United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
February 18, 2014, petitioner Leo Villarreal, appearing
pro se, filed a motion pursuant to 28 U.S.C. §
2255 (“2255 Motion”) to vacate or set aside his
criminal conviction in this case. (CV-14-5008, Docket 1). On
May 2, 2016, the court granted in part and denied in part Mr.
Villarreal's 2255 Motion. (Id., Docket 24). Mr.
Villarreal appealed to the United States Court of Appeals for
the Eighth Circuit. (Id., Docket 25). On October 4,
2016, the Eighth Circuit granted in part Mr. Villarreal's
application for a certificate of appealability and remanded
the case to the district court to determine whether Mr.
Villarreal should “be resentenced under the sentence
packaging doctrine applied in United States v.
McArthur, No. 14-3335, 2016 WL 4698285 (8th Cir. Sept.
8, 2016).” (Id., Docket 31).
order to determine whether the sentence packaging doctrine
applies in Mr. Villarreal's case, the court must review
the relevant portion of the record. On August 17, 2010, Mr.
Villarreal was charged by a three-count
indictment.(Docket 1). Count I charged Mr. Villarreal
with aggravated sexual abuse by force of L.L.H. on March 10,
2010, in violation of 18 U.S.C. §§ 2241(a)(1),
2246(2)(A) and 1153; count II charged Mr. Villarreal with
aggravated sexual abuse of a minor, L.L.H., on March 10,
2010, in violation of 18 U.S.C. §§ 2241(a)(1),
2246(2)(D) and 1153; and count III charged Mr. Villarreal
with sexual abuse of M.T.L. on March 10, 2010, in violation
of 18 U.S.C. §§ 2242(2), 2246(2)(C) and 1153.
Id. On June 23, 2011, a jury unanimously found Mr.
Villarreal guilty of counts II and III of the indictment.
(Docket 92). Mr. Villarreal was sentenced to a term of
imprisonment on count II of 120 months and 96 months on count
III, with the sentences to run concurrently. (Docket 129 at
resolving the 2255 Motion, the court concluded Mr.
Villarreal's conviction on count III of the indictment,
sexual abuse in violation of 18 U.S.C. §§ 1153,
2242(2) and 2246(2)(C), must be vacated. (CV 14-5008,
Docket 24). The judgment was amended consistent with the
order. (Docket 151).
the sentencing package doctrine, the Court of Appeals
“may vacate the entire sentence on all counts so that,
on remand, the trial court can reconfigure the sentencing
plan to ensure that it remains adequate to satisfy the
sentencing factors in 18 U.S.C. § 3553(a).”
McArthur, 2016 WL 4698285, at *10 (citing
Greenlaw v. United States, 554 U.S. 237, 253 (2008);
also referencing United States v. Bruguier, 735 F.3d
754, 764 (8th Cir. 2013) (en banc)). The doctrine
often arises in cases involving “multicount indictments
and a successful attack by a defendant on some but not all of
the counts of conviction.” Id. (citing
Greenlaw, 554 U.S. at 253). A defendant has no
expectation of finality in his sentence until an appeal is
concluded, and the Double Jeopardy Clause “does not bar
resentencing on all counts to carry out the sentencing
judge's original intent.” Id. (citing
United States v. Evans, 314 F.3d 329, 333 (8th Cir.
sentencing hearing in Mr. Villarreal's criminal case
occurred on March 8, 2012. (Docket 128). The presentence
report (“PSR”) of March 5, 2012, was adopted
without change. (Docket 139 at p. 11:24-25). In paragraph 25
of the PSR, count II had a base offense level of
“30.” Id. at p. 8:21-22. At paragraph
26, specific offense characteristic, “[f]our levels
[were] added because of the nature of the sexual
abuse.” Id. at p. 8:22-24. At paragraph 27,
“an additional two levels [are] added because the
victim of the offense in Count 2 had reached the age of 12,
but had not reached the age of 16.” Id. at pp.
8:24-9:2. For count II the adjusted offense level at
paragraph 31 was “36.” Id. at p. 9:4-5.
Because of the original conviction on count III, the PSR
included a “multiple-count adjustment.”
Id. at p. 9:9-10. That adjustment resulted in a
“one-level increase . . . [so the] combined adjusted
offense level” at paragraph 43 was “37.”
Id. at p. 9:11-15. Mr. Villarreal received “no
reduction for acceptance of responsibility . . . . So the
total offense level [at paragraph 46] ¶ 37.”
Id. at p. 9:16-19. At paragraph 63, the PSR placed
Mr. Villarreal's “Criminal History Category [at] VI
on the sentencing table.” Id. at p. 10:2-3.
“[B]ased on a total offense level of 37 and a Criminal
History Category of VI [paragraph 91 of the PSR established]
the guideline range for imprisonment is 360 months to
life.” Id. at p. 10:5-7.
vacating the conviction on count III, the PSR calculations
must be redone beginning after paragraph 31. That results in
an adjusted offense level of 36, considering only the
conviction on count II. Because there is no multiple-count
conviction, the adjusted offense level at paragraph 43
remains 36. As indicated earlier, there is no reduction for
acceptance of responsibility, so the total offense level at
paragraph 47 is 36. Using the 2011 edition of the Guidelines
Manual, based on a total offense level of 36 and a criminal
history category of VI, the guideline range of imprisonment
at paragraph 91 is 324-405 months. See Sentencing
Table, United States Guidelines Manual of the United States
Sentencing Commission, 2011 ed.
sentence was being fashioned, the court concluded the
“guidelines are not useful and I have a right under the
Supreme Court case law to determine in individual cases,
considering the sentencing factors [18 U.S.C. §
3553(a)], that the guidelines don't apply because they
are not useful.” (Docket 139 at pp. 45:23-46:2). The
court explained in detail the reasons for a downward variance
to 120 months on Count 2. See id. at pp. 36:2-37:10;
40:8-42:13; and 44:2-46:9. The court completed the analysis
by announcing “[t]hat's a 10-year sentence.
It's 20 years less than the bottom of the federal
sentencing guidelines. But as I said, I don't find the
guidelines useful in this case.” Id. at p.
46:18-21. Critical to the current analysis, the court
concluded the sentence for count III, “a 96-month
sentence . . . [would] run concurrently [with count II] so
the sentence is 10 years.” Id. at p. 46:23-25.
on the findings above and the statements made at the original
sentencing, the court sees no reason to “reconfigure
the sentencing plan to ensure that it remains adequate to
satisfy the sentencing factors in 18 U.S.C. §
3553(a).” Greenlaw, 554 U.S. at 253. The court
concludes there is no need to resentence Mr. Villarreal as
the original sentence on count II properly carries out the
court's “original intent.” Evans,
314 F.3d at 333.
on the above analysis, it is
that the amended judgment (Docket 151) entered on May 17,
2016, shall constitute the final ...