Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:08-cr-00034-DFH-KPF-1-David F. Hamilton, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before FLAUM, RIPPLE and EVANS, Circuit Judges.
Juan Corona-Gonzalez seeks review of a sentence imposed by the United States District Court for the Southern District of Indiana. A jury found Mr. Corona-Gonzalez guilty of possession with intent to distribute, and distribution of, 500 grams or more of a mixture containing a detectable amount of methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. The district court sentenced him to 240 months' imprisonment on each of Counts I and II, to run concurrently, and 60 months' imprisonment on Count III, to be served consecutively, for a total of 300 months' imprisonment. The court also imposed a term of five years of supervised release. Because the district court misapprehended a significant aspect of Mr. CoronaGonzalez's record at the time it imposed the sentence, we must reverse the judgment of the district court and remand the case to permit the district court to determine whether, without that misapprehension, it would have imposed a different sentence.*fn1
On February 13, 2008, Mr. Corona-Gonzalez was arrested during a DEA investigation in Indianapolis, Indiana, for allegedly delivering a substance containing methamphetamine to a confidential informant in a WalMart Supercenter parking lot. He was charged with knowingly possessing with intent to distribute, and distributing, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine (Counts I and II), in violation of 21 U.S.C. § 841(a)(1), and knowingly possessing a firearm during and in furtherance of a drug trafficking offense (Count III), in violation of 18 U.S.C. § 924(c). A jury convicted him of all three counts.
The presentence investigation report ("PSR") contained the advisory sentencing guidelines calculations, which neither party contests. It also contained information regarding the circumstances under which Mr. Corona-Gonzalez, who was born in Mexico, came to the United States with his family in 1998. Mr. Corona-Gonzalez entered this Country, with his mother and siblings, pursuant to a lawfully issued visa to join his father, who already resided here. In 2002, Mr. Corona-Gonzalez's mother and siblings returned voluntarily to Mexico, after his father was removed from this Country as a result of a drug conviction. Mr. Corona-Gonzalez, whose visa had expired, remained in the United States illegally.
The PSR also included Mr. Corona-Gonzalez's five previous misdemeanor convictions. These convictions, which consisted of four traffic offenses and one disorderly conduct offense, had occurred from 2001-2002.
At the sentencing hearing, the district court inquired whether the defense had any objections to the PSR. Defense counsel replied that he had reviewed the report with Mr. Corona-Gonzalez and wished to clarify the nature of the misdemeanor convictions and the sentences imposed. The district court agreed with the defense that the point of contention-whether probation had been imposed-would have no effect on the guidelines calculation. Noting that it had received a sentencing memorandum from the defense, the court then proceeded to approve the sentencing guidelines calcula- tion contained in the PSR. The court accepted a correction to the defense's sentencing memorandum with respect to the age of Mr. Corona-Gonzalez's child and then heard argument from defense counsel. After permitting Mr. Corona-Gonzalez to address the court, it heard argument from the Government's counsel. The court then announced the sentence that it was prepared to impose, followed by an explanation:
This is a case-by way of explanation-in which the Court finds that the guidelines provide a sound and reasonable basis for imposing the sentence to accomplish the purposes of section 3553(a)(2).
Looking first at the nature and circumstances of the offense here. I, frankly, am inclined to agree with the government. What we have here are lots of aggravating circumstances and very little by way of mitigation.
Mr. Corona-Gonzales, you had already been deported from this country before. You returned and were dealing methamphetamine, the most addictive and destructive drug and distribution in the United States. You were doing so while armed and that is just a very dangerous, completely unacceptable combination, for which Congress has proscribed severe penalties.
There is some debate about some other drugs and whether the guidelines are excessive. I don't have any concerns with respect to methamphetamine as dangerous and as addictive as it is. Those guidelines seem to me quite reasonable in terms of protecting the public and reflecting the seriousness of the offense.
When I look at you as an individual, your history and characteristics, what I see is somebody-as I mentioned-deported before and returned in order to deal drugs; somebody who has consistently had other sorts of legal troubles. If the criminal history were more serious that [sic] it is, the sentence would have been significantly higher even within the category III guideline range. But I've tried to account for the defense ...