United States v. Sandoval Enrique, 2017 WL 4002006 (September 12, 2017) (NM) (published): The defense tried to convince the panel that using a prior reentry sentence as a benchmark for a new reentry sentence is wrong for numerous reason: First, in rejecting two fast track plea agreements the district court failed to give adequate deference to the legislative policy behind those agreements. Second, it did not adequately consider that the prior sentence was imposed in a district without the fast track program and that the sentence there was excessive in light of the client's personal history. Third, after emphasizing the need for deterrence, the court believed, incorrectly, that legally it could not use supervised release as part of its sentence when the sentencing guidelines prescribed supervision to fulfill exactly that need. Finally, the court improperly inserted itself in the parties’ plea bargaining by disclosing the prison range it felt was appropriate.

Unfortunately, the panel was unmoved. In essence it held that: (a) a district court does not abuse its sentencing discretion when it uses a prior sentence as the starting point for the new offense’s sentence; and (b) a district court may announce a prison term or range it finds acceptable without violating Fed. R. Crim. P. 11(c)(1)’s directive that it not participate in plea discussions, if it does so while giving its reasons for rejecting a binding plea agreement.

On a positive note, the panel rejected the government’s motion to dismiss Sandoval’s appeal as moot. After completing his prison term, Sandoval was deported before his opening brief was filed. Because he was challenging his conviction, the panel held his appeal was justiciable.