Court Affirms Upward Variance to 30 Years

United States v. Tommy Pena, Docket No. 19-2050 (10th Cir. June 24, 2016) (published): The Tenth affirms a huge upward sentencing variance.

Mr. Pena was convicted of a variety of crimes, including carjacking, felon in possession, and 18 USC 924(c). Under the 2010 guidelines, he was both ACCA and a career offender, and he was sentenced to 40 years in prison, based on the mandatory minimum sentence of 30 years for being a career offender under the guidelines and a consecutive 10-year sentence for the 924(c) conviction. Following the decision in Johnson v. U.S., 135 S.Ct. 2551 (2015), he filed a motion under 28 USC 2255, which was granted because Mr. Pena’s prior state conviction for shooting at an occupied building or dwelling was no longer a crime of violence or violent felony. Thus, at resentencing, Mr. Pena was no longer ACCA nor a career offender under the 2016 guidelines. The district court found that Mr. Pena's advisory guideline range was 63-78 months, which (after adding in the corrected minimum mandatory consecutive 60-month sentence for the 924(c) conviction) resulted in a total adjusted range of 123-168 months. The government wanted 30 years. The district court agreed. The Tenth affirms. This massive upward variance was both procedurally and substantively reasonable even though Mr. Pena never physically injured anyone and much of the conduct the sentencing court found to be awful was actually committed by his codefendant or was relatively minor prison misconduct.