United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2143

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United States of America, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the Western District

* of Missouri

Esteban Rivera, *

*

Defendant-Appellee. *

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Submitted: December 13, 2005

 Filed: March 6, 2006 

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Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

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MELLOY, Circuit Judge.

Esteban Rivera was convicted of conspiracy to distribute and possess with

intent to distribute marijuana and cocaine. He was sentenced to the statutory

mandatory minimum of sixty months in prison. Based on Rivera’s status as a career

offender, his Guidelines sentencing range was 188 to 235 months. The government

appeals, arguing that a sixty-month sentence is unreasonable under the facts of this

case. Based on the record before us, we are unable to make a reasonableness

determination and therefore reverse and remand for resentencing.
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Rivera escorted Juan Carlos Rivera (Juan) on trips to deliver cocaine and

marijuana. Juan is Rivera’s older cousin by six years. Based upon information from

other members of the drug conspiracy, the authorities identified Juan as a source of

drugs entering Missouri from Chicago, Illinois.

On a trip from Chicago to Springfield, Illinois, an Illinois state trooper stopped

the car Juan was driving in which Rivera was a passenger. Although the reason for

the stop was speeding, the officer had his canine perform a sniff search of the vehicle

because of inconsistent statements made by Juan. The officer discovered thirty-four

kilograms of marijuana and 503 grams of cocaine in the trunk of the car.

Rivera cooperated with the police and pled guilty as part of an agreement with

the government. The extent of Rivera’s cooperation was limited by his knowledge

about the drug conspiracy. He told the police that he was not paid for the trips and

only knew of Juan’s role as a drug distributor. The government did not need Rivera’s

assistance in investigating or convicting Juan.

At sentencing, Rivera’s attorney outlined a number of reasons why she felt a

sentence of sixty months would be a reasonable sentence under 18 U.S.C. § 3553(a).

Among the factors discussed by Rivera’s attorney were Rivera’s limited role in the

offense (for which he could not get a minor role adjustment under the guideline

because he was a career offender), two years of good performance on pre-trial release,

family obligations, over representation of criminal history in the career offender

computation, the fact that two more culpable defendants (including his cousin Juan)

received substantial sentence reductions because of their cooperation, and the fact

Rivera attempted to cooperate but was unsuccessful because of his limited role and

lack of knowledge about the conspiracy.

In sentencing Rivera, the district court stated “[w]ell, I think the mandatory

minimum is sufficient penalty under the circumstances that have been placed here in
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the record.” The district court did not make any other statements about the reasoning

behind its decision.

II.

We review a challenge to the reasonableness of a criminal sentence for abuse

of discretion. United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir. 2005). Under

United States v. Booker, 543 U.S. 220 (2005), we must determine if a sentence is

unreasonable with regard to the factors outlined in 18 U.S.C. § 3553(a). United States

v. Pizano, 403 F.3d 991, 995 (8th Cir. 2005). In United States v. Haack, 403 F.3d

997, 1002-03 (8th Cir. 2005), we outlined the procedure a district court is to follow

in imposing a post-Booker sentence. First, the district court should determine the

Guidelines sentencing range. Second, the district court should determine whether any

traditional departures are appropriate. Third, the district court should apply all other

section 3553(a) factors in determining whether to impose a Guidelines or nonGuidelines sentence.

In this case, there is no dispute about the Guidelines sentencing range. Rivera

is a career offender with a range of 188 to 235 months. However, we are left with an

inadequate record upon which to determine whether the district court felt a Guidelines

departure was appropriate, what non-Guidelines 3553(a) factors predominated, and

what combination of departures and variances warranted a sixty-month sentence.

Without an adequate record we are unable to discharge our function as an appellate

court in deciding whether the district court abused its discretion and imposed an

unreasonable sentence. See United States v. Porter, 417 F.3d 914, 917-18 (8th Cir.

2005) (ordering resentencing by the district court because the district court’s

reasoning for applying an alternative sentence was unclear based upon the record); see

also 18 U.S.C. § 3553(c) (noting that the district court must “state in open court the

reasons for its imposition of the particular sentence”); United States v. Shafer, 2006
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WL 453200, *2 (8th Cir. Feb. 27, 2006) (stating that for a “court to properly carry out

the appellate review mandated by Booker, it is essential that the district court explain

why it imposed a sentence below the guidelines range”). 

It might be argued that the district court’s comment that the sentence was

imposed “under the circumstances that have been placed here in the record,” is an

indication that the district court was adopting the arguments and reasoning of defense

counsel. See, e.g., United States v. Thurmon, 368 F.3d 848, 853 n.5 (8th Cir. 2004)

(affirming a district court’s decision pre-Booker when “the district court did not

explicitly state its ground for denying an adjustment,” but rather “appear[ed] [to]

adopt[] the prosecutor’s argument”). However, in this post-Booker era of sentencing

we feel something more is required of district courts. At a minimum the court should

indicate which arguments are being adopted, state why they are relevant, and offer

some explanation as to how the adopted factors affect the sentence.

Based on the record before us we are unable to conduct a meaningful

reasonableness review. Accordingly, we reverse and remand for resentencing. At

resentencing the district court should follow the procedure outlined in Haack and

provide an explanation as to how it arrives at the sentence imposed.

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