U.S. v. Ronquillo

• Citation: 508 F.3d 744
• Decision Date: 20 November 2007
• Docket Number: No. 06-50991.,06-50991.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose RONQUILLO, a/k/a Daniel Jose Ortiz, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

508 F.3d 744

UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose RONQUILLO, a/k/a Daniel Jose Ortiz, Defendant-Appellant.

No. 06-50991.

United States Court of Appeals, Fifth Circuit.

November 20, 2007.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for U.S.

Alex A. Melendez, El Paso, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY,^* SMITH and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant-Appellant Juan Jose Ronquillo a/k/a Daniel Jose Ortiz ("Ronquillo") pleaded guilty to two crimes: (1) conspiracy to possess with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 846 and 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii); and (2) possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii). The District Court sentenced Ronquillo to the 60-month statutory minimum for each count to be served consecutively. Ronquillo appeals his consecutive sentences. Because the District Court did not commit plain error, we affirm.

I

Ronquillo (using the alias Daniel Jose Ortiz) was captured while fleeing from a residence in which drug task force officers found approximately 840 pounds of marijuana. He pleaded guilty to conspiracy to possess and distribute 100 or more kilograms of marijuana and possession with intent to distribute 100 or more kilograms of marijuana. At sentencing, the District Court adopted the Presentence Report ("PSR"). Ronquillo did not object. The PSR grouped the two counts in accordance with U.S.S.G. § 3D1.2(b) (2004). Based on the PSR, the District Court properly calculated that the total offense level was 23, the criminal history was category II, and the range of imprisonment was 60 to 63 months per count. The PSR also described Ronquillo's extensive history of arrests, failures to appear, and use of aliases, including:

In September 1994, Ronquillo (using the alias Oscar Ronquillo) was arrested and charged with possession of marijuana with intent to deliver. Ronquillo failed to appear, and a warrant issued.

In October 1997, Ronquillo (using the alias Juan Alejandro Ronquillo) was arrested and charged with possession of marijuana.

In June 1997, Ronquillo (using the alias Juan Alvarado Dominguez) was arrested and charged with driving while intoxicated. Ronquillo failed to appear, and a warrant issued.

In December 1997, Ronquillo (using the alias Juan Jose Ronquillo Dominguez) was arrested and charged with assault. Ronquillo failed to appear, and a warrant issued.

In January 1999, Ronquillo was arrested and charged with possession of cocaine with intent to deliver. Ronquillo failed to appear, and a warrant issued. Ronquillo pleaded guilty to the failure to appear charge and was sentenced to three years of probation. The possession of cocaine with intent to deliver charge was nolle prosecui.

In September 1999, Ronquillo (using the alias Joey Anthony Gallegos) was arrested for possession of marijuana with intent to deliver, simultaneous possession of drugs and firearms, possession of drug paraphernalia, and being a felon in possession of a firearm. Ronquillo failed to appear, and a warrant issued.

Apart from the January 1999 possession of cocaine with intent to deliver charge and the related failure to appear charge, all of these charges and warrants were pending at the time of the sentencing in this case.¹

In determining Ronquillo's sentence, the District Court stated that it had "reviewed the investigatory reports in this case, all of them" and considered "the information in the PSR" and "the factors listed in 18 U.S.C. § 3553(a)." The District Court also "note[d]" that, based on Ronquillo's failure to cooperate with the government by providing "names" and "information" based on his lengthy involvement "in the business of selling drugs," it doubted whether Ronquillo was repentant for his crimes. Finally, the District Court considered certain letters that were written on Ronquillo's behalf. In particular, the District Court found a "very telling statement" in a letter received from Ronquillo's parents, which was then read into the record:

The more [Ronquillo] was able to escape and dodge the law, the easier it became to continue in it, that is in the law-breaking acts that he was involved with. Even though we advised him, he did not heed the advice and ended up as he is now.

The District Court observed that the parents' letter "sums up the past five years of [Ronquillo's] life": he "basically lived a life of crime for five years until [he] was caught in '04, plain and simple." Immediately after reading the parents' letter, the District Court sentenced Ronquillo to 60-month sentences for each count to be served consecutively. Ronquillo did not object.

II

Where, as here, the defendant fails to object to his sentence during sentencing, we review the District Court's sentencing decision for plain error.² See United States v. Lewis, 412 F.3d 614, 615-16 (5th Cir.2005) (holding that the plain error standard applies when a defendant fails to object to his sentence); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005) (holding that the plain error standard applies when a defendant fails to object to a sentencing enhancement) (citations omitted); United States v. Mares, 402 F.3d 511, 513 (5th Cir.2005) (holding that the plain error standard applies when a defendant first raises an issue as to the legality of his sentence on appeal) (citations omitted); see also Fed.R.Crim.P. 52(b). We apply the same plain error standard of review when a defendant, like Ronquillo, fails to object to the reasonableness of his sentence. See United States v. Peltier, No. 05-30440, 2007 WL 3076932, at *2, 505 F.3d 389, 391 (5th Cir. Oct.23, 2007). We find plain error only when "(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights." Villegas, 404 F.3d at 358 (citations omitted). If all three conditions are met, we have "discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 358-59 (emphasis added) (internal quotations omitted).

A

Ronquillo's first argument is that the District Court violated his Fifth Amendment right against self-incrimination as well as the United States Sentencing Guidelines ("Guidelines") by sentencing him to consecutive, rather than concurrent, sentences as punishment for failing to cooperate with the government. See Mitchell v. United States, 526 U.S. 314, 330, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999); U.S.S.G. § 5K1.2 (2004) ("A defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor"). Specifically, Ronquillo argues that the District Court drew an unconstitutional adverse inference against him based on his failure to provide "names" and "information" to the government and that this adverse inference "played a major role" in the sentencing decision. We disagree.

In Mitchell, the Supreme Court held that a sentencing court may not draw an adverse inference from a defendant's silence "in determining the facts of the offense" because to do so "impose[s] an impermissible burden on the exercise of the constitutional right against compelled self-incrimination." 526 U.S. at 330, 119 S.Ct. 1307. The defendant in Mitchell pleaded guilty to one count of conspiracy to distribute cocaine and three counts of distributing cocaine. Id. at 317, 119 S.Ct. 1307. However, she reserved the right to contest the drug quantity attributable to her. Id. At sentencing, a co-conspirator testified as to the amount of cocaine that the defendant sold. Id. at 318, 119 S.Ct. 1307. The defendant neither put on evidence nor testified to rebut this testimony. Id. at 319, 119 S.Ct. 1307. The sentencing judge credited the co-conspirator's testimony because the defendant did "not testify[ ] to the contrary." Id. Indeed, the judge specifically told the defendant:

I held it against you that you didn't come forward today and tell me that you really only did this a couple of times . . . . I'm taking the position that you should come forward and explain your side of this issue.

Id. Thus, based on the defendant's silence, the sentencing judge drew the adverse inference that her co-conspirator's testimony about drug quantity was undisputed and sentenced the defendant accordingly. See id. The Supreme Court reversed and remanded holding that the adverse inference violated the defendant's Fifth Amendment right against compelled self-incrimination because the quantity of drugs was a fact of the offense: drug quantity determined the specific offense and the corresponding sentence. See id. at 330, 119 S.Ct. 1307.

Mitchell is inapplicable to the sentencing decision in this case because "the facts of the offense" were based entirely on Ronquillo's admissions, not on any adverse inference drawn by the District Court. See id. at 330, 119 S.Ct. 1307. Ronquillo, unlike the defendant in Mitchell, admitted all the predicate facts of his offenses, including the drug quantity alleged. Thus, the District Court did not need to draw any inference concerning a fact of Ronquillo's offense. Indeed, the District Court in this case did not draw any inference at all. It merely "note[d]" its doubt concerning whether Ronquillo was repentant for his crime based on Ronquillo's failure to cooperate with the authorities. This is a far cry from the judge in Mitchell who "held it against" the defendant when she did not put on evidence or testify to contest the drug quantity at issue — a fact that bore directly and categorically on her sentence. See id. at 319, 119 S.Ct. 1307. The District Court did not draw an adverse inference based on Ronquillo's failure to cooperate with authorities "in determining the...