No. 14-______ IN THE Supreme Court of the United States ________________ LUIS EDUARDO ALVAREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ________________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________ PETITION FOR A WRIT OF CERTIORARI ________________ OSCAR VELA Attorney at Law Oscar Vela, Jr., P.C. 1004 E. Hillside Road, Ste. B Laredo, Texas 78041 (956) 568-0221 [email protected]STEPHANOS BIBAS University of Pennsylvania Law School Supreme Court Clinic 3501 Sansom Street Philadelphia, PA 19104 (215) 746-2297 [email protected]STEPHEN B. KINNAIRD Counsel of Record IAN HERBERT JEREMY JONES SARAH KELLY-KILGORE SEAN SMITH DANIELLE SUSANJ PAUL HASTINGS LLP 875 15th Street, N.W. Washington, D.C. 20005 (202) 551-1700 stephenkinnaird@ paulhastings.com Counsel for Petitioner
Transcript
No. 14-______
IN THE
Supreme Court of the United States
________________
LUIS EDUARDO ALVAREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT ________________
PETITION FOR A WRIT OF CERTIORARI
________________
OSCAR VELA Attorney at Law Oscar Vela, Jr., P.C. 1004 E. Hillside Road, Ste. B Laredo, Texas 78041 (956) 568-0221 [email protected] STEPHANOS BIBAS University of Pennsylvania Law School Supreme Court Clinic 3501 Sansom Street Philadelphia, PA 19104 (215) 746-2297 [email protected]
STEPHEN B. KINNAIRD Counsel of Record
IAN HERBERT JEREMY JONES SARAH KELLY-KILGORE SEAN SMITH DANIELLE SUSANJ PAUL HASTINGS LLP 875 15th Street, N.W. Washington, D.C. 20005 (202) 551-1700 stephenkinnaird@ paulhastings.com Counsel for Petitioner
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QUESTION PRESENTED
When a court of appeals issues a general remand for resentencing, may the district court conduct resentencing de novo?
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TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................... i
TABLE OF CONTENTS .................................. ii
TABLE OF APPENDICES ............................. iv
TABLE OF AUTHORITIES ............................ v
REASONS FOR GRANTING THE PETITION ...................................................... 11
I. ..... This Court Should Resolve a Deep Circuit Split over Whether De Novo Resentencing Is Appropriate on a General Remand ............... 12
II. ............ This Court Has Already Held That a General Remand After Vacatur Permits De Novo Resentencing ......................................... 18
III. .... The Waiver Rule of the Fifth Circuit and Other Minority Circuits Is Wrong and Contrary to Federal Sentencing Statutes ..... 20
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TABLE OF CONTENTS (continued)
Page
IV. .... The Question Presented Is an Important Question of Law That Affects Thousands of Sentences ........................................................ 27
V. This Case Is the Proper Vehicle for Deciding This Important Issue of Law ......................... 30
United States v. Luis Eduardo Alvarez, No. 13-40812, 575 F. App’x 522, U.S. Court of Appeals for the 5th Circuit, July 22, 2014 .................. 1a
APPENDIX B
United States v. Cervantes, Alvarez & Milan, Nos. 11-41385 & 41407, 706 F.3d 603, United States Court of Appeals for the 5th Circuit, Jan. 13, 2013 ................................................ 14a
APPENDIX C
United States v. Luis Eduardo Alvarez, No. 5:11CR004425-83-004, Amended Judgment in a Criminal Case, U.S. District Court for the Southern District of Texas, July 12, 2013 ... 42a
APPENDIX D
U.S. Sentencing Guidelines Manual, § 2D1.1 (2012) ............................................................ 57a
APPENDIX E
U.S. Sentencing Guidelines Manual, § 3B.1-.2 (2012) ............................................................ 63a
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TABLE OF APPENDICES (continued)
Page(s)
APPENDIX F
U.S. Sentencing Guidelines Manual, Chapter 5, Part A (2012) ............................................ 64a
Peugh v. United States, 133 S. Ct. 2072 (2013) .......................................... 31
Sibbald v. United States, 37 U.S. (12 Pet.) 488 (1838) ................................. 23
Sprague v. Ticonic Nat’l Bank, 307 U.S. 161 (1939) ........................................ 13, 22
Standard Oil Co. v. United States, 429 U.S. 17 (1976) (per curiam) ........................... 23
The “Lady Pike”, 96 U,S. 461 (1878) ................................................ 23
United States v. Alvarez, 575 F. App’x 522 (5th Cir. 2014) ...................passim
United States v. Atehortva, 69 F.3d 679 (2d Cir. 1995) .................................... 16
United States v. Barnes, 660 F.3d 1000 (7th Cir. 2001) ........................ 19, 20
United States v. Benjamin, 391 F. App’x 942 (2d Cir. 2010) ........................... 17
United States v. Blackson, 709 F.3d 36 (D.C. Cir. 2013) ................................ 20
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TABLE OF AUTHORITIES (continued)
Page(s)
United States v. Bond, 171 F.3d 1047 (6th Cir. 1999) .............................. 14
United States v. Booker, 543 U.S. 220 (2005) .................................. 21, 26, 30
United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) .............................. 29
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. 2013) ........................ 28, 29
United States v. Campbell, 168 F.3d 263 (6th Cir. 1999) ................................ 17
United States v. Castellanos, 608 F.3d 1010 (8th Cir. 2010) .............................. 22
United States v. Caterino, 29 F.3d 1390 (9th Cir. 1994), overruled on other grounds, by Witte v. United States, 515 U.S. 389 (1995) .............................................................. 14, 28
United States v. Cervantes, 706 F.3d 603 (5th Cir. 2013) .........................passim
United States v. Cornelius, 968 F.2d 703 (8th Cir. 1992) .......................... 13, 24
United States v. Diaz, 639 F.3d 616 (3d Cir. 2011) .................................. 14
United States v. Garcia-Beltran, 443 F.3d 1126 (9th Cir. 2006) .............................. 22
United States v. Gomez-Mendez, 320 F. App’x 523 (9th Cir. 2009) .......................... 14
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TABLE OF AUTHORITIES (continued)
Page(s)
United States v. Hebeka, 89 F.3d 279 (6th Cir. 1996) .................................. 24
United States v. Hicks, 146 F.3d 1198 (10th Cir. 1998) ............................ 21
United States v. Husband, 312 F.3d 247 (7th Cir. 2002) ................................ 15
United States v. Jennings, 83 F.3d 145 (6th Cir. 1996) ............................ 13, 25
United States v. Lopez, 549 F. App’x 909 (11th Cir. 2013) (per curiam) .................................................................. 29
United States v. Marmolejo, 139 F.3d 528 (5th Cir. 1998) .........................passim
United States v. Martinez, 606 F.3d 1303 (11th Cir. 2010) ............................ 13
United States v. Matthews, 278 F.3d 880 (9th Cir. 2002) (en banc) .......................................................... 14, 17, 22
United States v. McFalls, 675 F.3d 599 (6th Cir.), cert. denied, 133 S. Ct. 287 (2012) ................................ 20, 26, 27
United States v. Miller, 594 F.3d 172 (3d Cir. 2010) ............................ 14, 17
United States v. Morris, 259 F.3d 894 (7th Cir. 2001) .......................... 15, 22
United States v. Parker, 101 F.3d 527 (7th Cir. 1996) .......................... 10, 15
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TABLE OF AUTHORITIES (continued)
Page(s)
United States v. Pepper, 131 S. Ct. 1229 (2011) ...................................passim
United States v. Pepper, 570 F.3d 958 (8th Cir. 2009), aff’d in part and vacated in part, 131 S. Ct. 1229 (2011) ........................................................... 19
United States v. Pepper, 518 F.3d 949 (8th Cir. 2008) ................................ 18
United States v. Pepper, 486 F.3d 408 (8th Cir. 2007) ................................ 18
United States v. Pileggi, 703 F.3d 675 (4th Cir. 2013) .......................... 15, 20
United States v. Polland, 56 F.3d 776 (7th Cir. 1995) .................................. 22
United States v. Ponce, 51 F.3d 820 (9th Cir. 1995) (per curiam) .......................................................... 14
United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002) .................... 16, 21, 22
United States v. Rodgers, 278 F.3d 599 (6th Cir. 2002) ................................ 14
United States v. Sanchez Solis, 882 F.2d 693 (2d Cir. 1989) .................................. 16
United States v. Shue, 825 F.2d 1111 (7th Cir. 1987) .............................. 21
United States v. Smith, 116 F.3d 857 (10th Cir. 1997) ........................ 14, 22
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TABLE OF AUTHORITIES (continued)
Page(s)
United States v. Stinson, 97 F.3d 466 (11th Cir. 1996) (per curiam) .................................................... 19, 20
United States v. Thomas, 749 F.3d 1302 (10th Cir. 2014) ............................ 29
United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999) ....................... 15, 22, 25
United States v. Weingarten, 713 F.3d 704 (2d Cir. 2013) .................................. 21
United States v. White, 406 F.3d 827 (7th Cir. 2005) ................................ 21
United States v. Whren, 111 F.3d 956 (D.C. Cir. 1997) .................. 10, 15, 25
Williams v. New York, 337 U.S. 241 (1949) .................................. 18, 20, 21
Williamsburg Wax Museum v. Historic Figures, Inc., 810 F.2d 243 (D.C. Cir. 1987) .............................. 23
Brief for the United States in Opposition to Petition for a Writ of Certiorari, Cruzado-Laureano v. United States, No. 08-444, 2008 WL 5129014 (U.S. filed Dec. 5, 2008) ........................................ 27
18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure Jurisdiction § 4478.6 (2d ed. 2002) ........................................... 24
Anne M. Champion & Brian Thavarajah, Recent Decisions of the United States Court of Appeals for the District of Columbia Circuit: Criminal Procedure, 72 GEO. WASH. L. REV. 1004 (2004) ............................................... 17
Tracy Friddle & Jon M. Sands, “Don’t Think Twice, It’s All Right”: Remands, Federal Sentencing Guidelines & the Protect Act - A Radical “Departure”?, 36 ARIZ. ST. L.J. 527 (2004) ...................................................... 17
United States Sentencing Commission Guidelines Manual § 2D1.1 (2012) ........................ 5
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TABLE OF AUTHORITIES (continued)
Page(s)
United States Sentencing Commission Guidelines Manual § 3B1.2 (2012) .................... 6, 9
United States Sentencing Commission Guidelines Manual Chapter 5, Part A (2012) ................................................................ 9, 32
United States Sentencing Commission, Sourcebook of Federal Sentencing Statistics tbl. 62 (2013), available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2013/Table62.pdf ....................... 29, 30
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fifth Circuit is unpublished but is reported at 575 F. App’x 522 (5th Cir. 2014) (per curiam) and is reproduced in the Petition Appendix (“App.”) at 1a-13a.
JURISDICTION
The judgment of the Fifth Circuit was entered on July 22, 2014. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
STATUTES INVOLVED
The relevant statutes are included in the Petition Appendix at 69a-83a.
STATEMENT OF THE CASE
A. Introduction
The federal courts of appeals are split 6-5-1 over whether a general remand for resentencing authorizes the federal district court to conduct resentencing de novo. This Court appears to have resolved the issue in United States v. Pepper, 131 S. Ct. 1229 (2011), when it held that an appellate court’s “‘general remand[s] for resentencing,’ which ‘did not place any limitations on the discretion’” of the sentencing judge, “effectively wiped the slate clean” and permitted de novo resentencing. Id. at 1250-51 (alterations in original) (citation omitted). Nonetheless, at least four of the minority-rule circuits (the Fourth, Seventh, and D.C. Circuits, and now the Fifth Circuit) have adhered to their contrary rule even in the wake of Pepper. This Court should grant
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review to resolve the circuit conflict, vindicate the rule of Pepper, and restore uniformity on this important issue of federal sentencing law that affects hundreds of sentences every year.
B. Factual and Procedural Background
In January 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) began investigating defendant Mark Anthony Milan, an illegal weapons dealer. App. 2a, 16a; see also Trial Tr. at 113, 125, United States v. Cervantes, No. 5:11-425-4 (S.D. Texas June 21, 2011) [hereinafter Trial Tr.]. The ATF devised multiple reverse sting operations to sell firearms to Milan, but none succeeded. App. 2a, 16a-17a; see also Trial Tr. at 127-30.
When shown a photograph of Milan, ATF agent Mike Weddel recognized him as a suspect in a prior investigation of a home invasion. App. 2a-3a; see also Trial Tr. at 130-31, 183. The ATF then tacked in a different direction and sought to capitalize on Milan’s predisposition to commit such crimes. App. 3a; see also Trial Tr. at 132. On February 10, 2011, Agent Weddel and an undercover informant met with Milan and co-defendant Cristobal Cervantes to propose an armed invasion of a non-existent stash house. App. 3a, 17a; see also Trial Tr. at 183, 186-88. Agent Weddel informed Milan and Cervantes that he was a member of an organization trafficking in cocaine but was being cheated out of his share of the money. App. 3a, 17a; see also Trial Tr. at 194, 196. He further explained that his organization would soon deliver 25 kilograms of cocaine to a stash house in Laredo, Texas and solicited the aid of Milan and Cervantes in stealing it. App. 3a, 17a; see also Trial
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Tr. at 194-95. He told Milan and Cervantes that there were always two people in the house and one of them always carried a gun in his waistband. App. 17a; see also Trial Tr. at 195. To sweeten the deal, Agent Weddel asked for only five of the 25 kilograms as his cut. App. 3a; see also Trial Tr. at 196-97. Agent Weddel requested to meet the crew that Milan and Cervantes would use to perform the home invasion, but they said he did not need to meet anybody else. Trial Tr. at 200.
On February 17, 2011, Agent Weddel met for a second time with Milan and Cervantes. Trial Tr. at 203. Agent Weddel expected to meet with other participants, but no one else came to the meeting and Milan informed him that he did not need to meet anyone else. Trial Tr. at 206. Agent Weddel discussed the details of the raid with Milan and Cervantes. Trial Tr. at 213-18. Agent Weddel told Milan and Cervantes that he wanted to meet the other participants so they would know not to shoot him during the raid, saying that he was afraid for his personal safety if he did not meet them before the raid. Trial Tr. at 210-11. But he testified at trial that he actually wanted to meet the other participants so that he could identify who they were for purposes of prosecution. Id. Because he did not meet them, he tried to schedule another meeting a week later hoping to meet the rest of the team. Trial Tr. at 218.
On February 24, 2011, Agent Weddel met for a third time with Milan and Cervantes. Agent Weddel testified that the purpose of the third meeting was “to identify any other coconspirators but also to allow for Cervantes and Milan to back out.” Trial Tr. at 223.
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Again, Milan and Cervantes came to the meeting alone. Trial Tr. at 224. The meeting was short and focused primarily on a future firearms sale, not the upcoming raid. Trial Tr. at 224-28. However, Agent Weddel also discussed where the cocaine would be in the house, and Cervantes said that they would have a team of six people for the raid. Trial Tr. at 231.
On March 9, 2011, the Government executed the sting. Agent Weddel called Milan to inform him that 25 kilograms of cocaine had arrived at the stash house. App. 3a-4a, 18a; see also Trial Tr. at 234-35. Later that day, Milan and Cervantes met the ATF agent at a pre-determined location and brought with them two additional people: Michael Porras-Castillo and petitioner Luis Alvarez. App. 4a, 18a; see also Trial Tr. at 244-47. In explaining the plan for the raid to the group, the agent emphasized that the house would be guarded by at least two people and that at least one of them would have a gun. Trial Tr. at 250. Cervantes showed Agent Weddel a pistol and Porras-Castillo showed him a bag that contained rifles. The ATF confirmed that the participants understood the plan, and then gave the signal to have them arrested. During the arrest, Alvarez and Porras-Castillo were discovered to be wearing bulletproof vests. Trial Tr. at 255-56.
After a three-day trial, Alvarez was convicted of conspiracy to possess with intent to distribute a quantity in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count One), and possession of a firearm in furtherance of the drug conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2 (Count Six). App. 4a.
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Alvarez’s base offense level in the original Presentence Investigation Report (“PSR”) for Count One was 34. In addition, he received a two-level increase in offense level for the possession of a weapon during the commission of the offense and a four-level increase for the use of body armor during the commission of the offense, making his total offense level 40. App. 4a-5a; see also PSR dated July 13, 2011 at 11-12. Alvarez had no prior criminal conviction. App. 4a; see also PSR dated July 13, 2011 at 12. Based on the total offense level of 40 and the criminal history category of I, Alvarez’s Guideline range was 292-365 months’ imprisonment for Count One. App. 4a; see also PSR dated July 13, 2011 at 12. The district court sentenced Alvarez to 292 months on Count One and to a mandatory, consecutive 60-month term on Count Six. App. 4a-5a.
Alvarez appealed his convictions and sentence on several grounds. Alvarez argued, in part, that because he was convicted of possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i), it was inappropriate double punishment to also apply a two-level increase to his guideline range on Count One for possession of a dangerous weapon during the offense, pursuant to U.S.S.G. § 2D1.1(b)(1) (2012).1 App. 5a, 37a-38a. Though Alvarez had not raised this objection at trial, the Fifth Circuit applied its prior precedent to hold that the district court plainly erred in applying the two-level enhancement. App. 5a, 37a-38a. The Fifth Circuit’s mandate stated:
1 The relevant U.S. Sentencing Guideline provisions are reproduced in the Petition Appendix at 57a-68a.
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For the foregoing reasons, the sentences of Alvarez and Cervantes are VACATED and REMANDED for resentencing. We AFFIRM Appellants’ convictions and sentences on all other grounds, and DENY WITHOUT PREJUDICE Alvarez’s ineffective assistance of counsel claim.
App. 41a.
On remand, the probation office submitted a revised PSR, which reported that, during a presentence investigation interview, Alvarez said that he had no knowledge of the cocaine involved in this case, that he thought the participants were going to scare someone and collect some money, and that after the ATF agent told them about the 25 kilograms of cocaine, Alvarez told Porras-Castillo that he wanted to get out. Revised PSR dated May 1, 2013, at 11. In addition, the revised PSR removed the two-level increase for possessing a weapon during the commission of the offense. App. 5a. With a total offense level of 38 and a criminal history category of I, Alvarez’s new Guideline range for Count One was 235 to 293 months. App. 5a.
Alvarez made multiple objections to the PSR and requested recalculation of the Guidelines range, a downward departure, a variance, or a non-Guidelines sentence. App. 5a. Most notably, he argued that the court should decrease his total offense level based on his minor role under U.S.S.G. § 3B1.2 because he did not have a managerial role, did not have authority over how the crime would be committed, did not possess vital information relating to the offense, and only joined the conspiracy at the last minute and
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with a different conception of the goal of the conspiracy. App. 5a; see also Objections to the PSR, July 9, 2013. Further, Alvarez argued that the Court should grant Alvarez a downward departure or variance based on the need to care for his children because his wife was absent or unable to do so. App. 5a; see also Objections to the PSR, July 9, 2013. Alvarez also argued: (1) that he did not make any of the statements that were attributed to him by the ATF agent; (2) that the record did not show that he knew that 25 kilograms of cocaine would be present in the non-existent stash house; (3) that there was no evidence that the vest he was wearing at the time of the offense was functional and designed to serve as body armor, or that it was sold in interstate commerce as required under 18 U.S.C. § 921(a)(35); and (4) that the court should grant him a downward departure or a variance based on imperfect entrapment or sentencing entrapment because the government chose the amount of drugs that would allegedly be involved in the raid and told the participants that the house would be heavily protected, causing the participants to protect themselves with guns and body armor. App. 5a-6a; see also Objections to the PSR, July 9, 2013. Finally, Alvarez requested that the Court consider a non-Guidelines sentence under 18 U.S.C. § 3553(a). App. 6a; see also Objections to the PSR, July 9, 2013.
The Probation Officer argued that “‘[t]he only issues on remand properly before the district court are those issues arising out of the correction of the sentence ordered by this court.’” Third Supp. Addendum to the PSR, at 4 (quoting United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998)). The
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Probation Officer noted, “The defendant’s post-remand objections remain unresolved.” Id.
At sentencing, “[t]he district court stated that the remand was limited to removing the two-level firearms enhancement.” App. 6a. The district court noted that the PSR had been revised to remove the increase for possession of a weapon during the commission of the offense. The court said:
I have received and reviewed your response on behalf of [Alvarez] and while you make some good points there, but they are good points, obviously that too late . . . . I went back and reread the [Fifth Circuit] opinion once again in preparation for this and as I’ve indicated, the only issue is the gun enhancement and the other issues, the Court believes, are foreclosed. There are, you know, are some factual issues, you know, there that may or may not actually make any substantial difference but, nonetheless, they are all foreclosed that the only issue is the gun enhancement.
Sentencing Tr. at 4-5, United States v. Alvarez, No. 5:11-425-4 (S.D. Texas June 21, 2011) [hereinafter Sentencing Tr.]; see also App. 6a.
The court went on to say that it could consider mitigation in its overall sentence but that Alvarez could not make specific objections to the PSR. Sentencing Tr. at 5. Alvarez objected to the decision not to proceed on the objections raised to the PSR, and the court reiterated again that “the Court can
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consider many things in deciding what kind of a sentence to impose, but to the extent that you are making specific objections to the PSR either factual . . . or to the scoring of the guidelines in the PSR . . . [t]he Court believes that the other issues are foreclosed.” Sentencing Tr. at 5-6. The court allowed Alvarez to proffer his objections, but determined that a sentence within the Guidelines was necessary. Sentencing Tr. at 22. As it had at Alvarez’s first sentencing, the district court sentenced Alvarez to the bottom of the Guideline range — 235 months’ imprisonment on Count One — and noted that his consecutive 60-month sentence for Count Six remained in place as well. App. 6a; see also Sentencing Tr. at 22-23.
Had the court considered Alvarez’s objections, his sentence could have been greatly reduced. For example, § 3B1.2 of the U.S. Sentencing Guidelines calls for a two-level reduction in offense level if the defendant was a minor participant, and a four-level reduction if the defendant was a minimal participant, with a three-level reduction being appropriate for defendants who are more than a minimal participant but less than a minor participant. U.S.S.G. § 3B1.2. Given Alvarez’s criminal history category of I, a two-level reduction in his total offense level would have resulted in a Guideline sentence range of 188 to 235 months and a four-level reduction would have resulted in a Guideline sentence range of 151 to 188 months. See U.S.S.G. Ch. 5, Pt. A (2012).
Alvarez once again appealed to the Fifth Circuit, arguing that the district court erred by preventing him from making objections to the PSR and requests for downward departures, variances, or
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non-Guideline sentences. App. 6a. He argued that the court should have conducted a full, de novo sentencing and considered all of his objections. App. 6a-7a.
Relying on its prior precedent, see Marmolejo, 139 F.3d at 531 (“This court specifically rejects the proposition that all resentencing hearings following a remand are to be conducted de novo unless expressly limited by the court in its order of remand.”), the Fifth Circuit rejected Alvarez’s argument:
This circuit has previously disagreed with those courts that have held “resentencing hearings following a remand are to be conducted de novo unless expressly limited by the court in its order of remand.” United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). We take the minority view, shared by the D.C. and Seventh Circuits. See id. (citing United States v. Whren, 111 F.3d 956 (D.C. Cir. 1997); United States v. Parker, 101 F.3d 527 (7th Cir. 1996)). “The only issues on remand properly before the district court are those issues arising out of the correction of the sentence ordered by this court.” Marmolejo, 139 F.3d at 531. “All other issues not arising out of this court’s ruling and not raised before the appeals court, which could have been brought in the original appeal, are not proper for reconsideration by the district court below.” Id. (emphasis added).
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App. 7a-8a. The court stated, “The general rule applies, that de novo resentencing is improper following a remand for correction of a specific and defined sentencing error,” and held that the district court was correct not to consider Alvarez’s objections to the PSR’s guideline calculations. App. 8a.
The Fifth Circuit then rejected Alvarez’s arguments for departure or variance based on his family situation, the defense of imperfect entrapment or sentencing entrapment, and reasonableness. The court of appeals credited the district court’s statements that it took into account Alvarez’s arguments on family responsibilities for purposes of granting a variance or departure. App. 10a-12a. Moreover, it held that Marmolejo does not prohibit district courts from considering all mitigating evidence in reaching a proper sentence under 18 U.S.C. § 3553, but that Alvarez had not shown an abuse of discretion or rebutted the presumption of reasonableness that attaches to a within-Guidelines sentence. App. 12a-13a.
REASONS FOR GRANTING THE PETITION
As the Fifth Circuit acknowledged, the federal courts of appeals have long been deeply divided on the scope of resentencing following a general remand, resulting in substantially different treatment of defendants who are convicted and resentenced in different circuits. App. 7a-8a; see also Marmolejo, 139 F.3d at 531. All of the regional circuits have considered this question, and they are split 6-5-1 on the correct result.
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Moreover, the minority rule, which by default forecloses a district court from reconsidering new arguments and evidence on remand, is in conflict with the Supreme Court’s holding in Pepper that sentencing following a general remand is done on a clean slate. Pepper, 131 S. Ct. at 1251. Because the minority-rule circuits have adhered to their position, even in the wake of Pepper, this Court should reaffirm the position that it took in Pepper and resolve the circuit conflict on this important question of law by reversing the judgment of the Fifth Circuit.
I. This Court Should Resolve a Deep Circuit Split over Whether De Novo Resentencing Is Appropriate on a General Remand.
A court of appeals has the authority to “modify, vacate, set aside or reverse any judgment . . . of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106. In addition, if the court of appeals sets aside a federal criminal sentence as unlawful or for error relating to the Guidelines, it “shall . . . remand the case for further sentencing proceedings with such instructions as the court considers appropriate.” 18 U.S.C. § 3742(f)(1) & (2)(A) and (B). On remand, the district court is required to “resentence a defendant in accordance with [18 U.S.C.] § 3553 and with such instructions as may have been given by the court of appeals.” 18 U.S.C. § 3742(g).
While a lower court is “bound to carry the mandate of the upper court into execution and
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[can]not consider the questions which the mandate laid at rest,” and “a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.” Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939). The regional circuits are deeply divided on the effects of general appellate remands for resentencing. Every regional circuit court has considered this issue. Six circuits have held that, where the mandate is silent, the district court may conduct a de novo sentencing proceeding where it may consider new arguments and evidence, just as it would in the original sentencing proceeding. But five circuits hold that the district court may not consider issues relevant to sentencing that could have been raised earlier but were not. One circuit takes a hybrid approach, limiting the scope of resentencing when a portion of the defendant’s sentence is vacated but allowing de novo resentencing when one or more of the defendant’s convictions are vacated.
The majority rule, adopted by six circuits, is that “[w]here the remand does not limit the District Court’s review, sentencing is to be de novo.” United States v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996). Under this rule, “[o]nce a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992). In addition to the Sixth and Eighth Circuits, the Ninth, Tenth, and Eleventh Circuits also follow this approach. See United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010) (“[W]e
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have often held that a general vacatur of a sentence by default allows for resentencing de novo.”); United States v. Smith, 116 F.3d 857, 859 (10th Cir. 1997); United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995) (per curiam). The Third Circuit generally follows this majority approach: “when the remand includes instructions to vacate at least one interdependent count of conviction, a de novo sentencing is appropriate.” United States v. Miller, 594 F.3d 172, 180 (3d Cir. 2010). But the Third Circuit has been “careful to note . . . that [it] take[s] no position on whether de novo resentencing is the default approach after a count contained in a non-interdependent sentence has been vacated.” United States v. Diaz, 639 F.3d 616, 621 n.2 (3d Cir. 2011).
In the circuits that follow the majority rule, the district court on remand generally “remains free to rely upon ‘any legitimate factors’ when making its determination, as long as it rules without vindictiveness.” United States v. Rodgers, 278 F.3d 599, 602-03 (6th Cir. 2002) (quoting United States v. Bond, 171 F.3d 1047, 1048 (6th Cir. 1999)); see also United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir. 1994), overruled on other grounds by Witte v. United States, 515 U.S. 389 (1995), as recognized in United States v. Gomez-Mendez, 320 F. App’x 523, 525 (9th Cir. 2009). Thus, the proper scope of resentencing on remand under the majority approach includes any arguments and evidence relevant to sentencing, even if they were not raised in the first sentencing hearing. See United States v. Matthews, 278 F.3d 880, 886-87 (9th Cir. 2002) (en banc).
Five other circuits have taken a “waiver approach” to resentencing following remand.
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Marmolejo, 139 F.3d at 530 (citing United States v. Whren, 111 F.3d 956 (D.C. Cir. 1997) and United States v. Parker, 101 F.3d 527 (7th Cir. 1996)); United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999) (adopting the Whren approach); United States v. Pileggi, 703 F.3d 675, 679 (4th Cir. 2013). Thus, in the First, Fourth, Fifth, Seventh, and D.C. Circuits, “only those discrete, particular issues identified by the appeals court for remand are properly before the resentencing court.” Marmolejo, 139 F.3d at 530. These courts explicitly reject the de novo approach taken by the majority of circuits and hold that “[t]he fact that the appellate court did not expressly limit the scope of the remand order did not imply that a full blown sentencing hearing was permissible.” Id. at 531.
These courts have held that “any issue that could have been but was not raised on appeal is waived and thus not remanded.” United States v. Husband, 312 F.3d 247, 250 (7th Cir. 2002) (citing United States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001) and Parker, 101 F.3d at 528). Thus, the district court “‘may consider only such new arguments or new facts as are made newly relevant by the court of appeals’ decision—whether by the reasoning or by the result.’” Ticchiarelli, 171 F.3d at 32 (quoting Whren, 111 F.3d at 960) (stating that an argument can become newly relevant even if the defendant had the opportunity to present his position at the first sentencing hearing “if he did not have a reason to raise it at his original sentencing”). Still, if an issue is made newly relevant on remand, the D.C. Circuit has said that the proper solution “is for the district court not to resentence the defendant de novo but to consider the newly relevant
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issue.” Whren, 111 F.3d at 960; see also Pileggi, 703 F.3d at 680 (“We unhesitatingly conclude that the mandate rule barred the district court from reconsidering the restitution order on remand. Neither party had raised the issue before this Court, and the government is not permitted to use the accident of a remand to raise . . . an issue that [it] could just as well have raised in the first appeal.” (internal quotation marks omitted)).
The Second Circuit has adopted a hybrid approach. The circuit was an early adopter of de novo sentencing, holding in 1989 that if the resentencing court determines that an adjustment should have been made to the defendant’s total offense level, “it need not consider whether the Government has waived its right to request that this factor be taken into account.” United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989) (“[I]n the interests of truth and fair sentencing, a court should be able on a sentence remand to take new matter into account on behalf of either the Government or the defendant.”); see also United States v. Atehortva, 69 F.3d 679, 685 (2d Cir. 1995) (“[T]he resentencing proceeding was appropriately treated as a de novo sentencing, for the remand did not specifically limit the scope of resentencing.”). However, in United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002), the Second Circuit cabined the holding in Atehortva to cases in which one or more convictions were vacated, holding that “resentencing usually should be de novo when a Court of Appeals reverses one or more convictions and remands for resentencing” but “resentencing should be limited when the Court of Appeals upholds the underlying convictions but determines that a
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sentence has been erroneously imposed and remands to correct that error.” Id. at 1228. But see United States v. Benjamin, 391 F. App’x 942, 947 (2d Cir. 2010).
This split has been widely acknowledged and is entrenched. The Fifth Circuit itself noted the split both in the decision below and in an earlier case, see App. 7a-8a (noting that the Fifth Circuit had “previously disagreed” with courts that take the de novo approach (citing Marmolejo, 139 F.3d at 531)), as have other courts of appeals. See, e.g., Miller, 594 F.3d at 179 (“Our sister circuits are divided . . . .”); United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (observing that “[t]he courts of appeals differ on their approach to remands for resentencing”). Commentators have recognized the conflict as well. See, e.g., Anne M. Champion & Brian Thavarajah, Recent Decisions of the United States Court of Appeals for the District of Columbia Circuit: Criminal Procedure, 72 GEO. WASH. L. REV. 1004, 1021 (2004) (“The circuit courts have been sharply divided on the issue of whether the scope of resentencing should be de novo or limited to ‘newly relevant’ arguments.”); Tracy Friddle & Jon M. Sands, “Don’t Think Twice, It’s All Right”: Remands, Federal Sentencing Guidelines & the Protect Act—A Radical “Departure”?, 36 ARIZ. ST. L.J. 527, 530 (2004) (“[T]he circuit courts are split over whether ‘general remands’ . . . authorize de novo resentencing or something less.”). Moreover, the Ninth Circuit has affirmed its position in an en banc case. See Matthews, 278 F.3d at 885-86. This Court’s review of the question presented is the only way to resolve this longstanding 6-5-1 split among the circuits.
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II. This Court Has Already Held That A General Remand After Vacatur Permits De Novo Resentencing.
Review is especially critical because this Court adopted the majority position in Pepper, and yet at least four of the minority-rule circuits have adhered to their position in its wake.
Pepper decided two related questions. First, noting the longstanding principle that “‘highly relevant—if not essential—to the selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics,’” 131 S. Ct. at 1235 (quoting Williams v. New York, 337 U.S. 241, 246-47 (1949)) (alterations omitted), and the codification of that principle in 18 U.S.C. § 3661, this Court held that, “when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation.” Id. at 1236.
Second, the Court addressed whether or not the district court on remand properly reduced the downward departure for substantial assistance in the original sentence from 40 percent to 20 percent, even though the prior 40 percent departure had been upheld in Pepper II as not being an abuse of discretion. Id. at 1237. The Court noted at the outset “that the mandates in Pepper II [486 F.3d 408 (8th Cir. 2007)] and Pepper III [518 F.3d 949 (8th Cir. 2008)] were ‘general remand[s] for resentencing,’ which ‘did not place any limitations on the discretion of the newly assigned district court judge in resentencing Pepper,’” and that petitioner had
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challenged neither the scope nor validity of the appellate mandate. Id. at 1250 (quoting United States v. Pepper, 570 F.3d 958, 963 (8th Cir. 2009) (Pepper IV), aff’d in part and vacated in part, 131 S. Ct. 1229 (2011))). Because “the Court of Appeals in Pepper III set aside Pepper’s entire sentence and remanded for a de novo resentencing,” this Court held that “even assuming, arguendo, that the original sentencing court’s decision to impose a 40 percent departure was at one point law of the case, Pepper III effectively wiped the slate clean.” Id. at 1251. The Court explicitly noted that Pepper’s sentence was vacated in Pepper III on grounds unrelated to the decision to grant a departure, “but that fact does not affect our conclusion. ‘A criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent.’” Id. (quoting United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (per curiam)).
Notwithstanding Pepper’s holding that the general remand wiped the slate clean and permitted de novo resentencing, waiver-rule circuits (including the Fifth Circuit below) continue to adhere to their prior position. Improperly characterizing Pepper’s “wiped-the-slate-clean” holding as dicta, the Seventh Circuit has held: “Allowing a district court to freely balance already and properly raised arguments to preserve or revise its sentencing objectives does not equate to carte blanche for defendants to raise new arguments unrelated to the issues raised on appeal.” United States v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2001). The Fourth Circuit has also said that Pepper does not “‘abolish waiver in the context of re-sentencing,’” and has held that “[t]he government
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waived any challenge to the amount of restitution by failing to raise it on appeal.” Pileggi, 703 F.3d at 680 & n.7 (quoting Barnes). Finally, the D.C. Circuit has adhered to its position that “unlike the rule in some circuits, in this circuit the district court generally does not have authority to resentence a defendant de novo,” United States v. Blackson, 709 F.3d 36, 40 (D.C. Cir. 2013), and has found Pepper inapposite, id. at 41-42. On the other hand, the Sixth Circuit, a de novo resentencing circuit, has said, “The Supreme Court recognized this principle in Pepper” that “a general remand wipes the slate clean.” United States v. McFalls, 675 F.3d 599, 606 (6th Cir.), cert. denied, 133 S. Ct. 287 (2012). This Court should intervene to clarify the authority of sentencing courts under a general remand.
III. The Waiver Rule of the Fifth Circuit and Other Minority Circuits Is Wrong and Contrary to Federal Sentencing Statutes.
This Court should also grant review because the decision below is incorrect. The rationale for allowing de novo resentencing lies in the “modern concepts individualizing punishment [that] have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information.” Williams, 337 U.S. at 247. The circuits who follow the majority approach of de novo resentencing have repeatedly relied on this fundamental principle that “[a] criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent,” Stinson, 97 F.3d at 469 (per curiam), and the district court’s “original sentencing intent may be undermined by altering one portion of the calculus.” United States v. White, 406
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F.3d 827, 832 (7th Cir. 2005); see also United States v. Weingarten, 713 F.3d 704, 711 (2d Cir. 2013) (At both “the initial sentencing and on remand, an appropriate sentence is one based on the totality of the relevant conduct, and on the character of the accused.”). The Second Circuit has described a sentence as the “constellation of offenses . . . and their relationship to a mosaic of facts,” noting that when a conviction is overturned on one or more of the charges “the constellation of offenses of conviction has been changed and the factual mosaic . . . likely altered.” Quintieri, 306 F.3d at 1227-28; see also United States v. Hicks, 146 F.3d 1198, 1202 (10th Cir. 1998) (“‘When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent.’” (quoting United States v. Shue, 825 F.2d 1111, 1114 (7th Cir. 1987))).
Alvarez’s case is illustrative of this point. The district court acknowledged that the objections Alvarez raised were good points that could be relevant to the court’s overall sentencing determination, but the court felt that it was foreclosed from considering these issues. Sentencing Tr., 4-5, September 18, 2013. Thus, the district court admittedly resentenced Alvarez on an incomplete set of facts that did not take into account the full picture of his role in the offense and his level of culpability. This plainly contradicts the modern conception of sentencing as described by this Court. See Pepper, 131 S. Ct. 1229; Williams, 337 U.S. 241; United States v. Booker, 543 U.S. 220, 230-37, 246 (2005).
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Courts often frame the question regarding the scope of resentencing following remand in terms of the mandate rule under the law of the case doctrine. See, e.g., United States v. Castellanos, 608 F.3d 1010, 1016-17 (8th Cir. 2010); Quintieri, 306 F.3d at 1225; Matthews, 312 F.3d at 657; Ticchiarelli, 171 F.3d at 31; Smith, 116 F.3d at 859; United States v. Polland, 56 F.3d 776, 777-78 (7th Cir. 1995). A lower court “has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Penn. R.R., 334 U.S. 304, 306 (1948). However, the mandate rule does not govern issues that were not decided by the appellate court. See Sprague, 307 U.S. at 168 (“While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.”). Thus, in United States v. Garcia-Beltran, 443 F.3d 1126 (9th Cir. 2006), for example, the Ninth Circuit allowed the government’s motion to compel a new set of fingerprints on remand after it had said in the first appeal that fingerprints taken for investigative purposes after an unlawful arrest must be suppressed and remanded to the district court for determination on whether there was an investigative purpose. Id. at 1129.
Even while noting that the law of the case doctrine “applies only to issues that have been resolved, generally leaving a district judge free to address issues that the appellate court left undecided,” the minority-rule circuits have extended the doctrine to foreclose all “waived issues.” Morris, 259 F.3d at 898 (limiting the district court to issues remanded, issues arising for the first time on remand, and issues that were timely raised but remain undecided); Kimberlin v. Quinlan, 199 F.3d
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496, 500 (D.C. Cir. 1999) (“[A] ‘legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.’” (quoting Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987))).
This conception is contrary to the precedent of this Court. An appellate mandate “relates to the record and issues then before the court,” Standard Oil Co. v. United States, 429 U.S. 17, 18 (1976) (per curiam), and the mandate rule is akin to principles of of res judicata. “Whatever was before the Court and is disposed of, is considered as finally settled,” and a lower court cannot “review it upon any matter decided on appeal for error apparent; or intermeddle with it further than to settle so much as has been remanded.” Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492 (1838) (emphasis added); The “Lady Pike”, 96 U.S. 461, 462 (1878) (“[R]e-examination cannot extend to anything that was decided in the antecedent appeal” (emphasis added)) see also Pepper, 131 S. Ct. at 1250 n.18 (scope of the mandate determined by what the court of appeals “actually decided”). When an appellate court affirms or directs entry of a judgment, a party cannot raise new issues that would derogate from or alter that judgment (because the propriety of the judgment was actually decided), but when the appellate court merely vacates a judgment or sentence on certain grounds, and issues a general remand, the appellate court has not in any sense decided issues that were never raised.
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Wright and Miller criticize the extension of the mandate rule to incorporate concepts of waiver:
Focus on the mandate rule is desirable only if its requirements are met—if the appellate court in fact did not consider and resolve an issue not presented on the first appeal, the trial court acting on remand should not be bound as tightly as if the issue had in fact been resolved. The trial court should take account of the needs of orderly progression through the trial and appeals processes in deciding whether to reconsider its own pre-appeal ruling, but so long as further proceedings are otherwise appropriate on remand there is no point in pretending that the trial court owes fealty to a nonexistent appellate ruling.
18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure Jurisdiction § 4478.6, at 823 (2d ed. 2002); see also United States v. Hebeka, 89 F.3d 279, 284 (6th Cir. 1996) (“[T]he ‘law of the case’ doctrine has little applicability in the sentencing arena.”); Cornelius, 968 F.2d at 705-06 (discussing the mandate rule to allow new arguments and evidence at resentencing except where the court of appeals had already decided the issue).
Beyond reliance on this false construct of the mandate rule, the primary argument advanced by the circuits that follow the minority approach is one of judicial efficiency. The D.C. Circuit, for example, said that requiring the parties to raise all relevant issues
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at the original sentencing hearing “serves both equity and efficiency.” Whren, 111 F.3d at 959. However, as the Sixth Circuit pointed out, requiring the parties to raise all objections at the original sentencing is actually less efficient because requiring the “front-loading” of all potential objections would incentivize more, possibly meritless initial objections, increasing the burden on district courts at sentencing. Jennings, 83 F.3d at 151. Moreover, the risk of defendants holding back on objections for a “second bite of the apple,” resulting in sentencing proceedings that go through multiple appeals, is overstated. Even under the de novo approach to resentencing, a party will only be able to raise new issues following a successful appeal. Thus, the defendant would have no incentive to hold back potentially winning arguments the first time around.
In fact, it is really the waiver approach to resentencing that presents the greater risk of an inefficient and drawn out appellate process. As the First Circuit noted, waiver of issues on remand depends on “whether the party had sufficient incentive to raise the issue in the prior proceedings,” a question that the court said required “a fact-intensive, case-by-case analysis.” Ticchiarelli, 171 F.3d at 33. Thus, on remand, instead of conducting a de novo resentencing, the district court would have to address fact-intensive arguments about whether the defendant had sufficient incentive to raise the objection in the first proceeding. This time would be better spent conducting a fact-intensive resentencing that considers all facts relevant to “the history and characteristics of the
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defendant,” 18 U.S.C. § 3553(a)(1), unless the court of appeals explicitly directs the district court otherwise.
It also generally makes more sense to have the district court, already familiar with the facts of the case, consider whether to conduct de novo resentencing. As the Sixth Circuit stated: “it is not always possible for a court of appeals to foresee the potential chain of events that will follow remand.” McFalls, 675 F.3d at 605.2 Because of this difficulty, the district court should be allowed to conduct de novo resentencing unless the court of appeals is confident that only certain factors need to be considered. Id. The court of appeals may restrict the mandate if it has appropriate reasons to do so, but making this the default rule when the court simply remands for resentencing makes little sense and violates the dictates of Congress and this Court. As this Court said in Booker, “maintaining a strong connection between the sentence imposed and the offender’s real conduct” is “important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.” Booker, 543 U.S. at 246. By foreclosing a defendant from presenting arguments as to his actual conduct without considering the individual circumstances of the defendant, the court of appeals violates that intent.
Because the Fifth Circuit’s decision is contrary to the dictates of 18 U.S.C. § 3553 and Supreme Court jurisprudence, and because the divergent rules mean
2 As discussed in Section IV, infra, the vast majority of circuit courts remand without any further instructions. The reason for this trend is not clear, but the uncertainty that the court of appeals faces when remanding is one plausible reason.
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in practice that convicted defendants are sentenced differently across the circuits, this Court should review the question presented and reverse the decision of the Fifth Circuit.
IV. The Question Presented Is an Important Question of Law That Affects Thousands of Sentences.
While acknowledging the entrenched split of authority on this issue, the government has previously argued that this Court should not review it because courts of appeals have “authority to provide either for de novo resentencing or for a limited resentencing,” and thus could presumably reach the same results. Brief for the United States in Opposition to Petition for a Writ of Certiorari at 9-11, Cruzado-Laureano v. United States, No. 08-444, 2008 WL 5129014 at *9-*10 (U.S. filed Dec. 5, 2008). To the contrary, courts are not typically making case-specific determinations to restrict sentencing discretion; rather, because of the ubiquity of general remands for resentencing, the conflicting rules result in significant sentencing disparity across circuits.
As noted above, an appellate court may “require such further proceedings to be had as may be just under the circumstances,” 28 U.S.C. § 2106, and a court of appeals may have grounds to limit a district court’s discretion during the resentencing hearing by an expressly restrictive mandate. See, e.g., McFalls, 675 F.3d at 604 (“A limited remand must explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate.”); Caterino, 29 F.3d at
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1394-95 (considering whether the remand order expressly limited the district court).
But in reality, the default rule in the courts of appeals controls the scope of resentencing for most defendants. Limited remands in jurisdictions that allow for de novo resentencing are extremely rare. A survey of the cases remanded for resentencing in those circuits in the year preceding the filing of this brief (collected in Addendum A to this brief) reveals that the vast majority of Courts of Appeals who remand for resentencing place no limits on the district court to consider either new arguments or new evidence. In the Third Circuit, nineteen cases were remanded, of which the court limited the district court’s sentencing discretion in only one. In the Sixth Circuit, twenty-four cases were remanded, with three limiting the court’s power or directing the district court to enter a specific sentence or to revisit only part of its analysis. In the Eighth Circuit, one case out of thirteen was limited, and in the Ninth Circuit, three cases out of fifty required review on a closed record.3 The Tenth Circuit required the district court in only one case out of fourteen to resentence without discretion to expand the record. In the Eleventh Circuit, four cases out of twenty-two
3 In the Ninth Circuit, a remand on an open record means that there is no limitation on the evidence that the district court may consider. See United States v. Caceres-Olla, 738 F.3d 1051, 1057 (9th Cir. 2013). A closed record means that no additional evidence is allowed on remand because “additional evidence would not [change] the outcome or . . . there was a failure of proof after a full inquiry into the factual question at issue.” Id. (internal quotation marks omitted).
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placed limits on the discretion of the district court to hear new arguments or new evidence.4
Thus, it is clear that, even though the Courts of Appeals may have the power to limit a district court’s discretion, defendants who appear for resentencing within the de novo circuits almost always receive sentences from district courts whose discretion to hear new arguments and evidence is unlimited—unlike defendants who appear in the circuits that follow the minority rule, who are by default limited in the evidence they can present.5
Moreover, this issue affects hundreds of sentences every year. Between October 1, 2012 and September 30, 2013, 4,429 defendants underwent resentencing with 809 of those taking place following a remand by the court of appeals under 18 U.S.C. § 3742(f)(1)-(2). United States Sentencing Commission, Sourcebook of Federal Sentencing Statistics tbl. 62 (2013), available at http://www.ussc.gov/sites/default/files/pdf/research-
4 In many of the cases where the district court’s discretion was limited, the court of appeals placed the restriction on the district court in order to prohibit the government from offering new evidence or arguments on an issue. See, e.g., United States v. Thomas, 749 F.3d 1302, 1316 (10th Cir. 2014); United States v. Boose, 739 F.3d 1185, 1188-89 (8th Cir. 2014); Caceres-Olla, 738 F.3d at 1057-58; United States v. Lopez, 549 F. App’x 909, 913 (11th Cir. 2013) (per curiam). 5 In the five circuits that use the waiver rule, in all but four of the 134 cases that were remanded for resentencing since October 20, 2013, the courts issued a general remand that did not allow the defendants to make new arguments in front of the resentencing court. Moreover, none of the eight cases that was remanded for resentencing in the Second Circuit included special instructions that went outside that circuit’s hybrid rule. See Addendum B.
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and-publications/annual-reports-and-sourcebooks/2013/Table62.pdf. Each year, these defendants are placed in vastly different situations on remand. For example, in Fiscal Year 2013, the 340 defendants who were resentenced in the First, Fourth, Fifth, Seventh, and D.C. Circuits were by default limited in the arguments they could present to the district court at their resentencing, while 402 defendants were resentenced without such a restriction in the Third, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits.6 Id.
As discussed above, in creating the Guidelines system that is used today, Congress intended to increase the uniformity of sentencing while maintaining a strong connection to the offender’s actual conduct. Booker, 543 U.S. at 246. The drastically different treatment of defendants who happen to be sentenced in different circuits—without any consideration of their individual circumstances—is plainly contrary to the Congressional intent underpinning the Guidelines. This Court’s immediate resolution of the circuit conflict would serve the interests of justice and fair sentencing.
V. This Case Is the Proper Vehicle for Deciding This Important Issue of Law.
The Fifth Circuit’s decision presents this Court with a clean vehicle for resolving the circuit split on 6 Sixty-seven defendants were also resentenced in the Second Circuit, but, given the nature of the Second Circuit’s hybrid rule and the data available from the U.S. Sentencing Commission, it is not possible to tell whether these defendants were resentenced de novo or with some limitation on what the district court could consider. Id.
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the proper scope of resentencing. Alvarez preserved this issue for review by raising it in front of the district court on remand. Objections to the PSR, July 9, 2013; see also App. 7a. The Probation Officer argued that Alvarez’s objections were foreclosed under the Fifth Circuit’s prior precedent in Marmolejo, 139 F.3d 528, and said that “[t]he defendant’s post-remand objections remain unresolved.” Third Supp. Addendum to the PSR, at 4. During the resentencing proceeding, the district court said that Alvarez made “some good points” and added that there was a chance the issues could make a substantial difference in his sentence, but continued: “the only issue is the gun enhancement and the other issues, the Court believes, are foreclosed.” Sentencing Tr., at 4-5.
Despite the Fifth Circuit’s general remand, the district court did not consider objections that would have affected the calculation of Alvarez’s Guidelines sentencing range because the court deemed Alvarez’s objections foreclosed under Marmolejo. “‘[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.’” Peugh v. United States, 133 S. Ct. 2072, 2080 (2013) (quoting Gall v. United States, 552 U. S. 38, 49 (2007)). If Alvarez had received a two-level reduction for being a minor participant, his Guideline range would have been 188 to 235 months; a four-level reduction for being a minimal participant would have set his Guideline range at 151 to 188 months. See U.S.S.G. Ch. 5, Pt. A (2012). Given that the district court had
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sentenced Alvarez at the bottom of the Guidelines range in both his original and remand sentencing, supra at 5, 8, his ultimate sentence would likely have been substantially lower had the district court considered and accepted the objections. Thus, this case is the proper vehicle for resolving the question presented.
CONCLUSION
For the foregoing reasons, this Court should grant the petition for a writ of certiorari.
Respectfully submitted, STEPHEN B. KINNAIRD Counsel of Record IAN HERBERT
JEREMY JONES SARAH KELLY-KILGORE SEAN SMITH DANIELLE SUSANJ Paul Hastings LLP
OSCAR VELA Attorney at Law Oscar Vela, Jr., P.C. 1004 E. Hillside Road Ste. B Laredo, Texas 78041
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(956) 568-0221 [email protected] STEPHANOS BIBAS University of Pennsylvania Law School Supreme Court Clinic 3501 Sansom Street Philadelphia, PA 19104 (215) 746-2297
October 20, 2014
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ADDENDUM A
List of cases since October 20, 2013 remanding for resentencing (cases that were not general remands in bold). Third Circuit: United States v. Pena-Jaquez, No. 13-1112, 2014 WL 5032447 (3d Cir. Oct. 9, 2014); United States v. Paladino, No. 13-3689, 2014 WL 5012694 (3d Cir. Oct. 8, 2014); United States v. Salinas, No. 14-1240, 2014 WL 4555757 (3d Cir. Sept. 16, 2014); United States v. Boney, Nos. 13-3087 & 3199, 2014 WL 4494861 (3d Cir. Sept. 15, 2014); United States v. Solomon, No. 13-3108, 2014 WL 4494863 (3d Cir. Sept. 15, 2014); United States v. Husmann, 765 F.3d 169 (3d Cir. 2014); United States v. Brown, 765 F.3d 185 (3d Cir. 2014); United States v. Erwin, 765 F.3d 219 (3d Cir. 2014); United States v. Freeman, 763 F.3d 322 (3d Cir. 2014); United States v. Napolitan, 762 F.3d 297 (3d Cir. 2014); United States v. Dees, 574 F. App’x 179 (3d Cir. 2014); United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014); United States v. Sainudeen, 570 F. App’x 201 (3d Cir. 2014); United States v. Desrosiers, 568 F. App’x 163 (3d Cir. 2014); United States v. Smith, 751 F.3d 107 (3d Cir. 2014); United States v. Tai, 750 F.3d 309 (3d Cir. 2014); United States v. Cooper, 556 F. App’x 75 (3d Cir. 2014); United States v. Jones, 740 F.3d 127 (3d Cir. 2014); United States v. Walpole, 543 F. App’x 224 (3d Cir. 2013).
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Sixth Circuit: United States v. Kilgore, No. 12-4491, 2014 WL 4548744 (6th Cir. Sept. 15, 2014); United States v. Prater, No. 13-5039, 2014 WL 4403163 (6th Cir. Sept. 2, 2014); United States v. Sutton, 573 F. App’x 560 (6th Cir. 2014); United States v. Hackett, 762 F.3d 493 (6th Cir. 2014); United States v. Washington, No. 13-1408, 2014 WL 3765838 (6th Cir. Aug. 1, 2014); United States v. Musgrave, 761 F.3d 602 (6th Cir. 2014); United States v. Bell, 572 F. App’x 417 (6th Cir. 2014); Calhoun v. United States, 572 F. App’x 335 (6th Cir. 2014); United States v. Peacock, 571 F. App’x 411 (6th Cir. 2014); United States v. Howard, 570 F. App’x 478 (6th Cir. 2014); United States v. Davis, 751 F.3d 769 (6th Cir. 2014); United States v. Washington, 565 F. App’x 458 (6th Cir. 2014); United States v. Chatmon, 565 F. App’x 345 (6th Cir. 2014); United States v. Anderson, 564 F. App’x 777 (6th Cir. 2014); United States v. Kilgore, 749 F.3d 463 (6th Cir. 2014); United States v. Kamper, 748 F.3d 728 (6th Cir. 2014); United States v. Miller, 562 F. App’x 272 (6th Cir. 2014); United States v. Harris, 552 F. App’x 432 (6th Cir. 2014); United States v. Seymour, 739 F.3d 923 (6th Cir. 2014); United States v. Mosley, 550 F. App’x 277 (6th Cir. 2014); United States v. Covington, 738 F.3d 759 (6th Cir. 2014); United States v. Dennis, 549 F. App’x 408 (6th Cir. 2013); United States v. Chavez, 547 F. App’x 772 (6th Cir. 2013); United States v. Boyd, 543 F. App’x 584 (6th Cir. 2013).
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Eighth Circuit: United States v. Thornton, No. 13-3302, 2014 WL 4412587 (8th Cir. Sept. 9, 2014); United States v. Dautovic, 763 F.3d 927 (8th Cir. 2014); United States v. Martinez, 756 F.3d 1092 (8th Cir. 2014); United States v. Collins, 754 F.3d 626 (8th Cir. 2014); United States v. Roberts, 557 F. App’x 625 (8th Cir. 2014); United States v. Shaw, 751 F.3d 918 (8th Cir. 2014); United States v. Ford, 750 F.3d 952 (8th Cir. 2014); United States v. Stokes, 750 F.3d 767 (8th Cir. 2014); United States v. Burrage, 747 F.3d 995 (8th Cir. 2014); United States v. Bankhead, 746 F.3d 323 (8th Cir. 2014); United States v. Tucker, 740 F.3d 1177 (8th Cir. 2014); United States v. Boose, 739 F.3d 1185 (8th Cir. 2014); United States v. Markert, 732 F.3d 920 (8th Cir. 2013). Ninth Circuit: United States v. Wommer, No. 13-10462, 2014 WL 4628482 (9th Cir. Sept. 17, 2014); United States v. Banos-Mejia, No. 11-10483, 2014 WL 4557129 (9th Cir. Sept. 16, 2014); United States v. Mejia, No. 13-50450, 2014 WL 4362107 (9th Cir. Sept. 4, 2014); United States v. McCray, No. 10-56466, 2014 WL 4212469 (9th Cir. Aug. 27, 2014); United States v. Martinez, No. 13-30300, 2014 WL 4099843 (9th Cir. Aug. 21, 2014); United States v. Harmath, Nos. 10-10350 et seq., 2014 WL 2872294 (9th Cir. July 31, 2014); United States v. Caballero, No. 12-10524, 2014 WL 3686142 (9th Cir. July 25, 2014); United States v. Daniels, 760 F.3d 920 (9th Cir. 2014); United States v. Bare, No. 13-10192, 2014 WL 3563208 (9th Cir. July 21, 2014); United States v. Jones, No. 13-10206,
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2014 WL 3513122 (9th Cir. July 17, 2014); United States v. Ceballos-Castillo, No. 13-50407, 2014 WL 2581047 (9th Cir. June 10, 2014); United States v. Tovar-Jimenez, No. 13-10321, 2014 WL 2258293 (9th Cir. May 30, 2014); United States v. Howard, No. 13-10284, 2014 WL 2211392 (9th Cir. May 29, 2014); United States v. Medina-Castro, No. 13-50452, 2014 WL 2199326 (9th Cir. May 28, 2014); United States v. Rangel-Guzman, 752 F.3d 1222 (9th Cir. 2014); United States v. Sullivan, 753 F.3d 845 (9th Cir. 2014); United States v. Guerrero-Jasso, 752 F.3d 1186 (9th Cir. 2014); United States v. Elisea-Gonzalez, No. 12-10116, 2014 WL 2111196 (9th Cir. May 21, 2014); United States v. McClelland, No. 13-50082, 2014 WL 2109795 (9th Cir. May 21, 2014); United States v. Noel-Rodriquez, No. 13-30175, 2014 WL 2085354 (9th Cir. May 20, 2014); United States v. Gomez, 757 F.3d 885 (9th Cir. 2014); United States v. Miranda-Herrera, 570 F. App’x 634 (9th Cir. 2014); United States v. Mendoza, 567 F. App’x 560 (9th Cir. 2014); United States v. Diaz-Benitez, 567 F. App’x 515 (9th Cir. 2014); United States v. Penaloza-Carlon, 567 F. App’x 509 (9th Cir. 2014); United States v. Vargem, 747 F.3d 724 (9th Cir. 2014); United States v. Partin, 565 F. App’x 626 (9th Cir. 2014); United States v. Montes-Ruiz, 745 F.3d 1286 (9th Cir. 2014); United States v. Miranda-Garcia, 562 F. App’x 577 (9th Cir. 2014); United States v. Gomez-Parra, 562 F. App’x 575 (9th Cir. 2014); United States v. Montes-Loya, 558 F. App’x 746 (9th Cir. 2014); United States v. Recinos, 558 F. App’x 759 (9th Cir. 2014); United States v. Garcia-Luquin, 556 F. App’x 662 (9th Cir. 2014); United States v. Begay, 556 F. App’x 581 (9th Cir. 2014); United States v. Popov, 742 F.3d 911 (9th Cir. 2014); United States v. Hammon, 742 F.3d 880
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(9th Cir. 2014); United States v. Silerio-Ramirez, 554 F. App’x 612 (9th Cir. 2014); United States v. Barrera, 554 F. App’x 580 (9th Cir. 2014); United States v. Falcon, 553 F. App’x 737 (9th Cir. 2014); United States v. Rivera-Reyes, 553 F. App’x 685 (9th Cir. 2014); United States v. Isaacs, 551 F. App’x 299 (9th Cir. 2013); United States v. Rivas-Meneses, 557 F. App’x 651 (9th Cir. 2013); United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. 2013); United States v. Benally, 550 F. App’x 382 (9th Cir. 2013); United States v. Butler, 550 F. App’x 402 (9th Cir. 2013); United States v. Enriquez, 548 F. App’x 473 (9th Cir. 2013); United States v. Shi Yuan Li, 548 F. App’x 426 (9th Cir. 2013); United States v. Lopez-Torres, 545 F. App’x 658 (9th Cir. 2013); United States v. Wyly, 548 F. App’x 363 (9th Cir. 2013); United States v. Chavez, 542 F. App’x 691 (9th Cir. 2013). Tenth Circuit: United States v. Trotter, No. 13-3147, 2014 WL 4099741 (10th Cir. Aug. 21, 2014); United States v. Rosales-Miranda, 755 F.3d 1253 (10th Cir. 2014); United States v. Smith, 756 F.3d 1179 (10th Cir. 2014); United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014); United States v. Arechiga-Mendoza, 566 F. App’x 713 (10th Cir. 2014); United States v. Yazzie, 556 F. App’x 711 (10th Cir. 2014); United States v. Thomas, 749 F.3d 1302 (10th Cir. 2014); United States v. Castro-Perez, 749 F.3d 1209 (10th Cir. 2014); United States v. Evans, 744 F.3d 1192 (10th Cir. 2014); United States v. Lake, 556 F. App’x 706 (10th Cir. 2014); United States v. Harrison, 743 F.3d 760 (10th Cir. 2014); United States v. Biglow, 554 F. App’x 679 (10th Cir. 2014); United States v. Oyegoke-
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Eniola, 734 F.3d 1262 (10th Cir. 2013); United States v. Smith, 540 F. App’x 854 (10th Cir. 2013). Eleventh Circuit: United States v. Temprano, Nos. 14-10704 & 10705, 2014 WL 4746651 (11th Cir. Sept. 25, 2014); United States v. Middleton, No. 13-14131, 2014 WL 4178194 (11th Cir. Aug. 25, 2014); United States v. Hayes, 762 F.3d 1300 (11th Cir. 2014); United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014); United States v. Holton, 571 F. App’x 794 (11th Cir. 2014); United States v. Charles, 757 F.3d 1222 (11th Cir. 2014); United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014); United States v. Whitehead, 567 F. App’x 758 (11th Cir. 2014); United States v. Isaacson, 752 F.3d 1291 (11th Cir. 2014); United States v. Hester, 565 F. App’x 817 (11th Cir. 2014); United States v. Arroyo, 562 F. App’x 889 (11th Cir. 2014); United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014); United States v. Duck, 561 F. App’x 870 (11th Cir. 2014); United States v. Smith, 559 F. App’x 834 (11th Cir. 2014); United States v. Rodriguez, 558 F. App’x 956 (11th Cir. 2014); United States v. Louissant, 558 F. App’x 893 (11th Cir. 2014); United States v. Jones, 743 F.3d 826 (11th Cir. 2014); United States v. Howard, 742 F.3d 1334 (11th Cir. 2014); United States v. Mathauda, 740 F.3d 565 (11th Cir. 2014); United States v. Lopez, 549 F. App’x 909 (11th Cir. 2013); Deonarinesingh v. United States, 542 F. App’x 857 (11th Cir. 2013); United States v. Ferrao, 537 F. App’x 913 (11th Cir. 2013).
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ADDENDUM B List of cases since October 20, 2013 remanding for resentencing (cases that were not general remands in bold). First Circuit: United States v. Guzman-Montanez, 756 F.3d 1 (1st Cir. 2014); United States v. Sepulveda-Hernandez, 752 F.3d 22 (1st Cir. 2014); United States v. Jones, 748 F.3d 64 (1st Cir. 2014); United States v. Lucena-Rivera, 750 F.3d 43 (1st Cir. 2014); United States v. Santiago-Burgos, 750 F.3d 19 (1st Cir. 2014); United States v. Millan-Issac, 749 F.3d 57 (1st Cir. 2014); United States v. Aviles-Santiago, 558 F. App’x 7 (1st Cir. 2014); United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014); United States v. Pena, 742 F.3d 508 (1st Cir. 2014); United States v. Ortiz, 741 F.3d 288 (1st Cir. 2014). Second Circuit: United States v. Whitmore, 573 F. App’x 24 (2d Cir. 2014); United States v. White, 571 F. App’x 20 (2d Cir. 2014); United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014); United States v. Pena, 751 F.3d 101 (2d Cir. 2014); United States v. Trudeau, 562 F. App’x 30 (2d Cir. 2014); United States v. Green, 561 F. App’x 39 (2d Cir. 2014); United States v. McGeoch, 546 F. App’x 44 (2d Cir. 2013); United States v. Christie, 736 F.3d 191 (2d Cir. 2013).
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Fourth Circuit: United States v. Converse, No. 14-4163, 2014 WL 4413582 (4th Cir. Sept. 9, 2014); United States v. Ervin, No. 14-4005, 2014 WL 4244212 (4th Cir. Aug. 28, 2014); United States v. Tate, No. 13-4846, 2014 WL 4179966 (4th Cir. Aug. 25, 2014); United States v. Bradley, No. 12-5032, 2014 WL 3953964 (4th Cir. Aug. 14, 2014); United States v. Rivers, No. 13-4848, 2014 WL 2900948 (4th Cir. June 27, 2014); United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014); United States v. Adepoju, 756 F.3d 250 (4th Cir. 2014); United States v. Carbajal-Tafolla, No. 13-4781, 2014 WL 2610133 (4th Cir. June 12, 2014); United States v. Fenner, No. 13-4364, 2014 WL 2535475 (4th Cir. June 6, 2014); United States v. Martin, 753 F.3d 485 (4th Cir. 2014); United States v. Frazier, 572 F. App’x 239 (4th Cir. 2014); United States v. DeYoung, 571 F. App’x 231 (4th Cir. 2014); United States v. Mazur, 571 F. App’x 234 (4th Cir. 2014); United States v. Williams, 571 F. App’x 220 (4th Cir. 2014); United States v. Cabbagestalk, 570 F. App’x 342 (4th Cir. 2014); United States v. Curry, 570 F. App’x 315 (4th Cir. 2014); United States v. Perez, 570 F. App’x 309 (4th Cir. 2014); United States v. Whiteside, 748 F.3d 541 (4th Cir. 2014); United States v. Strayhorn, 743 F.3d 917 (4th Cir. 2014); United States v. Pegram, 554 F. App’x 238 (4th Cir. 2014); United States v. Sebolt, 554 F. App’x 200 (4th Cir. 2014); United States v. Johnson, 554 F. App’x 139 (4th Cir. 2014); United States v. Chaimowitz, 554 F. App’x 135 (4th Cir. 2014); United States v. Bryant, 540 F. App’x 241 (4th Cir. 2014); United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014); United States v. Waller, 548 F. App’x 917 (4th Cir. 2013); United States v.
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Rosas-Rosas, 547 F. App’x 271 (4th Cir. 2013); United States v. Andrews, 547 F. App’x 248 (4th Cir. 2013); United States v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013); United States v. Hutchison, 545 F. App’x 253 (4th Cir. 2013); United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013); United States v. McManus, 734 F.3d 315 (4th Cir. 2013). Fifth Circuit: United States v. Hernandez-Acosta, No. 13-40910, 2014 WL 4802706 (5th Cir. Sept. 21, 2014); United States v. Jiminez, No. 13-40457, 2014 WL 4628858 (5th Cir. Sept. 17, 2014); United States v. Mora-Fernandez, No. 13-40221, 2014 WL 4548864 (5th Cir. Sept. 16, 2014); United States v. Bell, No. 13-20704, 2014 WL 4438083 (5th Cir. Sept. 10, 2014); United States v. Gonzalez-Reyes, No. 13-50751, 2014 WL 4438396 (5th Cir. Sept. 10, 2014); United States v. Mora, No. 13-40705, 2014 WL 4416088 (5th Cir. Sept. 9, 2014); United States v. Rodriguez-Gallegos, No. 13-11303, 2014 WL 4351600 (5th Cir. Sept. 3, 2014); United States v. Nunez-Loredo, No. 13-40881, 2014 WL 4351070 (5th Cir. Sept. 3, 2014); United States v. Hinojo, No. 13-40597, 2014 WL 4235440 (5th Cir. Aug. 28, 2014); United States v. Lozz, No. 13-40280, 2014 WL 4235469 (5th Cir. Aug. 28, 2014); United States v. Lopez, No. 13-10663, 2014 WL 4179482 (5th Cir. Aug. 25, 2014); United States v. Rodriguez, No. 13-40768, 2014 WL 4099745 (5th Cir. Aug. 21, 2014); United States v. Guel-Escobedo, No. 13-11088, 2014 WL 4093737 (5th Cir. Aug. 20, 2014); United States v. Trejo, No. 13-11106, 2014 WL 4071669 (5th Aug. 19, Cir. 2014); United States v. Frazier, No. 12-10874, 2014 WL 3845152 (5th Cir. Aug. 6, 2014); United
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States v. McMillian, No. 13-50642, 2014 WL 3867497 (5th Cir. Aug. 6, 2014); United States v. Salazar-Medina, No. 13-50071, 2014 WL 2986466 (5th Cir. July 3, 2014); United States v. Rodriguez-Lopez, 756 F.3d 422 (5th Cir. 2014); United States v. Tax-Garcia, 574 F. App’x 340 (5th Cir. 2014); United States v. Garcia-Figueroa, 753 F.3d 179 (5th Cir. 2014); United States v. Garcia, 571 F. App’x 299 (5th Cir. 2014); United States v. Lake, 571 F. App’x 303 (5th Cir. 2014); United States v. Castillo-Ramirez, 571 F. App’x 314 (5th Cir. 2014); United States v. Torres-Torres, 571 F. App’x 315 (5th Cir. 2014); United States v. Garcia-Montejo, 570 F. App’x 408 (5th Cir. 2014); United States v. Coppin, 569 F. App’x 326 (5th Cir. 2014); United States v. Ramirez-Mata, 569 F. App’x 313 (5th Cir. 2014); United States v. Pena-Medrano, 569 F. App’x 314 (5th Cir. 2014); United States v. Lopez, 569 F. App’x 321 (5th Cir. 2014); United States v. Palacios, 756 F.3d 325 (5th Cir. 2014); United States v. Grace, 568 F. App’x 344 (5th Cir. 2014); United States v. Nunez-Segura, 566 F. App’x 389 (5th Cir. 2014); United States v. Ochoa-Rodriguez, 564 F. App’x 740 (5th Cir. 2014); United States v. Ocampa-Cruz, 561 F. App’x 361 (5th Cir. 2014); United States v. Romero, 558 F. App’x 501 (5th Cir. 2014); United States v. Villegas-Espinoza, 557 F. App’x 350 (5th Cir. 2014); United States v. Salazar, 743 F.3d 445 (5th Cir. 2014); United States v. Lagrone, 743 F.3d 122 (5th Cir. 2014); United States v. Arellano-Velasquez, 553 F. App’x 468 (5th Cir. 2014); United States v. Ramirez, 555 F. App’x 315 (5th Cir. 2014); United States v. Robinson, 741 F.3d 588 (5th Cir. 2014); United States v. Hagman, 740 F.3d 1044 (5th Cir. 2014); United States v. Benns, 740 F.3d 370 (5th Cir. 2014); United States v. Wooley, 740 F.3d 359 (5th Cir.
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2014); United States v. Cortez-Rocha, 552 F. App’x 322 (5th Cir. 2014); United States v. Campbell, 552 F. App’x 339 (5th Cir. 2014); United States v. Calzada-Ortega, 551 F. App’x 790 (5th Cir. 2014); United States v. Gonzalez-Mancilla, 551 F. App’x 128 (5th Cir. 2014); United States v. Coe, 549 F. App’x 238 (5th Cir. 2013); United States v. Castaneda, 740 F.3d 169 (5th Cir. 2013); United States v. Benavides-Hernandez, 548 F. App’x 278 (5th Cir. 2013); United States v. Moore, 733 F.3d 161 (5th Cir. 2013); United States v. Rico-Mendoza, 548 F. App’x 210 (5th Cir. 2013); United States v. Nunez-Granados, 546 F. App’x 483 (5th Cir. 2013); United States v. Nelson, 544 F. App’x 503 (5th Cir. 2013); United States v. Onenese, 542 F. App’x 427 (5th Cir. 2013). Seventh Circuit: United States v. Durham, Nos. 12-3819, 3833 & 3867, 2014 WL 4362838 (7th Cir. Sept. 4, 2014); United States v. Jones, 763 F.3d 777 (7th Cir. 2014); United States v. Coleman, 763 F.3d 706 (7th Cir. 2014); United States v. Xiao Yong Zheng, 762 F.3d 605 (7th Cir. 2014); United States v. Spann, 757 F.3d 674 (7th Cir. 2014); United States v. Garrett, 757 F.3d 560 (7th Cir. 2014); United States v. Baker, 755 F.3d 515 (7th Cir. 2014); United States v. Garcia, 754 F.3d 460 (7th Cir. 2014); United States v. Purham, 754 F.3d 411 (7th Cir. 2014); United States v. Long, 748 F.3d 322 (7th Cir. 2014); United States v. Poulin, 745 F.3d 796 (7th Cir. 2014); United States v. Woodward, 744 F.3d 488 (7th Cir. 2014); United States v. Wallace, 557 F. App’x 567 (7th Cir. 2014); United States v. Adams, 746 F.3d 634 (7th Cir. 2014); United States v. Prado, 743 F.3d 248 (7th Cir. 2014); United States
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v. Shannon, 743 F.3d 496 (7th Cir. 2014); United States v. Johnson, 743 F.3d 196 (7th Cir. 2014); United States v. Williams, 742 F.3d 304 (7th Cir. 2014); United States v. Adkins, 743 F.3d 176 (7th Cir. 2014); United States v. Whitlow, 440 F.3d 433 (7th Cir. 2014); United States v. Washington, 739 F.3d 1080 (7th Cir. 2014); United States v. Cureton, 739 F.3d 1032 (7th Cir. 2014); United States v. Spencer, 739 F.3d 1027 (7th Cir. 2014); United States v. Currie, 739 F.3d 960 (7th Cir. 2014); United States v. Rushton, 738 F.3d 854 (7th Cir. 2013); United States v. Sanchez, 549 F. App’x 557 (7th Cir. 2013); United States v. Doss, 741 F.3d 763 (7th Cir. 2013); Ingram v. United States, 541 F. App’x 707 (7th Cir. 2013); United States v. Lyons, 733 F.3d 777 (7th Cir. 2013). District of Columbia Circuit: United States v. Clark, 565 F. App’x 4 (D.C. Cir. 2014); United States v. Razo-Nunez, No. 13-3039, 2014 WL 1979877 (D.C. Cir. May 16, 2014); United States v. Hunter, 554 F. App’x 5 (D.C. Cir. 2014); United States v. Clark, 747 F.3d 980 (D.C. Cir. 2013); United States v. Eiland, 738 F.3d 338 (D.C. Cir. 2013); United States v. Miller, 738 F.3d 361 (D.C. Cir. 2013); United States v. Martinez-Cruz, 736 F.3d 999 (D.C. Cir. 2013).
APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
LUIS EDUARDO ALVAREZ,
Defendant–Appellant.
___________
No. 13-40812
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
TEXAS, USDC NO. 5:11-CR-425.
July 22, 2014
2a
Affirmed.
Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff–Appellee.
Oscar A. Vela, Jr., Esq., Law Office of Oscar A. Vela, Jr., P.C., Laredo, TX, for Defendant–Appellant.
Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Luis Eduardo Alvarez, resentenced following a remand by this court, again appeals his sentence for conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession of a firearm in furtherance of a drug trafficking offense. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2011, Special Agents Andres Rivas and Mike Weddel of the Bureau of Alcohol, Tobacco, and Firearms (ATF) were in Laredo, Texas investigating Mark Anthony Milan, an illegal weapons dealer and one of defendant-appellant Alvarez’s codefendants. Agent Rivas, working undercover, met Milan through a confidential informant (“CI”) and attempted to reach an agreement to purchase ten to twelve automatic rifles from Milan. The controlled purchase failed when Agent Rivas aborted the transaction, seeking to avoid raising Milan’s suspicions and fearing that Milan might attempt to rob him of the weapons. Thereafter, Agent Rivas showed Agent Weddel a photograph of * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
3a
Milan that he discovered while checking the license plate of the vehicle Milan was driving. Agent Weddel recognized Milan as someone he had previously investigated for armed robbery and assault on a residence in Laredo. According to the Government, such crimes are common but usually go unreported to local police.
Due to his belief that Milan was predisposed to violent, armed home invasions, Agent Weddel devised a plan to stage a home invasion and propose to Milan that he participate in it. On February 10, 2011, Agent Weddel met with a CI, Milan, and Cristobal Cervantes, another codefendant, at a Whataburger restaurant to discuss the details of the planned raid. Agent Weddel explained to Milan and Cervantes that he was a member of a drug-trafficking organization and was being cheated out of his rightful share of the organization’s income. He explained that his organization would be placing 25 kilograms of cocaine in a stash house in Laredo and wanted those at the meeting to help him steal it. He further explained that there would be two men guarding the house, at least one of them large, ill-tempered, and heavily armed. To improve the attractiveness of the proposal to Milan and Cervantes, Weddel told them that he only wanted five kilograms of cocaine for himself and they could have whatever else was left, but probably no less than twenty kilograms. (There never were any drugs nor was there an actual stash house that would be used for this operation.)
On March 9, 2011, Agent Weddel placed a phone call to Milan to inform him that the drugs had arrived at the stash house. Milan, Cervantes, Alvarez, and a fourth codefendant, Michael Porras, met Weddel at a
4a
Walgreens store, where the entire group, including a CI, drove in a caravan to a storage facility to pick up another vehicle. Upon arrival, Agent Weddel exited his vehicle, as did Milan and Cervantes. Agent Weddel then insisted upon meeting Alvarez and Porras, whom he had never met. Over the next few minutes, the four explained to Agent Weddel that they were “ready”; Cervantes took a Glock pistol from the center console of his vehicle and placed it in his waistband; Porras showed him a bag which contained two rifles; and Alvarez stated “I’m gonna go in first” and “we’re not rookies.” Moments later, Agent Weddel stepped away from the others while talking on his cellular phone. At that point, law enforcement officers descended on the gathering and arrested the four codefendants.
In June 2011, a grand jury returned a six-count indictment against the four men. Count One charged a conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count Six charged possession of firearms in furtherance of the drug conspiracy count in violation of 18 U.S.C. § 924(c)(1)(A). After a three-day trial, the jury convicted Alvarez of Counts One and Six.
In the original Presentence Report (“PSR”), Alvarez’s base offense level for Count One was 34. He received a two-level increase for possessing a dangerous weapon and a four-level increase for wearing a bulletproof vest during the sting. With a total offense level of 40 and a criminal history category of I, his Guideline range was 292-365 months imprisonment. The district court sentenced him to 292 months on Count One and to a mandatory
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60-month term for Count Six, to run consecutively. Alvarez appealed his conviction and sentence.
Alvarez’s appeal included an objection to the two-level enhancement for possession of a firearm during the offense. We vacated his sentence on that ground. United States v. Cervantes, 706 F.3d 603, 620 (5th Cir. 2013). We held that the firearm enhancement “impermissibly punishes a defendant twice for the same conduct if it is levied in conjunction with a sentence for violating [Section 924].” Id. We concluded the district court had plainly erred, vacated the sentence, and remanded for resentencing. Id.
On remand, the probation office’s sole revision to the PSR was to remove the two-level firearm enhancement. His new total offense level was 38 and his new Guidelines range was 235-293 months. Alvarez, represented by new counsel, brought five new objections to the PSR that were not raised at his original sentencing. These were: (1) that he did not make the statements attributed to him by Agent Weddel and relied upon in sentencing him, (2) that the PSR incorrectly concluded that he intended to steal from the 25 kilograms of cocaine, (3) that the drug quantity had been entirely fabricated by the Government, (4) that the body armor enhancement was improper because he was induced to wear it by Agent Weddel’s admonitions about the dangerous, armed guards at the stash house, and (5) that he should have been given a minor participant reduction because he did not meet with Agent Weddel, Milan, and Cervantes at the Whataburger. He further requested a downward departure or variance based on imperfect entrapment or sentencing entrapment, requested the same for family responsibilities, and
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finally requested a non-Guideline sentence under 18 U.S.C. § 3553(a). As we will discuss, we conclude that the five enumerated new objections were properly held to be foreclosed. We will also discuss why the district court could and did consider a departure or variance based on family responsibilities.
The district court stated that the remand was limited to removing the two-level firearms enhancement. Nonetheless, the district court permitted Alvarez’s attorney to argue all of his substantive objections as “mitigation ... that would go to the overall sentence that the Court imposes.” The district court again sentenced him to 235 months on Count One and to the 60-month mandatory consecutive term on Count Six. This constituted the lowest sentence in the Guidelines range, as calculated in the revised PSR. On appeal, Alvarez argues that the district court erred by limiting the scope of the remand to removing the two-level firearm enhancement, that the district court should have granted his specific objections, and that the district court failed to adequately consider the Section 3553 sentencing factors.
DISCUSSION
This court reviews a district court’s interpretation of a remand order de novo. United States v. Pineiro, 470 F.3d 200, 204 (5th Cir. 2006). Review of the substantive reasonableness of a sentence pursuant to Section 3553 is for abuse of discretion; a within-Guidelines sentence is presumptively reasonable. United States v. Alvarado, 691 F.3d 592, 596 (5th Cir. 2012). That “presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant
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weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). Where “the term of imprisonment is not lengthened by a district court’s consideration of an impermissible factor ... reversal is not required.” United States v. Teel, 691 F.3d 578, 587 (5th Cir. 2012). In our abuse-of-discretion review, this court will not reweigh the Section 3553 factors. See Gall v. United States, 552 U.S. 38, 51 (2007).
In Alvarez’s first appeal, this court concluded: “For the foregoing reasons, the sentences of Alvarez and Cervantes are VACATED and REMANDED for resentencing. We AFFIRM Appellants’ convictions and sentences on all other grounds.” Cervantes, 706 F.3d at 621. The district court, on remand, stated “the only issue is the gun enhancement and the other issues, the Court believes, are foreclosed.” The court also indicated that it would consider some of Alvarez’s arguments for purposes of mitigation, and for whether a variance or departure should be granted, as we explain later.
Alvarez argues that the district court should have conducted a full, de novo sentencing and considered all of the new objections his new counsel raised. The Government counters that all but one of Alvarez’s new arguments presented at the resentencing “were waived when he failed to raise them at his initial sentencing and in his first appeal.”
This circuit has previously disagreed with those courts that have held “resentencing hearings following a remand are to be conducted de novo unless expressly limited by the court in its order of remand.” United
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States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). We take the minority view, shared by the D.C. and Seventh Circuits. See id. (citing United States v. Whren, 111 F.3d 956 (D.C. Cir. 1997); United States v. Parker, 101 F.3d 527 (7th Cir. 1996)). “The only issues on remand properly before the district court are those issues arising out of the correction of the sentence ordered by this court.” Marmolejo, 139 F.3d at 531. “All other issues not arising out of this court’s ruling and not raised before the appeals court, which could have been brought in the original appeal, are not proper for reconsideration by the district court below.” Id. (emphasis added). Alvarez refers us to a decision where we stated: “if we had intended only a ministerial resentencing, we could have reversed and rendered” the appropriate sentence. United States v. Matthews, 312 F.3d 652, 660 (5th Cir. 2002). We made that statement because our first decision had required on remand an entire reconsideration of the sentence for one count in light of errors made in the original sentencing; consequently, the resentencing was de novo. Id. at 659-60. In addition, the case involved an intervening Supreme Court decision that recognized the validity of an argument similar to one the defendant had made in his first appeal, but which we had rejected. Id. at 657 (discussing Apprendi v. New Jersey, 530 U.S. 466 (2000)).
The Matthews circumstances do not exist here. The general rule applies, that de novo resentencing is improper following a remand for correction of a specific and defined sentencing error. The district court’s interpretation of our remand was correct. Consequently we will not consider Alvarez’s objections to his PSR and Guidelines calculations that could
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have been made at the time of his original sentencing but were not.
We distinguish whether Alvarez had shown grounds for a departure or variance from our rulings about whether the objections were new. Alvarez asserts that after his initial sentencing, his wife left the home where their children lived, leaving Alvarez’s parents responsible for the children. He argues the district court erred in concluding that it could not consider the new family circumstances. Specifically, Alvarez sought a downward departure under Section 5H1.6 of the Guidelines due to family responsibilities. That section applies only where there are “unique or extraordinary circumstances.” United States v. Brown, 29 F.3d 953, 961 (5th Cir. 1994). In Brown, this court concluded that the mere disruption of parental relationships during a parent’s incarceration is not extraordinary for the purposes of the Guideline. Id. Alvarez suggests that it is extraordinary that his children will be in the sole care of his parents instead of his wife.
The initial difficulty with Alvarez’s argument is determining whether there is sufficient factual support for it. We find no explicit evidence or even argument presented at the time of resentencing, that Alvarez’s wife was taking care of the children at the time of his original sentencing, but thereafter left his parents’ home and was no longer caring for the children. Both the 2011 PSR and the amended one in 2013 state that Alvarez’s common-law wife resided with the children at the home of Alvarez’s parents, but neither PSR makes any assertions about her parenting abilities or whether she, or the grandparents alone, or all of them were caring for the
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children. No objection was made in 2011 to the statements in the PSR.
In 2013, among the written objections filed by Alvarez’s new counsel to the PSR was that “Alvarez’s wife cannot care for the children”; “his common-law wife currently resides with another individual while his children reside with his parents”; Alvarez’s parents “have cared for his children since the date of his incarceration”; the children “are being cared for by his parents because their mother is not an adequate care taker”; and the children have been “without the care, love and assistance of their mother for over 24 months since she is not an adequate care taker....” These assertions ignore whether the children’s mother previously had been an adequate caregiver but lost interest or capacity after Alvarez was incarcerated, or whether the mother even prior to Alvarez’s first sentencing had not been responsible for the care of her children. Alvarez’s counsel at the second sentencing hearing said that the defendant’s parents had been caring for the children because “their mother has not been able to” do so, but he never alleged that was a change from the situation at the time of the first sentencing.
The district judge at least partially noted this ambiguity. At the hearing after the remand, though making a point as to a different sentencing decision, the court said it did not recall from the first sentencing “whether the issue about the mother not being able to care for the children was even a factor” in making a recommendation as to where Alvarez would be imprisoned. The court also concluded that there was nothing clearly new about the facts being presented about the children:
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But all of the things that Mr. Vela [Alvarez’s counsel] touches on are the things that were before the Court originally. You know, perhaps there’s a little bit of a difference in the fact that your parents are taking care of your children now when maybe that wasn’t necessarily pointed out at the time. Perhaps there’s some difference in how he argues some of the things that are in the report already, but everything that he touches on was before the Court originally and was considered by the Court.
Even if the children’s mother not being an adequate caregiver and leaving the home where the children lived were new factual matters arising after the first sentencing hearing, the district court did not refuse to consider those facts in setting the sentence. Counsel’s written objections to the PSR’s statements about the family situation were in a section entitled “Request for Downward Departure and/or Variance”; the district court stated that it would consider the arguments for just those purposes:
And then just so that we’re clear, I’m not disregarding the arguments that you have made, Mr. Vela. The Court believes that they are proper arguments to make in considering whether a variance should be made or even a departure should be made. So, the Court has given them due weight, but the Court believes that a sentence within the guideline range as to each one of these cases is necessary.
More generally, the court said it would consider all of Alvarez’s arguments in order to analyze mitigation:
The Court obviously can consider in the sentence that it imposes whatever you may
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wish to present by way of mitigation and in that respect you may be arguing some of the points that you have made in your response, but that would go to the overall sentence that the Court imposes rather as to a specific objection to the PSR.
We reject the arguments that the district court refused to consider as mitigation, or in support of a variance or departure, the facts presented about the current situation with his two children. Whether it was a new factual circumstance or just a better explanation of how his children were being cared for all along, the issue of whether a change of family responsibilities should cause a departure or variance in the sentence was known, weighed, and ultimately rejected by the district court.1
More generally, district courts have broad discretion in applying the sentencing factors in 18 U.S.C. § 3553. The district court is to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553. Marmolejo does not preclude the district court from considering Alvarez’s new and renewed arguments as a part of its Section 3553 analysis. Alvarez has not argued that the district court ignored a relevant factor or relied on an improper factor. His argument is simply that the district court did not, in its consideration of all the
1 Had the district court not recognized its authority to consider the possibility of a departure, that would be procedural error. United States v. Robinson, 741 F.3d 588, 601-02 (5th Cir. 2014). Because the district court did recognize its authority to consider a departure, we lack jurisdiction to consider its denial. See United States v. Tuma, 738 F.3d 681, 691 (5th Cir. 2013).
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Section 3553 factors, properly weigh his objections. Alvarez specifically argued that the district court failed to take into account his limited criminal history, his family circumstances, and the imperfect or sentencing entrapment arguments that it would not consider as specific Guidelines objections.
Alvarez has not presented any compelling argument that the district court abused its discretion under Section 3553. He certainly disagrees with the district court’s exercise of its discretion, but that is not grounds for reversal. See Gall, 552 U.S. at 51. Furthermore, this court does not recognize “imperfect entrapment” or “sentencing entrapment” in any context, including for sentencing variance purposes. See United States v. Stephens, 717 F.3d 440, 446 (5th Cir. 2013) (“We have never recognized sentencing entrapment as a defense . . .”). We decline to do so here.
Alvarez has not shown that his circumstances, whether taken individually or together, compel the conclusion that the district court abused its discretion under Section 3553. He has failed to meet his burden of rebutting the presumption of reasonableness. We will not disturb the district court’s within-Guidelines sentence based upon its application of the Section 3553 factors. See Alvarado, 691 F.3d at 596.
AFFIRMED.
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APPENDIX B
UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
CRISTOBAL CERVANTES; LUIS EDUARDO ALVAREZ; and MARK ANTHONY MILAN,
Defendants–Appellants.
__________________________________________
Nos. 11-41385, & 11-41407
________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS. 5:11-CR-425-1, 2 & 4
______________________________________________
January 30, 2013
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FOR UNITED STATES OF AMERICA, Plaintiff-Appellee: Sonja Marie Ralston, U.S. Department of Justice, Criminal Division, Washington, DC; Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX.
For CRISTOBAL CERVANTES, Defendant- Appellant: Roberto Balli, Attorney, Laredo, TX.
For LUIS EDUARDO ALVAREZ Defendant-Appellant: Oscar A. Vela, Jr., Attorney, Law Office of Oscar A. Vela, Jr., P.C., Laredo, TX, George V. Garcia.
For MARK ANTHONY MILAN, Defendant-Appellant: Abundio Rene Cantu, Attorney, Laredo, TX.
Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.
PRADO, Circuit Judge:
Appellants Mark Anthony Milan, Cristobal Cervantes, and Luis Eduardo Alvarez were convicted on charges stemming from a sting operation conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives Appellants, along with a fourth defendant who did not appeal, worked with an undercover agent to plan an armed home invasion with the aim of stealing a large quantity of drugs. The home invasion was a sham. Appellants were arrested on the day the invasion was set to happen and subsequently indicted on six counts. After a jury trial, Appellants were convicted on all six counts. They now appeal their
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convictions and sentences on a number of grounds.2 As explained below, the district court’s only error occurred when it applied a sentencing enhancement that should not have been applied. Appellants’ other arguments lack merit. Therefore, we AFFIRM the convictions of Cervantes, Alvarez, and Milan; VACATE the sentences of Cervantes and Alvarez; and REMAND for resentencing.
I. Factual Background
In January 2011, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), received information that Mark Anthony Milan (“Milan”) was interested in purchasing firearms. During recorded conversations, Milan told the ATF agent that he was interested in getting as many weapons as the agent could supply. In fact, Milan even attempted to negotiate a bulk discount. The deal was eventually called off, however, when Milan was unable to procure the purchase money quickly enough. Nevertheless, during the course of this attempted sting operation, a second ATF agent saw a picture of Milan and immediately recognized him from an earlier investigation involving an attempted home invasion. Based on the second agent’s identification of Milan, taken together with other information received from a confidential source, the ATF elected to continue its investigation of Milan in hopes of eventually arresting him.
2 In his brief, Milan briefly mentions a challenge to the evidentiary sufficiency of his convictions in his summary of argument section. That specific contention does not appear anywhere else in his brief, however. Having failed to present substantive argumentation on point, it is deemed waived. Fed. R. App. P. 28(a)(9).
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After the firearm sale fell through, an undercover ATF agent arranged a meeting with Milan through a confidential informant to discuss the armed invasion of a non-existent stash house. Through a series of meetings—recordings of which were presented at trial—Milan and Cervantes3 were told about a drug stash house from which they could steal some twenty-five kilograms of cocaine. Specifically, the undercover agent claimed to have been cheated by his cartel employer, and he wanted Milan to steal cocaine from the cartel’s stash house to settle the score. According to the ATF agent, the stash house would have at least twenty-five kilograms of cocaine within, and Milan’s team could keep all cocaine recovered beyond the first five kilograms, which the ATF agent claimed he was owed. 4 At the time, twenty-five kilograms of cocaine in Laredo was worth over $400,000. The ATF agent also told Milan that the house would be guarded by at least two people, one of whom would be armed and intimidating. Milan and Cervantes agreed to rob the stash house, reassuring the ATF agent that “they had cars, they had guns.” The ATF agent “was instructed at that time just to get them to the house, and they would do the rest.” Milan and Cervantes repeatedly reassured the ATF agent that their crew would consist of professionals.
3 While it appears that the ATF only intended to arrange a meeting with Milan, Cervantes and Milan arrived together at the first meeting on February 10, 2011. 4 Importantly, the undercover agent repeatedly emphasized that cocaine was the only possible spoil of this particular invasion. That is, the agent made clear that the only item of value in the stash house would be cocaine. As the agent said during trial, “I wanted to be very clear that—I’m being very clear that there’s no money in the house. It’s not marijuana. It’s not jewelry.”
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As planned, on March 9, 2011, the ATF agent informed Milan that the target shipment of drugs had arrived at the stash house. Milan and Cervantes met the agent at a pre-determined location, with two additional crew members in the car with them, and traveled together to a second location where the arrest was scheduled to happen. After discussing the plan with Cervantes, the agent expressed a desire to review the plan with Milan and Cervantes’ two associates, both of whom were still seated in Milan’s vehicle. The agent’s true desire was to identify the associates and ensure that they knew the nature of the group’s plan. As the agent put it, he wanted to make sure that they “knew exactly why [they] were there.” When Cervantes rolled down the window, the ATF agent was able to see Alvarez and Porras, both of whom he identified at trial.
The undercover agent then reviewed parts of the plan with all four individuals, but not before asking Alvarez and Porras if they understood English; both nodded in response. The agent reminded the group that the house would be guarded and that it contained at least twenty-five kilograms of cocaine. Cervantes showed the agent a pistol that Cervantes then tucked into his waistband and Porras held up a duffle bag containing two rifles. After he expressed nervousness regarding the risk entailed by the operation, Alvarez reassured the agent by telling him that the group did not consist of “rookies.” Alvarez even went so far as to tell the undercover agent that he would go into the house first. At no point did Milan, Cervantes, Alvarez, or Porras express any doubt, uncertainty, or unwillingness to proceed.
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Satisfied that the four men understood the plan, the undercover agent stepped away from the car and gave the arrest signal. The four men were then arrested without incident. The defendants were dressed in all black, and within the automobile the police recovered black hats bearing police labeling. Further, Alvarez and Porras were wearing bulletproof vests. At trial, Appellants were convicted on all six counts charged, whereas Porras, the fourth defendant, was convicted of only a single count.
II. Jurisdiction
The district court had jurisdiction under 18 U.S.C. § 3231. After judgment was entered, Appellants filed timely notices of appeal. As such, this Court has jurisdiction under 28 U.S.C. § 1291.
III. Discussion
Appellants present a number of issues on appeal, some that are Appellant specific and others that overlap. Distinct legal issues are dealt with individually, but where Appellants have raised identical challenges, those issues are dealt with collectively under a single heading.
A. Whether the Magistrate Judge erred in limiting the number of Appellants’ relatives present for voir dire.
Criminal defendants are guaranteed a public trial by the Sixth Amendment. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). The right to a public trial helps ensure, inter alia, the fairness of the proceedings. Id. (citing Waller v. Georgia, 467 U.S. 39, 46 (1984)). However, the right is not absolute. Id. (citing Waller, 467 U.S. at 45). Whereas the Supreme Court has enumerated a four-part test for determining
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whether closed proceedings are warranted, the requisite analysis varies when, as here, the challenged closure was partial rather than complete. Id. (citing Aaron v. Capps, 507 F.2d 685, 688 (5th Cir. 1975)).
When a criminal proceeding is only partially closed, the court must “look to the particular circumstances of the case to see if the defendant will still receive the safeguards of the public trial guarantee.” Osborne, 68 F.3d at 98. This is because “the partial closing of court proceedings does not raise the same constitutional concerns as a total closure because an audience remains to ensure the fairness of the proceedings.” Id. Partial closure of a courtroom during a criminal proceeding is a constitutional question reviewed de novo, and the Court will affirm so long as the lower court had a “substantial reason” for partially closing a proceeding. Id. at 98-99.
Both Alvarez and Cervantes claim that the magistrate judge committed reversible error when he partially closed voir dire.5 Before jury selection began, the magistrate judge determined that each defendant could have only three relatives present in the courtroom during voir dire. The magistrate judge so decided in response to a request from Cervantes to allow six of his family members to observe the proceeding. The decision was made in light of a number of considerations, including the limited space 5 Additionally, Cervantes cursorily claims his Sixth Amendment right to a public trial was violated when two of his relatives were removed from the courtroom during trial after their child fell asleep multiple times. This argument completely lacks merit, however, since Cervantes offers no meaningful argumentation on point and only superficially cites Presley v. Georgia, 558 U.S. 209 (2010), an inapposite case concerning the complete closure of proceedings from the public.
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available within the courtroom, the nature of the proceedings, and the desire to minimize disruptions. The judge was also concerned about Cervantes’s close proximity to panel members without shackles given an earlier violent outburst at his detention facility. Alvarez and Cervantes claim that the partial closure of voir dire violated their Sixth Amendment right to a public trial.6 As discussed below, the magistrate judge gave multiple substantial reasons for partially closing voir dire, and we will affirm.
In Osborne, a case involving sexual assault against a minor, the district court excluded an observer from the courtroom during the victim’s testimony because the observer was both the sister of the defendant and the aunt of the victim. 68 F.3d at 99. Partial closure during the victim’s testimony was intended to facilitate her testimony by removing from the courtroom an individual whose “presence may have traumatized the witness,” even though other relatives of the defendant were allowed to stay. Id. This Court upheld the district court’s partial closure because substantial reasons were present—protecting the victim and facilitating her testimony—and because the balance of individuals remaining in the courtroom protected the defendant’s interest in a fair trial subject to observation by the public. Id. The district court was admonished, however, for failing to develop a detailed record of the issues and findings on point. Id. 6 Alvarez arguably waived his objection to the partial closure of voir dire for two reasons. First, Alvarez did not request to have more than three family members present at voir dire such that the magistrate judge’s determination completely satisfied Alvarez’s request. Second, Alvarez did not object when voir dire was partially closed.
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Here, the magistrate judge presented multiple substantial reasons for partially closing voir dire and detailed those reasons on the record. As explained to the parties, the magistrate judge was concerned about available space within the courtroom, even though the courtroom was technically capable of fitting extra observers. And while other larger courtrooms were available, the proceedings had already encountered numerous delays, and the magistrate judge wished to avoid further delay. The court also had serious concerns about the panel members’ comfort and safety given the nature of the case. Since this case involved narcotics and firearms in a border town where violent, drug-related disputes are common, the judge was concerned that the close proximity of the defendants’ families might chill jurors’ responses during voir dire. Further, if jurors did not feel comfortable enough to fully and honestly answer the court’s questions, then the court would be unable to empanel an impartial jury. Cf. United States v. Edwards, 303 F.3d 606, 617 (5th Cir. 2002) (protecting the defendants’ right to a fair trial constitutes a substantial interest for Sixth Amendment purposes).
In addition to stating multiple reasons for excluding some of Cervantes’s family from voir dire, the magistrate judge allowed the defendants to each have three family members present. This allowance, combined with the general public’s access to voir dire, protected Appellants’ interest in a public trial, thereby satisfying the Sixth Amendment. See Osborne, 68 F.3d at 98. Given the circumstances of this case, the magistrate judge presented more than one substantial reason justifying a partial closure of voir dire; and the partial closure did not jeopardize the defendants’ right
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to a fair, public trial. Id. Therefore, we affirm the magistrate judge’s decision to partially close voir dire.
B. Whether the Magistrate Judge abused his discretion when he declined to question potential jurors regarding entrapment.
Refusal to ask a specific question during jury selection is reviewed for abuse of discretion. United States v. Harper, 527 F.3d 396, 409 (5th Cir. 2008). “The trial court has broad discretion to determine who will question potential jurors and what questions will be asked.” United States v. Rasco, 123 F.3d 222, 231 (5th Cir. 1997). Accordingly, unless abuse of discretion and prejudice are shown, this Court will not disturb “the scope and content of voir dire ... on appeal.” United States v. Okoronkwo, 46 F.3d 426, 433 (5th Cir. 1995). In the Fifth Circuit, “it is not an abuse of discretion to refuse to allow inquiries of jurors as to whether they can accept certain propositions of law.” United States v. Ledee, 549 F.2d 990, 992 (5th Cir. 1977); accord United States v. Rodriguez, 993 F.2d 1170, 1176 (5th Cir. 1993). Rather, an abuse of discretion is present when “there is insufficient questioning to produce some basis for defense counsel to exercise a reasonably knowledgeable right of challenge.” Rodriguez, 993 F.2d at 1176. As explained below, the magistrate judge did not abuse his discretion.
On appeal, Cervantes challenges the magistrate judge’s refusal to question potential jurors about the law of entrapment, a defense which Cervantes intended to rely on at trial. Cervantes requested that the magistrate judge read a proposed entrapment instruction and ask jurors whether they could follow that law, a request that the magistrate judge declined.
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Denial of the request notwithstanding, the magistrate judge told the potential jurors that they would be obligated to evaluate the evidence impartially, follow the law, and obey the trial judge’s instructions. The magistrate judge also inquired into other topics that would indicate potential prejudice, including relationships with law enforcement officers, prior jury service, experience with the criminal justice system, and possible connections to any of the individuals involved in the defendants’ case. Cervantes now claims that the failure to question potential jurors regarding their knowledge of and willingness to apply the law of entrapment prevented him from properly evaluating potential jurors. However, Cervantes has failed to show an abuse of discretion.
In his brief, Cervantes claims that the entrapment inquiry was reasonably necessary for him to exercise his peremptory challenges. However, he fails to demonstrate what a specific entrapment inquiry would have yielded beyond the answers elicited when the magistrate judge asked the jury panel whether they would be able and willing to follow the law as laid out by the trial judge. Such an inquiry occurred at multiple points during voir dire and addressed Cervantes’s concerns in general terms. Questioning jurors specifically about the law of entrapment would not have significantly contributed to Cervantes’s ability to exercise his peremptory challenges or the voir dire generally. Rather, the magistrate judge meaningfully inquired into potential jurors’ ability and willingness to follow the legal principles set forth at trial, and the decision to exclude questions specifically pertaining to entrapment was well within the discretion of the court. The magistrate judge was not required to inquire regarding entrapment at
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counsel’s behest, and it was within the magistrate judge’s discretion to refuse counsel’s request. The substantively similar, if more general, questions asked by the magistrate judge covered much of what Cervantes sought and enabled Cervantes “to exercise a reasonably knowledgeable right of challenge.” Rodriguez, 993 F.2d at 1176. The magistrate judge therefore did not abuse his discretion, and we affirm.
C. Whether Milan or Cervantes suffered prejudice when Alvarez’s attorney asked an improper question.
It is a well established rule that a defendant’s decision not to testify at trial may not be commented on during the course of the trial. Doyle v. Ohio, 426 U.S. 610, 617-18 (1976); United States v. Davis, 609 F.3d 663, 685 (5th Cir. 2010). However, not all comments touching on a defendant’s decision to remain silent run afoul of the Fifth Amendment. A comment violates the Fifth Amendment if the language used “was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” United States v. Rocha, 916 F.2d 219, 232 (5th Cir. 1990) (quoting Davis v. United States, 357 F.2d 438, 441 (5th Cir. 1966)). The comment must have a clear effect on the jury to warrant reversal, and the doctrine of harmless error applies: an otherwise impermissible comment will not require reversal if it did not contribute to the jury’s verdict beyond a reasonable doubt. United States v. Moreno, 185 F.3d 465, 475 (5th Cir. 1999).
Here, Milan and Cervantes object to a single question posed by Alvarez’s attorney while cross-examining their co-defendant, Porras. At the
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outset of questioning, counsel asked Porras whether he was the third of four defendants, which Porras answered affirmatively. He then asked, “And the first two have already been asked if they wanted to take the stand and they have declined?” Counsel for Milan and Cervantes immediately objected, and the trial judge moved quickly to admonish Alvarez’s attorney, going so far as to suggest that his question “borders on sanctionable conduct.” After chiding counsel, the trial court quickly mitigated the situation by reminding the jury to completely disregard the question and to not allow it a role in deliberations. And, at the close of trial, none of the defendants requested a jury instruction on the Fifth Amendment.
The question posed by Alvarez’s attorney did not contribute to the jury’s verdict. Before the trial even began, the magistrate judge spoke at length regarding the defendants’ right to remain silent and the fact that jurors may not hold the exercise of that right against the defendants during deliberations. Moreover, as soon as Alvarez’s attorney made an indirect reference to Milan and Cervantes’s decision not to testify, the trial court quickly admonished counsel and instructed the jury to disregard the question entirely. These instructions alone provided ample protection against any prejudicial impact counsel’s lone question may have had on the jury’s deliberation. Furthermore, it is important to note that none of the parties requested jury instructions on the right to remain silent, either at the time of counsel’s question or at the end of the trial. While it is not even clear that counsel’s question “was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify,” Rocha, 916 F.2d at 232, the question posed
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did not influence the jury’s deliberations, Moreno, 185 F.3d at 475. The trial court repeatedly reminded the jury that defendants had the right to remain silent and acted swiftly when counsel asked the question at issue. Therefore, we affirm.
D. Whether the district court erred in admitting evidence of a prior attempted home invasion.
Evidence of prior bad acts may not be used to prove a person’s character or conduct in accordance with their character. Fed. R. Evid. 404(b)(1); United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978) (en banc). However, under Rule 404(b)(2), evidence of other acts is admissible to prove, inter alia, “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). This Circuit has further held that evidence of prior acts intended to rebut an entrapment defense falls within the ambit of Rule 404(b). United States v. Hooker, 997 F.2d 67, 76 (5th Cir. 1993). But any such evidence must still pass muster under Rule 403: its probative value may not be substantially outweighed by any unfair prejudice against the defendant. See Beechum, 582 F.2d at 911 (“What the rule calls for is essentially a two-step test. First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of [R]ule 403.”).
At trial, the government introduced into evidence footage from a security camera showing an attempted armed home invasion committed by Milan and others
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in December 2007. Additionally, the government produced testimony from two individuals who were in that home during the attempted invasion, as well as the officer who arrested Milan at the scene of the crime. The government sought to introduce this evidence in order to rebut Milan’s claim of entrapment by showing his predisposition, and objections were raised. While the trial court acknowledged that the evidence had the potential to produce some undue prejudice against the co-defendants, the court nevertheless deemed it highly relevant. Moreover, to mitigate possible prejudice against the defendants, the court agreed to give a limiting instruction stating that the evidence was limited to Milan’s predisposition. Indeed, the district court made both points clear before allowing the government to proceed and again at the close of trial. Appellants claim that the district court erred in admitting this evidence. They argue that the evidence was unduly prejudicial and that it suggested guilt by association to the jury since Appellants were members of the same gang as Milan.
If a defendant preserves his challenge to the introduction of Rule 404(b) evidence, the district court’s decision is reviewed for abuse of discretion, subject to harmless error analysis. United States v. Girod, 646 F.3d 304, 318 (5th Cir. 2011). “If the defendant does not object, then plain error review applies.” United States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010). Plain error is present if a defendant can show that (1) there was error; (2) it was plain; and (3) it affected his substantial rights. Id. An error generally only affects a defendant’s substantial rights if it was prejudicial; that is, if there is a reasonable probability that the proceedings would have produced
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a different result but for the error. Id. Having reviewed the record and Appellants’ briefs, only Milan and Cervantes objected to this evidence at trial. Indeed, Alvarez concedes that he did not object. As such, Alvarez’s objection will be reviewed for plain error, Morin, 627 F.3d at 994; the objections of Milan and Cervantes will be reviewed for abuse of discretion, Girod, 646 F.3d at 318.
The arguments put forth by Milan and Cervantes are unpersuasive and do not show an abuse of discretion. First, contrary to their claims, the prior act evidence admitted here certainly had probative value as to Milan’s predisposition. Milan was charged with involvement in a conspiracy to commit an armed home invasion. Based on the evidence adduced at trial, the four defendants were prepared to attack a house using firearms and black clothing bearing police insignia. The prior home invasion attempt showed many similarities to the charged act: a group of well-armed men attempted to launch a swift, organized assault on a residential property. Since Milan claimed entrapment, it became the government’s burden to show predisposition; and “demonstrated experience in the criminal endeavor” qualifies as evidence of predisposition. United States v. Theagene, 565 F.3d 911, 919 (5th Cir. 2009). This evidence showed experience in armed home invasions and was thus highly relevant to Milan’s predisposition.
Second, the probative value of this evidence was not substantially outweighed by undue prejudice. The evidence presented was not inflammatory or heinous; the government did not seek to admit graphic, explicit, or otherwise evocative evidence. Cf. Beechum, 582 F.2d at 917 (affirming predisposition evidence
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that was not “of a heinous nature” or likely to “incite the jury to irrational decision by its force on human emotion”). The government presented a surveillance video showing an armed individual trying to gain access through the front door of a house and testimony from people within the house at the time of the incident, as well as from the arresting officer. Nothing presented was of a sort that would incite the jury to an irrational decision. Furthermore, the district court gave specific limiting instructions both when the evidence was admitted and at the close of trial. Accordingly, it was not an abuse of discretion to admit evidence of Milan’s prior attempted home invasion.
Alvarez’s argument also fails because the district court committed no error. Under Rule 404(b), the evidence of Milan’s prior attempted home invasion was clearly relevant to his predisposition since it demonstrated Milan’s experience with this sort of criminal endeavor. Moreover, the evidence itself was not heinous, provocative, or otherwise prejudicial. The evidence did not pertain to Alvarez’s predisposition, and the district court was mindful to give specific, detailed limiting instructions to the jury to that effect. The court instructed the jury that the evidence bore on the predisposition of a single defendant when the evidence was introduced and again at the close of trial. The trial court’s instructions mitigated the possibility that the evidence would produce guilt by association, as Alvarez fears. Therefore, we affirm.
E. Whether there was sufficient evidence to support two of Alvarez’s convictions.
This Court reviews motions for acquittal de novo. United States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007) (per curiam). “In reviewing the
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sufficiency of the evidence, we view the evidence and the inferences drawn therefrom in the light most favorable to the verdict, and we determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt.” Id. The evidence itself need not refute every defense hypothesis; “the jury is free to choose among reasonable constructions of the evidence.” Id. (quoting United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999)).
Alvarez contends here that there was insufficient evidence to convict him of conspiracy to possess a controlled substance with intent to distribute and aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime. He argues that there was no evidence that he knew about the drugs involved in the armed home invasion, and he claims that the government did not prove that he shared his co-conspirators’ criminal intent for the aiding and abetting charge since the undercover agent initially only met with Milan and Cervantes to plan the home invasion. As explained below, these arguments are unpersuasive. The government presented sufficient evidence, viewed in the light most favorable to the verdict, showing that Alvarez conspired to possess a controlled substance with intent to distribute and that he aided and abetted the possession of a firearm in furtherance of a drug trafficking crime.
The elements of Alvarez’s drug conspiracy charge are (1) an agreement with another person; (2) knowledge of the agreement; and (3) voluntary participation in the conspiracy. United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). “Absent direct evidence of an agreement, the jury can infer the
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existence of an agreement from circumstantial evidence.” Id. Viewed in the light most favorable to the verdict, the government presented sufficient evidence to justify Alvarez’s conspiracy conviction. The government presented uncontradicted testimony identifying Alvarez at the site of the arrest and as the individual, prior to arrest, who stated that he was “going in first” and that the armed men were “not rookies.” These statements were recorded and presented at trial. Further, after verifying that Alvarez spoke English, the agent explained the nature of the invasion in detail to the four defendants. Specifically, the agent reiterated that the house would be guarded by at least two individuals, one of whom had a firearm, and that there would be at least twenty-five kilograms of cocaine for the men to steal. The circumstances surrounding the arrest show that the four defendants were clearly engaged in a joint criminal enterprise, and the jury was entitled to credit the evidence and testimony presented. The jury thus had more than sufficient evidence to conclude that the elements of a drug conspiracy were met.
To be convicted of aiding and abetting possession of a firearm in furtherance of a drug trafficking crime, the government must show (1) that the offense occurred and (2) that Alvarez associated with the venture, participated in it as something he wished to bring about, and sought to make it succeed. Percel, 553 F.3d at 911. Alvarez must also have shared the group’s criminal intent. Id. In his brief, Alvarez contends that there was insufficient proof that he shared his partners’ criminal intent or that he knew the crime involved drugs. Here again, the government presented sufficient evidence, viewed in the light most favorable to the verdict, to convict Alvarez.
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As explained above, Alvarez clearly knew that the group’s plan involved drugs. The undercover agent asked Alvarez if he spoke English and then reiterated that they were to rob a drug stash house containing at least twenty-five kilograms of cocaine. Alvarez contends that he was present for an insufficient amount of time for a proper criminal scheme to form, but the test does not include a temporal element. At no time did Alvarez express disagreement with the plan or attempt to disassociate himself. Likewise, Alvarez shared his partners’ criminal intent. Alvarez told the undercover agent that he would go in first and specifically reiterated that the group did not consist of rookies. He knew that the group was armed, he was prepared to participate, and he wanted the invasion to succeed. Given this evidence, a rational jury could certainly have found Alvarez guilty beyond a reasonable doubt. Therefore, we affirm.
F. Whether there was sufficient evidence of predisposition.
“When a jury, which was fully charged on entrapment, rejects the defendant’s entrapment defense, the applicable standard of review is the same as that which applies to sufficiency of the evidence.” United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995). As with the arguments discussed immediately above, this Court reviews the sufficiency of the evidence regarding predisposition de novo. United States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007).
The entrapment defense operates using a burden-shifting regime. United States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009). If a defendant
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makes a prima facie showing of entrapment,7 then the government must prove beyond a reasonable doubt that the defendant was already predisposed to commit the alleged offense when the government approached him. Id. There is no formulaic way to prove predisposition. See United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) (per curiam) (“Many factors may indicate a defendant’s predisposition....”). In fact, “a defendant’s ready and willing participation in government-solicited criminal activity, standing alone, is sufficient to prove predisposition.” United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001). Other possible factors include “desire for profit; demonstrated knowledge or experience with the criminal activity under investigation; the character of the defendant, including past criminal history; whether the government first suggested criminal activity; and the nature of the inducement offered by the government.” Id.
Here, the government presented sufficient evidence, viewed in a light most favorable to the verdict, to support the jury’s rejection of Appellants’ entrapment defenses. 8 Cervantes demonstrated his eagerness to participate in the ATF’s proposed home invasion on a number of occasions. He met with the undercover agent three separate times and, on the day of his arrest, showed the agent the pistol he intended
7 “This requires the defendant to make a prima facie showing of (1) his lack of pre-disposition to commit the offense and (2) some governmental involvement and inducement more substantial than simply providing an opportunity or facilities to commit the offense.” Theagene, 565 F.3d at 918. 8 Milan does not present any entrapment issues on appeal. Only Cervantes and Alvarez have challenged the sufficiency of the government’s predisposition evidence.
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to use as he tucked it in his waistband. Likewise, Alvarez volunteered to the agent that he would “go in first,” a clear indication of eagerness. The two men also clearly had a profit motive since the cocaine they were going to steal was worth nearly half a million dollars. On no occasion did either Cervantes or Alvarez express hesitation or doubt concerning the group’s plan. There was thus sufficient evidence to demonstrate that Cervantes and Alvarez were predisposed to commit this crime. Therefore, we affirm.
G. Whether cumulative error occurred.
The cumulative error doctrine provides for reversal when an aggregation of non-reversible errors, i.e., plain and harmless errors that do not individually warrant reversal, cumulatively deny a defendant’s constitutional right to a fair trial. United States v. Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012) (en banc). However, the cumulative error doctrine is only to be used in “rare instances.” Id. at 344. Reversal is justified “only when errors ‘so fatally infect the trial that they violated the trial’s fundamental fairness.’” Id. at 344 (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)). As an illustration of how high the cumulative error standard is, this Circuit reversed a conviction on cumulative error grounds in United States v. Riddle, 103 F.3d 423 (5th Cir. 1997), when the trial court “improperly admitted two and a half days of expert prosecution testimony, erroneously prevented the defense expert from testifying, admitted six documents containing hearsay, and allowed testimony about other crimes for which the defendant was not on trial.” Delgado, 672 F.3d at 344 n. 31. Allegations of non-errors do not play a role in
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cumulative error analysis since there is nothing to accumulate. Id. at 344.
In support of his cumulative error claim, Cervantes cites the admission of prior act evidence in violation of Rules 403 and 404(b), the failure to question potential jurors on the law of entrapment, the exclusion of some family members from voir dire, and a comment made by Alvarez’s attorney regarding the co-defendants’ exercise of their Fifth Amendment rights. Of the errors cited, only the last allegation potentially constitutes an error. As this opinion has discussed, Cervantes’s other claims did not amount to error and thus have no impact on cumulative error analysis. Even assuming the single question posed by Alvarez’s attorney was improper, it is clearly insufficient to justify reversal for cumulative error as it did not deny Cervantes a fair trial. Therefore, we affirm.
Alvarez also argues that a cumulation of errors prevented him from receiving a fair trial. However, his cumulative error argument is identical to his ineffective assistance of counsel claim. That is, Alvarez’s cumulative error argument is based exclusively on the same considerations used to claim ineffective assistance of counsel. As explained below, Alvarez’s ineffective assistance of counsel claim is not yet ripe for review because the issue was not raised in the district court. See Part III.J, infra. Since Alvarez’s ineffective assistance of counsel claim is not ripe for review, the Court cannot determine whether there are in fact errors to accumulate for purposes of cumulative error review.
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H. Whether applying a sentencing enhancement for firearm possession was erroneous.
If an objection is not preserved below, this Court applies plain error review. Morin, 627 F.3d at 994. Plain error is present if a defendant can show that (1) there was error; (2) it was plain; and (3) it affected his substantial rights. Id. An error generally only affects a defendant’s substantial rights if it was prejudicial; that is, if there is a reasonable probability that the proceedings would have produced a different result but for the error. Id. Neither Cervantes nor Alvarez objected to the application of a firearm enhancement at sentencing.9
Cervantes and Alvarez were convicted of, among other charges, conspiracy to possess a controlled substance with intent to distribute under 21 U.S.C. § 846 and possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i). Because the drug conspiracy charge involved firearms, the Pre-Sentencing Reports for both defendants recommended a two-level enhancement pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2011) (“If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.”). However, Appellants contend—and the government concedes—that this enhancement
9 Milan has not challenged his sentence, likely because the firearm enhancement error discussed here would have been harmless as to him. In Milan’s case, removing the two-level enhancement would not affect the applicable mandatory minimum because his prior drug conviction raised the applicable mandatory minimum sentence anyway.
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constitutes inappropriate double punishment since Alvarez and Cervantes were also separately sentenced for possession of a firearm in furtherance of a drug trafficking crime. This Court has held that the enhancement contained in § 2D1.1(b)(1) impermissibly punishes a defendant twice for the same conduct if it is levied in conjunction with a sentence for violating 18 U.S.C. § 924(c). United States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997). This comports with the approach advocated by the Sentencing Guidelines:
Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. § 924(c).
U.S. Sentencing Guidelines Manual § 2K2.4 cmt. n. 4. Therefore, the district court clearly erred in applying a two-level enhancement to the drug conspiracy charge. We therefore vacate Cervantes and Alvarez’s sentences and remand for re-sentencing.
I. Whether applying a sentencing enhancement for body armor possession was erroneous.
If an objection is not preserved below, this Court applies plain error review. Morin, 627 F.3d at 994. Plain error is present if a defendant can show that (1) there was error; (2) it was plain; and (3) it affected his substantial rights. Id. An error generally only
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affects a defendant’s substantial rights if it was prejudicial; that is, if there is a reasonable probability that the proceedings would have produced a different result but for the error. Id. At sentencing, the government need only prove by a preponderance of the evidence those facts necessary to calculate a sentence. United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). “[T]he district court is entitled to rely upon the information in the [Presentence Report (“PSR”) ] as long as the information bears some indicia of reliability. The defendant bears the burden of presenting rebuttal evidence to demonstrate that the information in the PSR is inaccurate or materially untrue.” United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010) (citations omitted); see also United States v. Sampson, 54 F. App’x 408, 2002 WL 31689255, at *1 (5th Cir. 2002) (unpublished) (“In the absence of any evidence that the information in the PSR was materially untrue, the district court did not err in finding the PSR reliable and adopting the factual findings therein for sentencing purposes.”).
Alvarez received a four-level enhancement at sentencing for the use of a bulletproof vest in preparation for the armed home invasion the defendants had planned. See U.S. Sentencing Guidelines Manual § 3B1.5. At trial, the government presented testimony concerning the body armor some of the defendants were wearing, and introduced pictures of Alvarez wearing a bulletproof vest upon arrest and pictures of the vest itself. At no point during trial or sentencing did Alvarez contest that he was in fact wearing body armor as defined in § 3B1.5. Only now, on appeal, does Alvarez challenge the government’s failure to prove that his bulletproof vest qualified as such.
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Despite his protestation, Alvarez has given no reason to suggest that the PSR, which stated that Alvarez was wearing bulletproof body armor, was inaccurate or materially untrue. The PSR comports with the evidence presented at trial, which suggested Alvarez was wearing a commercially-available vest stolen from a police vehicle; and there appears to be no error. Accordingly, Alvarez’s PSR bears the requisite indicia of reliability and the district court was entitled to rely on it. Because Alvarez failed to identify evidence or present argument suggesting that the PSR was materially untrue, we affirm.
J. Whether Alvarez received ineffective assistance of counsel.
The general rule in the Fifth Circuit is that Sixth Amendment ineffective assistance of counsel claims are not reviewed on direct appeal unless they were “adequately raised in the trial court.” United States v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007). In order to provide competent review of such claims, the appellant must develop the record at the trial court. Id.; United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992). Only in those “rare cases” where the record is sufficiently developed will this Court review Sixth Amendment ineffective assistance of counsel claims on direct appeal. United States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997).
Here, Alvarez claims a litany of shortcomings that allegedly amount to ineffective assistance of counsel. However, this direct appeal is the first time that Alvarez has claimed ineffective assistance of counsel. Having not raised this issue below, the record is insufficiently developed to enable review of Alvarez’s claim. Stevens, 487 F.3d at 245. Accordingly, we deny
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Alvarez’s ineffective assistance of counsel claim without prejudice to his right to pursue the claim in collateral review.
IV. Conclusion
For the foregoing reasons, the sentences of Alvarez and Cervantes are VACATED and REMANDED for resentencing. We AFFIRM Appellants’ convictions and sentences on all other grounds, and DENY WITHOUT PREJUDICE Alvarez’s ineffective assistance of counsel claim.
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APPENDIX C
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOLDING SESSION IN LAREDO
UNITED STATES OF AMERICA,
Plaintiff,
v.
LUIS EDUARDO ALVAREZ,
Defendant.
_______________________
Case Number: 5:11CR00425-S3-004 USM Number: 86887-279
_______________________
AMENDED JUDGMENT IN A CRIMINAL CASE
Date of Imposition of Judgment July 12, 2013
Filed July 22, 2013
by Micaela Alvarez
United States District Judge
Oscar Vela, Jr. Defendant’s Attorney
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☐ See Additional Aliases.
Date of Original Judgment: December 12, 2011 (or Date of Last Amended Judgment)
Reason for Amendment
☒Correction of Sentence on Remand (18 U.S.C. 3742(f)(1) and (2))
☐ Modification of Supervision Conditions (18 U.S.C. § 3563(c) or 3583(e))
☐ Reduction of Sentence for Changed Circumstances (Fed. R. Crim. P. 35(b))
☐ Modification of Imposed Term of Imprisonment for Extraordinary and Compelling Reasons (18 U.S.C. § 3582(c)(1))
☐ Correction of Sentence by Sentencing Court (Fed. R. Crim. P. 35(a))
☐ Modification of Imposed Term of Imprisonment for Retroactive Amendment(s) to the Sentencing Guidelines (18 U.S.C. § 3582(c)(2))
☐ Correction for Clerical Mistake (Fed. R. Crim. P. 36)
☐ Direct Motion to District Court Pursuant to
□ 28 U.S.C. § 2255 or
□ 18 U.S.C. § 3559(c)(7)
☐ Modification of Restitution Order (18 U.S.C. § 3664)
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THE DEFENDANT:
☐ pleaded guilty to count(s) _____________________
☐ pleaded nolo contendere to count(s) ______________ which was accepted by the court.
☒ was found guilty on count(s) lsss and 6sss on June 27, 2011 after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section Nature of Offense
Offense Ended
Count
21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)
Conspiracy to possess with
intent to distribute a quantity in excess of 5
kilograms of cocaine, a
Schedule II controlled substance
03/09/2011 One
☒ See Additional Counts of Conviction.
The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
☐ The defendant has been found not guilty on count(s) _______________________________________
☐ Count(s) ______________________________________☐ is ☐ are dismissed on the motion of the
It is ordered that the defendant must notify the United States attorney for this district within 30 days
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of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.
July 12, 2013 Date of Imposition of Judgment
/s/ Signature of Judge
MICAELA ALVAREZ UNITED STATES DISTRICT JUDGE Name and Title of Judge
Date July 22, 2013
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ADDITIONAL COUNTS OF CONVICTION
Title & Section
Nature of Offense
Offense Ended
Count
18 U.S.C. § 924(c)(1)(A)(1)
and 18 U.S.C. § 2
Use and carry a firearm
during and in relation to
drug trafficking
crime
03/09/2011 Six
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IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:
235 months on Count One and 60 months on Count Six, to run consecutively, for a total term of 295 months. The defendant was advised of the right to appeal the sentence, including the right to appeal in forma pauperis, upon proper documentation.
☐ See Additional Imprisonment Terms.
☒ The court makes the following recommendations to the Bureau of Prisons:
That the defendant be placed in a facility near his home in Texas, as long as the security needs of the Bureau of Prisons are met.
That the defendant participate in a comprehensive drug treatment program while incarcerated.
☒ The defendant is remanded to the custody of the United States Marshal.
☐ The defendant shall surrender to the United States Marshal for this district:
☐ at________ ☐ a.m. ☐ p.m. on ______________.
☐ as notified by the United States Marshal.
☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
☐ before 2 p.m. on _____________________.
☐ as notified by the United States Marshal.
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☐ as notified by the Probation or Pretrial Services Office.
Defendant delivered on ______________________ to _______________________ at ____________________, with a certified copy of this judgment.
_______________________________ UNITED STATES MARSHAL
By ____________________________ DEPUTY UNITED STATES MARSHAL
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SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of:
5 years on Count One and 3 years on Count Six, to run concurrently.
☐ See Additional Supervised Release Terms.
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court. (for offenses committed on or after September 13, 1994)
☐ The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.)
☒ The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.)
☒ The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)
☐ The defendant shall comply with the requirements of the Sex Offender Registration and Notification
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Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state registration in which he or she resides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable.)
☐ The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
STANDARD CONDITIONS OF SUPERVISION
☒ See Special Conditions of Supervision.
(1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
(2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
(3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
(4) the defendant shall support his or her dependents and meet other family responsibilities;
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(5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;
(6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
(7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
(8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
(9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
(10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
(11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
(12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and
(13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or
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personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.
SPECIAL CONDITIONS OF SUPERVISION
The defendant shall participate in a program, inpatient or outpatient, for the treatment of drug and/or alcohol addiction, dependency or abuse which may include, but not be limited to urine, breath, saliva and skin testing to determine whether the defendant has reverted to the use of drugs and/or alcohol. Further, the defendant shall participate as instructed and as deemed necessary by the probation officer and shall comply with all rules and regulations of the treatment agency until discharged by the Program Director with the approval of the probation officer. The defendant shall further submit to drug-detection techniques, in addition to those performed by the treatment agency, as directed by the probation officer. The defendant will incur costs associated with such drug/alcohol detection and treatment, based on ability to pay as determined by the probation officer.
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
Assessment Fine Restitution
TOTALS $200.00 $0.00 $0.00
$100.00 on each of Counts One and Six, for a total of $200.00.
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☐ See Additional Terms for Criminal Monetary Penalties.
☐ The determination of restitution is deferred until _________. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.
☐ The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal payees must be paid before the United States is paid.
Name of Payee
Total Loss*
Restitution Ordered
Priority or Percentage
☐ See Additional Restitution Payees.
TOTALS $0.00 $0.00
☐ Restitution amount ordered pursuant to plea agreement $ .
☐ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth
* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.
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day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
☐ The court determined that the defendant does not have the ability to pay interest and it is ordered that:
☐ the interest requirement is waived for the
☐ fine ☐ restitution.
☐ the interest requirement for the
☐ fine ☐ restitution is modified as follows:
☐ Based on the Government’s motion, the Court finds that reasonable efforts to collect the special assessment are not likely to be effective. Therefore, the assessment is hereby remitted.
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
A ☒ Lump sum payment of $200.00 due immediately, balance due
☐ not later than____________, or
☒ in accordance with ☐ C, ☐ D, ☐ E, or ☒ F below; or
B ☐ Payment to begin immediately (may be combined with ☐ C, ☐ D, or ☐ F below); or
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C ☐ Payment in equal ______ installments of _______ over a period of _____, to commence _____ days after the date of this judgment; or
D ☐ Payment in equal ________ installments of _______ over a period of ______, to commence _____ days after release from imprisonment to a term of supervision; or
E ☐ Payment during the term of supervised release will commence within _____ days after release from imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F ☒ Special instructions regarding the payment of criminal monetary penalties:
Payable to: Clerk, U.S. District Court 1300 Victoria, Ste. 1131 Laredo, TX 78040
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
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☐ Joint and Several
Case Number Defendant
and Co-Defendant
Names (including defendant number)
Total Amount
Joint and
Several Amount
Corresponding Payee,
if appropriate
☐ See Additional Defendants and Co-Defendants Held Joint and Several.
☐ The defendant shall pay the cost of prosecution.
☐ The defendant shall pay the following court cost(s):
☐ The defendant shall forfeit the defendant’s interest in the following property to the United States:
☐ See Additional Forfeited Property.
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.
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APPENDIX D
UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL (2012)
CHAPTER TWO – OFFENSE CONDUCT
PART D – OFFENSES INVOLVING DRUGS AND NARCO-TERRORISM
§ 2D1.1. UNLAWFUL MANUFACTURING, IMPORTING, EXPORTING, OR TRAFFICKING (INCLUDING POSSESSION WITH INTENT TO COMMIT THESE OFFENSES); ATTEMPT OR
CONSPIRACY
(a) Base Offense Level (Apply the greatest):
(1) 43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense; or
(2) 38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or
(3) 30, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21 U.S.C. § 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the
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offense after one or more prior convictions for a similar offense; or
(4) 26, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21 U.S.C. § 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or
(5) the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under § 3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. If the resulting offense level is greater than level 32 and the defendant receives the 4-level (“minimal participant”) reduction in § 3B1.2(a), decrease to level 32.
(b) Specific Offense Characteristics
(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.
(2) If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels.
(3) If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance, (B) a submersible vessel or semi-submersible vessel as described in 18 U.S.C. § 2285 was used, or (C) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance, increase by 2 levels. If
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the resulting offense level is less than level 26, increase to level 26.
(4) If the object of the offense was the distribution of a controlled substance in a prison, correctional facility, or detention facility, increase by 2 levels.
(5) If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under § 3B1.2 (Mitigating Role), increase by 2 levels.
(6) If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.
(7) If the defendant, or a person for whose conduct the defendant is accountable under § 1B1.3 (Relevant Conduct), distributed a controlled substance through mass-marketing by means of an interactive computer service, increase by 2 levels.
(8) If the offense involved the distribution of an anabolic steroid and a masking agent, increase by 2 levels.
(9) If the defendant distributed an anabolic steroid to an athlete, increase by 2 levels.
(10) If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A), increase by 2 levels.
(11) If the defendant bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense, increase by 2 levels.
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(12) If the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, increase by 2 levels.
(13) (Apply the greatest):
(A) If the offense involved (i) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels.
(B) If the defendant was convicted under 21 U.S.C. § 860a of distributing, or possessing with intent to distribute, methamphetamine on premises where a minor is present or resides, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.
(C) If—
(i) the defendant was convicted under 21 U.S.C. § 860a of manufacturing, or possessing with intent to manufacture, methamphetamine on premises where a minor is present or resides; or
(ii) the offense involved the manufacture of amphetamine or methamphetamine and the offense created a substantial risk of harm to (I) human life other than a life described in subdivision (D); or (II) the environment,
increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.
(D) If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the
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resulting offense level is less than level 30, increase to level 30.
(14) If the defendant receives an adjustment under § 3B1.1 (Aggravating Role) and the offense involved 1 or more of the following factors:
(A) (i) the defendant used fear, impulse, friendship, affection, or some combination thereof to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances, (ii) the individual received little or no compensation from the illegal purchase, sale, transport, or storage of controlled substances, and (iii) the individual had minimal knowledge of the scope and structure of the enterprise;
(B) the defendant, knowing that an individual was (i) less than 18 years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv) unusually vulnerable due to physical or mental condition or otherwise particularly susceptible to the criminal conduct, distributed a controlled substance to that individual or involved that individual in the offense;
(C) the defendant was directly involved in the importation of a controlled substance;
(D) the defendant engaged in witness intimidation, tampered with or destroyed evidence, or otherwise obstructed justice in connection with the investigation or prosecution of the offense;
(E) the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood,
increase by 2 levels.
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(15) If the defendant receives the 4-level (“minimal participant”) reduction in § 3B1.2(a) and the offense involved all of the following factors:
(A) the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense;
(B) the defendant received no monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and
(C) the defendant had minimal knowledge of the scope and structure of the enterprise.
decrease by 2 levels.
(16) If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.
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APPENDIX E
UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL (2012)
CHAPTER THREE – ADJUSTMENTS
PART B – ROLE IN THE OFFENSE
§ 3B1.1. AGGRAVATING ROLE
Based on the defendant’s role in the offense, increase the offense level as follows:
(c) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(d) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(e) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
§3 B1.2. MITIGATING ROLE
Based on the defendant’s role in the offense, decrease the offense level as follows:
(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
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APPENDIX F
UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL (2012)
CHAPTER FIVE – DETERMINING THE SENTENCE
PART A – SENTENCING TABLE
The Sentencing Table used to determine the guideline range follows:
SENTENCING TABLE
(in months of imprisonment)
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Criminal History Category (Criminal History Points)
Criminal History Category (Criminal History Points)
Offense Level
IV (7, 8, 9)
V (10, 11,
12)
VI (13 or more)
1 0-6
0-6
0-6 2 0-6
0-6
1-7 3 0-6
2-8
3-9
4 2-8
4-10
6-12 Zone A 5 4-10
6-12
9-15 6 6-12
9-15
12-18
7 8-14
12-18
15-21 8 10-16
15-21
18-24 9 12-18
18-24
21-27 Zone B
10 15-21
21-27
24-30 11 18-24
24-30
27-33 12 21-27
27-33
30-37 Zone C
13 24-30
30-37
33-41 14 27-33
33-41
37-46 15 30-37
37-46
41-51
Zone D 16 33-41
41-51
46-57 17 37-46
46-57
51-63 18 41-51
51-63
57-71
19 46-57
57-71
63-78 20 51-63
63-78
70-87 21 57-71
70-87
77-96
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22 63-78
77-96
84-105 23 70-87
84-105
92-115 24 77-96
92-115
100-125
25 84-105
100-125
110-137 26 92-115
110-137
120-150 27 100-125
120-150
130-162
28 110-137
130-162
140-175 29 121-151
140-175
151-188 30 135-168
151-188
168-210
31 151-188
168-210
188-235 32 168-210
188-235
210-262 33 188-235
210-262
235-293
34 210-262
235-293
262-327 35 235-293
262-327
292-365 36 262-327
292-365
324-405
37 292-365
324-405
360-life 38 324-405
360-life
360-life 39 360-life
360-life
360-life
40 360-life
360-life
360-life 41 360-life
360-life
360-life 42 360-life
360-life
360-life
43 life
life
life
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APPENDIX G
UNITED STATES CODE
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART II. CRIMINAL PROCEDURE
CHAPTER 227. SENTENCES
SUBCHAPTER A. GENERAL PROVISIONS
§ 3553. IMPOSITION OF A SENTENCE
(a) Factors to be considered in imposing a sentence. The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
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(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
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(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
(b) Application of guidelines in imposing a sentence.
(1) In general. Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.
(2) Child crimes and sexual offenses.
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(A) Sentencing. In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless—
(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described;
(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that—
(I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking account of any amendments to such sentencing guidelines or policy statements by Congress;
(II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(III) should result in a sentence different from that described; or
(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing
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Commission in formulating the guidelines that should result in a sentence lower than that described.
In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.
(c) Statement of reasons for imposing a sentence. The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994(w)(1)(B) of title 28, except to the extent that the court relies upon statements received in
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camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements.
If the court does not order restitution, or orders only partial restitution, the court shall include in the statement the reason therefor. The court shall provide a transcription or other appropriate public record of the court’s statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission, and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.
(d) Presentence procedure for an order of notice. Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall—
(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;
(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and
(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.
Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion
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employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.
(e) Limited authority to impose a sentence below a statutory minimum. Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
(f) Limitation on applicability of statutory minimums in certain cases. Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
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(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
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APPENDIX H
UNITED STATES CODE
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART II. CRIMINAL PROCEDURE
CHAPTER 235. APPEAL
§ 3742. REVIEW OF A SENTENCE
(a) Appeal by a defendant.—A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
(b) Appeal by the Government.—The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
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(3) is less than the sentence specified in the applicable guideline range to the extent that the sentence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.
(c) Plea agreements.—In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure—
(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and
(2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.
(d) Record on review.—If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals—
(1) that portion of the record in the case that is designated as pertinent by either of the parties;
(2) the presentence report; and
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(3) the information submitted during the sentencing proceeding.
(e) Consideration.—Upon review of the record, the court of appeals shall determine whether the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
(3) is outside the applicable guideline range, and
(A) the district court failed to provide the written statement of reasons required by section 3553(c);
(B) the sentence departs from the applicable guideline range based on a factor that—
(i) does not advance the objectives set forth in section 3553(a)(2); or
(ii) is not authorized under section 3553(b); or
(iii) is not justified by the facts of the case; or
(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or
(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
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The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts.
(f) Decision and disposition.—If the court of appeals determines that—
(1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;
(2) the sentence is outside the applicable guideline range and the district court failed to provide the required statement of reasons in the order of judgment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and—
(A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);
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(B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);
(3) the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.
(g) Sentencing upon remand.—A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accordance with section 3553 and with such instructions as may have been given by the court of appeals, except that—
(1) In determining the range referred to in subsection 3553(a)(4), the court shall apply the guidelines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and
(2) The court shall not impose a sentence outside the applicable guidelines range except upon a ground that—
(A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and
(B) was held by the court of appeals, in remanding the case, to be a permissible ground of departure.
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(h) Application to a sentence by a magistrate judge.—An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court, and this section shall apply (except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal) as though the appeal were to a court of appeals from a sentence imposed by a district court.
(i) Guideline not expressed as a range.—For the purpose of this section, the term “guideline range” includes a guideline range having the same upper and lower limits.
(j) Definitions.—For purposes of this section—
(1) a factor is a “permissible” ground of departure if it—
(A) advances the objectives set forth in section 3553(a)(2); and
(B) is authorized under section 3553(b); and
(C) is justified by the facts of the case; and
(2) a factor is an “impermissible” ground of departure if it is not a permissible factor within the meaning of subsection (j)(1).
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APPENDIX I
UNITED STATES CODE
TITLE 28. JUDICIARY AND JUDICIAL PROCEDURE
PART V. PROCEDURE
CHAPTER 133. REVIEW—MISCELLANEOUS PROVISIONS
§ 2106. DETERMINATION
The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.
