United States v. Reinhart

United States Court of Appeals
Fifth Circuit
F I L E D
March 7, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-30245
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT RANDALL REINHART,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
______________________________
Before JOLLY, HIGGINBOTHAM, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Robert Reinhart challenges the length of his
sentence. Finding no error, we affirm.
I.
In July 1997 Reinhart pleaded guilty of con-
spiracy to commit sexual exploitation of chil-
dren through the production of child pornog-
raphy in violation of 18 U.S.C. § 2251. The
district court held him accountable for four
victims in making its sentencing guidelines
calculation. The guidelines imprisonment
range was 188 to 235 months, and in May
1998 Reinhart was sentenced to the 235-
month maximum.
A successful appeal resulted in the elimina-
tion of one of the victims from Reinhart’s

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sentencing calculus.1 On remand the district
court calculated the guidelines range at 168 to
210 months and sentenced Reinhart to the
maximum 210 months. Reinhart sought relief
from his sentence under 28 U.S.C. § 2255,
which the district court denied. Reinhart again
successfully appealed, resulting in the elimina-
tion of two more victims from the sentencing
calculus.2
After a second remand, but before Reinhart
was re-sentenced, the Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005),
under which the guidelines are no longer man-
datory. Booker, 543 U.S. at 263-64. The new
guidelines range for Reinhart’s offense, given
the elimination of two more victims from the
calculation, is 121 to 151 months. The district
court sentenced him to 235 months, just five
months short of the statutory maximum of 240
months. See § 2251(e). In justifying the sen-
tence, the court stressed, among other factors,
the “heinous” nature of the crime, Reinhart’s
repeated attempts to contact the victims while
incarcerated, and the court ’s newfound sen-
tencing freedom under Booker.
II.
Reinhart argues on appeal that the sentence
is presumptively vindictive because it is longer
than his immediately preceding sentence.
When a judge imposes a more severe sentence
on remand, “the reasons for him doing so must
affirmatively appear. Otherwise, a presumption
arises that a greater sentence has been imposed
for a vindictive purposeSa presumption that
must be rebutted by objective information
justifying the increased sentence.” Alabama v.
Smith, 490 U.S. 794, 798 (1989) (citations
omitted).
A district court can rebut a presumption of
vindictiveness by providing reasons for the
harsher sentence, which “must be based upon
objective information concerning identifiable
conduct on the part of the defendant occurring
after the time of the original sentencing pro-
ceeding.” United States v. Resendez-Mendez,
251 F.3d 514, 517 n.10 (5th Cir. 2001) (citing
North Carolina v. Pearce, 395 U.S. 711, 723
(1969)). If a presumption of vindictiveness
arises in Reinhart’s case, it cannot be rebutted,
because the district court cited no evidence of
newly discovered conduct by Reinhart in
justifying the longer sentence.
Reinhart urges that there is a presumption
of vindictiveness because the 235-month sen-
tence he received on the second remand is
greater than the 210-month sentence from
which he appealed. The government responds
that because the latest sentence does not ex-
ceed the original 235-month sentence, no such
presumption arises.
On this specific point, the government ad-
vances the wrong comparison. The purpose of
the presumption is to protect litigants from
fear of judicial retaliation following a success-
ful appeal. United States v. Campbell, 106
F.3d 64, 67 (5th Cir. 1997). Thus the proper
comparison is between the sentence from
which the defendant appealed and the sentence
handed down on remand following that appeal.
Reinhart successfully appealed a 210-month
1 United States v. Carroll, 190 F.3d 290 (5th
Cir. 1999), vacated for reh’g en banc sub nom.
United States v. Reinhart, 204 F.3d 581 (5th Cir.)
(per curiam), returned to panel, 226 F.3d 651 (5th
Cir. 2000) (en banc) (per curiam), judgment vacat-
ed and remanded, 227 F.3d 486 (5th Cir. 2000)
(per curiam), denial of relief under 28 U.S.C.
§ 2255 affirmed, 70 Fed. Appx. 757 (5th Cir.
2003) (per curiam).
2 United States v. Reinhart, 357 F.3d 521 (5th
Cir. 2004).

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sentence and received a 235-month sentence
on remand. Because his sentence was in-
creased, we must determine whether to invoke
the presumption.
The “presumption of vindictiveness does
not apply in every case where a convicted de-
fendant receives a higher sentence on retrial.”
Smith, 490 U.S. at 794 (citing Texas v. Mc-
Cullough, 475 U.S. 134, 138 (1986)). The
Smith Court explained as follows:
“The [presumption of vindictiveness] was
not designed to prevent the imposition of
an increased sentence on retrial “for some
valid reason associated with the need for
flexibility and discretion in the sentencing
process,” but was “premised on the appar-
ent need to guard against vindictiveness in
the resentencing process.”
Id. (quoting Chaffin v. Stynchcombe, 412 U.S.
17, 25 (1973)). The presumption applies only
where there exists a “reasonable likelihood that
the increased sentence is the product of actual
vindictiveness” and “where there is no such
reasonable likelihood, the burden remains upon
the defendant to prove actual vindictiveness.”
Id. (citations omitted).
The district court’s justification for the
longer sentence is its freedom post-Booker to
step beyond the guidelines range and impose
any reasonable sentence. That justification is
plainly a “valid reason associated with the need
for flexibility and discretion in the sentencing
process.” Id. Given such an “affirmatively
appear[ing]” reason for the increased sentence,
there is no reasonable likelihood that the
sentence was based on actual vindictiveness.
Id. Consequently, the presumption of vindic-
tiveness does not apply in this case, and the
burden is on Reinhart to prove actual vindic-
tiveness.
Reinhart offers no reason why we should
find vindictiveness in a longer sentence that
results from the unique situation created by
Booker. Following the persuasive guidance of
the Seventh Circuit, we conclude that there is
no vindictiveness in a post-Booker re-sentenc-
ing that exceeds the original pre-Booker sen-
tence solely because Booker changed the law.
We find convincing the explanation in
United States v. Goldberg, 406 F.3d 891, 894
(7th Cir. 2005).3 There is no reason to find
3 The Seventh Circuit explained:
Goldberg’s lawyer . . . believe[s] that a sen-
tence meted out in the pre-Booker era of man-
datory guidelines is the ceiling in the event of a
re-sentencing unless there are changed factual
circumstances, such as additional criminal
conduct by the defendant. If there are no such
changed circumstances, Goldberg’s lawyer told
us, the inference would arise that any heavier
sentence imposed on remand was vindictively
motivated and therefore improper. That is a
misunderstanding . . . dangerous to criminal
defendants. When there is no relevant legal or
factual change between sentence and re-sen-
tence, the motive for an increase in punishment
is indeed suspect. But Booker brought about a
fundamental change in the sentencing regime.
The guidelines, mandatory when Goldberg was
sentenced, are now advisory. Were he to be
re-sentenced, it would be under a different stan-
dard, one that would entitle the judge to raise or
lower the sentence, provided the new sentence
was justifiable under the standard of reason-
ableness. No inference of vindictiveness would
arise from the exercise of the judge’s new
authority.
. . . [A] defendant who appeals a pre-Booker
sentence on the basis that the guidelines were
misapplied (as in Goldberg’s challenge to the
(continued...)

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vindictiveness in a longer sentence that has its
basis in the trial court’s newly expanded sen-
tencing authority. Moreover, in Reinhart’s
case the court believed the longer sentence to
be the proper one from the start, but its hands
were tied by the mandatory nature of the
guidelines. To find vindictiveness in such a
case would be an improper limitation on the
sentencing discretion afforded under Booker.
III.
Reinhart contends the sentence is unreason-
able. The Court in Booker directed appellate
courts to review all sentences for “unreason-
ableness.” Booker, 543 U.S. at 261-62. The
Court further advised that the statutory sen-
tencing factors in 18 U.S.C. §3553(a) should
guide the courts of appeals in deciding wheth-
er a sentence is reasonable. Id.
In United States v. Mares, 402 F.3d 511,
519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005), we addressed the application of Book-
er’s unreasonableness standard to sentences
that go beyond the guidelines maximum:
When the judge exercises her discretion
to impose a sentence within the Guideline
range and states for the record that she is
doing so, little explanation is required.
However, when the judge elects to give a
non-Guideline sentence, she should care-
fully articulate the reasons she concludes
that the sentence she has selected is appro-
priate for that defendant. These reasons
should be fact specific and include, for ex-
ample, aggravating or mitigating circum-
stances relating to personal characteristics
of the defendant, his offense conduct, his
criminal history, relevant conduct or other
facts specific to the case at hand which led
the court to conclude that the sentence im-
posed was fair and reasonable. Such rea-
sons are essential to permit this court to re-
view the sentence for reasonableness as di-
rected by Booker.
(Footnotes omitted.) We further explained
that “[w]e use the term ‘non-Guideline’ sen-
tence to distinguish it from a Guidelines sen-
tence which includes a sentence that has been
adjusted by applying a ‘departure’ as allowed
by the Guidelines.” Id. at 519 n.7.
Therefore, under Mares, non-guideline sen-
tences are those that fall outside a calculated
guideline range. It will be rare for a guideline
sentence to be found unreasonable, but a non-
guideline sentence requires a more thorough
review. United States v. Smith, 417 F.3d 483,
490 (5th Cir.) (citing Mares, 402 F.3d at 519),
cert. denied, 126 S. Ct. 713 (2005). We have
addressed the reasonableness of upwardly-
departing guideline sentences under Booker
and Mares and, as a court, have just begun ex-
amining the reasonableness of non-guideline
sentences. See United States v. Smith, 2006
U.S. App. LEXIS 3994 (5th Cir. Feb. 17,
2006). Reinhart and the government agree
that the district court handed down a
non-guideline sentence.
We turn first to the standard of review to
be applied in a reasonableness review of a non-
guideline sentence. In Booker, 543 U.S. at
259, the Court indicated that review for rea-
sonableness is itself a sufficiently plain stan-
dard of review. This court, in interpreting the
Booker reasonableness standard, has applied
3(...continued)
vulnerable-victim enhancement) is playing with
fire, because if he wins and is resentenced the
judge will have more sentencing latitude, up as
well as down, than he did when the guidelines
were deemed mandatory.
Goldberg, 406 F.3d at 894-95 (citations omitted).

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an abuse of discretion standard to the reason-
ableness inquiry for upwardly departing guide-
lines sentences.4
There is no reason to depart from that stan-
dard here. In review of non-guideline sentenc-
es, an abuse of discretion standard is consis-
tent with the instruction provided in Booker,
which returned the standard of review for sen-
tencing to its previous status by excising 18
U.S.C. § 3742(e), which had been amended in
April 2003 to change the standard from abuse
of discretion to de novo. See Smith, 417 F.3d
at 490.
Because the standard of review for sentenc-
es in this circuit before the amendment was
abuse of discretion, one consequence of Book-
er is that we use that standard once again. Id.
Although our previous cases have dealt with
upwardly departing guideline sentences, Book-
er does not distinguish between guideline and
non-guideline sentences in requiring a reason-
ableness review.
Thus if reasonableness review requires an
abuse of discretion standard for guideline sen-
tences, the same should follow for non-guide-
line sentences. Although Mares demands a
more thorough review of non-guideline sen-
tences than of guideline sentences, our inquiry
in conducting that more thorough review will
be limited to determining whether the trial
judge overreached the discretionary sentencing
authority afforded under Booker. We there-
fore apply an abuse of discretion standard of
review to the reasonableness inquiry in
non-guideline cases such as Reinhart’s.
Our reasonableness review in non-guideline
cases begins with the requirement in Mares,
402 F.3d at 519, that the district court justify
a non-guideline sentence with “fact specific
reasons involving aggravating circumstances,
personal characteristics of the defendant, his
offense conduct, criminal history, or other
conduct specific to the case at hand.” Here,
the district court justified its sentence, in part,
as follows:
Number one, the nature and circum-
stances of the offense and the history and
characteristics of the defendant. That cer-
tainly goes against you, Mr. Reinhart, in
that the nature and circumstances of the
offense and the history you’ve exempli-
fied to this point, including writing the
victims even while you were incarcerated
which you were not supposed to do and
you knew you were not supposed to con-
tact them. The nature and circumstances
of your particular offense are of the na-
ture that this Court would presume and
believe to be the most heinous of all
crimes in that you took advantage of chil-
dren that were under your care as a Boy
Scout leader.
The court further justified the sentence on a
variety of other grounds. By providing these
reasons, the district court satisfied the require-
ment in Mares, id., that it enumerate the fac-
tors on which its sentence is based so the ap-
pellate court can conduct a reasonableness
review.
Reinhart’s sentence is not per se reasonable
merely because the district court articulated its
justification for the sentence as Mares re-
quires. Our inquiry turns now to whether the
court’s proffered justification for the 235-
month sentence is sufficient to withstand a rea-
sonableness review under an abuse of discre-
4 See Smith, 417 F.3d at 489-90; United States
v. Saldana, 427 F.3d 298, 308 (5th Cir.), cert. de-
nied, 126 S. Ct. 810 (2005), and cert. denied, 126
S. Ct. 1097 (2006).

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tion standard. Under Booker, we evaluate the
sentence for reasonableness by viewing the
district court’s stated justification in light of
the sentencing factors enumerated in 18
U.S.C. § 3553(a).5 Booker, 543 U.S. at
261-62.
The court justified the sentence with spe-
cific reference to the language of § 3553(a)(1).
The court considered the nature and circum-
stances of the offense to be particularly repre-
hensible in light of its exploitative character
and Reinhart’s relationship to the victim.
Reinhart’s history and characteristics, includ-
ing his attempts to contact the victim, further
exacerbated his culpability in the district
court’s evaluation.
The court’s statements also reflect a con-
cern for the seriousness of the offense and the
need to provide just punishment pursuant to
§ 3553(a)(2)(A). The court specifically ad-
dressed the need to protect the public from
further crimes by Reinhart and the need for
correctional treatment, as outlined in § 3553-
(a)(2)(C) and (D). Each of these factors tends
to underscore the reasonableness of the sen-
tence.
Other § 3553(a) factors operate in Rein-
hart’s favor. The court correctly calculated
the guideline range to be 121 to 151 months,
but it departed from that range dramatically
despite the advice of § 3553(a)(4). The court
also apparently did not consider the need to
5 The statute reads:
(a) Factors to be considered in imposing a sen-
tence.SSThe court shall impose a sentence
sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determin-
ing the particular sentence to be imposed, shall
considerSS
(1) the nature and circumstances of the offense
and the history and characteristics of the defen-
dant;
(2) the need for the sentence imposedSS
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed edu-
cational or vocational training, medical care, or
other correctional treatment in the most effec-
tive manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for . . . the applicable cate-
gory of offense committed by the applicable
category of defendant as set forth in the guide-
lines . . . ;
(continued...)
5(...continued)
(5) any pertinent [sentencing guidelines] policy
statement . . .
(6) the need to avoid unwarranted sentence
disparities among defendants with similar rec-
ords who have been found guilty of similar con-
duct; and
(7) the need to provide restitution to any vic-
tims of the offense.
18 U.S.C. § 3553(a).

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avoid unwarranted sentence disparities among
similarly-situated defendants as advised by
§ 3553(a)(6). Reinhart’s sentence is undoubt-
edly longer than that received by other similar
defendants.
Reinhart’s principal argument for the un-
reasonableness of his sentence is that it departs
dramatically from the guideline range.
Reinhart essentially asks us to hold that any
235-month non-guideline sentence is presumed
unreasonable where the guidelines maximum is
only 151 months.
Departure from the guidelines range, how-
ever, cannot alone support a finding of unrea-
sonableness after Booker, in which the Court
has indicated that the guidelines are merely
one sentencing factor among many, and the
calculated guideline range must be considered
in conjunction with the other § 3553(a) fac-
tors. See Booker, 543 U.S. at 245-46. We
therefore decline to give the guidelines the
quasi-mandatory status urged by Reinhart.
Applying an abuse of discretion standard of
review, we defer to the district court’s reason-
able assessment of the statutory factors, with
particular emphasis on the nature and circum-
stances of the offense and Reinhart’s history
and characteristics. We will not require a dis-
trict court to conform a sentence to the guide-
line range where that court has made a reason-
able determination, based on a variety of other
equally legitimate factors, that a non-guideline
sentence is proper.
Viewing the district court’s justification in
light of all the § 3553(a) factors, we conclude
that Reinhart’s sentence is not unreasonable.
The court did not take into account any inap-
propriate or unreasonable factors. It enumer-
ated its reasons for a non-guideline sentence as
required by Mares, and its reasons are largely
consistent with the factors laid out in
§ 3553(a), as instructed by Booker. Accord-
ingly, the court did not abuse its discretion.
IV.
Reinhart contends that because he commit-
ted his crime when the guidelines were man-
datory, the district court’s use of the guide-
lines as merely advisory violates his rights un-
der the Ex Post Facto Clause of the Constitu-
tion. In Rogers v. Tennessee, 532 U.S. 451,
460 (2001), however, the Court held that that
clause, by its own terms, is a limitation on leg-
islative powers and does not apply to the
courts. Reinhart’s argument on this point is
meritless.
Reinhart also urges that the district court’s
use of a sentencing system that was not in ef-
fect when he committed his crime violates the
ex post facto principles inherent in the Due
Process Clause. This court, however, has re-
cently foreclosed Reinhart’s argument. In
United States v. Scroggins, 411 F.3d 572, 576
(5th Cir. 2005), we rejected the defendant’s
contention that application of post-Booker
sentencing principles to a pre-Booker offense
violates the defendant’s ex post facto rights.
The use of an advisory sentencing scheme did
not violate Reinhart’s due process rights.
The judgment of sentence is AFFIRMED.

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