United States v. Dionisio Zapete-Garcia, a/k/a Vetilio E. Fajardo

United States Court of Appeals
For the First Circuit
No. 05-1352
UNITED STATES,
Appellee,
v.
DIONISIO ZAPETE-GARCIA, a/k/a Vetilio E. Fajardo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
José Guillermo Gonzalez on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney,
and H.S. Garcia, United States Attorney, on brief for appellee.
May 8, 2006

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The district court relied on the November 2004 version of the 1
Guidelines.
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STAHL, Senior Circuit Judge. In October 2004, Dionisio
Zapete-Garcia (Zapete) disembarked from an airplane in Isla Verde,
Puerto Rico. The flight had originated in the Dominican Republic.
On arrival, Zapete presented United States immigration officials
with an American permanent resident card bearing his own photograph
and the name Vetilio E. Fajardo. Upon questioning, Zapete admitted
that he had obtained the card fraudulently, paying approximately
$1,500 for it. Federal Immigration and Customs Enforcement records
revealed that Zapete had been deported from the United States twice
previously, once in 1985 and once in 1987.
That December, Zapete pleaded guilty to one count of
knowingly using or attempting to use a forged, counterfeit, or
altered immigration document in violation of 18 U.S.C. § 1546(a).
His sentencing hearing took place on February 4, 2005 in the
District Court for the District of Puerto Rico. The district
judge, following the recommendation of the Pre-Sentence
Investigation Report (PSR), began his calculations under the
federal Sentencing Guidelines with a base offense level of 8. He 1
then added two levels because Zapete was an unlawful alien who had
previously been deported from the United States (U.S.S.G. §
2L2.2(b)(1)) and subtracted two levels for acceptance of
responsibility (§ 3E1.1), arriving at a total offense level of 8.

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The statutory maximum penalty for Zapete's offense was ten 2
years of imprisonment. 18 U.S.C. § 1546(a).
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Because Zapete had never before been convicted of any offense, the
court determined his criminal history category to be I. The total
offense level combined with the criminal history category yielded
a recommended guidelines sentencing range of zero to six months.
The district judge, however, after reminding the parties that
United States v. Booker, 543 U.S. 220 (2005), had rendered the
guidelines advisory rather than mandatory, sentenced Zapete to 48
months in prison, eight times the maximum guideline-recommended
sentence. As explanation for the sentence he chose, the judge 2
stated:
The Court imposes this sentence based on the
following factors. As it appear[s] from the
presentence report . . . this defendant has
already been deported twice from the United
States. He had been deported back in October
of [19]85 and August of 1987. It also appears
from the presentence report that he was
arrested on November 14, 1991, in New York
City, charged with criminal possession of
controlled substance, narcotics, a Class A
Felony, and with criminal possession of a
weapon, which is a Class D Felony. And since
1992 a bench warrant [that] has been issued
for his arrest remains outstanding. For those
reasons the Court imposes the sentence that it
has imposed.
Zapete now challenges his sentence.
We review sentences imposed after Booker for
reasonableness. Booker, 543 U.S. at 261; United States v. Alli, __

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Zapete argues that we should review his sentence de novo 3
because he pleaded guilty before Booker was decided, even though he
was sentenced post-Booker. However, we have already made clear
that sentences imposed after Booker was handed down are reviewed
for reasonableness. It is possible to construe Zapete's brief as
arguing that Zapete was denied due process and fair warning because
the sentence he was given was "higher than any that might
realistically have been imagined at the time of the crime," United
States v. Lata, 415 F.3d 107, 112 (1st Cir. 2005), but our
disposition of the case on reasonableness grounds makes any
consideration of due process unnecessary. See id.
These factors are: 4
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence to reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment; to afford adequate deterrence; to protect the public;
and to provide the defendant with needed educational or vocational
training or medical care;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
by the Guidelines;
(5) any pertinent policy statement;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
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F.3d __, 2006 WL 893620, at *4 (1st Cir. Apr. 7, 2006).3
Procedurally, under the advisory guidelines scheme set in place by
Booker, a sentencing court will ordinarily begin by calculating the
applicable guidelines range and then determine whether other
factors "warrant an ultimate sentence above or below the guideline
range." United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st
Cir. 2006) (en banc). The court must consider factors identified
by the parties, see id., and is also bound to consider the several
sentencing factors set out in 18 U.S.C. § 3553(a). Alli, 2006 WL 4

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18 U.S.C. § 3553(a).
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893620, at *4; United States v. Robinson, 433 F.3d 31, 35 (1st Cir.
2005). When we review the chosen sentence for reasonableness, we
look for "a plausible explanation and a defensible overall result."
United States v. Smith, __ F.3d __, 2006 WL 893622, at *3 (1st Cir.
Apr. 7, 2006) (quoting Jiménez-Beltre, 440 F.3d at 519).
Here, the judge offered two reasons for imposing a
sentence upon Zapete that was eight times the length of the maximum
guideline-recommended sentence. First, he mentioned the fact that
Zapete had previously been deported twice from the United States.
Second, he indicated that Zapete's arrest in New York some years
earlier, along with the accompanying outstanding bench warrant, was
a factor calling for a longer sentence. We evaluate these two
factors with an eye to "a reasoned explanation" and "a plausible
outcome." Alli, 2006 WL 893620, at *5 (quoting Jiménez-Beltre, 440
F.3d at 519).
The first factor, Zapete's previous deportations from the
United States, was already accounted for in the guideline
calculation: the PSR recommended, and the judge adopted, a two-
level increase applicable to a defendant who "is an unlawful alien
who has been deported (voluntarily or involuntarily) on one or more
occasions prior to the instant offense." U.S.S.G. § 2L2.2(b)(1).
When a factor is already included in the calculation of the
guidelines sentencing range, a judge who wishes to rely on that

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same factor to impose a sentence above or below the range must
articulate specifically the reasons that this particular
defendant's situation is different from the ordinary situation
covered by the guidelines calculation. See Smith, 2006 WL 893622,
at *5. The judge in this case provided no such explanation. We do
note that the two-level guideline enhancement in § 2L2.2(b)(1)
applies to any unlawful alien defendant who has previously been
deported at least once; the guideline does not recommend a steeper
enhancement for defendants who have been deported multiple times.
It is not necessarily unreasonable for a judge to increase the
sentence of a defendant who had previously been deported more than
once, and indeed Zapete had been deported twice. However, although
some amount of increase for multiple violations might be reasonable
if supported by an explanation, here there was no explanation for
an increase of such magnitude. In any event we cannot say that one
additional prior deportation reasonably warrants an eightfold
increase in punishment. Cf. Smith, 2006 WL 893622, at *6 (sentence
less than half of minimum guideline suggestion plainly unreasonable
where judge provided no sustainable explanation).
The second factor relied upon by the district judge to
enhance the sentence, Zapete's arrest in New York City in 1991 and
the accompanying outstanding bench warrant, is also unpersuasive to
support the magnitude of the increase. To begin with, the
guidelines contain a policy statement that allows sentencing courts

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"to consider 'prior similar adult criminal conduct not resulting in
a criminal conviction'" but prohibits them from basing an upward
departure solely on a defendant's prior arrest record. Williams v.
United States, 503 U.S. 193, 197 (1992) (quoting U.S.S.G. §
4A1.3(a)(3)). Although this policy statement is no longer binding,
see Smith, 2006 WL 893622, at *3, one of the seven statutory
factors a judge must consider in sentencing is "any pertinent
policy statement issued by the Sentencing Commission." 18 U.S.C.
§ 3553(a)(5). Therefore, while not controlling, the policy
statement prohibiting reliance solely on arrest records must be
duly considered by the district judge. There is no evidence that
the judge in this case did so.
More generally, a mere arrest, especially a lone arrest,
is not evidence that the person arrested actually committed any
criminal conduct. This is because arrest "happens to the innocent
as well as the guilty." Michelson v. United States, 335 U.S. 469,
482 (1948); cf. Cheek v. Bates, 615 F.2d 559, 563 (1st Cir. 1980)
("mere arrest" without conviction "clearly inadmissible to show
lack of credibility"). The guideline policy statement recognizes
this limitation on the value of an arrest as information about a
defendant's criminal propensity, highlighting the important
distinction between direct evidence of past criminal behavior and
mere arrests that may or may not have been the result of
wrongdoing. Although a series of past arrests might legitimately

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suggest a pattern of unlawful behavior even in the absence of any
convictions, Zapete was arrested only a single time, more than a
decade ago. Thus, we conclude that it was unreasonable for the
district court to rely on Zapete's single prior arrest as
justification for enhancing his sentence.
Finally, we emphasize that we do not reject the sentence
imposed below solely because of the magnitude of its deviation from
the guideline-recommended range. Although "circumstances may make
a major variance reasonable," Smith, 2006 WL 893622, at *3, no such
circumstances are obvious from the record in this case and no
adequate explanation for such a large variation has been provided.
The appellant's sentence is vacated and the matter is
remanded for resentencing in accordance with this opinion.

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