U.S. v. Jaimes-Jaimes

• Decision Date: 04 May 2005
• Docket Number: No. 03-2871.,03-2871.
• Citation: 406 F.3d 845
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rene JAIMES-JAIMES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 845

406 F.3d 845

UNITED STATES of America, Plaintiff-Appellee, v. Rene JAIMES-JAIMES, Defendant-Appellant.

No. 03-2871.

United States Court of Appeals, Seventh Circuit.

Argued June 16, 2004.

Decided May 4, 2005.

Melvin K. Washington (argued), Michelle L. Jacobs, Office of United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, Retha Stotts (argued), Office of Federal Public Defender, Urbana, IL, for Defendant-Appellant.

Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

René Jaimes-Jaimes pleaded guilty to one count of being present in the United States unlawfully after having been deported, 8 U.S.C. § 1326(a). The parties in their written plea agreement, and the probation officer in her presentence report, all concurred that the sentencing court should increase the offense level by 16 levels because Jaimes (as he calls himself) previously had been convicted of a "crime of violence." See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court accepted that position and determined that Jaimes's total offense level was 21 and that his sentencing range was 70 to 87 months. The court sentenced him to 78 months' imprisonment. On appeal, however, Jaimes argues that the district court committed plain error by imposing the 16-level increase; Jaimes now contends that his prior offense is an "aggravated felony" but not a "crime of violence" under § 2L1.2, and so he should have been given only an eight-level increase. See U.S.S.G. § 2L1.2(b)(1)(C). The sentence imposed by the district court was indeed plainly erroneous, and we now vacate and remand for resentencing.

I. BACKGROUND

Jaimes was deported to Mexico in 2001, but in January 2003 he turned up in jail in Milwaukee, Wisconsin, after being arrested for a drug offense. Jaimes has several prior convictions, including a Wisconsin state conviction for "discharging a firearm into a vehicle or building," Wis. Stat. § 941.20(2)(a), an offense he concedes qualifies as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(F).

The offense guideline applicable to Jaimes's immigration violation was amended in November 2001 to provide that a prior conviction for an "aggravated felony" warrants an eight-level increase in offense level, but that a conviction for one of several types of more serious felonies warrants either a 12-level or a 16-level increase. See U.S.S.G. § 2L1.2(b)(1); United States v. Vargas-Garnica, 332 F.3d 471, 474 (7th Cir.2003). The previous guideline had provided that a conviction for any aggravated felony triggered a 16-level increase, whereas the Guidelines now provide that a defendant with a conviction for an aggravated felony receives an increase of between 8 and 16 levels depending on whether his conviction also meets the requirements for one of the higher increases. Vargas-Garnica, 332 F.3d at 474. In making the change, the Sentencing Commission observed that the previous system "sometimes result[ed] in disproportionate penalties," and thus it decided to impose "a more graduated sentencing enhancement ... depending on the seriousness of the prior aggravated felony and the dangerousness of the defendant." U.S.S.G., App. C, amend, 632 (effective Nov. 1, 2001). As relevant here, the Guidelines now provide that a 16-level increase is warranted if the defendant's prior conviction qualifies as a "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii).

The plea agreement recommended a 16-level increase because of the parties' assumption that Jaimes had incurred a "pre-deportation conviction of a crime of violence."¹ In the presentence report, the probation officer likewise recommended a 16-level increase for a crime of violence. At sentencing the district court read aloud the total offense level, criminal history score, and imprisonment range recommended in the presentence report and asked Jaimes's counsel, "[D]o you and your client accept those guidelines?" Counsel responded: "We do. However, we reserve the right and opportunity to argue for a departure, Your Honor."

II. ANALYSIS

A. Waiver versus forfeiture

We must first determine whether Jaimes waived or merely forfeited any challenge to the probation officer's recommendation that he receive a 16-level increase. Waiver is the intentional relinquishment of a known right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003). Forfeiture is the failure to timely assert a right. Olano, 507 U.S. at 733, 113 S.Ct. 1770; Jacques, 345 F.3d at 962. Waiver precludes appellate review, but forfeiture permits review for plain error. Olano, 507 U.S. at 733-34, 113 S.Ct. 1770; Jacques, 345 F.3d at 962.

The government contends that Jaimes waived his right to challenge the calculation of his sentence and directs our attention to United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). According to the government, we held in Staples that defense counsel's representations that he had discussed the presentence report with his client and that they had no objections constituted a waiver of a guidelines calculation included in the report because counsel's statements evidenced that the defendant knew at the time of sentencing that he could object to that particular sentencing calculation but affirmatively decided not to object. See id. Here, the government contends that when Jaimes's attorney told the district court at sentencing that he had no objections to the probation officer's calculation of the guideline range, Jaimes likewise waived any challenge to the sentencing calculation at issue in this appeal.

We do not read Staples as rigidly as the government urges. Although counsel's representations obviously are significant, a lawyer's statement at sentencing that the defendant does not object to anything in the presentence report does not inevitably constitute a waiver of the defendant's right to challenge on appeal any guideline calculation included in that report. See United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir.2001). We indeed have found waiver in circumstances where defense counsel made a representation at sentencing similar to the one Jaimes's counsel made to the district court here, see United States v. Martinez-Jimenez, 294 F.3d 921, 923 (7th Cir.2002); United States v. Richardson, 238 F.3d 837, 841 (7th Cir.2001); Staples, 202 F.3d at 995, but we do not read our cases as establishing an inflexible rule that every objection not raised at a sentencing hearing is waived.

The touchstone of waiver is a knowing and intentional decision. See United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001) ("Put another way, a forfeiture is an accidental or negligent omission ... while a waiver is the manifestation of an intentional choice not to assert the right."). There may be sound strategic reasons why a criminal defendant will elect to pursue one sentencing argument while also choosing to forego another, and when the defendant selects as a matter of strategy, he also waives those arguments he decided not to present. See id. (finding argument waived because failure to raise it in district court "was clearly a strategic decision rather than a mere oversight"); United States v. Si, 343 F.3d 1116, 1128 n. 3 (9th Cir.2003) (sentencing argument was waived where defendant did not object for "tactical reasons"); United States v. Joaquin, 326 F.3d 1287, 1291 (D.C.Cir.2003) (declining to find waiver where nothing suggested that defense counsel "made a conscious, strategic decision" not to object); United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir.1997) (defendant made a "calculated decision" not to object, and therefore waived argument); United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir.1995) (characterizing forfeiture as "a matter of oversight" and waiver as "a tactical matter").

But in this case we cannot conceive of any strategic reason for Jaimes not objecting to the extra eight-level increase in his offense level, and the government offers us no sound reason—indeed no reason at all—why Jaimes would have opted to bypass a challenge to the 16-level adjustment. We have previously suggested that an argument should be deemed forfeited rather than waived if finding waiver from an ambiguous record would compel the conclusion that counsel necessarily would have been deficient to advise the defendant not to object. See Richardson, 238 F.3d at 841. That is the case here, since the only plausible possibility—if the 16-level increase is indeed erroneous—is that Jaimes's attorney was deficient in electing not to challenge it. Defense counsel was not alone in his oversight, for no one involved with Jaimes's sentencing—including the Assistant United States Attorney who now so vigorously argues waiver, the probation officer, or even the district judge— appears to have recognized that Jaimes's prior offense might not be a "crime of violence."

We conclude that Jaimes's failure to object to the 16-level adjustment resulted from an oversight by defense counsel and was therefore "accidental rather than deliberate." Id. Waiver principles should be construed liberally in favor of the defendant, United States v. Sumner, 265 F.3d 532, 539 (7th Cir.2001); Cooper, 243 F.3d at 416; United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000), and there is nothing in the record before us to suggest that Jaimes had any idea that the 16-level increase might be erroneous. Forfeiture occurs because of neglect while waiver happens intentionally. See Sumner, 265 F.3d at 537. There is no indication that Jaimes intended to relinquish his right to be sentenced at the lower offense level, and we can conceive of no tactical reason why he would choose to be sentenced at a higher offense level. As we are left with the conclusion that Jaimes's failure to challenge the 16-level adjustment could have resulted only from an oversight by his attorney, we find...