U.S. v. Marmolejo
| Decision Date | 21 April 1998 |
| Docket Number | No. 97-20378,97-20378 |
| Citation | 139 F.3d 528 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Reynaldo MARMOLEJO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James L. Powers, Paula Camille Offenhauser, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.
Roland E. Dahlin, II, Fed. Pub. Defender, Thomas S. Berg and Renata Ann Gowie Asst. Fed. Pub. Defenders, Houston, TX, for Marmolejo.
Appeals from the United States District Court for the Southern District of Texas.
Before JONES and SMITH, Circuit Judges, and SHAW, * District Judge.
Reynaldo Marmolejo challenges his resentencing following remand, arguing that the district court erred in refusing to permit him to offer testimony on questions of acceptance of responsibility and obstruction of justice. We affirm.
Reynaldo Marmolejo was charged in a superseding indictment with conspiracy to possess with intent to distribute cocaine and marijuana, conspiracy to launder monetary instruments, and accepting bribes as a public official. A jury found Marmolejo guilty of all three counts.
The presentence investigation report found that Marmolejo had transported 200 kilograms of cocaine, setting a base offense level of 38. The report recommended increasing the base level because Marmolejo carried a gun during the transportation of drugs, abused his position of public trust as an agent of the Immigration and Naturalization Service, and obstructed justice by trying to persuade a co-defendant and fellow INS agent to lie and feign mental illness to suppress a prior confession.
Marmolejo objected to the enhancements based on obstruction of justice and possession of a firearm. The defendant further argued that he was entitled to a reduction in the base offense level because he admitted his involvement in the crimes to the probation officer and he was only a minor participant in the conspiracy.
At the defendant's original sentencing, the district judge declined to enhance Marmolejo's sentence for possession of a firearm because he found that the defendant did not display or brandish the firearm, and reduced the defendant's sentence for acceptance of responsibility and minor participation. The district judge further found that Marmolejo obstructed justice and abused his position of trust and enhanced his sentence based on those provisions.
The defendant appealed his convictions on the basis that they were not supported by sufficient evidence. The Government cross appealed the sentence arguing that the district court erred in failing to enhance Marmolejo's sentence for possession of a firearm and for reducing the defendant's sentence upon a finding of acceptance of responsibility and being a minor participant.
In the first appeal, this court rejected the defendant's contentions and found merit in the Government's appeal, vacating Marmolejo's sentence and remanding it to the district court for resentencing consistent with its opinion. United States v. Marmolejo, 106 F.3d 1213 (5th Cir.1997).
Specifically, this court held that Marmolejo had failed to carry his burden of showing that it was clearly improbable that the weapon he carried in connection with his duties as an INS agent was not connected with the drug-trafficking crime. Because Marmolejo had put the Government to its burden of proof by going to trial, by denying the essential factual element of guilt, and because Marmolejo's sentence had been enhanced for obstruction of justice, the court held that the district court had erred in adjusting Marmolejo's offense level downward for acceptance of responsibility. Finally, this court held that the district court erred in reducing Marmolejo's offense level as a minor participant under U.S.S.G. § 3B1.2(b).
At the resentencing hearing after remand, the defendant sought to present evidence on the questions of acceptance of responsibility and obstruction of justice. Marmolejo also stated that he wanted to present evidence to demonstrate his minor role in the offense. He proffered his own testimony, in which he claimed he had not encouraged his co-defendant to feign mental illness.
The district court refused to hear evidence on the question of obstruction of justice because its original finding on that issue had not been challenged by either party on appeal. Also, the district court found the additional evidence offered on the question of acceptance of responsibility would not make a difference with the court because of statements previously made by the defendant to the court during his initial sentencing. The district judge stated that there was enough evidence standing alone to find acceptance of responsibility was not appropriate.
The sole issue on appeal before this court involves the determination of the scope of this court's remand order for resentencing.
Marmolejo argues that the district judge erred at the resentencing hearing following remand when he refused to hear new evidence presented on the issue of acceptance of responsibility and obstruction of justice. The defendant asserts that a resentencing hearing should be de novo unless the court of appeals expressly and specifically limits the scope of the remand.
Marmolejo submits that because this court did not specifically limit the scope of its remand order, the resentencing following remand should be de novo, requiring the district court to hear all evidence offered regarding the defendant's sentencing regardless of whether those issues were challenged on appeal.
The issue involving the scope of a remand for resentencing has caused a significant split in the circuits. The appellant has cited the majority view among the circuits that sentencing following remand should be conducted de novo and is not limited only to the reasons for the remand. United States v. Smith, 116 F.3d 857 (10th Cir.1997); United States v. Jennings, 83 F.3d 145 (6th Cir.1996); United States v. Atehortva, 69 F.3d 679 (2d Cir.1995); United States v. Ponce, 51 F.3d 820 (9th Cir.1995); United States v. Cornelius, 968 F.2d 703 (8th Cir.1992).
The general proposition regarding the scope of this court's remand order has never been addressed entirely by this court. This court has held that once an issue is remanded for resentencing, all new matter relevant to that issue appealed, reversed, and remanded, may be taken into consideration by the resentencing court.
In United States v. Kinder, 980 F.2d 961 (5th Cir.1992), the court stated:
It is a fundamental principle of sentencing that a district court may conduct an inquiry broad in scope, largely unlimited either as to the kind of information it may consider, or the source from which such information may come. The scope of a remand for resentencing includes new relevant factors proper in a de novo review. In the interest of truth and fair sentencing a court should be able on a sentence remand to take new matters into account on behalf of either the government or the defendant.
Although Kinder grants a district court wide discretion in conducting an inquiry into the...
To continue reading
Request your trial
-
U.S. v. Matthews
...adopted a restrictive rule for interpreting the scope of the mandate in the criminal resentencing context. United States v. Marmolejo, 139 F.3d 528 (5th Cir.1998) ("Marmolejo II"). In United States v. Marmolejo, 106 F.3d 1213 (5th Cir.1997) ("Marmolejo I"), we reversed sentence reductions f......
-
U.S. v. Quintieri
...Cir.) (same), cert. denied sub nom. Bowen v. United States, 528 U.S. 850, 120 S.Ct. 129, 145 L.Ed.2d 109 (1999); United States v. Marmolejo, 139 F.3d 528, 530-31 (5th Cir.) (same), cert. denied, 525 U.S. 1056, 119 S.Ct. 622, 142 L.Ed.2d 561 (1998); United States v. Parker, 101 F.3d 527, 528......
-
U.S. v. Phipps
...remand with instruction that the district court may reconsider this question under our limited remand rule. See United States v. Marmolejo, 139 F.3d 528 (5th Cir.1998). D. Defendants aver that their special condition of supervised release is unconstitutionally vague. They did not object at ......
-
U.S. v. Lee
...the scope of the mandate in the criminal sentencing context." Matthews II, 312 F.3d at 658 (citing United States v. Marmolejo, 139 F.3d 528, 530 (5th Cir.1998) ("Marmolejo II")). Thus we adhere to the view that, as a general rule, "only those discrete, particular issues identified by the ap......