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Date: 08-08-2021

Case Style:

United States of America v. RUFINO VALDEZ-LOPEZ

Case Number: 20-10004

Judge: Heather Miller


Plaintiff's Attorney: Raymond K. Woo (argued), Assistant United States
Attorney; Krissa M. Lanham, Appellate Division Chief;
Michael Bailey, United States Attorney; United States
Attorney’s Office

Defendant's Attorney:

San Francisco, California - Criminal defense Lawyer Directory


San Francisco, California - Criminal defense lawyer represented defendant with multiple counts of conspiracy, harboring illegal aliens, and hostage taking, as well as one count of possession of a firearm during and in relation to a crime of violence charges.

After successfully moving to set aside one of several
counts on which he had been convicted, Rufino ValdezLopez was resentenced by a different district judge but
received a longer sentence than he had before. He now
challenges that sentence as the product of judicial
vindictiveness. We conclude that no presumption of
vindictiveness applies. Because Valdez-Lopez has not
otherwise demonstrated vindictiveness, and because the
second sentence was both procedurally and substantively
reasonable, we affirm.
On April 5, 2007, Immigration and Customs
Enforcement agents in Grand Rapids, Michigan, received a
call reporting that someone the caller knew was being held
hostage at gunpoint by alien smugglers in Arizona. The
smugglers had said that they would not release the hostage
unless his family wired $3,000 to a bank in Mexico. Agents
arranged for a phone call between the hostage and his uncle,
and they traced the smugglers’ phone to a house in Peoria,
Arizona. Agents then raided the house, where they found
75 hostages, six smugglers, and an AK-47 rifle.
A grand jury returned an indictment charging ValdezLopez, one of the smugglers, with multiple counts of
conspiracy, harboring illegal aliens, and hostage taking, as
well as one count of possessing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c). A jury found Valdez-Lopez guilty on all counts,
and the district court sentenced him to 240 months of
Eight years later, Valdez-Lopez filed a motion under
28 U.S.C. § 2255 to vacate his section 924(c) conviction on
the ground that hostage taking no longer qualifies as a “crime
of violence” in light of the Supreme Court’s decision in
Johnson v. United States, 576 U.S. 591 (2015). By that time,
the district judge who had presided over the trial and
imposed the sentence, Judge Earl H. Carroll, had retired, so
the case was reassigned to Judge Steven P. Logan. The
district court granted Valdez-Lopez’s motion, vacated the
section 924(c) conviction, and held a new sentencing
At the hearing, the district court stated that ValdezLopez had harmed “a staggering amount of individuals . . .
mentally and emotionally and basically scarred [them] for
life” by causing them “[t]o be held in a small location,
basically treated like . . . animal[s] with the threat that [they]
could be shot down by an AK-47.” The court acknowledged
the previous sentence, explaining that the court was “pretty
confident that Judge Carroll had access to the same
information” that it did. But it went on to observe that it
“need[ed] to give some . . . consideration to all of the victims
in the case,” one of whom had testified that Valdez-Lopez
“personally beat him, stole his money, and locked him in a
closet.” It concluded that Valdez-Lopez’s conduct was “so
incredibly outrageous” as to “warrant a significant
sentence.” The court sentenced Valdez-Lopez to 300 months
of imprisonment.
Valdez-Lopez argues that his new, higher sentence
reflects judicial vindictiveness and constitutes an effort to
punish him for his successful collateral attack on his section
924(c) conviction. He relies on North Carolina v. Pearce,
395 U.S. 711 (1969), in which the Supreme Court held that
the Due Process Clause “requires that vindictiveness against
a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after
a new trial.” Id. at 725. “In order to assure the absence of
such a motivation,” the Court in Pearce held “that whenever
a judge imposes a more severe sentence upon a defendant
after a new trial, the reasons for his doing so must
affirmatively appear,” and “[t]hose reasons must be based
upon objective information concerning identifiable conduct
on the part of the defendant occurring after the time of the
original sentencing proceeding.” Id. at 726. Although Pearce
referred to a “new trial,” the rule it established applies
regardless of the procedure a defendant has used in
“successfully attacking a conviction or sentence.” Nulph v.
Cook, 333 F.3d 1052, 1057 (9th Cir. 2003).
But the Supreme Court has since made clear that “the
evil the Court sought to prevent” in Pearce was not the
imposition of “enlarged sentences” as such but rather the
“vindictiveness of a sentencing judge.” Texas v.
McCullough, 475 U.S. 134, 138 (1986). For that reason, the
“presumption of vindictiveness” recognized in Pearce
“do[es] not apply in every case where a convicted defendant
receives a higher sentence on retrial.” Alabama v. Smith,
490 U.S. 794, 799 (1989) (alteration in original) (quoting
McCullough, 475 U.S. at 138). Instead, the presumption
applies only in circumstances where there is a “‘reasonable
likelihood’ that the increase in sentence is the product of
actual vindictiveness on the part of the sentencing
authority.” Id. (citation omitted) (quoting United States v.
Goodwin, 457 U.S. 368, 373 (1982)). Two features of
Valdez-Lopez’s resentencing independently make the
presumption of vindictiveness inapplicable here.
First, the only reason a new sentencing occurred is that
the district court itself granted Valdez-Lopez’s motion under
section 2255 to set aside his first sentence. In McCullough,
the Supreme Court considered a resentencing that occurred
after “the trial judge herself concluded that the prosecutor’s
misconduct required it.” 475 U.S. at 138. “Granting [a
defendant’s] motion for a new trial,” the Court observed,
“hardly suggests any vindictiveness on the part of the judge
towards him.” Id. at 138–39. And “unlike the judge who has
been reversed,” a judge who grants such a motion has “no
motivation to engage in self-vindication.” Chaffin v.
Stynchcombe, 412 U.S. 17, 27 (1973). We see no reason to
presume that a judge would act vindictively in resentencing
a defendant after determining that the defendant’s section
2255 motion was meritorious.
Second, Valdez-Lopez’s new sentence was imposed by
a different judge than the judge who imposed his first
sentence. The presumption of vindictiveness is “inapplicable
[when] different sentencers assessed the varying sentences.”
McCullough, 475 U.S. at 140; accord Chaffin, 412 U.S.
at 26–28; Colten v. Kentucky, 407 U.S. 104, 116–18 (1972).
That is because “the presumption derives from the judge’s
‘personal stake in the prior conviction,’” which does not
exist when the prior proceedings were conducted by a
different judge. McCullough, 475 U.S. at 140 n.3 (quoting
Chaffin, 412 U.S. at 27). And when a second sentencer
imposes a greater penalty, “it no more follows that such a
sentence is a vindictive penalty . . . than that the [first
sentencer] imposed a lenient penalty.” Colten, 407 U.S. at
117. Applying McCullough, we have recognized that
“[w]hen different courts impose different sentences, . . .
there is no presumption of vindictiveness.” United States v.
Newman, 6 F.3d 623, 630 (9th Cir. 1993); accord United
States v. Curtin, 588 F.3d 993, 999 (9th Cir. 2009).
Valdez-Lopez relies on cases involving parole boards to
argue that a presumption of vindictiveness can apply even
when different sentencers are involved. We have applied a
presumption of vindictiveness to decisions by a parole board
to increase a sentence or extend a parole date after a prisoner
has successfully challenged a decision of the board, even
when the board’s membership has changed in the interim.
See Nulph, 333 F.3d at 1058; Bono v. Benov, 197 F.3d 409,
418–19 (9th Cir. 1999). But our decisions in those cases
treated parole boards as “singular” and “unified institutional
entit[ies] capable of the vindictiveness contemplated in
Pearce,” not as different sentencers. Bono, 197 F.3d at 419.
By contrast, different district judges are “truly different
sentencers,” so when a different district judge imposes a
higher sentence, the potential for vindictiveness is not
present. Id. at 418. In this context, a presumption of
vindictiveness does not apply.
Valdez-Lopez next argues that a presumption of
vindictiveness applies unless the second sentencer provides
non-vindictive reasons for the sentence. We recognize that
our decision in Newman could be read to suggest that a
presumption of vindictiveness applies if the second
sentencer does not provide an “on-the-record, wholly
logical, nonvindictive reason for the sentence.” 6 F.3d at 630
(quoting McCullough, 475 U.S. at 140); see also United
States v. Rodriguez, 602 F.3d 346, 358 (5th Cir. 2010). But
we reject that interpretation because it would introduce
pointless complexity to sentencing law. Under 18 U.S.C.
§ 3553(c), a court is already required to explain the reasons
for a sentence. See United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008) (en banc) (“Once the sentence is selected, the
district court must explain it sufficiently to permit
meaningful appellate review.”). If the stated reason is
vindictive, there is no need for a presumption of
vindictiveness; the defendant can show actual
vindictiveness. See Smith, 490 U.S. at 799–800. A
requirement that the court state non-vindictive reasons
would therefore add nothing to what section 3553(c) already
demands. In any event, the district court here gave nonvindictive reasons for Valdez-Lopez’s sentence, and ValdezLopez has identified no case suggesting that this circuit—or
any other circuit—would apply a presumption of
vindictiveness in these circumstances. See United States v.
Anderson, 440 F.3d 1013, 1016 (8th Cir. 2006) (collecting
We also disagree with Valdez-Lopez’s suggestion that a
presumption of vindictiveness applies unless a district court
imposing a higher sentence at resentencing articulates
“reasons for increasing the sentence.” Although a court must
give reasons for whatever sentence it selects, it need not
specifically justify a deviation—whether upward or
downward—from any sentence that might have been
imposed before. By way of analogy, an administrative
agency adopting a new policy must “show that there are
good reasons for the new policy,” but that does not mean that
it must “demonstrate to a court’s satisfaction that the reasons
for the new policy are better than the reasons for the old
one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009). The same principle applies here.
Valdez-Lopez emphasizes that in his case “there were no
intervening events subsequent to the imposition of the initial
sentence to warrant an increase in the sentence.” As the
district court observed, “Judge Carroll had access to the
same information that I do.” But the law does not require the
second sentencer to offer reasons that were unavailable to
the first sentencer. See Macomber v. Hannigan, 15 F.3d 155,
157 (10th Cir. 1994) (“[I]t is not necessary that the second
sentencing judge rely on and provide facts not available at
the time of the first sentence to support the more severe
sentence.”); accord Rock v. Zimmerman, 959 F.2d 1237,
1257–58 (3d Cir. 1992) (en banc). A district court has broad
discretion to select a sentence that is “sufficient, but not
greater than necessary,” to achieve the purposes specified in
18 U.S.C. § 3553(a). Carty, 520 F.3d at 991 (quoting
18 U.S.C. § 3553(a)). Congress has provided that “[n]o
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of
an offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate
sentence.” 18 U.S.C. § 3661. That principle applies at a
resentencing as well as at an initial sentencing, as the
Supreme Court made clear when it held that a court
conducting a resentencing may examine the defendant’s
conduct following the imposition of the first sentence—
information that necessarily was not available at the first
sentencing. See Pepper v. United States, 562 U.S. 476, 488–
90 (2011). The converse is equally true: A court conducting
a resentencing may, if it deems it appropriate, base its
decision on a reevaluation of information that was available
to an earlier sentencer. Sometimes that will be to the
defendant’s advantage; other times it will be to the
defendant’s disadvantage. Either way, a court conducting a
resentencing may exercise its independent judgment, and
nothing in the Due Process Clause or the Sentencing Reform
Act suggests that the court must be constrained by the prior
sentencer’s choices.
In the absence of a presumption of vindictiveness, “the
burden remains upon [Valdez-Lopez] to prove actual
vindictiveness,” and he cannot do so. Smith, 490 U.S. at 799.
The district court permissibly exercised its discretion and
committed neither procedural nor substantive error in
determining Valdez-Lopez’s sentence. The court began, as it
was required to do, by calculating the applicable sentencing
range under the advisory Sentencing Guidelines. Carty,
520 F.3d at 991. Valdez-Lopez does not challenge that
calculation, which yielded a Guidelines sentence of life. The
court then went on to consider the factors prescribed in
section 3553(a), giving particular weight to the seriousness
of the offense, which it described as “so incredibly
outrageous” as to “warrant a significant sentence.” Those
statements do not show that the court penalized ValdezLopez for seeking relief under section 2255. See United
States v. Horob, 735 F.3d 866, 871–72 (9th Cir. 2013) (per
curiam). Valdez-Lopez does not argue that a sentence of
300 months is substantively unreasonable, and we conclude
that it is not. See Carty, 520 F.3d at 993–94.
Instead, Valdez-Lopez argues that the district court erred
because it impermissibly relied on Valdez-Lopez’s decision
to go to trial. In support of that argument, he points out that,
at several times during the hearing, the district court noted
that Valdez-Lopez had chosen to go to trial. We have held
that a district court may not penalize a defendant “for his
assertion of protected Sixth Amendment rights,” including
the right to go to trial. United States v. Hernandez, 894 F.3d
1104, 1110 (9th Cir. 2018). But we also have recognized that
it is not reversible error for a court to “note[] the fact that the
defendant went to trial, so long as the court bases its final
decision on the facts of the case and record as a whole.”
United States v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th
Cir. 2013).
That is what the district court did here. In one of the
statements to which Valdez-Lopez objects, the district court
noted, “there is no acceptance of responsibility. You went to
trial.” A defendant’s decision to go to trial cannot be the sole
basis for denying a Guidelines reduction for acceptance of
responsibility. Hernandez, 894 F.3d at 1111; United States
v. Ochoa-Gaytan, 265 F.3d 837, 842 (9th Cir. 2001). But it
is a relevant consideration because “a defendant who puts
the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only
then admits guilt and expresses remorse” is not ordinarily
entitled to the reduction. U.S.S.G. § 3E1.1 cmt. n.2; see
United States v. Ramos-Medina, 706 F.3d 932, 940–42 (9th
Cir. 2013). It was therefore appropriate for the district court
to acknowledge Valdez-Lopez’s decision to go to trial. And
because Valdez-Lopez did not contest the denial of an
adjustment for acceptance of responsibility, the district court
had no need to engage in a more extensive discussion of the
subject. See Carty, 520 F.3d at 992–93.
Valdez-Lopez also objects that in response to defense
counsel’s argument about sentencing disparities with his
codefendants, the district court asked the rhetorical question,
“Which codefendants went to trial?” There was nothing
improper about that observation either. Valdez-Lopez’s
codefendants had received shorter sentences after pleading
guilty, and a codefendant’s acceptance of a guilty plea is a
permissible explanation for a sentencing disparity. See
United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009).
The district court’s other passing comments do not
indicate that the court was punishing Valdez-Lopez for
going to trial. In Hernandez, “the district court’s comments
regarding [the defendant’s] decision to go to trial comprised
virtually the entirety of the explanation for the sentence,”
such that it was “impossible to avoid the centrality of the
comments about [the defendant’s] decision to go to trial.”
894 F.3d at 1111. Here, by contrast, the district court
extensively discussed the sentencing factors and explained
how they applied to Valdez-Lopez’s case. See RojasPedroza, 716 F.3d at 1270–71. The district court did not err


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