Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding. D.C. No. 09-CR-687 (W).
Submitted May 7, 2010*fn1 -- Pasadena, California
Before: Diarmuid F. O'Scannlain and Richard C. Tallman, Circuit Judges, and Frederic Block,*fn2 District Judge.
Defendant-Appellant Cynthia Chavez ("Chavez") timely appeals her sentence of 15 months' incarceration for narcotics convictions. Chavez claims that her personal characteristics entitled her to a maximum sentence of probation on the theory that the parsimony clause of 18 U.S.C. § 3553(a) establishes the "statutory maximum" for Apprendi purposes. Apprendi v. New Jersey, 530 U.S. 466 (2000). We write principally to reject Chavez's flawed understanding of Apprendi, because the criminal statute of conviction-not the parsimony clause of the sentencing statute-sets the Apprendi maximum. We affirm.
Driving an automobile laden with more than 30 kilograms of marijuana, Chavez attempted to enter the United States at Calexico, California, on February 13, 2009. Customs and Border Protection officers stopped her, searched her car, and discovered her marijuana. Chavez was indicted on one count of importation of a controlled substance, 21 U.S.C. § 960(b)(4); and one count of possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(b)(1)(D). Each conviction authorized a sentence of not more than five years of incarceration. Chavez pleaded guilty to these charges on June 1, 2009, without a plea agreement.
The pre-sentence report ("PSR") computed an adjusted offense level of 16; with Chavez's criminal history category of II, the PSR reached an advisory Guidelines range of 24 to 30 months' imprisonment for each count. The PSR recommended a Guidelines sentence on each count, running concurrently.
At sentencing, the district court granted an additional reduction of one point for acceptance of responsibility; it also sua sponte gave Chavez a two point minor-role adjustment. The new adjusted offense level of 13 produced an advisory Guidelines range of 15 to 21 months' imprisonment.
Chavez argued that incarceration was not warranted in light of her personal characteristics; she stressed in particular that she was a single mother raising two young children. She requested probation.
The district court noted that the Guidelines range was advisory, and imposed a sentence of 15 months' imprisonment for each count, to run concurrently: "Mindful of the fact that the statutory maximum for [both offenses] is five years, and reviewing the criteria set forth in title 18, section 3553(a), I find that the low end of the ...