U.S. v. Garcia–robles

Decision Date10 May 2011
Docket NumberNo. 09–1980.,09–1980.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Julio C. GARCIA–ROBLES, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ARGUED: Todd A. Shanker, Federal Defender Office, Detroit, Michigan, for Appellant. Michael R. Mueller, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Todd A. Shanker, Rafael C. Villarruel, Federal Defender Office, Detroit, Michigan, for Appellant. Michael R. Mueller, Assistant United States Attorney, Detroit, Michigan, for Appellee.Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*

OPINION

GRIFFIN, Circuit Judge.

This is defendant Julio C. Garcia–Robles's second sentencing appeal. In our prior opinion, we vacated Garcia–Robles's sentence as procedurally unreasonable and remanded for resentencing in a general remand order. However, on remand, over defendant's objections, the district court resentenced defendant to the same sentence without holding a resentencing hearing. In this appeal, Garcia–Robles claims that his resentencing was procedurally unreasonable because he was denied his right to be present and allocute. We agree and hold that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute. We further hold that when a plenary resentencing hearing is held, the district court is required to state its reasons for the sentence “in open court.”

I.

In an April 2009 opinion, we summarized the relevant background facts as follows:

Garcia–Robles is a Mexican national. In 1997, Garcia–Robles was arrested in Utah with four grams of cocaine and pleaded guilty in state court to attempted possession with intent to distribute a controlled substance in the third degree and to providing false personal information to a police officer. He received a five-year suspended sentence for the first crime and was sentenced to 30 days in jail and 36 months of probation for the second. On December 4, 1997, Garcia–Robles was deported to Mexico. Following this deportation, Garcia–Robles illegally reentered the United States and was arrested in Utah again in 1999. Police stopped Garcia–Robles's car because it did not have a front license plate and found that he was driving under the influence and had three firearms in his vehicle. Garcia–Robles pleaded guilty in state court to purchase and possession of a dangerous weapon and to driving under the influence and was sentenced to 90 days in jail with 60 days suspended. After he served his state sentence, Garcia–Robles was charged in federal court with reentry of a deported alien. Garcia–Robles pleaded guilty and was sentenced to 46 months of incarceration and 36 months of supervised release. On September 18, 2002, Garcia–Robles was removed to Mexico.

* * * On March 8, 2007, law-enforcement officers stopped Garcia–Robles's car because it had expired license plate tabs. Garcia–Robles gave officers his name and told them that he was not present in the United States legally. Immigrations and Customs Enforcement identified Garcia–Robles and learned that he had been deported twice. Garcia–Robles was charged with and pleaded guilty to unlawful reentry after deportation after an aggravated felony in violation of 8 U.S.C. § 1326.

Before Garcia–Robles was sentenced, the government prepared a Presentence Report (“PSR”) that indicated a sentencing range of 30 to 37 months of imprisonment based on a total offense level of 17 and a criminal history category of III. Garcia–Robles did not object to anything contained in the PSR. At sentencing, Garcia–Robles's counsel detailed the difficult life that Garcia–Robles had led and asked the district court to grant him a variance and to sentence him to 24 months of imprisonment. The government asked the district court to sentence Garcia–Robles within the 30–37 month guidelines range.

After hearing argument from the parties, the district court announced a sentence of 96 months of incarceration—59 months longer than the guidelines maximum.... After imposing sentence on September 18, 2007, the district court informed the parties' counsel that it would issue a written opinion, and “if they disagree with any of the findings or conclusions contained in the Opinion, [they] may file objections to that Opinion within five days of today.” The day after the sentencing hearing, on September 19, 2007, the district court issued a written sentencing opinion.

* * *

After the September 19 opinion was filed, Garcia–Robles timely objected to the district court's sentence on September 26, 2007, and he filed his notice of appeal on September 28, 2007. Garcia–Robles objected on the grounds that the sentence was unduly severe and could not have taken the 18 U.S.C. § 3553(a) factors into account and to the fact that the district court imposed this significant variance without alerting the parties to its intent to do so. Additionally, Garcia–Robles explained that the district court had relied on unreliable facts and had taken other information from the PSR out of context. On October 3, 2007, although the district court found Garcia–Robles's objections to be timely, nonetheless the district court overruled these objections in a single paragraph opinion that summarized the case and concluded that [t]he Court has reviewed and considered [Garcia–Robles's] objections but adheres to the sentence of 96 months imposed on September 18, 2007.”

United States v. Garcia–Robles, 562 F.3d 763, 764–66 (6th Cir.2009) (internal citations omitted).

In the prior appeal, we held that Garcia–Robles's sentence was procedurally unreasonable. Specifically, we ruled that the district court lacked jurisdiction to decide Garcia–Robles's objections to his sentence because the judgment was entered and the claim of appeal filed:

Given the sequence of events in this case, Garcia–Robles was never afforded an opportunity meaningfully to respond to the district court's decision to impose an upward variance. The district court chose to issue a written sentencing opinion and to permit Garcia–Robles to object to his sentence after that opinion issued rather than to permit oral objections during the sentencing hearing. However, the district court failed actually to provide that opportunity when it entered judgment before Garcia–Robles's time to object had elapsed and when it failed to respond to Garcia–Robles's objections until after its jurisdiction was divested by Garcia–Robles's notice of appeal.... Because the district court had no jurisdiction to alter Garcia–Robles's sentence at the time it heard his objections to a greatly increased sentence, the district court failed to provide Garcia–Robles with an opportunity meaningfully to address the upward variance in his sentence.

Id. at 768. Accordingly, we vacated Garcia–Robles's sentence and remanded for resentencing.

Upon remand, the district court issued an “Order Regarding Remand,” directing the parties to submit updated objections to the September 19, 2007, sentencing opinion. Garcia–Robles filed several objections on May 15, 2009, one objection being that he was entitled to a resentencing hearing. The United States filed no objections.

On July 17, 2009, the district court issued an opinion sentencing Garcia–Robles to the same 96–month term of imprisonment. The court noted that it was unaware of any authority granting Garcia–Robles the right to a hearing upon remand for resentencing. This timely appeal followed.

II.

We review a district court's sentencing decision for reasonableness, United States v. Bates, 552 F.3d 472, 476 (6th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 166, 175 L.Ed.2d 105 (2009), which has both procedural and substantive components. United States v. Sedore, 512 F.3d 819, 822 (6th Cir.2008). The court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence[.] Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the sentence is procedurally sound, the court then considers the substantive reasonableness of the sentence under an abuse-of-discretion standard. Id.

Garcia–Robles's main contention on appeal is that his sentence is procedurally unreasonable because the district court failed to conduct a resentencing hearing. According to Garcia–Robles, this failure: (1) denied him his right to be present in violation of the Confrontation Clause, the Due Process Clause, and Rule 43 of the Federal Rules of Criminal Procedure; (2) denied him his right to allocute in violation of the Due Process Clause and Rule 32 of the Federal Rules of Criminal Procedure; (3) violated 18 U.S.C. § 3553(c), which requires a sentencing court to state the reasoning underlying a sentence “in open court; and (4) violated the terms of this court's mandate.

III.

It is beyond peradventure that a defendant has a right to be present and allocute at his sentencing, and that the reasons underlying the sentence must be stated “in open court.” Fed.R.Crim.P. 32, 43; 18 U.S.C. § 3553(c). Rule 32(i)(4) provides that [b]efore imposing sentence, the court must ... address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence[.] Rule 43(a) provides that “the defendant must be present at ... sentencing.” Finally, § 3553(c) provides that [t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.” (emphasis added).

Every circuit court to address the issue has held that when resentencing is directed pursuant to a general remand order, a defendant is entitled to be present...

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