U.S. v. Leyva, SOTELO-GAME
| Decision Date | 12 February 1996 |
| Docket Number | Nos. 95-10039,D,QUIJADA-CASTILL,95-10041 and 95-10043,SOTELO-GAME,s. 95-10039 |
| Citation | 83 F.3d 429 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Daniel LEYVA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Manuel Enriqueefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose Luisefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: REINHARDT, THOMPSON and O'SCANNLAIN, Circuit Judges.
By memorandum disposition we vacated the original sentences imposed by the district court on defendants Leyva, Sotelo-Gamez, and Quijada-Castillo, because the court failed to adequately justify its downward departures from the guidelines. The district court then resentenced the defendants, and they now appeal.
We affirm the sentences as to all three defendants.
Leyva contends that, contrary to the recommendation in the presentence report, he was entitled to a downward departure because he was a minor participant. He argues the district court's comments at the resentencing hearing are insufficient to constitute the findings required by Rule 32(c)(1) of the Federal Rules of Criminal Procedure.
The district court's comments at the resentencing hearing must be read in the context of what we said in our prior memorandum disposition. In that disposition, we discussed the district court's comments at the first sentencing hearing. At that hearing, the district court stated:
The court makes a downward departure based on the court's feeling that the minimum mandatory is exceedingly high and would do nothing to act as a deterrent to the citizens of the Republic of Mexico because of the socioeconomic conditions.
The defendants requested a downward departure, arguing they were merely "mules." The district court responded that it was not departing downward "solely for that reason." We said this indicated the district court might have based its downward departure, in part, on the defendants' mule status. There was no finding in the record as to this, however, and we said "a departure for mule status cannot be sustained on this record." United States v. Leyva, No. 95-10039, Mem.Disp., p. 6, filed Feb. 12, 1996.
With regard to the district court's reliance on socioeconomic conditions in Mexico, we commented in our prior memorandum disposition that "[g]enerally socioeconomic circumstances are 'not relevant in the determination of a sentence.' " Id., citing U.S.S.G. § 5H1.10 (1992). We also discussed United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir.1992), and said that in that case "poverty along the border was considered in a downward departure for a 'mule.' " Leyva, Mem.Disp. at p. 6, citing Valdez-Gonzalez, 957 F.2d at 649 n. 3 (emphasis added).
Our prior memorandum disposition indicated that in deciding whether the defendants should be given a downward departure for their role in the offense, the district court should determine whether they were in fact "mules". It was in this posture that the case was returned to the district court.
At the resentencing hearing, Leyva's counsel argued Leyva was a minor participant, a "mule," rather than a major participant, and asked the district court to depart downward because of Leyva's minor role. The court responded:
I don't think, given the unpublished memorandum opinion which is the law of this case, that--given to us by the Ninth Circuit, that I can make a finding that Mr. Leyva or either of the other defendants were the mules, or entitled to a Valdez-Gonzalez departure.
Reading these comments by the district court in the context of our prior memorandum disposition, we are satisfied the comments reflect the district court's finding that the defendants were not mules and were not entitled to a downward departure which Valdez-Gonzalez indicated, by dicta, might be appropriate for a "mule" driven to crime by poverty along the Mexican border.
We conclude the district court complied with Rule 32(c)(1).
At resentencing the district court failed to confirm that Leyva and his counsel had an opportunity to read and discuss the presentence report as required by Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure. 2 Leyva contends this is error, and requires a remand for resentencing. We disagree.
When a sentencing judge's failure to comply with Rule 32(c)(3)(A) prejudices the defendant, remand is required. United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir.1994), cert. denied, 115 S.Ct. 953 (1995). When it is clear that no prejudice resulted from the error, the district court's error is harmless. Id.
At the original sentencing the district court complied with Rule 32(c)(3)(A). Nothing in the presentence report changed between Leyva's original sentence and his resentencing. At resentencing the district court did not renew its Rule 32(c)(3)(A) interrogatory. Assuming this omission is error, it is clearly harmless error. Moreover, here, as in Davila-Escovedo, the "appellant has not only raised no claim of prejudice, but he has also made no affirmative allegation that he failed to read the report." Id. For the foregoing reasons, the district court's failure to comply with Rule 32(a)(1)(A) at resentencing was harmless error, if error at all.
Leyva argues that despite the district court's impression to the contrary, it was free to consider, during his resentencing, mitigating circumstances which were not presented at his original sentencing. Leyva, however, fails to assert that any mitigating factors were presented at his resentencing or that such factors even exist. Any error in failing to consider mitigating circumstances at the resentencing, therefore, was harmless and is not a ground for remand.
For the foregoing reasons, Leyva's sentence is affirmed.
Jose Luis Quijada-Castillo, like Leyva, contends the district court failed to comply with Rule 32(c)(1) by failing to rule on Quijada-Castillo's objections to his presentence report. At the resentencing hearing, counsel for Quijada-Castillo argued that Quijada-Castillo was nothing more than a "mule," that his conduct was aberrant behavior, and that Quijada-Castillo's dire socioeconomic situation drove him to desperate acts. Counsel concluded:
I think the Court of Appeals' decision stated that if the court were to make these findings, the court could consider a downward departure, and I would ask the court to do so.
The court replied:
I just don't think, Mr. Gonzalez (sic), that I can make those findings in this record, and I cannot find he was a mule, given the findings of this case.
The court thus explicitly made findings on the challenged matters in compliance with Rule 32(c)(1).
Quijada-Castillo argues the district court mistakenly believed it was prevented as a matter of law from departing downward. We disagree.
In our previous memorandum disposition, we noted the possibility that the downward departure was based on defendants' "mule" status. The presentence report recommended a downward departure for both Sotelo-Gamez and Quijada-Castillo based on United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir.1992). Although we questioned the applicability of Valdez-Gonzalez, we ultimately vacated and remanded the matter for resentencing because "without findings, and an explanation of why the Commission's provisions for downward adjustments for minor and minimal roles would not control, a departure for mule status cannot be sustained on this record."
At resentencing, the district court rejected Quijada-Castillo's counsel's request for a downward departure because the court could not make the necessary findings to support the defendants' "mule" status. The court said:
I just don't think, Mr. Gonzalez (sic), that I can make those findings in this record, and I cannot find he was a mule, given the findings in this case. And I feel that--while I've looked at this case very closely and tried to understand the Court of Appeals opinion and its apparent criticism of the Valdez-Gonzalez case--at least with respect to its application in terms of the multiple defendants--that I cannot make a departure in this case.
Similarly, in response to Leyva's counsel's argument that Leyva was merely a "mule," the district court responded:
All right. I don't think, given the unpublished memorandum opinion which is the law of this case, that--given to us by the Ninth Circuit, that I can make a finding that Mr. Leyva, or either of the other defendants were the mules, or entitled to a Valdez-Gonzalez departure. (Emphasis added).
The district court did not assert that a defendant's status as a "mule" could not provide a legal basis for departure. Rather, the district court concluded that it could not make the factual findings that defendants were "mules." In addition to the court's inability to make the factual finding that defendants were "mules," the court also concluded it could not make findings sufficient to enable it to make a Valdez-Gonzalez departure. There was nothing in what the court said that implies the court felt it was precluded from departing downward. Rather, on the facts of the case, the district court simply could not make the findings necessary to justify a departure.
"Since the judge's decision does not indicate that he believed he was prevented from departing downward as a matter of law, the decision is discretionary and thus not reviewable." United States v. Pinto, 48 F.3d 384, 389 (9th Cir.1994), cert. denied, 116 S.Ct. 125 (1995).
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