676 F. App'x 267
5th Cir.2017Background
- Duque-Tinoco pleaded guilty to illegal reentry; received 37 months imprisonment plus three years supervised release. A previously imposed supervised-release term for an earlier conviction was revoked, and he received 24 months imprisonment; the sentences were ordered to run consecutively.
- At sentencing for the new illegal-reentry offense, the district court departed upward under U.S.S.G. § 5K2.21 based on uncharged conduct reported in the PSR: Duque-Tinoco was driving a vehicle in which officers found 2.2 kg of methamphetamine during a traffic stop.
- Duque-Tinoco argued the PSR’s facts did not prove he possessed the methamphetamine (no detail on exact location or visibility of the drugs) and thus the upward departure/consideration of uncharged conduct was improper.
- He also challenged the revocation sentencing, claiming he was denied an opportunity to allocute at that hearing; he did not raise that objection in district court.
- The district court held both hearings back-to-back and Duque-Tinoco was allowed to allocute in the first hearing (reentry) but not again at the revocation hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court clearly erred in finding uncharged drug-possession conduct by a preponderance and relying on it for an upward departure | Duque-Tinoco: mere presence of drugs in vehicle he drove does not establish his possession; PSR lacks critical detail | Government: PSR factually supports finding by a preponderance that Duque-Tinoco committed the uncharged conduct | Court: No clear error; district court could find by a preponderance that he committed the uncharged conduct (citing Koss) |
| Whether any error in assessing uncharged conduct at the reentry sentencing improperly influenced the revocation sentence | Duque-Tinoco: alleged influence would render revocation sentence improper | Government: factual finding stands; no spillover error | Court: Rejected spillover claim given rejection of the uncharged-conduct challenge |
| Whether denial of opportunity to allocute at the revocation hearing warrants relief despite forfeiture | Duque-Tinoco: was denied allocution and did not preserve objection below; argues plain/obvious error affecting substantial rights | Government: allocution occurred minutes earlier at the related hearing; error, if any, should not be corrected | Court: Failure to provide allocution was clear error, but appellate court declines to correct because defendant had just allocuted on the same issues minutes earlier (discretion not to remedy) |
| Whether the combined outcome requires reversal of the district court judgments | Duque-Tinoco: sentences should be vacated/resentenced | Government: affirm | Court: Affirmed both district court judgments |
Key Cases Cited
- United States v. Koss, 812 F.3d 460 (5th Cir.) (standard for sentencing findings of uncharged conduct by a preponderance)
- Puckett v. United States, 556 U.S. 129 (2009) (standard for correcting forfeited errors on appeal)
- United States v. Avila-Cortez, 582 F.3d 602 (5th Cir.) (allocution requirement and when appellate court may decline to remedy forfeited allocution error)
- United States v. Reyna, 358 F.3d 344 (5th Cir. en banc) (situations where prior allocution can make a subsequent allocution denial non-prejudicial)