U.S. v. Cruzado-Laureano, 06-1815.

• Decision Date: 04 June 2008
• Docket Number: No. 06-1815.,06-1815.
• Citation: 527 F.3d 231
• Parties: UNITED STATES of America, Appellee, v. Juan M. CRUZADO-LAUREANO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

527 F.3d 231

UNITED STATES of America, Appellee, v. Juan M. CRUZADO-LAUREANO, Defendant, Appellant.

No. 06-1815.

United States Court of Appeals, First Circuit.

Heard November 8, 2007.

Decided June 4, 2008.

[527 F.3d 233

Alexander Zeno, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, BALDOCK,^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

In two prior appeals to this court, appellant Juan Manuel Cruzado-Laureano ("Cruzado") successfully raised claims that required remand to the district court for recalculation of his sentence. A third sentencing hearing was held in April 2006, nearly four years after Cruzado was convicted on corruption-related charges. He now attempts a new round of challenges to his sixty-three month term of imprisonment and the related imposition of restitution and a fine. Finding no merit in any of these claims, we affirm all aspects of his sentence.

I.

The factual background of appellant's crimes was fully detailed in our two prior opinions. See United States v. Cruzado-Laureano, 440 F.3d 44, 45 (1st Cir.2006) ("Cruzado II"); United States v. Cruzado-Laureano, 404 F.3d 470, 473-79 (1st Cir.2005) ("Cruzado I"). It suffices to say here that Cruzado, the former mayor of Vega Alta, Puerto Rico, was convicted by a jury in June 2002 on charges of embezzlement, extortion, money laundering and witness tampering stemming from conduct undertaken while he was in office, including demanding kickbacks on municipal contracts. The district court imposed a 63-month term of imprisonment and a $10,000 fine, and subsequently ordered Cruzado to pay restitution in the amount of $14,251.82.

In his first appeal, we rejected various challenges to his conviction, but remanded for resentencing because the district court had applied the wrong version of the Sentencing Guidelines. After a new calculation on remand, the court again imposed a 63-month term, which was the bottom of the new Guidelines range of 63-78 months, and reinstated the same fine and restitution amounts. See Cruzado II, 440 F.3d at 47. Cruzado filed a second appeal challenging the district court's application of several Guidelines provisions. We detected a single flaw — that the court erroneously had applied an enhancement for abuse of a position of public trust under U.S.S.G. § 3B1.3. Id. at 48-49. We therefore again remanded for resentencing, noting that "we do not intend to intimate that the length of the sentence should necessarily be changed." Id. at 50. We also stated that Cruzado's challenges to the district court's imposition of restitution, a fine and supervised release were "too perfunctory ... to permit us to evaluate the merits of those aspects of his punishment," citing our well established precedent that issues "`unaccompanied by some effort at developed argumentation[ ] are deemed waived,'" Id. at 47 n. 7 (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)).

A third sentencing hearing was held on April 26, 2006. Cruzado and the government agreed on the criminal history category (I) and the total base offense level (24), which resulted in a Guidelines range of 51 to 63 months of imprisonment. Cruzado argued at the hearing that the district court could reconsider all aspects of his sentence, including restitution, because the appeals court had not explicitly limited the remand to a reassessment of the correct term of imprisonment without the abuse-of-trust enhancement. He also sought to present witnesses to prove that he was "actually innocent," that he had been subject to malicious prosecution, and that there were no victims of his crime — and hence no need for restitution — because no loss had occurred. The district court determined that it could consider only the appropriate sentence within the applicable Guidelines range. It agreed, however, to hear character testimony from four witnesses, and it allowed Cruzado to submit the questions his counsel had planned to ask of those witnesses and the five additional witnesses he had wanted to call. At the conclusion of the hearing, the court again imposed a 63-month term and also re-imposed the same restitution ($14,251.82) and fine ($10,000).

Cruzado has once again appealed his sentence, raising five claims of error: (1) the district court improperly refused to conduct a de novo hearing; (2) even if a full de novo resentencing was barred, the court should have made new findings on the restitution and fine amounts because they are integral elements of every sentence; (3) the court impermissibly double-counted his lack of acceptance of responsibility; (4) appellant should have been allowed to present victim testimony in mitigation of his punishment; and (5) bias on the part of the sentencing judge denied appellant due process, requiring resentencing before a different judge. We briefly explain why each of these contentions fails.¹

II.

A. Scope of Remand/Restitution and Fine

Appellant argues that the district court improperly limited the scope of his latest sentencing hearing to a decision on the appropriate term of imprisonment within the recalculated Guidelines range, which was corrected from 63-78 months to 51-63 months. Cruzado asserts that resentencings after remand should be conducted as de novo proceedings and that his entire sentence — including the amount of restitution — was therefore open to reconsideration. Although some circuits do generally allow de novo resentencing on remand, see, e.g., United States v. Duso, 42 F.3d 365, 368 (6th Cir.1994); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991), the First Circuit does not. In United States v. Ticchiarelli, 171 F.3d 24 (1st Cir.1999), we held:

"[U]pon a resentencing occasioned by a remand, unless the court of appeals [has expressly directed otherwise], the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals' decision — whether by the reasoning or by the result."

Id. at 32 (quoting United States v. Whren, 111 F.3d 956, 960 (D.C.Cir.1997)).

Appellant acknowledges this precedent, which gives the panel remanding the case for resentencing the responsibility for altering the normal scope of the new sentencing hearing. Hence, he appears to concede that the issue of de novo resentencing is not, as a general principle, properly before us. See Naser Jewelers, Inc. v. Concord, 513 F.3d 27, 36 (1st Cir.2008) (noting that a subsequent panel lacks power to overrule the decision of an earlier panel). The issue is raised, he explains, to preserve it for en banc and Supreme Court review.

However, as a separate challenge, he contends that restitution and a fine are such "integral" parts of a sentence that, even in a remand limited to correcting the abuse-of-trust error, they are within the exception carved out in Ticchiarelli for matters "`made newly relevant by the court of appeals' decision.'" 171 F.3d at 32. In effect, he argues that whenever a court resentences a defendant, it must reconsider any related restitution and fine.

This attempt to avoid the holding in Ticchiarelli is unavailing in this case. Cruzado contested restitution at his second sentencing hearing and challenged both restitution and the fine in his prior appeal. However, as noted above, we deemed those challenges waived because the claims were inadequately developed. The need to correct the abuse-of-trust error has not given new merit to his opposition to those assessments. In this appeal, he argues that restitution was improper because no victim had a loss and that the fine was improper because he had no resources to pay it. These assertions are unrelated to the abuse-of-trust issue and had no relationship to the issue before the court on remand — the appropriate length of the sentence under the Guidelines. See, e.g., United States v. Elizondo, 475 F.3d 692, 697 (5th Cir.2007) (holding that a remand for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), did not re-open the issue of restitution).

Cruzado also suggests that, given the lower base offense level resulting from his second appeal, the district court should have considered imposing lower amounts of restitution and fine. However, defense counsel acknowledged at the sentencing hearing that the fine imposed, $10,000, was the lowest point of a range that went up to $500,000. The restitution order was based on specific findings of loss and not on Guidelines sentencing ranges. Because neither the amount of restitution nor the size of the fine was "`made newly relevant by the court of appeals' decision,'" appellant is not entitled to another opportunity to assert these claims. Ticchiarelli, 171 F.3d at 32 (quoting Whren, 111 F.3d at 960).

The district court therefore properly limited the scope of the latest sentencing hearing to consideration of the appropriate sentence within the applicable Guidelines range, and our review is likewise restricted to issues related to appellant's term of imprisonment.

B. Double Counting of Failure to Express Remorse

Appellant argues that the district court improperly considered his lack of remorse in deciding to re-impose a 63-month term of imprisonment, which had become the high end of the applicable Guidelines range after the court eliminated the erroneous two-level enhancement for abuse of trust. At his previous sentencing, 63 months was the low end of the applicable range. Appellant contends that using his lack of remorse to justify a high-end sentence amounted to impermissible double-counting because his refusal to admit guilt already was taken into account when he did not receive a decrease in offense level for acceptance of responsibility under U.S.S.G. § 3E1.1.

This contention also is foreclosed by...