United States v. Jose Flores-Mejia

enforcing the waiver work Nor would miscarriage of justice.

miscarriage only “unusual exception applies

justice a sentence such as where circumstance[s]” “ the maximum in excess of ‘imposed

was ... by law or based

penalty provide[d] factor constitutionally impermissible ” Khattak, v. race.’ States such as United Cir.2001) (3d (quoting

273 F.Bd Brown, Cir.2000)). No such circumstances Mabry, 536 F.3d at here. See present

are justice miscarriage no (finding and chal- was not misled defendant

where funda- implicate

lenges “d[id] to waiver principles”). rights or constitutional

mental

IV. affirm enforce the waiver and

We will applica- of Brown’s habeas

the dismissal on that basis.

tion of America

UNITED STATES FLORES-MEJIA, Jose Luis

Jose a/k/a Mejia, Mejia, Luis

Flores Jose a/k/a Manuel Mendez.

a/k/a Flores-Mejia, Appellant.

Jose Luis

No. 12-3149. Appeals, States Court of

Third Circuit.

Submitted Under Third Circuit 34.1(a) May 2013.

L.A.R. July

Opinion Filed: Flores-Mejia’s

vacate re- and resentencing. mand for Whitt, Jeffery Esq., W. Office of United I. PA, Attorney, Philadelphia, for The facts relevant to this appeal are of America. United States undisputed. Flores-Mejia, a native and Frederick, Epstein, Esq., Tracy Robert Mexico, citizen of extensive criminal Defender, Assistant Federal Public Esq., record deported and has been from the for Community Federal Defender Office United States on numerous occasions. On Pennsylvania, the Eastern District of Phil- 10, 2012, April he pled guilty in the Dis- PA, adelphia, Appellant. for trict Court for the Eastern District of Pennsylvania to one count of reentry fol- SLOVITER, FUENTES, Before: lowing deportation in violation of 8 U.S.C. ROTH, Judges. Circuit 1326(a). history Based on a criminal category of VI and an offense level of OF THE OPINION COURT which included a 16 level enhancement due FUENTES, Judge: Flores-Mejia’s prior to one of crimes of violence, range his Guidelines was calculat- Flores-Mejia Jose Luis was sentenced prison. ed as 77-96 months in following to 78 imprisonment months’ his reentry guilty plea single to a count memorandum, sentencing his Flores- he deportation. appeal, after On con- Mejia grounds raised several for down- his tends that sentence must be vacated departures ward and variances. Relevant because the District failed to suffi- here, argued he for a below-Guidelines ciently consider an he made in sentence based on two meetings with Gov- his memorandum and at the agents, ernment during purport- which he sentencing hearing: that provide ed to regard- “detailed information cooperation with the Government war- ing prostitution ring” a homicide and a a sentence. The ranted below-Guidelines Newark, Jersey. App. New 58-59. The acknowledges Government that the Dis- however, explained, memorandum also erroneously imposed trict Court the sen- that the Government determined that the considering tence without the cooperation question had homicide been solved and However, argument. it contends that de- Flores-Mejia’s regarding information fense counsel’s failure to to this that crime was contradicted other evi- means that Flores- dence, and that the Government decided to to, Mejia’s subject upon, claim is and fails pursue regarding the information plain error review. The Government rec- prostitution operation. ognizes that we held in in July was sentenced (3d Cir.2008) Sevilla, 541 F.Sd At hearing, required that no additional gave meaningful first consideration to these, under circumstances such as number of overrule or at urges us to Sevilla lower sentence that are not relevant here.

very least not follow it. ultimately denied those re- follow, quests. Subsequently, parties conclude ad-

For the reasons that Flores-Mejia’s argument we are and that we that his bound dressed permitted separate cooperation regard- are not that case as a two efforts at revisit three-judge Accordingly, activity we will criminal Newark warranted panel. must “acknowl- a district court step, this Both the Government sentence. a lower “any properly pre- respond” lengthy prof- edge offered counsel and defense which has col- sentencing argument sented Flores-Mejia’s attempts regarding fers information, merit and a factual basis.” orable with provide 405, F.3d 411 Begin, 696 in sen- United allegations with the consistent (3d Cir.2012). give “meaningful to Failure counsel then memo. Defense tencing any factor renders a to such consideration” to “consider urged [Flores-Me- the Court procedurally unreasonable the Govern- proffering in jia’s] [to actions remand for resentenc- requires generally to the they did not rise though ment] ing. Id. depar- for a downward level of a [motion § in this case.” 5K1.1] ture under U.S.S.G. however, contends, The Government Following defense counsel’s App. 102-03. subject to Flores-Mejia’s claim is that thanks, “Ok stated: colloquy, Court his counsel did error review because plain The District App. 103. anything else?” the District Court failed object not when Flores-Mejia to sentence proceeded argument re- Flores-Mejia’s to address imprisonment. to 78 months’ attempts cooperation.1 his at garding any way los- argues that The District Court Government Flores-Mejia’s request error review because his plain or mention es under address cooperation on was argument regarding sentence based for a below-Guidelines frivolous,” meritless, on “clearly bordering other than that attempts cooperation his at neither defense “that the acknowledgment, and and he therefore cannot establish bare brought proceeding the Government this would have been counsel nor result of attention, via more about his to the District Court’s had the court said failure different 43, claim,” Br. at appeal or otherwise. This meritless variance Gov’t an 49-50, prevail plan to under required as is followed. Flores-Mejia counters that

error review. II. whether the Dis- our review is limited to consider- gave “meaningful trict Court A. of Review Standard grounds for a lower ation” to his asserted appeal sole contention sentence, per unrea- procedurally that his sentence is Cir.2008). (3d 541 F.3d 232 the District failed sonable because acknowledges, that As the Government sufficiently consider the two raised warranted a attempts cooperation his at variance on two grounds for a downward Under the familiar sen- lower sentence. sentencing separate occasions—once framework outlined in United tencing Gunter, sentencing memorandum and once at the a district court must at States v. grounds both went unmen step sentencing hearing final the third and —but imposing tioned the relevant process consider 3553(a). sentence, say than to it had “consid § other set forth in 18 U.S.C. factors (3d Cir.2006). § factors.” satisfy To ered all of 247 462 coopera- dispute that a defendant's held 1. The Government does properly considered under 18 U.S.C. Flores-Mejia’s argument properly pre- tion are was Petrus, See, 3553(a). e.g., it had a to the District Court or that sented Cir.2009); per- factual basis. Nor could Fernandez, (2d 443 F.3d 33-34 suasively argue request "color- States v. lacked Cir.2006). merit,” given have that other courts able Russell, raising Aside from (3d Cir.2009) for a lower sentence on two occa- pleas and United States v. sions, lodge Sevilla’s counsel did not (3d Vazquez-Lebron, 582 F.3d objection when District Court failed Cir.2009), applied where we plain error arguments. squarely address those We review to claims that were not brought to circumstances, held that under those “the Third, court’s attention. failure to address those Government contends “virtually [all require issues did not Sevilla to re-raise other Circuits unanimous in applying are] them to avert error review of these plain error review where a defendant fails omissions,” and that such claims were in- at sentencing procedural to the subject “meaningful stead consider- sentence,” reasonableness of the and that ation” Id. at review. 231. So too here. Sevillei therefore conflicts with other Cir- attempts coop- raised his authority. cuit Gov’t Br. at 28-29. eration both in his memoran- Fourth, the Government notes that we dum and at the sentencing hearing, but should revisit Sevilla because this issue is that went unmentioned “important, frequently recurring one.” squarely precludes District Court. Sevilla Id. at 23. The Government suggests also applying plain us from review to that a rule requiring lodge defendants to though claims even objections additional saves time and effort lodge objec- counsel did not an additional “any in that it allows ambiguity sen- [at tion to the sentence. tencing instantly ... be to] corrected” and The Government candidly concedes that is therefore better than the rule an- “supports Flores-Mejia’s assertion nounced in Sevilla. Id. 39-41. preserved,” that the issue was ... Gov’t Br. at but contends that Sevilla is But none of arguments provide these “anomalous,” holding id. at and that its three-judge panel basis for a of this Court sustained,” “cannot be id. at 36. The bas- binding to revisit a decision that controls es for the arguments Government’s this the outcome of a case. “Under our Inter- First, respect are as follows. the Govern- Procedures, Operating panel nal of this ment contends that the rule set forth in cannot overrule an earlier binding Court premised Sevilla is on an erroneous read- decision; panel only the entire court sit- ing of our holding en banc ting en banc can do so.” Chester ex rel. Grier, objec- where we that “an stated Co., N.L.R.B. v. Healthcare Grane tion to the reasonableness of the final sen- (3d Cir.2011) (citing Third if, during tence will be sentenc- 9.1). Alternatively, inter- Circuit I.O.P. ing proceedings, vening Supreme or raised a factual meritorious or issue amendments to statutes us to permit revis- relating to one or more of the factors panel it a without binding decision invok- 3553(a).” § enumerated 18 U.S.C. id.; procedures. our en banc See see (3d Cir.2007). 571 n. 11 Accord- Co., also Reich v. D.M. Sabia Government, ing to the this statement was (3d Cir.1996). The Government’s ar- dicta because the en banc Court Grier Sevilla, however, are guments regarding “had no occasion to what stan- consider why at most our Court apply dard of review in a such should case See, Second, en banc. should reconsider Sevilla as this.” Gov’t Br. at 25-26. e.g., (listing Third I.O.P. 9.3.1 argues Government that Sevilla “conflicts necessity uniformity with later decisions of this as to “maintain of [the Court” such The District Court B. Whether and the involvement decisions” Court’s] Meaningfully Flores- Considered importance” exceptional “question[s] Mejia’s Regarding a Arguments to hear whether used to determine criteria Lower Sentence ).2 a case en banc that the Sevilla Having determined invoke subse does The Government case, we governs this of review standard authority as a basis Supreme Court quent mean whether the consider attempt but we find to revisit Flores-Mejia’s argu ingfully considered unavailing. Specifically, based on his a lower sentence ment for undermined Sevilla has been contends that Sevilla, we cooperation. in Puck decision Court’s sentencing court’s concluded that 129, 129 States, 556 U.S. ett v. United it had “considered all statement (2009). See Gov’t 173 L.Ed.2d 266 not sufficient to factors” was But, like Russell and 33-35. Br. at consider meaningful the required show 2,n. Puckett supra see Vazquez-Lebron, case under ation. This is an a fortiori in which the defen with a situation deals Here, the District state Sevilla. time argument an for the first dant raised else?”) (“OK thanks, anything consti ment undisputed It was therefore appeal. on acknowledgement of Flores- tutes a bare at argument the was not the statement Mejia’s argument. Unlike all, not whether addi and the issue was in insufficient we deemed Thus, required. objections were tional here does not acknowledgement court’s basis provide argument, does not sufficient imply Puckett consideration Begin, to revisit the bind to it. See three-judge panel response for a let alone a at 411. ing holding of Sevilla3 sought party the action the contention made or 2. We note that the Government’s —of to take.” Fed.R.Crim.P. subsequent wishes the court inconsistent with that Sevilla is reservations, 51(b). Despite we do not Vazquez-Lebron these cases such as Russell desirability express view as to the Vazquez-Lebron a definitive incorrect. Both Russell and in let alone of of the rule announced arguments that involved our consideration of desirability revisiting that case en banc. of any point raise to the the defendant did not Russell, say has it to the Government Suffice 564 F.3d at court. See 206; conclu- persuasive counter to our offered no Vazquez-Lebron, at 446-47. definition, Thus, dictates the outcome sion that Sevilla with the neither case dealt reach in this case. question an additional of whether fails to en- required when the District Court argument brought tirely that was address acknowledge Supreme Court in 3. We Moreover, Flores-Mejia to its attention. requiring pres- preference for Puckett stated a notes, correctly post-Sevilla decisions other ”give[] district court of errors to ervation announced in Sevilla. have hewed to the rule opportunity to consider and resolve addition, See, e.g., Begin, Puckett, 414. In 696 F.3d at U.S. at 129 S.Ct. them.” that it at least one other Circuit stated arguably preservation was satis- 1423. But requiring the defendant no in "see[s] benefit given that the defendant did raise fied here circumstances, (twice) protest appeal. further” under these he now raises most, "requirement worried that such a and has has shown that both At the Government have, never-ending degenerate stream in could into Court and our Court sentencing explana- pat- objections fact after each with other of connection terns, Lynn, appellate review rules that are tion.” United favored Cir.2010). This is consistent the rule set forth in Sevilla. 578-79 n. 3 different from 51(b) arguments in Rule will be considered with the set forth These standard error, to revisit "by informing when the occasion arises preserving a if and claim ruling or order is Sevilla. the court court—when again, candidly majority The Once concludes that we must admits that “arguably supports vacate and remand for resentencing be- claim Flores-Mejia’s position” that the was cause the District Court did not meaning- addressed, sufficiently “again re- fully consider Flores-Mejia’s argument that Sevilla is not spectfully suggests] that his at cooperation warranted binding authority, as it overlooked and a lower sentence. The majority holds that controlling Supreme conflicted with Court precluded we are from applying plain er- States, Rita v. United in precedent 551 ror review to Flores-Mejia’s claim even 2456, 168 U.S. 338 L.Ed.2d [127 203] though, when sentence was imposed, Rita, (2007).” Gov’t Br. at 44-45. In to the District however, the District had “asked Court’s failure to consider argument. questions [sentencing] about each factor” majority insists that this is so because raised defense counsel as a for a basis in under our sentence, lower and had each summarized Sevilla, a defendant need not “re-raise [is- Rita, 344-45, 358, argument. U.S. to avert sues] review.” 541 Thus, 127 S.Ct. 2456. while the (3d Cir.2008). that, I submit Rita did say “lengthy explanation” that a justice judicial the interests of required regarding was not all relevant Sevilla should be economy, holding our 3553(a) factors, the District in- event, any revisited. I submit that the teraction with all of the raised judgment District Court’s of sentence here by defense counsel in that case stand should be affirmed.

stark contrast to the District Court’s bare- bones acknowledgment of I. arguments in this It case. cannot be said that, law, Sevilla is inconsis- as a matter of In directly we addressed the tent with the Supreme prior Court’s hold- defendant, question of whether a who rais- Rita,4 ing in argument during es an the sentencing pro- ceedings, object must when the District

III. Court fails to address the at the reasons, foregoing For the we will re- imposed. time sentence is 541 at F.3d 228. resentencing. mand for negative, answered in the citing We to our Grier, en bane opinion ROTH, Judge, dissenting: 556, (3d Cir.2007), 475 F.3d 571 n. 11 I respectfully dissent because I believe we where had noted that “an that we should not remand for resentenc- of reasonableness the final sentence ing if, where the resentencing need for could will be during sentencing pro- easily have requiring been avoided ceedings, raised a contemporaneously to have legal relating meritorious factual or issue objected explana- to the District Court’s to one or more of the factors enumerated 3553(a).” tion of his sentence. in 18 at U.S.C. 541 F.3d 231. suggests 4. The Government also that "there remand if the District Court fails to consider it, Flores-Mejia's was no error at all” because and we are unable to conclude that a "request attempted request for a variance based on for a variance based on at meritless, cooperation clearly cooperation, ... was border- which the Government acknowl- But, edged, completely legal on frivolous.” Gov’t atBr. 43. devoid of merit so noted, only requires supra Sevilla that the claim has as to be considered frivolous. See also require “colorable” merit order to n. 1. 228 circuits, error re Grier, apply plain which other the Sevilla

Beyond the reliance at object justification where the defendant no further view offered opinion explana sentencing to the District Court’s holding. its See, e.g., sentence. United tion of the reasons, in Sev- holding For several Davila-Gonzalez, 42, 595 F.3d v. States First, government as the is flawed. illa (1st Cir.2010); v. Vil United States 47-48 asserts, is dic- portion of Grier the cited (2d 204, Cir.2007); 211 lafuerte, 502 F.3d binding on our Court. and thus tum Mondragon-Santiago, v. States United Grier, the substantive we addressed In (5th Cir.2009); 357, 2& n. 564 F.3d 361 sen- reasonableness 453, v. 649 F.3d 457- tence, presented Judge, Sevilla States not the issue United case, (6th Cir.2011); namely what stan- States v. in the instant United 58 (7th the defen- applies Anderson, 997, review where 1003 Cir. dard 604 F.3d challenges Rice, whether 2010); dant v. argument pre- adequately addressed an (8th Cir.2012); v. 1049 United States sentencing. Because the Sevilla sented at (9th Cir.2012); Rangel, 697 F.3d for its justification scant opinion contains Romero, v. United States Grier, beyond its reliance on there holding (10th Cir.2007); 1177-78 it. good reason revisit (D.C.Cir. Wilson, 605 F.3d 1033-34 2010).1 even majority recognizes, Furthermore, As articulated in the rule prefer- Supreme Court has indicated in most conflicts with Sevilla Corona-Gonzalez, ing); v. affirmatively United States Only Circuit has the Fourth (7th Cir.2010) approach (reviewing for adopted as Sevilla. See the same (4th error, Lynn, Cir. object 592 F.3d 572 United States failed where defendant 2010). suggested Sev sentencing, claim that the dis- defendant’s enth, disagreed Eighth and Eleventh Circuits relied on incorrect facts at sentenc- trict court approach adopted plain error review with the Bartlett, ing); cf. majority circuits. This is not accu Cir.2009) (finding defen- circuits cited rate. The cases from these appellate options preserved his dant question at did not address the same though be- he did not Sevilla, i.e., must in whether a defendant issue argued a lower sentence and cause he for object explanation of the to the district court’s Rule of Criminal Procedure under Federal appeal. preserve to the issue for See sentence 51(b) "[ejxceptions rulings to or orders 5, Dale, 604, 610 n. States v. 498 F.3d United unnecessary.” (quoting Fed. are court (7th Cir.2007) (whether defendant 611-12 51(b))). Eighth has The R.Crim.P. object to reasonableness of must substantive where the applied plain error review also preserve appeal); United to issue for object to the District defendant Swehla, 1143, (8th 442 v. 1145 States explanation See of the sentence. Cir.2006) (whether object to defendant must Rice, 699 F.3d 1049 pre reasonableness of sentence to substantive (8th Cir.2012) (reviewing plain for error appeal); serve issue for n object to the the defendant did not where Williams, (11 1274 th Cir. explanation of the sentence district court's (whether 2006) comply a court’s failure to argued appeal that the dis- 3553(c)(1) § reviewed 18 U.S.C. for with adequately explain its trict court failed to fact, error). plain the Seventh Circuit has denying departure or a downward reasons for adopted plain error review in circumstances Circuit, variance). al- And the Eleventh See, e.g., in to those Sevilla. similar in a though it not addressed this issue has Anderson, (7th 1003 decision, applied plain precedential Cir.2010) (reviewing error defen procedural to claims of unreasonable- review failed to claim that the district court dant's see, opinions, e.g., non-precedential ness in the U.S.C. fac consider 18 Girard, Fed.Appx. 440 supervised release in him to tors Cir.2011). object n. 6 at sentenc- 901 & where defendant did not to requiring party lodge ence for to an explicit objection after preserve appeal. to issues for See explanation order the district court would saddle States, Puckett v. United U.S. busy district courts with the burden of (2009) 1423, 173 134, 129 S.Ct. L.Ed.2d 266 sitting through an objection-probably for (“This author appellate-court limitation on every mulaic-in criminal Lynn, ease.” ity timely raising serves to induce the of (internal quotation F.3d at 578 marks and objections, gives claims and which the dis omitted). citation I agree. do not Sen opportunity trict court the to consider and a tencing complex process, and a district them.”). resolve judge court at sentencing must meet nu Finally, convincing requirements. Objections, there are reasons merous if why plain error review these circum- time-consuming at the time of sentencing, stances would aid the administration of serve the important purpose reminding of justice. Requiring a defendant to contem- judge requirements the of these and allow poraneously object to an error in sentenc- ing judge immediately to remedy omis quick facilitates the resolution of such and clarify inadequate explanations. sions observed, errors. As the (and adopted Lynn) The rule in Sevilla process,” “errors are a constant in the trial arguably imposes greater a burden on contemporaneously and when defendant busy by depriving district courts them of objects, the district court “can often cor- contemporaneous notice of errors and of rect or avoid mistake so that it cannot opportunity to correct those errors. possibly affect the ultimate outcome.” Judge, (“[Presenting 649 F.3d at 458 Cf. Puckett, 556 U.S. at the district court argu with substantive (internal quotation marks and citation making objec ments is not the same as an omitted). Plain error review in circum- tion to the district of explanation court’s its public stances like these advances the in- of arguments.”). consideration those “ terest [requiring because the error to be required time and resources to correct er incen- creates through lengthy rors resen- appeal and parties help tives for the the district tencing pale comparison to the burden court meet its obligations public and such, sitting through objections.2 As parties.” Villafuerte, 502 F.3d at 211. rule in a great results waste By encouraging objec- defendants to make judicial Our strong resources. interest equipped tions before the court most judicial economy, heightened in these efficiently effective- resolve errors judicial times of fiscal bud restraint ly, applying plain a rule error review in concerns, getary argues in favor of a rule arguably promotes cases like these better applying plain error review. sentencing practices. reasons, Circuit, foregoing For the I believe that only The Fourth other cir- the poor precedent and should be affirmatively adopt the rule cuit to same Sevilla, “[rjequiring commented that revisited. Moreover, Resentencing imposes significant new

2. burden law enforcement authorities. only on district courts: not do district courts arguments may have arisen which that will busy have to find time in their dockets to require resentencing. now consideration at revisit errors that could have been resolved States, - U.S. -, Pepper See v. United orig contemporaneous objection with a at the (2011) (holding S.Ct. 179 L.Ed.2d 196 they inal also have the burden may resentencing a district con that at court involved, reassembling parties pris of oner/defendant, the the rehabilitation). post-sentencing sider witnesses, attorneys, the Flores-Mejia’s ar- ingful consideration II. based on his for a lower sentence gument Moreover, I under believe I believe the Dis- cooperation, should affirm in this case we be affirmed. sentence should trict Court’s majority The sentence. District Court’s did not mean- that the District Court holds III. Flores-Mejia’s argument,

ingfully consider case is an “a reasoning that this fortiori reasons, Sevilla foregoing For 226). In Op. at (Majority under Sevilla.” not, if Even it is be revisited. should “[although [Dis- noted that however, judgment of the District Court’s role in the Sevilla’s considered trict] Court be affirmed. here should co-conspira- of his compared to that crime tors, Sevilla’s colorable it did not address childhood and relating to his than to disparity other crack/powder all of the

say [§ ] that it had ‘considered ” at 232. On that factors.’ 541 F.3d

basis, the district court did we held that the childhood meaningfully consider disparity arguments. crack/powder

Id. CHEN, Petitioner DA CHEN distinguishable from The instant case Here, specifi- Sevilla.3 GENERAL OF ATTORNEY at issue cally responded argument to the STATES, the UNITED Flores-Mejia’s After counsel appeal. Respondent. regarding Flores- concluded her cooperation, the Dis- Mejia’s attempts No. 13-1113. thanks, anything “OK

trict Court stated Appeals, States Court of the obvious discussion else?” In view of Third Circuit. before the District Court the District com- argument and Submitted Pursuant to Third Circuit can con- response, ment in I believe we 34.1(a) LAR June 2013. gave mean- clude that the District Court July Filed: Opinion argument. to the ingful consideration held, ... “[w]here record makes clear that argu- the evidence and

judge considered

ments, requires we do not believe the law extensively.” to write more judge Chhetry & Khagendra Gharti-Chhetry, 338, 359, States, 551 U.S. Rita v. United Associates, York, NY, Petitioner. New (2007). 168 L.Ed.2d Esq., Zoe J. Hel- Kathryn Deangelis, L. I that the record makes Because believe Jr., ler, Holder, Esq., Thom- Esq., mean- Eric H. gave clear (2007). adopt I do not argues L.Ed.2d 203 government that Sevilla over- 3. The controlling Su- only looked and conflicted with assert that this here but rather preme States, in Rita v. United distinguishable from Sevilla. case 338, 127 S.Ct. 551 U.S.

Case Details

Case Name: United States v. Jose Flores-Mejia

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 19, 2013

Citation: 531 F. App'x 222

Docket Number: 12-3149

Court Abbreviation: 3rd Cir.