FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10088

Plaintiff-Appellee, D.C. No.

v. CR-00-01163-PGR

TONY MIX,  ORDER

Defendant-Appellant. AMENDING

OPINION AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, District Judge, Presiding

Submitted February 16, 2006*

San Francisco, California

Filed March 30, 2006

Amended Opinion Filed June 8, 2006

Before: Arthur L. Alarcón and M. Margaret McKeown,

Circuit Judges, and H. Russel Holland,**

Senior District Judge.

Opinion by Judge Alarcón

*The panel unanimously finds this case suitable for submission on the

record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth

Circuit Rule 34-4. 

**The Honorable H. Russel Holland, Senior United States District

Judge for the District of Alaska, sitting by designation. 

6355
COUNSEL

Tonya J. McMath, Phoenix, Arizona, for the defendantappellant. 

Linda C. Boone, Assistant United States Attorney, Phoenix,

Arizona, for the plaintiff-appellee. 

ORDER

We hereby recall the mandate. The court’s opinion, filed

March 30, 2006, is amended as follows: 

Footnote 2 at slip op. 3586 that reads: 

6358 UNITED STATES v. MIX
Pursuant to 18 U.S.C. § 3742(f)(1), guideline

sentences are reviewed for violations of law and

incorrect application of the Guidelines, not reasonableness. Pursuant to § 3742(f)(2), departures from

the Guidelines are reviewed in several respects,

including reasonableness. 

is deleted. 

At slip op. 3587 in the last sentence of the first full paragraph insert “departure or impose a sentence based on a

guideline departure” after “There was no guideline calculation

error because the district court did not calculate a guideline

range including a § 5K2.21” and before the “.” 

With these amendments, mandate shall issue forthwith.

OPINION

ALARCÓN, Circuit Judge: 

Tony Mix was convicted of two counts of kidnaping, five

counts of aggravated sexual abuse, and two counts of assault

with a deadly weapon committed within the confines of the

Navajo Indian Reservation. He appeals from the district

court’s sentencing decision. He contends that the imposition

of a life sentence was unreasonable and inconsistent with the

requirements of 18 U.S.C. § 3553(a). He also maintains that

the district court’s application of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), in its

sentencing decision violated his rights under the Fifth and

Sixth Amendments of the United States Constitution. 

We affirm because the sentence imposed by the district

court was reasonable. We also hold that the district court’s

application of Booker to its sentencing decision did not vioUNITED STATES v. MIX 6359
late Mr. Mix’s rights under the Due Process clause of the

Fifth Amendment, nor did the district court violate the Sixth

Amendment in failing to submit sentence enhancing factors to

the jury. 

I

A

The evidence presented by the prosecution at trial demonstrated that Mr. Mix committed numerous violent acts of sexual and physical assault against his live-in companion

between 1998 and 2000. She was too frightened to report him

to the police until October 30, 2000. Her physical injuries on

that date were so severe that her examining physician testified

that she had never seen so much trauma to a sexual assault

victim who had survived. The physician was so distressed by

the severity of the victim’s injuries that she had to leave the

room to cry and compose herself before she could administer

medical treatment. Two other women testified that they had

been physically and sexually abused by Mr. Mix during their

relationship with him. During the sentencing proceedings, the

district court commented that Mr. Mix’s violent acts against

women were “perhaps one of the most brutal, if not the most

brutal, set of circumstances that the [district] Court has had

the misfortune to preside over.” 

The jury found Mr. Mix guilty of each crime alleged in the

indictment. The district court adopted the recommendations

set forth in the presentence report (“PSR”). The court

departed upward pursuant to U.S.S.G. § 5K2.3 for extreme

psychological injury, § 5K2.8 for extreme conduct, § 5K2.21

for uncharged conduct. The court denied Mr. Mix’s request

for a downward departure. 

Mr. Mix was sentenced to life imprisonment for committing Kidnaping, as charged in Counts One and Nine, and

Aggravated Sexual Abuse, as charged in Counts Two, Three,

6360 UNITED STATES v. MIX
Four, Five and Six. He was sentenced to serve one hundred

and twenty months for committing Assault with a Dangerous

Weapon, as charged in Counts Seven and Eight to be served

consecutive to each other and concurrent to the sentences

imposed on Counts One through Six and Count Nine. 

Mr. Mix filed a timely appeal from the judgment and conviction on March 14, 2002. In an unpublished opinion issued

before the Supreme Court’s decision in Booker, we affirmed

the judgment of conviction, but reversed the sentence in part,

and remanded for resentencing. United States v. Mix, 77 Fed.

Appx. 986, 990 (9th Cir. 2003). We held that the district court

erred in departing upward for uncharged conduct pursuant to

§ 5K2.21 because that sentencing guideline did not become

effective until November 1, 2000, one day after Mr. Mix’s

last charged offenses. Id.

B

On remand, the district court postponed resentencing until

after the publication of Booker; and, in consideration of

Booker, the district court again imposed concurrent life sentences as to Counts One through Six and Nine and consecutive 120-month sentences as to Counts Seven and Eight, the

latter sentences to run concurrent with the life sentences.

Before resentencing Mr. Mix, the court heard lengthy arguments from counsel, and heard Mr. Mix’s allocution. The district court adopted the presentence report “in all respects,

factually, and legally, and insofar as the guideline computations are concerned except as will be further addressed by this

court.” The district court then recited at length the grisly circumstances of Mr. Mix’s offenses, including his long history

of violence toward women. Turning to legal considerations,

the court observed that “Apprendi . . . has no application to

this case.” However, the district court said, “[t]he Booker

decision in its majority [decision] issued by Justice Breyer

clearly applies to this case.” 

UNITED STATES v. MIX 6361
Having discussed both the facts of the case and the law

applicable to it, the district court turned to the application of

Sentencing Commission Guidelines and 18 U.S.C. § 3553(a)

sentencing factors. In the discussion that followed, the district

court expressly touched upon § 3553(a)(1) and (2) factors:

nature of the offense, history and characteristics of the defendant, the promotion of respect for law, just punishment for

offenses, deterrence, and protection of the public.1

At the end of its discussion of § 3553(a) sentencing factors,

the district court briefly returned to the matter of a guideline

sentence calculation, which had been adopted from the presentence report. As it had done in the first sentencing of Mr.

Mix, the district court made express mention of an upward

departure for extreme conduct, U.S.S.G. § 5K2.8, and for

extreme psychological injury, U.S.S.G. § 5K2.3. Also, but

without express reference to U.S.S.G. § 5K2.21, the application of which had occasioned the remand of the case for

resentencing, the district court observed that it had previously

imposed an upward departure on the basis of that guideline

and that “in view of the Booker decision, it is not unreasonable for this Court to conclude that any guideline that is effective at the date of sentencing would be appropriate for the

Court to consider as an advisory nature. I see no ex post facto

issues . . . .” The district court ended its presentence discussion with the conclusion that 

the use of the term “departures” is no longer relevant

and/or appropriate. But the Court concludes that the

guidelines do not sufficiently provide for the heinous, brutal, continued nature upon the victims in

this case and it is going to consider a variance to the

degree necessary in imposing the following sentences. 

1

In consideration of the sentencing factors just discussed, the court

observed that the educational or vocational needs of the defendant were

in this instance “subservient” to the other requirements of § 3553(a). 

6362 UNITED STATES v. MIX
With the foregoing explanations, the court imposed a life

sentence. Mr. Mix filed a timely notice of appeal of the sentence imposed upon remand. We have jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742. 

II

Mr. Mix seeks reversal of the district court’s sentencing

decision on discrete grounds. He argues that the life imprisonment sentence imposed by the district court is unreasonable

because it erroneously applied § 5K2.21 as the basis for an

upward departure and failed to consider mitigating sentencing

factors pursuant to 18 U.S.C. § 3553(a)(1). He also maintains

that the district court’s application of the Booker decision in

resentencing him violated his Fifth Amendment right to due

process and his Sixth Amendment right to have a jury make

findings regarding facts that would support an upward departure. 

A

[1] In United States v. Cantrell, 433 F.3d 1269, 1279-81

(9th Cir. 2006), we adopted a two-step procedure for reviewing sentences imposed following the date the Supreme Court

issued its opinion in Booker. We held that district courts are

not mandated to sentence within an applicable guideline range

because the Sentencing Guidelines are advisory—not mandatory. Id. at 1279 (citing Booker, 543 U.S. at 259-60). District

courts, however “ ‘must consult [the] Guidelines and take

them into account when sentencing,’ even though they now

have the discretion to impose non-Guidelines sentences.” Id.

(quoting Booker, 543 U.S. at 264). This consultation requirement from Booker means that a district court must calculate

correctly the sentencing range prescribed by the Guidelines.

“In other words, as was the case before Booker, the district

court must calculate the Guidelines range accurately. A misinterpretation of the Guidelines by a district court ‘effectively

means that [the district court] has not properly consulted the

UNITED STATES v. MIX 6363
Guidelines.’ ” Id. at 1280 (quoting United States v. Crawford,

407 F.3d 1174, 1178-79 (11th Cir. 2005)). In addition, a district court must apply the factors enumerated in 18 U.S.C.

§ 3553(a) in its sentencing decision. Id. at 1279-80. 

[2] In order to calculate the applicable Guidelines range for

a case, a sentencing court must first determine which Guidelines apply to the case. U.S.S.G. § 1B1.11 addresses this subject, and begins with the general proposition that a court will

use the Guidelines Manual in effect on the date of sentencing.

However, U.S.S.G. § 1B1.11(b)(1) provides: 

If the court determines that the use of the Guidelines

Manual in effect on the date that the defendant is

sentenced would violate the ex post facto clause of

the United States Constitution, the court shall use the

Guidelines Manual in effect on the date that the

offense of conviction was committed. 

After Booker, the departure Guidelines (U.S.S.G. § 5K1

and § 5K2) remain operative. An accurate guideline range calculation may still properly require consideration and correct

application of the departure Guidelines. In an appeal from a

sentencing decision, we must first determine whether the district court properly considered the applicable Sentencing

Guidelines. Cantrell, 433 F.3d at 1279-81. If the district court

incorrectly construed the Sentencing Guidelines, we must

vacate the sentence and remand for resentencing. Id. at 1280.

We review a district court’s interpretation of the Sentencing

Guidelines de novo. We review the application of the Sentencing Guidelines to the facts of the case for abuse of discretion and factual findings for clear error. United States v.

Smith, 424 U.S. 992, 1015 (9th Cir. 2005). If we conclude that

the district court did not err in applying the Sentencing Guidelines, we review the sentence for reasonableness in light of

the factors set forth in 18 U.S.C. § 3553(a). Cantrell, 433 F.3d

at 1280. 

6364 UNITED STATES v. MIX
The first issue Mr. Mix has raised in this appeal is whether

the sentence was reasonable. We conclude that it was. 

B

[3] On resentencing Mr. Mix, the district court adopted the

guideline analysis of the presentence report and made it clear

that, while it believed that it might consider U.S.S.G.

§ 5K2.21, it did not do so. As reflected by the court’s long

exposition of what took place in sentencing Mr. Mix, it is

abundantly clear that the district court imposed a sentence

outside of the Guidelines based upon consideration of

§ 3553(a) factors that the district court believed had not been

adequately taken account of by the Guidelines calculation.

The district court’s statement that use of the term “departure”

was not relevant or appropriate in this case clearly signaled

that the court was not imposing a guideline sentence. Having

considered the applicable Guidelines range based upon the

presentence report, the district court expressly stated that in

Mr. Mix’s case, “the guidelines do not sufficiently provide for

the heinous, brutal, continued nature [of violence] upon the

victims in this case and it is going to consider a variance to

the degree necessary to impose the following sentences.” 

[4] We conclude that the district court properly considered

the applicable Guidelines because it determined not to effect

an upward departure based on U.S.S.G. § 5K2.21. Mr. Mix

argues that the life sentence imposed by the district court is

unreasonable because it erroneously applied § 5K2.21 as the

basis for an upward departure. This argument conflates guideline sentencing review with post-Booker sentencing review.

As set out above, the district court was obligated to undertake

a correct Guidelines range calculation, and under Booker, the

district court was required to take account of § 3553 sentencing factors as well. The district court did both. There was no

guideline calculation error because the district court did not

calculate a guideline range including a § 5K2.21 departure or

impose a sentence based on a guideline departure. 

UNITED STATES v. MIX 6365
C

[5] As regards post-Booker sentencing, Mr. Mix contends

that the district court failed to consider the mitigating sentencing factors set forth in 18 U.S.C. § 3553(a)(1). As discussed

in considerable detail above, the district court considered at

length and in great detail the nature of Mr. Mix’s offenses.

Section 3553(a)(1) also required the district court to consider

Mr. Mix’s personal history and characteristics. That is exactly

what the court did when it considered Mr. Mix’s 17-year history of violence toward women. There is no ex post facto

problem here because § 3553(a) has been the law of the land

since 1984. The district court aptly considered other

§ 3553(a)(2) factors as well. 

Mr. Mix contends that in imposing a life sentence, the district court “ignored all the evident § 3553(a) factors which

militate in favor of leniency.” He argues that 

[w]hile the sentencing court here dwelled at length

on “the nature and circumstances of the offense” and

Mix’s “history” as it relates to other uncharged conduct . . . , the Court failed to so much as pay lip service to the wealth of information available to it

regarding Mix’s “history and characteristics” relating to his mental health. 

Mr. Mix also maintains that the district court failed to consider his “record of employment, his military contributions,

and his lack of guidance as a youth.” 

[6] “Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence

lies outside it) this defendant deserves more or less.” United

States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005). A district court is not required to refer to each factor listed in

§ 3553(a). United States v. Simpson, 430 F.3d 1177, 1186

6366 UNITED STATES v. MIX
(D.C. Cir. 2005); see also United States v. Ayers, 428 F.3d

312, 315 (D.C. Cir. 2005) (“[W]e ordinarily presume a district

court imposing an alternative non-Guidelines sentence took

into account all the factors listed in § 3553(a) and accorded

them appropriate significance.”). “[A] checklist recitation of

the section 3553(a) factors is neither necessary nor sufficient

for a sentence to be reasonable.” United States v. Smith, ___

F.3d ___, 2006 WL 367011, at *2 (5th Cir. Feb. 17, 2006)

(citing United States v. Dean, 414 F.3d 725, 729 (7th Cir.

2005)). Contrary to Mr. Mix’s contention and as summarized

above, the district court expressly considered the factors set

forth in § 3553(a). The record also shows that the district

court considered the expert’s reports concerning Mr. Mix’s

alleged psychological and neuropsychological impairments.

In this respect, the district court commented as follows: 

Two evaluations completed on the defendant indicate that the defendant was not completely truthful

in answering questions, and both evaluations concluded his psychopathology was probably overrepresented. And he confirms that today by his rather

articulate and extended statement to this Court

wherein he refuses to accept responsibility for his

conduct and his acts. 

He is trying to portray himself as mentally ill. The

Interpretative report of the MMPI-2 stated the defendant believed others have harmed him and are working against him, even though almost one year after

his attack against Tohannie—or strike that, more like

two-and-a-half years now—he is still blaming her

and probably Linda Yellowhorse and Florence Russell for his current situation. 

He acknowledged losing control, but he has no

concept of the harm he caused to these women and

their children. His victims live in fear. They fear the

UNITED STATES v. MIX 6367
defendant will be released and come back to do further harm or kill them. 

[7] The facts as regards Mr. Mix’s history, characteristics,

and other § 3553(a) factors were not the subject of an evidentiary hearing and have never been disputed. We conclude that

in light of Mr. Mix’s seventeen-year history of unspeakably

inhuman sexual abuse of women, and his continuing characterization of his conduct as unintentional, during the sentencing proceedings, the district court’s imposition of a sentence

outside the Guidelines range was well explained by the district court and justified the sentences imposed. 

D

[8] In summary, it is both important and legally necessary

under 18 U.S.C. § 3553(a) and under Booker that the district

court conduct parallel analyses — first employing the Guidelines, and then considering non-guideline sentencing factors

under § 3553(a).2 In many instances, there will be no nonGuidelines issues in sentencing; and, in those cases, review by

this court will be de novo for accuracy as regards the calculation of Guidelines ranges. In other cases, such as this one,

substantial questions may arise as to whether or not the

Guidelines adequately take account of the § 3553(a) sentencing factors. Where, as here, the district court determines that

the Guidelines do not adequately take account of § 3553(a)

sentencing factors, the district court, may, in furtherance of

Booker, impose a sentence outside and apart from the Guidelines. Because the scope of review differs depending upon the

sentencing methodology employed by the district court, it is

important that district courts clearly and carefully differentiate

2We again leave open the question left open in Cantrell, 433 F.3d at

1280 n.3, “whether, and under what circumstances, district courts may

find it unnecessary to calculate the applicable Guidelines range.” We note

only that this was a case in which it was necessary for the district court

to calculate the applicable Guidelines range. 

6368 UNITED STATES v. MIX
between the findings and conclusions as regards the application of the Guidelines, and the findings and conclusions as

regards the application of non-Guidelines factors pursuant to

18 U.S.C. § 3553(a). Here, we are able to discern the sentencing methodology that the district court ultimately applied, and

why it did so. In light of the non-Guidelines, § 3553(a)(1) and

(2) analysis performed by the district court, we conclude that

the sentence imposed on Mr. Mix was reasonable. 

III

Finally, Mr. Mix contends that the district court’s application of Booker in this matter violated his Fifth Amendment

right to due process and his Sixth Amendment right to have

a jury determine facts that increased his punishment. We

rejected similar arguments in United States v. Dupas, 419

F.3d 916, 920-21 (9th Cir. 2005). Mr. Mix argues that application of Justice Breyer’s remedial holding in Booker, which

made the Sentencing Guidelines advisory, should not be

applied retroactively because that would violate the ex post

facto principles described in Bouie v. City of Columbia, 378

U.S. 347, 353-55 (1964). 

[9] Mr. Mix’s due process argument is flawed for several

reasons. First, the Supreme Court expressly stated that both of

its holdings in Booker should be applied to cases on direct

review. 543 U.S. at 267; see also United States v. Rines, 419

F.3d 1104, 1106-07 (10th Cir. 2005) (commenting “[w]e

decline Defendant’s invitation to hold that the Supreme Court

ordered us to violate the Constitution”). Moreover, “our decision in Ameline, under which Sixth Amendment violations

can be cured by giving district courts the opportunity to resentence defendants under the now-advisory Guidelines, necessarily implies that appellate courts should apply both Booker

holdings retroactively.” Dupas, 419 F.3d at 920. “Fair warning . . . is the touchstone of the retroactivity analysis under the

Due Process Clause.” Id. at 921 (citing Rogers v. Tennessee,

532 U.S. 451, 462 (2001)); see also United States v. Lata, 415

UNITED STATES v. MIX 6369
F.3d 107, 110-11 (1st Cir. 2005) (commenting that “after-theoffense enlargement of the . . . maximum sentence by judicial

construction can raise due process objections based on lack of

fair warning but only where the alteration is ‘unexpected and

indefensible’ by reference to the case law”). 

[10] When Mr. Mix committed his crimes, the United

States Code informed him that the maximum sentence was

life in prison for Aggravated Sexual Abuse pursuant to 18

U.S.C. § 2241, and Kidnaping, 18 U.S.C. § 1201. See United

States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005) (holding

that Defendant had fair warning because his sentence was

within the maximum spelled out in the United States Code);

see also United States v. Duncan, 400 F.3d 1297, 1307 (11th

Cir. 2005) (commenting “at the time of Duncan’s criminal

conduct, the recognized state of the law looked to the U.S.

Code as establishing maximum sentences”). Accordingly, the

sentence imposed in the instant case did not violate due process, because at the time Mr. Mix committed his crimes, life

imprisonment was a potential consequence of his actions. 

[11] We also held in Dupas that the advisory Guidelines

remedy in Booker “gives the sentencing judge discretion to

sentence outside the guideline range, but still allows the sentencing judge (as distinct from a jury) to make the findings of

fact necessary to determine the guideline range in the first

place.” Dupas, 419 F.3d at 919. The fact that the district court

considered uncharged conduct in imposing a sentence of life

imprisonment did not violate the Sixth Amendment. 

AFFIRMED. 

6370 UNITED STATES v. MIX