United States v. Miguel Cardenas

Before JOHN R. GIBSON and Cardenas, the district court PAGG, BRIGHT, Judges, Circuit presentence investigation considered the Judge. Senior Circuit report prepared by the Probation Office. following The contained the state- GIBSON, Judge. R. JOHN Circuit concerning acceptance ment responsibili- Miguel pled guilty possess- ty: ing unregistered firearm in violation of Although posses- the defendant admitted (1982). 26 U.S.C. 5861 He was sentenced arrest, sion of the firearm after his pursuant to the United States voluntarily defendant did not surrender twenty-one Guidelines to serve im- months to authorities after the commis- prisonment three-year followed term Also, discussing sion of the offense. supervised release. The sole issue Office, the offense with the Probation appeal is whether the district court1 the defendant firearm related that by denying request erred for a actually belong did not to him that it but two-level sentence reduction under Guerra, belonged to Carlos who threat- responsibility Guidelines for kill gun ened to him he did not hold the though even his counsel and the counsel police then him. who called the on stip- for the had entered into a agreeing accepted argues ulation that he had that he was entitled to sponsibility for his offense. affirm a two-level reduction in his sentence be- judgment committing of the district court. cause he admitted Cahill, Clyde 1. The Honorable S. elsewhere in the record. Cardenas Judge District the Eastern District of Mis- addressing the district court erred in not souri. issue of in the sec- proceeding. ond error, We believe that there was no party provided Neither has the court with a however, because the court addressed the transcript sentencing proceeding. of the second sentencing proceeding. at the first The issue however, transcript, lack of a is not critical resentencing simply based on the district review to our because sufficient foundation upward departure. judge’s withdrawal of the sentencing judge’s determination exists for his criminal personal responsibility assistance offered guilty, and he pled 3E1.1_ of other investigation conduct.” § in their Unit- the Assistant argues that He crimes. unique sentencing judge is facts, these agreed with Attorney ed a defendant’s position to evaluate Stipulation of Facts by the evidenced responsibility. decision to ance of His by the into Sentencing entered to Relevant great is entitled defer- depart not to or that states stipulation The parties. “[t]he review, and will not be dis- ence on [posses- this admission agree that parties it turbed is without unless foundation. defendant the sion firearm] 3E1.1, Commentary to Section 5. clearly guilty plea demon- defendant’s the added). (emphasis There- 146 at and affirmative recognition a strate fore, is to determine whether our task of- responsibility for the personal ance a foundation for the there was in the indictment.” Cardenas alleged fense judge’s decision. at- fact that both his emphasizes the also sentencing proceeding, At the Cardenas’ At- torney and the Assistant sentencing judge if the attorney asked investi- presentence torney objected to the presentence investi- agreed with the court by the Probation prepared gation report that Cardenas gation conclusion report’s Guide- He Office. a sentence reduction for should receive not notify the court to required line § The acceptance responsibility. court findings when tentative parties of its While this is sponded, “That is correct.” provide to dispute and resolving matters in expansive the most state- admittedly not submitting opportunity a reasonable ment, sentencing judge’s is the prior imposing objections or written oral “great def- and is entitled determination sentence. review,” commentary to as the erence on Guidelines, which 3E1.1 of Section See section mandates. this Guideline’s level the offense reduces comment, (n.5). 3E1.1, U.S.S.G. § great proven to be responsibility, has excerpt from are satisfied Fol- appeal optimism. of sentence source investigation report, set in decision lowing Supreme Court’s above, report, and objection to the 361, forth U.S. 488 v. United Mistretta a foun- proceeding, provide (1989), the courtroom up- 647, 714 102 L.Ed.2d S.Ct. 109 determi- sentencing judge’s for the dation constitutionality of the Sentenc- holding the in the com- Application Notes nation. The ap- has decided ing this provide a list of 3E1.1 mentary section in which fifteen cases defen- proximately appropriately considered are under this factors which sentences challenged their dants quali- determining a defendant our most in whether In one of guideline.3 particular 3E1.1, When level reduction.4 discussing section fies for the offense opinions recent (8th in the con- Allen, F.2d 143 these considerations v. 886 we examine United States per- we are Cir.1989), we stated: text Cardenas’ sentencing judge did suaded that the District allow Court The Guidelines in err his determination offense level base adjust a defendant’s reduction for to a sentence not entitled “clearly demonstrates if he downward responsibility. acceptance of recognition and affirmative particularly following cases, great considerations 4. we have stressed In these voluntary (1) ap ter- whether there was on relevant: deference accorded the peal. Anderson, See, e.g., v. 886 conduct United States criminal or withdrawal from mination Cir.1989); (8th v. associations; United States (2) 216 ad- voluntary F.2d and truthful or Cir.1989); (8th Holland, Unit 359 involvement authorities of mission to Johnson, (8th F.2d 879 335 ed States v. offense; (3) voluntary surrender Cir.1989); Thompson, 876 United States offense; and promptly after commission of Cir.1989); United States 1384 (4) conduct of the defendant's the timeliness (8th Cir.1989); Unit Young, responsibility. manifesting Nunley, 873 F.2d ed States 3E1.1, (n.l). See U.S.S.G. Cir.1989). prepares presentence investigation We are aware that Cardenas’ counsel fice Attorney report containing and the Assistant United States factual findings and rec- stipulation in they concerning entered into a ommendations relevant Guide- accepted respon- had line agreed that Cardenas considerations. The defendant’s coun- recognize sibility attorney for his offense. We also sel and the positions court, that both counsel and the Assist- then state their to the ei- Attorney objections writing hearing. ant filed ther in or in a presentence investigation report’s parties counsel for stipu- both filed a lation, objections on recommendation made to the investigation report, orally Assistant United States Attor- stated their ney particularly objected positions to the at sentencing.5 typical statement presentence investigation report sentencing procedure that then concludes when voluntarily sentencing requisite Cardenas did not surrender to court makes the committing findings after applies appropriate his factual offense. The Assistant United States At- Guideline sections. torney recognized that this statement was states, Nunley As the ultimate re based on the officer’s statement that sponsibility determining whether the ran to the kitchen and discarded defendant is entitled ato sentence reduc shotgun. agreed While he that acceptance responsibility tion for of lies significant determining was a factor in ac- with the court. Id. While the Probation ceptance responsibility, urged of that it parties may Office and the counsel for the outweighed by the other was circumstances properly make regarding recommendations case, namely of the Cardenas’ admission of sentencing, the final decision still rests guilt, guilty plea, willingness and his Appli with the court. The Guidelines and

provide information to authorities concern- sentencing cation Notes stress that ing narcotics activities. judge’s determination as to whether a de considering stipula- the effect of this clearly fendant has demonstrated affirma sentencing procedures, tion on we have acceptance personal responsibility tive of previously held that a memorandum of great under section 3E1.1 is entitled to agreement jointly by filed the defendant deference on review and is not to be dis Attorney, and the Assistant United States turbed unless it is without foundation. stating accepts responsi- that the defendant We now turn to the determinative bility, sentencing does not bind the court. appeal, in this whether there was (8th Nunley, United States v. 873 F.2d 182 a foundation for the district court’s refusal Cir.1989). We stated: grant the sentence reduction. At the stipulation accepts A that [the defendant] sentencing hearing, Cardenas’ counsel ar responsibility enough by is not itself to position acceptance ticulated her on his of 3El.l(a) trigger plea when even a of responsibility. colloquy, In this the district guilty would not entitle a defendant to judge specifically mentioned Cardenas’ right. sentence reduction as a matter of flight discarding into the next room and of 3El.l(c). Guidelines § gun. precise These were the facts that impor- 873 F.2d at 187. We also made the Attorney point the Assistant United States tant that the observation “issue of [defen- objections ed to in his to the responsibility of is still dant’s] investigation report, in which he noted the court, prosecution, not the relevance of these facts to the statement solve.” at n. 6. Id. voluntarily that Cardenas did not surren important recognize Attorney agreed

It the different der. United States by parties typical significant determining played roles various that this was argued procedure. The Probation Of- of but satisfy dispute. the court failed to when there are matters in The record given, requires opportunity Guideline which shows that sufficient parties opportunity object objections have an were in fact made. the defendant circumstances, inquiry out- of whether it was that, under the and affirmative recognition demonstrates statement factors. The by other weighed responsibility, from personal responded thus require spe- more certain Guidelines govern- raised the issue directly to determinations, as the factual such cific occasions on two have stated ment. We money in- drugs, amount quantity it is relevant crime, dangerous or whether a volved voluntarily did not bility that the defendant discharged. used or weapon was illegal conduct or sur- her his or terminate require the same exactitude should not the arrest. before render to authorities gen- sentencing judge who makes this 182, 187 Nunley, inquiry finding require as we eralized Thomp- Cir.1989); on the more applying Guidelines based Cir.1989). 1381, 1384 son, As we specific factual determinations. sentencing judge spe- The comments sentence was not that Cardenas’ conclude raised objection cifically addressed appli- of an incorrect “imposed as a result and the contents sentencing guidelines,” 18 cation of the The re- investigation report. 3742(f)(1),we affirm the sentence U.S.C. § col- objections, and courtroom port, the court. imposed the district foundation, recog- the loquy demonstrate BRIGHT, Judge, Circuit Senior sup- decisions, necessary to by our nized dissenting. judge, who of the district the decision port this position to evaluate unique was in a I dissent. under require more

issue. should case, and defense counsel In this both 3E1.1. section offi- disputed probation the prosecutor the inves- deny to a It is also true cer’s recommendation statements of re- sentencing to Cardenas’ for tigation refers reduction indi- belonged probation to another recom- sponsibility. The officer that the firearm (1) carry it. In the two him to the reasons: who mended denial vidual forced voluntarily surrender hearing, counsel stat- sentencing Cardenas’ failure (2) and this issue with discussed commission that she had after ed else, someone one assertion that they it was not had decided Cardenas’ Guerra, gun coerced theory. The owned prevail on this Carlos possible it. carrying into creates him these statements dispute failure to for the determination foundation additional objections, the Notwithstanding joint judge. by the district “finding” on only court’s district responsibility occurred after some addi to make appropriate It is following de- imposition sentence— The sen point. at this tional observations clarifi- request for specific counsel’s fense case tencing judge’s determination cation: Admittedly, summarily stated. counsel]: MS. SCHOOLY [defense are not a model of sentencing procedures Honor, agreeing with you then are Your clarity. The precision or not receive probation that he does clearly identify the found to be facts should responsibility? ance for ap the basis for specify determinative That is correct. THE COURT: sentencing plying the Guidelines above Transcript In this the district at 8. The hearing Sentencing or order. is our review greatly aided “finding” on court could have Rules of Crimi- findings. Never Federal specific making more insufficient. Sen- States here is the United theless, the record suffi Procedure and nal we believe courts require district tencing Guidelines ciently to reveal foundation clear imposing disputed factors and there sentencing judge’s ruling resolve before occurred fact as sentence, not after justifying reversal. fore, is no error there 32(c)(3)(D); United Fed.R.Crim.P. 3E1.1 here. distinguish important section It is Commission, Guidelines generalized is States Manual, (backg’d) & nied the very reduction because of the be- (Nov. 1987) (amended 1989) resulting havior in Cardenas’ arrest. In [hereinafter Further, view, my it remains unclear prior defendant’s conduct U.S.S.G.]. colloquy from the above improper whether the dis arrest constitutes an basis for adopted probation trict court denying officer’s credit for findings factual agreed as its own or with officer’s ultimate conclu Furthermore, both defense counsel and ambiguity impermissible sion. Such un prosecutor disputed the relevance of 32(c)(3)(D). der Rule See United Cardenas’ contention that Guerra owned Hamilton, 794 F.2d Cir. weapon and forced Cardenas to hold it. 1986); Petitto, 767 F.2d potentially comprised Because these facts (9th Cir.1985). 609-10 important factor in the deter addition, 32(c)(2)(D) Fed.R.Crim.P. re mination, required U.S.S.G. 6A1.3 the dis quires disputes courts to resolve over al explicitly trict court to resolve the leged presen- factual inaccuracies of their relevance. United States v. Cf. explicitly forego tence or to the use Palta, (2d Cir.1989) 880 F.2d 640-41 of such in sentencing. information Poor (requiring finding as to gun relevance of Thunder v. United 810 F.2d car); found in defendant’s United States v. (8th Cir.1987); see also United States Burch, (5th Cir.1989) 767-68 Anderson, (requiring finding appropriateness as to Cir.1989) curiam) (per (requiring district computing offense level based on total dispute). to resolve critical factual drugs crime). Indeed, found at scene of requirement

This extends to inaccurate fac findings such necessary protect tual inferences which could be drawn from right appeal defendant’s based on incor facts, undisputed Gomez, United v. States application rect of the Sentencing Guide 453, (3d Cir.1987), 831 F.2d 455-57 3742(a)(2) (1988). lines under 18 U.S.C. - at reasonable, least when such inferences are Palta, 641; Burch, See 880 F.2d at 873 Jones, United v. 856 States F.2d at 767. cf. (11th Cir.1988) (findings not re Moreover, neither the district court nor quired inferences), for far-fetched and ma probation explicitly officer ever found determination, terial to the sentencing cf. that Cardenas’ claim of coercion lacked Poor Thunder v. United 810 F.2d Hamilton, credibility. 794 F.2d at 1347 Cf. (trial at 825-26 court need not correct ev (requiring finding reliability as to of dis- ery PSI). objectionable nuance in puted fact, allegations). presen- At for this defense report suggests contrary tence disputed probation counsel officer’s in- actually Obviously, the case.1 had Carde- ference that Cardenas’ failure to immedi- mitigate nas fabricated this account to his ately surrender during himself the heat role, properly district court could have police break-in indicated that Cardenas accepting responsi- denied the reduction for accept responsibility had failed to majority free, however, his not criminal judge’s only conduct. The district negative to draw these inferences of its response argument to this was that Carde- support own accord to the district court’s nas “should not have been under that conclusory situa- result. See United States response Blanco, tion.” The court’s (3d Cir.1989); not failed factor, to resolve this material Arefi, suggested (2d Cir.1988).2 also judge that the district de- Guidelines, furnishing suggesting 1. Under the impeded a material that the defendant or ob- justice." during presentence structed investigation falsehood justice. constitutes obstruction of U.S.S.G. Significantly, specific finding 2. absent a 3C1.1, (n.l(e)). Despite this con- credibility, lacked his statement sideration, however, officer's re- mitigated culpability, aggra- should have port explicitly states: “There is no information coercion, vated it. This claim of uncontradicted rectors; Acheson, Finally, prosecutor, objecting Gerald Member of explicitly Directors; investigation, as- Hartman, the Board of Cleve M.D., positive admissions serted Member of the Board of Di rectors; Bradley, guilt and his offer to assist Government Lucinda as Chief Ex investigations outweighed negative im- Region ecutive Officer of Great Plains Center, any momentary lapse at the time of individually; pact of al Medical Neither the nor employees arrest. other unknown of the Great issue. Regional Center; the district court addressed this Plains Medical Ket Inc.; Hospital Corporation chum must assume America, Appellees. application of the responsibility for correct Yellow see United States v. No. 89-1482. Cir.1989), Earrings, 891 Appeals, United States Court of to do so in this case. but failed Eighth Circuit. I Accordingly, would vacate Cardenas’ Submitted Nov. 1989. this case to the dis- sentence and remand Decided Feb. judge a resolution of the factual trict legal and for such further hear- issues ing might appropriate. be ABBOTT, Appellant, D.

William GALE, A. Member of the Board of

John

Directors; Hill, Carroll Member of the Directors; Honerman,

Board of Merle Directors; the Board of

Member of Kirkman, Member

James Board Directors; Klemm, Member of Rose Directors;

the Board Robert

McChesney, Secretary/Treasurer Directors; Phares,

Board of Bob Chair Directors,

man of the Board of M.D.,

individually; Shepherd Dell Directors; of the Board of

Member Hipp, Member of the Board of

Earl

Directors; Lamberty, Lee Member of Directors; Conell, Gary

the Board of

M.D., Di Member of the Board of Sorensen, M.D.,

rectors; Mark Member Directors; Tay Bernie

of the Board of

lor, M.D., Member of the Board of Di if, here, record, they ap justment suggests played a in sentence even that Cardenas complete & parently lesser role in the see U.S.S.G. 3B1.2 failed to constitute a defense. comment, (backg’d), and acted under a threat of Cheape, injury, physical Such see U.S.S.G. 5K2.12. (3d 1989). Cir. factors, true, indicate a downward ad- would

Case Details

Case Name: United States v. Miguel Cardenas

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 13, 1990

Citation: 896 F.2d 317

Docket Number: 89-1291

Court Abbreviation: 8th Cir.