U.S. v. Lomeli

• Decision Date: 25 February 2010
• Docket Number: No. 09-1366.,09-1366.
• Parties: UNITED STATES of America, Appellee, v. Dino LOMELI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

596 F.3d 496

UNITED STATES of America, Appellee, v. Dino LOMELI, Appellant.

No. 09-1366.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2009.

Filed: February 25, 2010.

Jonathan Hammond, argued, Cedar Rapids, IA, for appellant.

Patrick J. Reinert, AUSA, argued, Cedar Rapids, IA, for appellee.

Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

In 2004, Dino Lomeli, a citizen of Mexico, was arrested in Mexico and extradited to the United States to stand trial for murder in Texas state court and conspiracy in the Northern District of Iowa. After pleading guilty to the Texas murder charge, Lomeli pled guilty to conspiracy to launder money and conspiracy to distribute 100 kilograms or more of marijuana and 500 grams or more of cocaine. The district court¹ sentenced Lomeli to 235 months imprisonment, to run consecutively to his Texas sentence. We affirm.

I.

Lomeli was charged with the 1997 murder of Amy McKeever in Texas state court. Additionally, Lomeli was charged in federal court with conspiring to transport marijuana and cocaine from Corpus Christi, Texas, to Cedar Rapids, Iowa, from 1994 to 1996. Lomeli used his auto repair shop in Corpus Christi, Texas, to load automobiles with marijuana, which would then be driven to Cedar Rapids, Iowa, for distribution. Drug proceeds would then be sent back to Lomeli via Western Union, couriers, and U.S. Postal Service money orders.

Before he could be arrested for the murder of McKeever or for the instant conspiracy charges, Lomeli fled to Mexico. He remained in Mexico until 2004, when he was arrested and extradited to the United States pursuant to the extradition treaty between the United States and Mexico. See Extradition Treaty between the United States of America and the United Mexican States, May 4, 1978, 31 U.S.T. 5059 ("the U.S.-Mexico Extradition Treaty" or "the treaty").

Lomeli pled guilty to the Texas murder charge and was sentenced to 30 years imprisonment. While serving this sentence, Lomeli was arrested and transported to the Northern District of Iowa for trial on the instant conspiracy offenses. In April 2008, Lomeli pled guilty to conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h), and conspiracy to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), and 846.

Lomeli's Presentence Investigation Report (PSR) found him to have a base offense level of 30, coupled with a four-level increase for role in the offense and a three-level reduction for acceptance of responsibility. This left Lomeli with an adjusted offense level of 31. Lomeli had a Category VI criminal history due to his Texas murder conviction as well as previous convictions for possession with intent to distribute marijuana, possession of drug proceeds, driving while intoxicated, criminal mischief, causing bodily injury, and reckless driving.

Lomeli's advisory Guidelines sentencing range was 188-235 months imprisonment. At the sentencing hearing, the district court sentenced Lomeli to 235 months imprisonment on each count, to run concurrently with each other but consecutively to the undischarged portion of his 30-year Texas murder sentence. In sentencing Lomeli, the district court rejected the argument that it was violating the U.S.-Mexico Extradition Treaty by considering Lomeli's criminal history in determining his sentence. The district court also provided an alternative sentence:

If the computation of the criminal history under the advisory guidelines is found to violate the Treaty of Extradition with Mexico, the Court would still impose the very same sentence after considering the statutory factors at 18 USC 3553(a), and for the same reasons that I have previously stated: Drug quantity, criminal history, his leadership role, the fact that this is his second conviction involving drug distribution, and the fact that I find that he is a dangerous and threatening person. So that's my alternate sentence. Both sentences, the one I'm going to impose today and the alternate sentence, are going to be at the top of the range.

(Sent. Hr'g Tr. 21:24-22:12.)

II.

Lomeli appeals his sentence, arguing (1) that the doctrine of specialty contained in the U.S.-Mexico Extradition Treaty prohibits the court from taking into account his prior criminal history when sentencing him for the instant offenses, and (2) that the court erred in sentencing him to 235 months imprisonment on each count, and in ordering that these sentences be served consecutively to the undischarged portion of his 30-year Texas murder sentence. We address these issues in turn.

A.

We review questions of treaty interpretation and application de novo. See Smythe v. U.S. Parole Comm'n, 312 F.3d 383, 385 (8th Cir.2002) (per curiam); see also Silverman v. Silverman, 338 F.3d 886, 904 (8th Cir.2003) (en banc) (Heaney, J., dissenting) ("[T]he interpretation and application of treaty language is reviewed de novo. ..."). When interpreting a treaty, "[t]he clear import of treaty language controls unless `application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.'" Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (quoting Maximov v. United States, 373 U.S. 49, 54, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963)). This circuit has held that extradited individuals such as Lomeli have standing to raise any objection that the surrendering country might have raised to their prosecution. See Leighnor v. Turner, 884 F.2d 385, 388 (8th Cir.1989) (citing United States v. Thirion, 813 F.2d 146, 151 (8th Cir.1987)).

Article 17 of the U.S.-Mexico Extradition Treaty states, in relevant part:

1.A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted nor be extradited by that Party to a third State unless:

a) He has left the territory of the requesting Party after his extradition and has voluntarily returned to it;

b) He has not left the territory of the requesting Party within 60 days after being free to do so; or

c) The requested Party has given its consent to his detention, trial, punishment or extradition to a third State for an offense other than that for which the extradition was granted.

U.S.-Mexico Extradition Treaty, supra, 31 U.S.T. at 5071 (emphasis added). Article 17 is an explicit recitation of a general rule of extradition known as the doctrine of specialty.² In general, the doctrine of specialty provides that "a defendant may be tried only for the offense for which he was delivered up by the asylum country." Thirion, 813 F.2d at 151. The doctrine dates back to the mid-1800s, but was first adopted by the Supreme Court in 1886. See Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of United States v. Rauscher, 34 Va. J. Int'l L. 71, 75, 80-85 (1993). In United States v. Rauscher, the Court held:

the weight of authority and of sound principle are in favor of the proposition that a person who has been brought within the jurisdiction of the court, by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.

119 U.S. 407, 430, 7 S.Ct. 234, 30 L.Ed. 425 (1886). The doctrine is now commonly included in many U.S. extradition treaties. See Semmelman, supra, at 76 ("All extradition treaties entered into by the United States since Rauscher have contained a specialty clause."); see also Restatement (Third) of the Foreign Relations Law of the United States § 477 (1987) (stating that the doctrine is included "[u]nder most international agreements, state laws, and state practice"). It "is based on principles of international comity and is designed to guarantee the surrendering nation that the extradited individual will not be subject to indiscriminate prosecution by the receiving government." Turner, 884 F.2d at 389 (citing Thirion, 813 F.2d at 151, 153); see also United States v. Lazarevich, 147 F.3d 1061, 1063 (9th Cir.1998) ("The doctrine of specialty embodies the principle of international comity: to protect its own citizens in prosecutions abroad, the United States guarantees that it will honor limitations placed on prosecutions in the United States." (quotation omitted)).

Lomeli argues that the district court's use of his past criminal history in determining his sentence constitutes a "punish[ment] ... for an offense other than that for which extradition has been granted," U.S.-Mexico Extradition Treaty, supra, 31 U.S.T. at 5071, and is thus a violation of the doctrine of specialty. Lomeli also cites portions of his extradition paperwork filed by the Mexican government, which provide:

Section 10, Subparagraph II of the International Extradition Law demands the requesting country's commitments that crimes committed prior to the extradition, omitted in the complaint as well as crimes not connected with the one specified in such complaint, shall not be subject to the process, not even as aggravating circumstances, unless the Defendant consents freely to be judged for such. ... This commitment is set forth in Section 17 of the Extradition Treaty between the United States of Mexico and the United States of America. ...

(Appellant's Br. Add. 31 (emphasis added).) According to Lomeli, "[t]here could be no clearer example of the use of a prior criminal record as an aggravating circumstance then computing a sentence on the United States Sentencing...