Tenth Affirms Vitality of Gall/Kimbrough for Downward Variances, But Defendant's Boots Were Suspicious

United States v. Muñoz-Nava, ___ F.3d ___, 2008 WL (10th Cir. May 6, 2008)

Bad news first: there was probable cause to detain Defendant and take him to DEA HQ from the bus station where he arrived from El Paso wearing boots that attracted unwanted attention, and to detain those boots pending issuance of a search warrant. The totality of circumstances supporting probable cause: Defendant’s lack of luggage; the bulge in the boots; smell of fresh glue; lack of wear; similarity to false boot compartments seen before by the agent; and the iffy alert by the drug sniffing dog.

Good news: Sentencing discretion reigns: starting from a 63-78 month guidelines calculation in the presentence report, the district court did not error in adjusting the guidelines for minor role and granting 1 extra point for acceptance, leading to a new advisory range of 46-57 months. Furthermore, there was no error in granting a downward variance to one year in custody plus one year on home confinement. The court did not procedurally err, either; the court was entitled to draw inferences from the facts re: minor role (and government claim on extra point for acceptance reviewed under plain error–no error). The ultimate sentence was substantively reasonable; the court's emphasis on extraordinary family circumstances was supported by the record. Also, home confinement substantially restricts liberty as to constitute punishment, contributing to the reasonableness conclusion.