U.S. v. Castillo-Roman

• Decision Date: 23 October 1985
• Docket Number: D,No. 85-2080,CASTILLO-ROMA,85-2080
• Citation: 774 F.2d 1280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adanefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1280

774 F.2d 1280

UNITED STATES of America, Plaintiff-Appellee, v. Adan CASTILLO-ROMAN, Defendant-Appellant.

No. 85-2080

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 23, 1985.

Majorie Meyers, Federal Public Defender, Roland E. Dahlin, II, Houston, Tex., for defendant-appellant.

James R. Gough, Jr., Susan L. Yarbrough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

OPINION

PER CURIAM.

This case is an appeal to review the adequacy of procedures followed by the district court in sentencing the defendant to four years in the custody of the Attorney General. Because we find that the appellant's sentencing did not rest on any factual inaccuracies, and that the district court did not materially err in conducting the sentencing hearing, we affirm and remand only to allow the district court to attach a copy of the sentencing transcript to the presentence report in compliance with Federal Rule of Criminal Procedure 32(c)(3)(D).

I

In June of 1984, the appellant Adan Castillo-Roman, along with Jose Cervantes-Martinez, Jose Ortegon-Ramirez and others, was arrested outside a Lucky 7 Supermarket in Houston, Texas. Several of the passengers in Castillo's vehicle were illegal aliens, having been transported earlier in the day to Houston from Laredo, Texas by Ortegon and Cervantes. The initial complaint indicated that the transaction involved the smuggling of nine Mexican Nationals. On August 2, 1984, however, pursuant to a plea agreement, Castillo, Ortegon, and Cervantes each pleaded guilty to only one count of illegally transporting an undocumented alien within the United States, in violation of 8 U.S.C. Sec. 1324(a)(2) and 18 U.S.C. Sec. 2.

After accepting the defendants' plea, the district court ordered the preparation of a presentence investigation report (PSI). In addition to personal data and the defense and prosecution's account of the Houston incident, Castillo's PSI indicated that he had been arrested previously for the transportation of illegal aliens in December of 1983. He had been deported, but not prosecuted for that offense. The PSI also contained a section entitled "Additional Information" that included the following comments:

An interview with the Immigration case agent reveals that prior to his arrest, Immigration officials had information that defendant Adan Castillo Roman was the head of the "Las Tejas" operations in Houston, Texas. This information was obtained through confidential sources, his telephone number being found during collateral arrests, and the seizure of his telephone records which revealed calls to the organizational heads in Nuevo Laredo, Mexico. Therefore, they rate him as the most culpable in this offense, while defendants Cervantes and Ortegon were labeled as "runners" and less culpable.

Castillo filed a motion to redact unfounded allegations contained in the presentence report pursuant to Federal Rule of Criminal Procedure 32(c)(3), requesting that the district court: (1) hold a hearing at which the government would be required to prove that he was the "Las Tejas" leader as indicated in his PSI; (2) not rely on that information when imposing his sentence; and (3) order that the information be stricken from his report. At Castillo's later sentencing hearing, the government responded to this motion by offering the testimony of Rex Burns, an Immigration Service Case Agent. Burns stated that the Immigration and Naturalization Service had obtained information that several phone calls had been made to suspected "Las Tejas" members in Nuevo, Mexico from a telephone registered to Rafeal Salgado at 1300 Wirth Road in Houston, Texas. He further stated that an individual named "Juan" was understood to be the "Las Tejas" organization leader, and that "Juan" was living at that address. He offered no testimony, however, to establish that Castillo was, in fact, "Juan" or that Castillo ever resided at 1300 Wirth Road in Houston, Texas.

Castillo responded to Burns' testimony by generally denying that he lived at the address stated; he provided no additional rebuttal evidence. Castillo also admitted his prior immigration arrest and deportation and further acknowledged that he had illegally reentered the United States and again had engaged in the illegal transportation of Mexican Nationals.

When imposing Castillo's sentence, the district court stated that it would "disregard the problem about the telephone [but would] consider the fact that [Castillo was] only a short time previously arrested on a similar offense." The court, however, did not rule on the motion to strike the disputed material from the PSI. The court then sentenced Castillo to four years in the custody of the Attorney General. After imposition of the sentence, the following exchange occurred between Castillo's counsel and the court:

MISS MEYERS: May I move that the challenged allegations be stricken?

THE COURT: I'm not going to strike anything. The defendant is entitled to a hearing before the parole board and at that time he can challenge all of these allegations. Also, the immigration service.

I haven't considered them in sentencing him. I considered his prior involvement in the recent past and his involvement in this case which appears to me he was the moving person in this situation and I am sure the board of pardons and parole, whenever it comes time to consider this defendant's case can inquire. He has a hearing then and the service can attempt to prove its allegation if the board thinks it is something that's going to effect [sic] their decision.

I think he's entitled to a hearing on it, if it's going to impair his right to early release.

MISS MEYERS: We ask that it be noted on the record.

THE COURT: It's all being taken down, but I don't believe in deleting matters from reports as a rule, unless someone can show me they are truly false. I don't know that they are false. Frankly, I don't think they are. I think they are very true, but I didn't consider them, but in case they are, he's entitled to have a hearing on them because they could have made a mistake. From this man's conduct in this case, as reflected by the report, and because of his prior involvement, I take everything he tells me with a grain of salt.

Castillo filed a timely Motion to Correct and/or Reduce Sentence pursuant to Federal Rule of Criminal Procedure 35. He contended that his sentence was disproportionately high when compared with other similarly situated defendants, and therefore it constituted cruel and unusual punishment. He also asserted that the district court's sentencing decision was improperly influenced by unsubstantiated information in his PSI contrary to Federal Rule of Criminal Procedure 32(c)(3)(D). Castillo's motion was denied on January 4, 1985. The district court, without stating reasons, denied the motion. We affirm.

II

Castillo's first contention on appeal is that "[t]he sentencing hearing was so infected with material irregularities, confusion, false assumptions, and misinformation that [he] was denied his right to due process." His argument is threefold. First, he claims that his four-year sentence was disproportionately high when compared with the sentences of his codefendants, Ortegon and Cervantes, or the sentences of other similarly situated defendants. To support this claim, Castillo indicates that Ortegon and Cervantes received only probation. He then cites statistics suggesting that in 1983, only 25.9% of all defendants convicted of immigration offenses, who had no prior convictions, received a prison sentence of more than six months. Second, he argues that although the court indicated that it would disregard the disputed information in his presentence report, it also stated that it believed the information to be true and thereby imposed a more severe sentence. Third, Castillo contends that the case should be remanded because the court denied his Rule 35 motion without explanation. We find these arguments unpersuasive.

The standards for challenging a sentence imposed by a district court are both clear and stringent. A sentence imposed within the statutory limits is generally not subject to appellate review. United States v. Tooker, 747 F.2d 975, 978 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985). A district court's decision concerning a Rule 35 motion will therefore be disturbed only for illegality or gross abuse of discretion. Id. Nevertheless, we will carefully scrutinize the sentencing process to assure that a defendant is not sentenced on the basis of invalid premises. Id. When such an issue is raised, however, it is the defendant's burden to demonstrate that his sentence was founded upon a tainted record. United States v. Lewis, 743 F.2d 1127, 1129 (5th Cir.1984). Relief will not be granted on the basis of a showing only that a presentence report contained factual inaccuracies or inappropriate information. Tooker, 747 F.2d at 978. In order to prevail, "a defendant must show that the information was materially inaccurate and that the judge relied on that information." Id. (emphasis in original). In the instant case, even if factual inaccuracies existed, Castillo has failed to show reliance. When imposing Castillo's sentence, the district court unequivocally stated that the allegedly incorrect information in his presentence report would not be considered. Instead, the district court stated that Castillo's sentence was predicated upon his previous arrest and subsequent disregard for immigration laws. This information was not inaccurate, and it was certainly a proper subject for consideration. See Horowitz v. Henderson, 514 F.2d 740, 741 n. 1 (5th Cir.1975).

In addition, Castillo's evidence fails to prove that his sentence was disproportionately long. Both the anecdotal evidence concerning his codefendants' sentences and sentencing statistics shown to the court are silent as to...