*1 in- rights, constitutional denied Tennessee’s motion to unduly burdening dismiss this of access the courts. action. cluding right myriad ways have unburden AFFIRM the We decision the district rights, major step these from reno- proceed- court REMAN'D for further relatively step
vating facilities to minor ings opinion. consistent with this to assist in access to the assigning aides The record demonstrated that facilities.
public entities’ failure to accommodate qualified persons
needs with disabilities directly
may result from unconstitutional impermissible stereotypes.
animus and II that the
Title ensures refusal accom- disability an individual with a
modate America, UNITED STATES of on genuinely based unreasonable cost or Plaintiff-Appellee, accommodate, inability on actual inconvenience unfounded concerns about costs. GARCIA-MEZA, Jesus Defendant- statutory protection pre This is a Appellant. ventive measure commensurate to the No. 01-1831. precluding gravity access to the courts addition, by with those disabilities. Appeals, States Court of requirements carefully these are tailored Sixth Circuit. unique disability features of discrim Argued Oct. 2002. persists public ination that A services. simple against ban on discrimination those Decided and Filed Jan. 2003. with disabilities lacks teeth. The continu
ing legacy power discrimination too
ful. Title II affirmatively promotes inte
gration of those with disabilities. seeking
Jones and Lane are to vin right
dicate their of access to the courts alleges
Tennessee. Lane has been
denied benefit access the courts. similarly alleges
Jones that she has been from pro
excluded courthouses and court inability
ceedings by phys to access the responds
ical facilities. Tennessee due alleged process violations are not questions present
violations. difficult
ed this case cannot be clarified absent Popovich
factual record. Because in we appropriate
held that Title II is an means enforcing process rights the due of indi
viduals, and because this came us case any development facts,
before appropriately
hold that the *2 (briefed), E. Meyer Bruha Joan
John C. Office, (argued), Atty’s U.S. Western Dist. MI, Rapids, for Plain- Michigan, Grand tiff-Appellee. Garcia-Meza, Cloud, MI, proposed marijuana, White sale of with a
Jesus sam- pro se. source, ple provided to the confidential kilogram actual of a sale of cocaine. briefed), (argued
Kevin M. Schad 22, 2001, February Cook, OH, On Garcia-Meza en- Indian Springs, Schad & *3 Defendant-Appellant. plea agreement into a with tered the Unit- part a agreement, ed States. As of the the MARTIN, Judge; Chief Before Circuit parties stipulated that the base offense COHN, RYAN, Judge; Circuit Senior twenty-six. level for the offense was The Judge.* District agreed United States further not to file a MARTIN, C.J., Jr., request supplemental F. to enhance the sen- BOYCE court, opinion the in delivered which prior tence based on convictions. J., RYAN, joined. COHN, (pp. D.J. 687- The report generated by 88), separate dissenting a delivered Department the Probation a recommended opinion. twenty-six, base offense level of with a upward adjustment two-level for Garcia- OPINION Meza’s role in the offense as a leader or MARTIN, Jr., F. Chief BOYCE Circuit organizer. The also determined Judge. offender, that Garcia-Meza was a career appeals Jesus Garcia-Meza his convic- thirty- which the level increased offense to tion and sentence for violation of U.S.C. Department four. The Probation recom- § § 2 grounds. 841 and 18 on four U.S.C. adjustment no for acceptance mended First, argues that he the United States responsibility because “mini- Garcia-Meza plea agreement in failing breáched mized and denied relevant conduct.” stipu- advocate the base offense level Prior to Second, sentencing, the United States parties. lated to the Garcia- argues Meza district in for a departure the court erred filed motion downward allowing for “orga- sentence enhancement levels in sentencing two based on Garcia- the Sentencing under Guide- nizer/leader” Meza’s substantial assistance with the Third, argues lines Section 3B1.1. he the At sen- investigations. United States’s denying accep- district court in erred 13, 2001, tencing, on June Garcia-Meza responsibility adjustment tance of under objection guideline no made the calcula- Sentencing the Guidelines Section 3E1.1. presentence report. tions the The dis- Finally, argues provid- his trial counsel agreed report, trict court with the and he during plea ed ineffective the assistance thirty-four. set the level offense at He following and at For the rea- granted the motion for a United States’s sons, we AFFIRM Garcia-Meza’s convic- departure two-level downward for substan- tion and sentence. assistance, and he tial sentenced Garcia- years, guide- to eighteen Meza within the
I. months, range years, line six seventeen In December of Garcia-Meza was twenty-one years, ten months. indicted for approximately distribution kilogram of cocaine. This indictment was II. the result transactions between Garcia- potentially Garcia-Meza waived his Meza and a confidential source for the United The arguments failing States. transactions involved first three to make * Cohn, Michigan, silting by The designation. Honorable Avern Senior United Judge for States District the Eastern District the The second issue whether sentencing proceedings the
objections at giv error plea committed agreement, alleged breach upward ad ing in the Garcia-Meza two-level adjustment role upward role in the as a offense, adjust justment for his offense the failure organizer under Section 3B1.1. leader responsibility. acceptance of Cullens, argues “If evidence system upon in rec Department to be Probation relied appellate if review is to work and ommending that a the sentence enhancement absolutely essential it is meaningful, conduct, if it were relevant and even objections all the sen raise defendant conduct, proof no in the relevant there was Gar sentencing judge tence before reason, law Probation cia-Meza was leader. first instance. *4 found that di object Department to re Garcia-Meza that a failure developed has (6th 123, Vicky 124 rected the activities of Rios-Sanchez in F.3d 67 sults waiver.” drug in the transac Cir.1995). has. and “Josh” Sanchez This also Court that the the offense and here, has tions form basis of “Where, a criminal defendant as below, must relevant conduct he or she found this evidence to be object failed to 3B1.1. purposes ... for the Section Garcia plain that error was demonstrate the objection to neither this rec our Meza made may exercise discretion before we presen in v. Koe ommendation as contained the States correct the error.” United (6th Cir.1998). berlein, 946, report nor to at the tence its consideration F.3d 949 161 sentencing. Federal Rule of Crim the district court’s time therefore review We 32(b)(6)(D) states, “Except plain for error. inal Procedure in these matters decisions any objection for unresolved under subdi the Turning to the matter of first (b)(6)(B) objec [which vision covers the it not that plea agreement, appear does presentence report], the the tions made to breached. We plea agreement the was accept may, hearing, pre at the the in is contractual agree plea bargain that “a findings report as of fact. sentence its Herrera, nature,” v. 928 shown, good may the court al For cause (6th Cir.1991), 769, and United F.2d 771 objection any a raised at low new to be stated, Robison, this Court States v. imposing Because time before sentence.” promise fulfills his ‘Where a defendant objections, made the dis Garcia-Meza no is plea, prosecution the entering guilty plain did not error trict court commit any in ex promise fulfill made bound to accepting report’s recom presentence the (6th Cir.1991). change.” F.2d 613 924 mendation for enhancement. argues that the United Garcia-Meza Similarly, the not agreement with district court did plea its States breached accepting pre argue sentencing at commit error in the him when it did not twenty-six, report’s as a that the level of and sentence recommendation offense result, adjustment for of that be denied an is entitled to enforcement Garcia-Meza twenty- acceptance responsibility. In contrast an level of agreement and offense misunderstands, claim, did ob second Garcia-Meza six. What Garcia-Meza report’s however, plea agreement ject presentence that mere character acceptance responsibility. ly stipulated the base level ization his offense report copy included twenty-six, pre it was in the would be as objections, and level this and other report. sentence The total offense no included an addendum that stated thirty-four. Thus there was to the satis- breach matters were resolved plea agreement. “[t]hese of the
687 adjustment parties.” Federal Rule One does faction not necessitate the states, Procedure 32 Criminal other. (c) Sentence. The final and ques more difficult (1) Sentencing Hearing. At the sen- tion is Garcia-Meza’s claim that he was
tencing hearing, the court must afford
ineffectively represented by counsel at the
and
counsel for the defendant
at
arraignment
weAs
comment
opportunity
Government
noted,
have
ar
many
waived
probation
on the
officer’s determinations
guments by failing
object
at various
on
relating
other matters
stages. Garcia-Meza now claims those
sentence,
on
appropriate
and must rule
mistakes amounted to ineffective assis
objections
presen-
any unresolved
tance
counsel. While Garcia-Meza has
report....
tence
each matter con-
perfected
question,
he cannot
it
raise
troverted,
make
the court must
either
at this time.
will
generally
We
not
on
rule
finding
allegation
on
or determina-
ineffective assistance of counsel claims
finding
necessary
tion that no
because
raised
the first time on direct appeal.
matter
not
tak-
controverted
will
be
Hall,
United States v.
F.3d
in,
affect,
en into account
will
(6th Cir.2000). See
also United States
sentencing. A written record of these
*5
Daniel,
(6th
540,
Cir.1992);
956 F.2d
543
findings
ap-
and determinations must be
Pruitt,
al.,
and
v.
United States
et
156
pended
copy
any
Cir.1998).
(6th
638,
F.3d
646
“Claims of
made available to
Bureau
usually
ineffective assistance of counsel
Prisons.
by
be
must
addressed first
the district
We have held that failure to make these
pursuant
court
a motion
28
under
error,
findings
remanding
Hall,
§ 2255.”
U.S.C.
It noting merits there is no tude. We cannot now decide Garcia- inconsistency adjust inherent in granting Meza’s ineffective assistance counsel deny ment for substantial assistance and claim.
ing adjustment acceptance responsi
bility, happened as case. United III. Williams, (6th v.
States 176 F.3d 308 reasons, preceding we AFFIRM Cir.1999), acceptance ‘Williams’s Garcia-Meza’s conviction sentence. responsibility is not the same as sub (even stantial if assistance sometimes lack DISSENT of the former is used to an argu bolster COHN, Judge, Senior District latter), failing depart ment for on the dissenting. his accep three-level reduction I I responsibility way tance of in no dissent. am of the view that obligates Since government departure.” to ask sentencing plainly the record at reflects 688 counsel, I would assistance
ineffective and remand for new the sentence
vacate repre defendant hearing with
sentencing I see no need on new counsel.
sented wait for 28 sentencing record to deal with is § 2255 motion to
U.S.C. of counsel at assistance
sue of ineffective I Alternatively would defer the decision to await
decision v. Unit Massaro Supreme Court (2d Cir.2001) States, Fed.Appx.
ed
—
granted,
opinion),
(unpublished
cert.
-,
U.S.
(2002).
N.L., minor, by mother, C., her MS. C., friend, individ and Ms.
as next
ually, Plaintiffs-Appellees, SCHOOLS; Charles
KNOX COUNTY
Lindsey, Superintendent of Knox Schools,
County Defendants-Appel
lants. 01-5551.
No. Appeals, States Court of
Sixth Circuit.
Argued Sept. 2002. Filed 2003.
Decided and Jan. Knoxville, (briefed), TN,
Brenda McGee briefed), (argued Hill Rivkin Dean TN, Knoxville, Appellees. Wendy Weatherly, L. A. Jacobs Charles (briefed), Firm, Weatherly Law Atlan- GA, (briefed), ta, E. Knox Susan Crabtree Knoxville, TN, County Department, Law Appellants.