                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-50239
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-06-02104-WQH
JAVIER AMEZCUA-VASQUEZ,
                                              ORDER
             Defendant-Appellant.
                                      
                  Filed November 10, 2009

  Before: William C. Canby, Jr., Andrew J. Kleinfeld, and
               Jay S. Bybee, Circuit Judges.

                          Order;
               Dissent by Judge O’Scannlain


                          ORDER

   A judge sua sponte requested a vote on whether to rehear
this matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed R. App. P. 35.

  The mandate shall issue forthwith.




                            15077
15078         UNITED STATES v. AMEZCUA-VASQUEZ
O’SCANNLAIN, Circuit Judge, dissenting from the denial of
rehearing en banc, joined by KOZINSKI, Chief Judge, and
GOULD, TALLMAN, CALLAHAN, BEA, and N.R.
SMITH, Circuit Judges:

   This is the first published opinion in this circuit reversing
a within-Guidelines sentence as substantively unreasonable.
The panel reaches this unprecedented result by casting aside
Supreme Court and Ninth Circuit precedent in three ways:
first, by failing to apply the appropriate standard of review;
second, by recognizing a brand-new category of sentencing
factors whose consideration by the district court warrants vir-
tually no deference; and finally, by assuming a policymaking
role properly reserved to the district court. I must respectfully
dissent from our failure to rehear this case en banc.

                                I

   Javier Amezcua-Vasquez (“Amezcua”), a Mexican
national, became a lawful permanent resident of the United
States in 1957, at the age of two. In 1981, he was convicted
in state court of attempted voluntary manslaughter and assault
with great bodily injury for stabbing someone with a knife in
a gang-related bar fight. Based on his 1981 conviction, Amez-
cua was ordered removed to Mexico in 2006. Just two weeks
after his removal, however, he was caught trying to reenter
the United States. A grand jury returned an indictment charg-
ing him with attempted illegal reentry in violation of 8 U.S.C.
§ 1326. Amezcua pled guilty.

   At sentencing, the district court determined that Amezcua’s
base offense level was 8 under U.S.S.G. § 2L1.2(a). The court
then applied a sixteen-level increase under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because Amezcua’s 1981 conviction was
for a felony that was a “crime of violence.” After applying a
two-level decrease for acceptance of responsibility, see
U.S.S.G. § 3E1.1, the court arrived at a total offense level of
22. As for Amezcua’s criminal history, the court placed him
              UNITED STATES v. AMEZCUA-VASQUEZ           15079
in category II based on a 1999 conviction for an offense
involving a controlled substance. Significantly, Amezcua’s
1981 conviction did not count toward his criminal history
score because it fell outside the applicable time period under
the Guidelines. See id. § 4A1.2(e). Six of Amezcua’s other
prior convictions also did not count.

   Based on a total offense level of 22 and a criminal history
category II, the district court calculated an advisory Guide-
lines range of 46 to 57 months’ imprisonment. The court sen-
tenced Amezcua to 52 months, in the middle of the range. It
explained that it had “considered all” of the factors set forth
in 18 U.S.C. § 3553(a), including “the defendant’s prior
record and the circumstances of the offense.” Although the
court did not think the circumstances of the offense were
“particularly aggravating,” it believed that 52 months was
“the minimum sentence that would afford deterrence to crimi-
nal conduct,” given “the defendant’s prior criminal history
and contacts with law enforcement.” The court described
those contacts as “significant,” and noted that “a number” of
them had not been scored under the Guidelines.

  The panel reversed, holding that Amezcua’s 52-month,
within-Guidelines sentence was substantively unreasonable.
The panel disapproved of “the unmitigated application of the
Guidelines sentence with its 16-level enhancement” based on
Amezcua’s 1981 conviction for a “crime of violence.” United
States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir.
2009). The panel explained:

    Although it may be reasonable to take some account
    of an aggravated felony, no matter how stale, in
    assessing the seriousness of an unlawful reentry into
    the country, it does not follow that it is inevitably
    reasonable to assume that a decades-old prior con-
    viction is deserving of the same severe additional
    punishment as a recent one. The staleness of the con-
    viction does not affect the Guidelines calculation,
15080         UNITED STATES v. AMEZCUA-VASQUEZ
    but it does affect the § 3553(a) analysis. We hold
    that the district court abused its discretion when it
    applied the Guidelines sentence to Amezcua without
    making allowances for the staleness of the prior con-
    viction and his subsequent lack of any other convic-
    tions for violent crimes. The result was an
    unreasonable sentence.

Id. at 1055-56.

   The panel maintained that its decision was “not inconsis-
tent” with United States v. Whitehead, 532 F.3d 991 (9th Cir.
2008), or United States v. Ruff, 535 F.3d 999 (9th Cir. 2008),
two cases in which we upheld sentences below the advisory
Guidelines range. Amezcua-Vasquez, 567 F.3d at 1056.
According to the panel, the sentences affirmed in Whitehead
and Ruff were “the product of defendant-specific § 3553(a)
mitigating (or aggravating) factors with respect to which the
district court was in a superior position to find the relevant
facts and to judge their import.” Id. at 1057 (internal quotation
marks omitted). By contrast, the panel suggested, Amezcua’s
sentence was the product of “offense-specific sentencing fac-
tors,” which the district court was not in a superior position
to evaluate. Id. Given this distinction, the panel concluded,
“[n]either Whitehead nor Ruff requires us to affirm the sen-
tence in the present circumstances.” Id.

                               II

   By now, we should all be familiar with the post-Booker
standard governing appellate review of sentences for substan-
tive reasonableness. As the Supreme Court reminded us in
Gall v. United States, 128 S. Ct. 586 (2007), “courts of
appeals must review all sentences—whether inside, just out-
side, or significantly outside the Guidelines range—under a
deferential abuse-of-discretion standard.” Id. at 591. “The fact
that the appellate court might reasonably have concluded that
              UNITED STATES v. AMEZCUA-VASQUEZ             15081
a different sentence was appropriate is insufficient to justify
reversal of the district court.” Id. at 597.

   The panel insists that it gave “due weight to these princi-
ples,” Amezcua-Vasquez, 567 F.3d at 1055, but its analysis
suggests otherwise. Despite quoting a few passages from Gall
and other sentencing cases, see id., the panel pays no heed to
the appropriate standard of review, giving little, if any, defer-
ence to the district court’s conclusion that the § 3553(a) fac-
tors warranted a within-Guidelines sentence. Cf. Gall, 128
S. Ct. at 600.

   The panel essentially concedes as much. It relies on a dis-
tinction between “defendant-specific” and “offense-specific”
factors to justify giving virtually no weight to the district
court’s consideration of the seriousness of Amezcua’s crimi-
nal history. But such a distinction finds no support in
Supreme Court precedent. The Court has never said that a dis-
trict court’s decision with respect to some § 3553(a) factors
deserves deference while a district court’s decision with
respect to other § 3553(a) factors does not. Instead, the Court
has consistently referred to the § 3553(a) factors as a whole,
without any indication that “defendant-specific” factors
should be treated differently than “offense-specific” factors.
See, e.g., Gall, 128 S. Ct. at 596-98.

   In Ruff, moreover, we rejected the very notion that the level
of deference we owe depends on the type of sentencing fac-
tors at issue. Although the panel attempts to portray Ruff as
a case involving only “defendant-specific” factors, we
expressly declined in Ruff to recognize any distinction among
the factors set forth in § 3553(a). We explained:

    The clear message in Gall . . . is that we must defer
    “to the District Court’s reasoned and reasonable
    decision that the § 3553(a) factors, on the whole, jus-
    tified the sentence.” Gall happened to discuss post-
    crime maturation and self-rehabilitation because they
15082         UNITED STATES v. AMEZCUA-VASQUEZ
    were the basis of the district court’s reasoned deci-
    sion in that case, but it is the reasoned decision itself,
    not the specific reasons that are cited, that triggers
    our duty to defer.

535 F.3d at 1003 (emphasis added) (citation omitted) (quoting
Gall, 128 S. Ct. at 602). Ruff makes plain that the deferential
abuse-of-discretion standard applies regardless of which
§ 3553(a) factors form the basis of the district court’s deci-
sion. By creating an exception to the deferential abuse-of-
discretion standard for any sentence based on a district court’s
consideration of a defendant’s criminal history (or other
“offense-specific” factors), the panel’s decision significantly
distorts the law of this circuit.

   To make matters worse, the panel’s distinction between
“defendant-specific” and “offense-specific” factors is hardly
any distinction at all. Almost any “offense-specific” factor
could also be characterized as a “defendant-specific” factor,
and vice versa. The panel itself seems confused about the dif-
ference. For the most part, it seems to treat the seriousness of
Amezcua’s criminal history as an “offense-specific” factor,
whose consideration by the district court is entitled to virtu-
ally no deference. But the panel also expressly refers to “the
staleness of [Amezcua’s] predicate prior conviction and its
diminished import on the severity of [his] illegal reentry” as
“defendant-specific facts.” Amezcua-Vasquez, 567 F.3d at
1057 (“[T]he district court applied the Guidelines sentence
without considering the defendant-specific facts that made the
resulting sentence unreasonable under § 3553(a)—i.e., the
staleness of the predicate prior conviction and its diminished
import on the severity of the illegal reentry decades after the
original conviction.”). Even the panel can’t seem to keep the
two categories straight.

  Although the panel assures us that the scope of its decision
is “limited,” id. at 1058, its novel distinction between
“defendant-specific” and “offense-specific” factors will be a
              UNITED STATES v. AMEZCUA-VASQUEZ             15083
lasting source of confusion. In struggling to distinguish the
two types of factors, future panels will be tempted to charac-
terize the district court’s considerations as involving either
one or the other, depending on whether they agree or disagree
with the defendant’s sentence. From now on, any panel that
disagrees with a defendant’s sentence can justify giving the
district court’s considerations less weight by simply charac-
terizing them as “offense-specific.” No one will be the wiser,
given the near-impossibility of telling the two types of factors
apart.

                               III

   The panel’s failure to apply the appropriate standard of
review is not the only reason we should have reheard this case
en banc. By faulting the district court for not disagreeing with
the    sentencing       policy     reflected     in    U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), the panel assumes a policymaking role
inappropriate for an appellate court.

   In Kimbrough v. United States, 128 S. Ct. 558 (2007), the
district court imposed a sentence below the advisory Guide-
lines range based on a policy disagreement with the 100-to-1
crack/powder cocaine disparity under the Guidelines. See id.
at 565. The Supreme Court held that the district court did not
abuse its discretion, given that the crack cocaine Guidelines
“do not exemplify the Commission’s exercise of its character-
istic institutional role.” Id. at 575. But it is one thing to say
that a district court may vary from the crack cocaine Guide-
lines on policy grounds; it is quite another to say that it must.
Kimbrough does not “mean[ ] that a district court now acts
unreasonably, abuses its discretion, or otherwise commits
error if it does not consider the crack/powder sentencing dis-
parity.” United States v. Roberson, 517 F.3d 990, 995 (8th
Cir. 2008) (emphasis added).

  Similarly, here, it is one thing to say that the district court
could have varied from § 2L1.2(b)(1)(A)(ii); it is quite
15084         UNITED STATES v. AMEZCUA-VASQUEZ
another to say that the district court had an obligation to vary.
By requiring the district court to vary based on the panel’s
disagreement with the policy reflected in § 2L1.2(b)(1)(A)(ii),
see Amezcua-Vasquez, 567 F.3d at 1056, the panel turns Kim-
brough on its head. It converts the district court’s discretion
to vary from the Guidelines based on a policy disagreement
into a mandate that it do so. But Kimbrough is a shield, not
a sword. It protects the district court’s discretion to make pol-
icy judgments; we are not supposed to pierce it. By taking
issue     with     the     “unmitigated        application”    of
§ 2L1.2(b)(1)(A)(ii), id. at 1055, the panel substitutes its own
policy judgment for that of the district court as well as the
Sentencing Commission.

   In any event, the panel’s policy disagreement with the
Guidelines proceeds on a faulty premise. Contrary to the
panel’s view, the Guidelines do not “assume that a decades-
old prior conviction is deserving of the same severe additional
punishment as a recent one.” Id. at 1055-56. The Guidelines
do account for the staleness of a defendant’s prior conviction
—in the calculation of the defendant’s criminal history score.
Here, Amezcua’s 1981 conviction did not count toward his
criminal history score precisely because it was “decades-old.”
See U.S.S.G. § 4A1.2(e). To say that the Guidelines failed to
account for the staleness of Amezcua’s prior conviction is
simply inaccurate.

                               IV

   This is not just another sentencing case. Employing what
amounts to a de novo standard of review, the panel becomes
the first in our circuit to publish an opinion reversing a
within-Guidelines sentence as substantively unreasonable. In
the process, the panel recognizes a brand-new category of
sentencing considerations purportedly undeserving of defer-
ence, and usurps the policymaking role of the district court as
well as the Sentencing Commission. For these reasons, I
respectfully dissent from the denial of rehearing en banc.
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