                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-2005

USA v. Soto
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4767




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"USA v. Soto" (2005). 2005 Decisions. Paper 328.
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                                                                    NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 04-4767
                                      ____________

                            UNITED STATES OF AMERICA

                                              v.

                                  CARLOS LUIS SOTO
                                    a/k/a CARLITO

                                        Carlos Luis Soto,
                                                Appellant
                                       ____________

                       Appeal from the United States District Court
                         For the Eastern District of Pennsylvania
                                  D.C. No.: 03-cr-00173-7
                       District Judge: Honorable R. Barclay Surrick
                                       ____________

              Submitted Under Third Circuit LAR 34.1(a) October 25, 2005

                 Before: SLOVITER, FISHER, and ROSENN, Circuit Judges

                                 (Filed: October 27, 2005)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

       Carlos Luis Soto (Soto) appeals his sentence in the United States District Court

for the Eastern District of Pennsylvania, claiming that the District Court clearly erred by
giving him a higher sentence than the judge thought appropriate because he felt

compelled to follow the Federal Sentencing Guidelines. A grand jury in the Eastern

District of Pennsylvania indicted Soto charging him with one count of conspiracy to

distribute in excess of fifty grams of cocaine base (crack) in violation of 21 U.S.C. § 846,

three counts of distribution of crack in violation of 21 U.S.C. § 841(a)(1) and aiding and

abetting in violation of 18 U.S.C. § 2, and three counts of distribution of crack within one

thousand feet of a school in violation of 21 U.S.C. § 860(a) and aiding and abetting.

       Soto, pursuant to a written plea agreement, pled guilty to three counts of

distribution of crack cocaine and three counts of distribution of crack within one thousand

feet of a school. The Government agreed to withdraw the conspiracy count at sentencing.

Because Soto qualified as a career offender, the Federal Sentencing Guidelines called for

292-365 months imprisonment. At sentencing, Soto objected to the application of the

Guidelines as unconstitutional in the wake of Blakely v. Washington, 542 U.S. 296

(2004). The District Court overruled this objection, found that the guidelines were

binding, and sentenced Soto to 292 months of imprisonment.

       After Soto filed a timely notice of appeal, his attorney filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967). He sought to withdraw as counsel of record

and stated that the appeal was frivolous because the record shows the court would have

imposed the same sentence without the Guidelines. Soto filed a pro se brief and argues

that he is entitled to resentencing and an opportunity to seek a lower sentence. The



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Government agrees.

       Because Soto preserved his objection to the constitutional application of the

Guidelines, the District Court’s sentencing decision is subject to review. Therefore, if

error was committed, the burden rests on the Government to establish that the error did

not affect the outcome of the case. United States v. Henry, 282 F.2d 242, 251 (3d Cir.

2002). In its brief, the Government submits that it cannot sustain its burden because the

District Court applied the guidelines as mandatory. The Supreme Court held in United

States v Booker, 125 S. Ct. 738 (2005), that the mandatory application of the guidelines is

not constitutionally permissible.

       At the sentencing hearing, the Judge stated:

             The guidelines in this matter call for a sentence of between 292
       months and 365 months. . . . [Soto] has over and over again in the state
       system refused to get the message, and the end result of that is that he’s
       going to pay a very, very significant price today.

              The guidelines provide for the sentence which I’m going to impose
       at the lower end of the guidelines because I think that’s more than
       adequate to deal with the situation. I would indicate, however, that even if
       there were no guidelines, when you look at a record like this with five
       prior convictions for doing exactly the same thing, you have to reach the
       conclusion that a significant jail sentence is appropriate.

              So I’m going to sentence Mr. Soto at the bottom of the guideline
       range, which is approximately 24 years plus a few months, which is a very
       significant sentence. I think that will satisfy the ends of justice.

This language clearly suggests the possibility that the court would find a lesser sentence

to be adequate and appropriate, especially in light of the command of 18 U.S.C. § 3553(a)



                                             3
that the sentence be “sufficient, but not greater than necessary.”

       For the reasons stated above, we vacate the sentence and remand for resentencing

in accordance with Booker. Because of the remand to the District Court, Counsel’s

request to withdraw at this time is denied.




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