640 F.3d 159 (6th Cir. 2011), 09-1980, United States v. Garcia-Robles

Docket Nº:09-1980.
Citation:640 F.3d 159
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Julio C. GARCIA-ROBLES, Defendant-Appellant.
Attorney:Todd A. Shanker, Federal Defender Office, Detroit, Michigan, for Appellant. Michael R. Mueller, Assistant United States Attorney, Detroit, Michigan, for Appellee. Todd A. Shanker, Rafael C. Villarruel, Federal Defender Office, Detroit, Michigan, for Appellant. Michael R. Mueller, Assistant United...
Judge Panel:Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.[*]
Case Date:May 10, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 159

640 F.3d 159 (6th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Julio C. GARCIA-ROBLES, Defendant-Appellant.

No. 09-1980.

United States Court of Appeals, Sixth Circuit.

May 10, 2011

Argued: Dec. 8, 2010.

Page 160

[Copyrighted Material Omitted]

Page 161

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.

* * *

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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

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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...

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