate its general dissatisfaction with the severity of the range of

punishments prescribed by the involuntary manslaughter Guidelines because they

are comparable to punishments provided for aggravated-felony illegal reentry

offenses and drug crimes. The district court does not begin to explain how that

general dissatisfaction provides the basis for the major-variance sentence that it

imposed on Ms. Lente. Cf. Tankersley, 537 F.3d at 1107-09 (upholding the

district court’s policy decision to impose a twelve-level upward departure in order

to achieve sentencing parity between defendants who engaged in similar conduct).

Accordingly, I cannot conclude that the district court’s policy disagreement with

the Guidelines can support the major upward variance in this case.

       Finally, even when I review the district court’s reasons for Ms. Lente’s

sentence “on a whole,” Gall, 128 S. Ct. at 597, I do not believe they can justify

the major-variance sentence that Ms. Lente received. In this regard, my principal

concern is not that the district court “did not specifically address each § 3553(a)

factor in terms of why each factor justified the extent of the variance”; rather, the

central point is that it is not “clear from reading the district court’s . . .


       20
        (...continued)
disagreement with the Guidelines cannot withstand scrutiny under general
principles of reasonableness review, I need not attempt to divine here the
Supreme Court’s intentions concerning the scope and operation of the
(presumably) more rigorous “closer review” and, more specifically, I need not
determine whether some form of that review would be appropriate on these facts.

                                           -39-
explanation that it fully and adequately explained why it varied as it did.” United

States v. Yanez-Rodriguez, 555 F.3d 931, 948 (10th Cir. 2009); cf. id. at 949 (“In

this case, the district court painstakingly went through each § 3553(a) factor,

stating, where applicable, how the factor supported an upward variance.”).

      My analysis should not be construed in any way to minimize the

seriousness of Ms. Lente’s conduct. Because of her reckless acts, three people

are dead. And Ms. Lente has inflicted untold, life-long suffering on the grieving

families of her victims. However, at the same time, “an absolutely central feature

of criminal justice [is that] for each offense there is an upper limit on the severity

of just punishment.” See Lawrence Crocker, The Upper Limit of Just Punishment,

41 Emory L.J. 1059, 1060 (1992). Part of reasonableness review is ensuring some

rational relationship between the reasons for punishment and the ultimate

sentence imposed. See Cavera, 550 F.3d at 201 n.6 (Raggi, J., concurring)

(“While this [substantive reasonableness] review is deferential, it nevertheless

follows that a factor or justification that could support a 24-month sentence might

not bear the weight of a 24-year sentence.”).

      In sum, I recognize the lessons of Gall and Kimbrough: the district court

has meaningful and broad sentencing discretion, and we may reverse only when

the sentence imposed represents a clear abuse of discretion. However, the

Supreme Court still instructs us to determine whether a district court’s

justification is “sufficiently compelling to support the degree of the variance.”

                                          -40-
Gall, 128 S. Ct. at 597. In this case, when I review Ms. Lente’s sentence,

“tak[ing] into account the totality of the circumstances, including the extent of

[the] variance,” id., I can only conclude that the district court abused its

discretion. The court did not sufficiently justify why Ms. Lente’s 216 month

sentence—159 months above the upper end of the Guidelines range—was a

reasonable sentence, one that was “sufficient but not greater than necessary” to

effectuate the statutory purposes of sentencing. Accordingly, I would hold that

Ms. Lente’s sentence is substantively unreasonable.




                                          -41-
